Sovereignty and the
Fear of Difference
An ethnographic study of decision making practices in a German
immigration office
Janis Geschke
University of Amsterdam
Graduate School of Social Sciences Research Master Social Sciences Student Number: 11259507
E-Mail: j_geschke@web.de Submitted on: August 18, 2018 Supervisor: Dr. Milena Veenis Second reader: Dr. Barak Kalir
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Introduction ... 3
Access and methods ... 8
Chapter Outlines ... 10
Chapter One: The ‘promise of sovereignty’ ... 12
The Introduction of “safe-third-countries” ... 16
A new residence law ... 19
Chapter Two: The Role of Indifference and Exceptionality in Decision Making Praxis ... 24
Individual Caseworkers ... 27
The ethos of the profession: ‘We are still terminating residencies’ ... 31
Exceptionality breaks with indifference and moral detachment ... 35
Chapter Three: They don’t belong here ... 38
The “moral and ethical right order” ... 45
Conclusion ... 48
Becoming a political subject? ... 50
References ... 52
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and undermining international law” (Barker 2013: 241). In the same paragraph she concludes that in its extreme form, mobility control, bans human beings from society, robs them of their place in a political community and leaves them in total subjection to sovereign power (ibid.).
I found it a fitting description of my motivation to conduct four months of fieldwork in
the immigration office of Oaktown1, in western Germany. Barker paints a horrific picture, linking
to one of my main reasons to write about illegalisation practices, which is fear. Fear of the fact that in the near future, the likely death of a person will not count or hold valid anymore to stop a deportation. A threshold, I like to belief, which is not fully passed yet. Fear, that not only immigration office caseworkers and deportation officers will become indifferent to Barkers warning, but also the majority of the communities in German cities. Fear that we are close to accepting the fact that the legislation made in Germany is directly involved in keeping migrants at distance, allegedly for the German nation’s own well-being, accepting that human beings are and will die.
Thus, I want to contribute to a better understanding of where we are at this current point in time, by offering an interpretation of how people are illegalised. Therefore, I will address questions regarding the development of German immigration law, and the relationship between individuals and ‘the (German) nation’. The idea with which I started my research, is gaining a better understanding of what is happening prior to a person’s deportation. Following, I conducted participant observation alongside caseworkers in the immigration office to understand how illegalisation works in bureaucratic praxis.
At one of my first days at the immigration office of Oaktown, an unaccompanied minor was
denied a residence permit, because he was currently living illegalised2 under Duldung (temporary
suspension of deportation). The appointment was initially made in order to finalise the claim for residence papers according to §25, 5 of the German Residence Act; papers on grounds of humanitarian reason. Since the last meeting, he was picked up by police at the Austrian- German border. People living under Duldung are not allowed to leave the territory of the German state, as otherwise their Duldung becomes invalid and another administrative offence of “illegal entry” is recorded. Thus, the case is handed over to prosecution, which then has to decide whether or not to drop the charges.
The caseworker explained to me that according to her, she wouldn’t consider it a problem and would simply grant legal status on humanitarian grounds, but she is insecure about how her boss sees this case. Additionally, the lawyer of the minor filed an application for papers on basis of §25, 5 Residence Act already two years ago. Due to the high workload at that time and the chaotic conditions in the immigration offices nationwide (in the years 2015/16 immigration flows massively increased up to close to a million people, overwhelming the structures of immigration offices), the case got lost in the shuffle and wasn’t processed until recently. The legal basis on which the claim was made was that the minor is already living under Duldung for 18 months at least, and deportation is not likely to be enforceable within a foreseeable close future. Leaving aside the departure and re-entry of German territory, the legal basis of this claim had not changed and with the decision being positive, a residence permit should have been granted already two years ago.
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prosecutor’s decision on pressing charges. The next day, the minor came to the appointment and explained that he was visiting a relative in northern Italy. The caseworker explained to him that for now she will renew his Duldung for three months but that she needs to wait for the police report and the decision of whether the charges will be dropped. She furthermore explained that this doesn’t necessary mean that he will not get a legal status, however this was the third time he was caught and charged with “illegal entry”, which might prevent him from being granted it. She voiced empathy and explained that she would like him to be given legal papers, but that her hands are tied and she has to wait now. After the minor left the office she explained to me that whether the charges will be dropped depends on the workload of the courts as well: the higher the workload, the more likely the prosecutor will drop the case.
In order to fully understand this anecdote, I will introduce the – for this thesis - most relevant residence statuses:
Duldung: is the shorter synonym for ‘temporary suspension of deportation’. This means it
isn’t a legal status, but the exact opposite. People living under Duldung are considered to be ‘illegal’ and obliged to leave the country, but due to factual or other circumstances their deportation is not legally enforceable for the time being. A situation which can change.
Subsidiary Protection:3 is a legal status which is given when neither refugee protection is
granted, nor is a person eligible for asylum. It is granted for one year, after which it can be extended for two-year periods. With every extension it is assessed whether or not the reasons why it was granted in the first place are still given.
Ausbildungsduldung: stands for Duldung for the purpose of vocational training. It is, as the
term Duldung indicates, not a legal status, but opens the possibility after successfully finishing vocational training to be legalised through receiving a residence permit based on a work contract within ones professional field.
§25, 5 Residence Act: is a residence permit on humanitarian grounds. It is a legal status
which has to be renewed every six months. Because it is a legal status, the time holding it accumulates and after a particular time holders can be eligible for more stable residence statuses.
Coming back to the initial anecdote, what is not mentioned in this story are the possible consequences resulting from the raised charges. The client is still a minor, nevertheless legally obligated to leave the country, which is unenforceable due to §58, 1a Residence Act, which states that state officials have to secure the minors’ well-being in the state he*she is deported to. This protection vanishes as soon as the minor is coming of age and isn’t in possession of, or cannot claim a legal status. Furthermore, since Duldung isn’t legal status, the time spent under it is not counted as legal residence (since judicially, the person is taken away the right to reside) in Germany, while nearly all legal statuses require a minimum time of legal stay. Therefore, the minor might find himself in a position of not being recognised as a member of a political community, in “a state of limbo, caught between territories, none of which desire one to be its resident” (Benhabib 2004: 55).
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could have received a legal status already. This would have set him on a trajectory towards naturalisation or alternatively rendering him eligible for other more stable legal statuses – such as those which don’t need to be renewed every six to twelve months. In this case, his visit to Italy would have been completely irrelevant.
The explanation given to me as to why this has not happened is that the immigration offices, the courts and the BAMF (Ministry for Migration and Refugees; the authority responsible for asylum applications) were completely overwhelmed due to the drastic increase in numbers of applications in 2015 and 2016. It reminded me of the opening sentence of one of the few studies on German immigration offices: “This book is based on a simple but often forgotten premise: that what actually happens in practice is significantly different from what is theoretically supposed to happen” (Eule 2014: 2).
The protection of national sovereignty
On one hand, there were the pictures of trains full of migrants entering the main station in Munich in late summer 2015, while people wait to welcome them with applause, handing out blankets, food and supporting local administrative structures in registration procedures and organisational questions. On the other hand, at the same time, the government was bringing two main legislative packages, tightening immigration law and restricting the access to the asylum system mainly through adding new countries to the list of “safe-third-countries” and easing deportation procedures on the way. Thus, at the same time as a substantial part of the general public (Geddes 2016) was showing an unprecedented level of action and support initiatives, the government was following voices calling for closing the borders and tightening measures designed to govern foreign populations.
A development I characterise within the broader challenges to the sovereignty of nation-states (Barker 2012; 2017; Peutz, De Genova 2010). Globalisation and regional (economic) integration, such as within the European Union, are reducing national legal competences or even importance, and undermine nation-states positions as independent and sovereign actors. The challenge to sovereignty is further described by an increase in both wanted and unwanted mobility, disrupting the assumed order of nation-territory-sovereignty (Agamben 1995: 140). It is argued that as a reaction to the loss of significance in some legal fields, governments rely increasingly on a criminalisation and penalisation of migration in order to re-consolidate themselves in this field, because having the power to decide who is allowed to enter a country and who isn’t is seen as a main element constituting the sovereignty of nation-states (Walters 2002; De Genova 2010). This takes concrete shapes in the tightening of immigration laws, including mandatory expulsions after being convicted to sentences exceeding a particular time period, as well as creating detention and waiting centres for specific nationalities, etc. Overall, crossing a border unauthorised is an administrative offence, treated like a criminal offence, often followed by detainment and forced removal (Anderson, Gibney, Paoletti 2011: 549).
Against this backdrop several strings of research have developed, in which this thesis is mostly situated within the direction of work arguing that the driving force in the criminalisation of migration is the protection of national sovereignty (Agamben 1995; Arendt 1958, [1951] 1973;
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The New Racial Threat Hypothesis (Waquant 1999). This line of work states that when native populations feel threatened politically or economically, anti-immigrant sentiments gain strength, leading to harsher criminalisation and exclusion of groups perceived as a threat to an established idea of national-identity (Barker 2012b).
I follow the work of criminologist Aas (2007), in which she argues that the criminalisation of migration is a contemporary form of racism, reasserting cultural essentialism and underlying ideas of inferiority and superiority. Even though further, economically informed theories about the ‘globalisation of punitiveness’ (Waquant 1999, Baumann 1991) and the fact that neo-liberal economies demand a disciplined, cheap and flexible workforce (De Genova 2002; 2010) certainly play a role, I am interested in constitutions of sovereign power, wherefore they will be neglected. Along parts of my empirical material, I will briefly introduce relevant theoretical aspects of Agamben (1995), Arendt (1951, 1958), Ticktin (2005; 2006) and Fassin (2011) since their work builds the backdrop of this thesis.
The political climate in which decisions on residence claims are made is vital, as public opinion informs what is judged as acceptable use of discretion by caseworkers. Decisions made by street-level bureaucrats, such as immigration officials are always contextual and informed by an inner moral conduct. Furthermore, the understanding of their tasks, developed at the group level amongst caseworkers influences decisions, because it sets a norm rendering certain uses of discretionary power (un-)justified (Ticktin 2006; Fassin 2011). In making decisions, immigration law is interpreted and can neither be taken at face value, nor gains its meaning without application (Eule 2014: 5).
If a claim is denied and people are illegalised, deportation is a likely consequence. Deportations are instances in which one of the most coercive powers at hand of governments is executed against individuals. Although they individualise and single out people, deportations are part of a structural approach of the government. Therefore, to situate the use of deportations in relation to illegalising practices, I will give an overview of the implementation deficit in Germany. In 2016, there were 207.484 people illegalised and enforcedly deportable (Statista 2018a). Nevertheless, immigration offices and police ‘only’ deported 25.375 migrants the same year
(Statista 2018b). Subtracting the number of 54.006 (BAMF 2018) ‘soft deportations’4 (Kalir 2015)
just 16,5% of migrants threatened with forceful expulsion were actually deported. For sakes of comparison, my interlocutor told me that in 2017, there were about 6.000 legally deportable migrants living in Oaktown out of which 199 were actually deported. This resembles a quota of 3,3%, thus way below the national average. Since in numbers deportations are way lower than the actual amount of people rendered deportable, the outcome is what Agamben describes in his book homo sacer, as ‘the sovereign ban’: exclusion through inclusion (1995: 114-121). Migrants are illegalised on a legal basis, through which they are excluded from the political community. This exclusion goes along with great limitations and partial losses of civic and political rights, such as the right to vote, to work, or to mobility. Their deportation is not enforced, while at the same time they need to come every three months (in the case of the immigration office Oaktown) to the immigration authority to have their illegalisation (Duldung) extended. Thus, they are closely
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Furthermore, legal circumstances barring their deportation, such as missing legal papers, can change over time. As a consequence, paired with the legal prohibition of announcing deportations, illegalised migrants never know when or if they will be deported, subjecting them to the decisions of caseworkers and officials at the immigration office. At its extreme, the decision over who is deported resembles a decision over life and death, as exemplified by the several cases in which migrants were killed through deportation, including suicide before or after deportation (neues deutschland 2017; 2018; Agamben 1995).
A question still to be answered is, why refugees and migrants are challenging the raison d’être of a nation-state, therefore subjecting them to governing and to the most coercive power available to democratic states: expulsion. The current nation state-system is built on the idea that every person is connected to a sovereign. Birth immediately attaches a born person to the national body: “the nation” (Agamben 1995: 117). Arendt made a similar point, that rights are only enforceable as rights of the citizen, but not on mere biological existence (Arendt 1973: 273). Refugees and unauthorised migrants lost their clear attachment to a sovereign and present such an unsettling element to nation-states, because they break up the imagined naturalness between birth and nation, nativity and nationality on which the modern nation-state system is built (Agamben 1995: 140). This is mirrored in one of my interlocutor’s statements: “The presence of everyone who comes to Germany without a passport and a visa is first and foremost unauthorised. Actually, he must not be here” [my highlighting, JG].
Both Arendt and Agamben describe expulsion and illegalisation as the core element on which sovereign power is built. In other words, illegalising, depriving human beings of political life and reducing them to their mere biological existence is not a result of citizenship regimes and nation-states, but an element constitutive in the production and preservation of it (see also Walters 2002; Anderson et al. 2011; Cornelisse 2010). In her book The Origins of Totalitarianism Arendt writes that camps were the logical solution for refugees as they were the closest to a country a nation-state had to offer the stateless (Arendt 1973: 284). Following, camps are restoring a territorial separation, creating a distance for the rest of the population from camp inhabitants (Ticktin 2017: xxix).
Following Agamben that sovereign power of nation-states is dependent on reducing political life to biological life, he draws in his analysis on Foucault and conceptualises the modern nation-state as a state of biopolitics: politics turn into biopolitics when state power starts to include natural, biological life into its calculation. Examples of how this concept works in practice are legal statuses granted on basis of medical certificates. Didier Fassin (2005; 2011) and Miriam Ticktin (2005, 2006) wrote extensively on this topic, which I recognised in my fieldwork too. Several claimants handed in medical certificates as a reason why they couldn’t be deported. Although rarely accepted as a valid reason, medical certificates proving illness or threat to one’s life are the only means in order to be granted a legal status when all other legal options have failed.
Illegalisation practices are fundamental for the creation and preservation of a nation-state system, which governs through biopolitics. Both are challenged by ‘non-authorised’ mobility. I follow this
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formulated by Ticktin as “a process of ‘re-nationalisation’ (Sassen 1996) where nation-states try to rehabilitate their sovereign power over immigrants and refugees. An exception to the rule is the only way in” (2005: 362).
Access and methods
Against this broader theoretical backdrop, it is important to mention that research on immigration offices or state enforcement agencies in Germany is very limited. When it comes to studies on what happens inside German state-bureaucracies and enforcement agencies a gap in literature appears, as already pointed out by political scientist Antje Ellermann (2009) and sociologist Tobias Eule (2014), who wrote the only two comprehensive studies on the topic within a German context, known to me. Therefore, I hope to offer with this thesis, although very limited, some additional insight on the application of immigration law, and the way sovereign power of the German nation-state is uphold and re-inscribed through it. Furthermore, this thesis is relevant, as “[i]mmigration offices might be situated at the lowest point in the hierarchy of migration politics, but they matter most to the individuals who move to a new country” (Eule 2014: 4).
To gain an understanding of what actually happens inside state bureaucracies is vital, as many others such as Lipsky in his seminal work Street-Level Bureaucracy (1980) have argued, since the practice is profoundly different from the theoretical idea. Immigration law may be thought to stand on its own, but it gains its meaning in its application. It is highly conditioned on the federal state, as well as the city’s council interpretation of how restrictive or lenient immigration law is supposed to be interpreted. As outlined by my interlocutor Tom, who works for the Oaktown
Refugee Support Organisation:
And there, the basic orientation [of an immigration office, JG] plays its part, so it is something different for those who are lucky and live at a particular place where the immigration office has a certain political benevolence, compared to living in a conservative circuit and have to deal with the immigration office of this circuit, as an example.
To gain a better understanding of how immigration offices work, I eventually conducted four months of participant observation in the immigration office of Oaktown, in western Germany. It was quite difficult to gain access and finally I managed to do so rather through a lucky incident.
I first contacted the local Oaktown Refugee Support Organisation in May 2017 as part of pre-fieldwork research. With them I conducted a total of six subsequent interviews from August till October about the development of German immigration law, while I negotiated access with the deputy head of the immigration office. Thus, my interlocutor at the Oaktown Refugee Support Organisation had initially a secondary role as a gatekeeper to me, since he handed me the contact I initially approached to access the immigration office.
From an initial categorical ‘No’, given by the deputy head of the immigration office, I got thanks to the effort of an assistant of her full access after two months of negotiating and waiting. During my fieldwork, I only (to my surprise) encountered occasionally light levels of suspicion or open resistance from caseworkers, the head of the department and authority, or the deportation officers. This maybe partly due to the similarities between most of the caseworkers and me:
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Next to nearly unrestrictive access, I could define how often and when I would come in, for how long I want to stay and what I would like to take part in, quite independently and on my own terms. In the end, in addition to the four months of participant observation, I conducted, in total, ten interviews with caseworkers, deportation officers and with the head of the department, plus six interviews with my interlocutor at the Refugee Support Organisation. This thesis is based on these empirical data and I hope to have successfully interrelated and correlated between my on-ground experience and theory.
The organisational chart of the Immigration Office outlines its basic structure and the five main departments. I conducted fieldwork in Department E: Deportations and Terminating Residencies, Contact and Counselling Point.
Since this thesis is based on empirical material gathered through ethnographic methods, I hope to have done justice to the narratives and viewpoints of my interlocutors by having constructed empirically the situations and dilemmas they deal with on a daily basis, as well as how they manage and conduct their work (Fassin 2015: x). This is not to say that I don’t write out of a particular perspective, or that I have no part in the offered interpretation. On the contrary, my research and this thesis are informed by the understanding that citizenship and ideas of national identity are based on the exclusion of those perceived as ‘outsiders’ not only at the frontiers but also internally - stratified into categories of belonging natives, desirable and undesirable immigrants (Kalir and Wissink 2016; Fassin 2011). I see deportations as a cruel and disproportionate mean, which punishes people in horrific ways simply for having crossed a border.
In the German legal system, decisions on exclusion or inclusion into the political community are to a great extent made by caseworkers in immigration offices (next to caseworkers
in the BAMF5, whose officials made very clear that they wouldn’t allow participant observation in
their authority – a limitation I will discuss in the end of the thesis). Hence, this thesis is supposed to offer insights which make it possible to underpin critique at the current system of nation-states
Immigration Office a) legal representation in residential affairs Organisation and IT Security questioning b) work migration, service for students
and academics Integration Entry, Creditworthiness and Consultation Center Cologne c) general foreigner related affairs Circuit-Ausländerbehörden d) naturalisations Matters concerning nationality Legal representation, naturalisations, matters concerning nationality e) contact and counselling point, deportations Obtaining a passport affairs of detention field service/ deportation officers Medical Doctor
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Ontological and theoretical problems with a totalitarian approach
Using Agambens theoretical approach, of the exception and the sovereign ban, as an analytical lens for my empirical material bears some problematic implementations, which I will address briefly. As Jennings (2011) among others rightfully points out, Agambens’ approach is a totalising one, in which every form of political power necessary has to be sovereign (state) power (25). This is due to his conceptualisation of politics. According to him, politics have completely transformed into biopolitics, in its extreme latest visible at the point of extermination camps under the Nazi-regime.
This implies that the frameworks to conceptualise political life in distinction to natural life do not apply any longer, expressed in his sentence: “there is no way back to politics from the camps” (Agamben 1995: 179). For him, theoretically all of us are deprived of political life and our life is biological life, attributed with political and civic elements which can be revoked any time. He furthermore does not differentiate in whether one is naturalised or illegalised. Being deprived of political life is merely more visible at the margins of society (Agamben 1995: 121). I want to make clear that I do not subscribe to his totalising approach, because it erases any room for agency and possibilities for change from below. Nevertheless, I find it useful as an analytical tool: focussing on people acting in the name of the state allows questioning their practices and announced aims of policies, in order to empirically make sense of state-actors actions.
I understand Arendt’s work contrary to Agambens, since in her political theory she identified the main problem in the indistinction between the private and the public sphere. She pursued a strict separation between the private, in which consumption, work and other necessities of human life are situated and the public sphere, in which politics are happening. It is in the public sphere, where a political community exists and equality is established through encountering each other as equals (Arendt 1958). Therefore, differences are included in the political sphere, and should not be used as a mean to mark people as ‘Others’ and exclude them from the political community. Consequently, Arendt ascribes rights not to the natural but to the political sphere: a person becomes the subject of rights through the “insertion of one’s self into the political world” (Arendt 1973 [1951]: 186).
Throughout this thesis I will use Agambens conceptualisation of the exception and the sovereign ban to show how sovereign power is exercised by caseworkers and deportation officers, while referencing back on Arendtian approaches to avoid falling into totalising notions, which dispute human beings’ capability to act.
Chapter Outlines
In the next chapter I will turn to the recent historical development of Immigration Law and will develop an account of the ‘historicity of Immigration Law’ (De Genova 2002). The aim is to show how conditions of illegality targeted at particular groups are created through changes in law and not ‘naturally’ given. I try to develop an understanding which de-naturalises present day ‘illegalities’ and understands changes in law as interventions out of historical and socio-political developments. Driven by ‘the promise of sovereignty’, to always privilege the citizen (Cornelisse 2010), a link between people, territory and sovereignty is created and set as tantamount to an imagined idea of ‘the nation’.
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truthfulness and deservingness of the claimant.
In the fourth chapter I will deal with the relation between the caseworker and the state, arguing that national identities, linking caseworkers to ‘the state’, are the basis on which the decisions described in chapter three are made. Dichotomised distinctions into ‘us’ and ‘them’ are created, but need to be complicated, since caseworkers employ more differentiated distinctions into ‘me’ / ‘us’ and ‘them’. Furthermore, I will use the contradictive approaches towards unaccompanied minors (heavily pushed towards integration) and ‘unauthorised’ adults (subjected to illegalisation practices) as examples, to show how nativity and nation are equated in a narrative based on cultural essentialism.
The conclusion will bring the arguments of the previous chapters together in offering explanations on how people are illegalised and why this is problematic –both for caseworkers and migrants. I will engage with alternative constructions of political communities based on the process of “dis-identification” (Ranciere 2007), leading towards “a more radical political project, one that sees a degree of legal regularity and predictability necessary to achieve the autonomous political action of a democratic society” (Ticktin 2005: 367). Therefore I will fall back on an interpretation of Arendt, which calls for the development of authentic political power outside ideas of sovereignty.
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Chapter One: The ‘promise of sovereignty’
In this chapter I will give a brief history of German Immigration Law with a particular focus on the events leading to the introduction of so-called “safe-third-countries”, through the amendment of article 16 of the German constitution. The basic premise of this chapter is following Nicholas De Genova’s concept of the condition of migrant “illegality” (2002), which is to lay out the historical specificity of migrations and to situate their illegalisation in the socio-legal and historical context of the particular nation-state (423). Consequently, a critical analysis of immigration law needs a double emphasis on the particular conditions the law produces and what their histories are (ibid: 424).
In this chapter I will historically trace the pre-amble of the currently valid Residence Act: “This Act shall serve to control and restrict the influx of foreigners into the Federal Republic of Germany” (Residence Act, Section 1, 1). In order to do so, I will examine six consecutive in-depth interviews with Tom, the Head of the refugee and migrant support organisation Oaktown
Refugee Support Organisation and three interviews with Petra, the head of department E, responsible
for deportations in the Oaktown immigration office. I aim to show how Immigration Law was, throughout the entire period, from 1938 till today, designed to fulfil the ‘promise of sovereignty’ (Cornelisse 2010: 17). The actions and fields which are subjected under a legal order are decided in socio-political deliberations, creating the possibility of ‘legality’ and ‘illegality’. ‘Legality’, as well as ‘illegality’ and citizenship, describe not merely a juridical status, but also a social relation to the state (De Genova 2002: 422). The promise of sovereignty draws on this relation to the state and refers to the possibility of distinguishing between the belonging legalised from the non-belonging illegalised and promises to always privilege the former.
Residence Law, Asylum Law and Nationality Law
German Immigration Law consists out of three main categories: Nationality Law, Asylum Law, and Residence Law. While the first and the last are federalised and handled by immigration offices, Asylum law is under the national authority of the Ministry of Migration and Refugees (BAMF) (Eule 2014: 12). The duality in structure – especially between Asylum Law and Residence Law – has its historical roots in the beginning of the post- WW2 era. Because both authorities became increasingly entangled throughout history, it is important to carefully separate these two strings of responsibility as Tom points out:
So, one really needs to distinguish between asylum procedures on the one hand, and ordinary Residence Law on the other. With a negative decision on the asylum case, deportation is not the default consequence, but the norms of the residence law apply then.7
While it is important to separate the different categories of Immigration Law, it is important to analyse how they influence each other, since changes in Asylum Law, for instance, have effects on the implementation of Residence Law. Thus, it is impossible to understand one of the three laws, without considering the other two. In this thesis I deal with illegalisation practices, which often end in deportations. But as there is no such thing as a ‘Deportation Act’, it belongs to the larger body of immigration law. This is why I will link Residence Law, as the main
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part of Immigration Law I am dealing with, to broader developments in the field of immigration, in order to properly situate its developments (Ellermann 2009: 53).
Basic Orientation Immigration Law
The sociologist Antje Ellermann developed a framework on coercive state capacity. In her study she takes recourse to the sociologists Tatalovich and Daynes, in order to describe the distinguishing features of socially regulatory policies, such as Immigration Law (in comparison to economic regulations). According to them, the distinguishing aspect of coercive state policies is the centrality “of moral and normative debates about the place of the individual in the community” (1998: 2, in Ellermann 2009: 8). In Immigration Law, as part of regulatory state policies, the state potentially directs its hard powers – such as the threat of using force and expulsion – against individuals. Furthermore, making legal use of coercion is transferred to street-level bureaucrats. Consequently, these bureaucrats represent the central actors in an interface between the ‘state’ and those defined as its targets of governance (ibid.: 12-17).
The first nationally coherent immigration regulation was formulated in 1938, the
Ausländerpolizeiverordnung (Police Regulations on Foreigners) and remained the legal basis till 1965
(Eule 2014: 10). Even though a first residence act was introduced in 1965, Immigration Law belongs to the field of Hazard Prevention Law, till today. This is due to the German legal understanding of the term ‘police’, which is based on a material definition developed in the Weimar Republic and codified in the Prussian Polizeiverordnungsgesetz (Police Regulation Act) in 1931.
The formulated understanding in there defines Police – in the material sense – as the necessary (im)mediate violence of the respective connected public administration, in order to repel threats towards public order and security and to eliminate already existing threats. Hence,
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police itself isn’t strictly seen part of public administration, but takes over its mandate and powers of hazard prevention (Götz, Geis 2017: 10-25).
These developments can be traced back to an Entpolizeilichung (de-police-ation) of administrative tasks after WW2. Administrative tasks not belonging to law enforcement were seized from police authorities and transferred into an administrative structure (ibid.). The intended effect was to de-politicise police. Combined with Germany’s federalised political system it contributes to high levels of communal and regional autonomy, with regards to the enforcement of Residence Law.
Before 1965, the post- WW2 still valid Ausländerpolizeiverordnung was ‘de-nazified’ through §123 of German Constitutional Law (Eule 2014: 12). From there, it took German politicians a long time to accept the de-facto reality that Germany is a country of immigration and emigration, mirrored by the fact that the first German Immigration Act was only introduced in 2005. Until then, policies were based on the opposite premise, of Germany not being a country of immigration (Ellermann 2009: 18; Eule 2014: 3; Geddes 2016: 74). German Citizenship Law prioritised in its
nation-building process from the middle of the 19th century on the principle of ius sanguinis,
oriented towards descent and kinship by blood, over the territorial jus soli principle of citizenship (Walgenbach 2009: 380; Arndt 2009). Consequently, for ethnic Germans and expellees who were seen as displaced during the Third Reich, the Bundesvertriebenengesetz (Federal Expellee Law) was enacted in 1953, while for non-ethnic Germans the 1938 Nazipolizeiverordnung remained the legal basis (Eule 2014: 10).
Having outlined that Immigration Law belongs to Police Hazard Prevention Law, I will now examine the position of ‘the Foreigner’ in this legal complex. I argue that foreigners, from a juridical perspective, are foremost seen as a potential threat to the legal definition of public order and security. According to the legal definition, public order and security are legal assets consisting of three parts:
inviolability of the legal order,
individual legal rights and the legal assets of individuals,
the institutions and activities of the state or other authorities.
From this triad, the inviolability of the legal order is the most important aspect (Götz, Geis 2017: 21-33). When I asked Petra, why don’t stop the illegalisation and deportation of people, she answered:
(...) I think it is within the sovereignty of states that the respective state protects its borders and in my opinion it is eminently legitimate to repatriate people who represent a threat and looking at it from a purely legal perspective a threat is given if someone doesn’t comply with the valid legal norms. If the valid legal norm in the residential act defines, for instance, when and how someone enters, and then he doesn’t comply with it, he is in violation with the legal order, and this constitutes a threat, too.8
Since foreigners are not considered part of ‘the nation’ (a term legally reserved for naturalised citizens), an abstract potential to violate the legal order is introduced. Legally seen,
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foreigners don’t have an unconditional right to be on German territory, therefore it needs to be evaluated if they meet the state defined criteria which render them a non-threat to public order and safety (for instance through having enough financial backup not to run at risk to become dependent on state assistance). In this logic, as Petra mentions, the only way to prevent a potential threat in turning factual is to govern foreigners beforehand.
Tom takes this legal view up and criticises it for its restrictive focus:
This doesn’t come as a surprise [that Immigration Law is restrictive, JG], since Immigration Law is part of… part of Administrative Law, part of Regulatory Law… thus, it always is about hazard prevention. Therefore, the third- country national is potentially a threat to public safety and order. Hence one has to… one has to put rules in place. If the foreigner transforms into an actual threat to order, he has to be punished, up until to… to remove him from the federal republic of Germany.9
As Petra’s and Toms statements make clear, in order to be legally regarded as a threat, a foreigner does not need to cause any material or physical harm. The pure potentiality of legal order violation can be evoked as a justification for the ‘need’ to govern foreigners. Such an argumentation fetishizes the law, as pointed out by De Genova: “it venerates whatever is ‘legal’ on no other grounds than that the law anoints it as such, and castigates whatever is ‘illegal’ for no other reason that it may be construed to be legally forbidden” (2013: 38). An argument following this logic ignores normative or ethical concerns about the provisions outlined in the respective policy. Eventually, fetishizing the law comes down to a very limited view, in which contextual reasons for crossing a border are ignored or considered to be mere technicalities, and the situation is simplified to the credo of, who doesn’t comply with the rule of law deserves to be punished.
The residence law from 1965
Turning the focus from the rather abstract judicial outline to the question of how Immigration Law structured and structures immigration offices, it is important to understand its most profound changes. The basis of the current decentralised structure of immigration offices was laid in the first nation-wide Residence Law, established in 1965. It had great structural effects and transferred most of the decision-making capacity from the national to the federal level, while at the same time most decisions were substantiated on a discretionary basis. Basing most decisions on discretion was greatly criticised for its non-transparency and its ill-defined language, which
resulted in a high number of undefined legal concepts10 (Eule 2014: 10).
The need for a Residence Act was seen in the rising numbers of guest workers. Even though guest worker recruitment had started ten years ago, the Residence Act didn’t include any rules regarding family reunification – which became the main reason for immigration in the late ‘70s and shows the government’s commitment to the idea that “guest workers” will return (ibid.). Ellermann traces the ill-suited format of the Residence Act back to the fact that matters of immigration didn’t play an important role in political debate until the late 1970s. Only then, in the end of the ‘70s and beginning of the ‘80s it became an increasingly polarised and politicised topic, as narratives of purported “asylum abuse” entered the debate (Ellermann 2009: 19). At the same time, the introduction of restrictive policies and various rounds of tightening the criteria set out
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for eligibility to a legal status, aimed at restricting access to the asylum system. However, this did not result in an increase in deportations – at least not until the late ‘80s (Münch 1993).
Before the mid 1970s, caring for asylum seekers and access to asylum were portrayed as a humanitarian responsibility in public debate, informed by Germany’s past – a right which was not discussed in terms of numerical limits. In distinction, migration on economic grounds was seen as temporary and conditioned on the economic situation in Germany. As a consequence of the announced stop of ‘guest-worker’ recruitment in the aftermath of the oil shock and economic recession in 1973, the relative share of asylum seekers in immigration flows increased. Applications for asylum grew in numbers, eventually exceeding 100.000 claims. In addition, whereas the second wave of guest-workers came from predominantly white European countries, asylum seekers increasingly came from non-European, non-white countries (Ellermann 2009: 20).
Due to the recruitment stop, labour migrations share was replaced by gradually greater numbers of asylum seekers as the dominant form of immigration in Germany at a time, where racist anti-immigration movements gained influence and acceptance within society (again). By the beginning of the 1980s, growing xenophobic resentments found their expression in a framing of asylum seekers as ‘bogus’ and ‘economic migrants’. As a consequence, in the end of the 1980s, calls to crackdown on asylum seekers and deportations got louder and gained a prominent role in debates about migration control. Whereas immigration authorities deported around a little more than 10.000 people in 1989, in 1994 the number of deportations rose to an all-time high in post - WW2 German history, to over 52.000 (Ellermann 2009: 20; Geddes 2016: 76). The point when debates about asylum and immigration were mixed with each other marks the starting point, where asylum policies were linked to matters of migration control.
The Introduction of “safe-third-countries”
By the end of the ‘80s and beginning of the ‘90s anti-immigrant sentiments grew within society and large-scale backlashes of right-wing violence against migrants and refugees – or those perceived as such – introduced a debate among politicians about whether or not to amend article 16 of the basic constitution, in order to appease right- wing outbursts through restricting the access to asylum. Simply the idea about whether or not article 16 could be amended at all represented a novelty.
The right to asylum was intentionally written into the German constitution and there was an encompassing consensus that this right is sacrosanct and untouchable (Ellermann 2009: 58-60). Such positionality was largely informed by the Shoah and the experiences of political exile of a number of founding fathers of the Republic. Therefore, the right to asylum in the German constitution symbolised more than a humanitarian responsibility; it represented a historical responsibility. Especially for the social-democrats, who were the only party which voted against Hitler’s NSDAP in 1933, when the Ermächtigungsgesetze (Enabling Statutes) were adopted, restricting access to article 16 touched upon the heart of their self-conception.
Anti-immigrant violence in the period from the ‘80s to the ‘90s distinguished itself from former periods by its scope and intensity: while in 1990 about 300 right- wing attacks against foreigners were recorded, in 1992 the numbers account for more than 2000 (Ellermann 2009: 57). For additional comparison, in 2016 more than 3500 attacks leaving at least 560 people injured (Pearlman 2018: 315), in 2017 more than 2200 attacks solely on refugees were registered (excluding right- wing motivated violence, targeting everyone else than ‘refugees’) (faz 2018).
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Narratives of “asylum abuse”, “economic migrants” and “bogus asylum seekers” were increasingly voiced not only by far- right politicians, but also by the conservative parties CSU and CDU (Ellermann 2009: 54). The rise of the two most prominent extremist right-wing parties Republikaner and NPD (Nationalsozialistische Partei Deutschland) shows how socially acceptable racist anti-immigration standpoints were. The former entered the Landtag (federal parliament) of the federal state Baden-Württemberg as the third largest party with a share of 10.9 per cent of votes in 1992 (whereas in 1988 their final election result was 1%) –other federal parliaments followed this direction.
Anti-immigrant violence reached its peak at the same time, as a general consensus prevailed that the system in place to adjudicate asylum claims was no longer capable of handling the number of asylum applications – despite several rounds of tightening and changing laws towards more restriction throughout the 1980s (Ellermann 2009: 58). Even though, in the beginning of the ‘90s, the CDU/CSU wasn’t able to gather the necessary supermajority to amend Constitutional Law, due to the SPDs resistance, they nevertheless succeeded in breaking a long- standing consensus and opened up the politically legitimised debate toward the political far-right (Ellermann 2009: 58). After the two most massive and shocking backlashes in anti-immigrant
violence in Hoyerswerda (17th till 23rd September 1991) and Rostock-Lichtenhagen (22nd till 26th
August 1992), SPD mayors of great cities openly went against party discipline and called for an amendment of article 16 (Schwarz 2000). The CDU/CSU didn’t let this opportunity of inner-party conflict unexploited and capitalised on the situation by holding the SPD accountable for anti-immigrant violence, framing the party’s resistance to amend article 16 as the roots of continuing backlashes (Ellermann 2009: 66).
Eventually, in exchange for the creation of a civil war refugee status (subsidiary protection), the SPD gave in, leading to the amendment of article 16 in June 1993. The so called
Asylkompromiss (asylum compromise) introduced article 16a: the introduction of
“safe-third-countries” (Ellermann 2009: 59-66). Previously, asylum was granted rather liberal, but now through the change, access to the asylum system was categorically denied to certain groups and nationals. Migrants arriving in Germany via a “safe-third-country” can no longer file an asylum application, as they should have done so in the respective country of transit. The same rationale holds for citizens of “safe-third-countries”. Furthermore, applicants whose claims were judged as “manifestly unfounded” based on coming from a “safe-third-country” could be expulsed faster, while precluding their access to suspensive judicial review. The amendment showed its intended effect to restrict the access to asylum, as can be seen in the number of applications. In 1992, over 135.000 Romanians and Bulgarians filed asylum claims, whereas in 1994 after declaring them “safe-third-countries” application numbers dropped under the mark of 13.000 (Ellermann 2009: 59).
The introduction of “safe-third-countries” marks a remarkable point in the development of German immigration law, as two novelties happened. Firstly, the German parliament and parts of society by extension broke with the beforehand sacrosanct consensus that the access to asylum cannot be restricted. Secondly, immigration control was for the first time legally portrayed as being a matter of controlling the access to asylum, whereas until the mid of the 1980s these two forms of immigration were in discourse and praxis treated distinct from each other. Furthermore, whereas deportations didn’t feature prominently in state politics of coercion till the end of the ‘80s, it increasingly transformed into a default approach and evolved into a political imperative
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(Ellermann 2009: 67; Geddes 2016). Due to these changes which also served to normalise deportations as a mean of expulsion, “the forced removal of rejected asylum applicants has been at the forefront of implementation efforts across the interior ministries” (Ellermann 2009: 97).
Introducing a territorial principle of citizenship
In the national elections in 1998, the era of a 16 year reign of the CDU/CSU (in a coalition with the liberals) under Helmut Kohl ended, and a coalition between Social Democrats (SPD) and the Green party took power. Thus, most of the recent history until then has been marked by a conservative approach to issues of immigration and asylum. Part of such approach has been the adherence to an ethno-national understanding of citizenship, based on strong notions of national belonging expressed in the dominant position of jus sanguinis and the absence of jus soli.
I follow Anil in her assessment that the German understanding of citizenship before the new Citizenship Act in 2000, was devoid of territorial, civic, and legal elements, but followed a purely cultural and ethno-national understanding of nationality (2005: 454). The strong focus on an ethno-cultural understanding was due to the expulsions and scattering of ethnic Germans during the time of the Third Reich. Because of the split into FDR (Federal Democratic Republic of Germany) and GDR (German Democratic Republic), the category of “Germans” wasn’t defined by Germans living in Germany, but by people of German ethnicity, regardless where they lived (ibid. 456). To say it differently, “German nationality and citizenship were based on a clear distinction between nation and state” (Geddes 2016: 87), since a state has territorial boundaries, but an ethno-cultural understanding of a nation does not.
Geddes uses past tense, as this understanding was greatly informed by the historical project of German reunification, which eventually was achieved in 1989 with the fall of the Berlin Wall. After reunification, a strict distinction between nation and state wasn’t necessary anymore, because its main goal was to signify common belonging regardless separate territories of the FGR and GDR (ibid.). In a renewed nation-building process aimed at forming a unified Germany not only on paper, but socio-politically, a spatial category gained in importance connecting the ‘nation’ to the sovereign territory of a unified Germany.
Until it was changed in 2000, German Citizenship Law had not contained a general principle of territorial citizenship (ius soli), but solely one of citizenship through birth (ius sanguinis) (Anil 2005: 454; see also Brubaker 1992). The reunification of Germany started a process slowly pushing toward the inclusion of civic elements anchored in jus soli citizenship regulations. In there, easing naturalisation criteria through the inclusion of territorial and civic elements directly touches questions on national identity. I argue that the idea behind the challenged ethno-national principle of jus sanguinis can be summarised as follows: German is something you were born as; it is not something you can become.
A position officially stated in the Federal Naturalisation Guidelines of 1977:
The Federal Republic of Germany is not a country of immigration; it does not strive to increase the number of German citizens by way of naturalisation... The granting of German citizenship can only be considered if a public interest in the naturalisation exists... the personal desires and economic interests of the applicant cannot be decisive (in Anil 2005: 455).
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Although Germany had major immigration flows because of the ‘guest-workers’ who settled permanently and the following family reunification, as well as an increased numbers of refugees in the early 1990s, it always build on an ethno-national understanding of citizenship. A position, which resulted in more than 7 million immigrants without German citizenship living in Germany in 1993 - 1.5 million of them born in the FGR - while the naturalisation rate was as low as of 0.5 per cent (Eule 2014: 11; Geddes 2016: 88).
The Social Democrat-Green coalition wanted to change the exclusive ethno-national understanding of citizenship, after their election in November 1998. To their disadvantage, they lost their long standing majority (since 1991) in the Bundesrat – the second constitutional chamber - in February 1999, which would have been necessary to pass the law. Thus, they needed the support of the liberals to pass a new Citizenship Act, as the CDU/CSU did not change their position on objecting birth right citizenship. Eventually, in 2000 the government coalition introduced a new Citizenship Act, but had to compromise on dual citizenship as the trade-off for the support of the liberals, the FDP. The inclusion of territorial elements is not to say that ethno-national and cultural elements weren’t and aren’t dominant in the German understanding of citizenship. On the contrary, even though civic elements were introduced in the new act, overall an ethno-national understanding prevailed (Anil 2005: 463). Still, since civic and political elements were partially introduced, immigration law was in need to define new categories of difference, in order to uphold the promise to always privilege the native population. This is mirrored in high criteria for naturalisation inscribed into the Citizenship Act and in consistently low naturalisation quotas of less than two per cent (Thränhardt 2017: 6).
A new residence law
After the inclusion of territorial elements in the Citizenship Law in 2000, the SPD/Green coalition wanted to open Germany further to immigrants and brought Germany’s first Immigration Act, a Residence Law on the way. In fact, between 2000 and 2005 there were two different Residence Acts. In order to open possibilities for bi-partisan support and avoid principles of party discipline to block any legislative change, the SPD/Green coalition established an independent commission Zuwanderung (Immigration), led by the CDU politician Rita Süssmuth. The commission compiled a set of possible objectives as to how an immigration system in Germany could look like, based on the examination of various systems already in place in other countries, such as Canada or England for instance (Kommission Zuwanderung 2001).
The first Residence Act in 2002 partly incorporated ideas developed by the commission, but was declared invalid by the Constitutional Court, due to a formal irregularity after an appeal filed by the conservative-right CSU (Geddes 2016: 83). A new law had to be brought to the table. In the meantime, the terrorist attacks of 9/11 in the USA happened, which completely changed the public climate towards a rather restrictive approach to immigration. In the end, the second immigration law underwent 18 months of deliberations, debates and was eventually agreed upon in 2004, coming into effect in 2005. The initial idea of designing an immigration law to open Germany towards foreigners and to welcome them vanished and it became a law of control and governance (ibid.). Even though Germany received its first Immigration Act, it was one with a strong emphasis on stratified control, distinguishing between wanted and unwanted mobility. As a consequence, low-skilled migration became increasingly difficult, while the higher the
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educational qualification, the easier and more open the system became (Geddes 2016: 99; Eule 2014).
The 2005 residence law represents an important turning point, as it is Germany’s first Immigration Law (in distinction to the former ‘Alien Acts’), therefore marking the shift from “Germany is no country of immigration” towards “Germany is a country of immigration – albeit a special one”. The anchored policies are a combination of restrictive measures towards those declared ‘unwanted’, under which family reunification is situated, and the desired recruitment of highly skilled labour migrants. Similarly, Germany’s immigration policies at least partly moved away from an ethno-national understanding through the incorporation of civic and political elements of citizenship – although only to a small extent.
Asylum Packages 1 and 2
I mean, in 2015, 2016 we had very high numbers of asylum seekers out of these countries of origin [West-Balkan], which then relativised itself rather quickly through amending the law – through introducing them as safe-third-countries. In turn, we saw this increasingly reflected in [numbers of] illegal entries.11 – Petra
In light of the steadily increasing numbers of refugees approaching Europe since 2010 and the imminent escalation of the situation in Hungary, Angela Merkel effectively overturned the EU’s Dublin system, by opening for a short period of time Germany’s borders for refugees and giving the option to apply for asylum, regardless of whether one has passed through a “safe-third-country”. Initially, a phenomenon called Willkommenskultur (welcoming culture) featured prominently, thus a lot of volunteers came to central spots and offered to help with setting up tent camps, helping in the food banks, as well as in organising and distributing massive amounts of donations. At the same time , a right-wing movement called PEGIDA (patriotic Europeans Against the Islamisation of the West) formed itself and the conservative parties of CDU and CSU increasingly revived elements of an ethno-national understanding of “the nation” thought to have been overcome in the wake of the Citizenship Act in 2000 and the Residence Act in 2005. I don’t see the rise of xenophobic tendencies neither as something new in German society, nor as an inevitable result stemming from the inflow of migrants. I argue, the roots of the rise of a new far-right are anchored in the great welfare cuts in the early 2000s, paired with the economic crisis following the sub-prime mortgage crisis in the USA 2007. The point I am making is that anti-immigrant backlashes are in need to be explained by other factors than simply an inflow of migrants.
Mirrored in calls for promoting a German “Leitkultur” (leading culture) as a form of mandatory behavioural guidelines, the struggle over national identity gained new momentum (Pearlman 2018). Political scientist Geddes describes it fittingly when he paraphrases Wasmers’ (2013) argument “that attitudes in Germany to diversity remain ambiguous, as there is evidence of both an increase of support for diversity as an enrichment of society combined with an increase in the numbers of people who see immigrants as a threat to national identity and social cohesion” (Geddes 2016: 93).
I argue that it was this duality in positions in 2015, which prevented the CDU- led coalition - with the social democrats - to turn towards heavily restricting the access to asylum and welfare services for immigrants, even more than they already did. After the decision to
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temporarily open the borders in September 2015, the government adopted two bundles of policies aimed at reducing numbers of asylum applications through re-instating restrictive access to the asylum system. These policy bundles were named Asylum Package 1 and 2, and both created different conditions of ‘illegality’ albeit through the same formal juridical structure. Asylum Package 1 was adopted in fall 2015 with far reaching measures, as described by Tom:
Indeed, the fast-track-procedures were introduced there and... so, the fast-track-procedures on the one hand and deportations without prior notification [on the other hand] were introduced. You know, this is an extremely important point, which didn’t exist beforehand. For instance here in Oaktown. Two or one week, which was definitely the shortest due date, prior to a deportation [the people received a notification]. (...) Since then, it is forbidden for the immigration office to do this [to announce deportations, JG].12
Next to the introduced fast-track-procedures, the first Asylum Package declared the West-Balkan states Albania, Kosovo and Montenegro as “safe-third-countries”. The initial quote by Petra refers to this process, in which access to the asylum system was closed, which led to the creation of new groups of illegalised people, pushed outside the protective realm of the law. This includes that applicants are supposed to stay up to six, instead of three months in “initial-accommodation-centres” and should receive benefits in kind, instead of money which they would be free to spend at their will. One of the most important changes was that deportations were now forbidden to be announced, leaving everyone rendered deportable in constant fear of being deported at any moment (Pro Asyl 2015). The law was heavily critiqued by various organisations out of the social and political arena as inhumane and in conflict with the international conventions signed by Germany – positions supported by citizens taking part in the Willkommenskultur (ibid.; Pearlman 2018).
Groups targeted the most by the legal changes were Roma and Sinti, which held formal citizenship in a West-Balkan country. Illegalisation translates into social exclusion, reflected in the debates surrounding and the treatment of affected groups. Racial hierarchies and long- standing societal racist resentments, translate into different characteristics ascribed into the ‘essence’ of particular groups. In the German case, antiziganism is strongly connected to ideas of ‘welfare abuse’ and petty crimes organised in non-modern family units (lpb Baden-Württemberg 2018; Severin 2011). Such ‘characteristics’ are described as being inherently part of ‘their nature’. The exclusion of Roma and Sinti is neither new, nor a phenomena limited to Germany, as can be exemplified by the announcement of the Italian Prime Minister that he wants to count and register Roma and Sinti (neues deutschland 2018b).
The second asylum package came into effect only half a year later (17th of March 2016) and was
filled with another round of restrictions and changes in Asylum Law, as well as in the Residence Act:
The so called “particular-accommodation-centres” [besondere Aufnahmeeinrichtungen] were legally established there [in the second Asylum Package]. In “particular-accommodation-centres”, in contradistinction to general accommodation centres, particular nationalities were confined. So, especially people coming from “safe-third-countries“, people without identification documents who are under the assumption of having destroyed them intentionally, follow-up applicants...13 – Tom
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This second package was not so heavily criticised by the public, as political and social tensions rose in the aftermath of the 2015/2016 New Year’s celebrations in Cologne, whereby large numbers of women were sexually and physically assaulted with the reports that the attackers were
young men of Arab and North African origin14 (Geddes 2016: 93). The whole debate shifted
from alleged welfare abuse, towards immigration as a threat to public order and safety and the
Willkommenskultur came to a sudden end. I argue, this revoked the duality in positions between a
general support of diversity and immigration as a threat, mentioned earlier by Geddes, and gave dominance to the latter conservative-right position.
The second Asylum package furthermore declared Algeria, Morocco and Tunisia to be “safe-third-countries” (Pro Asyl 2016), creating – albeit using the same legal mean – a different condition of ‘illegality’. In distinction to the morally tainted debates of ‘welfare abuse’ surrounding migrants from West-Balkan states or those attributed to this group, migrants from North-African countries are framed as a great danger to personal safety, as ‘rapists’, as the ultimate ‘Other’. After the attacks during New Year’s Eve 2015/16, the term NAFRI (North African Intensive Perpetrator) gained prominence – a term originating in police jargon, used accidentally in a tweet by the police department Cologne, through which it made its way into mainstream language and newspapers, despite its racist connotations and sentiments (Yaghoobifarah 2017).
Although the legal structure through which both migrants from West-Balkan states and migrants from North-African states are illegalised is the same, the conditions of ‘illegality’ and how difference of an ‘Other’ is produced, vary from each other and consequently have to be analysed distinctly in their effects and aims. Different moral economies surrounding immigrants have different effects in their treatment, how their cases are handled and how sovereign power in the form of discretion is enforced. A point I will come back to in the next chapter.
Conclusion
In the beginning of this chapter I examined the promise of sovereignty (Cornelisse 2010: 107), which is always to privilege the citizen over the non-citizen. In a slightly different manner, Benhabib paraphrases Arendt’s statement that “the nation had conquered the state, national interest had priority over law long before Hitler could pronounce ‘right is what is good for the German people’ (Arendt 1973 [1951]: 275). To be clear, I am not equating the situation in the Third Reich with the current one. According to Benhabib, the modern nation-state stopped applying the rule of law to all its citizens and residents, but made the rule of law an instrument of the nation alone (Benhabib 2004: 54). I hope to have shown a general movement toward this direction in recent German history.
Residence law is part of Hazard Prevention Law, in which the foreigner is a potential threat to public order and safety. As long as this stays the legal premise, the rule of law can never be inclusive in its character towards non-citizens and Immigration Law will stay foremost a producer of difference (De Genova 2013: 1192). Throughout recent history, with each change in Immigration Law, thresholds defining the access to legal protection have been moved toward limiting access to rights for non-citizens. German Immigration Law consistently went down a pathway of restriction and governance of groups deemed undesirable. This didn’t change with the acceptance that Germany is a country of immigration. It rather embedded particular groups of immigrants in morally charged debates about their place in society, therefore creating racial
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hierarchies, playing immigrant groups against each other through defining which groups belong to desired and which to undesired flows of migration.
