3. Acquiring the Status of Migrant: a Plurality of Residence Permits
3.3. The Main Groups of Migrants in Germany, according to their Legal Status
In the following section, this report will give a review on the different channels of migration to Germany. The main groups are considered, ac- cording to their legal status. The list, however, is not meant to be ex- haustive.
3.3.1. Union Citizens and their Relatives
The largest group of migrants living in Germany with a more or less unified legal status consists of non-German Union citizens. By the end of 2003, 25% of aliens were nationals of an EU Member State.25 These figures increased to 34% after accession of ten new Member States in 2004, the largest new nationality being Polish (4% of all aliens). The most prevalent nationality is still Italian (8%), followed by Greek (5%).26
Not much needs to be said here with respect to German law, since the legal regime of Union citizens is almost exclusively predetermined by EU law, in particular by the provisions on freedom of movement (Art. 18, 39, 43 and 49 EC Treaty), the non-discrimination clause of Art. 12 EC Treaty, and the various pieces of EC legislation enacted for implementing them. Outstanding among the latter is Directive 2004/38/EC on the right of Union citizens and their family members to move and reside freely within the Union territory, which is to be trans- posed by April 30, 2006. The Freedom of Movement Act anticipated some of the innovations of Directive 2004/38/EC, although further amendments are required to bring German law fully in line with the Directive. The Freedom of Movement Act already abolished the obliga- tion of a Union citizen to apply for a – at any rate declaratory – resi- dence permit. Henceforth, the local Registry Office issues a non-formal certification of the right to reside when the Union citizen registers his/her relocation with that office (an obligation which also pertains to Germans). As required by the Directive, Union citizens and their rela- tives acquire a right of quasi-permanent residence after five years,
25 Beauftragte der Bundesregierung für Migration und Flüchtlinge, Daten – Fakten – Trends: Strukturdaten der auslọndischen Bevửlkerung (Stand: 2004), at 18; available at <http://www.integrationsbeauftragte.de/download/Strukturda ten.pdf>.
26 Auslọnder- und Flỹchtlingszahlen (note 3), at 75.
which is independent of any economic activity or of having sufficient resources. Residing as a person entitled to freedom of movement under the Freedom of Movement Act implies an unrestricted right to em- ployment.
Some problems, however, are likely to remain. The first problem con- cerns the still possible restrictions on the right of residence on grounds of public policy. In that respect, the Freedom of Movement Act brought about amendments that were meant to bring the contested German practice of expelling Union citizens in line with EU law re- quirements.27 Second, it remains to be seen how German authorities will apply § 5(4) Freedom of Movement Act, which, on a non-system- atic basis, allows for a review of whether a person still satisfies the con- ditions for freedom of movement. This could actually endanger the residence status of persons who rely on social assistance but have not yet passed the five years threshold. In this regard, the Directive pro- vides the Member State with a considerable degree of discretion in stat- ing that the person may not become “an unreasonable burden on the social assistance system” (Art. 14(1) Directive 2004/38).
Another crucial point is the legal position of family members who are not nationals of an EU Member State. EU law guarantees them a de- rived right of residence when accompanying or joining the Union citi- zen (Art. 6(2) Directive 2004/38/EC). This will at least require that the necessary condition of residing with the Union citizen, as yet foreseen in § 2(1) Freedom of Movement Act, be abolished.28 A third-country family member’s right of entry may be subjected to a visa requirement (Art. 5(2) Directive 2004/38/EC). The European Court of Justice, how- ever, made plain that a family member’s rights of entry and residence must not depend on the formalities of a visa procedure.29 One may thus question whether the visa requirement of § 2(4) Freedom of Movement Act and the limited exceptions to it under the Residence Act30 are in conformity with EU law. Finally, a loophole exists with respect to third-country nationals who are family members of a German. The
27 See below, section 6.2.
28 K. Hailbronner, Neue Richtlinie zur Freizügigkeit der Unionsbürger, ZAR 2004, 259, 263.
29 EJC, Case C-459/99, MRAX, [2003] ECR I-6591; Case C-157/03, Com- mission v. Spain, [2005] ECR I-2911.
30 For details, see O. Maor, Die Visabestimmungen der Aufenthaltsverord- nung, ZAR 2005, 185.
Freedom of Movement Act does not apply, since Germans are not Un- ion citizens in the sense of that act. Under the applicable Residence Act, however, the scope of the right to family reunion is framed more re- strictively. It excludes subsequent immigration of relatives in the as- cending line, except for extraordinary hardship cases (§§ 28 and 36 Residence Act). German law fails to acknowledge that in certain con- stellations a Union citizen is able to invoke an EU law-based right to family reunification against his/her own state, in particular when the Union citizen has exercised free movement rights and then returns to his/her country.31
3.3.2. Long-Term Residents and their Relatives
The majority of aliens in Germany are long-term residents. By the end of 2004, 61% of them have stayed in the country for at least ten years (75% of Turkish nationals, and 60% of the nationals of Serbia and Montenegro, just to mention the two largest non-EU nationalities32).
34% of all aliens have lived in Germany for at least twenty years, 20%
even for thirty years.33 These figures reflect the worker recruitment of the 1950s and 1960s, and the subsequent immigration of family mem- bers since the 1970s. To a certain extent, they also mirror the refugee in- flux of the 1980s and 1990s resulting, e.g., from civil wars in Tur- key/Kurdistan and Yugoslavia. The bulk of aliens in Germany, how- ever, are former migrant workers and their descendents who either do not qualify for naturalization to German nationality or, for various rea- sons, do not apply for it.
The legal status of long-term alien residents differs widely. By the end of 2003, 48% of all aliens held an unlimited residence permit.34 Pursuant
31 See ECJ, Case C-370/90, Singh, [1992] ECR I-4265, para. 19 et seq.; Case C-109/01, Akrich, [2003] ECR I-9607, para. 47 et seq.; for an analysis of the German law, see A. Fischer-Lescano, Nachzugsrechte von Drittstaatsangehửri- gen Familienmitgliedern deutscher Unionsbürger, ZAR 2005, 288.
32 The proportion is even higher among the Spanish, Greek, and Italian na- tionals (78–80%), who has meanwhile indiscriminately become Union citizens due to EU enlargement. All data taken from: Auslọnder- und Flỹchtlingszahlen (note 3), at 76.
33 Id.
34 An Aufenthaltsberechtigung (11%), an unbefristete Aufenthaltserlaubnis (28%), or an unbefristete Aufenthaltserlaubnis–EU (9%), according to the ty-
to § 101(1) Residence Act, these permits are classified as valid Estab- lishment Authorizations under the new law; the reinforced integration requirements do not apply retroactively. Union citizens, and EEA or Swiss nationals, are henceforth freed from the need for a permit. Yet, 22% of all aliens, i.e. close to 1.5 million people, were holding a limited residence permit under the former Aliens Act which ensured them a semi-secured residence status.35 Of them, 65% lived in Germany for at least five years, 38% for ten years or longer. Their permits are acknowl- edged as Residence Authorizations according to the new law. In order to receive an Establishment Authorization, only basic language skills and no pension scheme contributions are required (§ 104(2) Residence Act).36
Of particular concern is the situation of persons who have stayed in Germany on a long-term basis without qualifying for a residence per- mit. At the end of 2003, some 227,000 aliens were only tolerated in Germany, which means that their deportation was temporarily sus- pended. Of them, 62% had arrived at least five years ago.37 Among the Serb and Montenegrin population in Germany, which includes different ethnic groups from Kosovo, 11% of those who had lived in Germany for ten years or more still hold a short-term Certificate of Toleration.38 Reacting to this situation, the German legislature intended to overcome the long-standing practice of issuing ‘chains of tolerations’ (Kettendul- dungen). According to § 25(5) Residence Act, the Aliens Office can is- sue a Residence Authorization if, for the foreseeable future, an alien is unable to leave through no fault of his/her own. A Residence Authori- zation should (notably not: shall) be issued if the deportation is sus- pended for eighteen months. Much will depend on how this clause is
pology of the law as it stood before January 1, 2005. Source: Strukturdaten (note 25), at 25.
35 These figures neither include recognized refugees who did not qualify as persons entitled to asylum, nor persons with a subsidiary protection status. For both, the Aliens Act offered a limited residence permit called Aufenthaltsbe- fugnis. By the end of 2003, 4% of all aliens were holding that type of permit.
Source: Strukturdaten (note 25), at 25.
36 For a discussion of the transitional arrangements, see K. Dienelt, Die An- rechnung von Voraufenthaltszeiten zur Erlangung einer Niederlassungserlaub- nis, InfAuslR 2005, 247.
37 Strukturdaten (note 25), at 25.
38 Strukturdaten (note 25), at 24.
interpreted in practice. First reports indicate a rather restrictive ap- proach of the Lọnder administrations.39
For obvious reasons, the rules on family reunification are of great im- portance to aliens who reside on a long-term basis. Between 1999 and 2003, an average of 78,000 persons per year had been admitted to Ger- many to unite with their spouses or parents. Of the 76,000 visas issued for that purpose in 2003, 33% were granted to spouses of an alien, 44%
to spouses of a German, and the rest were newly arriving children.40 Aliens who hold an Establishment Authorization, or have held a Resi- dence Authorization for at least five years, are entitled to sponsor their spouse; the same holds true for recognized refugees (§ 30 Residence Act). After two years of cohabitation in Germany, alien spouses acquire an independent right of residence (§ 31). For the purposes of family re- unification, registered partnerships of same-sex couples are treated as equivalent to marriage (§ 27(2)). Unmarried minors are entitled to a Residence Authorization when accompanying their parents (§ 32(1)).
Subsequent immigration of minors is permitted if the persons having the care and custody themselves hold a residence permit. In cases of minors above the age of fifteen, however, it must be proven that the child meets certain integration requirements, e.g., by speaking German (§ 32(2)). When a child is born in Germany but nonetheless does not acquire the German nationality, a Residence Authorization is granted ex officio if the mother holds a Residence Authorization or an Estab- lishment Authorization (§ 33).41 Once a minor who is legally residing in Germany attains full age, he/she acquires an independent right of resi- dence (§ 34). Collateral relatives or family members in the ascending line do not have a right to family unity in Germany, except for particu- lar hardship cases (§ 36).
These regulations on family reunification reflect the legislature’s human rights obligations as stipulated in Art. 6(1) Basic Law and Art. 8 ECHR. Both provisions guarantee everyone a right to respect for his
39 R. Gửbel-Zimmermann, Die Erteilung eines Aufenthaltstitels aus huma- nitọren Grỹnden nach Đ 25 Abs. 4 und 5 AufenthG, ZAR 2005, 275; see also G. Benassi, Zur praktischen Bedeutung des § 25 Abs. 4 und 5 AufenthG, Inf- AuslR 2005, 357.
40 Migrationsgeschehen (note 1), at 31.
41 In a recent judgment, however, the Federal Constitutional Court held that this provision constitutes an unjustified discrimination on grounds of sex and thus violates Art. 3(3) Basic Law: Case 2 BvR 524/01 (Judgment of October 25, 2005, nyr).
family life. According to the German courts, however, the constitu- tional protection for marriage and family (Ehe und Familie) is limited to married couples and minor children, whereas the case-law of the Strasbourg Human Rights Court operates on the basis of a broader family concept.42 The Residence Act’s provisions are subject to reform in order to implement the Directive 2003/86/EC on the right to family reunification, which Germany failed to transpose in a timely manner by October 3, 2005. The aforementioned integration requirement of
§ 32(2) Residence Act is likely to persist, since it is covered by an ex- plicit derogation in Art. 4(1) of the Directive 2003/86/EC, which was incorporated into the text at the request of the German delegation.
3.3.3. Migrant Workers of Turkish Nationality and their Relatives The single largest alien nationality in Germany is Turkish: by December 2004, they formed 26% of the alien population, or a total of over 1.7 million people.43 Most of them have resided in Germany on a long-term basis or were actually born in Germany. The legal position of the Turk- ish population differs from that of other nationals because they poten- tially benefit from the Association Agreement of 1963, concluded be- tween Turkey on the one hand, and the EEC and its Member States on the other (‘Ankara Agreement’). Of particular significance is Decision No 1/80 of September 19, 1980. This decision was adopted by the As- sociation Council, a joint decision-making body of the contracting par- ties which is, inter alia, mandated to progressively implement the free movement of workers. Three clauses of Decision No 1/80 are notewor- thy here. Art. 6(1) states that a Turkish worker, duly registered as be- longing to the labor force of a Member State, shall enjoy free access to the labor market after four years of legal employment. Art. 7 provides that any family member who has been authorized to join the worker shall be entitled to take up an employment after he/she has been legally resident for at least three years; children who have completed a course of vocational training in the host country shall have immediate access to the labor market, provided one of their parents has been legally em- ployed for at least three years. Art. 14(1) authorizes national limitations on these rights for reasons of public policy, public security, or public health – the very same formula as applicable to Union citizens. In its
42 See, e.g., ECtHR, Marckx v. Belgium, [1979] Series A No 31, 21.
43 Auslọnder- und Flỹchtlingszahlen (note 3), at 76.
landmark Sevince judgment of 1990, the European Court of Justice held that the rights to employment granted in Decision No 1/80 imply a duty on the side of the Member State to recognize the persons con- cerned as legal residents; moreover, the provisions granting these EU law-based rights shall have direct effect.44 In a series of cases, the ECJ further clarified the content of Decision No 1/80. For instance, it held that the phrase “have been authorized to join” also covers persons that were born and have always resided in the host country.45 The ECJ also held that the concomitant right of residence implied in Art. 7 does not depend on the continuing existence of the conditions for access to this right. It persists unless the person concerned constitutes a genuine and serious threat to public interests mentioned in Art. 14, or has left the territory of the host State for a significant length of time without le- gitimate reason.46 Notably, under Art. 7 there is no requirement of be- ing registered as belonging to the labor force or of having worked for a certain period.47
This case-law has a huge impact on the legal position of the Turkish population in Germany. A large number of first- and second-generation migrants meets the requirements stipulated in Art. 6 or 7 of Decision No 1/80, and therefore has a right to reside that is independent of na- tional law. Exact figures are unknown because there is no legal proce- dure for certifying these rights. The question generally only arises when German authorities intend to expel a Turkish national for public policy reasons.48 The Residence Act, in its § 4(1) and § 50(1), for the first time acknowledged that a right to reside in Germany can either follow from holding a residence permit or from the Ankara Agreement. One has to admit, however, that this agreement and the Association Council deci- sions only fragmentarily regulate the legal status of the Turkish nation- als. These nationals do not enjoy a right to enter and move freely within the Union territory. The decision on the first admission of a Turkish migrant worker and on the conditions for reuniting with family mem- bers is still up to the Member States. In that respect, Directive 2003/86/EC on the right to family reunification, Directive
44 ECJ, Case C-192/89, Sevince, [1990] ECR I-3461, para. 15.
45 ECJ, Case C-467/02, Cetinkaya, [2004] ECR I-10895, para. 34.
46 ECJ, Case C-329/97, Ergat, [2000] I-1487, paras. 40 and 48.
47 ECJ, Case C-373/03, Aydinli, [2005] ECR I-0000, para. 29 (Judgment of July 7, 2005, nyr).
48 See below, section 6.2.
2003/109/EC concerning the status of third-country nationals who are long-term residents (to be transposed by January 23, 2006 at the latest), and Association Council Decision No 1/80 will henceforth mutually complement each other.
3.3.4. Admission for Purposes of Employment
The provisions on issuing a residence permit for employment purposes distinguish between unskilled, skilled, and high-skilled employees (§ 18(3), § 18(4), and § 19 respectively), and self-employed persons (§ 21 Residence Act). Admission of unskilled laborers is strict as to requiring an executive rule or an inter-state agreement regulating access to em- ployment. On the basis of the equivalent provisions of the former Aliens Act, German authorities granted in 2003 close to 320,000 short- term residence permits to seasonal or carnival laborers, mainly from Eastern and Southeastern Europe. 90% of the seasonal laborers were employed in agriculture and forestry, 7% worked in the hotel and ca- tering industry.49 Moreover, some 44,000 contract laborers of foreign companies have been admitted on the basis of bilateral agreements with Central and Eastern European countries and Turkey.50
Admission of skilled workers for employment purposes is typically only available through executive rule which defines the occupational groups for which the general ban on labor recruitment is lifted. The relevant Employment Regulation identifies a limited number of such occupations, including language teachers, specialty cooks, social work- ers, and nursing staff (§§ 25 et seq. Employment Regulation).
Special rules apply to highly qualified employees. According to § 19(1) Residence Act, an Establishment Authorizations may be granted if the person concerned has sufficient resources and will probably integrate into German society. § 19(2) Residence Act enumerates a non-exhaus- tive list of professions to which this privilege applies, namely scientists with special expertise (No 1), teachers or academic assistants with spe- cially recognized functions (No 2), and specialists or executives with high professional experience and a yearly income over 84,600 Euro (No 3).
Admission of a self-employed person is based on an evaluation of whether a positive impact on the economy is expected and adequate fi-
49 Migrationsgeschehen (note 1), at 20.
50 Migrationsgeschehen (note 1), at 19.
nancing of the enterprise is ensured. The required economic demand is proven under the cumulative conditions of investing one million Euro and creating ten jobs (§ 21(1) Residence Act). A Residence Authoriza- tion for self-employed activity may also be granted if preferential treatment is foreseen in international agreements (§ 21(2) Residence Act). This is currently the case for nationals of Bulgaria, the Dominican Republic, Indonesia, Iran, Japan, the Philippines, Romania, Sri Lanka, Switzerland, the U.S.A., and Turkey.51
3.3.5. Persons with Refugees Status or Other Forms of International Protection
Over the last fifteen years, the issue of asylum and refugee protection was subject to intense political debate, and German law has witnessed major changes. In the beginning of the 1990s, the numbers of asylum applications increased to a climax of almost 440,000 in 1992. German policymakers felt pressure to adopt a more restrictive approach. In 1993, the legislature amended the German Constitution in order to limit the access to asylum, which was – and still is – guaranteed as a fundamental constitutional right. The new Art. 16a Basic Law allows for the incorporation of the concepts of ‘safe third country’ and ‘safe country of origin’, for limiting access to the courts, and for mutual rec- ognition of asylum decisions as foreseen in the Dublin Convention of 1990. All these concepts were implemented in the Act on Asylum Pro- cedures (Asylverfahrensgesetz).52 Asylum applications dropped to 130,000 in 1993 and in the meantime have reached the lowest level since 1984 (less than 36,000 in 2004).53 Recognition rates as to refugee status were and are low. Of the 200,000 applications decided by the Federal Office in 1995, 9% of asylum seekers were recognized as asylee pursu- ant to Art. 16a Basic Law, another 2.5% of applicants were recognized as Geneva Convention refugees, and 1.8% were granted subsidiary pro-
51 See No 21.2. of the Provisional Guidelines for the Application of the Residence Act, issued by the Federal Ministry of the Interior, 22. December 2004.
52 Moreover, the Act on Benefits for Asylum Seekers was introduced, see below, section 4.2.3.
53 Bundesamt für Migration und Flüchtlinge, Migration und Asyl (August 19, 2005), at 19; available at <http://www.bamf.de/cln_043/nn_564242/
SharedDocs/Anlagen/DE/DasBAMF/Downloads/statistik-migration-asyl,tem plateId=raw,property=publicationFile.pdf/statistik-migration-asyl.pdf>.