1.1. Current Dynamics
German migration law is in a state of transition. On January 1, 2005, af- ter years of intense political struggle,7 Germany witnessed the entry into force of a package of new immigration laws called Zuwanderungs- gesetz(the term Zuwanderung is a neologism chosen in order to avoid the contested term Einwanderung, meaning ‘immigration’). As its cen- terpiece, the package comprises the Residence Act (Aufenthaltsgesetz)8 which replaces the Aliens Act (Auslọndergesetz) in force since 1990, and the Freedom of Movement Act (Freizügigkeitsgesetz/EU) which substi- tutes the former act dealing with the legal position of Union citizens.9 However, experts are of the opinion that the Zuwanderungsgesetz represents only a provisional solution.10 Next to economic needs, which
6 See G. Sasse/E.R. Thielemann, A Research Agenda for the Study of Mi- grants and Minorities in Europe, Journal of Common Market Studies 43 (2005), 655.
7 See St. Angenendt/I. Kruse, Migrations- und Integrationspolitik in Deutschland 2002–2003, in: Bade et al. (ed.), Migrationsreport 2004, 2004, 175.
8 All acts and executive rules referred to in this report are available at the web-site of the Federal Ministry of Justice: <http://www.gesetze-im-internet.
de/bundesrecht/GESAMT_index.html>. Official translations are not available to my knowledge.
9 For a comprehensive overview, see B. Huber, Das Zuwanderungsgesetz, Neue Zeitschrift für Verwaltungsrecht 2005, 1; as to the previous legal situation, seeTh. Groò, Germany, in: Higgins (ed.), Migration and Asylum Law and Pol- icy in the European Union: FIDE 2004 National Reports, 2004, 111.
10 See G. Renner, Vom Auslọnderrecht zum Zuwanderungsrecht, Zeitschrift fỹr Auslọnderrecht und Auslọnderpolitik (ZAR) 2004, 266.
are likely to call for a more open approach to labor migration in the fu- ture, the main cause of reform is the Europeanization of migration law.
With the amendments of the Treaty of Amsterdam, the European Un- ion acquired the powers to legislate on most aspects of migration law, and has in fact started to do so.11 At the time of this writing, most EU Council directives enacted in the initial five years period are yet to be transposed into German law; further steps towards a common Euro- pean asylum and migration policy are envisioned.12 This development is also transforming the relationship of national and international law.
Not only is the EU itself increasingly active in concluding international agreements relating to migration, such as readmission or association agreements. EU law also determines how its Member States have to comply with their international obligations in the field of migration law, in particular with human rights aspects such as non-refoulement of persons in need for protection, family unity, and the rights of long-term residents.13 Germany will become more and more integrated in a multi- level system of migration law governing a common European migration space. Within this framework, one State’s discretion to decide on the admission of migrants, as generally recognized under international law, is curtailed by decisions adopted at other levels with the participation of this State.
1.2. German Migration Laws, according to their Rank within the Legal Order
1.2.1. Constitutional Law
The German constitutional document of 1949 (the Basic Law) contains some provisions of direct relevance to migrants. Against the back-
11 The new developments are covered by the European Journal of Migration and Law (EJML), see recently St. Peers, Key Legislative Developments on Mi- gration in the European Union, EJML 7 (2005), 87; for a comparative impact assessment, see K. Hailbronner, European Immigration and Asylum Law, Irish Journal of European Law 11 (2004), 281.
12 See European Council, ‘The Hague Programme: strengthening freedom, security and justice in the European Union’, [2005] OJ C 53, 1.
13 See J. Fitzpatrick, The Human Rights of Migrants, in: Aleinikoff/Chetail (eds.), Migration and International Legal Norms, 2003, 169; K. Jastram, Family Unity, ibid., 185.
ground of Germany’s history of dictatorship, the Basic Law guarantees an individual right to political asylum. After amendments made in 1993, the new Art. 16a Basic Law, however, authorizes several restrictions as to access to that right.14 Other fundamental rights, in particular the rights to life and the integrity of the person (Art. 2(2) Basic Law) and to protection of marriage and family (Art. 6(1) Basic Law), come into play when legal barriers to deportations are concerned. To a certain extent, Art. 6(1) Basic Law guarantees a right to family reunion in Germany.15
1.2.2. Parliamentary Legislation
There are various pieces of federal parliamentary legislation that are relevant to German migration law. The main acts are: the Residence Act (Aufenthaltsgesetz) which contains the general rules for the admission of alien migrants; the Freedom of Movement Act (Freizügigkeitsgesetz) which defines a separate legal regime for Union citizens and their rela- tives; the Act on Asylum Procedures (Asylverfahrensgesetz) which de- termines the processing of applications for asylum or other forms of in- ternational protection; the Act on Benefits for Asylum Seekers (Asyl- bewerberleistungsgesetz) providing for a separate regime of social assis- tance for persons admitted on a temporary basis; the Federal Act on Displaced Persons (Bundesvertriebenengesetz) governing the situation of ethnic Germans living abroad; and, the Nationality Act (Staatsange- hửrigkeitsgesetz) which defines the conditions for acquiring German nationality via naturalization or birth. All of these acts were either in- troduced or substantially amended by the Zuwanderungsgesetz of 2004.
1.2.3. Rule-Making by the Federal Government
To a greater extent than is common in German public law, the said acts authorize the federal government to enact executive rules (so-called Rechtsverordnungen, ‘regulations of law’), which are strictly binding rules for the implementation of, and partly also for the derogation from, a parliamentary act. The consent of the Bundesrat, the second chamber of the federal Parliament which is composed of the regional states’ governments, is regularly needed. The three main examples of Rechtsverordnungen are the Residence Regulation (Aufenthaltsverord-
14 See below, section 3.3.5.
15 See below, section 3.3.2.
nung) implementing the Residence Act, the Employment Regulation (Beschọftigungsverordnung) concerning access of migrants from abroad to the German labor market, and the Employment Procedure Regula- tion (Beschọftigungsverfahrensverordnung) providing the rules for la- bor market access of resident migrants (Bundesrat consent is not needed here).
A second type of federal executive orders, ranking below those men- tioned previously, are general administrative rules (Allgemeine Verwal- tungsvorschriften). These guidelines for the application of the law are binding on the administration but cannot create new rights or duties, or bind the courts. Again, the assent of the Bundesrat is required. As of now, there are no general administrative rules with respect to the new law. There are only the Provisional Guidelines for the Application of the Residence Act and the Freedom of Movement Act, issued by the Federal Ministry of the Interior on December 22, 2004. Although these Provisional Guidelines are non-binding, they may nevertheless have a major impact on the practice of the local Aliens Offices in dealing with the new law.
1.2.4. Rule-Making by the Lọnder Governments
Taking into account that German migration policies are almost exhaus- tively regulated by federal laws and regulations, there is little room for legislation by the regional states, the Lọnder. The main role of the Lọnder in migration law is thus application and enforcement of the law.16 There is, however, some room for the Lọnder governments to adopt a particular policy within the framework laid down in federal law and to this end, issue the respective circulars to the local Aliens Offices.
Yet another form of executive rule-making should be cited here. The Residence Act provides some legal bases for general decisions to be adopted by the Minister of the Interior of the respective Land. These ministerial orders, e.g., define the conditions for issuing residence per- mits on humanitarian grounds, or declare a temporary deportation stop for certain migrant groups.17 In practice, these types of decisions are adopted unanimously at the meetings of the 17-headed ‘Conference of the Ministers and Senators of the Interior’. It is thus one of the power
16 See below, section 3.2.
17 See below, sections 3.3.6. and 3.3.7.
centers of German migration law although it is not a constitutional body in the strict sense.