Annette Sinn, Axel Kreienbrink, Hans Dietrich von Loeffelholz
with the contribution of Michael Wolf
Illegally resident third-country nationals
in Germany
Policy approaches, profile and social situation
Research Study 2005 within the framework of the European Migration Network
German National Contact Point
Publisher:
Federal Office for Migration and Refugees
Migration and Integration Research Department
90343 Nürnberg
Germany
Date: September 2005
2
Table of contents
Executive Summary............................................................................................................... 6
Preface
............................................................................................................................. 11
1
Legal framework and recent political developments...................................... 14
1.1
Definitions of illegality........................................................................................... 14
1.2
Basic and minority rights of illegally resident third-country nationals ................... 16
1.3
Political and legal developments concerning illegally resident third-country
nationals ............................................................................................................... 17
1.3.1
Political developments.......................................................................................... 17
1.3.2
Legal developments ............................................................................................. 19
1.4
Possibilities of obtaining residence titles outside of legalisation campaigns ........ 21
1.4.1
Asylum petition ..................................................................................................... 21
1.4.2
Marriage ............................................................................................................... 21
1.4.3
Parenthood........................................................................................................... 23
1.4.4
Granting residency rights for humanitarian reasons or in cases of hardship ....... 24
1.4.5
Suspension of deportation.................................................................................... 25
2
Size and composition of the illegally resident population ............................. 26
2.1
Data sources ........................................................................................................ 26
2.1.1
Data of the Federal Border Police ........................................................................ 26
2.1.2
Asylum statistics of the Federal Office for Migration and Refugees ..................... 29
2.1.3
Police Crime Statistics of the Federal Office of Criminal Investigation................. 30
2.1.4
Statistics by the Federal Labour Agency on illegal employment of non-German
labour ................................................................................................................... 30
2.1.5
Surveys by charitable organisations..................................................................... 31
2.1.6
Further data sources ............................................................................................ 32
2.2
Estimations of the size of the illegally resident population ................................... 33
2.3
Composition of illegally resident population ......................................................... 34
2.3.1
National composition ............................................................................................ 34
2.3.2
Age and sex structure .......................................................................................... 36
2.3.3
Geographical distribution...................................................................................... 36
3
Policy approaches in dealing with illegality .................................................... 38
3.1
Measures to prevent illegal migration................................................................... 38
3.1.1
Consequences of the geographical location ........................................................ 38
3.1.2
Control via visa policy........................................................................................... 39
3.1.3
Passport controls at the borders and inland......................................................... 40
3.1.4
Coordination of administration and information systems...................................... 42
3
3.1.5
Bi- or multilateral agreements and cooperation with countries of origin and
transit.................................................................................................................... 44
3.2
Measures of control inland ................................................................................... 45
3.2.1
Controls on the labour market .............................................................................. 46
3.2.1.1
Definition of illegal employment of foreigners....................................................... 46
3.2.1.2
Primary control mechanisms ................................................................................ 46
3.2.1.3
Measures to reduce the demand for illegal employment...................................... 48
3.2.2
Internal controls by the obligation to forward information..................................... 50
3.2.2.1
Controls regarding the access to social services ................................................. 51
3.2.2.2
Controls regarding the access to education ......................................................... 51
3.2.2.3
Controls regarding the access to housing ............................................................ 52
3.3
Measures in the field of voluntary and forced return ............................................ 52
3.3.1
Voluntary return.................................................................................................... 53
3.3.2
Forced return........................................................................................................ 54
3.4
Measures to improve the social situation of illegally resident migrants and
approaches for solutions ...................................................................................... 55
3.4.1
Legalisation campaigns........................................................................................ 55
3.4.2
Potential access to social benefits for illegally resident migrants......................... 56
3.4.2.1
Access to social services and health care............................................................ 56
3.4.2.2
Access to institutions of education ....................................................................... 57
3.4.2.3
Strategies on the local level ................................................................................. 59
3.4.3
Access to the labour market................................................................................. 60
4
Living situation and employment of illegally resident migrants ................... 62
4.1
Living situation of illegally resident migrants ........................................................ 62
4.1.1
Impacts of controls ............................................................................................... 62
4.1.2
Family-related situations ...................................................................................... 63
4.1.3
School attendance................................................................................................ 64
4.1.4
The health situation .............................................................................................. 64
4.1.5
Housing conditions ............................................................................................... 66
4.1.6
Political participation............................................................................................. 67
4.1.7
Criminality and illegal residency ........................................................................... 67
4.2
Employment of illegally resident migrants ............................................................ 68
4.2.1
Scope and composition of illegal employment ..................................................... 69
4.2.2
Employment and vocational qualifications required ............................................. 69
5
Consequences of illegal residency on the national economy ....................... 71
5.1
Figures, facts, background ................................................................................... 72
5.2
Impact and implications........................................................................................ 74
4
Conclusions ......................................................................................................................... 77
List of abbreviations............................................................................................................ 79
Bibliography ......................................................................................................................... 81
Annex
............................................................................................................................. 92
Annex I
Ministries and authorities...................................................................................... 92
Annex II
Institutions, associations, non-governmental organisations and networks (also)
dealing in their work with persons without residence status................................. 94
5
Executive Summary
Legal framework and political developments
German law does not provide a legal definition of illegal residence, it only regulates entry and
residence procedures. Different matters of fact of illegal residence can be differentiated. As
the complex issue of “illegality” comprises several, partly overlapping phenomena (illegal
entry, illegal residence, illegal employment), and as various entry points into illegal residency
exist, discussions about the issue encounter a variety of delineation problems. In the
following study, the group of illegally resident third-country nationals will be defined as
foreign nationals who have neither been granted a residence title nor a toleration certificate
and who have neither been registered by the authorities nor in the Central Register of
Foreign Nationals (AZR).
In Germany, awareness of the issue of illegal migration did only commence in the 1990s.
Within the public debate in Germany, one can distinguish between several key positions: on
the one hand, a “state-control” approach, which regards illegal immigration first and foremost
as a violation of applicable law; on the other hand, a “human rights” approach, which
emphasises the rights of illegally resident migrants and demands that minimum standards of
social protection be established. Whereas the state-control approach has been adopted by
the Federal Ministry of the Interior and the state interior ministries, the human-rights
approach is supported by many civil-society actors (churches, charitable organisations,
refugee support groups). An intermediary position has been represented by the so-called
“dual perspective”, which calls for complementing state-control policies by approaches that
take the rights of illegally resident migrants, their voluntary return and regularisation
programmes into consideration. This position has also been adopted by several charitable
organisations, churches and trade unions.
An analysis of legal developments shows that Germany has consistently tightened the rules
in foreign-resident and criminal law in order to tackle illegal immigration and human
smuggling or trafficking in human beings, and, if required by EU legislation, brought German
law in line with EU directives. In some cases, German criminal law does even exceed
European demands.
Apart from legalisation campaigns there are some alternative ways of obtaining a legal
residence title (asylum petitions, marriage, parenthood). The legal regulations try to ensure
that no incentives for illegal migration flows to Germany are created, as would be the case if
simple legalisation possibilities were offered. Appeals to hardship commissions or petitions
for subsidiary protection do not constitute legalisation options.
Size and composition of the illegally resident population
Even a thorough analysis of available data sources (statistics of the Federal Border Police,
Police Crime Statistics, Statistics of the Federal Labour Agency) cannot provide reliable data
on the size and composition of the illegally resident population in Germany. The so-called
principle of multiplication cannot be used for projections of the total number of illegally
resident migrants as it is based on estimates. It can be assumed, as a minimum level, that
the number amounts to 100,000 people. As for the upper limit, some authors estimate as
much as 1 million illegally resident migrants. After the number of illegally resident migrants
had continuously increased in the 1990s, the tendency is now that numbers remain stable or
even decrease. This is, among other reasons, due to the fact that since the EU enlargement
on May 1, 2004, citizens of the new Member States can no longer be counted as illegally
resident migrants.
6
As for the national origin of illegally resident third-country nationals, the quantitatively largest
groups were as follows: a) Eastern Europeans, with declining significance since May 1, 2004
though; b) nationals of countries with a history of or ongoing migration flows to the Federal
Republic of Germany (e.g. Turkey, former Yugoslavia, Russian Federation, Ukraine,
Vietnam); c) nationals of distant countries that are marked by a lack of political and / or
economic security (China, Iraq, Afghanistan, some countries in Africa and Latin America).
The age structure of the illegally resident population shows a majority of people between the
ages of 20 and 40 years. However, there are also some older migrants joining their families
who already live in the country, and a significant number of children who live in illegality. The
majority of illegally resident migrants are unmarried. The sex structure of the illegally resident
population strongly correlates with respective employment opportunities, with illegally
resident women often employed as domestic helpers in West German cities due to the large
demand there. It can also be assumed that the number of illegally resident men is still slightly
higher than that of illegally resident women. Concerning the most frequent places of
residence of illegally resident migrants, the great majority of them live in large cities, which
are most likely to offer contact points to national networks.
Policy approaches in dealing with illegality
The German system of migration control includes external controls (e.g. via the visa system
and external border controls) as well as a system of internal controls by means of residence
and work permits. This is complemented by control mechanisms that work via data
exchange, checks at the workplace, close cooperation between authorities and their
obligation to forward information. Due to Germany’s central location in Europe, all borders
are affected by illegal entry and smuggling operations. During the last years the focal points
of apprehensions were the borders to Poland, the Czech Republic and Austria.
Concerning border controls and checks inland, the control technology has been gradually
improved and more personnel have been assigned. Controls that include identity checks and
also the control of the residence status are carried out by the Federal Border Police (since
July 2005 Federal Police) and the police of the federal states. An evaluation as to whether
the checks are effective as measured by their objectives is not easy. As a consequence of
the stepped up controls, the number of apprehensions dropped. However, the increased
intensity of checks might also result in an expansion of the smuggling business and
increased propensity to violence by the smugglers.
Networking the authorities concerned with illegal migration (Federal Police, Federal Office of
Criminal Investigation, Federal Office for Migration and Refugees, Federal Intelligence
Service, Department for Financial Control of Illegal Employment at the Federal Customs
Administration, police of the federal states etc.) has been extended. In various fora (e.g. Joint
Analysis and Strategy Centre Smuggling Criminality; Working Group Illegal
Migration/Smuggling Criminality) the information collected by the authorities are pooled and,
based on this general overview on the facts, the specific need for action is derived. Various
authorities also cooperate in their operations. The pooling of information is complemented by
national and European information systems. Furthermore, bi- and multilateral agreements on
the cooperation of police and border control authorities have been closed with the
neighbouring countries. As part of the strategy to displace border controls into the countries
of origin or transit, liaison officers of various authorities and document counsellors are
dispatched to countries of origin or transit.
7
As part of controls inland the police carry out identity checks without concrete cause or
grounds for suspicion which, in parts, are controversially discussed in the discourse on
migration, criminality and national security as there is a danger that they might be perceived
as discriminating treatment. More than these police checks, other internal controls are a
typical feature for Germany which target the labour market and social benefits. Virtually every
time a migrant gets in touch with the authorities, his or her residence status is checked.
Regarding internal controls, direct and target-oriented checks, such as checks at the
workplace, and indirect checks can be differentiated; the latter “coincidentally” occur as a
result of the obligation to forward information and the process of data verification. Controls on
the labour market comprise a combination of both types, whereas other areas (welfare
benefits, education and the obligation to register) are primarily screened via indirect controls.
With regard to labour market controls, data exchange with the social insurance agencies and
the AZR as well as the external controls at the workplaces in cooperation with the authorities
play a central role. As a consequence of plausibility checks as part of data exchange, a
registered employment with fraud social security card or counterfeited income tax card is not
possible. Since 2004/2005 the efficiency of checks at the workplaces (external controls) has
been increased as a result of the pooling of competences at the Federal Customs
Administration (Department for Financial Control of Illegal Employment). A certain
organisational fragmentation has ceased to exist as a consequence of the new Residence
Act which became effective on January 1, 2005 and which introduced the system of “onestop-government“ at the foreign-resident authorities. Apart from issuing residence titles, the
foreign-resident authorities are now also in charge of issuing the work permits. As a
consequence of the relatively large number of checks as well as the intensive cooperation
and data-technological links, the intensity of checks on the German labour market is high,
compared to other industrial states. Regarding different sectors, the intensity of controls
varies though.
Measures to reduce the demand for illegal employment primarily tackle the problem by
tightening controls and increasing the degree of penalty for the respective offences. In
addition, the requirements for accessing the labour market have changed which opened up
opportunities for temporary legal employment and caused a decline of illegal employment.
The internal controls based on the direction to forward information (§ 87 AufenthG) are
primarily effective if social services are claimed (e.g. in health care and education). The
authorities have to report to the foreign-resident authorities if they come to know about a
lacking status or if the foreign-resident authorities requests a report. In the public discourse,
these obligations to forward information are criticised by churches, charitable organisations
and aid organisations. Regarding certain social services, a right to claim exists which can
also be utilised by illegally resident third-country nationals; however, this involves the
disclosure of the residence status.
As part of the repatriation support programme REAG (Reintegration and Emigration
Programme for Asylum-Seekers in Germany), which was commissioned by the Federal
Ministry of the Interior and the respective state ministries and which is carried out by IOM,
illegally resident persons and victims of human smuggling have the possibility to claim funds.
At the same time the Federal Government ensures that the federal states comply with their
obligation to enforce the duty to leave the country. In order to facilitate the implementation of
deportations, the Federal Government coordinates its repatriation policy with the countries of
origin and closes respective agreements. In addition, various measures are carried out to
counteract problems with the repatriation procedures.
8
As opposed to southern European countries, no legalisation campaigns are carried out in
Germany. The Regulations for Old Cases and Permission to Stay (Altfall- und
Bleiberechtsregelungen) that were carried out in the past differ from those campaigns as
they were restricted to certain nationalities and the applicants had to have a toleration status
– and were therefore known to the authorities.
Regarding the access to social services and health care, risks for the providers of such
services are involved which result from the complicated interrelation of the sovereignty right
by the state, the human right to health, to life and physical integrity and the question of how
to distribute the costs for the administered treatment. Here, the impact of the authorities’
obligation to forward information and the potential punishability of assistance can be seen.
The obligation to forward information is particularly relevant in cases the social welfare office
covers the costs as this has to be reported without exception of any kind. Pursuant to the
Residence Act (§ 96 AufenthG), rendering assistance can in some cases be considered as
an element of an offence as it supports illegal stay. Regarding the access to the education
system, the same problems apply, whereas it is controversially discussed as to whether
public schools are subject to the obligation to forward information.
In some towns and districts there are indications that the authorities have been sensitized for
the social problems in the context of illegality and that they now try to exhaust the scope of
possible options, especially regarding health care. The authorities’ willingness to contribute
constitutes a qualitatively new step.
Living situation and employment of illegally resident migrants
The impacts of controls on the social situation of illegally resident migrants become apparent
on two levels. On the one hand, as they fear disclosure of their status and the resulting
consequences pursuant to the foreign-resident law as part of police checks or contacts with
the authorities, illegally resident migrants usually try not to attract attention. To what extent
the fear of disclosure influences the life of illegally resident migrants can depend on the
background of the migrants, the situation in the country of origin and its geographical
distance to Germany. On a second level, there is an impact of the controls on the potential
access to social resources, which, as a consequence of the internal controls, is factually very
restricted, despite partially existing legitimate claims. For that reason, illegally resident
migrants bear a greater risk to find themselves in an emergency situation. Consequently,
supporting social networks play an important role; however, they can only compensate the
lacking access to education, housing and social services to a limited extent.
Networks of family relations contribute to the emergence and perseverance of illegal stay,
e.g. as part of illegal family reunions. The situation is particularly difficult in cases of illegal
stay with children. Irrespective of the legal situation concerning the compulsory school
attendance of illegally resident children, which differs from federal state to federal state, there
are indicators that the problem of schooling and education for illegally resident children gets
worse when those children get older. Even if the attendance of a primary school is possible,
the transition to secondary schools is fairly impossible as the registration requires the
disclosure of the residence status.
Connected to their working and living conditions and their insecure perspective of residence,
illegally resident migrants might be faced with health risks. As a consequence of the lacking
health insurance, many illegally resident migrants do not undergo preventative medical
examinations. For fear of disclosure, illegally resident migrants hardly utilise public health
care. In the long run, alternative options (e.g. self-treatment, commuting to the country of
9
origin and approaching the bureaus of medical refugee aid or other civil-society networks)
cannot compensate for this. As a consequence, there is a danger that diseases and injuries
are neglected and get worse or are treated too late which can constitute a risk for the
persons in question, but also for the general public.
As illegally resident migrants usually cannot appear as the main tenant, they have to rely on
niches in the housing market. In doing so, they are very much exposed to landlords that act
arbitrarily, as they have no possibility to take legal action in cases of disputes of tenancy law
without disclosing their legal status. There are virtually no opportunities for illegally resident
migrants for political participation in Germany as this involves the risk that their status will be
disclosed. No protest movement, such as the “sans papiers” in France, has developed.
Some exceptions are migrant organisations that act as a lobby for the rights of illegally
resident migrants on the local level. Churches and non-governmental organisations point at
the various problematic issues that are connected with illegal stay in Germany and calls for
improving the living situation of illegally resident migrants and avoiding humanitarian
hardship are directed to policy-makers. Although the topics criminality and illegal stay are
closely connected in the public discourse, indicators that are based on the investigated
suspects registered in the Police Crime Statistics show that illegally resident migrants have
lower crime rates than Germans. On the actual criminality there are no reliable figures
available though (e.g. convictions).
As illegally resident migrants have no possibility to take up legal employment in Germany,
they often earn their living by working in the shadow economy. On the scope of illegal
employment, on the affected branches of economy, the spatial distribution and the size of the
companies that employ illegally resident migrants no precise information is available.
Findings from qualitative-empirical studies show that access to the labour market in the
commercial as well as in the private sector (e.g. in domestic service or in domestic nursing)
exists. Thus, typical features of these jobs are precarious employment conditions, including a
low level of qualification, physical work combined with little significance of knowledge of the
German language, temporal limitation or seasonal employment as well as a high fluctuation
of employees. There is a wide range of types of employment conditions, including relatively
stable working relationships with satisfied employers and employees and mutually benefiting
working conditions, but also forms of coercion and forced labour.
The impact of illegal migration on the receiving society
Illegal employment of foreigners causes losses of tax and social security revenues and
harms the community as the “price” for the utilisation of social services and benefits, e.g.
welfare benefits, for the public infrastructure, particularly in education, health care, housing
and traffic, as well as for the utilisation of public goods (e.g. security and public order, legal
system) is not paid. Illegal employment does neither generate direct taxes nor social security
contributions for social pension funds, health insurance, nursing care insurance and
unemployment insurance. It is controversially discussed as to whether the costs for checks
and controls by the authorities should also be included in the calculation of the fiscal impacts
of illegal migration. On the other hand, illegally resident migrants pay indirect taxes, such as
general excise taxes, VAT and specific excise taxes (e.g. eco-, petroleum, tobacco and
alcohol tax) by consuming goods and services. This contributes to a reduction of fiscal losses
for the public budget. Beyond estimations, the exact amount cannot be ascertained though.
There is hardly any empirical evidence in Germany on the more far-reaching impacts of
illegal employment of foreigners, especially on jobs, working conditions and wages of the
non-migrant labour force, as well as on the sectoral structural change and economic growth.
10
Preface
Illegal migration – as part of word-wide migration flows – is a complex and multi-faceted
phenomenon that defies simple explanations. Parallel to increasing migration opportunities
and motives, countries that have become the target destinations of migration flows are
showing a growing interest in controlling them. Illegal migration has long become part of
social reality and is even increasingly being accepted at the private level (Bade/Bommes
2004: 34). The tendency that the issue has been attracting more and more public attention is
exemplified by the fact that it has been recently included in the 2004 annual report of the
Expert Panel on Migration (Sachverständigenrat 2004), a substantial research survey
(Schönwälder et al. 2004) and the publication of a manifesto entitled “Illegal migration” by the
Catholic Forum “Living in Illegality”. This development inevitably raises the question of how
the government and society should address this situation. In the view of the state, illegal
immigration is regarded as a threat not only to national security but also – at least partly – to
social security. Consequently, the focus of the state’s perspective is on maintaining its
governmental capability or, for example, the question of avoiding further strains for its
residents that contribute to the country’s social security system. Civil-society actors, on the
other hand, criticise that they have been – more or less – left alone in their efforts to deal with
the social consequences of illegal residency and to develop possible solutions.
The European Commission has – through the European Migration Network (EMN) commissioned EU Member States to compile the following study. The aim of the study is to
contribute an “objective research perspective” to the European debate. In order to achieve
this aim, the following study is to focus not only on “how” the issue is dealt with, but also on
the “why”. The goal has been defined as a comparative European study pointing out
similarities and differences between Member States and contributing to an intensified
exchange of information that can form an improved basis for policy- and decision-making
processes. In accordance with these guidelines, the following study will focus on the legal
framework and state approaches towards illegally resident third-country nationals (chapter 1
and 3). In addition, the study will shed some light on the available data (chapter 2), the social
and economic situation of illegally resident migrants (chapter 4) and on the economic
consequences of illegal migration (chapter 5). In accordance with the definition employed by
the European Commission, illegally resident third-country nationals will be defined as people
who do not or no longer fulfil the legal requirements for entering, staying or taking residence
within the territory of EU Member States (Europäische Kommission 2002: 7).
Research in Germany did only begin to address the issue of “illegal residency” with a greater
intensity about ten years ago. Nevertheless, research has meanwhile produced a relatively
comprehensive body of literature. An overall survey, however, is still missing. The existing
studies differ widely in their focus, their emphasis being influenced not only by their problem
formulation and research hypotheses, but also by political implications, personal views and
the organisational context of the authors (Cyrus 2004: 13; Schönwälder et al. 2004: 17). As
Schönwälder et al. (2004: 11f.) have pointed out in their survey of existing research into
illegal residency in Germany, which was published at the end of the year 2004, a
considerable part of the available data and information has to be obtained from nonacademic experts or from publications by governmental or civil-society actors. Within
academic research, most publications have been produced by sociologists, with a smaller
number of studies published by legal experts, economists, ethnologists and, in some cases,
political scientists, geographers or demographers. The remaining publications are made up
by academic or political position papers.
11
The research survey compiled by Schönwälder et al., which was mentioned above, does also
point out areas that are still marked by a lack of research. On the whole, it has to be
concluded that there is still a lack of research concerning all major aspects of illegality and
social and political responses to it. Among other aspects, there is still a lack of valid statistical
data and systematic research into the origin, motives, background and living conditions of
illegally resident migrants in Germany. A similar lack exists concerning systematic studies
about the political and social responses to illegal migration. “Generally, it would be necessary
to investigate more thoroughly into how certain intervention strategies are determined, what
the underlying goals are (e.g. reducing the scope of illegal migration / appeasing the public),
how these measures are implemented (comparing e.g. different approaches of federal states
or towns / cities), and what the intended and unintended infects of certain measures are”
(own translation) (Schönwälder et al. 2004: 71). The same is true for measures taken by
state actors (e.g. government ministries, local resident authorities) and civil-society actors
(e.g. churches, trade unions, support networks), as well as the impact of the accompanying
public discussion and media coverage. Furthermore, there is also a shortage of consolidated
findings concerning citizens’ attitudes toward the phenomenon of illegal migration. As for
some additional aspects that will be highlighted in the following study, there is also a lack of
systematic analyses concerning the implementation of systematic analyses (identity and
workplace checks), about the consequences of legalisation options (granting asylum status
or subsidiary protection, applying additional regulations for unresolved cases), and about
return migration (motivation, implementation, prospects) (Schönwälder et al. 2004: 11, 17,
21, 38f., 48; Cyrus 2004: 73).
As for the currently available data and the conclusions that can be drawn on this data basis,
the general situation is that sufficient data is only available for some of the phenomena
connected to illegality. Official statistics resulting from administrative checks can only indicate
some general developments and tendencies in the field of illegal residency. Such “controlbased” data does only contain information about registered or detected cases; it does not
allow us to make inferences about the “dark figure” of illegal migration. Additional insights
can be gained from qualitative-empirical surveys as well as written surveys that have been
conducted by charitable organisations. These surveys provide a detailed insight into the
living conditions of illegally resident migrants and the problems involved in illegal residency.
Concerning the conclusions that can be drawn from these surveys, one has to keep in mind
that several restrictions apply: most surveys are “snapshots” of the current situation, but do
not allow us to make any inferences about long-term developments. The results of
qualitative-empirical surveys can also not form the basis for drawing general conclusions
about the extent and the distribution of the phenomena that have been observed. The
methods and access used by these surveys can also have a distorting effect on their results
because interview partners are selected through charitable organisations, or surveys are
carried out directly by charitable organisations. This approach does inevitably exclude some
groups of illegally resident migrants who do not live under difficult conditions and
consequently do not need any access to charitable organisations. Furthermore, most of the
existing studies are geographically restricted to one city or region only, which entails that
more information is available on the living conditions of illegally resident migrants in urban
areas, compared to rural areas. In rather general terms, it can be stated the available data
and information focuses on illegally resident migrants who live in urban areas, face problems
resulting from their illegal residence and contact charitable organisations for support
(Bundesministerium des Innern 2004a: 56, Elwert 2002: 8, Schönwälder et al. 2004: 17, 59).
12
The following study is partially based on a BAMF-working paper entitled “Illegality of migrants
in Germany – a survey of current research”, which has been written by Susanne Worbs
(Worbs 2005). The authors of the following study have cooperated with some of their
partners within the EMN network. This has enabled us to clarify some of the detailed
questions involved with partners from the Federal Border Police (now: Federal Police) and
the Federal Office of Criminal Investigation. We have also been able to receive some
information from customs authorities (Department for Financial Control of Illegal
Employment, which is not directly involved in the network). We have also received support
from Prof. Dr Friedrich Heckmann, head of the european forum for migration studies in
Bamberg, and from Dr Kathrin Prümm of the Center on Migration, Citizenship and
Development COMCAD in Bielefeld, who have both commented on an earlier draft of this
study and given valuable feedback. The same is true for all the departments within the
Federal Office for Migration and Refugees which have continuously contributed their
expertise to this project. We would like to thank everybody for their contributions. Chapters 1
and 3.1 - 3.4.1 have been written by Dr Axel Kreienbrink, Chapters 2, 3.4.2, 3.4.3 and 4 by
Annette Sinn, and chapter 5 by Dr Hans Dietrich von Loeffelholz. The appendix has been
compiled by Michael Wolf, who has also made valuable contributions to other parts of the
study.
13
1
Legal framework and recent political developments
1.1
Definitions of illegality
All states take advantage of their sovereign powers in order to regulate entry and residence
rights for foreign nationals. The conditions governing entry and residence rights have
therefore developed separately for each state, in response to their respective historically
changing traditions, structures and political interests. Correspondingly, there are significant
differences concerning the definition of when the entry or residence of a foreign national is to
be considered as illegal (Schönwälder et al. 2004: 37). The term illegal residency still lacks a
clear-cut definition, both in Germany and in other European countries. German law, for
example, does not provide a legal definition of illegal residency, it only regulates entry and
residence procedures (§§ 3-38 AufenthG – Residence Act) (Welte 2002; Renner 1999b: 44).
Under German law, foreign nationals are only entitled to enter or reside on German territory if
they are in possession of a valid passport or comparable document, unless an exemption
has been granted in accordance with decree-law (§ 3 para. 1 AufenthG). Furthermore,
foreign nationals require a legal residence title for entering or residing in Germany, the only
exception being if other provisions have been introduced by European Union law or decreelaw, or residence rights have been granted in accordance with the 1963 association
agreement between the European Economic Community and Turkey. Residence titles can
be granted in the form of a visa, a residence permit or a settlement permit (§ 4 para. 1
AufenthG). If foreign nationals enter German territory without the obligatory passport or travel
documents and without the obligatory residence documents, their entry is illegal (§ 14 para. 1
AufenthG). If foreign nationals are not or no longer in possession of the necessary residence
documents, or if their residence entitlement granted in accordance with the 1963 association
agreement between the European Economic Community and Turkey has expired, they are
under a legal obligation to leave the country. If the respective foreign nationals do not leave
German territory immediately, or within the period granted by the authorities, their residence
becomes illegal (§ 50 para. 1 and 2 AufenthG).
For our discussion of illegal residence, it is essential to differentiate between three different
matters of fact:
1)
Foreign nationals who have been granted a suspension of deportation (a so-called
“toleration” certificate): they are under a legal obligation to leave the country, but
their expulsion or deportation cannot be enforced for factual or legal reasons. As
toleration certificates do merely suspend deportation procedures, they do not
constitute a legal residence title; the people concerned continue to be under a legal
obligation to leave the country (§ 60a AufenthG).
2)
Foreign nationals without a residence title who have been registered in the Central
Register of Foreign Nationals (i.e. they are known to the authorities), but who have
not been granted a toleration certificate.
3)
Foreign nationals who have neither been granted a residence title nor a toleration
certificate, and who have not been registered by the authorities or in the Central
Register of Foreign Nationals.
In the following study, the definition of illegal residency does only refer to the group of people
described under 3) above. However, this classification is still controversial. For example,
foreign nationals that have been granted a toleration certificate and are thus under a legal
obligation to leave the country have also been referred to under the headline “legally
registered” or “legally tolerated” illegality (Cyrus 2004: 10; Deutsche Bischofskonferenz 2001:
15). The term illegality has also been used with reference to the group of people described
14
under 2) above, as there used to be cases where border Crossing Certificates1 were issued
without a clear time limit, or cases where illegal residency was factually tolerated even
though no legal residence documents had been issued.2 However, respective practices have
meanwhile been ended (Deutsche Bischofskonferenz 2001: 10). The main difference
between groups 1) and 2), on the one hand, and group 3), on the other hand, is the fact that
the former two groups have been registered by the authorities and, consequently, the
number of people involved is known.
Another difficulty in delineating the boundaries of the term “illegality” arises from the fact that
several different phenomena, which are at least partly interrelated, are regularly discussed
under the same heading: illegal entry, illegal residence and illegal employment. This is why
some authors (Welte 2002: 54; Heinold 2000; Renner 1999b: 46) focus on the legal
consequences and punishability of unlawful residence in order to arrive at a definition of
illegality. The punishability of unlawful entry or residence is based on § 95 AufenthG and
entails prison sentences or fines for, among other things, 1) residence without the obligatory
passport or comparable travel documents, 2) residence without the necessary legal
residence title, if the foreign national concerned is under a legal obligation to leave the
country and has not been granted a suspension, 3) unlawful entry, 4) entry or residence in
spite of a respective ban. The punishability of illegal employment of foreign nationals is
based on § 404 SGB III (German Social Code) and the Act on Intensifying the Fight Against
Illegal Employment and Ensuing Tax Evasion (§§ 10, 11 SchwarzarbG 2004). Consequently,
the offence of illegal employment can be committed by foreign nationals with or without a
legal residence title. If a person lacks both the obligatory residence title and work permit, his
or her legal situation is often referred to as “double illegality”.
Another problem in delineating the term “illegality” arises from the fact that there are various
entry-points into illegal residency. For example, illegal entries occur not only if a person
crosses the national (green or blue) borders without the necessary documents, but also if the
entry is only “seemingly legal”, a term used to describe entries with the help of forged or
altered travel documents or fraudulently obtained visa. Another possibility would be entries
that are based on the fraudulent abuse of possibilities to enter the country without a visa or
with the help of a fraudulently obtained visa (BMI/BMJ 2001: 333f.). In the latter case, the
illegal residence begins as soon as the allotted period of residence has expired (so-called
“overstayers”).
In the case of foreign nationals who are entitled to enter the country without a visa (so-called
EU Positive List of countries without visa requirements), the privilege of temporary residence
(pursuant to § 15 AufenthV – Residence Decree) ceases to apply if a foreign national takes
up employment without having been granted a work permit (cf. § 17 para. 1 Residence
Decree). Consequently, this person lacks the necessary residence permit and is legally
obliged to leave the country, having committed an offence against § 95 para. 1 Nr. 2
AufenthG (Welte 2002: 56).3 As illegal residency can thus also occur after legally entering
1
2
3
Border Crossing Certificates (certificates setting a time limit for leaving the country) are legally not recognised
as personal identification and legal residence documents. They are issued on the basis of § 50 para. 3
Residence Act (formerly § 42 para. 3 Foreigners Act). In legal practice, these cases were referred to as “little
toleration” (Heinold 2000).
In the view of Heinold, this practice has “blurred the distinction between ’factual toleration’ (and thus nonpunishable residence) and ‘non-detention and non-deportation’ (and thus, potentially, punishable residence)“
(Heinold 2000; Schönwälder et al. 2004: 60).
In addition, it also constitutes a violation of § 284 SGB III (German Social Code), which is punishable as a
misdemeanour. The prevailing legal opinion has demanded the same legal consequences for “citizens of
15
the country and temporarily living there legally, the Expert Panel on Migration and Integration
has pointed out the occurrence of a large number of hybrid forms between legal and illegal
entry, residence and employment (Sachverständigenrat 2004: 348). Referring to this state of
affairs, Lederer (2004: 167f.) has differentiated between more than a dozen of these hybrid
forms.
In contrast to European Community directives and guidelines4, German primary law on
foreign nationals does not use the term “illegal” (Alt/Cyrus 2002: 142). Nevertheless, the term
is widely used both in academic debate and in everyday usage. As some people regard the
term as degrading when used with reference to migrants (“illegal migrants”) – arguing that
“no human being is illegal” - several alternative terms are being used in this context: “illegally
resident third-country nationals”, a legal term focusing on illegal residence (the term that is
used in this study), “irregular”, “undocumented”, “uncontrolled” or “clandestine” migrants,
“status-less” migrants or “sans papiers” (cf. Vogel 2003a: 164; Schönwälder et al. 2004: 6;
Stobbe 2004: 8). In accordance with their view that migrants are only categorised as illegal if
they come into contact with the authorities, some refugee support groups do also use the
term “illegalised”, a term emphasising the construction of illegality by government regulations
and, at the same time, casting doubt on the legitimacy of this concept (Vogel 2003a: 163f.;
cf. Kömür 2001; mujeres sin fronteras 2005).
1.2
Basic and minority rights of illegally resident third-country nationals
The basic rights codified in international law and documents of the United Nations and the
International Labour Organisation (ILO) apply to all human beings, i.e. they also protect
illegally resident migrants (Taran, 2004). Above all, this is true for the so-called “Everyman”
or universal rights (e.g. the right to life, liberty and personal integrity, legal equality and due
process of law), as enshrined in the Universal Declaration of Human Rights of 1948.
However, these basic rights are not legally binding, even though they have been ascribed a
significant moral impact. In a legally binding form, these rights have in 1966 to a large extent
been incorporated into the International Covenant on Civil and Political Rights as well as on
the one on Economic, Social and Cultural Rights, respectively, which Germany has duly
ratified. Legally, these international agreements constitute state obligations which, however,
cannot be enforced by individuals through legal action.5 Moreover, certain restrictions apply
which, for example, stipulate that the right to employment is dependent on a legal residence
title (McHardy 1994: 95). This is equally true for the UN Convention on the Rights of the
Child of 1990, which was ratified by the German Federal Government in that year. This
convention codifies the right to education (Art. 28), which, consequently, also applies to the
children of illegally resident migrants. On signing the convention, however, the Federal
Government has added some explanatory remarks to the effect that no part of the
convention could be interpreted in a way that would legalise illegal residence or infringe on
the sovereign powers of the Federal Republic of Germany to regulate migration inflows and
4
5
negative states”, too. However, a ruling by the Federal Court of Justice (BGH) in April 2005 has come to the
conclusion that, in this case of taking up illegal employment, the illegal act is committed by fraudulently
obtaining a visa, with the granted visa sustaining its formal validity. The Federal Ministry of the Interior has
expressed its intention to close this legal gap. BGH, ruling of April 27, 2005, Ref.: 2 StR 457/04.
e.g. EC Guideline 2004/81/EC of April 29 on granting residence titles to third-country nationals who have
been victims of human trafficking and are willing to cooperate with the authorities (OJ L 261, August 6, 2004,
p. 19-23).
Whether those rights are legally enforceable is considered in a more differentiated way in the legal academic
discourse in the meantime, cf. Schneider 2004.
16
outflows and differentiate between citizens and foreign nationals.6 This entails that the
Federal Republic of Germany has reserved its right to apply the law on foreign nationals and
residency and to differentiate between children with or without a legal residence title (Münz et
al. 2001: 89; Jünschke/Paul 2004: 370; Rausch 2005).7
The basic rights enshrined in the German constitution of 1949, the Basic Law (GG), on the
other hand, are legally enforceable. According to Art. 1 para. 3 GG, these constitutional
rights constitute directly applicable law und can therefore, in contrast to international law, be
enforced by individuals through legal action. The basic rights are only bounded by the rights
of others and Germany’s constitutional order (Art. 2 para. 1 GG). However, only the universal
human rights can be invoked by illegal foreign residents. For example, an illegal foreign
resident can invoke the protection of human dignity (Art. 1 para. 1 GG). Correspondingly, the
right to life and physical integrity (Art. 2 para. 2 S. 1 GG) is a universal right, whereas the
right to personal freedom is restricted by the ensuing Sentence 2 (“Every person shall have
the right to free development of his personality insofar as he does not violate the rights of
others or offend against the constitutional order or the moral law”). These constitutional rights
do nevertheless have a so-called “third-party effect”, as they establish an “objective value
system” which is legally binding for civil and employment law. This entails, for example, that
employers have to respect the fundamental values of the Basic Law in their dealings with
illegally employed foreign residents. This includes the protection of their fundamental rights
(human dignity and personal integrity), equal treatment, especially of men and women,
freedom of religion and conscience, freedom of expression, the special protection of
marriage and family as well as the so-called negative and positive freedom of association
(McHardy 1994: 97).
1.3
Political and legal developments concerning illegally resident third-country
nationals
1.3.1
Political developments
In a historical perspective, it becomes obvious that policy approaches towards illegality have
changed in recent decades. During the time of the so-called “guest-worker” migrations, the
approach towards illegal entries was, even though it cannot be characterised as positive,
marked by a pragmatic attitude focusing, above all, on economic interests (cf. Schönwälder
2001: 323ff.; Sonnenberger 2003; Sanz Díaz 2004). With respect to human smuggling,
attitudes even seem to have changed completely, with human smuggling being valued as
something positive during the East-West conflict. For example, it was legally possible at that
time to sue for agreed-on smuggling fees. It was only in the late nineties that human
smuggling was included in German criminal law (Dietrich 1998: 5; Jünschke/Paul 2004: 368).
In contrast to Southern European countries, which responded to illegal immigration by
implementing legalisation programmes, Germany imposed restrictions on asylum law and
family migration possibilities for non-German residents, as these two areas were regarded as
the main source of illegal residency (Sieveking 1999: 93). It was only in the 1990s, that public
6
7
United Nations Treaty Collection, Online: http://www.unhcr.ch/html/menu3/b/treaty15_asp.htm.
In 1999, the parliamentary committee for family policy in the federal parliament called on the federal
government to withdraw these restrictions. Basically, the federal government seems to be willing to give up
its reservations, but it had to take into consideration that the state governments are responsible for school
policy (Münz et al. 2001: 89). The expert panel for migration and integration has implicitly reiterated these
demands in its annual report for the year 2004 (Sachverständigenrat 2004: 353).
17
debate and policy began to change its perspective on illegality. On the one hand, measures
were taken to compensate for the abolition of border checks at EU-internal borders under the
Schengen Treaty of 1990. On the other hand, the “criminalised horror scenario of mafia-like
criminal organisations smuggling countless migrants into Europe” (Bade 2001: 66) began to
take hold of the public imagination. In its 2001 report, the Independent Migration Commission
focused, among other things, on the issue of illegality and thus fuelled the public debate
(Unabhängige Kommission Zuwanderung 2001: 196-198). In the aftermath of the terrorist
attacks on New York City on September 11, 2001, the perspective shifted even further
towards security and crime prevention issues. In the public debate, there was a tendency to
link the issues of terrorism risks and illegal migration. As a consequence, measures against
terror suspects were complemented by countermeasures against illegal immigrants and
human smugglers or traffickers (Alt/Cyrus 2002: 148-150, 157; Bojadžijev et al. 2002: 10; cf.
chapter 1.3.2).
Within the public debate on the issue illegality in Germany, which has only started to develop
over the last years, one can distinguish between two key positions: on the one hand, an
administrative or “state-control” approach, which has been adopted by the Federal Ministry of
the Interior and the state interior ministries; on the other hand, a “human rights” approach,
which has been adopted by civil-society actors (churches, charitable organisations, refugee
support groups)8.
In the “state-control” perspective, illegal immigration is, above all, a violation of applicable
law. This position also implies that illegal residency poses a threat to public order and
security. Proponents of this position also argue that there is a link to the rising crime rates
faced by society as a whole, a trend which is inevitably fuelled by the actions of human
smugglers and illegal migrants (Hanning 2000: 11; Sonntag-Wolgast 2000: 23-25; Hansen
2002: 80; cf. also chapter 4.1.7).9 Furthermore, this position emphasises further negative
effects on society (e.g. tax evasion, non-payment of social-insurance contributions etc.),
which put additional pressure on public spending and state budgets (Welte 2002: 55).
According to the Federal Ministry of the Interior, there is no alternative to preventing illegal
entries and residency, as it is one of the main duties of the state to establish a consistent
legal order which applies to all residents. Otherwise, illegal residency would deteriorate into a
permanent occurrence undermining public efforts at regulating migration inflows (Cyrus
2004: 38f.). In this perspective, which has also been called “threat perspective” (Vogel
2003a: 165), the main focus has to be on how to fight illegality in a way that is as effective
and economical as possible (e.g. Griesbeck 1997; Severin 1997).
The human-rights oriented perspective, on the other hand, emphasises that illegally resident
migrants cannot be made solely responsible for their situation. On the contrary, it is pointed
out that demand and support by German society have contributed to the problem, too.
Furthermore, it is argued that a consistent legal order can realistically not be achieved
through state legislation alone, as other areas of social reality are also marked by
inconsistencies; in addition, there have always been collisions between different legal
interests, making it inevitable in legal practice to take discretionary decisions. As for illegal
immigration, these conflicting interests do regularly occur, as human rights such as health,
education and protection against exploitation are concerned (Cyrus 2004: 39f.). In
8
9
In many cases, the contact between the staff at social organisations and illegally resident migrants triggered
an increased awareness of the issue, first in the churches and then in the broader public (Anderson 2003: 9).
Illegal residence in Germany is a criminal offence (prison sentence of up to one year according to § 95
Residence Act); (Vogel 2003a: 163).
18
consequence, it is seen as the duty of the state to strike a balance between the demands of
establishing a consistent legal order and guaranteeing just and fair treatment in individual
cases (Deutsche Bischofskonferenz 2001: 41). In a more direct manner, this approach has
also been called the “victim perspective“ (Vogel 2003a: 165f.), the main political aim being to
help “illegalised” refugees to achieve a long-term perspective for their lives (e.g.
Forschungsgesellschaft Flucht und Migration 1998).
An intermediary position trying to reconcile these seemingly irreconcilable differences has
been represented by the so-called “dual perspective” (Cyrus 2004: 40-43). In accordance
with EU demands to complement state-control policies by approaches that take the rights of
illegally resident migrants, their voluntary return and regularisation programmes into
consideration (Cholewinski 2000: 396), several charitable organisations, churches and trade
unions10 have presented similar proposals. Their main aim is to achieve a “situational deillegalisation” which works towards a “pragmatic solution of humanitarian and health
problems or risks faced by foreign nationals that already live illegally in our country” (Cyrus
2004: 8). Consequently, these groups have called on politicians to, among other things,
abolish restrictions on family reunion, grant residence titles to tolerated refugees (pursuant to
§ 23 para. 3 AufenthG), implement hardship regulations, initiate voluntary return programmes
for migrants that “have gone underground”, protect victims that act as witnesses in court
cases and establish minimum standards of social protection that are not undermined by the
obligation to be registered by local authorities (pursuant to § 87 AufenthG) ;
(Asboe/Eckeberg 2003: 34f; Deutsche Bischofskonferenz 2001: 51-58; Alt 2001; Bührle
1997).
1.3.2
Legal developments
The reform of foreign-resident law in 1990 (Foreigners Act) imposed harsher sentences for
illegal entry, residency and human smuggling. The reform of asylum law and regulations and
the amendment of the respective article in the German constitution (Art. 16 and Art. 16a GG
– Basic Law) were aimed at stepping up national countermeasures against illegality
(Sieveking 1999: 105). Further changes resulted from the Fighting Crime Act of 1994, which
introduced several new offences in order to tackle illegal residency, i.e. the offences of illegal
entry, illegal residence after expulsion or deportation and of fraudulent petitions in order to
obtain residency papers (§ 92 para. 2 AuslG - Foreigners Act). The offences concerning
human smuggling, which had previously been listed in § 92 Foreigners Act, were now
incorporated into the new §§ 92a and b Foreigners Act, thereby increasing the maximum
prison sentence from three to five years or ten years, respectively, for the offence of human
smuggling of foreign nationals by profit-oriented and criminal organisations. A simultaneous
amendment of § 84 AsylVfG - Asylum Procedure Code (offence of inducing fraudulent
asylum petitions) imposed harsher penalties and a new § 84a Asylum Procedure Code
introduced the offence of “fraudulent asylum petition induced by profit-oriented and criminal
organisations”. These harsher penalties were aimed at deterring offenders and bringing
asylum regulations in line with legislation against organised crime. Further efforts to tighten
rules were made by the reform of foreign-resident and asylum-procedure law in 1997, which
10 In this context, trade unions can quickly get into an ambivalent position if they not only demand that regular
employment is protected, but also that rigorous steps are taken against illegal employment (Cyrus 2005:
74f.).
19
reduced the minimum number of smuggled people for the offence of human smuggling to two
persons (Cantzler 2004: 75-88; Minthe 2002b: 22f.).
The anti-terrorist legislation passed after the events of September 11 has tightened several
rules in foreign-resident and asylum law (Huber 2002; Marx 2002; Schmahl 2004). For
example, German embassies abroad are now entitled to carry out or initiate identity and
background checks on visa applicants. The extent of personal data that is stored and
transmitted to the Central Register of Foreign Nationals (AZR) has also been increased.
Furthermore, the visa register has been upgraded to a visa decision register, recording data
both on issued and denied visas. These measures were also aimed at stepping up border
checks and police identity checks within Germany. There have been extensions of the
authorities’ possibilities to exchange personal data. In addition, foreign-national law has been
amended in order to ensure that fingerprints (of all ten fingers) are taken from all foreign
nationals who are arrested for illegally crossing national borders or illegally staying in
Germany. The latter amendments were not adopted in the immediate context of antiterrorism legislation, but in order to implement the EC Council Regulation “Eurodac” of
200011 (Schmahl 2004: 218).
On January 1, 2005, the new Immigration Act took effect in Germany, whose main focus lies
on residence law (AufenthG – Residence Act) and replaces the former Foreigners Act. It has
also adopted the existing list of offences committed by foreign nationals, with only minor
alterations (§ 95 AufenthG). It has thus incorporated and complemented the regulations
against human smuggling (§§ 96, 97 AufenthG), too. For example, § 96 AufenthG
(smuggling of foreign nationals) has introduced additional offences in para. 2: carrying a
firearm or other weapon, inhuman treatment or actions imperilling or degrading smuggled
persons or damaging their health. Paragraph 5 also makes a reference to the Penal Code for
these offences, implementing the additional protocol of a UN agreement on fighting
organised crime.12 The offence of human smuggling by profit-oriented and criminal
organisations (§ 97 AufenthG) was extended in order to introduce a maximum ten-year
prison sentence in cases where the smuggled person has died in the process (in accordance
with § 96 AufenthG).
These amendments have implemented the EC Council Directive of November 28, 2002 on
facilitating unauthorised entry, transit or residence13, as well as the accompanying decision
on tightening criminal penalties14, to a large extent.15 The German Penal Code does even
exceed EU demands in this respect, by also imposing criminal penalties in cases where
repeated human smuggling has occurred without the realisation of profits.
11 EC Council Regulation No. 2725/2000 of December 11, 2000 on setting up “Eurodac“ – allowing the
exchange of fingerprinting data in order to implement the Dublin Convention (OJ 2000 L 316, p. 1). Pursuant
to Art. 11 of the Regulation, taking fingerprinting data is not mandatory in the case of illegal residency.
Eurodac was put into operation on January 15, 2003.
12 Art. 6 para. 3 of the Protocol against the Smuggling of Migrants by Land, Air and Sea, supplementary to the
United Nations Convention against Transnational Organized Crime, which entered into force on January 28,
2004.
13 EC Council Regulation 2002/90 of 28 November 2002 defining the facilitation of unauthorised entry, transit
and residence (OJ L 328 of 5 December 2002, p. 17).
14 Council decision of 28 November 2002 on the adoption of appropriate sanctions against the facilitation of
unauthorised entry, transit and residence (OJ L 328 of 5 December 2002, p. 1). The decision demands an
eight-year prison sentence as the minimum standard for the maximum penalty.
15 § 92a Foreigners Act had already contained the regulations which have become mandatory pursuant to Art.
27 para. 1 of the Convention Implementing the Schengen Agreement. These regulations expired when the
Council Directive mentioned above entered into force on December 5, 2004 (Cantzler 2004: 49).
20
(Sachverständigenrat 2004: 362). The discretionary provision of the directive, according to
which it is not mandatory to impose sanctions if human smuggling has been carried out “in
order to provide humanitarian support to the persons concerned” (Art. 1 para. 2 of the
Directive), has not been implemented verbatim. The exemption from punishment in the case
of humanitarian efforts cannot be deduced from § 96 para. 1 No. 1 AufenthG, as the profit
orientation is defined here as part of the offence of facilitating human smuggling. In the view
of the Federal Government Commissioner for Migration, these regulations need to be slightly
amended in order to bring them in line with §§ 96 and 97 AufenthG (Beauftragte der
Bundesregierung 2005: C III.3.7).16 Other EU Directives, such as the so-called “Victim
Protection Directive” 17 need yet to be implemented in the context of a second amendment of
residence law.
1.4
Possibilities of obtaining residence titles outside of legalisation campaigns
Apart from form legalisation campaigns, several possibilities of escaping from illegality have
been mentioned in the literature, e.g. submitting a petition for political asylum, marrying a
German partner or non-German partner with a residence entitlement (Alscher et al. 2001: 1719).
1.4.1
Asylum petition
If foreign nationals submit a petition for political asylum in Germany, they, on principle, have
the right to stay in Germany until asylum procedures have been completed (leave of
residence pursuant to § 55 para. 1 AsylVfG – Asylum Procedure Code). If the Federal Office
for Migration and Refugees (BAMF) has decided that a foreign national is entitled to political
asylum or to protection against deportation in accordance with the Geneva Convention (§ 60
para. 1 AufenthG – Residence Act), he or she is entitled to receive a residence permit (§ 25
para. 1 S. 1 and para. 2 S. 1 AufenthG). However, there are several obstacles to obtaining a
legal status through an asylum petition. To begin with, applicants have to provide proof that
they have entered Germany directly by air and that they have not been granted a visa by
another EU Member State. Furthermore, an asylum petition has to be submitted
“immediately” after entering the country (§ 13 para. 3 S. 2 AsylVfG). The law does not
contain a clear-cut deadline for submitting a petition, but if applicants are unable to provide
sufficient explanations for an obvious delay, this will have a negative impact on their
credibility and the administrative review of their asylum petition (Marx 2003: §13 marginal
note 38).
1.4.2
Marriage
Marrying a German partner or a non-German partner with a long-term residence entitlement
can be another way of obtaining a legal residence status. Some trafficking organisations do
therefore offer their assistance in arranging (fictitious) marriages in order to obtain a
16 § 96 para. 1 No. 2 Residence Act includes repeated offences or acts facilitating the unauthorised entry of
several persons in its definition of the criminal offence, which would be opposed to an exemption from
punishment.
17 Council Directive 2004/81/EC of 29 April 2004 on the residence permit issued to third-country nationals who
are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal
immigration, who cooperate with the competent authorities (OJ L 261 of 6 August 2004, p. 19-23).
21
residence title. The legal basis is the special protection of family and marriage in accordance
with Art. 6 para. 1 GG – Basic Law. However, legal regulations make the ex-post legalisation
of an existing illegal residence very difficult.
The relevant regulations in the Residence Act (§§ 28 ff. AufenthG) are aimed at spouses
joining their husbands and wives who already live in Germany. In many cases, non-German
or bi-nationals couples prefer to get married abroad in order to avoid difficulties in obtaining
the necessary marriage documents. In order to get married, prospective couples have to
provide the following documents: a passport or other piece of identification, a birth certificate
and other documents in accordance with the law of their respective country of origin.18
Officials at the civil registry office have to check if the documents are authentic. If they
suspect a fictitious marriage, which would constitute sufficient grounds for annulling a
marriage pursuant to § 1314 para. 11 No. 5 BGB - German Civil Code, they are entitled to
interview the prospective spouses (§ 5 para. 2 sentence 1 Personenstandsgesetz – Civil
Status Act). According to past jurisdiction, a “fictitious marriage“ is defined as a marriage with
the sole purpose of obtaining a residence entitlement, and with the persons involved having
no intention to establish a permanent marital partnership.19 If registrars come to the
conclusions that two applicants intend to enter into a fictitious marriage, they can refuse to
conduct the wedding.
The obligatory marriage documents do also comprise a residence certificate issued by local
authorities, which by itself is not the equivalent to being issued a residence entitlement.
However, in the process of issuing such a certificate, local authorities do often discover that
the residency of the applicant is illegal and, consequently, inform the police. The prospects of
being granted a toleration certificate by foreign-resident authorities for the purpose of
marrying are bleak, especially if the person concerned has already applied for protection
against deportation on the grounds that he or she is not in possession of a passport, for
example. On principle, issuing such a toleration certificate is possible if the civil registry office
does not object to the submitted documents (Storr et al. 2005: § 60a AufenthG, marginal
note 6). The illegal status of an applicant can also be uncovered if authorities demand proof
of his or her ability to enter into marriage (certificate of marriageability), which is common
practice. An exemption from this obligation can only be granted if a Higher Regional Court
has found that an international certificate of marriageability cannot be obtained (§ 1309 BGB
– German Civil Code). It is common practice that the Higher Regional Courts will contact the
local foreign-resident authorities in order to establish whether a submitted certificate of
marriageability is legitimate; the local authorities will, in turn, carry out data-reconciliation
measures in order to prevent fictitious marriages.20 If a Higher Regional Court comes to the
conclusion that the parties involved intend to enter into a fictitious marriage, it will refuse to
grant an exemption from the obligation to submit a certificate of marriageability.21 As in all
these cases the applicants are unable to provide all the necessary marriage documents, their
intention to get married will not assist them in their efforts to obtain a legal residence status.
18 We will not address the problems involved in legalising these documents; for further details, cf. Beauftragte
der Bundesregierung 2005: C III.1.2.2.
19 BVerfG (Federal Constitutional Court), ruling of May 12, 1987, Ref. E 76, 1; BVerwG (Federal Administrative
Court), ruling of September 9, 2003, Ref. 1 C 6.03, in: Informationsbrief Ausländerrecht 2004, p. 77-80.
20 In practice, Higher Regional Courts can follow different procedures. The procedure described here is the one
followed by the Civil Registry Office of the City of Nuremberg.
21 cf. decision by Higher Regional Court (Kammergericht) Berlin of March 27, 2001 (Ref. I VA 36/99), in: Neue
Juristische Wochenschrift-Rechtsprechungsreport (NJW-RR) 2001, p. 1373ff.
22
A marriage with a German partner can (§ 28 AufenthG), similar to the marriage with a nonGerman partner, result in a limited residence or a permanent settlement permit (§ 30
AufenthG).22 However, several conditions have to be fulfilled before such a permit can be
issued (§ 5 para. 1 and 2, § 29 AufenthG), such as sufficient income, living space, absence
of a criminal record and proof of legal entry or ex-post legalisation through re-entry.23 If these
conditions are not fulfilled, local foreign-resident authorities can refuse to issue a residence
document24 in order to prevent a fictitious marriage. If suspicions have been raised, local
foreign-resident authorities can also carry out investigations into whether a fictitious marriage
(a so-called “residence marriage”) has been entered into subsequent to a wedding. If
authorities find proof that this is the case, the residence title which has been issued will be
repealed, as no permanent marital partnership has been established and, consequently, the
relationship is not protected by Art. 6 para. 1 GG – Basic Law. It is as such not a criminal
offence to enter into a fictitious marriage, but it is illegal to apply for a permanent residence
title on the basis of a fictitious marriage (§ 95 para. 2 AufenthG) (Cantzler 2004: 198-202; for
general information: cf. Wagner 2003).
1.4.3
Parenthood
Another possibility of obtaining a legal residence status is to accept – before a notary public parenthood for a child born out of wedlock. The most common case is that a German man
accepts the parenthood for a child born by a non-German woman without a legal residence
status. Conversely, a non-German man can also recognise the parenthood for a child born
by a German woman. In addition to accepting parenthood, applicants are also obliged to
accept personal custody of the child. For a non-German parent who is under a legal
obligation to leave the country, the acceptance of parenthood and custody of a child creates
the legal basis for being granted a legal residence status (§ 28 para. 1 No. 3 AufenthG –
Residence Act in combination with § 4 para. 1 Staatangehörigkeitsgesetz – Nationality Act).
In contrast to previous regulations in the Foreigners Act (§ 8 para. 1 No. 1 AuslG), an illegal
entry without a visa is no longer a legal obstacle in these cases. In this respect, the new
Residence Act is therefore less restrictive than the old Foreigners Act. As the main legal
issue here is personal custody, it is also legally irrelevant if the father is the biological or
social parent. A legal violation would only occur if the alleged parent-child relationship within
a family does not exist in reality. Up to now, there are no data available on whether these
regulations have been taken advantage of to a large extent in order to obtain a legal
residence status, which would be a criminal offence pursuant to § 95 para. 2 AufenthG.
Efforts by the German Conference of Interior Ministers to shed light on these issues have so
far been unsuccessful25 (cf. Beauftragte der Bundesregierung 2005: C III.1.3.2).
22 A registered life partnership does have the same legal effect of granting a residence title. The regulations of
the Residence Act apply accordingly (§ 27 para. 2).
23 The ex-post legalisation of an illegal entry is not mandatory, however, pursuant to § 5 para. 2 AufenthG.
24 A toleration certificate might be applicable if other family members are already resident and if the applicant is
granted additional time to fulfil the requirements.
25 Report of the meeting of Working Group I of the Conference of State Interior Ministers in Husum on October
7/8, 2004 on the issue of obtaining a residence title or German citizenship through parenthood.
23
1.4.4
Granting residency rights for humanitarian reasons or in cases of hardship
The new Residence Act has created the possibility of granting a limited residence permit for
urgent humanitarian or personal reasons or in cases where a considerable public interest
exists (§ 25 para. 4 AufenthG). In principle, these grounds could also be recognised under
the previous law (§ 55 para. 3 AuslG – Foreigners Act), but it only has been a toleration
certificate that was granted with reference to these regulations. Furthermore, the group of
people potentially profiting from these regulations has been extended. Previously, foreign
nationals could only submit such a petition if an unappealable decision on their residency
had not yet been reached (Beauftragte der Bundesregierung 2005: C III.2.1.2.4).
The new Residence Act has also created the possibility for state governments to set up
hardship commissions (§ 23a AufenthG). In cases of severe hardship, these commissions
can make a recommendation to state authorities to grant a residence permit, provided that all
other legal options have already been exhausted.26 State authorities are not bound by such
a recommendation as granting a residence title is in this case a discretionary decision which
legally constitutes a reprieve. The foreign national concerned can therefore not submit such
a petition directly to state authorities or appeal against their eventual decision.27 Under
current law, foreign nationals who have committed severe criminal offences are excluded
from the hardship regulations, but these offences do not include illegal entry or residence
pursuant to § 95 Abs. 1 AufenthG. It is up to the federal states to decide on the composition
of hardship commissions. Most federal states have set up respective commissions28 and
decided on procedure. According to state regulations (Schwantner 2005), an executable
order to leave the country is one of the pre-conditions for reviewing a case, but many states
do also accept the existence of a toleration certificate. Foreign nationals are barred from
submitting a petition to hardship commissions if they are to be expelled for one of the
reasons listed in §§ 53 to 55 AufenthG or if a deportation order has been issued in
accordance with §58a AufenthG. The same applies to cases of illegal residency, which is
either stated explicitly in state regulations,29 or results from the condition that petitioners
must not be sought by the police or that a legal trial on the question of whether an expulsion
order is executable is pending (cf. Storr et. al 2005: § 23a AufenthG – marginal notes 12 and
14).
In the literature, the question of whether the legal option of a reprieve is possibly
unconstitutional continues to be contentious. The reservations expressed by some legal
experts concern the relationship between the hardship commissions and the parliamentary
petition committees, a possible violation of the principle of constitutional definiteness, and the
exclusion of due legal process (Schönenbroicher 2004; with more reservations: Storr et al.
2005: § 23a AufenthG – marginal notes 18-21).
26 These regulations, including ensuing state regulations, will be in force for a limited period of time only, i.e.
until December 31, 2009 (§ 15 Abs. 4 ZuwG – Migration Act).
27 The Federal Government Commissioner on Migration, Refugees and Integration has expressed a differing
view on this issue (2005: C III.2.3).
28 The states of Lower Saxony, Hamburg and Hesse have commissioned the petition committees in their
respective state parliaments to adopt this responsibility. In the states of Bremen, Bavaria, Saxony and
Mecklenburg - Western Pomerania, a final decision has not yet been reached.
29 So for example in Schleswig-Holstein: “[…] has resided on the territory of the Federal Republic of Germany
illegally not only for a short term (more than 3 months) in the past”. See also principles of proceedings of the
hardship
commission
at
the
ministry
of
the
interior
Schleswig-Holstein,
online
at:
http://landesregierung.schleswig-holstein.de.
24
1.4.5
Suspension of deportation
In spite of differing views (Alscher et al. 2001: 18), being granted a suspension of deportation
(a so-called “Duldung” or “toleration certificate”) does not legalise the residency of foreign
nationals, as it legally only constitutes a temporary suspension of their repatriation or
deportation (§ 60a AufenthG – Residence Act). A toleration certificate is issued if there are
obstacles to deporting foreign nationals to their country of origin (pregnancy, illness or injury).
However, their residence and employment status continues to be insecure, as their residency
in Germany continues to be legal and has just been temporarily exempted from sanctions
(Storr et al. 2005: § 60a AufenthG marginal note 3). In the medium term, a toleration
certificate can only be converted into a residency title if a suspension of more than six
months has been granted and if state authorities have decided to grant a temporary
residence title to foreign nations who are members of a certain group or nationals of a certain
country (§ 23 para. 1 AufenthG). Should in other cases the obstacles to leave the country
continue to persist after a period of six months, either for legal or for factual reasons, it is,
after deportation procedures have repeatedly been suspended for a total period of at least
eighteen months, legally possible to grant a limited residence permit for humanitarian
reasons (§ 25 para. 5 AufenthG). However, if foreign nationals themselves are, at least
partly, responsible for the deportation obstacles (e.g. because they have destroyed their
identification documents), they are barred from this possibility. According to explanatory
statements accompanying the new law, the obstacles to leaving the country, which are
mentioned in the law, are to be congruent as far as possible with the obstacles to deportation
(Beauftragte der Bundesregierung 2005: C III.2.1.2.4). Practical experience has shown that
some local foreign-resident authorities, during the first months of 2005, were employing
differing interpretations of obstacles to leaving the country and obstacles to deportation.
There are differing views on whether these practices of implementing the new Residence Act
undermine the intention of legislators in this point.30
30 cf. e.g. the statement by Dieter Wiefelspütz, the interior policy spokesman of the SPD parliamentary party; in:
Die Tageszeitung NRW, April 29, 2005, p. 2. See also National conference of federal, state and local foreignresident and integration commissioners: Declaration on “abolishing repeated suspensions of deportation“
(May 24/25, 2005, Online: http://www.integrationsbeauftragte.de/download/BuKo_2005__Kettenduldung1.pdf). For further details, cf. Keßler 2005, Heinold 2003.
25
2
Size and composition of the illegally resident population
Reliable data on the size and the composition of the illegally resident population are difficult
to obtain as the size of the illegally resident population depends on several factors: migration
in- and outflows, births and mortality, “overstaying”, i.e. illegal residence after residence titles
have expired, and the possibilities of obtaining a legal residence status (Vogel 1999: 168).
For example, entering into marriage and submitting an asylum petition could be regarded as
possibilities of legalising an illegal residence status (cf. chapter 1.4.1, 1.4.2). Another aspect
that has to be taken into consideration is the fact that in recent years Germany has
increasingly become a major transit country for illegal migration (Neske et al. 2004: 27). In
addition, there are other forms of temporary illegal residence in Germany, which lead to
additional migration flows, i.e. re-migration as well as repeated entries and returns (Bade
2001: 72). The ensuing phenomenon of a “continual coming and going“ further complicates
the task of quantifying the scope of illegal migration to a considerable extent (Lederer 2004a:
179).
People who neither have a legal residence title nor a toleration certificate do leave no traces
in the official residence statistics when they “go underground” (Vogel 2002: 67). In order to
gain an insight into illegal residency, it is thus important to use those statistics that are
compiled as a result of state control and police work: Among others sources, some valuable
information can be gained from Police Crime Statistics (PKS) and the statistics on "bordercontrol measures pursuant to foreign-resident law ", which are compiled by the Federal
Border Police (BGS).31 Apart from these statistics, indications as to developments in the
number of illegally resident migrants can be gained from non-governmental charities and
support groups who – in the course of their work - regularly come into contact with residents
that do not possess a legal residence title (Lederer 2004a: 237; 2004b: 2).
Even though employment is regarded as one of the main motives for illegal residency
(Alscher et al. 2002: 22; Lederer 1999;), it is impossible to discern a clear-cut pattern of
illegal migration and of the circumstances in which illegally resident migrants live in Germany
(Lederer 2004b: 2). The illegally resident population is a heterogeneous group, ranging from
contract workers overstaying their residence allowance and asylum seekers who have gone
underground to illegally resident domestic helpers and family members joining their families
that already live in Germany. The heterogeneity of the group poses a further difficulty in
estimating its size, as the risk of being detected by the authorities , and by that becoming
registered, differs significantly for each of the groups mentioned above.32
2.1
Data sources
2.1.1
Data of the Federal Border Police
Data provided by the Federal Border Police (BGS) can be used to gain some insight into the
access points of illegal residence. In the context of border checks, authorities differentiate
between two forms of illegal entry, which are – at least partly – statistically registered: on the
one hand, entry without travel documents, on the other hand, entry with forged or altered
31 As of July 1, 2005: Federal Police.
32 Gómez Schlaikier (2005) alludes to the lesser risk being detected by controls at the workplace when working
inside private households. The risk is significantly higher working, e.g., in the construction sector.
26
travel documents.33 There is not statistical data on cases where the possibilities of visa-free
entry are abused or where foreign nationals “overstay”, i.e. their residency becomes illegal
subsequent to a legal entry of after their legal residence in Germany has expired. According
to estimates, the two latter forms of entering into illegal residence are quantitatively more
important than entries without travel documents or with forged or altered travel documents
(Cyrus 2004: 16). Therefore the fact that only a part of the data is readily available
contributes to a selective perception of the access points into illegality.
a. Registered illegal entries and entries with forged travel documents
If people trying to enter Germany territory illegally are arrested by the Federal Border Police
or other authorities involved in border checks, they are registered as cases in the statistics
on "border-control measures pursuant to foreign-resident law", which is compiled by the
Federal Border Police. These statistics register arrests of people trying to cross land, sea
and air borders as well as people who have been arrested inland (cf. chapter 3.1.3).34 The
statistics are a compilation of statistics which have been provided by the regional offices of
the Federal Border Police (Neske et al. 2004: 23). In the period between 1999 and 2003,
there was a continuous decline in the number of registered illegal entries and entries with
forged or altered travel documents.
Table 1:
Registered illegal entries across land and sea borders; entries with forged
or altered travel documents
year
registered illegal entries
1999
2000
2001
2002
2003
36,716
31,048
27,666
21,790
19,138
forged or altered travel
documents
3,642
3,366
3,016
2,558
2,797
Annotation: The numbers of detentions at airports are not included in these statistics.35
Source: Own calculation on the basis of Bundesministerium des Innern 2002b; 2003b; Grenzschutzdirektion
2004.
Based on these falling numbers of registered detentions, the possibilities of making
inferences about a general downward trend in illegal entries are only limited. The registered
illegal entries do not include the “dark figure” of illegal entries. In addition, the ratio between
the registered illegal entries and the “dark figure” is not necessarily static. For example, the
probability that an illegal entry is detected by the Federal Border Police is a changing
33 The term travel documents is used here synonymously for both “entry documents” and “border-crossing“
documents.
34 Alt (2003: 3) points out that the substantial decrease of registered inland detentions by the BGS during the
years 1999 – 2001 results exclusively from altered registration procedures: since January 1, 2001, inland
arrests of illegal migrants are registered as border arrests if it can be established which border the arrested
person has crossed on entering Germany (cf. Bundesministerium des Innern 2002b: 12).
35 The number of people who were detained by the BGS at airports have been subtracted from the totals given
in Table 2, as persons arrested at airports are usually not allowed to enter German territory. It would
therefore be inappropriate to categorise these cases as illegal entries (cf. Beauftragte der Bundesregierung
für Ausländerfragen 2001: 114).
27
variable whose actual size is ultimately unknown. The increased public spending on border
control measures over the last years has led to a higher frequency and intensity of border
checks (Bundesministerium des Innern 2002b: 5). In this context, Lederer (2004: 217) has
emphasised the interdependency between the intensity of border checks by the Federal
Border Police and the strategies and technology used by smuggling and trafficking
organisations in order to achieve illegal entries. Therefore an increased intensity of border
checks does not necessarily lead to a decrease in illegal entries (cf. chapter 3.1.3).
Moreover, the number of detentions by the Federal Border Police is also affected by legal
changes, e.g. by the EU enlargement in 2004 or the visa exemptions granted to Romanian
and Bulgarian nationals in 2002. Such measures can have the effect of converting some of
the formerly illegal entries into legal ones.
b. Human smuggling: smugglers and smuggled persons
The data provided by the Federal Border Police on human smugglers and smuggled persons
apprehended at national borders sheds light on one part of the phenomenon of human
smuggling, namely assisted illegal entry. Smuggling or human smuggling refers to persons
who, in return for monetary benefits, plan, facilitate or conduct illegal entries or transfers for
migrants. Human smuggling is to be differentiated from human trafficking, which aims at the
exploitation of illegally trafficked migrants in a the country of destination (Neske et al. 2004:
5).
The number of apprehended smugglers and smuggled people has not developed uniformly
during the 1990s. Whereas the early 1990s witnessed a substantial increase in the number
of detained smuggled people, the number of arrests decreased in the following years. In the
mid-1990s, however, the number of detained smugglers and smuggled people once again
increased significantly. In 1998, for example, the Federal Border Police registered 12,000
cases where smuggled persons could be arrested, and 3,000 cases were smugglers could
be arrested (Bundesministerium des Innern 2004a: 112). Since then, the number of arrests
has been falling (cf. Table 2).
Table 2:
year
1999
2000
2001
2002
2003
Smugglers and smuggled persons apprehended (at national borders)
smugglers
3,410
2,740
2,463
1,844
1,485
smuggled persons
11,101
10,320
9,194
5,713
4,903
Source: Own calculation on the basis of Bundesministerium des Innern 2002b; 2003b; Grenzschutzdirektion
2004.
One has to keep in mind that the figures shown in Table 2 do only include persons who were
caught in the act of crossing German national borders illegally (attempted illegal entry).
Persons who were arrested inland, i.e. after managing to cross German national borders
illegally with the help of human smugglers, are registered as a separate category, namely
illegal entries. Therefore it is not appropriate to put the number of apprehended persons shown in Table 2 - in proportion to the number of illegal entries, as the number of registered
illegal entries does also contain cases of human smuggling. It is only since the year 2003
that official statistics differentiate between human smugglers / smuggled persons that were
28
detained while crossing the border and the smuggled persons who have managed to cross
the national borders and are arrested later. In 2003, a total of 4,288 persons were detained
on crossing German borders illegally with the help of human smugglers; this figure equals
22.4% of the total number of illegal entries during that year (2004: 3,938 persons, 22.8% of
illegal entries).36 These figures refer to cases where authorities could prove that a person
has entered the country with the help of professional smugglers. It can therefore be said that
almost a fourth of the people arrested for illegally entering the country has used the services
of human smugglers. The actual proportion of smuggled persons, in proportion to the total
number of illegal entries, could still be higher, but in these cases authorities have been
unable to provide sufficient proof for the involvement of human smugglers (Neske et al. 2004:
30).
2.1.2
Asylum statistics of the Federal Office for Migration and Refugees
Refugees that are illegally resident or have entered Germany illegally are statistically
registered if they submit an asylum petition.37 The Federal Office for Migration and Refugees
(BAMF), which is based in Nuremberg, compiles asylum petition and procedure statistics
which give an annual overview over the number and outcome of asylum cases that have
been reviewed. These statistics contain no information on the status and duration of
applicants’ residence before submitting an asylum petition. In the view of Lederer (2004a:
173), however, the current legal situation in Germany does practically only admit asylum
petitions if the applicants have entered the country illegally (cf. Vogel 1999). Based on this
assumption, the number of initial asylum petitions gives an indication of the scope of illegal
entries of refugees in Germany. According to the asylum statistics by the Federal Office for
Migration and Refugees, 50,563 persons submitted an initial petition for asylum in the year
2003.
The asylum procedure statistics comprise data on the outcomes of asylum petitions, i.e.
whether applicants have been recognised as entitled to asylum in accordance with Art. 16a
Basic Law, or haven been granted protection against deportation for political or humanitarian
reasons pursuant to § 60 Residence Act, or whether their asylum petition has been rejected
or concluded by a formal decision.38 Out of the 93,900 asylum petitions that were reviewed
during the year 2003, approximately 63,000 were rejected, which equals a proportion of 67%
(BAMF 2004: 41). Qualitative-empirical studies on illegal residence have shown that some of
the asylum seekers whose petitions have been rejected unappealably, i.e. they are under a
legal obligation to leave the country, have “gone underground” and entered illegality (Alt
1999: 38). As there is no reliable data on the percentage of rejected asylum seekers who
36 This figure does not include attempted illegal entries via airports.
37 According to Art. 16a Basic Law, foreign nationals are entitled to be granted asylum in Germany if they have
been subjected to political persecution. Additionally, foreign nationals can be granted protection against
deportation if they are in danger of being politically persecuted (pursuant to § 60 para. 1 Residence Act – the
so-called “little asylum“) or for humanitarian reasons (pursuant to § 60 para. 2 Residence Act). Legally, an
asylum petition always comprises a petition for being granted protection against deportation (cf. Bundesamt
für Migration und Flüchtlinge 2004: 40). The Federal Office for Migration and Refugees (BAMF) is
responsible for reviewing asylum petitions submitted on the basis of Art. 16a Basic Law, and for determining
whether applicants can be recognised as refugees (pursuant to § 60 Residence Act). In 2003, the Federal
Office received 50,563 initial petitions for asylum. Since the early 1990s, the number of asylum petitions has
been falling continuously – the only exception being a slight increase in 2001 (88,287 initial petitions).
38 The so-called “formal decisions” comprise decisions in accordance with the Dublin Agreement, proceedings
that were closed, e.g. when asylum seekers withdraw their petition, as well as decisions that reviews of
subsequent petitions have not been admitted (BAMF 2004: 39).
29
continue to stay in the country illegally, it is impossible - based on the number of rejected
asylum petitions - to draw any conclusions about the number of people entering illegality that.
2.1.3
Police Crime Statistics of the Federal Office of Criminal Investigation
In the Police Crime Statistics (PKS), illegally resident crime suspects are registered as a
separate category within the group of “non-German suspects”. The PKS statistics, which are
compiled annually by the Federal Office of Criminal Investigation (BKA) in cooperation with
the State Offices of Criminal Investigation, are published after having been passed
unanimously by the Conference of Interior Ministers. The statistics register suspicions of
criminal offences as they reflect the number of alleged crimes that have been reported to the
police (Gewerkschaft der Polizei 1999: 2). Suspicions of criminal offences are registered if
the police, after investigating a crime report they have received, transmit a case to the public
prosecution authorities for further proceedings. Consequently, the statistics contain no
information on whether suspects have eventually been found guilty of a crime (Bannenberg
2003: 389). The suspicions concerning illegally resident persons are registered in the
statistics, for example, in the context of identity or traffic checks or in the context of
investigations into other criminal offences (Vogel 2003: 171). In 2003, however, the great
majority of illegally resident non-German suspects were registered on account of violations of
foreign-resident and asylum-procedure law (Bundeskriminalamt 2004: 123, cf. chapter 4.1.7).
Since the early 1980s, cases are no longer registered individually, but are assigned to
respective crime suspects (Bundeskriminalamt 2004: III). Consequently, the Police Crime
Statistics (PKS) constitute person-based statistics (Lederer 2004a: 210).39
Table 3:
year
1999
2000
2001
2002
2003
2004
Illegally resident suspects
suspects without a legal
residence status
128,320
124,262
122,583
112,573
96,197
81,040
Source: Bundeskriminalamt 2000-2005.
2.1.4
Statistics by the Federal Labour Agency on illegal employment of nonGerman labour
In view of the interrelationship between illegal residence and illegal employment, we will in
the following also provide some statistical data on the illegal employment of non-Germans.
Until recently, these cases of illegal employment were registered in the course of workplace
checks by the Federal Labour Agency. Since January 2001 this task has been transferred to
the customs (cf. chapter 3.2.1.2). The statistics on illegal employment of non-Germans
39 In the PKS statistics, suspects are only registered once if they are detained repeatedly for the same offence
in the same federal state within one year.
30
register cases of monetary-fine and criminal investigations, cautions, fines and criminal
charges on the grounds of illegal employment. Table 4, however, only lists the last three
cases, as one of the pre-conditions here is that – in contrast to investigations – proof of
illegal employment of non-Germans has actually been found. Since the year 2000,
employers and employees are registered separately in the statistics. The statistics regularly
contain multiple registrations of certain employees who are registered in the course of
several “cases”. Therefore it is impossible to draw any conclusions about the actual number
of illegally employed non-German labour from the number of registered cases
(Sachverständigenrat 2004: 59; Lederer 2004a: 223).
The figures given in Table 4 do not differentiate between cases where the offence of illegal
employment resulted from the lack of a legal residence title, on the one hand, and cases in
which a per-se legal residence status was taken advantage of in order to take up illegal
employment. The statistical data based on the cases of illegally employed non-German
labour can therefore primarily be used for gaining a limited insight into the illegal employment
of non-Germans. The same holds true for estimations on the scope of the “shadow economy”
in Germany. These figures do only differentiate between German and non-German labour,
but not between illegally and legally resident non-German labour (Enste/Schneider 2005; cf.
chapter 5.2). Referring to this context, Vogel (2002: 74f.) has made the proposal of carrying
out random workplace checks in different sectors of the economy, which could then form the
basis of estimates concerning the scope of illegal employment involving illegally resident
migrants in different sectors of the economy (cf. chapter 2.2).
Table 4:
Fines and criminal charges against illegally employed foreign labour
year
cautions and fines
2000
2001
2002
2003
17,445
12,591
12,881
11,052
criminal charges
(submitted to the
public prosecution
authorities)
5,165
5,411
6,611
6,355
Source: Federal Labour Agency, Statistics on criminal and monetary-fine proceedings (2000 – 2003).
2.1.5
Surveys by charitable organisations
Indications concerning the number of illegal residencies and the living conditions of illegally
resident migrants can also be found in surveys that have been conducted by charitable
organisations, for example Caritas (1995), a charitable organisation affiliated with the
Catholic church40, or Diakonisches Werk, a charitable organisation affiliated with the
Protestant church in Germany (2002).41 Whereas the survey by Diakonisches Werk was
restricted to some of its own advice centres, the Caritas survey also included organisations
40 In 1995, the Caritas organisation conducted a nationwide survey of about 1,000 advice centres for refugees
and foreign workers, support centres at train stations, homeless shelters, pregnancy advice centres, lawyers
specialising in foreign-resident law and some other organisations. 310 of the contacted organisations
completed and returned the questionnaire (Schäfers 1995: 37).
41 In the context of its “illegality” project, the Diakonisches Werk organisation surveyed 141 church-run advice
centres for migrants in North-Rhine Westphalia between November 2001 and May 2002, using a
standardised questionnaire. 96 centres (68%) participated in the survey (Sextro 2003: 7f.).
31
that are not church-based. These surveys shed some light on the support provided by
charitable organisations and other support groups for illegally resident migrants. As we have
no information as to which groups of illegally resident migrants frequent church-run advice
centres or use other non-governmental support offers, we can use these surveys to make
generalisations about the entire population of illegally resident migrants in Germany only in a
restricted way (Elwert 2002: 8).
Both studies have found that the great majority of surveyed advice centres have contacts
with illegally resident migrants. The Caritas survey has found that more than two thirds of the
advice centres surveyed are contacted regularly for help by a large number of illegally
resident migrants. Most of the advice centres first came into contact with the problem of
illegality in the 1990s, especially after the reform of the asylum law in 1993. Since then,
enquiries by illegally resident migrants have increased considerably (Schäfers 1995: 38).
However, the surveys could not provide any concrete figures for estimating the scope of
illegality.
2.1.6
Further data sources
Statistics on the re-distribution of foreign nationals that have illegally entered the country
When the new Immigration Act took effect on January 1, 2005, a new system was introduced
of re-distributing - among the federal states - foreign nationals who have entered the country
illegally but not submitted an asylum petition (pursuant to § 15a Residence Act; this new
system of distribution is entitled: "VilA"). The distribution system concerns migrants without a
legal residence status who have been detained by the German authorities. In these cases,
the authorities have been unable to establish which border the migrants have crossed on
entering Germany and how long they have been living in the country; in addition, the
migrants can – for different reasons - not be repatriated to their countries of origin.42 For this
group, the Federal Office for Migration and Refugees compiles statistics on their country or
origin and on their re-distribution among the federal states in Germany. In the period
between January and August 2005, a total of 796 people without a legal residence status
were distributed among the federal states. Concerning their country of origin, by far the
largest group came from Serbia-Montenegro (175 persons). On account of the “dark-figure”
issue, however, it is impossible to draw any conclusions about the total number of illegally
resident migrants in Germany from the number of detentions by authorities which are
registered in the official statistics.
Migrants participating in the REAG return programme
Foreign nationals who are under a legal obligation to leave the country, and are thus known
to the authorities, are eligible to participate in the REAG43 return programme, which provides
financial and organisational support to migrants willing to return to their country of origin or a
third country (Cyrus 2004: 74). Illegally resident migrants can take advantage of the REAG
programme if they are in possession of a border crossing certificate, which is issued by local
42 Possible reasons could be missing identity documents, insufficient cooperation by the authorities in migrants’
countries of origin or the humanitarian situation in their country of origin.
43 REAG (Reintegration and Emigration Programme for Asylum-Seekers in Germany) is a return programme
which is organised, on behalf of the Federal Ministry of the Interior and the state interior ministries, by the
IOM (cf. Chapter 3.3.1).
32
foreign-resident authorities (cf. chapter 3.3.1). Since July 1999, victims of forced prostitution
and human trafficking can also apply for REAG funds. In the year 2004, a total of 312 illegally
resident persons (2003: 128 persons) and 112 victims of forced prostitution and human
trafficking (2003: 152 persons) have received REAG funds. In part, the latter group also
comprised people who had previously been illegally resident in Germany. 44
2.2
Estimations of the size of the illegally resident population
On the basis of existing statistical data, it is impossible to ascertain the exact number of
illegally resident migrants in Germany. In order to do so, it would be necessary to have
reliable data on the number of people entering into or leaving illegality during a certain period
of time, as well as on the size of the illegally resident population at a certain point of time
(Lederer 2004a: 183). As outlined in chapter 2.1, it is impossible to quantify the exact number
of people entering into or leaving illegality. In addition, there is the principal problem of
drawing conclusions about the size of the illegally resident population on the basis of
statistical data which is derived from police and border-guard checks. For example, migrants
who are detained by the Federal Border Police because they are unable to present valid or
authentic documents do generally not remain in the country but are sent back at border
checkpoints or expelled. Illegally resident migrants who are detained inland by the authorities
do also face administrative measures to terminate their residency. Consequently, the number
of detentions cannot be equated with the size of the illegally resident population (Lederer
2004a: 213).
In order to arrive at an estimation of the number of illegally resident migrants, one possibility,
which has been suggested by Vogel (2002: 70), would be the so-called “principle of
multiplication”. Such estimations would require that the unknown quantity - in this case the
total number of people living in Germany without a legal residence status – is directly
proportionate to the measured quantity. The problem, i.e. estimating the number of illegally
resident people in Germany, is thus shifted to determining the correct multiplier. A starting
point for using the “principle of multiplication” in order to estimate the size of the illegally
resident population in Germany could be data available from administrative checks.
However, this can only be applied if certain conditions are fulfilled: if an estimation is to be
based on the data available from the police crime statistics PKS, one has to ensure that
illegally and legally resident migrants are equally likely to commit a criminal offence.
Moreover, the probability of being charged by the police as a suspect in crime would also
have to be equally high for both groups. According to Stobbe (2004: 94), however, this
correlation cannot be taken for granted, as illegally resident migrants try to act as
inconspicuously and law-abiding as possible in order to avoid police checks or drawing
attention to themselves. In the view of Vogel (2002: 74f.), there are also cogent arguments
against applying the “principle of multiplication” to statistical data that are available from
administrative checks at the workplace, as the data derives from case statistics where the
number of the illegally resident people involved cannot be ascertained. Such an estimation
would also fail to include people who live in Germany without a legal residence status but are
not gainfully employed (e.g. university students or accompanying family members). However,
the data gained from workplace checks offer the basis for estimating the number of illegally
employed migrants in certain sectors of industry. Currently, some workplace checks are
carried out in response to reports which assume that, among other things, the language or
44 Data provided by the Bonn branch of the International Organisation for Migration.
33
“foreign” appearance of workers could be an indication for illegal employment. Consequently,
these workplace checks do not constitute a representative sample of workplaces in a certain
sector of industry. Vogel (2002) has therefore suggested that workplace checks by customs
officers should be carried out randomly in a certain sector of industry. The resulting ratio
between the number of employees without a legal residence status and all employees that
have been checked could form the basis for a projection of the total number of illegally
resident migrants that are employed in this sector of industry. Lederer (2004: 245) suggests,
that the estimation of the size of different subgroups of the illegally resident population could
be a promising alternative compared to a general estimation, due to the complexity and the
existing diversity of the social phenomena.
In spite of the difficulties involved in estimating the size of the illegally resident population in
Germany, there have been repeated attempts in the public debate to give rough estimates. In
recent publications, the number of “illegals” in Germany was estimated at about one million
people (cf. e.g. an article entitled “Dreams in a shadow world” in DER SPIEGEL 51/2004).
This figure is based on a projection of local estimates. Cyrus (2004: 33), in his expert report
for the Expert Panel for Migration and Integration, has called this estimate a “realistic
minimum level”. Alt (2004) estimates that about 500,000 to one million illegal migrants live in
Germany, taking into consideration that the residence status of citizens from the new EU
Member States has been legalised since their countries joined the European Union on May
1, 2004. Lederer (2004), on the other hand, has estimated – on the basis of the number of
illegally resident non-German suspects registered in police crime statistics – that the
minimum number of illegally resident migrants has levelled out at approximately 100,000
people since the mid-1990s. In order to arrive at this estimate, the number of illegal entries
registered by the Federal Border Police (BGS) has been subtracted from the total number of
detained suspects without a legal residence status. This subtraction is necessary because
illegal border crossings are registered twice in the official statistics, in the police crime
statistics PKS as well as in the statistics on illegal entries (which are compiled by the BGS):
People detained while attempting to cross national borders illegally are not permitted to enter
German territory, but are regularly sent back immediately to the neighbouring country they
have used as a transit country (Sachverständigenrat 2004: 59).45 For the year 2003, the total
number of illegally resident registered suspects amounted to 96,197 people. If one subtracts
the number of 19,138 registered illegal entries, the resulting figure of illegally resident
suspects that have been detained inland is 77,059.
On the whole, there nevertheless seems to be a consensus that the number of illegally
resident migrants in Germany probably had continuously increased until the mid-1990s.
Since then, it can be assumed that the number of illegally resident migrants has – at its high
level – remained stable or even decreased (Lederer 2004a; Schönwälder et al. 2004).
2.3
Composition of illegally resident population
2.3.1
National composition
First of all, it can be assumed that a correlation exists between the composition of the
illegally resident population (according to nationality and country of origin) and legal
45 Lederer (2004) has expressed the reservation that this calculation presupposes that the case-based statistics
on illegal entries are, similar to the PKS, person-based statistics. Consequently, subtracting the number
illegal entries from the number of illegally resident suspects underestimates the number of illegally resident
suspects detained inland (cf. Lederer 2004, 213).
34
migration: Relatives, friends or fellow nationals who already live in Germany can provide a
“toehold” and first contact point to newly arriving illegal immigrants. However, it would be an
overgeneralization to presume that the structure of the illegally resident population is
completely identical to that of the legal migrant population. Further decisive factors
concerning the composition of illegally resident migrant population (according to their
nationality) are respective entry and residence regulations which differentiate between
countries of origin, Since the new Immigration Act took effect on January 1, 2005, for
example, nationals of the ten new EU Member States have obtained the right to freedom of
movement within the EU and are generally exempted from the obligation to apply for a
residence title (pursuant to § 2 para. 4 Freedom of Movement Act / EU). Just as German
residents, nationals of these countries only have to register their place of residence with local
registry authorities. Apart from special circumstances, these persons can thus not become
illegal residents according to German residence law. Nationals of certain other countries (e.g.
Romania) do not require a visa for entering Germany and are therefore more likely to be
detained inland by the authorities as illegally resident migrants. Conversely, nationals of
countries that require a visa for entering Germany, such as China and the Russian
Federation, are more frequently registered in statistics on illegal border crossings.
Combining the data contained in the Police Crime Statistics (concerning the residence status
of non-German illegally resident suspects) and in available qualitative-empirical studies,
Cyrus (2004: 19-23) has drawn the following conclusions about the origin of illegal migrants.
The quantitatively largest group is formed by migrant workers from Central and Eastern
Europe who have entered the country without visa requirements or with the help of
fraudulently obtained visa. Prior to May 1, 2004, this group comprised Polish, Czech and
Lithuanian nationals, for instance. Meanwhile, the EU enlargement in 2004 has – at least
partly - changed the legal regulations for nationals from these countries of origin (see above).
Since then, nationals of these countries do no longer require a residence title, but they
continue to require a work permit, pursuant to interim regulations on freedom of movement
for workers.
A second category is formed by nationals of countries with visa requirements that have a
history of migration flows to the Federal Republic of Germany or the former German
Democratic Republic (e.g. Turkey, the former Yugoslavia, the Russian Federation, Ukraine
and Vietnam). Within this category, migrants join families that already live in Germany or join
ethnic groups that can function as contact points for migrants.
A third group of illegal migrants is formed by nationals of distant countries with visa
requirements that are marked by a lack of political and/or economic security. For example,
this group comprises Chinese, Iraqi, Afghan and Indian nationals, but also migrants from
Africa and Latin America. Some of these migrants submit an asylum petition after entering
the country illegally. Lederer (2004: 175) has pointed out that a significant correlation exists
between asylum seekers’ main countries of origin and the nationality of migrants who are
most frequently apprehended while attempting to cross national borders illegally
(Bundesministerium des Innern 2004: 38). Nevertheless, certain groups of migrants, such as
people from Latin America, hardly play a role in asylum procedure; instead, most of them
choose to directly enter into illegality (cf. Gómez Schlaikier 2005).46
46 In Germany in 2004, a total of 141 initial asylum petitions was submitted from people from the Americas.
35
2.3.2
Age and sex structure
According to Cyrus, the age structure of the illegally resident population is marked by a
majority of people between the ages of 20 and 40 years. However, there are also some older
migrants joining their families who already live in the country. In addition, there is an
“alarmingly high” number of children living in illegality. “Some of them have slid into illegality
together with their parents, others have joined their parents who already live in the country
illegally or were born into illegality (…) This state of affairs affects all nationalities, whereby
migrants that commute to and from their countries of origin can mitigate the negative effects
by giving birth to their children in their country of origin or by leaving their children in the care
of relatives in their home country” (own translation) (Cyrus 2004: 27). Another indication for
the growing number of children living in illegality are observations by organisations providing
medical support to illegally resident migrants: these organisations have reported that
pregnancy care plays an increasingly significant role in their work (cf. chapter 4.1.4).
The majority of illegally resident migrants, however, is made up by single men and women.
The sex structure of the illegally resident population depends on respective employment
opportunities. With illegally resident women often employed as domestic helpers, they can
hardly be found in Eastern Germany because there is little demand for domestic helpers on
local labour markets there. Moreover, there is sufficient supply of domestic workers looking
for employment in Eastern Germany. In cities in Western Germany, on the other hand, a
larger number of illegally resident women can be found because of the high demand on local
labour markets. However, it can currently still be assumed that the number of illegally
resident men is slightly higher than that of illegally resident women (Cyrus 2004: 28).
2.3.3
Geographical distribution
Insights into the geographical distribution of illegal immigrants can, first of all, be gained from
police crime statistics (PKS), which register non-German suspects according to their
residence status and the federal state in which they have been detained. It has to be kept in
mind, though, that federal states which were – until 2004 – situated on the EU’s exterior
borders, have naturally registered a higher number of people, as detentions of the grounds of
illegal border crossings are also included in the PKS statistics. Consequently, the states of
Brandenburg, Saxony and Mecklenburg – West-Pomerania have in 2003 registered the
relatively highest proportions of illegally resident non-German suspects, followed by the
states of Hesse, Schleswig-Holstein and Bavaria (Bundeskriminalamt 2004: 125).
Concerning the most frequent places of residence of illegally resident migrants, it can be
assumed that the great majority of them live in large cities, which are most likely to offer
contact points, employment opportunities and housing. Another contributing factor is the
existence of local communities of legally resident migrants from the same country of origin or
ethnic group, as these ethnic communities can provide support to illegally resident migrants.
In rural areas, illegality is comparatively infrequent and can usually only be found in the
context of illegal employment of non-German workers, for example in the agricultural sector.
The same is true for the Eastern German states, which, due to their unfavourable economic
situation, are less attractive for both legal and illegal migrants. Within the Eastern German
states, the cities of Leizpig and Rostock are the main places of residence. Both cities have
local communities of Vietnamese residents who were employed as contract workers in the
former German Democratic Republic. In Leipzig, the previous deployment of armed forces
from the former Soviet Union has also led to illegal migration flows. The regional distribution
36
of asylum seekers within Germany has also led to several migrants from Africa living in
Leipzig. As a rule, however, most of them try to move to cities in Western Germany (Alt
1999).
Cyrus (2004: 26) has listed the following regional centres for certain groups of illegally
resident migrants:
-
Illegally resident migrants from Asia live in the Rhine-Main area, as they have entered the
country in the context of the deployment of US troops there (e.g. domestic workers from
the Philippines).
-
Illegal migrants from Africa are more likely to live in cities in Northern Germany, e.g.
Hamburg, as compared to cities in Southern Germany. Southern Germany, on the other
hand, has more illegal immigrants from South-Eastern European countries.
-
Prior to May 1, 2004, Polish nationals without a legal residence title could be found in
entire Germany, but – due to past migration flows – it can be assumed that Berlin and
North-Rhine Westphalia formed regional centres for this group. It can also be assumed
that there is a tendency of illegally resident migrants from Turkey to live in the same
regions as their legally resident compatriots.
-
Illegal migrants from Latin America are also more likely to live in large cities.
37
3
Policy approaches in dealing with illegality
3.1
Measures to prevent illegal migration
By virtue of its sovereignty, the state controls the access to and the residence on its territory.
Illegal border crossings and illegal residence constitute violations of laws which the state, in
its mandate to protect the legal order, cannot tolerate (Sachverständigenrat 2004: 110, 352).
For that reason, illegal migration poses a challenge for the state, and it counteracts with
measures of control. It is getting increasingly difficult, though, to combat illegality with purely
national approaches, as the world is getting more and more interconnected; especially the
European Union wants to intensify the international exchange of goods, services and capital
and opens the borders to facilitate it. Hence, those approaches are linked to measures and
instruments that are harmonized on the European level (Europäische Kommission 2003). It is
indeed possible to reduce illegal migration, but not to prevent it totally. Apart from costs
incurred that can be ill afforded (Entorf 2002), humanitarian and human rights obligations as
well as the intervention of interest groups deter the complete prevention of illegal migration in
a liberal-democratic constitutional and welfare state (Sachverständigenrat 2004: 355;
Cornelius/Tsuda 2004; Halfmann/Bommes 1998; Freeman 1994). But even if legal access
channels would be created to a large extent, a certain amount of illegal migration would
continue to exist for various reasons (Sachverständigenrat 2004: 350, 352). The German
system of migration control comprises external controls (e.g. via the visa system and the
border controls) as well as a system of internal controls, which include residence and work
permits. As illegally resident migrants try to elude exactly those measures of control, further
control mechanism are applied internally in Germany. Those are completed by a system of
registration and monitoring by various institutions; compulsory registration and access to
data sources, including the Central Register for Foreigners, make it easier for various
institutions to trace foreigners in the country (Hailbronner et al. 1998: 204). This approach is
also facilitated by the fact that personal identification in Germany is seen as something
“normal” and is largely socially accepted (Vogel 2001).
3.1.1
Consequences of the geographical location
Germany is situated in a central location in Europe. It borders on nine EU Member States as
well as Switzerland and has sea borders at the North and Baltic Sea. During the last years,
Germany has experienced a qualitative change with regard to the situation at the borders as,
since May 2004, the eastern frontiers to Poland and the Czech Republic are no longer EU
external borders. All German borders are affected by a high number of border crossings. The
main routes of illegal entry are primarily the official border crossing points; this concerns
violations of visa-free entry, entry with forged or altered documents, or entry with a visa that
has been obtained by providing false information.
Public attention focuses mainly on border crossings that are carried out without valid
documents beyond official border crossing points, although the quantitative proportions are
smaller here (Cyrus 2004: 15f.). In those cases, this concerns illegal individual border
crossings, but frequently also smuggling operations. There is no detailed information
available on the smuggling routes as those are subject to fluctuations, but there are some
general observations. Affected by smuggling operations are all borders, including the eastern
borders (EU external borders until April 2004) as well as all other European internal borders.
One has to take into consideration here that Germany is, to a high degree, a transit country
for smuggling operations due to its central location in Europe. At the (former) EU external
38
borders smuggling operations and illegal entries have shifted from the Czech to the Polish
border between 2001 and 2003. Especially the border to Austria has been a focal point for
illegal entries and smuggling operations across the Schengen border, with a declining
number of apprehensions. But also the borders with Belgium, the Netherlands and France
were affected. In addition, there have been cases of smuggling operations using international
airports as port of entry (especially Frankfurt am Main), as the increasing numbers of
apprehensions evidence. Illegal immigration across the sea borders has also happened on a
small scale, with the Baltic Sea as focal point (Cantzler 2004: 21-24; Bundesministerium des
Innern 2002a: 2-5; 2003a: 1-3; 2004b: 1-4; cf. chapter 2.1).
3.1.2
Control via visa policy
Citizens of EU Member States do not need a visa to enter the Federal Republic of Germany,
whereas nationals from all other third countries principally and mandatorily must be in
possession of a visa. Decisions on visa regulations for short stays up to three months for
visiting purposes or for tourists is incumbent upon the Council of the European Union47,
whereas it is up to the Member States to regulate long-term sojourns. In accordance with the
Council decision, 38 of the third countries are currently exempt from the obligation of a threemonths-visa (Schengen visa) which opens access to all Schengen countries (“EU Positive
List”). The European regulations resulted in a number of changes for Germany during the
last years. Visa requirements were abolished for Bulgarian and Romanian citizens (2001 and
2002 respectively), whereas they were introduced for Colombian and Ecuadorian citizens
(2001 and 2003 respectively).48
In accordance with regulations of the Residence Act (Aufenthaltsgesetz) (§ 71 para. 2
AufenthG), the embassies and general consulates of the Federal Republic of Germany are
responsible for issuing visas. For that reason, the embassies and general consulates
constitute a supervisory body against illegal migration at a preliminary stage of the migration
process. Measures of control are oriented towards those who try to obtain a visa by providing
false information. In those cases, visas are used for purposes other than intended, for
example the application has been on grounds of a tourist visit, although, in fact, the applicant
plans to take up employment in Germany.49 Like this, illegal migration flows try to become
invisible by being hidden in legal migration flows (“embedded migration“) (Alt 2004a: 312f.).
Third country nationals, who enter Germany legally with a visa and overstay after the visa
has expired, or who take up employment although they are not in possession of a work
permit, are difficult to register. As no passport controls are carried out, it cannot be
ascertained if they have already left the country. In order to improve handling and controlling
of those cases, and of persons who entered Germany with a forged visa, the Central
Register of Foreign Nationals Act (AZR Gesetz) was modified by the Counter-Terrorism Act
in 2002. With this act becoming effective, the visa file was extended to a visa decision file.
Whereas previously only information on applications was registered, the visa decision file
now also includes information on issued and rejected visa (§ 29 AZRG) (Schmahl 2004:
47 EU Treaty (2001) Article 62 Point 2 Letter b No i.
48 Council Regulation (EC) No 539/2001 of 15 March 2001 listing the third countries whose nationals must be in
possession of visas when crossing the external borders and those whose nationals are exempt from that
requirement (OJ L 81/1 of 21 March 2001). Changed by Council Regulation (EG) No 2414/2001 of 7
December 2001 (OJ L 327 of 12 December 2001, p. 1f.) and Council Regulation (EG) No 453/2003 of 6
March 2003 (OJ L 69 of 13 March 2003, p. 10f.).
49 See footnote 3.
39
218). In accordance with the Counter-Terrorism Act, it is now also possible to register
characteristics on identity (biometric features, among others) (now § 49 para. 2 AufenthG).
Hence, visas in Germany have been issued with an integrated photograph of the applicant
since 2003. Regarding third country nationals, who are exempt from visa requirements, it can
often no longer be ascertained how long they have already been resident in the country, as
the passports are in most cases no longer stamped at the border crossing points (Cyrus
2004: 18; Vogel 2000: 401).
3.1.3
Passport controls at the borders and inland
As passport controls at internal frontiers have been abolished as part of the European
integration process, Europe is faced with fundamental changes concerning the practice of
passport controls and, associated with that, the combat of illegal immigration. On the one
hand, controls were harmonized and moved to the external borders where they extend
beyond the EU boundaries. In that context, the neighbouring third countries are included in
the controls (see below) or the passport controls are carried out when persons are leaving
the countries of origin, e.g. at airports (Samers 2004). On the other hand, passports are
checked inland, and, to an increasing extent, private agencies such as the personnel of
airlines are involved in passport and visa checks. By relocating the controls that way, the
state succeeds in increasing its effectiveness (Guiraudon 2002; 2001).
Germany carries out external border controls at the frontiers to Poland and the Czech
Republic (cf. chapter 3.1.1), at the border to Switzerland and at the sea ports and airports.50
The controls are carried out to prevent different forms of unauthorised or abusive entry to
Germany (cf. chapter 1.1). In cases of visa-free entry or entry with a visa, the border police is
authorised to reject the foreigner at the border, if there is well-founded suspicion that the
foreigner will enter Germany with another purpose than asserted (§ 15 para. 2 AufenthG). As
there is plenty of traffic across the borders and as there is a political interest in a smooth
communication with the eastern neighbouring countries, only random checks can be carried
out. Tighter controls have only a limited effect with regard to visa-free entries. Polish citizens,
for example, who have been rejected at the border by the Federal Border Police (BGS)
(before May 1, 2004) on the basis of the suspicion that they would take up illegal
employment, are reported to simply have crossed the border at the next border crossing
point (Cyrus 2004: 17).
The same applies to cases of illegal entry with fraud or altered documents, which are
numerically less relevant. This includes, for instance, stolen visa forms, counterfeited
passports preferably from Member States of the European Union, or documents which have
been relinquished by relatives living in Germany. In order to combat these phenomena,
within the bounds of possibility, the methods of document verification are improved Europewide (Sachverständigenrat 2004: 355; Cyrus 2004: 15-17). This includes the integration of
photographs and (in the near future) biometrical data in visa and passports documents, as
50 The new accession states have introduced the Schengen acquis on May 1, 2005. However, border checks at
the frontiers to Poland and the Czech Republic will only be abolished when the Council of Ministers for
Interior and Justice decides that both countries satisfy all Schengen standards, especially regarding external
border controls and an efficient Schengen Information System (SIS). In a referendum on June 5, 2005
Switzerland agreed to join the Schengen Agreement. In 2007, border checks are planned to be abolished at
the EU borders to Switzerland.
40
well as setting up an automatic network which links national and Europan databases, such
as the SIS (see below).
Since the 1990s, Germany, as the other European Member States, has invested large sums
in stepping up border controls and engaging new personnel for the Federal Border Police to
counteract illegal border crossings and criminal smuggling operations. On the one hand,
technical surveillance equipment has been improved, applying infrared equipment, night
vision devices, infrared cameras and CO2 detection devices (Minthe 2002b: 20; Dietrich
1998: 17). On the other hand, the Federal Border Police recruited more than 1,200 border
support personnel in the eastern federal states from the local population in the early 1990s;
by the end of the 1990s, this personnel had been permanently appointed in regular
employment (Dietrich 1998: 12f.). In total, the Federal Border Police deployed some 13,000
civil servants and employees at the external borders between 1999 and 2003
(Bundesministerium des Innern 2002a: 21; 2004b: 22).
The Federal Border Police Act has been amended several times during the last years. One
amendment included the definition of a 30 kilometre inland corridor as danger zone, in which
the Federal Border Police was authorised to carry out identity checks without concrete cause
or grounds for suspicion. These competences also include the right to enter suspicious
houses without authorisation by a judge, covered photo and video surveillance as well as the
application of measures of intelligence services and police informers (Dietrich 1998: 18). The
Federal Border Police is also authorised to carry out border checks at the EU internal
borders, dependent of status reports51 and independent of grounds for suspicion. These
controls are continued inland. However, the precondition for these checks inland is a formally
justified assumption that the person to be checked has recently crossed an external border.
With this regulation, the Federal Border Police has also been delegated authority for controls
at transit routes, railway stations and airports. In accordance with the Counter-Terrorism Act
of 2002, the Federal Border Police has also been authorised not only to stop and question
persons in checks, but also to check and verify their passports.
Beyond the territory close to borders, at transit routes and railway stations, the checks
independent of suspicion are carried out by police officers of the federal states as part of
their investigation work. Here, police officers are obligated, as a matter of principle, to ask
about the residence status as part of the identity checks. In some federal states, such as
Berlin for example, additional special control competences in specific security zones are
anchored in the general Security and Order Act (ASOG - Sicherheits- und Ordnungsgesetz).
In accordance with the Counter-Terrorism Act of 2002, the police have also been delegated
authorisation to carry out checks, independent of a special reason, as part of specific
searches for criminals (Stobbe 2004: 92; Alt 2003a: 446).
The assessment of these controls is not consistent. They are, compared to other countries,
much more extensive; however, some authors attribute a rather symbolic relevance to them
(Vogel 2003a: 177). To what extent these expanded controls are effective, as measured by
what they intend to achieve, is not easy to evaluate (Schönwälder et al. 2004: 72). On the
one hand, experience reports by the security authorities show that the tightened controls
resulted in a decrease of apprehensions and, consequently, of investigated offences
(Bundesministerium des Innern 2002a; 2003a; 2004b). On the other hand, unintended
51 Dependent of status reports (lagebildabhängig) means in this context that persons are checked who look or
behave like migrants and who use travel routes which might be also used by smugglers, according to findings
by the authorities (Stobbe 2004: 92).
41
consequences become apparent. When the possibilities to enter the country get more
difficult, migrants more frequently turn to the services of smugglers. Increasing demand
results in increasing prices for smuggling operations, with higher profits and more
attractiveness of this criminal field. But as the smugglers run a greater risk of detection, they
are more declined to use violence against the authorities, but also against the migrants
(Sachverständigenrat 2004: 355; Neske et al. 2004: 62; Cantzler 2004: 31; Zimmermann
2003: 182-188; Schatzer 2000: 43). The Federal Ministry of the Interior pointed out that
illegal migration cannot completely prevented, even if the border protection is optimised
(Sonntag-Wolgast 2000: 29). There is historical evidence that illegal migration will continue to
exist to a certain extent and that the temptation to migrate illegally correlates with restrictions
in accessing a country (Bade/Bommes 2004: 35; Bade 2001: 69).
3.1.4
Coordination of administration and information systems
The combat of illegal immigration and criminal smuggling operations is organised in close
cooperation between authorities and departments. Apart from stepping up border controls,
this also includes the pooling of information collected by the relevant authorities and
agencies on the federal level and of the federal states, within the possible legal bounds
(BMI/BMJ 2001: 337; Sonntag-Wolgast 2000: 22).
On the basis of this pooling of data by the respective authorities and by reviewing all
available information, the specifically required action is deduced. Thus all important agencies
(BGS [Federal Police since July 2005], BKA, BAMF, BND, the Federal Customs
Administration, Department for Financial Control of Illegal Employment and others)
cooperate in working groups or case-related task forces. In addition, the working committee
“Illegal migration/ Smuggling criminality” meets to exchange information, when required. At
the Federal Office of Criminal Investigation, the “Joint Analysis and Strategy Centre
Smuggling Criminality” (GASS) was established in 2004, which constitutes a new form of
cooperation between the Federal Police and the Federal Office of Criminal Investigation. The
centre also works on the basis of projects.52 Already in 1996, joint case-related investigation
teams (Ermittlungsgruppen) were created, in which the BGS, the police and public
prosecutors cooperate. In 2001, 17 out of 27 investigation teams worked on the combat of
smuggling criminality (Bundesministerium des Innern 2002a: 5). There are concerted
assignments which also involve the Federal Customs Administration, foreigners’ authorities
and the criminal police offices of the federal states. In the eastern federal states, for example,
the Federal Border Police and the police of the federal states jointly carry out patrols (Minthe
2002b: 20; Dietrich 1998: 22). In addition, municipal bodies (e.g. the Driver and Vehicle
Licensing Agencies, the Municipal Public Affairs Office), and sometimes private enterprises
(such as taxi drivers) are integrated in the cooperation locally (Dietrich 1998: 23; 2005: 67).53
Gathering information on the situation beyond the German national borders, the Federal
Intelligence Service (BND) compiles status reports on available information on smuggling
gangs, their organisational structure, names and used routes (Zimmermann 2003: 193-197;
Hanning 2000: 12). At several German airports the German-Dutch working group VerdiE
(Prevention of illegal entry) is operating, counselled by employees of various agencies as
52 The GASS was established by November 1, 2004. It pools the functions of the central offices of BKA and
BGS regarding smuggling criminality. In cross-departmental cooperation, it cooperates with the Department
for Financial Control of Illegal Employment (FKS).
53 In the 1990s the BGS had also set up telephone hotlines in the border regions to Poland and the Czech
Republic (Dietrich 1998: 19).
42
well as the airport operator and aviation enterprises (Bundesministerium des Innern 2002a:
4).
In view of the European External Borders Agency established on May 1, 2005, the “Centre
National Borders” (Zentrum Landgrenzen) has been set up in Berlin as a de-central office
since the end of 2002 (Bundesministerium des Innern 2004b: 4f.).
Pooling information is also realised via information systems. Among the systems located on
the European level, the Schengen Information System SIS is to be mentioned here first. In
addition, the system EURODAC has been operating since January 15, 2003, which facilitates
the comparison of fingerprints of asylum seekers and of third country nationals who entered
the country illegally. In this system, all asylum seekers and third country nationals, who
entered the country illegally and who are older than 14, are registered. The purpose of the
registration is to send the applicants, who have been apprehended as part of the
proceedings, back to those Member States, in which the asylum application was submitted in
the first place.54 At the moment, SIS II is developed on the European level, as well as an
additional Visa Information System (VIS) (cf. Bundesministerium des Innern 2002a: 14). Via
the BKA, there is a link to Europol and Interpol.
On the German level, the BGS (now Federal Police) runs several databases to facilitate the
investigation work, such as the Border File Documentation (Grenzaktennachweis (GAN)).
The former Bavarian Border Police developed a system to identify and analyse vehicles
(Fahrzeugidentifizierungs- und Auswertungssystem (FINAS)) which is operated by the
Bavarian Criminal Police Office and which can be accessed nation-wide. The Case File
Smugglers and Smuggled Persons (Falldatei Schleuser und Geschleuste (FDS)) which was
established in 1993, has been substituted by the file INPOL-Fall DOMESCH (Information
System by the Police – Case File Documents, Human Trafficking, Smuggling) in the
meantime. This is a jointly operated application which is located at the BKA, with the police of
the federal level and the federal states feeding in information (Dietrich 1998: 18; Cantzler
2004: 51f.). As a national counterpart to EURODAC, the BKA runs an automated fingerprint
identification system (Fingerabdruck-Identifizierungssystem (AFIS)); in this system the
fingerprints of all asylum seekers and of all persons who entered the country illegally are
registered, among others. With the first law modifying the Residence Act, a lost paper
database will be set up by October 1, 2005, located at the Federal Administration Office.
Registered in this database will be lost and found identification documents that belonged to
nationals of third countries requiring a visa and that were issued by foreign authorities. These
papers might be used to determine the identity or citizenship of a foreigner and thus
facilitating the implementation of repatriation later (§§ 49a, 49b AufenthG). At the Federal
Administration Office (until 2005) and, since 2005, at the Federal Office for Migration and
Refugees (BAMF) the Central Register for Foreigners is maintained. The foreign-resident
authorities, the BGS, the BKA and the police departments of the federal states have access
to this database. In this central database, the foreign-resident authorities register personal
information on all foreigners in Germany, who are officially registered or who are, as part of
the investigation procedures, officially searched by the police, who have been apprehended
54 In 2002, this regulation was transferred to the Foreigners Act in accordance with the Counter-Terrorism Act
(cf. chapter 1). Data on asylum seekers are saved for ten years, data on illegally resident third country
nationals, who entered across a Dublin border, are saved for two years. The number of apprehensions,
meaning apprehended, illegally resident foreigners, who don’t submit an asylum application in Germany, but
who are in an ongoing asylum procedure in another Member State or whose asylum application has been
rejected in another Member State, has been continuously on the increase since the introduction in early 2003
(2004: 2,394 cases).
43
or who have been repatriated. The catalogue of data registered in this database has been
gradually expanded, for example in 2002, information on issued and rejected visa has been
added (see above). As part of the asylum proceedings, the BAMF itself collects a wide range
of information on migration movements, travel routes, smuggling operations and visa fraud.
This information can be used for counteracting illegal migration in various respects. Since
1995, for example, the BAMF has compiled, in cooperation with the Head Office of the
Border Police, the BKA and the Bavarian Criminal Police Office, status reports on the
respective countries of origin that reflect migration movements. Information gathered in
asylum hearings, partly by specialised experts on travel routes, have been made anonymous
and then registered in a file since 1998; on request, this information is made available to all
relevant national and international authorities.
3.1.5
Bi- or multilateral agreements and cooperation with countries of origin and
transit
Apart from stepping up border controls and enhancing cooperation among all national
authorities, the governmental strategy of counteracting illegal migration also includes
transnational cooperation as well as displacement of border controls into the countries of
origin or transit.
Bilateral agreements on border control cooperation exist, on the one hand, with Schengen
countries (Denmark, the Netherlands, Belgium, France, Luxembourg, Austria). A
governmental agreement on the cooperation of police and border control authorities was
closed in 1995 with Poland as a third country (until April 2004); this agreement was replaced
by a new agreement in early 2002, which included extended possibilities of cooperation (this
became effective in 2003). A similar agreement was signed with the Czech Republic in 2000.
Another agreement exits with Switzerland (Bundesministerium des Innern 2002a: 15f.;
2003a: 12; 2004b: 16). In May 2005, Germany entered into a contract with the Netherlands,
Belgium, France, Luxembourg, Austria and Spain to intensify transnational cooperation; in
order to counteract illegal migration, this contract includes the assignment of document
counsellors and mutual assistance in repatriation proceedings.
At the borders, the BGS cooperates intensively with the border police of the neighbouring
countries. With the Polish border police, for example, joint patrols and border overflights are
carried out; in addition, joint offices have been set up in Pomellen, Frankfurt/Oder and
Görlitz, involving police and the customs administration, too. A similar arrangement has been
agreed with the Czech authorities. Furthermore, there are several agreements between the
police of the federal states and the neighbouring countries, for example on joint trainings of
searches and investigations and on exchanging experience and information (Hansen 2002:
85f.; Bundesministerium des Innern 2002a: 11f.; 2003a: 7-9; 2004b: 10-13, 16).
As part of the strategy to displace border controls into the countries of origin or transit, liaison
officers of the border police and document counsellors are dispatched to airports in countries
of origin or transit, for example. In 2003, German liaison officers of the BGS, the BKA and the
customs were working in the Schengen states and eleven other countries. In addition, more
than fifty document counsellors, who have been dispatched for a limited period of time, were
sent to various third country airports that are relevant focal points for migration flows, and to
road crossings in Ukraine (Bundesministerium des Innern 2004: 4, 9 22). The liaison officers
of the border police facilitate a quick and prompt exchange of information, whereas the
document counsellors primarily train the local personnel. The cooperation with the countries
44
of origin and transit is completed by technical support and financial assistance for the local
authorities, enhancing their capacity and willingness to effectively combat illegal migration
and to meet their repatriation obligations (cf. chapter 3.3) (Sachverständigenrat 2004: 355;
Vogel 2003: 399). Furthermore, the BAMF also employs liaison personnel in the legal and
consulate departments of selected German embassies.55 Among other activities, these
liaison officers collect specific target-oriented and realtime information on causes and routes
of migration flows, which can be useful in counteracting illegal migration. In addition, the
BAMF has dispatched liaison officers to the asylum and immigration authorities in France,
the United Kingdom, Italy and the Netherlands who primarily assist in clarification and
implementation of transfers in accordance with the Dublin proceedings56.
3.2
Measures of control inland
As illegality concerning the residence status most often occurs after legal or seemingly legal
entry, great importance is attached to identity checks inland. These comprise, on the one
hand, identity checks without concrete cause or grounds for suspicion, which are carried out
by the police. Apart from the data mentioned above (cf. chapter 3.1.4), the police can also
resort to their own searching and tracing database for these identity checks. In these
databases, the foreign-resident authorities feed in information on foreigners who did not
voluntarily comply with their obligation to leave the country and whose whereabouts on the
federal territory are unknown (§ 50 para. 7 AufenthG, § 66 AsylVfG) (Welte 2002: 57). Such
controls are, in part, controversially discussed in the debate on migration, criminality and
internal security, as there is a danger that they might be perceived as discriminating
treatment. The reason for this can be attributed to the fact that persons to be checked are
selected on the basis of their “foreign” looks. The problem of potential discrimination is on the
increase, as more and more Germans or EU citizens do not speak German without accent or
do not look central European (Sachverständigenrat 2004: 355; Cyrus/Vogel 2002: 266; Welte
2002: 56).
Rather than identity checks without concrete cause or grounds for suspicion, which are
carried out by the police, internal controls are much more characteristic for Germany; these
internal controls target the labour market and welfare benefits (Vogel 2000: 391). Virtually
every time a migrant gets in touch with the authorities, his or her residence status is checked.
This aims at apprehending undocumented migrants and repatriating them. This approach is
to ensure that the migrants do not receive welfare benefits and do not take up illegal
employment. The underlying logic is to complicate their sojourn to such an extent, that they
leave the country voluntarily and do not receive welfare benefits, without having paid
contributions (Stobbe 2004: 90, 97; Schönwälder et al. 2004: 72). One should bear in mind
though that a major part of these checks does not primarily focus on illegal resident migrants,
but rather constitutes general controls to enforce legal norms and protection provisions (cf.
chapter 3.2.1.2).
Regarding internal controls, direct and target-oriented checks, carried out at the workplace
for example, and indirect checks can be differentiated; the latter “coincidentally” occur as a
55 Those are the representations in Iran, Turkey, Kosovo, the Russian Federation and the Democratic Republic
of the Congo.
56 Council Regulation No 343/2003 of 18 February 2003 on establishing the criteria and mechanisms for
determining the Member State responsible for examining an asylum application lodged in one of the Member
States by a third country national („Dublin II“), (OJ L 50 of 25 February 2003, p. 1-10).
45
result of the obligation to forward information and the process of data verification. Controls on
the labour market comprise a combination of both types, whereas other areas (welfare
benefits, education, obligation to register) are primarily screened via indirect controls.
3.2.1
Controls on the labour market
3.2.1.1
Definition of illegal employment of foreigners
In principle, illegal employment and shadow economy are deemed harmful for the social
system, as they destroy jobs and cause revenue losses for the social security funds
(Bundesregierung 2000: 28; Bundesregierung 2005: 35). The participating stakeholders
(employers, principals, employees, service providers, craftsmen and customers) are
regarded as criminal offenders, threatened by sanctions (Cyrus 2004: 67). The federal
government and the bargaining parties consider illegal employment of foreigners a
considerable burden for the German labour market, as it is believed that, as a consequence,
German employees would lose their jobs because of dumping wages, and companies would
be disadvantaged in competition (Bundesregierung 2000: 45; Bundesregierung 2005: 10). In
accordance with §§ 284ff. SGB III (German Social Code) employment is considered illegal if
no work permit has been obtained before commencing employment. Consequently, illegal
employment of foreigners does not only affect illegally resident foreigners, but also those with
a legal residence status. At the same time, a visa-free residence becomes illegal, if illegal
employment is taken up (Cyrus 2004: 29; Bundesregierung 2000: 28f.).
3.2.1.2
Primary control mechanisms
Checks on the labour market are carried out on several levels, with data exchange as
overarching element. A quasi-legal employment, such as in the United States, is not possible
in Germany, as the employer mandatorily has to ask for the social security card and the
income tax card before hiring a person. If the person cannot provide a social security card,
the employer may apply for it. It is issued by the insurance company, without inquiries at the
foreign-resident authorities. A forged social security number (or that of another employed
person) would attract attention in the data verification process carried out by the health
insurance company. In such a case, the health insurance company would inform the local
office of the Federal Labour Agency, which, in turn, would approach the employer. The
income tax card is issued by the local registry office, which gets in touch with the foreignresident authorities beforehand in order to inquire whether (according to the Central Register
for Foreigners) the appropriate residence title with work permit has been obtained. 57 As a
consequence, registered employment by an illegally resident foreigner is not possible in
Germany. This means that illegal employment by migrants can only be detected by doing
checks at the workplaces. It should be pointed out though that these checks do not only
address illegally employed persons, but are also applied, to a large extent, in order to trace
the respective employers (Cyrus/Vogel 2002: 268).
Checks at the workplaces, which are also called external controls, have been carried out by
the labour offices and the head offices of the customs administration for a long time. In
densely populated areas, the labour offices have formed special task force groups, which,
57 Before the new Immigration Act became effective, the inquiry was made at the Federal Labour Agency, which
had a database on work permits (Vogel 2001: 332-334).
46
since 2000, have again been re-integrated in the normal labour administration though
(Hofherr 1999: 16-18; Cyrus/Vogel 2002: 259; Bundesregierung 2005: 43). Since 2004, the
Federal Customs Administration, under the auspices of the Department for Financial Control
of Illegal Employment at the regional finance office in Cologne, have the exclusive mandate
for this task; they are supported by other authorities, though.58 Both offices as well as the
assisting authorities had and have the right to enter the business premises and business
buildings of employers during office hours, in order to check the files on wages, registration
and comparable documents. If employees are contracted by a third party, the authorities are
authorised to carry out checks there, too. They are also authorised to check the particulars of
the employed persons (to date § 305 SGB III (German Social Code), for the customs now §§
3, 4 SchwarzArbG 2004). Since 1998, the officers of the head offices of the customs
administration have the same rights and duties as police officers, if they find reasons to
suspect an offence or misdemeanour in their investigation (Bundesregierung 2000: 40). This
facilitates the proceedings as previously, the labour inspectors had to call upon the police, if
necessary, while their checks were ongoing and certain suspicious facts emerged (Vogel
2001: 338).59
External controls like this are triggered as a result of own investigations of the labour offices
and the head offices of the customs administration, by findings of other authorities (police,
finance administration, social insurance agencies, public prosecutors, foreign-resident
authorities etc.), or on the basis of leads reported by the public (competitors, neighbours,
trade unions, regular employees) (Stobbe 2004: 101; Cyrus/Vogel 2002). If the illegal status
of an employee cannot be already ascertained on the basis of document checks as part of
the external control, it can be determined afterwards by verifying the data with the Central
Register of Foreign Nationals (§ 18 AZRG). Foreign employees who are in possession of a
work permit (e.g. in the case of illegal temporary work or contract workers), the data are
verified by comparing the actual salary paid by the companies with the social insurance
contributions reported to the social insurance agencies. If illegal foreign employees use
forged EU passports though, the identification process gets more difficult, as the AZR does
not contain information on work permits for EU citizens from the 15 old Member States.60
Assuming that the employee is an asylum seeker, more information can be obtained by
verifying and comparing the data with the fingerprint file AFIS at the BKA. In other cases, one
has to resort to an extensive document analysis or a time-intensive inquiry in the respective
EU Member States (Vogel 2001: 340; Stobbe 2004: 95). Meanwhile, a central control and
investigation database is located at the Department for Financial Control of Illegal
Employment (§ 16 SchwarzArbG 2004).
Data exchange and obligation for cooperation between various authorities are the central
elements of the German system in counteracting illegal employment. According to Vogel
(2001: 340-342) the system is characterised by fragmentation and organisational
58 For the first time, the Federal Labour Agency was explicitly commissioned, in accordance with para.4 of the
BillBG of December 15, 1981, to combat illegal employment. Pursuant to the SGB III, which became effective
after that time, it was no longer explicitly commissioned. However, the responsibility resulted from the former
amendment of §§ 304ff. and 405 SGB III. Pursuant to the Law on Changes of Prerequisites for Employment
Promotion in the Employment Promotion Act and pursuant to other acts (December 18, 1992), the Federal
Labour Agency was also authorised to carry out external controls in companies without concrete initial
suspicion (Hofherr 1999: 14-16).
59 The details of such external controls are not dealt with here, for more information cf. Cyrus/Vogel 2002. For a
critical assessment cf. also Vogel 2003b.
60 However, the citizens of the new EU accession states are registered, as for them a transitional period on the
labour market applies (§ 284 SGB III).
47
decentralisation (as a consequence of German federalism) on the one hand, and cooperation
and central databases as important features on the other hand. With fragmentation, the
organisational structure is depicted; in this structure, many public competences were
delegated to different intermediary organisations (e.g. social insurance agencies, Federal
Labour Agency etc.). The databases (local registries of foreigners, AZR, AFIS, statistics on
employees etc.) were developed in order to compensate for the consequences of
decentralisation and fragmentation. By pooling the tasks at the Federal Customs
Administration office and by introducing the “one-stop-governments“ system at the foreignresident authorities pursuant to the Immigration Act, this decentralisation has been reduced
significantly.
Due to the relatively large number of checks and the intensive cooperation and datatechnological interconnection, the frequency and intensity of checks on the German labour
market can be regarded as high, in comparison to other industrial countries. However, this
does not apply to all sectors. As opposed to building sites, which are a focal point of controls
due to their visibility, there are reasons for the fact that checks in private households are
rare, although a considerable number of illegal employees works there: 1) The protection of
private living space which is guaranteed by constitution, 2) the low efficiency of checks, as,
according to the inspection officers, only very few illegal employees can be detected in one
search, 3) providing evidence is complicated as to whether there is indeed an irregular
employment situation or whether it is “neighbourly help” , 4) the low visibility of the job behind
closed doors (Stobbe 2004: 103; Cyrus 2004: 31f.).61
Some authors argue that the combat of illegal employment has not always been totally
consistent. In certain constellations, for example during the expansion of the capital Berlin in
the 1990s, illegal employment has been tacitly approved (Stobbe 2004: 97). There has been
no systematic research yet as to whether the administrative organisational structures did
impact on the efficiency, and whether the provided means are in due proportion to the results
(Schönwälder et al. 2004: 39, 72).
3.2.1.3
Measures to reduce the demand for illegal employment
Measures to reduce the demand for illegal employment primarily tackle the problem by
tightening controls and increasing the degree of penalty for the respective offences. In
addition, the requirements for accessing the labour market have changed, which resulted in a
decline of illegal employment (cf. chapter 3.4.4).62
It is indeed apparent that the demand in society constitutes the background for a shadow
economy and that it will never totally cease to exist (cf. chapter 5); however, there are efforts
to reduce it as much as possible. The Law on the Combat of Illegal Employment, which was
passed at the end of 1981, constituted the original legal basis for the government’s
approach. The strategy applied by the federal government aimed at deterrence of employers
as well as employees. By enforcing threats for punishment and enforcement of penalties,
illegal employment would involve an incalculable risk for the employer which would not
balance higher profits. Illegitimate profits, for example, would be siphoned off by the state
61 By shifting the responsibilities to the customs in 2004, the households were to be checked more intensively.
Ensuing protests from all political parties prevented a modification of the legal basis though (Stobbe 2004:
103).
62 An analysis of the respective measures which are implemented on the local level and in the federal states
cannot be provided here due to restrictions of time and scope of this study.
48
and the employer would be faced with hard economic consequences, as the exclusion from
public tenders (Bundesregierung 2000). In 2004, the sanctions that were meanwhile
anchored in the SGB III (German Social Code), were partly transferred to the new Act on
Intensifying the Fight Against Illegal Employment and Ensuing Tax Evasion of July 23, 2004
(SchwarzArbG 2004).
Pursuant to the current framework for penalties (cf. §§ 10, 11 SchwarzArbG 2004; § 404
SGB III)63, employers are punished with a term of imprisonment to up to three years or a fine
when they employ foreigners without permission or without residence title, under clearly less
favourable conditions than German employees. In particularly severe cases, a minimum of
six months and a maximum of five years imprisonment are to be imposed. Beyond the less
favourable working and employment conditions, the employers are threatened with terms of
imprisonment to up to one year when they have premeditatedly employed foreigners in large
numbers (in case of more than five foreigners) or when they have perseveringly and
repeatedly continued to do so. In cases the employer acted with gross selfishness, terms of
imprisonment to up to three years can be imposed. In all these cases, the imposed fines can
amount to up to 500,000 Euro. Analogical frameworks for penalties apply to employers in the
construction business, pursuant to the Act on labour conditions in the case of transfrontier
services (Arbeitnehmerentsendegesetz) and the Act that regulates the professional
temporary employment (Arbeitnehmerüberlassungsgesetz) (§ 5 AEntG; §§ 15, 15a, 16
AÜG). Furthermore, in order to prevent that sub-contractors are employed for concealment,
liablilty is defined for the main entrepreneur. The laws focus on the employers, which can
also be seen from the fact that the fines for the foreign employee are much lower, amounting
to 5,000 Euro for working without work permit. However, in cases the employee
perseveringly and repeatedly continues to do so, he can also be sentenced to a term of
imprisonment to up to one year.
Already in 2000, the federal government pointed out that the fines have already been
increased to such an extent that employers would be severely affected. This can be
observed from the fact that objections against official notifications on fines are on the
increase. As the courts are inclined to allow those appeals and to reduce the fines, however,
the federal government also indicated that there is a problem with enforcing the laws
(Bundesregierung 2000: 42). The underlying problem is not as to whether the existing
framework of penalties and fines is tight enough, but rather how the offence can be
evidenced. Usually not sufficient evidence can be produced. Illegally employed persons, for
example, are mostly not willing to testify against their employers. In addition, a smoothly
coordinated cooperation between employers and illegally employed persons could be
observed more frequently during the last years. In many cases, precautions have been taken
before the arrest by instructing the illegally employed persons on their statements in case of
an arrest, as far as the illegally employed persons are informed on the background of their
employment at all. Another problem results from the fact that the public prosecutors only
come to know about the reports by the Federal Customs Administration (formerly by the
labour administrations) when the responsible foreign-resident authorities have already
authorised the repatriation proceedings for the illegally resident foreigner. Like this, those
foreigners are no longer in a position to appear as witness, as opposed to those who have a
residence title, but were employed without a work permit. As a consequence, the public
prosecutors rather advocate a conviction for violation of the Residence Act, the Asylum
63 For more information on the development of the framework of penalties since 1981 please cf. Hofherr 1999:
14-16.
49
Proceedings Act or the Tax Law and the Law on Documents. If suspicious facts can be
identified, already the investigating authorities open the legal proceedings for smuggling of
foreigners and organised crime against the contracting entrepreneurs and the customer
(Bundesregierung 2000: 33, 43; 2005: 39; Cyrus/Vogel 2002: 268; Cyrus 2004: 29;
Worthmann/Zühlke-Robinet 2003: 110-112).
Several authors agree (OECD 1999: 244; Martin/Miller 2000; Martin 2004b) that sanctions
against employers only have a very limited impact. The underlying reasons are that illegal
employment of foreigners brings about comparative cost advantages (cf. chapter 5) and that
it is getting increasingly difficult to monitor illegal employment due to a complicated structure
of subcontractors and sub-subcontractors. These assumptions are not based on a clearly
comprehensible result analysis on the impact of the hitherto existing measures though
(Schönwälder et al. 2004: 72f.).64
In order to improve the combat of clandestine work and illegal employment, the Federal
Ministry of Finance and the bargaining parties of the construction business have formed the
first nation-wide sector-specific action alliance in 2004. Among others, the objectives are to
raise the awareness for the negative impacts of illegal employment, to promote fair
competition and to ensure the payment of minimum wages. Apart from providing information
to the public, the flow of information between associations and FKS shall be improved and
similar alliances on the regional level shall be established (Bundesregierung 2005: 10f.).
3.2.2
Internal controls by the obligation to forward information
This type of checks constitutes another central element in the German control systems in the
detection of illegally resident foreigners. Quintessentially, these checks are a side-effect of
the normal cross-checks in the general administrative proceedings; they have been adjusted
for the purpose of internal controls. The system is primarily based on the direction to forward
information, which is anchored in § 87 AufenthG (formerly § 76 AuslG). Pursuant to this
paragraph, (only) public authorities are obligated to advise the foreign-resident authorities, on
request, on relevant information (in accordance with § 86 para. 1 AufenthG), such as the
actual or usual residence (§ 87 para. 1 AufenthG). However, if the authorities come to know
about a foreigner staying in the country who is not in the possession of the required
residence title and whose repatriation has been temporarily suspended (toleration
certificate), they are obligated to inform the responsible foreign-resident authorities
immediately (§ 87 para. 2 AufenthG). This information can also be reported to the police,
who in turn inform the foreign-resident authorities. Pursuant to the general administration
guidelines on the Foreigners Act (No 76.2.1.1), the responsible authorities are - apart from
the police - schools, universities, labour offices, youth and social welfare offices.65 As a
consequence, illegally resident migrants can assume that their illegal stay might be detected
as soon as they get in touch with public authorities and that this might result in detention or
repatriation. This is particularly relevant when the migrants apply for welfare benefits, access
the educational system or the housing market (see also marriages, chapter 1.4.2).66
64 For information on further measures that open up new opportunities for employment see chapter 3.4.4.
65 The remarks on the implementation of the Residence Act, which are preliminary, are formulated accordingly
(No 87.2.1.1).
66 At this point we will only deal with the control mechanism. For other consequences cf. chapter 3.4.2 and
3.4.3.
50
3.2.2.1
Controls regarding the access to social services
In this area, the obligation to forward information is a key element for claiming benefits in the
public health care system. If they cannot bear the costs for treatment in hospital, illegally
resident foreigners are entitled to refund of expenses by public health care pursuant to the
Asylum Seekers Benefits Act (Asylbewerberleistungsgesetz) (§ 4 in connection with § 1 para.
1 No 5 and 6 AsylbLG, see also chapter 3.4.2.1).67 In such cases, an application for refund
of expenses is submitted at the social welfare office in advance. In cases that require
immediate treatment the application can be submitted subsequently. According to the legal
expertise by Fodor (2001: 173-178), the administrative departments of (public) hospitals
have only a constricted obligation to forward information, as inquiries about the residence
status of their patients are not necessary in order to “perform their tasks” (§ 86 para. 1
AufenthG). The social welfare offices are obligated to identify the residence status and to
forward the result to the foreign-resident authorities.
The underlying objectives of this type of internal controls are, on the one hand, the exclusion
of illegally resident migrants from welfare benefits, as they have not paid contributions in a
system of a mutually supportive society. On the other hand, the aim is to detect the
respective person and to repatriate him or her (Stobbe 2004: 116). As there is a lack of
information that could be used as evidence, it remains unclear as to whether this factual
refusal of access to welfare benefits has a deterrent impact on illegally resident migrants
(Schönwälder et al. 2004: 73; rather critical Cornelius/Tsuda 2004: 42).
3.2.2.2
Controls regarding the access to education
Some federal states, such as Bavaria, require compulsory school attendance for children
without secure residence status, whereas other federal states have excluded them in their
school laws and leave it to the schools whether to admit them. Should these children be
registered at a public school, the control mechanism pursuant to § 87 para. 2 AufenthG is
applied. If during the registration process schools or supervisory school authorities come to
know about the lacking residence status, they are obligated to report this to the foreignresident authorities. Some federal states (e.g. Berlin) explicitly state that the obligation to
forward information only applies to those who decide upon the school admission. Should, for
example, a teacher come to know about the illegal residence status later, he is not obligated
to report the child (Cyrus 2004: 63). Referring to this, a legal expertise (Fodor 2001: 208-212)
argues, however, that heads of schools also exercise a “educational-pedagogical” profession
and therefore inquiries about the residence status are not necessary to perform their tasks.
They would only come to know about the illegal residence as part of the execution of their
tasks, which does not constitute sufficient grounds for the obligation to forward information.68
67 In many cases, there will be no membership in the compulsory health insurance fund as this requires a
residence title granting at least medium-term residence. A tourist visa is not sufficient for the registration.
Membership in the statutory accident insurance is also not applicable as the data of the Employers’ Liability
Insurance Association are used by the labour offices and the customs as part of the data exchange to detect
illegally resident migrants. Only illegally employed migrants in domestic service (childcare, care of elderly or
sick people, cleaners, housekeepers and gardeners) can obtain an accident insurance via the head of the
household who can have an all-in insurance that does not require the mentioning of names. In case medical
treatment is needed, the name must be given though, but it does not have to be forwarded to the authorities
(Stobbe 2004: 117-119).
68 This corresponds with the interpretation of the Preliminary Directions for the Administrative Procedures on
the Residence Act (No 87.1.2 and 87.2.0.3). Regarding the school authority’s obligation to forward
information cf. Storr et al. 2005: § 87 AufenthG marginal notes 3 and 8; Rausch 2005. The legal status of
51
Should the schools share this opinion, they have to consider other penal aspects when they
admit children though (Stobbe 2004: 133f.; see chapter 3.4.2.2).
3.2.2.3
Controls regarding the access to housing
If an illegally resident migrant wants to rent a flat, the control by the obligation to forward
information is linked to the compulsory registration in Germany. By law, the landlord is
obligated to cooperate with the registration authorities in enforcing the compulsory
registration. The landlord has to ensure that the tenant registers, which usually can be
confirmed by the tenant presenting his or her registration certificate. The control mechanism
via the landlord is not effective, however, if he does not insist on the presentation of the
tenant’s registration certificate, with or without knowledge about the tenant’s residence
status. Pursuant to the Law on Compulsory Registration, compulsory registration exists for
the total resident population in Germany. The person has to register at the local registry
office, independent of citizenship and residence status. The registered address is then filled
in the identification papers. As part of the registration, person-related data are collected,
which are, in cases of foreigners, forwarded to the foreign-resident authorities. For that
reason it is virtually impossible that an illegally resident migrant succeeds in registrating,
without attracting attention (Stobbe 2004: 126; Cremer 1998: 54; Schönwälder et al. 2004:
62). Compulsory registration also offers the opportunity to check under the registered
address of persons who formerly had a valid residence status whether they have duly left the
country, after their residence status had expired (Münz et al. 2001: 86).
3.3
Measures in the field of voluntary and forced return
In the field of return, one can differentiate between voluntary return and forced return, which
is carried out on the basis of programmes and bilateral agreements (but which is also
possible without). Among forced return are deportation (Abschiebung) and expulsion
(Zurückschiebung). The fact that the European Commission deals with the question of return
of illegally resident migrants (Europäische Kommission 2002) shows that the topic return and
resettlement of migrants will gain in importance in the future (Entenmann 2002: 2). In this
context, Germany has submitted several proposals on return policies (Europäische
Kommission 2003: 8-10; 2004: 10f.).
A new migration-political approach is the policy of voluntary return which is not regulated by
law with regard to the proceedings in Germany69. There have been similar policies in the
past, which addressed labour migrants (in Germany 1983), but now the target groups are
primarily rejected asylum seekers and illegally resident migrants. For this reason, this policy
represents an alternative to forced return (deportation - Abschiebung) (Mahnig/Giger 2000:
23; considered as prevention: Niederberger/Wichmann 2004). On the national level, the
report of the Independent Commission “Immigration” (2001: 150-159) dealt with this question
in more detail for the first time and called for more support for and clearer organisation of
return and resettlement.
residence can, for example, be relevant for the waiting period for school admission for asylum seekers. For
that reason the identification of the legal status of residence would be the task of the authority after all.
69 Pursuant to § 75 No 7 AufenthG, the Federal Office for Migration and Refugees is responsible for granting
the dispursement of funds which have been approved for voluntary return. In addition, the Federal Budget
Plan constitutes a certain legal basis which includes budget funds for voluntary return (REAG/GARP). Cf.
chapter 3.3.1.
52
3.3.1
Voluntary return
Leaving voluntarily means ending illegal stay. Whether the return really is voluntary,
considering the fact that the alternative would be deportation, is differently assessed by the
international and national organisations. Germany and the IOM support this view (cf.
Entenmann 2002: 11f.).70 This principle is based on the order to leave the country (§ 50
AufenthG) which is anchored in the Residence Act. Despite the obligation to leave
voluntarily, there is no right to receive support for the voluntarily return. A new regulation has
been included in the new Residence Act though, which offers support and counselling in
repatriation centres for executable exit-bound foreigners. These repatriation centres can be
established by the federal states to promote the willingness for voluntary return (§ 61 para. 2
AufenthG).
Since 1979, the return programme REAG (Reintegration and Emigration Programme for
Asylum-Seekers in Germany) has existed in Germany, which, on behalf of the Federal
Ministry of the Interior and the responsible ministries of the federal states, is operated by IOM
(Hemingway/Beckers 2003). REAG is a humanitarian support programme for asylum
seekers, rejected asylum seekers and refugees who refrain from continuing their asylum
proceedings. It was founded as a reaction to the increasing number of asylum seekers and is
designed to enhance the voluntary return or on-migration to third countries of persons who
actually do not want to return to their country of origin. Like this, expensive, time-consuming
and, if applicable, politically controversial deportations can be avoided (Mahnig/Giger 2000:
25).
The prerequisites for the participation in the REAG programme are, on the one hand, “lack of
means”, which means that there has to be an entitlement for benefits pursuant to the Asylum
Seekers Benefits Act (Asylbewerberleistungsgesetz) or the Federal Social Welfare Act
(Bundessozialhilfegesetz) or the Children and Youth Welfare Act (Kinder- und
Jugendhilfegesetz). In addition, the applicants must confirm their intention to leave Germany
permanently within the next three months. Furthermore, they must not have received other
support (with the exception of victims of forced prostitution and human trafficking) and must
not have received a legally binding order to be expelled from the Federal Republic of
Germany. Persons with an executable order for deportation are also excluded from the
REAG programme, in order to avoid that they wait until the very last moment to submit an
application. Should illegally resident migrants intend to participate in the programme, they
have to get in touch with the foreign-resident authorities before, in order to get a border
crossing certificate. As it is subject to administrative discretion whether this certificate is
issued or not, this group of migrants probably won’t take advantage of this offer
(Sachverständigenrat 2004: 356; Cyrus 2004: 74; IOM 2004: 155; cf. chapter 2). From the
programme funds, the costs for the return trip are covered and a flat sum of Euro 100 for
every leaving adult and of Euro 50 for every leaving child up to the age of twelve is paid.71
Additionally, the programme GARP (Government Assisted Repatriation Programme) has
existed since 1989, which is targeted on persons from migration-politically important
countries of origin and who pays them a sort of start-up funds for their resettlement. On the
70 According to the UNHCR voluntariness only exists if a person decides to return on his or her own free will.
For information on reasonable (zumutbar) voluntary return cf. Heinold 2003.
71 The return trip can be carried out by plane, train, bus or by car, in the latter case a lump sum for petrol is paid
(205 Euro, as of January 2005).
53
basis of current political developments and available budget funds it is decided which
countries qualify for the programme. At the moment (as of July 2005) a maximum sum of
Euro 600 to 1,500 is paid per family, depending on the ethnic group. This programme is not
open to illegally resident migrants though.
Between 1979 and 2003, some 546,000 persons participated in the REAG programme,
which makes it one of the most successful programmes in Europe (IOM 2004: 154). As a
consequence of the conflict on the Balkans, the assistance focused on the succession states
of the former Yugoslavia between 1999 and 2001. Since 2002 however, the orientation on
world-wide support has been resumed. This also involved an organisational re-structuring
process, including a transfer of the responsibility for the programme from the Federal Ministry
for Families to the Federal Ministry of the Interior. The programme was extended, together
with various special programmes72, and was standardised. Since then, illegally resident
migrants and victims of human trafficking also have the opportunity to participate.
Pursuant to the new Residence Act, the Federal Office for Migration and Refugees was
commissioned by the Federal Ministry of the Interior as the responsible authority for granting
the payments (§ 75 No 7). In this context, a central office for information brokering on return
migration (ZIRF) has been set up to provide much more detailed information to interested
persons (Moritz 2003). Complementing REAG, some federal states, districts and
municipalities offer additional financial support, for example Berlin and Hamburg (IOM 2004:
154-158; Entenmann 2002: 18).
3.3.2
Forced return
Although the Federal Government considers the return programmes a good instrument for
migration control, it also attends to assisting the federal states in their task to enforce orders
to leave the country. In order to facilitate the implementation of deportations, the federal
government cooperates with the countries of origin for a coordinated repatriation policy and
respective agreements (Mahnig/Giger 2000: 25). Readmission agreements have existed
since the 1950s. They are mutual agreements and they facilitate the transfer and
readmission of foreigners by regulating the technical details. They also regulate the informal
transfer as well as the formal acceptance at arrival for transit transport of persons under the
obligation to leave the country, who are not nationals of the contractual partners (third
country nationals and stateless persons) (Sieveking 1999: 104f.). With some states and for
particular cases, only arrangements on the proceedings are closed, apart from the
agreements according to international law. Those arrangements on the proceedings are
below the level of formal readmission agreements. Regarding the signature of readmission
agreements with countries of origin and transit, Germany is at the forefront within the EU. At
the moment, 28 readmission agreements on bilateral basis and two of the EU are effective.
This is complemented by three agreements on transit transport. Among these agreements, a
total of ten has been signed as recently as since 2000 (Niederberger/Wichmann 2004: 69;
Noll 1997: 431-445).73
However, this does not solve all the problems with repatriation. In 2000, the conference of
the ministers of the interior listed a number of problems incurred: lacking cooperation by the
72 Support programmes for elderly and sick people, financial and medical assistance in the country of origin,
educational and resettlement measures, which can also include the local population in the country of origin
(IOM 2004: 154).
73 As of December 2004, please find the current list at http://www.bmi.bund.de.
54
affected persons who do not disclose their identity and country of origin; destruction of
identification papers and indication that they come from states in which persons cannot be
repatriated; violent resistance so pilots refuse to carry out the transport; lacking cooperation
of the countries of origin, as they don’t issue travel documents or do not accept them. To
make sure that the contractual partners adhere at least to those obligations of readmission
that have been included in the readmission agreements, the federal government reserves the
right to sanction unjustified refusals by reducing the financial assistance. Further measures
include the use of smaller charter flights and the organisation of joint flights on the European
level by the BGS74, arranging collective appointments at the embassies to obtain travel
documents, setting up repatriation centres (§ 61 AufenthG) as well as improving the
communication with the German embassies and general consulates (IOM 2004: 152f.; cf.
also Niederberger/Wichmann 2004: 70).
3.4
Measures to improve the social situation of illegally resident migrants and
approaches for solutions
3.4.1
Legalisation campaigns
The German Foreigners Law does not provide for general regulations for legalisation
campaigns (also called regularisation), such as they are repeatedly carried out in Southern
European countries. Normally it is argued that the illegal residence should not be awarded in
the medium-term. In addition, these types of measures would undermine the controlling
effect of migration policy. In principle, experts refer to the legal-political culture in Germany,
where the principle of legality outranks the principle of opportunity. For that reason,
amnesties are very rarely considered, although they have in fact been carried out with regard
to tax laws (Sachverständigenrat 2004: 358-360). Schönwälder refers to the hardly known
fact that under the Brandt government such a sweeping legalisation campaign was seriously
considered (Schönwälder 2001: 502). She concludes that accordingly, the barriers of the
legal-political culture in Germany don’t have to be insurmountable (Schönwälder et al. 2004:
73).
It is questioned as to whether these campaigns are effective. There is general agreement
that legalisation campaigns improve the living situation of illegally resident persons. Apart
from humanitarian reasons, they can also constitute a pragmatic approach to reduce illegal
employment on the labour market (Sachverständigenrat 2004: 358f.). However, to achieve
this impact, measures that affect labour market access and clandestine work as a whole
should be considered, not only restricted to foreign illegal employees (OECD 2000: 66).
Whether legalisation is the appropriate means to reduce illegal immigration in the long run is
doubted in Germany, considering the experiences of other countries, where the expectation
of more legalisation campaigns turned out to be a pull factor for more illegal immigration
(Schönwälder et al. 2004: 75).
As opposed to Southern European countries, the legalisation issue was discussed in
Germany in view of rejected asylum seekers who cannot be deported, rather than in view of
the labour market (Kreienbrink 2004: 248-257). Although the toleration status factually
legalises the residence status in those cases, it is not a legalisation, even if it might be
74 Council decision of 29 April 2004 on the organisation of joint flights for removal from the territory of two or
more Member States of third-country nationals who are subjects of individual removal orders (OJ L 261
August 6, 2004, p. 28).
55
considered a preliminary stage to a possible authorisation of residence (Aufenthaltsbefugnis), pursuant to the former law (§ 30 AuslG). In theory, this might have been translated
into a secure residence permit (Aufenthaltsgenehmigung) after eight years (§ 35 AuslG), but
in practice the preferred procedure were so-called “chain tolerations” (Hailbronner 2000: 251253; on the current legal position cf. chapter 1.4.5). For humanitarian reasons, so-called
Regulations for Old Cases and Permission to Stay (Altfall- und Bleiberechtsregelungen) were
carried out under certain circumstances. According to the Federal Ministry of the Interior, a
total of ten arrangements of this kind have been carried out between 1999 and 2001, in
consultation with the federal states. Each arrangements was limited to numerically restricted
nationalities or status groups and was always linked to certain conditions. The applicant must
not have a record of offences and must not receive social benefits to support his livelihood
(Cyrus 2004: 74f.; Hailbronner 2000: 254-263).75 As opposed to the opinion of Cyrus (2004:
75), these measures differ considerably from campaigns in other countries, regardless of the
restriction to certain nationalities, as the applicants in Germany are in possession of the
toleration status and the authorities should therefore have registered them.
3.4.2
Potential access to social benefits for illegally resident migrants
3.4.2.1
Access to social services and health care
Independent of the residence status, migrants are entitled to certain welfare benefits, which
means that illegally resident migrants have, to a certain extent, social rights (Fodor 2001).
This applies to the entitlement to assistance in cases of emergency, which is not limited to
German nationals as a matter of principle (Schönwälder et al. 2004: 41). Illegally resident
migrants are entitled to medical care according to the Asylum Seekers Benefits Act which is
limited in comparison to the regular insurance coverage.76 The responsible social welfare
offices are obligated to cover the costs for certain services, which are defined in §§ 3 and 4
AsylbLG (cf. Cyrus 2004: 56). Basically, social benefits can also be applied for, but whether
there is an entitlement for benefits has to be reviewed in every single case (Schönwälder et
al. 2004: 41). This requires that the illegal residence is disclosed by the responsible social
welfare offices. Claims for pension funds, for child benefits or child-rearing allowances do not
exist for illegally resident migrants (Röseler/Vogel 1993: 26). The accident insurance at the
workplace also covers illegally employed persons, independent of their residence status,
which is particularly important for the construction business. In this case, the insurance
coverage does not depend on individual contribution payments, but is disbursed in cases of
accidents at work or occupational diseases (Röseler/Vogel 1992: 25). Pursuant to the Act on
Intensifying the Fight Against Illegal Employment and Ensuing Tax Evasion of July 23, 2004
(article 7) the statutory accidents insurance companies will have a right of recovery against
the respective employers.
Illegally resident migrants mostly refrain from claiming their above-mentioned rights, as they
fear the disclosure of their illegal residence as a consequence of the obligation to forward
information, pursuant to § 87 AufenthG (cf. chapter 3.2.2). In a legal expertise on behalf of
75 A systematic analysis of these measures has not been carried out yet.
76 This comprises the so-called basic services in accordance with § 3 AsylbLG and services in cases of illness,
pregnancy and childbirth in accordance with § 4 AsylbLG. Health care pursuant to the Asylum Seekers
Benefits Act is characterised by a reduced entitlement to services, compared to regular health care
insurance: treatments are only carried out in cases of acute sickness and pain. It is controversially discussed
as to whether the treatment of chronic diseases is covered by the Asylum Seekers Benefits Act (Müller 2004:
65).
56
the Archiepiscopal Chair in Berlin, Fodor (2001: 178) comes to the conclusion though that
only public authorities are subject to the obligation to forward information, and only if they
need the information on the residence status of a foreigner to “perform their tasks”. This does
neither apply to freely practicing doctors, nor to public hospitals, as in both cases the primary
tasks are to treat sick people (cf. also Alscher et al. 2001: 31). However, the regulations in
accordance with § 96 AufenthG have an impact, as they constitute a risk of punishability for
those persons who provide humanitarian assistance to illegally resident migrants (Sextro
2003: 8). Pursuant to § 96 AufenthG, it will incur a penalty if persons assist a foreigner in
entering the country illegally or if they instigate or support illegal stay. On the question as to
whether the services by doctors treating illegally resident migrants incur a penalty, for
example, Fodor (2001: 179f.) argues that this depends on whether a foreigner makes his
continued (illegal) stay dependent on the medical treatment or whether the doctor receives a
pecuniary advantage “for this” (§ 96 para. 1 No 1 AufenthG). Payment of the medical
treatment is not the point here – the payment would have to be solely for support of the
illegitimate residence. Furthermore the repeated act in favour of several foreigners is
punishable (§ 96 para. 1 Nr. 2 AufenthG).
Fodor (2001: 181) reaches the conclusion that it has to be decided in every individual case
as to whether medical assistance for illegally resident migrants incurs a penalty. In view of
churches and lobby associations, the explicit adoption of the discretionary clause on
exemption from punishments in case of humanitarian assistance from the European
Guideline on Assistance of 2002 would result in more legal certainty (cf. chapter 1.3.2).
The presented risks for providers of social services in health care for illegally resident
migrants touch on numerous issues that are not easy to solve. The dilemma originates in the
relation of the sovereignty right by the state, the human right for health, to life and physical
integrity and the question of how to distribute the costs for the administered treatment (Cyrus
2004: 47). Providers of medical services who treat illegally resident migrants run the risk of
penal or legal consequences for their employment. At the same time, doctors have to fulfil
the obligation of their profession by following their conscience, principles of medical ethics
and humanity (Bundesärztekammer 2004). In addition, cases of failure to render assistance
might result in penal consequences (Groß 2005: 12). The providers of medical services,
however, pose the question as to who pays for the medical treatments. This, in turn, leads to
the obligation to forward information, if the social welfare offices are contacted (cf. chapter
4.1). The only public authorities that offer anonymous counselling and examinations and that
cover the costs for treatments in hospitals, in selected cases, are the municipal health
offices. However, this is only possible to prevent diseases that might result in epidemics,
such as tuberculosis, HIV or hepatitis, and only applies to individuals who don’t have health
insurance or cannot pay for the costs (Groß 2005: 16). As conclusion it can be stated that the
medical care of illegally resident migrants has a predominantly charitable character and that
it depends on the commitment of individual persons or charitable organisations
(Arbeitsgruppe “Armut und Gesundheit” 2001: 9; cf. chapter 4.1.4).
3.4.2.2
Access to institutions of education
There is only very few well-founded information on the organisation of school attendance of
children without a legal residence status. This also applies to the quantitative proportions of
57
those children and young people (Schönwälder et al. 2004: 66f).77 According to Fodor (2001:
182), there is considerable legal uncertainty among parents, headmasters and school
authorities concerning the question as to whether illegally resident children may or must
attend school or not. As the education systems are under the responsibility of the federal
states, there is no nation-wide regulation. Whereas all federal states admit children and
youth the right to attend school, in some federal states illegally resident children and children
of asylum seekers and war refugees are exempt from the general compulsory school
attendance, under certain conditions (Stobbe 2004: 133). Thus, compulsory school
attendance is either linked to the foreigner’s place of domicile or main domicile or the “usual
residence”. To determine the usual residence, indicators such as the positive forecast of the
future length of stay, the residence status and the degree of consolidation of the stay by
societal, familial and vocational relations are used, apart from the the previous length of
stay78. These indicators vary in the respective federal states. Rausch (2005) argues that the
link of compulsory education to usual residence and a positive forecast of the future length of
residence offers a problem as a forecast of the future stay of illegal resident families is not
possible.
In international human rights instruments concerning the right and the obligation to attend
school, there is a differentiation between the attendance of primary schools, on the one
hand, and the attendance of secondary schools, on the other hand. Article 13 of the
International Covenant on Economic, Social and Cultural Rights (ICESCR) und article 28 of
the UN Convention on the Rights of the Child (CRC) provide for compulsory primary school
attendance for all children, which has to be freely available and accessible, and the right to
attend secondary schools. So far, the rights anchored in ICESCR and the CRC have not
been categorised as individually enforceable, but rather as an obligation by the states (cf.
chapter 1.2).79 Additionally, on signing the CRC, the federal government has added some
explanatory remarks to the effect that, with regard to the rights and duties, Germans and
foreigners as well as persons with or without residence status can be differentiated (Alscher
u.a. 2001: 44, cf. also chapter 1.2). The differentiation between the right and the obligation to
school attendance is of practical relevance, as the right without the obligation to school
attendance puts the responsibility on individual schools, whether they admit illegally resident
children and youths or not (Stobbe 2004: 133).
Assertion of the right to attend school might result in the disclosure of the illegal residence of
a child and its parents (Schönwälder et al. 2004: 66). In order to avoid that risk, parents of
illegally resident children usually don’t enrol their children in schools (Cyrus 2004: 63).
Whether public schools are subject to the obligation to forward information pursuant to § 87
para. 1 and 2 AufenthG varies from city to city and federal state to federal state which results
in a differing practice of forwarding information (Schönwälder et al. 2004: 66f.). Whereas the
Ministry of the Interior of North Rhine-Westphalia categorizes school authorities and schools
as those public authorities which are obligated to “actively” report the lacking residence
status of a child to the responsible foreign-resident authorities, in accordance with § 87 para.
2 AufenthG, the city of Freiburg, for example, argues that a child’s residence status is not the
77 As part of a qualitative-empirical study on illegally resident persons in Munich, Anderson (2003) talked to
people who are in touch with illegally resident migrants. These interviewees estimated that several hundred
children without legal residence status live in the city of Munich (Anderson 2003: 12, 74).
78 Usually a minimum length of stay of several months is assumed (Rausch 2005).
79 These obligate the contractual state “to take steps, to the maximum of its available resources, with a view to
achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate
means, including particularly the adoption of legislative measures” (Article 2 para.1 ICESCR).
58
type of information a school needs to perform its tasks (Uihlein 2003). This legal conception
is supported by Fodor (2001: 208-212) (cf. chapter 3.2.2.3). However, the punishability of a
headmaster who knowingly admits a child without residence title at his school is not
excluded. The decisive aspect in determining whether a penalty is incurred pursuant to § 96
AufenthG is as to whether the further stay of the child without residence title is dependent on
the possibility of school attendance, and whether the headmaster acted in several cases or in
favour of several foreigners, for example if the siblings are also enrolled in school (Fodor
2001: 213f.). Apart from the differing relevance of the obligation to forward information and
the risk of punishability for the headmaster, the organisation of school attendance of illegally
resident children and youth is also complicated by the lacking accident insurance coverage
(Rausch 2005). Rausch reaches therefore the conclusion that the fact that school attendance
of illegally resident children is factually not possible, constitutes a violation of the basic right
to elementary school education. For this reason, the constitutional guarantee of a humane
life is not sufficiently accommodated.
3.4.2.3
Strategies on the local level
There are indicators that there is at least a “mental willingness” to exhaust the scope of
possible options for facilitating humanitarian help for illegally resident migrants, after the
authorities of the local level have been sensitized for the topic “illegality”. Initiatives by the
cities of Freiburg and Munich have particularly contributed to this process. As an important
stimulus for the discussion in Munich, Anderson (2005: 184) names the public relations work
by grassroots organisations, health professionals and volunteers who directed the public’s
attention to the precarious living situation of illegal migrants in the city. In this context it
turned out that there was hardly any information available on the living situation of illegally
resident migrants. This prompted the municipal council of the city of Munich in May 2003 to
commission a study on illegality of residence in the Bavarian capital. As part of this study, the
administrative range of options and scope of discretion on the local level were to be
investigated. The recommendations resulting from this study concentrate on the fields “health
care”, “school”, “work and employment”, “police”, “foreign-resident authorities, registry office
and refugee office” and “ways out of illegality”. The implementation is carried out by
cooperation of the municipal departments and various other political actors on the local level
(Anderson 2003: 98ff.). The implementation was supported by the fact that the municipal
council obligated the departments of the municipal administration to translate the
recommendations within the scope of their possibilities. One central aspect is to investigate
as to whether funds could be provided on the local level to finance the out-patient and inpatient medical treatment of persons without health insurance. According to Anderson
(2005), the actual discourse on “illegal residency” and the fact that this process is also
supported by the local administration has resulted in more openness in dealing with illegally
resident migrants in the city. This can be gathered from the fact, for example, that the
Medical Association of Munich is more supportive to doctors who treat illegally resident
migrants.
In the city of Freiburg im Breisgau there is also an ongoing concerted process of identifying
the local administration’s range of options in dealing with illegally resident migrants. The
process was ignited by a hearing organised by the city of Freiburg, gathering information on
illegally resident migrants within the city and in the surrounding district in April 2003. The
main focus was on problems of illegal residency in connection with school enrolment of
children, health care and accommodation in emergency situations. Increasing the awareness
59
of illegally resident migrants in the city, the examples of Freiburg and Munich have made a
contribution to initiate discussions about illegally resident migrants in other cities.
Commissioned by the city council, the Intercultural Office of the city of Darmstadt is currently
compiling recommendations on how to handle illegally resident migrants in accordance with
the legal regulations. The focus is on questions of health care and school attendance of
illegally resident children and youth80. Referring to the situation in Munich, Anderson (2005:
193) calls it a qualitatively new step that the Municipal Public Affairs Office actively supports
social workers and counsellors and distributes reliable information – in individual cases
anonymously.
3.4.3
Access to the labour market
Illegally resident migrants in Germany have no possibility of taking up regular employment
subject to income tax (cf. chapter 3.2.1.2). For this reason, illegal migrants often have to
resort to a job in the shadow economy to earn a living, i.e. that area of the labour market
where neither taxes nor social insurance contributions are paid (Röseler/Vogel 1993: 24; cf.
chapter 4.2).
The transition between regular, temporarily limited employment of foreign nationals and
illegal forms of employment can be smooth. It is the case, for instance, if the payment for the
job is below the German standard wage or if regulations of industrial law are violated.
Violations of the regulations have been observed regarding the employment of contractual
and seasonal workers (Bundesregierung 2000; 2005), for instance if the employment of
formerly legal employees was continued after their permitted employment expired, or if they
carried out other jobs beside the permitted one (Schönwälder et al. 2004: 51). Knowing
potential employers from previous legal employment and therefore gaining access to the
labour market can facilitate an illegal working stay (Lederer/Nickel 1997: 28). On the other
hand, the creation of temporarily limited employment opportunities for third country nationals
can result in the legalisation of previously illegal employment.
Shortly after the adoption of the recruitment stop in 1973, various entry channels for
temporarily limited labour migration to Germany were introduced. The restrictions of the
recruitment stop for foreign labour were therefore partly eased. At first, a catalogue with
exceptions for entry and stay of foreign labour applied, which was replaced by the so-called
Directive on Exceptions to the Ban on Recruiting Foreign Labour (ASAVAnwerbestoppausnahmeverordnung) and the Directive on Working Stays (AAV Arbeitsaufenthalteverordnung) in 1991. This, in turn, was replaced by the Immigration Act of
January 1, 2005 with the Directive on Employment (Beschäftigungsverordnung). During the
1990s, this comprised the introduction of various (project-related) programmes in the
construction business, programmes for seasonal workers in agriculture, in construction
business and in the catering service, and - in regions close to the border (up to 50 km) programmes for commuting labour from Poland and the Czech Republic, various vocational
training programmes for Eastern Europeans as well as a programme for Yugoslavian nurses
(Martin 2004a: 239f.; Alt/Cyrus 2002: 151). At the moment, the numerically most relevant
form of temporarily limited labour migration to Germany is contractual and seasonal labour.
80 Information on current developments on the local level with regard to dealing with illegality of residence could
be gathered in interviews with Mr Stein of the municipal administration of Freiburg and Mr Otman, the director
of the Intercultural Office of the city of Darmstadt in July/August 2005. For information on the city of Bonn see
von Schlichting 2003: 44-46.
60
By closing bilateral agreements with some Central and Eastern European countries and – in
case of contractual workers – with Turkey, residence and working possibilities for contractual
and seasonal labour were created. In part, these agreements were signed with the purpose
of attenuating the labour shortage in Germany. At the same time, the creation of the option of
seasonal work made illegal employment for Polish migrants (before 2004) significantly less
attractive, for example (Schönwälder et al. 2004: 51; Dietz 2004: 111).
In the area of domestic service, gates of entry were opened at times, too (Rerrich 2002). At
the end of 2001, for example, the Directive on Exceptions to the Ban on Recruiting Foreign
Labour until December 31, 2002 was endorsed and included domestic staff from several of
the former EU accession states, who could be employed for one to three years. As this
domestic staff would also carry out so-called “supplementing nursing” in the household, the
“Green Card” for the (50,000 estimated) foreign nurses without social insurance was
discussed, too. Due to the EU enlargement, this programme was not continued though.
Another measure to reduce the attractiveness of employment of illegally resident migrants is
the possibility for the employer to set off the expenses for the domestic service against tax
liability. By conceding a relief for the taxable income (§ 18 para. 4 EstG), the cost difference
between legal and illegal employment is to be reduced. Despite these measures to reduce
the attractiveness, it is assumed that a significant number of domestic service will continue to
work illegally. The crucial factors are low wages and obstacles in legal employment that will
continue to exist (Stobbe 2004: 99).
For nationals of those states that joined the European Union on May 1, 2004 a transition
period of two years applies for the time being. During that period, the access to the German
labour market is restricted. To take up employment in Germany during that period a work
permit-EU pursuant to § 284 SBG III is required (Bundesagentur für Arbeit 2005: 20). Since
May 1, 2004, the provision of services on the basis of free movement in accordance with
Community law is unrestricted for all economic sectors and also applies to the nationals of
the new accession states. Transitions to illegal forms of employment can occur if persons
declared as “self-employed” are indeed working as employees. The same applies to
transnational provision of services across borders in the areas of the construction business
and related economic sectors.
61
4
Living situation and employment of illegally resident migrants
The scope of action of illegally resident migrants is structured by internal controls,
determining the access to the labour market and to welfare benefits (Brochmann 1999: 22).
In order to cope with everyday problems of a life in illegality, migrants notably depend on
support in the receiving society. This support can be provided through social networks.
Networks might either already exist as a result of historical migration flows between the
region of origin and the receiving country, or they might be established during the illegal stay
in the receiving country. As example for the latter, the relationship between employees and
employers in Germany can be mentioned (Stobbe 2004: 41). For that reason, migrants who
previously had a legal status and whose stay is now illegal or who already resided in
Germany in the past, are in a more favourable situation than newly arriving migrants without
knowledge about the country of destination and without social contacts (Anderson 2003: 30).
Support of illegally resident migrants in the country might take different shapes. Cyrus (2004:
28f.) distinguishes between complementary, commercial and criminal-exploitative support of
illegally resident migrants. Complementary support is not linked to financial benefits for one
party and is based on mutual support; it mostly benefits family dependents and members of
the same ethnic, political, religious or ideological group. This form of support might develop
into commercial forms of support, for example in the case of commercial provision of housing
or the “hiring” of illegally resident employees. Criminal-exploitative forms of “support” occur if
agreements are not adhered to or if the wage for completed work is not paid. The transition
between gratuitous and commercial forms of support can be smooth and for that reason the
function of social networks for the living situation of illegally resident migrants is ambivalently
assessed (Anderson 2003: 31; Stobbe 2004: 43). In some cases, there is a link between
personal support networks and institutionalised non-governmental organisations providing
services for illegally resident migrants. As an example the bureaus for medical refugee aid
can be mentioned which are represented in numerous cities and which sometimes use
personal contacts to arrange a doctor for illegally resident migrants.
Apart from social networks and offers by assisting organisations, the scope of action of
illegally resident migrants is determined by individual resources. Schönwälder et al. (2004:
61) point out in this context that it might be misleading to perceive people in illegality mainly
as victims: “In this case this might result into in an underestimation of migrants as actors,
who actively exhaust opportunities to improve their living situation by using their imagination
and flexibility to adapt to situations.” [own translation].
4.1
Living situation of illegally resident migrants
4.1.1
Impacts of controls
As a consequence of internal controls, the access to social resources is factually very
restricted, despite partially existing legitimate claims (cf. chapter 3.4.2.1, 3.4.2.2). For that
reason, illegally resident migrants bear a greater risk to find themselves in an emergency
situation, although they are not necessarily people in need per se (Cyrus 2004: 34, Gómez
Schlaikier 2005: 97, Schönwälder et al. 2004: 69). In addition, as they fear disclosure of their
status and the resulting consequences in accordance with the foreign-resident law as part of
police checks or contacts with the authorities, illegally resident migrants try not to attract
attention in everyday life. This refers to their individual behaviour and appearance as well as
to the habit to stay away from places where police checks might occur. Some of the
interviewees of a qualitative-empirical study in Munich stated that they avoid public places in
62
the city and only leave their flat to go to work (Anderson 2003: 40f.). The residence status of
persons who differ from the majority population due to the colour of their skin and their
accent is more likely to be checked by the police in checks that are not based on grounds of
suspicion (cf. chapter 3.2). The probability to be checked also depends on a person’s age,
the previous time of residence in the country, the knowledge of local customs and traditions
and, combined to that, the ability to blend in. Stobbe (2004: 48) points out that illegally
resident migrant children of school age are more affected by internal controls in the
education system, whereas illegally resident elderly migrants are more likely to be checked in
the health care system. For that reason, the age groups in between can live “without
attracting so much attention”.
To what extent the fear of disclosure influences the life of illegally resident migrants depends
on the background of the migrants, the situation in the country of origin and the geographical
distance to Germany. Thus, refugees whose illegal stay is disclosed might fear more serious
consequences in case they get deported to the country of origin as it is the case for illegally
resident migrants from Eastern European countries who don’t face a threat in their country of
origin and who can, in comparison, more easily enter Germany (again) (Schönwälder et al.
2004: 61).
4.1.2
Family-related situations
Networks of family relations in the receiving country contribute to the emergence and
perseverance of illegal stay. They can positively influence other persons’ decisions to
migrate and can thus constitute the starting point for chain migration. Gómez Schlaikier
(2005: 97), for example, describes the establishment of a network of Ecuadorian domestic
staff in Hamburg as a consequence of the individual decision to migrate by one “female
pioneer” who triggered the migration of other family members to Hamburg. The resulting
situation is characterized as “settling down away from home”: The fear of checks and
disclosure of the lacking residence status and the need for assistance in emergencies - at
the doctor’s, when looking for a job or when taking care of children or enrolling them in
school - results in the withdrawal into the ethnic community and in family-related networks. In
some cases this even leads to illegal family reunion for the purpose of childcare, which also
contributes to make the network permanent.
Some authors point at the specific difficulties in connection with illegal stays of children (cf.
Alt 1999: 215-221, Anderson 2003: 73-77, Stobbe 2004: 135f.). Apart from the problematic
fields mentioned below, this concerns childcare during working hours, securing the livelihood
for the family, acquisition of language and contacts to other children. These difficulties are
partly attenuated as assistance by friends and families is provided. Thus, children are often
entrusted in the care of relatives in the country of origin. A problematic situation remains for
families or single parents who do not have the possibility to send the child to the country of
origin or who have nobody who can take proper care of them there (Cyrus 2004: 27; von
Schlichting 2003: 82f.). Recapitulating the facts, Alt ascertains (2003a: 216-221) that only
four groups of illegally resident migrants venture to live in Germany with children
undocumentedly: “overstayers” who did not reckon that their stay would become illegal,
migrants with a long-term perspective of residence due to their history as refugees, illegally
resident migrants with relatives in Germany who have a secure residence status, and finally
parents of children that are still babies.
63
It should be mentioned that a potential for illegal migration might emerge as a result of
discrepancies between the German regulations for family reunion and the wishes of migrant
families resulting from a different family concept.81
4.1.3
School attendance
Due to the inconsistent assessment as to whether schools have an obligation to forward
information, the decision of admitting illegally resident children or not is left to the individual
schools in many cases. The individual school decides to what extent it considers the
obligation to forward information relevant and whether it accepts the risk of punishability due
to abetting (cf. chapter 3.2.2.2 and 3.4.2.2). Furthermore, another problem that arises for
schools that are willing to admit those children is the question of insurance coverage of
illegally resident children, the responsibility in cases of accidents and the unsettled issue of
who covers the costs for teaching material and extracurricular activities. In this context, Alt
(2003a: 216f.) points at differences between the two research locations that he has selected
for his empirical study, Leipzig and Munich: Whereas in Munich there are established
networks and aid organisations that can help the illegally resident migrants to find a place in
a kindergarten or school, in Leipzig there are only very few contacts between illegally
resident migrants on the one hand and migrants who have been living there for a longer time
as well as local aid organisations on the other hand. By way of explanation it is stated that
illegality of residence is a relatively recent phenomenon in Leipzig.
There are indications that the problem of schooling and education for illegally resident
children gets worse when those children get older. Whereas education and childcare at
preschool age can usually be organised by way of finding a place in a (private) kindergarten
or within the personal network, parents with children who have reached school age are
confronted with the question as to whether they risk enrolment at a public school or if, in case
sufficient financial resources are available, they rather enrol the child at a private school
(Anderson 2003: 75). In most cases children stay at home where partially a private tuition
can be organised. According to Anderson (2003: 75) and Alscher et al. (2001: 45) it may be
practically impossible that a child without residence title continues its education at a
secondary school, due to the required registration regulations. Regarding school attendance,
illegally resident pupils are also faced with the question of documentation of their school
performance, for example if they are admitted to attend school, but no leaving certificate can
be issued. This has a negative impact on the child’s future school career.
4.1.4
The health situation
Regarding the connection between migration, health and disease it has been ascertained
that migration effects that are harmful to health are apparently mostly artefacts; risk
constellations, however, that come along with the current living situation of migrants in the
81 The fact that the topic family reunion is relevant for illegally resident migrants in Germany can be seen from
the results of the survey by Caritas of 1995 in which counselling bureaus for refugees and foreign employees
and other organisations providing assistance were interviewed. Among the 210 interviewed organisations
which were in touch with illegally resident migrants 87 reported that the target group consulted them on
questions of family reunion as well as questions on school attendance of children (Schäfers 1995: 38).
Findings resulting from surveys like this, however, might contain a methodological problem as in many cases
illegally resident migrants only then get in touch with the respective organisations if they need assistance.
Like this, only one side of a multi-layered phenomenon might possibly become apparent which might also
contain aspects “without problems”, as opposed to its perception (Elwert 2002: 8).
64
receiving country, are real (Wiedl/Marschalck 2001: 17). For illegally resident migrants health
risks occur regarding their working and living conditions and their insecure perspective of
residence. The employment situation of illegally resident migrants is characterised by a high
degree of adaptability regarding the type of employment and the working hours; it can be
physically demanding or dangerous, as occupational health and safety regulations usually
cannot be enforced (cf. chapter 4.2). Hofer (1993) and Anderson (2003) report on cases of
illegally resident migrants who continued to work despite being sick as they feared to lose
their job; like this, diseases were neglected and got worse. In addition, housing conditions
are often crowded, resulting in few recreational possibilities and hardly any privacy. Health
risks also result from the pressure of not attracting attention in public and the requirement to
blend in to avoid being checked. The mental strain connected with this might lead to
psychosomatic disorders. Albeit illegally resident migrants are mostly younger and therefore
healthier persons of working age, the illegal stay is connected with a higher risk of disease,
for the various reasons mentioned above. To make matters worse, the lacking health
insurance coverage of illegally resident migrants in many cases entails the neglect of
preventive medical examinations (Anderson 2003: 40f.; Münz et al. 2001: 83; Hofer 1993:
118).
Out of concern that the lacking residence title is disclosed, illegally resident migrants prefer
the following options in case of disease or emergency: if they have less serious ailments they
try to treat them themselves or they apply traditional methods of treatment. In some cases,
they manage to organise medical treatment by a doctor who speaks their mother tongue via
their personal network. Another option is to “borrow” the health insurance card of an
acquainted, legally resident person. Migrants who are regularly commuting between the
country of origin and the receiving country and who are covered by health insurance in their
country of origin, the situation in case of illness is less dramatic as they can receive in-patient
or out-patient medical treatment in the country of origin. Illegally resident migrants, however,
who migrated from more distant countries and who have no contacts to medical professional
via their network, have to rely on assistance by aid organisations (Stobbe 2004: 122).82
Medical care for almost the total population in Germany is organised via the public health
care system. For that reason, there are hardly any alternative structures or institutions that
might provide medical treatment to illegally resident migrants and other persons without
health insurance (Stobbe 2004). One exception constitute the bureaus of the medical
refugee aid that are represented in many cities. These were established after the Asylum
Seekers Benefits Act (Asylbewerberleistungsgesetz) became effective in 1993, stipulating
limited entitlement to medical treatment for asylum seekers and refugees. Apart from this
target group, the services provided by the bureaus also address persons without health
insurance. As part of this service, the bureaus refer migrants to doctors and hospitals that
are willing to treat them inexpensively or free of charge (Alscher et al. 2001: 36; Alt 2003a:
159.; Anderson 2003: 34-37, Fodor 2001: 180). One example for a network in the churchbound context is the “Malteser Migranten Medizin” of the Malteser Hilfsdiensts e.V. in Berlin
and Cologne which was founded in February 2001 (Malteser Hilfsdienst e.V. 2004; Franz
2004). The above-mentioned initiatives have the objective that not only “substitute medicine”
is offered to illegally resident migrants, but rather that adequate treatment can be provided
for the affected persons by involving a network of participating doctors (Müller 2004: 70).
82 Alscher et al. (2001: 36) report that often illegally resident migrants are not informed about offers by nongovernmental organisations that are addressed to illegally resident migrants or that in many cases the offered
assistance is not enlisted for fear of detection or deportation.
65
According to Gavranidou and Lindert (2003: 146), these solutions are ultimately temporary
solutions which cannot compensate for the lacking access to the public health care system
on a continuing basis. The capacities of non-governmental networks reach their limits, if, for
example, cost-intensive dental treatments, further treatments by medical experts or in-patient
treatments are required which might be necessary in case of infections, chronic or psychic
diseases (Monzel 1999, 37f.; Arbeitsgruppe „Armut und Gesundheit“ 2001: 8). As a
consequence, there is the danger that diseases and injuries are treated too late which results
in a risk for the victims as well as for the general public, e.g. if contagious diseases are
spread (Münz et al. 2001: 83-85). Ensuring minimum social standards for illegally resident
migrants and searching for solutions concerning their medical treatment is therefore
considered an urgent task for policy-makers by churches and charitable organisations (e.g.
Deutsche Bischofskonferenz 2001: 51f.).
4.1.5
Housing conditions
As a consequence of the compulsory registration, which is required to rent accommodation,
illegally resident migrants usually cannot appear as the main tenant (cf. chapter 3.2.2.3).
Looking for a flat by using the most common methods, such as approaching an
accommodation broker or via newspaper advertisements, is not a realistic option for them. In
addition, illegally resident migrants are not in a position to present an income certificate
issued by their employer, even if they are in permanent employment. As confirmed by
empirical studies, they therefore have to rely on niches of the housing market. The housing
situation is partly characterised by large numbers of tenants sharing an accommodation and
by over-priced rent. The tenants are very much exposed to landlords that act arbitrarily, as
they have no possibility to take legal action in cases of disputes of tenancy law without
disclosing their legal status (Anderson 2003; Münz et al. 2001: 86; Stobbe 2004: 127).
Niches that are open to illegally resident migrants on the housing market are to live with
relatives who have a legal residence status, sub-renting accommodation or living in a flatsharing community. In the latter case, a person with legal residence status acts as main
tenant and shares the costs for the apartment with illegally resident migrants living there.
Münz et al. (2001) report on cases of “under-cover rent“; in those cases an apartment was
rented by legally resident friends or acquaintances and an illegally resident migrant was
actually living there. In some cases, at least temporary accommodation is also provided by
shelters for refugees and homeless people. With regard to newly arriving migrants Anderson
(2003: 30-33) states that they can stay with relatives, acquaintances or fellow nationals, but
that their situation is characterized by frequent moving and “being passed on” within the
circle of friends. This might result in one-sided relationships of dependency, leading to a
situation of increasingly excessive demands, for example if a guest exhausts the hospitality
of a friend for lack of alternatives. In individual cases renting an apartment is successful as
forged identity papers are used and like this access to qualitatively sufficient accommodation
can be gained.
In some cases, employers provide accommodation or a place to stay overnight for illegally
resident employees. This applies to domestic staff, for example, living at their employers’
accommodation. This type of housing bears the risk of losing accommodation when losing
the job (Münz et al. 2001: 87).
66
4.1.6
Political participation
Illegally resident migrants do not have the option to get actively involved in politics or even to
form a social movement which involves appearing in public, as this entails the danger that
their status is disclosed and that they might be deported. For this reason, no protest
movement has developed in Germany which might be compared to the “sans papier” in
France (Schönwälder et al. 2004: 62). Some exceptions are migrant organisations that act as
a lobby for the rights of illegally resident migrants on the local level. One example is the
organisation “mujeres sin fronteras” (women without borders) which is located in Hamburg;
apart from other tasks, this organisation champions the rights of legally and illegally resident
female migrants from Latin America (mujeres sin fronteras 2005). Churches and nongovernmental organisations point at the various problematic issues that are connected with
illegal stay in Germany and calls for improving the living situation of illegally resident
migrants and avoiding humanitarian hardship are directed to policy-makers (Deutsche
Bischofskonferenz 2001: 7-12).83
4.1.7
Criminality and illegal residency
In the public discourse in Germany the topics criminality and illegal stay are closely
connected (Bade 2002). First of all it can be noted that the illegally resident population has
an age structure, sex structure and a geographical distribution which might imply a raised
crime rate of this group, according to criminological findings. Hence, females, elderly people
and the population in rural areas is less criminal than males, the population under the age of
50 and the population living in densely populated urban areas and (large) cities (Steffen
1992: 22-24, see chapter 2.3.2).
For various reasons, a comparison of the crime rate of the German population and the nonGerman illegally resident population is problematic though. A central line of arguments in the
discussion of “foreigners’ criminality” is that differences in the crime rates can be particularly
traced back to statistical-methodological factors that bias the statistical findings. These
concern questions as to which sub-groups are used to determine the total number of the
population, to what extent offences are included that can only be committed by non-Germans
and what is the role of the differing age and sex structure and the geographical distribution of
the German and non-German population (Steffen 1992: 18-27).
Regarding the illegally resident population the following aspects are relevant: cases of crossborder criminality committed by persons, who only come to Germany in order to commit the
offence, should not be assigned to the illegally resident population (Alt 1999: 307). Another
aspect is the lacking knowledge of the total number of persons who are staying in Germany
illegally (cf. chapter 2.2). In 2003, 96,197 illegally resident investigated suspects were
registered, which corresponds with a share of 4.1% of the total number of registered
investigated suspects. However, when breaking down these cases of suspected offences
according to individual groups of offences it becomes apparent that nine out of ten illegally
resident investigated suspects were recorded because of a “foreigner-specific offence”,
which means the violation of the Foreigners Act and the Asylum Procedure Act
(Asylverfahrensgesetz). In addition, in 8.5% of the cases the forging of documents was
83 Please see the list of institutions, organisations, associations and NGOs that deal with illegality as annex to
this study,
67
involved, which might also be connected to entering the country illegally or staying illegally
(Bundeskriminalamt 2004: 123; Lehne 2005: 176).
Another possibility to find indicators for the crime rate of different sub-groups of the
population is the formation of so-called “Tatverdächtigenbelastungsziffern“ (TVBZ)84 which is
generated by relating the investigated suspects registered in the Police Crime Statistics, who
belong to a certain group of the population, to the total number of this population group. In
his comparison of the crime rate of illegally resident migrants with that of Germans, Lehne
(2005: 177) assumes an estimated number of 500,000 illegally resident migrants in
Germany. Forging of documents as well as violations of the Residence Act and the Asylum
Procedure Act are not included in the calculation in order to make an appropriate comparison
of illegally resident and German investigated suspects possible. The result shows a rather
low TVBZ of 1,079 for illegally resident migrants, compared to a TVBZ of 2,586 for the
German resident population. The reason for this is the rare registration of illegally resident
migrants in cases of the mass offences “minor theft”, especially shop lifting, and in cases of
so-called “offences of crudeness” (bodily injury, wrongful deprivation of personal liberty,
coercion, threatening).
According to Lehne (2005: 177), the reasons for the rare registration of these offences can
be found in the living situation of illegally resident migrants: “Persons who have settled down
in illegality on a fairly long-term basis and for whom a report to the police for shop lifting or
bodily injury constitutes an existential risk, will largely refrain from criminalised behaviour in
areas of behaviour that can be controlled” (own translation) (cf. also Stobbe 2004: 94). As
opposed to this, Alt (1999: 390) points at the importance of minor theft to provide means of
subsistence in cases of emergency. Other potential explanations indicate that illegally
resident migrants avoid situations which lead to violent conflicts and that they do not turn to
the police for settlement of conflicts or for protection if they face conflicts in their immediate
social environment (Lehne 2005: 177). Consequently, illegally resident migrants are much
more vulnerable and might be exploited by employers and landlords or they might fall prey to
individuals or criminal organisations that take advantage of their financial distress (Alt 1999:
318, Cyrus 2004: 34). Independent of these facts, the numbers mentioned above do not
provide information on the actual criminality though, as there are no reliable figures as to
whether the public prosecution has indeed accused the registered, illegally resident,
investigated suspects or as to whether judgements have been rendered in the court
proceedings.
4.2
Employment of illegally resident migrants
The economic situation of illegally resident migrants in Germany is characterised by
possibilities of employment as well as by legal barriers in accessing the labour market (cf.
Cyrus 2004: 12). Illegally resident migrants have no possibility to take up legal employment
in Germany (cf. chapter 3.2.1.2 and 3.4.4). For that reason, they often earn their living by
working in the shadow economy85 and by clandestine work (Röseler/Vogel 1993: 24). Private
networks or professional recruiters often assist them in finding these jobs (Elwert 2002: 10;
84 This is the number of investigated suspects, calculated out of 100,000 inhabitants of the relevant population
groups.
85 According to Enste/Schneider (2005: 5), shadow economy is used as a synonym for the irregular economic
sector here. Clandestine work is part of the shadow economy. This should be differentiated from the informal
sector, which is characterised by the so-called “self-supporting economy”, as well as from the criminal sector
in which illegal goods or illegal services are provided in an illegal way (e.g. trafficking in human beings).
68
von Schlichting 2003: 84-89). The characteristic feature of clandestine work
(“Schwarzarbeit“) is that legal occupations (e.g. nursing, refurbishments) with profit-oriented
creation of value (i.e. no volunteer work without pay) are provided in an illegal way. The
illegality of the provision of services can originate, for example, in the violation of the Trade,
Commerce and Industry Regulation Act, by committing evasion of taxes or contributions, by
receiving social benefits at the same time or if the employer violates norms of industrial law
(cf. Enste/Schneider 2005: 4).
Other options that illegally resident migrants might resort to in order to secure their livelihood
are support by friends and relatives or income from criminal activities (Schönwälder et al.
2004: 63).
4.2.1
Scope and composition of illegal employment
There is no precise information available on the scope of illegal employment, on the affected
branches of economy, the spatial distribution and the size of the companies that employ
illegally resident migrants (Schönwälder et al. 2004: 47f.; cf. chapter 2). Findings from
qualitative-empirical studies on illegal migration show that access to the labour market in the
commercial as well as in the private sector (e.g. in domestic service or in domestic nursing)
can be gained. There is a very wide range of labour market options that have been identified.
Thus, illegally resident migrants are, among others, working as assistant foremen, demolition
workers, site foremen and bricklayers in the construction business, in landscaping and as
gardeners, in window cleaning and cleaning of buildings, in the field of domestic services, car
repair, agriculture, restaurants and catering, sales assistants, newsagents and in prostitution
(Alt 1999: 139; 2003: 118-134). In addition, there are opportunities to earn money as selfemployed entrepreneurs, for example as commercial housing agency or labour recruitment
office, in purchase and sales of second-hand goods, trade in bulky refuse, as hawkers or
musicians (Alt 1999: 139). These findings largely correspond with the branches of economy
that have been enumerated in the reports by the federal government on the impacts of the
Law on the Combat of Illegal Employment. In these reports it is stated that almost all
branches of economy are affected by illegal employment of foreigners (Bundesregierung
2000: 44; 2005: 40f., Schönwälder et al. 2004: 47f.). Although there is very few statistical
data available, the following sectoral focal points of illegal employment of foreigners are
mentioned: construction business and associated businesses, hotels and restaurants,
cleaning of industrial facilities and buildings, agriculture and forestry, food, beverage and
tobacco industry, transportation of persons and goods, metal processing industries and
businesses in the entertainment sector (bars, nightclubs, amusement arcades). Also in
private households and on private building sites, it is considered particularly likely that
illegally employed labour is hired. In addition, illegal employment of foreign labour seems to
be common practice in small and medium-sized companies rather than in large companies
and it is more concentrated in urban rather than in rural areas.
4.2.2
Employment and vocational qualifications required
There are indicators that the jobs carried out by illegally employed foreign labour are
characterised by a high rate of exchangeability due to the low qualifications required
(Bundesregierung 2005: 40). Another factor can be “brain waste” of illegally employed
foreign labour as they are overqualified for their job (Cyrus 2004: 37). Typical features of
these jobs are a low level of qualification, physical work combined with little relevance of
69
knowledge of the German language, temporal limitation or seasonal employment as well as a
high fluctuation of employees (Lederer/Nickel 1997: 31).
The “exchangeability” of illegally employed foreign labour results in precarious employment
conditions, as the employees are in a very weak position when they have to negotiate with
the employer. Based on research findings of Hofer (1992, 1993), Lederer/Nickel (1997: 29)
point at the illegally resident employees’ “structurally-founded vulnerability to be
blackmailed”. As they lack a residence status and therefore fear that their status is disclosed,
they are hardly in a position that allows them to protest against fraud or underpayment by the
employers. Illegally resident migrants are therefore exposed to the risk that they take up
employment that might be forced labour.86 As features of forced labour Cyrus (2005: 56-59)
states (working) conditions below normal standards which are put up with by the affected
employees for lack of alternatives or which are enforced by threatening the employees
indirectly/directly or, in extreme cases, by restricting their freedom of movement. This can
constitute a gradual process, with the conditions of employment deteriorating to coercion and
force at a certain point.
It should be considered that forced labour is not only restricted to employment of illegally
resident migrants, but that it can also happen as part of legal employment, for example by
violating minimum wage standards, regulations on working hours and other legal provisions.
Such constellations were identified in the context of temporarily limited employment contracts
of foreign labour, for example of seasonal and contract workers or Au Pair (Cyrus 2005: 14f.;
cf. chapter 3.4.4). There are no well-founded findings available which provide information on
the scope of forced labour among illegally resident migrants (Schönwälder et al. 2004: 64).
However, illegal employment of foreign labour should not principally be equalled with forced
labour. There is a wide range of types, including relatively stable working relationships with
satisfied employers and employees and mutually benefiting working conditions, but also
forms of coercion and forced labour, as mentioned above (Cyrus 2005: 14; 2004: 30f.). In
this context, Elwert (2002) points at the potentially underestimated type of the
“entrepreneurial illegal”, who reacts to existing, stable job offers within the well-organised
networks and therefore can take up successful employment.
86 The term forced labour is defined in art. 2 of the Convention No. 29 of the International Labour Organisation
as" all work or service which is exacted from any person under the menace of any penalty and for which the
said person has not offered himself [or herself] voluntarily." (Internationale Arbeitsorganisation 1930: 1).
70
5
Consequences of illegal residency on the national economy
There is, of course, no reliable data on the absolute number of illegally resident migrants in
Germany and their economic impact on supply and demand within the German labour
market, on income levels or structure and on other working conditions (working hours,
protection against dismissal etc.) (Lederer 2004; Schönwälder et al. 2004). This is especially
true for the role of informal employees and employers in the so-called shadow economy,
which comprises, on the one hand, clandestine undeclared work (or “black work”, as it is
called in Germany), which mainly aims at avoiding income deductions (taxes and social
insurance contributions) and illicitly maintaining entitlements to welfare payments.87 On the
other hand, it also comprises other irregular activities. Similarly, hardly any information is
available on the role of illegally resident migrants as consumers, money-savers and investors
in Germany. Apart from the “under-cover” nature of the phenomenon, there are several
additional reasons for this lack of information:
- There is not only one type of illegal employment of migrants in the shadow economy, but
a wide range of activities depending on economic and labour-market developments at the
national level, in certain regions or business sectors. As for the Eastern German states, it
can be assumed that the illegal employment of migrants does – on the whole – not play a
significant role, due to insufficient demand and purchasing power.
- The number of persons detained by the authorities naturally only comprises the detected
or registered cases, but not the “dark figure” of illegality (cf. chapter 2). In addition,
research in Germany has hardly gained any experience with quantitative estimations,
whereas researchers in the United States, for example, have been developing respective
methods since the 1930s. But most of these methods cannot be transferred to Germany
because they do not include any of the necessary differentiations for the legal framework,
the data situation and the structure of illegal immigration in Germany (Lederer 2004: 192).
For example, researchers have developed methods for the specific purpose of projecting
the scope of illegal immigration from Mexico, whereas illegal migration in Europe is
characterised by a great diversity of countries of origin and destination. What is more,
87 The Act against Undeclared Work and Illegal Employment, which took effect on August 1, 2004 has for the
first time provided a clear legal definition for undeclared work. The legislation has brought together
regulations from several different laws, expanded inspection entitlements and closed legal loopholes.
According to § 1 para. 2 of the Act, a person is engaging in undeclared work if they “… provide services,
carry out work or commission such work without fulfilling,
1. as an employer, business or self-employed person (liable to social insurance deductions), the registration,
contribution or record obligations resulting from the provision of such work or services,
2. as an employee subject to income tax, the tax obligations resulting from the provision of such work or
services,
3. as a recipient of welfare payments or social benefits, the obligation to inform social security and welfare
institutions about the provision of such work or services,
4. as a person providing such work or services, the resulting obligation to report that such a business has
been set up (pursuant to § 12 GewO – Commerce and Industry Regulation Act), or to obtain the necessary
trade certificate (pursuant to § 14 GewO),
5. as a craftsman providing such work or services, the resulting obligation to report that such a business has
been set up, or to enlist the business in the register of craftsmen (pursuant to § 1 Handwerksordnung – Trade
Regulation Act).
Paragraph 3 reads: “Paragraph 2 does not apply to not principally profit-oriented services or work provided
1. by spouses or relatives, in the definition of §15 Abgabenordnung – Tax Code,
2. free of charge,
3. in the context of neighbourly help,
4. in the context of self-help, as defined by § 36 para. 2 and 4 Wohnungsbaugesetz – 2nd House Building Act,
of August 19, 1994 (BGBl. I p. 2137), or self-help as defined by § 12 para. 1 Sentence 2
Wohnraumförderungsgesetz – Living Space Promotion Act, of September 13, 2001 (BGBl. I p. 2376), last
amended by Article 7 of the Act of December 29, 2003 (BGBl. I p. 3076). Not principally profit-oriented refers
to work or services that are provided in return for a small amount of money.
71
Germany has never allowed any legalisation programmes, which would have enabled
researchers to make some inferences about the size and structure of the illegally resident
population.
5.1
Figures, facts, background
The range of current estimations of the total number of illegally resident migrants in
Germany, most of whom can be assumed to have entered Germany in order to take up
gainful employment, differs widely, from 100,000 up to 1 million people. These figures
approximately equal between 0.2 and 2% of the national labour force. These percentages
and the ensuing potential contributions to the national (informal) economy illustrate that the
scope of the phenomenon is relatively modest if compared to the United States, for example.
As for the US, the Immigration and Naturalization Service (INS) estimated the number of
illegal immigrants at more than 6 million people, approximately, for the year 2000, equalling
about 4% of the national labour force at that time. According to INS projections, about
200,000 to 300,000 immigrants enter the US illegally each year in order to take up gainful
employment, e.g. by entering the country with a tourist visa and overstaying when the visa
expires. Consequently, it can be estimated that about 10 million illegally resident migrants –
about 80% of them originating from Mexico and other Latin American countries - do currently
live in the US and have taken up employment in order to earn a living (Passel et al. 2004:
4ff.). As, according to official statistics, the total US labour force comprises 150 million people
(2004), “unauthorized aliens“ thus account for no less than about 7% of the total labour force,
as compared to a maximum of 2% in Germany.
The long-term development in Germany was, until the mid-1990s, marked by a continuous
increase in non-German residents without a legal residence and employment status – due,
among other factors, to the fall of the Iron Curtain and the ensuing reunification boom which
stimulated the national economy and labour market. Since then, it can be assumed that the
number of illegally resident migrants has remained stable or even decreased (cf. chapter
2.2). Economic developments in the business sectors with the highest occurrence of illegal
employment of non-German labour also seem to indicate that a decrease is more likely than
a further increase.
- Enste/Schneider (2005), in their analysis of the impact of the shadow economy on the
national economy since 2003, have drawn the conclusion that the scope of the shadow
economy has decreased to a total sum below € 345 billion or 16% GDP (gross domestic
product, which constitutes the official indicator of the annual economic output) (Table 5).
But one has to take into consideration that the shadow economy in Germany does not
only comprise economic activity by illegally resident non-German labour. On the contrary,
its largest part consists of undeclared work which is carried out by legal residents. Cyrus
(2004: 4), on the basis of data provided by Schneider (2003: 12), has calculated that the
proportion of illegal employment of non-Germans, in relation to the total economic output
of the shadow economy in Germany, amounts to 13%.88
88 Cyrus has calculated this relation on the basis of long-term developments in the number of “full-time inland
illicit workers” (9.4 million in 2003) and an estimation of illegal non-German labour (1.2 million), which have
been presented by Schneider (2003: 12). Schneider, however, emphasises that “full-time inland illicit
workers” is a fictitious quantity, which has been calculated on the basis of the total of working hours in the
shadow economy. This quantity of illegal non-German employees has to be regarded as “a first rough
estimation of the total number of illegally employed non-Germans (who are involved in shadow-economy
activities)” in Germany.
72
- This proportion is disproportionately high, in comparison to the proportion of regular
employment of non-Germans (employees and self-employed persons) in Germany, which
amounts to approximately 8% of total employment – similar to the proportion of the nonGerman population, compared to all residents. The proportion seems slightly exaggerated
in another respect, too: the working hours and wages paid in the shadow economy are
relatively low and irregular.89 In view of the considerable uncertainties involved in these
informal figures and estimations, it is vital to treat this data with the utmost reserve.
- These reservations are especially significant in view of current economic developments in
business sectors that have traditionally been highly relevant for illicit employment and
offered many jobs for unskilled and semi-skilled workers, such as the construction and the
hospitality sector. The general development in these sectors, however, has been
moderate or even declining over the last years, especially in the construction sector,
which has always had high occurrences of illicit employment but has declined since the
end of the reunification boom in the mid 1990s (Table 6). In the past, industries such as
the construction and craft sector, which together amount for 38% of the shadow economy
(Bundesfinanzministerium 2005: 73), had been characterised by a large number of
employees carrying out standardised work which could be learned easily and was
comparable to employment in other countries, as well as by an especially high percentage
of wage costs, in relation to the total cost of production. Due to increasing rationalisation
and productivity in this sector, in combination with higher demands for skills, i.e. a
decreased demand for un- or semiskilled workers, this sector is losing some of its
“susceptibility” for informal employment.
All the reservations mentioned above notwithstanding, if the proportion estimated by Cyrus
(13%) is taken as a rough empirical indication for the contributions that illegally resident
migrants make towards the economic output of Germany’s shadow economy, their annual
contributions can be estimated at about € 45 billion or about 2% GDP. In comparison to the
United States (7%), illegal employment of migrants thus plays a significantly less important
role in Germany, and – what is more – with a declining tendency since 2003.
89 This situation results from the fact that illegal migrants face great difficulties in obtaining adequate wages
from fraudulent employers. It can be assumed that wage claims, on account of withheld or only partly paid
wages, can in most cases neither be pursued, least of all in a court of law, nor settled by means of an
amicable agreement or even by force. In the past, there were some successful law actions before labour
courts by illegal workers, it is true. But pursuant to Article 3 No. 9e of the Act against Undeclared Work and
Illegal Employment, which took effect on August 1, 2004, courts as well as criminal persecution and
enforcement authorities are obliged to report to customs authorities “findings from procedures which, in their
view, are necessary for persecuting offences pursuant to § 404 para. 1 or 2 No. 3 [SGB III – Social Security
Code]”, provided that the duty to report such findings is not outweighed by vital personal interests of the
persons involved. The customs authorities, in turn, are – as public institutions - obliged to report these
findings to local foreign-resident authorities. Cyrus (2004: 70) has criticised the draft for this Act, arguing that
the new regulations would turn courts of law into additional auxiliary staff of the control bodies and require
them to evaluate whether vital personal interests forbid a transfer of data. Cyrus has also criticised that these
regulations would put non-German workers at an unfair disadvantage and create additional incentives for the
illegal employment of non-German labour, as employers would have an ever lower risk of being sued by their
employees than before.
73
Table 5:
Relevance of economic activity by illegally resident migrants in the shadow
economy for Germany’s national economic output (2000-2005)
Gross Domestic
Product (GDP),
inflationadjusted
Shadow Economy
total
of which: percentage of illegally resident migrants
year
billion €
billion €
billion €
% of GDP
2000
2,021
322
42
2.1
2001
2,062
330
43
2.1
2002
2,088
350
46
2.2
2003
2,114
370
48
2.3
2004
2,177
356
46
2.1
2005
2,210
346
45
2.0
Source: Press statement by the Institute of Applied Economic Research in Tübingen (IAW): Latest projection of
developments in the shadow economy for the year 2005 (dated January 27, 2005), as well as own calculations.
Table 6:
Sectoral development of the construction and hospitality sector (1999-2003)
Construction sector
turnover
year
revenues
billion €
Hospitality sector (hotels and restaurants)
labour force
turnover
1,000
revenues
billion €
labour force
1,000
1999
227.7
100.93
2,850
55.2
23.4
1,642
2000
223.2
97.56
2,761
56.5
23.3
1,706
2001
212.2
92.9
2,587
56.6
23.7
1,743
2002
197.2
89.0
2,428
55.6
23.6
1,773
2003
./.
83.2
2,312
./.
./.
1,793
Source: National accounts of the Federal Statistical Office, accounts and standard indices 2004.
5.2
Impact and implications
People without a legal residence status do, first and foremost, migrate for economic reasons,
i.e. current labour-market opportunities and the respective situation in Germany play a
central role as pull-factors. As the economic and labour market situation in Germany has
rapidly deteriorated since the “boom-year” of 2000, it can be assumed that illegal
employment has experienced a downward trend, due to “dampened” demand by employers
(private households and companies). This downward trend has also weakened the economic
impact of illegal employment.
This dampening impact of the current economic situation has also been confirmed by Cyrus
(2004: 28). As migrants need support for their illegal residency, their illegal immigration will
only succeed if the receiving society shows tolerance and generates demand and – generally
- support (cf. chapter 4.1). The supportive function of ethnic social networks will probably
also be weakened if these communities themselves are faced with increasing economic
problems, e.g. rising unemployment and stagnating or declining incomes.
74
Undeclared work – whether it is carried out by German or non-German residents doubtlessly leads to significant losses in tax revenues and social security contributions, thus
having a detrimental effect on society as a whole because nothing is “paid” in return for
taking advantage of state services and benefits, such as social benefits, the public
infrastructure, especially in the education, health, housing and public transport sector, and
the benefits of public goods (public order and security, the legal system etc.). For example,
illegal employment of non-Germans does not generate any revenues in direct taxes (above
all, income tax) or social security contributions by employers and employees for the benefit of
the statutory pension, health, long-term care, and unemployment insurances. An additional
factor concerns the additional government spending for police and other public authorities. It
is, however, a contentious issue whether illegal migration itself can be made responsible for
the additional government spending in these areas (Schönwälder et al. 2004: iii). On the
other hand, illegally resident migrants spend part of their incomes on market goods and
services and thus pay indirect taxes, such as general excise taxes, VAT and specific excise
taxes (e.g. eco-, petroleum, tobacco and alcohol tax). These tax payments make a
contribution towards reducing public deficits (Schönwälder et al. 2004: 58). As shown in
Table 5 above, the overall scope of the shadow economy in Germany has been estimated at
€ 346 billion, the equivalent of 15.6% GDP (as stated above, it has to be taken into
consideration, however, that the shadow economy has been marked by a general downward
trend since 2003, and that undeclared work only constitutes one part of the shadow
economy). As mentioned above, Cyrus has estimated that the proportion of illegally resident
migrants amounts to 13% thereof, or € 45 billion respectively.90
The ensuing losses in tax revenues and social insurance contributions can be quantified on
the basis of the overall quota of tax and social security deductions, which, according to
official statistics, amounts to 40% GDP in Germany. If one puts this quota in relation to the
contribution which, according to estimations, is made by illegally resident migrants to the
national economy, the ensuing total sum of unpaid taxes and contributions would be about €
18 billion. It can be assumed that this total would be significantly lower if one only took
undeclared work by third-country migrants, i.e. illegally resident immigrants, into account.
In 2004, the customs authorities’ Department for Financial Control of Illegal Employment
(FKS) have detected revenue losses at a total amount of € 474.4 million (Bundesministerium
der Finanzen 2005: 73). The greatest part of this total is made up by tax evasion, unpaid
social security contributions of employers, and social benefits that have been received illicitly
by employees and private households. The exact proportions of losses that are incurred due
to undeclared work and illegally resident migrants, however, are unknown. But it is obvious
that the total amount of revenue losses has been increasing recently, as respective losses
for the year 2003 amounted to € 348 million. According to the Federal Ministry of Finance,
this total sum of revenue losses was detected in 91,400 criminal proceedings and 51,800
monetary-fine proceedings. According to the ministry, the increase in detected revenue
losses and criminal proceedings is due to the primary focus of the FKS authorities on
undeclared work (for commercial purposes). The increase is also due to the fact that, since
January 1, 2004, the responsibilities for fighting undeclared work, which used to be shared
by the customs authorities and the Federal Employment Agency, have now been pooled and
transferred to the customs authorities. With their combined strategy of prevention and putting
increased pressure on offenders, 5,200 customs officials have so far been fighting against
undeclared work and illegal employment. According to the Federal Ministry of Finance, this
90 Please see http://www.bundesfinanzministerium.de/dokumente/ix-..26793/Artikel.htm.
75
figure will rise to 7,000 officials in the course of the year 2005, the ensuing personnel costs
amounting to about € 250 million (Bundesregierung 2005: 10).
There is hardly any empirical data concerning other economic consequences resulting from
the illegal employment of migrants in Germany, such as its impact on the number of available
jobs, working conditions, the income of legal residents as well as effects on sectoral
economic change and economic growth. Empirical data is only available for the economic
impact resulting from the legal employment of foreign residents in Germany, with results
indicating that their impact on the national economy, as far as income and the employment of
German citizens is concerned, is negligible (von Loeffelholz 2001). Of course, these results
cannot be transferred one-to-one to the informal economy and the influence of illegally
resident migrants. On the basis of research from other countries, Schönwälder et al. (2004:
47) have drawn a similar conclusion, namely that “the sweeping assumption that the wages
and jobs of the citizens of a country are endangered by illegal migration [is] not justified.
However, in some sectors of the economy, and for certain groups of workers, the supply of
cheap labour could lead to job loses and lower wages. Negative effects are possible for local
residents with low qualifications in particular”. Traditionally, substitution effects have occurred
in the construction sector (see above). Currently, similar effects seem to occur in the
transport and freight sector as well as in the meatpacking industry.
Finally, one also has to take into consideration that the availability of illegal employment
reduces the necessity to carry out labour-saving investment and speed up innovation in the
economy in order to be able to compete on national and international markets. In
consequence, it slows down structural change in Germany as well as increases in
productivity and incomes for the national economy. Ultimately, it also slows down economic
growth and, in the long run, reduces increases of legal employment and living standards,
which would rise more rapidly without illegal employment.
76
Conclusions
The political and legal reaction to illegal residence has changed in the course of time. It can
be noted that since the early 1990s, regulations of foreigners law and criminal law have been
tightened and increasing investments in checks have been made. In doing so, German law
has been adapted to European legal norms, if necessary, and in some cases it even exceeds
the stipulations by the EU.
The German system of migration control includes external controls (e.g. via the visa system
and external border controls) as well as a system of internal controls by means of residence
and work permits. This is complemented by data exchange, checks at the workplace, close
cooperation between authorities and their obligation to forward information. The intensity of
controls at the border and inland can be considered high though, as there are relatively high
numbers of checks as well as intensive cooperation and data-technical links. It is difficult to
evaluate the controls as there are no findings on the extent of unintended side effects. It is
assumed that, on the one hand, tightened border controls entail an increasing demand for
the services of human smugglers. On the other hand, smoothly coordinated cooperation
between employers and illegally employed foreigners could be observed which covers up
illegal employment.
Although figures are stated in the public discourse and in the media from time to time,
estimations of the size of the illegal population living in Germany are considerably uncertain.
The current state of knowledge on the scope of this phenomenon makes political decisions
on illegally resident migrants more difficult. The existing data sources suggest that a
continuous increase of the number of illegally resident migrants until the second half of the
1990s appears to be plausible, and that since then the phenomenon presumably stagnates
or decreases on a high level. An approach to improve the estimations is to estimate the sizes
of sub-groups of illegally resident migrants rather than an estimation of the total number.
A fundamental dilemma linked to illegal residence is that illegally resident migrants indeed
have rights concerning the access to social benefits, but that they don’t claim them as they
have to fear legal consequences. This concerns the access to social services, health care,
education and legal protection. De facto, the consequence of this lacking claim of social
benefits is that taking care of illegally resident migrants is primarily left to non-governmental
actors. At the same time, illegally resident migrants largely depend on support which is
arranged via their personal social network. Like that, the factually restricted access to social
benefits can only be partially compensated. As a consequence, illegal residence might entail
precarious employment situations, insufficient medical care, a housing situation below
average standards and a higher vulnerability to exploitation. School attendance of illegally
resident children is not ensured.
Concerning the views of governmental and non-governmental actors on this problem,
conflicting priorities between a human rights and a state-control position become apparent.
The former approach deduces the claims from a universal validity of human rights and is
championed by churches, charitable organisations and civil-society actors. The state-control
position, which is particularly represented by the Federal Ministry of the Interior and the state
interior ministries, builds its argumentation on the sovereignty of states as a basis for claims
to legislation and enforcement of laws. On the local level, there is an ongoing discourse
initiated by representatives of parochial and social institutions; from this discourse,
approaches to solve this dilemma are emerging. This approach is characterised by pragmatic
77
efforts to reduce the humanitarian problems linked to illegal residence, within the existing
legal framework.
78
List of abbreviations
AAV
AEntG
AFIS
Art.
ASAV
AsylbLG
AsylVfG
AufenthG
AufenthV
AÜG
AuslG
AZR
AZRG
BA
BAMF
BGB
BGBl.
BGH
BGS
BillBG
BIP
BKA
BKAG
BND
bspw.
BVerfG
BVerwG
CRC
EG
EstG
EU
FKS
FreizügG/EU
GARP
GDP
GeWO
GG
ICESCR
ILO
INPOL
INS
IOM
NRW
OECD
Arbeitsaufenthalteverordnung
Arbeitnehmerentsendegesetz
Automatisiertes Fingerabdruck-Identifizierungssystem
article
Anwerbestoppausnahmeverordnung
Asylbewerberleistungsgesetz
Asylverfahrensgesetz
Aufenthaltsgesetz
Aufenthaltsverordnung
Arbeitnehmerüberlassungsgesetz
Ausländergesetz
Ausländerzentralregister
Ausländerzentralregistergesetz
Bundesagentur für Arbeit
Bundesamt für Migration und Flüchtlinge
Bürgerliches Gesetzbuch
Bundesgesetzblatt
Bundesgerichtshof
Bundesgrenzschutz
Gesetz zu Bekämpfung der illegalen Beschäftigung
Bruttoinlandsprodukt
Bundeskriminalamt
Bundeskriminalamtsgesetz
Bundesnachrichtendienst
beispielsweise
Bundesverfassungsgericht
Bundesverwaltungsgericht
UN-Childen’s Rights Convention
Europäische Gemeinschaft
Einkommenssteuergesetz
Europäische Union
Finanzkontrolle Schwarzarbeit
Freizügigkeitsgesetz/EU
Government Assisted Repatriation Programme
gross domestic product
Gewerbeordnung
Grundgesetz
International Covenant on Economic, Social and Cultural
Rights
International Labour Organisation
Informationssystem der Polizei
Immigration and Naturalisation Service
International Organisation of Migration
North Rhine-Westfalia
Organisation
for
Economic
Co-operation
and
Development
79
OJ
OLG
para.
PKS
REAG
Ref.
SchwarzarbG 2004
SGB III
SIS
SPD
TVBZ
UNHCR
VAT
ZIRF
ZuwG
Official Journal of the European Communieties
Oberlandesgericht
paragraph
Polizeiliche Kriminalstatistik
Reintegration and Emigration Programme for AsylumSeekers in Germany
reference
Schwarzarbeitsbekämpfungsgesetz 2004
Sozialgesetzbuch, Drittes Buch
Schengener Informationssystem
Sozialdemokratische Partei Deutschlands
Tatverdächtigenbelastungsziffer
United Nations High Commissioner on Refugees
value-added tax
Zentralstelle
für
Informationsvermittlung
zur
Rückkehrförderung
Zuwanderungsgesetz
80
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91
Annex
Annex I
Ministries and authorities
FEDERAL GOVERNMENT
http://www.bundesregierung.de
FEDERAL MINISTRY OF THE INTERIOR
http://www.bmi.bund.de
Federal Office for Migration and Refugees
http://www.bamf.de
Federal Police (since July 1, 2005), previously Federal Border Police
http://www.bundespolizei.de
Federal Office of Criminal Investigation
http://www.bka.de
Federal Intelligence Service
http://www.bnd.bund.de
FEDERAL MINISTRY OF FINANCE
http://www.bundesfinanzministerium.de
The Federal Customs Administration – Department for Financial Control of Illegal
Employment (FKS) at the regional finance office Cologne
http://www.zoll.de/d0_zoll_im_einsatz/b0_finanzkontrolle/index.html
THE FEDERAL MINISTRY OF ECONOMICS AND LABOUR
http://www.bmwa.bund.de
Federal Labour Agency
http://arbeitsagentur.de
STATE INTERIOR MINISTRIES
Baden-Wuerttemberg
http://www.innenministerium.baden-wuerttemberg.de/
92
Bavaria
http://www.stmi.bayern.de/
Berlin
http://www.berlin.de/sen/inneres/index.html
Brandenburg
http://www.mi.brandenburg.de/cms/list.php/mi
Bremen
http://www.bremen.de/
Hamburg
http://fhh.hamburg.de/stadt/Aktuell/behoerden/inneres/start.html
Hesse
http://www.hmdi.hessen.de/
Mecklenburg-Western Pomerania
http://www.mv-regierung.de/im/
Lower Saxony
http://www.mi.niedersachsen.de/
North Rhine-Westphalia
http://www.im.nrw.de/
Rhineland-Palatinate
http://www.ism.rlp.de/
Saarland
http://www.innen.saarland.de/index.html
Saxony
http://www.sachsen.de/de/bf/staatsregierung/ministerien/index_innern.html
Saxony-Anhalt
http://www.mi.sachsen-anhalt.de/
Schleswig-Holstein
http://landesregierung.schleswig-holstein.de/
Thuringia
http://www.thueringen.de/de/tim/index.html
The police of the federal states and the criminal offices of the federal states (with regard to
organisation, the latter ones are part of the police of the respective federal state)
http://www.polizei.de
93
Annex II
Institutions, associations, non-governmental organisations and networks (also) dealing in their work with persons without
residence status91
Target groups
Offers
Location/Head office
Funding
The diocese Caritas Associations can
be found almost everywhere in
Germany, with a special focus on
North Rhine-Westphalia, Lower
Saxony, Baden Wuerttemberg and
Bavaria. On the federal level there is
the department „Migration and
Integration“ in Freiburg. Regionally,
the activities are coordinated and
supported by staff of the Caritas
associations.
Up to two-thirds of the financial
expenses of the Migration
Service are funded by the
diocese Caritas Associations as
internal contribution. One-third is
covered by government grants,
of which around 50% are
financed by the federal level and
the other half by regional/local
administrations.
1. CHURCH ORGANISATIONS AND CHARITABLE ORGANISATIONS
Deutscher
Caritasverband
e.V.
Refugees
Advocacy
foreigners
counselling on migrationrelated issues, on school and
vocational orientation, on
emigration, transit migration
and remigration
repatriates of German
origin
new immigrants
guidance in orientation and
foreigners without regular assistance in integration,
residence status
support in utilising social
services
http://www.caritas.de
91 This list does not claim to be complete. We thank all the organisations that were willing to provide most of the information displayed here.
94
Donations to the German
Caritas Association.
Diakonisches
Werk der EKD
e.V.
Diakonisches
Werk BerlinBrandenburgschlesische
Oberlausitz e.V.
In all federal states/ national churches
the regional associations represent the
existing support and counselling
support of the regional
associations of the Diakonie in institutions of the deaconry. The
Diakonisches Werk of the Protestant
supplying their offers in
persons with migration
Church in Germany is located in
assistance and counselling,
background in special
Berlin.
which are funded by federal
circumstances
Programmes
www.diakonie.de
refugees, asylum seekers
assistance in asserting
and civil war refugees
existing rights and assistance
in situations of crises
emigrants and transit
migrant
information and education
persons without
residence permit
The Diakonisches Werk with its field of
The area of work „Migration
Persons without legal
activity “Migration“ is located in Berlin.
and Intercultural Opening“
residence,
offers:
Various institutions and counselling
- social advocacy
new immigrants and
bureaus of the regional association are
migrants who have lived - counselling in migrationdealing with the topic ‘people in
related issues
here for a longer time
- assistance in orientation and illegality’.
(repatriates of German
integration
origin, foreigners)
http://www.dwbo.de
- support in utilising social
services
refugees and asylum
- counselling in return
seekers
migration and on-migration
- assistance for especially
victims of human
vulnerable groups
trafficking and forced
(unaccompanied minors,
prostitution
Immigrants, foreigners
and repatriates of
German origin
Advocacy
95
Funding of integration projects
and the initial migration
consultation for new immigrants
by the federal level.
Internal contributions by the
regional associations and
funds.
Donations on the regional level
Depending on the institution
and counselling bureau,
funding by government grants,
church funds or donations.
Diakonisches
Werk in
Hessen und
Nassau e.V.
Diakonisches
Werk der Ev.
Kirche von
Westfalen
Diakonisches
Werk der Ev.
Kirche im
Rheinland
- Persons without
residence status
- immigrants, foreigners
and repatriates of
German origin
- naturalised migrants,
- refugees, asylum
seekers and civil war
refugees
- minorities of foreign
origin
- emigrants and transit
migrants
Persons without
residence status
traumatised refuges etc.)
- assistance and counselling
- advisory service for
individual cases and psychosocial counselling
- assistance in asserting
existing rights and assistance
in situations of crises
- information and education
- pastoral care
Both Diakonische Werke have
established the „Project office
Illegality“ in 2002 which is
expected to expire in 2005.
Specific inquiries will continue
to be dealt with by the
department for migration at
the Diakonisches Werk.
- assistance activities
- networking
- information and public
relations work (publications)
- initiating and supporting
model projects
- discussion fora with the
public authorities
96
The Diakonisches Werk in Hesse and
Nassau is located in Frankfurt am
Main.
http://www.diakonie-hessennassau.de/
There are nine counselling bureaus in
the region Hesse and Nassau.
The Diakonisches Werk of the
Protestant Church of Westphalia is
located in Münster.
http://www.diakonie-westfalen.de
The Diakonisches Werk of the
Protestant Church in the Rhineland is
located in Düsseldorf.
http://www.diakonie-rheinland.de
Funding for the offers by the
Migration Service is provided
by the Federal Government
(initial migration consultation for
new immigrants).
Funds are provided by the
Protestant Church in Hesse
and Nassau.
Donations in general or special
donations, for example for the
counselling and support of
refugee families.
See above.
Ev. Landeskirche
in Baden
JesuitenFlüchtlingsdienst
Guidelines for the area
“Illegality”
The guidelines are published by the
commissioner of the national church
for Migration and Islam issues.
The office is located in Karlsruhe.
Refugees and migrants Counselling regarding
procedures and assistance in
in detention awaiting
contacting and dealing with
deportation
the authorities
tolerated migrants
pastoral care for migrants
awaiting deportation in
illegal migrants
detention centres
lobby and public relations
work
Ökumenische
Bundesarbeitgemeinschaft
(BAG) Asyl in der
Kirche e.V.
Refugees who are
under the risk of being
deported despite
potential dangers in
their country of origin in
case of return
Assistance,
comments, statements to the
press and publications,
theological and legal
counselling,
http://www.ekiba.de/Referat-5/
The Refugee Service is active in
To a large extent, the Jesuit
Berlin, Eisenhüttenstadt and Munich.
Refugee Service is funded by
The German office is located in Berlin. the Central European
Assistance of the Jesuits. In
http://www.jesuiten2004, the direct assistance for
fluechtlingsdienst.de/
the supported refugees and
migrants was funded by about
50% via donations and the
other half by the Archbishopric
Berlin and the Jesuits.
The head office is located in Berlin.
The BAG is an organisational union of
the church asylum movement in
Germany. Regional networks and
support groups can be found in most
federal states.
http://www.kirchenasyl.de/
supporters
conferences and events
97
Donations, alms, voluntary
contributions and a society for
the promotion of BAG
Paritätischer
Victims of forced
Wohlfahrtsmarriage and forced
verband Hamburg prostitution
e.V.
foreigners
repatriates of German
origin
social counselling
The Paritätischer Wohlfahrtsverband
Contributions by the members
has a total of 15 regional associations. of the Wohlfahrtsverband
The head office is located in Berlin.
Hamburg.
support service,
http://www.paritaet.org/
Counselling
Special fees in case of special
services are possible.
language courses
intercultural events
refugees, particularly
unaccompanied minors
2. REFUGEE ORGANISATIONS
Flüchtlingsräte /
Arbeitskreis Asyl
Illegalised persons
refugees
Cooperation of initiatives,
organisations, counselling
bureaus, refugee self-help
groups and individuals
unaccompanied minors
counselling
migrants
publications
98
Refugee Councils can be found in all
federal states, some of them under
the name of Working Group Asylum
(AK Asyl):
Flüchtlingsrat Baden-Württemberg
(Baden Wuerttemberg)
http://www.akasyl-bw.de/
Bayerischer Flüchtlingsrat (Bavaria)
http://www.bayerischerfluechtlingsrat.de/
Flüchtlingsrat Berlin (Berlin)
http://www.fluechtlingsrat-berlin.de/
Flüchtlingsrat Brandenburg
(Brandenburg)
http://www.fluechtlingsratbrandenburg.de/
Flüchtlingsrat Bremen (Bremen)
[email protected]
Flüchtlingsrat Hamburg (Hamburg)
Donations of money and goods
http://www.fluechtlingsrathamburg.de/
Hessischer Flüchtlingsrat (Hesse)
http://www.fr-hessen.de/
Flüchtlingsrat MecklenburgVorpommern (Mecklenburg West
Pomerania)
http://www.fluechtlingsrat-mv.de/
Niedersächsischer Flüchtlingsrat
(Lower Saxony)
http://www.nds-fluerat.org/
Flüchtlingsrat NRW (North RhineWestphalia)
http://www.fluechtlingsrat-nrw.de/
Arbeitskreis Asyl Rheinland-Pfalz
(Rhineland Palatinate)
http://www.asyl-rlp.org/
Saarländischer Flüchtlingsrat
(Saarland)
http://www.asyl-saar.de/
Flüchtlingsrat Sachsen (Saxony)
http://saechsischer-fluechtlingsrat.de/
Flüchtlingsrat Sachsen-Anhalt
http://www.fr-sa.de/ (Saxony-Anhalt)
Flüchtlingsrat Schleswig-Holstein
(Schleswig-Holstein)
http://www.frsh.de/
Flüchtlingsrat Thüringen (Thuringia)
http://www.fluechtlingsrat-thr.de/
99
Pro Asyl
- Public advocacy
- assistance in asylum-related
questions and legal issues
foreigners in detention
concerning Foreigners law
awaiting deportation
- provision of a fund for legal
expenses
unaccompanied minors
- support of the regional
refugee councils (see above)
Refugees
The head office of Pro Asyl is located Membership in the society for
in Frankfurt/Main.
the promotion of Pro Asyl
http://www.proasyl.de/
Regular or one-time donations
There is a close cooperation with the
nation-wide network of 16 Refugee
Councils.
3. MEDICAL REFUGEE AID
Malteser
Hilfsdienst e.V.
in Berlin
Persons without health
insurance
refugees and migrants
without residence
status
street children and
homeless people
Büro für
medizinische
Flüchtlingshilfe
Migrants and refugees
without papers and
health insurance
Counselling and treatment by
doctors in a medical
counselling bureau
medical attendance
The services by the Malteser
Migranten Medizin are currently
offered in Berlin and Cologne, more
offices in North Rhine-Westphalia
and Hesse are planned.
http://www.malteser-berlin.de/
coordination of further
assistance
Arrangement of a medical
(dental) treatment, free of
charge and anonymously
Support by various foundations,
funds and many donations by
individuals, donations of goods
such as medicine.
Migrants in general receive in-patient
and out-patient treatment in Hamm,
Hemer, Mainz, Nostorf-Horst and
Jürgenstorf.
The treatment is free of charge.
Medizinische Flüchtlingshilfen
(Medical Refugee Aid) exist in Berlin,
Donations for diagnostics,
Bielefeld, Bochum, Bremen,
Göttingen, Halle, Hamburg, Hanover, medicine and material costs.
Cologne, Munich and Nuremberg,
Oldenburg and Wiesbaden.
http://www.ffmberlin.de/deutsch/medibuero/
100
The project fully depends on
donations.
Medinetz
Bureaus for medical refugee aid
under the name Medinetz exist in
Bonn, Bremen und Freiburg.
Refugees and migrants Arrangement of medical
without residence
treatment in consultation
status
hours and of interpreters
arrangements of doctors and
therapists who carry out
treatments free of charge and
anonymously
http://www.medinetzbonn.de/
Counselling and assistance
for women and female
migrants by qualified female
experts, representation in
contacts with the authorities
and arrangement of legal
representation
Cologne
Financial support by donations
for costs incurred, such as
medicine, diagnostics and inpatient treatment in hospitals
Arranging the contacts is done
They cooperate with other bureaus of by volunteers.
medical refugee aid (see above).
4. WOMEN’S ORGANISATIONS
agisra Köln e.V.
Women who are
affected by violence in
marriage
women who were
brought to Germany as
forced prostitutes,
wives or domestic staff
therapies for individuals and
couples
female refugees
FiM - Frauenrecht Provision of counselling - Psycho-social counselling
and intervention (in the
ist
and information for
mother tongue and cultureMenschenrecht
women and their
specific, anonymously and
e.V.
families from Africa,
Asia, Latin America and free of charge)
- protection of victims of
Central and Eastern
human trafficking
Europe.
- information and education
101
http://www.agisra-koeln.de/
The counselling office is located in
Frankfurt am Main.
Region of responsibility:
Hesse, with a focus on the RhineMain-region and the city of Frankfurt
am Main.
Funding by the North RhineWestphalian Ministry for the
Equal Treatment of Women and
Men.
Funding by EFF, donations, fees
for events.
FIM receives financial support,
among others, by:
- the city of Frankfurt am Main
- the federal state Hesse
- the Protestant Church
- foundations
- the private industry
- donations and fines
Target groups of
individual counselling
and educational offers:
- female marriage
migrants
- female migrants
without legal residence
status
- female migrants in
prostitution
- refugees
- victims of human
trafficking
Target groups of
cooperation activities
and public relations
work:
- policy makers
- civil society
- selected vocational
groups/authorities
- migrants networks
FRANKA e.V.
Women who fell victim
of human trafficking
offers for female clients and
other target groups
- public relations work and
networking
- analysis and documentation
of activities
-
membership fees
www.fim-frauenrecht.de
Selected areas of work:
- Hessian coordination centre
in the work against
trafficking in human beings
and responsible special
counselling office for the
region south and central
Hesse
- project area: human rights
for people in illegality, with a
special focus on the situation
of children
Selected educational
measures for female clients,
students and for certain
vocational groups (also
international)
Counselling and assistance,
accommodation, information
for the affected women
102
The organisation is located in Kassel. Hessian Ministry for Social
Affairs, funds by the church and
[email protected]
by private individuals.
- female migrants
affected by violence
- female migrants with
problems concerning
foreigners law
- victims of trafficking of
females and forced
marriage
KARO e.V.
Cross-border milieus of
prostitution and drugs
in the context of forced
prostitution and/or via
trafficking of females
and sexual exploitation
of children
KOBRA – Zentrale Victims of human
trafficking
Koordinierungsund
authorities and
Beratungsstelle
institutions dealing with
für Opfer von
the phenomenon of
Frauenhandel
human trafficking on
the federal, regional
and international level
frauenberatungsstelle
düsseldorf e.V.
Fachstelle für
Opfer von
Frauenhandel
Counselling, assistance,
support and attendance for
female migrants in difficult
circumstances
Düsseldorf
Street work, counselling,
support, attendance,
prevention and sensitization
measures
German-Czech border region. The
office is located in Plauen.
http://www.frauenberatungsstelle.de
http://www.karosozialprojekt.de/index.htm
Funded by the city of Düsseldorf
and the federal state North
Rhine-Westphalia,
Donations
No funds at the moment, until
December 31, 2004 funded by
the State Ministry for Social
Affairs in Saxony.
Donations of goods and money
Coordination centre:
Support in implementing
regulations for the protection
of victims, training of key
personnel in Germany and
internationally, networking,
working groups as well as
public relations work
Counselling centre:
anonymous assistance and
attendance for victims of
human smuggling, free of
charge (counselling in cases
of trauma, etc.) before/during
court proceedings as well as
in cases of return to the
103
Responsible for Lower Saxony. The
office is located in the capital of
Lower Saxony, Hanover.
www.kobra-beratungsstelle.de
Ministry for Social Affairs,
Women, Families and Health of
Lower Saxony as well as internal
contributions (donations, fines).
country of origin
- Counselling and attendance
for the victims in their mother
tongue
- support for women who are
willing to give evidence and
assistance of female
witnesses during the court
proceedings
- integration and re-migration
assistance
- networking, public relations
work
NADESCHDA,
Women who fell victim - Social counselling and
Frauenberatungs- of human trafficking
attendance of victims of
stelle für Opfer
human trafficking
von
- assistance for females who
Menschenhandel
return to their country of
origin
- support of female witnesses
in court proceedings on
human trafficking operations
Psychological and social
SOLWODI e.V.
Women from Africa,
Asia, Latin America and counselling,
Eastern Europe
legal advice and counselling
foreign female
support
witnesses, mostly
illegal prostitutes
JADWIGA
Women who fell victim
of human trafficking by
prostitution tourism,
marriage brokering or
illegal labour
recruitment, especially
from Central and
Eastern Europe
Ecumenical model project in Bavaria.
Counselling bureaus in Munich and
Hof/Upper Franconia. This is
complemented by a Shelter Home for
Women in Odessa (Ukraine). A
bureau in Nuremberg is currently
established.
[email protected]
The counselling bureau is funded by
the Protestant Aid for Women in
Westphalia (Evangelische
Frauenhilfe in Westfalen e.V.).
104
The federal state North RhineWestphalia, Ministry for Women,
district administrations,
donations
Herford, area of responsibility is the
administrative district Detmold
[email protected]
The ten counselling bureaus are
located in Augsburg, Bad Kissingen,
Boppard, Braunschweig, Duisburg,
Koblenz, Ludwigshafen, Mainz,
Osnabrück and Passau.
The head office is in Boppard.
http://www.solwodi.de/
poor return migrants
Bavarian State Ministry for
Labour, Social Affairs, Families
and Women,
Diakonisches Werk Bavaria,
private donations
Donations by private individuals
and enterprises
Financial support by religious
communities, the federal states,
cities, ministries and
foundations.
TERRE DES
FEMMES e.V.
Menschenrechte für die
Frau
Women who fell victim of
female-specific violations
of human rights or who
are threatened by it
victims of trafficking in
women
Counselling and support,
arrangement of lawyers or of
places in protection centres,
implementation of Urgent
Actions or petitions, political
work, lobby activities and
human rights work
105
The head office is located in
Tübingen; in several cities there are
groups working as volunteers.
http://www.frauenrechte.de
Donations and membership
fees, project-related grants by
ministries, church associations
and the sponsoring of a
cosmetics company
5. UMBRELLA ASSOCIATIONS AND NETWORKS
context e.V.
- Sensitisation and clarification
approaches via activities and
campaigns
- expert panels, exchange of
networks
experts,
- conferences and events
female and male
- training courses and expert
migrants working in
prostitution, some without advice
- mediation for all involved
legal residence status
parties in the issue
(so-called illegalised
prostitution and migration,
persons)
including representatives of
local governments, politics,
police etc.
- compilation of
evaluations/studies as
accompanying quality
control and applicationoriented, as well as drafting
of models and quality
standards with a promising
future
- comments, statements to the
press and publications
Expert circles and the
public
106
context works on the topic
prostitution, with the areas migration,
health, sexuality and human rights.
Networking, research/education and
counselling are central aspects of
their work.
context is a registered association
with offices in Berlin, Frankfurt am
Main and Rio de Janeiro and was
founded in December 2003.
[email protected]
http://www.context-cps.de (under
construction)
Funding by respective projectand activity-bound monies and
grants by various public and
private institutions as well as
donations and sponsoring.
Forschungsgesellschaft
Flucht und
Migration e.V.
Refugees
Inquiries and research
migrants
publications
illegal migrants
statements to the press,
reports and articles
The Forschungsgesellschaft is
located in Berlin.
The activities are possible
because of voluntary
commitment and donations.
http://www.ffm-berlin.de/
Katholisches
Persons without legal
Forum Leben in residence status, among
der Illegalität
them also children
Lobby for social rights and
humanitarian issues
No counselling for individuals
Kein Mensch ist Refugees
illegal
illegal migrants
Network against deportation
and exclusion
campaigns and activities
migrants in detention
awaiting deportation
Material in form of posters,
flyers and texts
traumatised persons
107
Cooperation with refugee and human
rights organisations.
The head office is located in Berlin,
the forum includes, among others,
the Caritas association, the Malteser,
the Jesuit Refugee Service and the
migration commission of the German
Bishop Conference.
http://www.forum-illegalitaet.de/
Nation-wide orientation, no fixed
organisation. The mail address is
registered in Freiburg. Contacts are
available in almost all federal states.
http://www.contrast.org/borders/kein/
Support is provided for the aid
organisations mentioned on the
left.
Support is provided for the
Refugee Councils and the
Medical Refugee Aid (see
above).
KOKBundesweiter
Koordinierungskreis gegen
Frauenhandel
und Gewalt an
Frauen im
Migrationsprozess e.V.
Women
female migrants
victims of human
trafficking
foreign spouses
foreign prostitutes
Kölner Appell
gegen
Rassismus e.V.
Children, youth and
adults
Organisation of activities and
campaigns against trafficking
in women and violence
against women in the
migration process
Nation-wide coordination circle with
head office in Potsdam.
Funded by the Federal Ministry
for Families, Senior Citizens,
Women and Youth.
http://www.kok-potsdam.de/
The coordination bureau lobbies the
interests of women’s organisations
and counselling bureaus for women
such as Agisra and SOLWODI (see
Lobby for the introduction of a above).
permanent residence right for
victims of human trafficking
- Social counselling and other Cologne
forms of practical assistance
http://www.koelnerappell.de/
- intercultural homework
coaching
- open meeting place for
children and youths
- lobby for the improvement of
the rights of people without
residence status
- intercultural remembrance
work
- intercultural projects with
delinquent youth in the
correctional facility in
Cologne
- public events (lectures,
panel discussions) on
current topics
Networking as well as public
relations and lobby work
108
Donations, membership fees,
fines, project funds by the city of
Cologne (until 2006)
Project funding by "wir helfen
e.V", Aktion Mensch, DPWVNRW.
Project funding by the
foundation "Erinnerung,
Verantwortung und Zukunft"
(Remembrance, Responsibility
and Future).
NISCHE Netzwerk für
illegalisierte
Menschen in
Schleswig
Holstein
- Counselling centres
- female supporters
- policy-makers
- expert circles and the
public
- selected vocational
groups and authorities
- Networking
- public relations work
- conferences and events
- proposals for model projects
- publications
- arrangement of counselling
Union of counselling bureaus and
Donations, if needed funds by
individuals across Schleswig-Holstein the funding institutions, projectrelated funds.
http://homepage.schleswigholstein.de/nische/index.html
No counselling of individuals
6. TRADE UNIONS
Deutscher
Gewerkschaftsbund
DGB
All trade union members
female and male
employees
support and general advice,
free of charge
The DGB (German Confederation of
Trade Unions) is represented all over
Germany. The head office of the
federal board of directors is located in
Berlin.
Contributions by the trade
unions to the Federal
Government amounting to 12%
of the total amount of
contributions.
several papers on illegality
http://www.dgb.de/
The total amount of contributions
consists of the membership fees
paid by the trade union
members.
Legal advice and educational
offers
immigrants
illegally employed
persons
109
Vereinte
Members of ver.di
Dienstleistungsgewerkschaft
Female and male
ver.di
migrants, independent of
residence status
ver.di has district and local
associations all over Germany.
Educational offers,
counselling and legal
protection
http://www.verdi.de/migration
protection from discrimination
at the workplace and in
everyday life
guidelines and brochures
Europäischer
Verband der
Wanderarbeiter
/ European
Migrant
Workers Union
Female and male
employees working
abroad (employees of
companies who are
working abroad)
special focus on Polish
workers
Membership fees amounting to
1% or 0.5% of the monthly gross
income.
The federal working group “Migration”
is located in Berlin. Apart from that,
there are contact persons for
migration in the regional offices.
text on medical care for illegal
residents with contact
addresses
The special feature of the EVW is the
Counselling, support and
cross-border assistance. The office is
attendance
located in Frankfurt am Main.
legal protection and legal
http://www.migrant-workersadvice
union.org/
publication and events
Monthly membership fees and
admission fee
Annual contributions by
associated organisations,
according to the number of
members
Kick-off funding by loans of the
IG Bau.
sustaining members
110
7. INTERNATIONAL ORGANISATIONS
International
Labour
Organisation
ILO
Female and male
employees
Formulation and lobby of
international norms for labour
as well as social norms,
projects
women, men and children
reports and publications
in forced labour
victims of human
trafficking
The ILO’s major source of
income is the contributions paid
by the Member States.
http://www.ilo.org/public/german/regio
n/eurpro/bonn/
10 industrial states, including
Germany, pay 80% of the total
contributions.
minors
victims of human
trafficking
International
Female and male
Organization for migrants
Migration
IOM
refugees and displaced
persons
The representation of ILO Germany
is located in Berlin.
Representations of IOM in Germany
Assistance services,
are located in Berlin and Nuremberg.
counselling and support,
return management and reintegration assistance, asylum http://www.iom.int/germany/
and refugee protection,
combat of human trafficking
and human smuggling,
cooperation with private
enterprises in the area of reintegration of migrants,
integration, on-migration,
family reunion, Capacity
Building, publications
111
Basic funding by the Member
States; in addition, operational
payments by states and
organisations
UNHCR
Refugees
victims of human
trafficking and human
smuggling
asylum seekers
The representation of the High
Almost exclusively funded by
Commissioner for Refugees of the
voluntary contributions by the
United Nations in Germany is located donor countries.
in Berlin.
International level:
Implementation of aid
missions
National level:
http://www.unhcr.de/
Monitoring of international
agreements on the protection
of refugees; special emphasis A branch office of the liaison bureau
is on legal protection
is located at the Federal Office for
Migration and Refugees (BAMF) in
Comments on legal issues
Nuremberg.
and individual cases
112