Framing the Debate over the German Immigration Bill: Toward Reasoned Policymaking

• Autores: Malcolm MacLaren
• Localización: German Law Journal, ISSN-e 2071-8322, Vol. 2, Nº. 16, 2001, pág. 11
• Idioma: inglés
• Texto completo no disponible (Saber más ...)
• Resumen

  • I) Introduction [1] At the best of times, the issue of immigration is sensitive and related debate heated. At times such as these, it cannot be expected to be handled sensibly. The decision of the German Interior Minister following the terrorist attacks in the United States not to submit proposed immigration legislation to Cabinet on September 26 (1) was, from this perspective alone, wise. Historical examples of the mistakes in policymaking that can result from deficient democratic discourse are legion and are most commonly made during times of political crisis. Unfortunately, the resultant mistakes may be thereby all the graver, as the policies concern issues of fundamental national importance. (2) [2] It is in a time of crisis that the German immigration bill now finds itself in the political arena. The bill raises issues of fundamental national importance: it promises to affect Germany's identity as well as its future well-being. The decision to postpone tabling the bill should not merely offer the government time to reassess related security provisions. It should also offer the general public additional opportunity to consider carefully and openly discuss the proposed legislation. Even prior to the events of September 11, the deliberation was neither careful nor open. If the opportunity is so seized, a reasoned decision to adopt or reject what would be Germany's first-ever regulated immigration program (3) will ultimately be taken.

    [3] The following article will attempt to set out parameters, real as well as conceptual, that may be used to frame deliberation over the German immigration bill. Although it may not have been apparent in the debate thus far, there are in theory and in present circumstances touchstones, according to which policy positions may rationally be supported.

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    II) A Question of Values - The Source of the Tension in Immigration Policymaking [4] Immigration policymaking essentially concerns the conditions of membership in a given political community. The issue reduces to a question of "who may become citizens and who must remain strangers, for nations imply boundaries and boundaries at some point imply closure". (4) The definition and justification of these conditions is, however, never self-evident in modern nation states. Out of this underlying uncertainty conflict in immigration policymaking invariably arises.

    [5] Two values may be seen as standing at the centre of the conflict, namely liberty and community. Indeed, the very nature of these values gives rise to the conflict: not only do they in their abstract qualities provide little concrete direction in policymaking, but their opposition to one another itself stimulates conflict. Contemporary liberal theory for its part may usefully be seen as comprising libertarian, social contractarian, and utilitarian strands. (5) The justifications vary among the strands (individual property rights, universal brotherhood of man, and utility, respectively) and may be subject to restriction (by others' rights, public order and security, and disutility, respectively). By emphasizing the equal moral worth of individuals, however, all dictate relatively open borders. Contemporary community theory emphasizes in contrast the right of states to choose an admissions or rather an exclusion policy. (6) States, like clubs and families, should on this view be free to determine the conditions of membership. Almost any limitations on entry that a state chooses to impose would be permitted.

    [6] The values of liberty and community must eventually be confronted in the design of any nation's immigration policies. Grounds for reconciliation may be broadly conceived of. It can be accepted that a policy of unconstrained immigration would be unsupportable, as it would threaten a collapse of the national infrastructure or a backlash of the current citizenry. The size and composition of the intake must therefore be controlled. The question in policymaking becomes how and to what degree should immigration be constrained.

    III) "More needed, fewer wanted" (7) � The Contemporary Perspectives of Economism and Populism [7] Historically, New World states alone were faced with the question of how and to what degree should immigration be constrained. Many other states are today also having to cope with immigration flows. The sheer scale and changing composition of contemporary immigration have focussed attention in receiving states around the world on the impact of immigrants on domestic labour markets, social programme expenditures, and cultural cohesiveness. All are, as noted, justifiable concerns in principle.

    [8] Western Europe states find themselves coping in particular with the pressure of economic migration. (Family and political migration no longer dominate inflows as in the 1970s and 80s, while the importance ethnic migration has receded with time since the fall of the Iron Curtain.) (8) The pressure of economic migration is being felt from east to west (especially from Eastern Europe) as well as from south to north (especially from North Africa). Domestic problems such as population explosion, ethnic strife, and environmental degradation or simply a desire for a better life are driving migrants to move abroad. Conditions in the receiving state are also relevant, inasmuch as they generate pressure for economic migration. Labour shortages can induce openness and sometimes active recruitment policies, as seen in the 1950s and 1960s guest worker programmes. The need to maintain welfare, health care, and pension systems at their current levels of support is also motivating receiving states to consider admitting more foreign workers.

    [9] More specifically, both pressures are currently at work as regards Germany. The migration potential of Eastern Europe, predominantly to Germany, has been estimated to be between 5 million to 50 million over the next decades (9), a vast range but by all measures great. Three million ethnic Germans have already come from the former Soviet Union in the past decade and 1 million citizens of Balkan states now live in Germany. (10) The EU's enlargement may well mean an additional 200,000 to 300,000 immigrants annually. (11) At the same time, businessmen are pressing the government for changes in the immigration law to allow in more foreign workers, claiming that they have many jobs and far too few qualified Germans to fill them. Economists support their demand: more than the 200,000 net immigrants averaged annually over the past five years will be needed if the German economy is to enjoy continued growth and the population a strong social safety net. Demographers in the Federal Statistical Office go further, calculating that millions more will be needed as the Germany population ages and shrinks over the next fifty years due a persistently low birth rate. (12) [10] From the perspective of liberal theory alone, the answer to this policy issue appears self-evident. The utilitarian strand would prescribe an open door policy. The alien who wants to immigrate presumably considers that the benefits of uprooting and resettling elsewhere outweigh the costs. (13) Likewise, the impact of immigrants on domestic labour markets and social programme expenditures in the receiving state, Germany, would, as has been extensively documented, be positive.

    [11] Such an approach to immigration policymaking would mark a sea-change in approach: the norm in Germany has been to admit as permanent immigrants only persons with strong blood ties. The value of community must also be addressed, not only theoretically but also practically. For while it may be clear that Germany like its neighbours needs more immigrants, it is by no means clear that its citizenry wants them. Indeed, "[b]usiness leaders find understanding for their position on immigration only among their own kind." (14) The numbers speak to a large extent for themselves as to why this is the case. Germany's population stands at 82 million; 10 million foreigners have come to Germany in the past decade; 7.4 million foreigners currently reside in Germany, the highest percentage of any major EU state; 2 million of them are from one ethnic group, turkish, with a typically Muslim, rural, not highly educated background. (15) Polls confirm the effects of these large flows on popular opinion. Even at the recently reduced levels of net immigration, two-thirds of Germans already feel that too many foreigners are arriving. Only 8 percent would support an overall increase in the current net immigration level. (16) The way in which the general public perceives immigration is also largely negative. With nearly 4 million Germans unemployed, the general public is unclear as to why foreign job-seekers are automatically better than domestic. Moreover, they remember how decades ago guest workers were supposed to solve short-term labour shortages - and how long-term population changes resulted when they were subsequently allowed to stay. (17) Lastly, as nearly one-third of Germany's prison inmates are foreigners, there is in many minds a direct link between immigrants and crime. (18) In short, Germans describe themselves as "afraid - for their jobs, their homes, their security, their very identity." (19) [12] Whether these general fears are rational or not (20) is in this context moot. The fact is that they are real and must be addressed in designing an appropriate immigration policy. This imperative derives not so much from concern for the government's chances of reelection next autumn, though the astounding success of a new law-and-order party in Hamburg's recent state election (21) should be taken note of. The imperative derives rather from concern for cultural cohesiveness. Proponents of community theory claim that neighbourhoods have historically turned into closed or parochial communities whenever the state was open. (22) The news that reported violence against foreigners in Germany jumped by a third last year (23) appears to confirm this concern.

    [13] In its prior policymaking in this area, the federal government has pursued a two-pronged approach, attempting to satisfy business as well as popular demands. On one hand, with its so-called green-card scheme to admit up to 20,000 computer experts it has sought to provide needed skilled labour. On the other hand, Germany has insisted on a seven-year transition for the free movement of labour when the EU expands eastward so as to assuage widespread fear of a flood of cheap foreign labour. (24) The success of these policies is open to question. (The green-card scheme has failed to attract the targetted number of experts. A transition period for all economic sectors would deprive many industries like agriculture and food service that are suffering from a dearth of workers (25) in order to prevent large-scale migration that would possibly never materialize anyway. (26)) The Social Democratic government must be given some credit, however, for implicitly making a gesture towards the values of both liberty and community in the design of its immigration policies.

    IV) Competing Conceptions of National Interest - The Parties' Positions on the Bill [14] The political debate thus far over the German immigration bill has largely revolved around competing perspectives in evaluating its welfare implications. A threshold question for all receiving states when making policy in this area is whether a narrowly economic conception of welfare should be adopted or whether it should include non-economic factors such as humanitarian, social, cultural, and distributional concerns. (27) These conceptions may be seen as roughly corresponding to the values of liberty and community, respectively, that were outlined above. Nearly all politicians agree that Germany needs foreign workers, but the way in which immigration would be best regulated varies significantly among the parties. At one extreme, the Free Democratic Party, a minority opposition group, has espoused an exclusively economic conception. At the other, the junior coalition partner Alliance 90/The Greens has focussed on non-economic factors. Both smaller parties support high immigration quotas. (28) The main opposition Christian Democratic Union/Christian Social Union and the Social Democratic government have sought to portray themselves as being balanced in their conception of the issue, and they reject unrestricted immigration to roughly the same degree. Nonetheless, they have emphasized markedly different concerns. While both speak of favouring Germany's interests, the CDU/CSU defines them largely in cultural terms, the SPD in economic. The inability of participants to find a common perspective has rendered the German debate particularly heated and fruitless. It has confirmed, at least in the present context, Chancellor Gerhard Schroeder's opinion that immigration is, "no issue for an election campaign". (29) [15] For its part, the government has deliberately drafted the legislation to strongly emphasize the country's economic needs as the central criteria in selecting immigrants. The Interior Minister, Otto Schily, argued at the legislation's unveiling that "[t]here's competition among the industrialized countries for the best minds. That's why we have to direct our immigration law more strongly toward our own economic interests." (30) Under the new law, Germany would offer immediate entry for an indefinte time to highly qualified foreign workers. Other would-be immigrants would judged on a point system that would give priority to the skilled. The system awards points according to criteria such as age, qualifications, and knowledge of German. No quota for immigrants has been set; the number of immigrants to be admitted would be adjusted to correspond to the changing needs of the German labour market. Schily expects that number to be relatively small for at least the next few years. (31) The proposed legislation requires immigrants admitted under the point system to take more steps to integrate: they would have to follow an integration course, learning German language and history, or risk losing their work permits.

    [16] If someone can be judged by the company they keep, the government's emphasis on economic concerns in its policymaking becomes all the more plain. The Free Democratic Party has come out in support of the proposed legislation, saying that its market thrust met FDP demands. (32) The FDP had earlier called for the government to create tailor-made policies to address individual companies' worker needs. At all events, the party's spokesman on domestic issues urged, "[l]et's allow the market to decide about immigration." (33) [17] The Interior Minister expects that the proposed legislation can still win broad, non-partisan support in the German legislature. (34) Not surprisingly, the bill has run into considerable criticism within and outside the government coalition. The Greens have focussed their criticism on non-economic aspects of the bill. First, they are concerned with the matter of family unification for immigrants admitted under the point system. These immigrants would be allowed to arrive with their children or have them follow up to the child's 12th birthday and not the 18th as proposed by the Greens. (35) Second, they are concerned with a secondary aim of the bill, streamlining the asylum process. They believe that this reform would worsen the status of civil war refugees and fail to recognize non-state persecution as a grounds for asylum. (36) [18] The main opposition has been divided on the issue. The CDU, which long pretended that "Germany is not a land of immigration" now accept that "controlled" immigration is needed to meet the demand for skilled labour. (37) It believes, however, that Germany has "a problem integrating some of the foreigners", a problem that should not be exacerbated by more immigration. "That is why", CDU leaders claim, "we must talk about who should be allowed to immigrate to Germany." (38) Specifically, the party demands a strict control on the number of immigrants; tighter requirements for those trying to qualify as highly skilled; an expansion of programs to improve integration; and stronger rules for groups already admitted under current rules, namely asylum seekers and relatives of existing immigrants. (39) Their Bavarian sister party, the CSU, has not moved as far in its conceptualizing of the issue. While acknowledging that Germany has descriptively speaking been a land of immigration for a long time, it does not wish to see Germany become legally speaking a land of immigration. (40) It has complained that the Interior Minister "wants to steer immigration, but he doesn't want to limit it." (41) Accordingly, the deputy leader has called for a "strict and clear no" on the issue. (42) V) Dialogue of the Deaf - Political Exchanges in the Legislative Debate [19] In the debate over his proposed legislation, the Interior Minister has attempted to assume the part of the statesman, crafting a reasonable response to a given national concern, rather than that of the partisan, pursuing a predetermined political agenda. Schily has presented the circumstances in which Germany finds itself as calling for the reform of policy that he has undertaken. Inasmuch as he has engaged in politics, it has been to strike a "very fair balance" between the different aims represented by the coalition parties (43) and to win the votes in the CDU/CSU needed to ensure the passage of the reform in the upper house of the legislature. He is, in his own words, 'someone trying to find out what in the way of agreement exists among the parties.' (44) Schily has contrasted the part of some opponents of the proposed legislation. Singling out the Greens and the CSU, he has spoken of "fundamentalist disturbances" not conducive to a consensus on immigration. (45) If they wish to pursue 'the politics of obstruction', the Interior Minister has stated, then they need not participate in the debate at all. (46) [20] Schily's characterization of his part in the debate strikes one as disingenuous. As aforementioned, the definition and justification for the conditions of membership in modern nation states are never self-evident, least of all perhaps in Germany today. Moreover, politics do stand very much behind the proposed legislation. The SPD is seeking a cross-party consensus to defuse a potentially explosive election issue (47), and it is counting on German business to put pressure on the CDU/CSU to lift restrictions on foreign workers. (48) Schily's characterization of his opponents is also unfair: their concerns are justifiable and worthy of consideration in the debate as well. They do take, pace the Interior Minister, their 'public responsibility seriously' and are attempting to contribute to the deliberative process not to obstruct it. (49) Accordingly, Schily's call for "constructive" suggestions on the details of reform and dismissal of arguments designed to "torpedo" the entire project (50) is in its attempt to limit debate simply self-serving.

    [21] Schily may reasonably be upbraided not only for his manner of conducting the debate, but also for his actual arguments. The Interior Minister may be challenged on his own terms, i.e. his economic conception of policymaking. The point system that Schily proposes has been borrowed from Canada, which has considerable experience with selective economic immigration. Canada's experience does not, however, speak to certain success. Two problems arise with respect to immigrants who are screened for skills. First, receiving states do not determine the qualifications of immigrants seeking entry: this is largely determined by conditions in sending states. Push as well as pull factors are here relevant. "Only skilled workers from countries that 'tax' directly or indirectly the earnings and opportunities of high performing skilled workers, where receiving countries permit higher dispersions in returns to human capital, are likely to find it attractive to emigrate. This may be a relatively small applicant pool." (51) (It appears to be no coincidence in this regard that the Poles failed to take up the whole quota of visas for computer experts alloted to them under the green-card scheme.) (52) Second, the efficacy of predicting the need for labour in the receiving state is open to doubt. "The Canadian experience [...] suggests that attempts at fine-tuning screening criteria by occupation or class of skill imply an accuracy in manpower forecasting that is mostly unwarranted". (53) The only criteria that may be useful are therefore the most basic, such as age, language skills, educational attainment.

    [22] The Interior Minister may also reasonably be criticized for his narrow conception of welfare in immigration policymaking. If consideration of non-economic factors in immigration policymaking is ever justifiable, it is in the contemporary German context. The Canadian experience may here be instructive as well. Canada has had to address questions similar to those now confronting Germany since it decided to open its doors to large-scale immigration from non-Western countries in the 1960s. The decision, which was also taken essentially out of self-interest, was never "as friction-free as the government likes to pretend." (54) If immigration can precipitate political controversy and social tension over cultural cohesiveness in a land of immigration like Canada, then a fortiori should be expected to do so in Germany. Schily's approach would, as noted, mark a sea-change in German immigration policymaking. (55) Furthermore, the reform comes in the face of a generally negative public attitude toward - even fear of - immigration. Given this context, the concerns of the CDU/CSU about increasing immigration are in principle legitimate. They allege that the proposed legislation allows for unlimited immigration of highly qualified and self-employed applicants and that it contains an overly vague defintion of who would qualify to be included in these groups. (56) As a German expression of the underlying value of community, these concerns warrant consideration.

    [23] Perhaps this connection was made most explicit last fall when the CDU parliamentary leader, Friedrich Merz, stated that foreigners who want to settle in Germany should be prepared to integrate themselves into the German "Leitkultur". He meant at a minimum that immigrants should respect the German constitution's norms and rules and that its society should be uni- rather than multicultural. (57) Again, his concern was legitimate. A debate on immigration policy cannot be properly conducted without addressing the matter of what constitutes Germany's culture. Put otherwise, those who refuse even to discuss cultural identity "will never be able to solve the other problem - the issue of immigration." (58) [24] Unfortunately, this subject seems to be a taboo in Germany's political arena. Those who attempt to address the matter of which traditions immigrants should respect are typically accused, by the government at least, of being "populist[s] whose reckless remarks are likely to provide extremists with welcome ammunition." (59) Paradoxically, by suppressing such open discussion, extremists' attempts to play upon a fear of immigrants and encourage xenophobia will likely find greater popular resonance. As argued, the general public's fears, however rational or irrational they may be, are real: they are widespread and abiding. As such, they cannot be perfunctorily dismissed by the main-stream parties. "After all, voters do not always abide by the rules on [...] what might and might not constitute a threat." (60) Instead, they must be addressed in designing an appropriate immigration policy. "If the SPD and CDU give voters the impression that they do not take their opinions and concerns seriously, then the ones to profit might well be the extremists". (61) In short, it would be short-sighted and even dangerous for the government to attempt to suppress discussion, as many German businessmen urge for fear of offending would-be economic immigrants, on whether multiculturalism should be rejected and national pride embraced, as the CDU argue. (62) VI) Conclusion [25] The recent decision of Otto Schily not to submit proposed legislation to the federal Cabinet signifies a postponement and not a shelving of immigration reform. (63) The contemporary political, social, and economic pressure to reform this area of German public policy is too great to be denied: Germany needs to establish strategies and infrastructures to govern immigration. When the Interior Minister does table his bill, it can be expected to generate considerable controversy. The issue of immigration touches on the core societal values of liberty and community, which are currently out of harmony. What remains to be seen is how the deliberative process will be conducted. Will the political exchanges rise to the occasion and be characterized by careful consideration and open discussion or will they, as they have thus far, fall well short of that ideal? (64) It is only through such deliberation that the economic and popular viewpoints on immigration may be reconciled and a reasoned decision reached. The degree to which German immigration policies clearly distinguish economically necessitous aliens on one hand and claimants who pose a security risk on the other as different classes of immigrants will be one indicator. As an editorial in a leading U.S. newspaper noted, the easiest and most natural political response in a time of crisis "is to approve any package that comes under the banner of cracking down on evildoers, without looking too hard at the practical implications." (65)