The arbitrariness of ‘illegality’ in Germany

Welcome back to the ‘Seeing Illegal Immigrants’ project blog! Having joined the fantastic SIMs team on 1 September, I am delighted to provide you with an update on our ongoing work. Today’s blog post also briefly sketches the premises of the project in general and outlines the structural conditions and background of the German case study in particular.

During the initial project phase, we will produce three country reports (one each per case study) based on available literature, legislation and policy documents relating to the monitoring of unregistered migrant residents with a focus on the late 1960s and early 1970s up to the present. The aim of this work is to develop starting points for the next phase of empirical fieldwork, with a view to discussing our findings at a team workshop in early December.

The first phase of our research is guided by the assumption that ‘the state is profoundly implicated in the production of irregularity’ of migration (Hampshire, J. (2013) The Politics of Immigration: Contradictions of the Liberal State, p. 63). Thus, ‘irregularity’ or ‘illegality’ is not an intrinsic feature of certain people but a category and status ascribed by state authorities. Our focus lies on the agents who are involved in identifying processes by designing or implementing policies that are aimed at controlling such categorised persons. ‘Illegality’ may result from unauthorised entry, entry using forged documents, visa overstay, violation of visa terms (e.g. working without authorisation) and rejection of an asylum claim. In Europe, it is assumed that the vast majority (80-90%) of ‘irregular’ migrants results from overstaying or visa term violations – unlike political and media reports suggest, only 10-20% of ‘illegal’ migrants follow from unauthorised entry (Düvell, F. (2011) Paths into Irregularity: The Legal and Political Construction of Irregular Migration).

This is one of the reasons why in our research of different types of migration control policies, we will put the focus on internal ‘gatekeeping’ and ‘fencing’ policies (cf. Vogel, D. (2015) International Comparisons of Migrations Controls). That means we will critically examine policies targeting migrants who already reside within the respective country. ‘Gatekeeping’ policies refer to efforts to identify unauthorised migrants, for example, through laws and policies obliging individuals  to register with the authorities or by imposing the duty on authorities to cooperate in sharing information. ‘Fencing’ policies, by contrast, refer to detection practices such as home raids and workplace inspections.

I am conducting the German case study which is now underway. In Germany, the issue of who the state regards as an ‘illegal’ immigrant is open to considerable scope of interpretation. German law distinguishes between two different categories of unauthorised residence, ‘illegal’ (illegal) versus ‘irregular’ (nicht rechtmäßig), but does not sufficiently clarify these terms (Schönwälder, K. et al. (2004) Migration und Illegalität in Deutschland, p. 38). The legal categorisation and social-political construction of ‘illegality’ is therefore particularly ambivalent and prone to arbitrary reasoning in Germany compared to the United Kingdom and France.

This is further complicated by the territorial division of competences. Unlike Britain and France, Germany is characterised by a federal state structure according to which the federal state (Bund) and the 16 constituent states (Länder) share competences in the making and implementation of policies and laws. In addition, each state has its own legislative, executive and judicial powers. In the area of ‘irregular’ migration, the federal state for example grants or rejects asylum and separately collects information about ‘foreigners’ by maintaining the Central Aliens Register (Ausländerzentralregister). The member states, on the other hand, issue or withhold residence permits and enforce inspections.

The federal state structure thus leaves it to the authorities of the member states and their municipalities to determine whether or not an individual’s residence is considered ‘illegal’ hence prosecutable. What is more, the lack of clarification in the federal law gives local authorities considerable discretion in the decision-making process – a fact that will be of particular interest for the empirical fieldwork.

You will soon find our detailed project bibliography under ‘Work in Progress’ with an extensive list of references on the topic of monitoring of unregistered migrants. We will update this bibliography regularly as the project develops. Please feel free to use it for your own research, to share it with friends and colleagues and do not hesitate to get in touch with us with any queries or suggestions you may have!