A Shifting Field for the Reality of Deportation in Europe? Analyzing Policy Changes in Germany

This article forms part of the Policy Shift Migration and Integration Series, edited by Jennie Cottle (Policy Shift Co-Founder and Adjunct Faculty at Sciences Po) and Anna Piccinni (Associate Fellow Columbia University City Diplomacy Lab, OECD).

Changes in the “Duldung” Policy

In early June 2022, Germany’s Interior Minister Nancy Faeser from the Social Democrat Party (SPD) announced that migrants in Germany who have been living in Germany for more than five years with a “Duldung” - a temporary suspension of deportation - would be allowed to apply for longer-term residency after undergoing a preliminary “trial year”. This serves as an amendment to current German migration policy and is part of a series of various new migration proposals. Previously, the “Duldung” was used as a siloed short-term permit and the same migrant could receive several permits of this same type consecutively, adding up to periods of over five years. Indeed, while the specific short-term length of the existing permits varies, they are commonly issued less than one year at a time, resulting in frequently and repeatedly issuing the same document. As the “Duldung” is a temporary stay permit, but not a residence permit, the reasons for such a document to be issued often comes down to humanitarian or technical reasons within the specific context that the person’s asylum application is refused, but deportation remains not possible. The permit usually applies to those whose request for asylum was rejected or for those who have entered the country without a visa or residence permit and have not yet applied for asylum.

There are almost 300,000 people in Germany who are currently “ausriesepflichtig”, or obliged to leave, 242,000 of whom have a “Duldung”. Common scenarios in which a “Duldung” may be issued tend to be instances when there is an obstacle to deportation (i.e., for legal or practical reasons), for example, for someone who starts a school-based vocational training program, or for specific personal reasons. Due to the short-term nature of the standing permit, without any formalized prospect of remaining in Germany, it hinged upon a person’s ability to plan a secure future. Specifically, this proposal states that eligible migrants will include those who “have not yet received or have been refused international protection” but have been issued with a “Duldung”, or a temporary suspension of deportation. This enables migrants who have spent multiple years in Germany to begin planning their lives in a more long-term nature, and from the German perspective, to facilitate migrants’ integration into German society.

It is important to note that the “Duldung” is not a residence permit, but rather a temporary permit or “deportation stay” which enables migrants to legally reside in Germany for a limited period of time. However, their obligation to leave the country at the end of the permit still stands. The primary difference with the new rules lies in the fact that migrants would initially be issued a one-year residency permit, and upon showing proof that they had been learning German and are able to provide for themselves financially, would eventually be issued with a longer-term residency permit. This way, instead of living from month-to-month or year-to-year, the initial “trial year” paves the way for a longer stay, but requires significant language, financial and civil efforts on the part of the migrant. The person undergoing this trial period is entitled to the same benefits as those who currently hold a “Duldung”, including basic asylum seeker benefits, such as access to health care and basic coverage for food and accomodation as detailed under the Asylum Seekers’ Benefit Act, 1993 (reformed in 2015).

Under the new rules, migrants would initially be issued a one-year residency permit and then would be required to show proof they were learning the German language and could provide for themselves financially. Upon successfully fulfilling these requirements, there would be the possibility to be issued a longer-term residency permit. However, along with this new proposal would also come a broader mandate for deportation from the German government, strengthening the government’s deportation powers for those migrants who have not complied with the changing policy. Thus, while over 100,000 migrants would become eligible for this scheme after having lived in Germany for five or more years with a temporary leave to remain status, the ultimate purpose of such a policy is to end the German state’s reliance on a continual renewal of temporary status. The eligibility under the new law would cover migrants who have not yet received, or have been refused international protection, but have already been issued with a “Duldung” by the German State. In doing so, the government aims to respond to claims of insecurity and instability tied to the view that there are “unwelcome” residents settling in the country by introducing a pathway for migrants to stay longer.

Opposition to the Changes

While it is unsurprising that Union leaders - the political alliance comprised of the Christian Democratic Union (CDU)/Christian Social Union in Bavaria (CSU) - have taken a stance against the new proposal, the action of a mainstream political party who is in power, like that of the Social Democrat Party (SPD), to put forward legislation focused on prolonging migrant integration and residency does mark a shift within some of the contested stances of their EU counterparts. Notably, neighboring countries like Denmark and Britain were both widely criticized just months prior for opening talks with Rwanda about transferring asylum seekers to the east African country. Beyond this, Denmark was very heavily criticized for entertaining the possibility of returning Syrians back to their country after deeming it safe and stripping many asylum seekers of their residency permits.

Evidently, such policies which have had a heavy presence in EU migration policy discourse over the past decade mark a stark contrast with the undertones of the recent proposal of the SPD. While perhaps it can be questioned if the pragmatic application of such a policy will actually prove to be innovative for migrants’ rights and security, as is being claimed by the SPD, it is worthwhile to recognize the overt attempts of a mainstream political party within the EU to turn towards formalizing efforts for migrants to stay legally, albeit temporarily. Perhaps this initial proposal by Germany could signal the entrance into shifting the policies and discourse from temporary protection permits to legal migrant residency. Undoubtedly, this brings along questions of social security and social protections for migrants that would come along with formally permitting their stay in Europe.

Naturalization as a Key Process Towards Long-Term Residency

Importantly, critics of such policies must recognize that it is not the adjustment of temporary permits alone which has led to the retention of migrants in Germany. Indeed, naturalization statistics in Germany are shifting largely due to the fact that many Syrian nationals who left their country at the outbreak of violence (2014-2016) are becoming eligible to apply. In 2021 alone, there was a 20% increase in the total number of naturalizations, with 131,600 foreigners who became naturalized German citizens according to the Federal Statistical Office Destatis. It is interesting to note that the minimum residence period of 8 years is not a time frame that the majority (81%) of Syrians naturalized in 2021 fulfilled. Instead, most qualified after 6 years by showing a particular willingness to integrate, including achievement levels such as German language skills and civic commitment, which also permits their family members to be naturalized without requiring a minimum period of residence. Thus, as new policy proposals come to the forefront for prolonging temporary stays, there is also an important shift to be recognized within the broader migration discourse. We may question if and how public opinion and political spaces alike will shift or transition to accept more long-term and settlement-oriented immigration schemes in the future.

Much of the discourse in the EU over the past 10 years was focused on rejection of migrants and limiting borders, and as such it is important to consider how increased stays and naturalization pathways will fare in the nexus of public opinion, policy, and politics both within European countries and at the regional level (Figure 1). In the aftermath of several large waves of immigration to Europe in recent years, the type of migration policies which will adequately address and protect migrants’ right to formally stay in the region will undoubtedly take unique and novel forms (Figure 2). It will become crucial to observe how policies like those proposed by SPD, or those which are more ambitious, may play a role in what is increasingly considered as mainstream migration policy.

Figure 1: First-time asylum applicants (non-EU) in the EU Member States, 2008-2021

Source: Eurostat Statistics Explained (2022)

Figure 2: Top 15 nationalities of first time asylum applicants (2021)

Source: European Commission (2022)

Immigration Policy Put Forth by the EU Commission

Following the discussions over Germany’s federal-level migration policies, the official statement submitted by the Interior Ministry does state that those migrants who are eligible to apply, in the future, “should be given the opportunity to live permanently” in the country. The change of tone behind immigration policy on a national level also reflects EU-level conversations that were brought forward by EU Commissioner for Home Affairs Ylva Johansson earlier in May. In discussing the nexus between labor shortages – both in terms of low- and high-skilled work – with immigration, Johansson stressed the importance of “creating safe channels to Europe” through promoting legal migration essential to the European economic recovery. Similar to that of Germany, the Commission proposed an EU-level policy to allow non-EU citizens settling in the EU to acquire long-term status after five years in the bloc regardless of movement between member states or changing employers. For context, out of those who currently reside in Germany with a “Duldung”, around 100,000 have been living in Germany for five years or longer. Also reflecting some of the features behind the German-level proposals, the plan aims to “facilitate the process of obtention of a long-term work and residence permit directly from prospective migrants’ countries of origin” with the goal of reducing processing times and simplifying family reunification. However, this plan still places migrants in an economic perspective, versus a human rights perspective, which mirrors the undertone put forward by Johansson and the Commission at large to its member states’ citizens.

Human Rights Approach: Migration and Development

Unsurprisingly, the Office of the United Nations High Commissioner for Human Rights (OHCHR) commits to the importance of human rights as “central, not ancillary, to the migration-development process, and that the effect of a respect for rights goes far beyond the individual migrants and benefits their home societies and those in which they live and work”. In this regard, the decision of EU Member States (and the Commission itself) to transition towards formalization, regularization, and security of migrants in the proposed policies has an opportunity to make the connection between the economic benefits for EU Member States as well as the human rights component for migrants. Indeed, there exists space to formally present the why behind such policies as not solely sprouting from the perspective of benefits to the European economy, but instead to draw the connection between ensuring migrants’ well-being on a human rights level in order to then complete the nexus with development and broader societal benefits.

While the EU considers the extent to which it is willing to support a human rights approach as central to migration policy, it is critical to also recognize that the lack of respect for human rights will also reduce the extent to which migrants contribute to development processes. In other words, the transition towards more long-term approaches to legalizing migrants’ stay in Europe, both at the regional and country level, provide a clear opportunity to shift the discourse of migrants – which has largely been based on a “problem” or “issue” rhetoric – towards a positive one, centred upon the importance of migrants’ rights from a human rights perspective. This in turn can more broadly contribute to positive development progress. How this translates from shifting policy objectives to the political field will be critical in maintaining the momentum of such an approach. Indeed, for the case of the “Duldung” and its adjustments presented by the SPD, it is important that critics and constituents alike understand the current migration policy landscape, including the policies which are leading to changes in migration rates (such as long-term residency) and what that means on a practical level. Similarly, the EU Commission as a regional body has the ability and opportunity to shift conversations towards a more stable, less reactive, migration policy. In this regard, it is critical to investigate its role as a regional force and the power it holds in situations where states implement unilateral policies that may contradict what is being decided on the Commission level.

Implementation of Migration Policy: EU Level

Bearing in mind the question of pragmatic feasibility of implementing such policies on the European level based on recent developments in response to Russia’s invasion of Ukraine, the European Union has pivoted to accommodate the recent influx of Ukrainian refugees. The EU’s Temporary Protection Scheme grants Ukrainian refugees access to the labor market, as well as public services such as healthcare and education for at least three years. At the same time, the inequities of the EU’s response to the influx of refugees as a result of the Russian invasion versus its response to migrants who immigrated due to the Syrian Civil War is evident and has been widely critiqued. However, despite this clear discrepancy the recent proposals put forward in both national-level and regional-level settings, as well as the ability for the EU to make such adjustments in the face of the most recent conflict, does demonstrate a space for more permanent, security-assuring changes to be implemented. Beyond just the legal affirmation for Ukrainian refugees to stay in the EU-member state countries they have fled to, access to public services and benefits calls attention to the capacity of the Commission to make and apply actionable responses when necessary.

Conclusion

The SPD’s proposal to extend the length of the “Duldung” permit is an important step towards more inclusive immigration policies which could pave the way for other EU countries to follow suit. Indeed, Germany, as one of Europe’s leading migrant receiving countries, has an influential role when it comes to the landscape and tone of prevailing migration policies. The “Duldung” reform proposed by the SPD could have positive implications, leading with the fact that it recognizes the reality of medium- and long-term stay of migrants and offers a way to formalize such migration. In the future, this could lead to longer-term secure permission opportunities such as expanding access to residency permits.

More inclusive migration policies also have significant economic benefits for migrants, including the ability to financially plan ahead more than just a few months in the future. This also represents an economic benefit for the German government as well, since this will likely contribute to less reliance on financial security protection measures from the government. Additionally, the policy’s incentive to reward those who have made efforts and strides to learn German and be civically involved is significant and leads to reducing barriers of integration. However, policymakers working on the proposal should still remain acutely aware of the potential additional pressure that a migrant may feel to prove that he or she is civically engaged, relative to their German counterparts. This is especially important to take into account since migrants often face additional financial and social burdens, receive only basic benefits, and may find themselves in more precarious situations compared to residents from the host population. Nonetheless, this policy remains a critical move for German migration policy and we should continue monitoring its potential impact to understand if and how the positive momentum from this policy may affect other future migration policies focusing on integration and inclusiveness, both at the national and regional level.

*Shaydah is a dual degree candidate completing the Masters of Public Policy at Sciences Po Paris and Masters of Global Affairs at the University of Toronto, and has a professional and academic background in topics related to public policy, global migration and economic development.

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