GERMAN IMMIGRATION POLICY: HOLDING AT BAY A SEA OF WOULD-BE IMMIGRANTS

BRIGITTE T. Nuss"

Germany is not a country of immigration. Thus all necessary measures . . . must be taken to prevent future immigration . . . Illegal entry and employment must be prevented. - Official policy statement of German Chancellor Helmut Kohl's Government.

I. INTRODUCTION

In 1989, the meteoric collapse of the Eastern European Communist regimes spawned tremendous optimism and celebration throughout the world. The removal of the Berlin Wall effectively destroyed one of the most imposing physical barriers to free movement between Eastern and Western Europe. West Germans enthusiastically welcomed refugees from the East, and West German leaders, headed by Chancellor Helmut Kohl, succeeded in reunifying Germany in 1990. Since the collapse of the Berlin Wall, nearly two million people have resettled in Germany, not only from the East German states, but also from Poland, Hungary, Romania, the former Soviet Union and the Balkan republics. 2 From January'through September 1991, an additional 40,000 individuals entered the country illegally.3 The strain of these recent, large migrations on Germany's social infrastructure has brought the topic of immigration to the forefront of German politics. 4 Due to the heavy recruiting of foreign labor in the

The author accepts responsbility for all foreign language sources. T. Alexander Aleinikoff, Political Asylum in the FederalRepublic of Germany and the Republic of France: Lessons for the United States, 17 U. MICH. J.L. REF. 183, 212 n.103 (1984)(quoting ZEITSCHRIFr FOR AUSLANDERRECHT UND AUSLANDERPOLITIK, 4/1982, at 166). 2 The Floodgates are Bursting, Bus. WK., Sept. 9, 1991, at 52. SId. Immigration has been a particularly volatile, if sporadic, topic in German politics ever since the arrival of guest workers in the 1950s. Guest workers are individuals from poorer European and North African countries who were brought into Germany to work less-skilled jobs in German factories. See infra part III. A cooperative relationship between the German government and business people facilitated the guest workers' entry and residence in Germany. Id. In the 1970s, the debate over the increasing number of foreign guest workers resulted in the stoppage of official recruitment procedures for such workers by the government. Id. In the early 1980s, many commentaries and articles detailed the plight of the guest workers, especially those of the second Wisconsin International Law Journal

1960s, Germany already boasted a foreign population of over five million before the more recent migrations began.5 The federal government, however, has yet to establish an official immigration policy. While rules and regulations exist for entry visas, work permits, grants of asylum, and the like, there is no separate federal bureau to regulate immigration matters. Instead, much of the implementation of existing laws occurs at the local government level. 6 Well-established quotas or criteria limiting the number, or the type, of people allowed into Germany as legal foreign residents are nonexistent. Moreover, German citizenship is extremely difficult to obtain.7 These policy deficiencies stem from the political establishment's longstanding belief that Germany's foreign population was a temporary phenomenon.' Political leaders believed that the number of foreign workers in Germany would naturally dissipate when the economy slowed and German companies no longer needed them.9 This Comment develops two interconnected themes. First, it demonstrates Germany's urgent need to recast its role as a traditional emigration country to an immigration country and implement an official federal immigration policy.1° This immigration policy should include quotas limiting the annual number of immigrants allowed into Germany, and new laws facilitating the acquisition of German citizenship. Second, this Comment proposes that Article 116(1) of Germany's Basic Law

and third generations, and their integration into German culture. See, e.g., Stephen Castles, The Guests Who Stayed-The Debate on "ForeignersPolicy" in the German FederalRepublic, 19 INT'L MIGRATION REV. 517 (1985); Ulrike Sch6neberg, Participationin Ethnic Associations: The Case of Immigrants in West Germany, 19 INT'L MIGRATION REV. 416 (1985). The Floodgates are Bursting, supra text note 2. 6 BUNDESMINISTERIUM DES INNERN, AUFZEICHNUNG ZUR AUSLANDERPOLITIK UND ZUM AUSLANDERRECHT IN DER BUNDESREPUBLIK DEUTSCHLAND, at 24 (1991) [hereinafter AUFZEICHNUNG ZUR AUSLANDERPOLITIK]. The Social Democratic Party ("SPD") has urged the establishment of a Federal Commission for Migration and Integration; however, no action has yet been taken. SPD: Mehr Rechtefitr Auslanderbeauftragten,FRANKFURTER ALLGEMEINE, Oct. 18, 1991, at 3. See infra part IV. AUFZEICHNUNG ZUR AUSLANDERPOLITIK, supra note 6; Hartmut Esser & Hermann Korte, Federal Republic of Germany, in EUROPEAN IMMIGRATION POLICY 165, 178-79 (Tomas Hammar ed., 1985). Esser & Korte, supra note 8, at 179. i An emigration country in the context of this Comment refers to a nation which experiences a constant stream of emigration over a period of time. Conversely, an immigration country is one that receives a steady flow of individuals seeking permanent residency and citizenship. Traditional immigration countries include the United States, Canada, and Australia. Vol. 11, No. I German Immigration Policy

("Grundgesetz") be repealed." Article 116(1) provides ethnic Germans in Eastern Europe and the Commonwealth of Independent States ("C. I.S. ") with the same legal rights as German citizens, and is the legal basis for other laws granting ethnic Germans a right to citizenship. The repeal of Article 116(1) would signify that all individuals who desire to immigrate to Germany would be subject to the same regulations regardless of ethnic heritage. Additionally, a comparative study of U.S. immigration law in Part VI describes immigration statutes within other developed countries, and the advantages to be gained from a formal policy in Germany.

II. THE NEED FOR AN OFFICIAL IMMIGRATION POLICY

Over the past twenty-five years, Germany has increasingly become a country of final destination for many immigrants, due in large part to several of its constitutional provisions, a strong economy and changing demographics. 12 This has led to growing polarization among German citizens and foreign residents, as reflected by a record number of attacks against foreigners living in Germany and in the growing popularity of extremist political groups advocating xenophobic policies.13 In response to the recent large migrations into Germany, German politicians have focused their attention almost exclusively on the status of political refugees in Germany and the many problems associated with the adjudication of asylum applications. 14 They have avoided, however, any substantive discussion of formulating a concrete immigration policy. Such a discussion should be undertaken as it would alleviate widespread citizen concern that the government is too apathetic and has lost control of its borders. An open legislative debate might also help to diffuse the growing popularity of political extremists. Moreover, with a formalized policy,

" The Basic Law, adopted on May 23, 1949, is the constitution of the Federal Republic of Germany. GRUNDGESETZ [Constitution] [GG] art. 116(1), translatedin, PRESS AND INFORMATION OFFICE OF THE FEDERAL GOVERNMENT, BASIC LAW OF THE FEDERAL REPUBLIC OF GERMANY 83 (1981) [hereinafter BASIC LAW]. ,2 Until the middle of the twentieth century, Germany never experienced large migrations of foreigners into its territory; rather, many Germans left their homeland in order to settle in the United States, Canada and such eastern European countries as Czechoslovakia, Poland, Romania, as well as the Volga and Black Sea regions of the Soviet Union. See infra part V for a more comprehensive overview of German migratory patterns. "3Authorities Move Foreigners After Attack, UPI, Sept. 24, 1991, available in LEXIS, Nexis library, UPI File; Quentin Peel, Racist Attacks Mar German Unity Anniversary, FIN. TIMES, Oct. 4, 1991 at 1. 14SPD schliesst GrundgesetzdnderungzurStraffung des Asylverfahrens nicht aus, FRANKFURTER ALLGEMEINE, Sept. 11, 1991, at 4; Die FDP erwfigt offenbar eine Grundgesetz-Anderung, FRANKFURTER ALLGEMEINE, Sept. 13, 1991, at 1. 188 Wisconsin International Law Journal

Germany could better cope with new immigrants, since both their numbers and their integration into German society could be regulated.

A. The Significance of Articles 16 and 116 of Germany's Basic Law

Two provisions of the Basic Law are especially relevant to Germany's immigration problem. Article 116(1) grants all the legal rights of a German citizen to ethnic Germans who remained in Eastern Europe and the Soviet Union after World War II and who would now like to return to Germany. 5 Between September 1989 and the reunification in October 1990, almost 600,000 East Germans, known as Ubersiedler, moved to West Germany. 1 6 During the same period, slightly less than one million ethnic Germans from Eastern Europe and the former Soviet Union, the Aussiedler, resettled in their ethnic homeland. 7 Moreover, the German government estimates that there are an additional three million people of German heritage in Eastern Europe and the C.I.S. who can claim Aussiedler status; other sources have placed this number at ten million. 18 Individuals who cannot claim German citizenship under Article 116(1) may still invoke a constitutional right to asylum under Article 16 1 of the Basic Law. ' Asylum-seekers are given permanent residency in Germany if they can prove that their native country has persecuted them on political grounds.2' The creators of Article 16 wished to rectify the harm caused by the Third Reich's policies during the 1930s and 1940s. Throughout this period, many ethnic Germans living outside Germany were persecuted for their political beliefs or their ethnicity, and could not find refuge in other countries. In order to eliminate the possibility that any individual should

"5Article 116(1), "Definition of 'German', Regranting of citizenship" states: Unless otherwise provided by law, a German within the meaning of this Basic Law is a person who possesses German citizenship or who has been admitted to the territory of the German Reich within the frontiers of 31 December 1937 as a refugee or expellee of German stock ("Volkszugehorigkeit") or as the spouse or descendant of such person. BASIC LAW, supra note 11. 1 Foreignersin Germany, FOCUS ON (German Info. Ctr.), Nov. 1991, at 5 [hereinafter Focus]. '1 Id.; David Goodhart, Land of Plenty Where Skinheads March, FIN. TIMES, Oct. 28, 1991, at 6. "8Focus, supra note 16, at 5; Goodhart, supra note 17. '9 Article 16(2) states "Persons persecuted on political grounds shall enjoy the right of asylum." BASIC LAW, supra note 11, GG art. 16(2). The major political parties have agreed to amend Article 16. The proposed new version will place severe limitations on the right of asylum. See infra text accompanying notes 34-40. 20 BASIC LAW, supra note 11, GG art. 16. Vol. 11, No. I German Immigration Policy be placed in a similar situation, Germany passed Article 16 to allow political refugees from other countries to settle within German borders. 2 A political refugee under Article 16 is an individual whose personal freedoms are endangered, or who is threatened with bodily harm or death because of his race, religion, nationality, membership in a social group or political beliefs.22 Political persecution is an act perpetrated by an individual; its existence cannot be established by other conditions in an asylum-seeker's country such as war, civil war, revolution, poverty, or other upheavals. 23 Thus, although Yugoslavian refugees who were fleeing civil war and economic destitution in their country comprised a large portion of Germany's asylum applicants in 1991 and 1992, none qualified for asylum based upon suffering caused by the civil war alone.24 Furthermore, since the breakdown of communism, many Eastern European asylum applicants have had greater difficulty proving political persecution because they now come from fledgling democracies which are more tolerant of differing political opinions. As more people flee war and poverty in their own countries to seek asylum in Germany, the number of applicants actually granted asylum declines.25 In 1990, only 4.4% of all claims were granted.26 Germany has no other legitimate means besides Articles 116(1) and 16 to grant individuals permanent legal residency. Until recently, many who clearly did not qualify under Article 116(1) resorted to the asylum procedure despite their questionable status as political refugees.27 Individuals would legally enter Germany on a visitor or tourist visa and then seek asylum.28 In recent years, the number of refugees flocking into Germany has increased exponentially, placing a tremendous strain on the government's ability to process asylum applications. For example, in 1987, nearly 60,000 asylum-seekers entered Germany.29 In 1991, that figure jumped to over 256,000, one-third of whom were fleeing Yugoslavia and

21 HANS D. JARASS & BODO PIEROTH, GRUNDGESETZ KOMMENTAR, at 266-67 (1989). 22 Id. at 267-68. 23 Id. 24Goodhart, supra note 17. 25 Id. 26 Focus, supra note 16, at 4. 2' Goodhart, supra note 17. 28 Id. 29Focus, supra note 16, at 6 app. Wisconsin International Law Journal

Romania.3" In 1992, the German government expected over 450,000 applicants." 1 Although less than five percent are likely to receive asylum, most of these applicants will not return to their native countries. While some are indeed deported, the vast majority are allowed to remain in Germany on humanitarian grounds, or on the basis of international agreements concerning the treatment of refugees.32 Still others simply blend into the German mainstream. In December 1992, the main German political parties agreed to amend Article 16 in order to contain the increasing surge of asylum-seekers. 34 Their efforts have succeeded in practically eliminating this basic German constitutional right. 35 First, an individual who attempts to enter Germany after passing through a secure third nation where asylum could be requested, such as Switzerland or Austria, will be turned away at the border.3 6 Second, the German Parliament is authorized to develop a list of countries deemed safe and free of political persecution. 37 Any asylum-

31Quentin Peel, German PartiesAgree to Draft New Asylum Law, FIN. TIMES, Jan. 9, 1992, at 2; Soldaten an die Grenzen, DER SPIEGEL, Sept. 9, 1991, at 40; Gerd Reuter, Effect of the Deal is to End a Liberal Right To Refuge, GERMAN TRIB., Dec. 18, 1992, at 4, originallypublished in BREMER NACHRICHTEN, Dec. 8, 1992. 3"Reuter, supra note 30. 32Focus, supra note 16. In many cases, deportation orders are never issued, and the refugees' presence in Germany is "tolerated temporarily on compassionategrounds." Id. In 1989, two-thirds of all applicants who were denied asylum were allowed to remain in Germany. Id. Only 6% were deported, 15% left voluntarily, and 18% were unaccounted for. Id. 3 Focus, supra note 16. 3 Article 16 now states in part: (1) People who are politically persecuted have the right to asylum. (2) The right to asylum will not be granted to anyone coming from a European Community member-state or another third country where the application of the Geneva Convention on Refugees and the European Convention on Human Rights is guaranteed. States outside the European Community to which the criteria in Sentence 1 apply will be determined by a law requiring the approval of the Bundesrat .... (3) States in which because of the legal position, the way in which laws are applied and the general political circumstances there seems guaranteed to be no political persecution or inhuman or humiliating punishment can be specified by a law requiring the approval of the Bundesrat. A foreigner from one of these countries will not count as politically persecuted unless he submits reasons . . . [proving] he is so politically persecuted. Translated in The Letter of the Law, GERMAN TRIB., Dec. 18, 1992, originally published in STUTIGARTER ZEITUNG, Dec. 8, 1992. The agreement does not yet have the force of law, but will be used to draft legislation in early 1993. Stephen Kinzer, Germany Agrees on Law to Curb Refugees and Seekers of Asylum, N.Y. TIMES, Dec. 8, 1992, at Al. 31Ulrich Luke, Doubts That Inter-Party Compromise Will Stem the Flood of Refugees, GERMAN TRIB., Dec. 18, 1992, at 4, originally published in GENERAL-ANZEIGER, Dec. 8, 1992. 36 Id. 37Kinzer, supra note 34, at A1, A11. Vol. 11, No. I German Immigration Policy seeker from one of these listed countries will be denied entry into Germany, 38 and appeals will be received from abroad.39 Moreover, the political parties have agreed to limit the number of ethnic Germans admitted each year to no more than 110% of the numbers admitted in 1991 or 1992.40 Article 116(1) has not been amended. Germany's actions have now further closed the door to permanent immigration. Nonetheless, it is doubtful whether these changes will completely stop migration. 41 Although the political upheaval in Eastern Europe and the former Soviet Union is partly responsible for Germany's current immigration problems, many other factors, such as rapid population growth in regions surrounding Germany, indicate that Germany's attraction to people in poorer nations will continue well into the twenty-first century. Although future migrations into Germany may not be as large, they will continue despite their illegality.

B. Changing Demographics within Europe as a Reflection of the Growing Wealth Disparity among Nations

Both the United Nations and the World Bank project that populations along the southern Mediterranean shore will increase by 180 million over the next three decades.42 In addition, the number of working age North Africans will increase from 97 million to 228 million,43 while the number of working-age Europeans will increase by only four million during the same period. 44 These projections, along with the great wealth disparity between northern European Community ("EC") nations and their southern and eastern neighbors, strongly suggest that a migratory flow will continue from South to North and from East to West through the next century.45 Germany's central location within Europe will make it the natural destination for many of these immigrants. 46 Thus, to characterize Germany's current immigration woes as temporary and triggered by the political changes in Eastern Europe is wholly inaccurate. Rather, these migrations may be merely a foreshadowing of future migratory movements

38 Id. 3'Reuter, supra note 30. '0 Kinzer, supra note 34, at Al1. 4'Luke, supra note 35. 42 The Floodgates are Bursting, supra note 2. 43Id. "Id. 5 Id.; Esser & Korte, supra note 8, at 175; Edward Mortimer, The Immigrants We Need, FIN. TIMEs, Oct. 16, 1991, at 15. 4'The Floodgates are Bursting, supra note 2, at 53. Wisconsin InternationalLaw Journal into Germany, and accent the need for a more formal German immigration policy.

C. Growing Polarizationin Opinion Polls Reflects Increasing Hostility towards Foreigners

The growing polarization of the German populace toward politicians and immigrants also behooves legislative action. In 1992, Germany recorded over 4600 criminal offenses against foreigners, including seventeen deaths. 7 In 1991, according to the Federal Crime Bureau ("Bundeskriminalamt-BKA"), 338 arson incidents and 219 injuries could be directly traced to xenophobic attitudes.48 Demonstrations often culminating in violence have been recorded throughout eastern and western Germany, belying any contention that these incidents are isolated events. 49 A widely publicized demonstration in September 1991, in the east German town of Hoyerswerda, resulted in the removal of over 250 Vietnamese and Mozambican nationals from compound housing to other locations after anti-foreign protestors, police and counter- protestors violently clashed."0 Shortly thereafter on October 3, 1991, the first anniversary of German reunification, German television recorded over twenty violent incidents throughout Germany." Although the perpetrators of violence may be few, general feelings of frustration with the "foreigner problem" are widespread. A study published in August 1991 by the Free University in Berlin surveyed young people in both east and west Germany. 2 At least forty percent of east German youths perceived foreigners to be burdensome, and one in four could justify "actions against foreigners." 53 West German youths were not as eager to promote violence, yet twenty-five percent also harbored some resentment towards foreigners. 4 Although German politicians, including Chancellor Helmut Kohl, have denounced such behavior and pleaded for tolerance, their protestations seem to have had little effect so far."

47Marc Fisher, Bonn Bans Neo-Nazis'Main Party; Authorities Search House of Leader, WASH. PosT, Dec. 10, 1992, at A43. 411991 mehr als 300 Brandanschlage gegen Asylbewerber und Auslinder, FRANKFURTER ALLGEMEINE, Jan. 18, 1992, at 4. 49Id. See also Peel, supra note 13. soAuthorities Move ForeignersAfter Attack, supra note 13. 5'Peel, supra note 13. 52Soldaten an die Grenzen, supra note 30. 53Id. 4 Id. 55 Peel, supra note 13. Vol. 11, No. I German Immigration Policy

Other studies have focused on foreigners and their self-perceived status in German society. In 1989, the MARPLAN study surveyed guest workers and their dependents over the age of fifteen from five nations.56 Asking the respondents to name their greatest concern, thirty-seven percent answered racism ("Ausldnderfeindlichkeit"). 5 7 Over forty percent of those between the ages of fifteen and twenty-five responded likewise." In 1984, a similar survey questioned only guest workers, and revealed that twenty- two percent of the respondents felt racism to be their primary worry." Frustration with the political establishment in the handling of the immigration problem has resulted in increased support for right extremist political groups. Indeed, in September 1991, the extreme right-wing Deutsche Volksunion ("DVU") party which ran primarily on a xenophobic, anti-foreigner platform won six seats in the Bremen state parliament.' Emboldened by its success, the DVU ran in the April 1992 elections in Schleswig-Holstein and Baden-Wiirttemberg. 6" The DVU won 10.9% of the vote in Baden-Wuirttenberg and 6.3% in Schleswig-Holstein, securing its position in both states, and weakening support for the larger Social Democratic ("SPD") and Christian Democratic ("CDU") parties.62 The party has now vowed to win seats in the 1994 federal parliamentary election on a platform advocating nationalism, rejection of EC integration, and a halt to immigration.63 Opinion polls indicate that

" Klaus F. Geiger, Einstellungen zur multikulturellen Gesellschaft-Ergebnisse von Reprasentativefragungenin der Bundesrepublik, 9 MIGRATION 11, 18 (1991). 57id. 58Id. 59Id. 6o Christopher Parkes, SPD Hit By Economic Hardship in Bremen, FIN. TIMES, Sept. 30, 1991, at 20. The party first arrived on the political scene in 1987 when it won one seat in the Bremen parliament. Id. The German Federal Government is a federation of states, or Lander. The Lnder are self- governing entities and are empowered through the Basic Law to regulate matters not specifically assigned to the federal government. BASIC LAW, supra note 11, at 10. Bremen, Baden- Wurttemberg, and Schleswig-Holstein are Lander in western Germany. 6' Christopher Parkes, New Target For German Far Right, FIN. TIMES, Oct. 2, 1991, at 2. 62Kurt Reumann, Das gestorte Wechselspiel zwischen Regierung und Opposition, FRANKFURTER ALLGEMEINE ZEITUNG, Apr. 7, 1992, at 3. The two largest political parties in Germany, the Social Democrats ("Sozialdemokratische Partei Deutschlands-SPD") and the Christian Democrats ("Christlich-Demokratische Union-CDU") were among the first political parties to reappear in Germany after World War II. TATSACHEN OBER DEUTSCHLAND 114 (Heinz Dieter Bulka M.A. & Suzanne Locking, eds., 4th ed., 1983-84). The Free Democrats ("Freie Demokratische Partei-FDP") also emerged in 1945 but are a much smaller party in terms of the number of seats held in both the state and federal governments. Id. at 114, 116. 6 Marcus Kabel, MainstreamGermans Warn Against Ban on Far-RightRepublicans, The Reuter Libr. Rep., Dec. 16, 1992 available in LEXIS, Europe library, Alleur file. Wisconsin International Law Journal they have enough support to cross the five percent threshold requirement to qualify for representation in Parliament. 64 Yet, the DVU is only one of seventy-six extreme right organizations recorded by Germany's Office for the Protection of the Constitution ("Verfassungsschutz-BfV") .65 By late 1992, the combined membership of these organizations had risen to nearly 41,000. 66 In response to the continuing violence against foreigners, the German government has banned the Deutsche Alternative and the Nationalistische Front, two neo-Nazi groups.67 In addition, Federal Interior Minister Rudolf Seiters ordered the BfV to gather information to establish whether the DFU party should be banned.6" Recent events and projections of future migratory patterns clearly demonstrate that the immigration issue will not fade into the political horizon in the foreseeable future. At the very least, the growing radicalism among German youth and the concern among the general citizenry verify the need for a governmental response. Although Germany may once have been an emigration country, the statistics no longer support such an assumption. Five million foreigners, many of whom are second and third generation residents, no longer constitute a temporary phenomenon. Indeed, Germany has emerged as a de facto immigration country. An official immigration policy may alleviate some of the tensions within Germany in numerous ways. First, the German government could better control the influx of immigrants into Germany if it established immigration quotas and uniform procedures for the procurement of legal residency. Regulating the number of immigrants will enable Germany to control the effect of migrations on the German economy. Such regulations

" Political Outlook, Bus. Int'l Forecasting, Dec. 28, 1992, availablein LEXIS, Europe library, Alleur file. German election laws forbid political parties which have not received at least 5% of the vote in elections to hold seats in the state or federal parliaments. TATSACHEN UBER DEUTSCHLAND, supra note 62, at 118. 65 More Groups are Attracting More Members, GERMAN TRIB., Dec. 11, 1992, at 4, originally published in DIE WELT, Nov. 28, 1992. 66Id. 67Another Neo-Nazi Group Banned, GERMAN TRIB., Dec. 18, 1992, at 3, originallypublished in KIELER NACHRICHTEN, Dec. 11, 1992. Article 21 of the Basic Law states: "[Political parties which] seek to impair or abolish the free democratic basic order or to endanger the existence of the Federal Republic of Germany shall be unconstitutional." GG. art. 21, translated in BASIC LAW, supra note 11. Moreover, individuals may forfeit their basic political rights if they have abused "the freedom of expression of opinion. . . in order to combat the free democratic basic order." BASIC LAW, supra note 11, at GG art. 18. The German government has never successfully invoked Article 18. Jorg Buteweg, Far-Right LeadersMay Lose Rights, GERMAN TRIB., Dec. 18, 1992, at 3, originallypublished in HAMBURGER ABENDBLAT', Dec. 10, 1992. 66 Kabel, supra note 63. Vol. 11, No. I German Immigration Policy

would take on greater significance with European unification, since German immigrants will be free to travel, reside, and work anywhere within the European Community. Current tensions can be attributed greatly to the severe shortage of housing in Germany and a fear, well-founded or not, of rising unemployment and shrinking social welfare benefits for German natives.69 A more well-defined policy would eliminate some of the uncertainty surrounding the magnitude of future migrations into Germany. Second, an official immigration policy may help alleviate the growing hostility among Germans towards foreigners and the political establishment by demonstrating that the government is capable of solving issues of primary concern to its citizenry instead of solely reacting to external factors. Indeed, the growth of right extremist political parties has been partially attributed to the German parliament's inability to reach a consensus on the asylum reform issue for years." Third, immigration laws more favorable to the naturalization of legal foreign residents would truly integrate the foreign population into German society by granting these individuals the right to vote. Finally, an immigration policy formulated by politicians and debated in Parliament will provide the general populace a more structured forum to debate differing viewpoints. Moreover, citizens could vent their disagreement through elections and other legal methods.

III. THE POLITICAL RESPONSE TO THE IMMIGRATION DEBATE

Massive migrations into Germany and the vociferous grass roots response to this influx of foreigners have forced German politicians to acknowledge the immigration problem. Interestingly, much of the current debate has revolved solely around Article 16 of the Basic Law which, until recently, embodied Germany's very liberal political asylum policy.71 The government has completely ignored any discussion of amending or repealing Article 116, and SPD members have only recently spoken of establishing a quota system and more liberal naturalization laws.

69 In 1990, West German real net wages per worker rose 4.8% although deductions from monthly paychecks for unemployment compensation also increased from 4.3 to 6.8%, largely to help pay for East German unemployment. David Goodhart, Three Years ofDiscipline Yield Meagre Results, FIN. TIMES, Oct. 28, 1991, at 8, 11. Christopher Parkes, German Job Losses To Surge, FIN. TIMEs, Nov. 11, 1991, at 6. In September 1992, Germany recorded approximately 2.9 million unemployed individuals, 270,000 more than the previous year. Keine Wende Am Arbeitsmarkt, 10 DEUTSCHLAND ARCHIV 1120 (1992). This figure translates into a 5.8% unemployment rate in the western states and a 13.6% rate in the east. Id. In 1993, unemployment is expected to rise to 3.2 or 3.3 million. Id. 70Marc Fisher, Germany Sets End To Asylum Guarantee,WASH. POST, Dec. 8, 1992, at A29. 7' Goodhart, supra note 17. Wisconsin International Law Journal

Prior to the 1992 agreement to amend Article 16, nearly all the political parties agreed that the asylum procedure needed improvement. They disagreed as to the method of change. The CDU favored a constitutional amendment to substantively limit the right of asylum.72 The Article 16 amendment eventually adopted by the CDU, SPD, and FDP mirrors the CDU proposal on all relevant points.73 The SPD originally advocated only statutory revisions of procedural rules to quicken the processing of asylum applications.74 The party considered a constitutional amendment ineffective in checking the flow of immigrants since Germany's borders could not be closed." Thus, even before consensus was reached on the Article 16 amendment, the SPD, CDU and the FDP agreed to reduce the processing of asylum applications from eleven months to six weeks by quickly dismissing claims which were "clearly without foundation."76 The Green Party rejected even such a procedural change, arguing that it was impossible to develop criteria upon which an asylum claim could be

72 Id.; Peel, supra note 13. 7 Luke, supra note 35. Yet, Richard von Weizsaecker ("CDU"), the German President, does not believe that the constitutional amendment will have any effect on the growing number of refugees. In Continuing Discussion on Foreigners, von Weizsacker Calls For Quotas, WEEK IN GERMANY, Nov. 15, 1991. He advocates the development of an EC immigration policy which would regulate the influx of immigrants through the establishment of quotas. Id. The Institute for European Defence and Strategic Studies, a London-based think tank, has also urged a continent-wide approach to immigration. Anthony Robinson, Europe Warned It Must Act On Immigration, FIN. TIMES, Jan. 14, 1992, at 2. It has warned that up to three million Soviet immigrants may arrive in Europe from January 1992, to June 1993. Id. "By refusing to confront the problem head on western Europe has not merely exacerbated the threat of migration but left the east Europeans dangerously exposed." Id. This Comment will not address the possibility of an EC immigration policy. First, most of the EC policy discussion has centered around the asylum question, and not necessarily upon the broader issue of legal immigration. Second, before Germany enters into negotiations to develop an EC immigration policy, it must first evaluate its own position to see what benefits or detriments immigration would pose to its society, and to crystallize its position on this issue. " Die CDU wirbt im BundestagfArAnderung der Asyl-Regelung, FRANKFURTER ALLGEMEINE, Oct. 19, 1991, at 1-2; Quentin Peel, German PartiesAgree to Draft New Asylum Law, FIN. TIMES, Jan. 9, 1992, at 2. 75In Continuing Discussion on Foreigners,von Weizsacker Calls For Quotas, supra note 73. 7' Peel, supra note 13. On February 20, 1992, the German Parliament made into law the six week approval process. Bundestag billigt Asylgesetz, DEUTSCHLAND NACHRICHTEN, Feb. 21, 1992, at 1. The Vice President of the Ministry for the Recognition of Foreign Refugees ("Bundesamt fir die Anerkennung AuslandischerFlichtlinge-BAFI") stated, however, that implementation of the new regulations will be delayed for many months because of the lack of sufficient personnel to hear the asylum cases. Die neuen Entscheidersollen uber 500 Asylantrage im Jahrbefinden, FRANKFURTER ALLGEMEINE, Feb. 21, 1992, at 3. The Ministry hopes to triple in size so that every judge hears an average 400 cases annually. Id. Vol. 11, No. I German Immigration Policy rejected so quickly." Instead, the Greens preferred a complete revision beginning with the recognition that Germany is a de facto immigration country.78 Not surprisingly, the party has condemned the 1992 amendment as a surrender to the perpetrators of violence against foreigners. 7 The Greens also advocate the elimination of Article 116 because of its preference for the naturalization of ethnic Germans."° In addition, they would establish immigration quotas and grant automatic citizenship to those born in Germany. 8 Although the Green Party was once the sole supporter of a more liberal immigration policy, its platform is now receiving growing acceptance from members of other political parties.8 2 Many Social Democrats, after compromising their party's long-time role as defender of the asylum guarantee, now want amendment of Article 16 accompanied by a quota system for immigration based on the United States model.83

IV. HISTORICAL OVERVIEW

This Comment advocates the formulation of a comprehensive German immigration policy, including the repeal of Article 116(1), and the promulgation of more liberal naturalization laws. Under such a policy, ethnic Germans and all other immigrants would be treated equally. The following historical overview of German immigration policy reveals why the German political establishment is so reticent to address these fundamental revisions. Until 1885, Germany was mainly an emigration country.84 Some Germans emigrated east to establish new settlements in Poland, Russia, and

" Miihsame Gesprdche von Bund undLdndern zum Asylverfahren, FRANKFURTER ALLGEMEINE, Oct. 18, 1991, at 1. 7' Goodhart, supra note 17. 9 Kinzer, supra note 34, at A6. 80 Id. 81 Id. 8 Quentin Peel, German President Urges Easier Citizenship Laws, FIN. TIMES, Dec. 24, 1992, at 1, available in LEXIS, Europe library, Alleur File. After Turkish residents were attacked in M611n, Germany, President Weiszacker urged that German citizens be given the chance to become German citizens. "It is in our own, German, interest," he stated. Id. It marked the first time that a senior government figure identified Germany's definition of nationality based on blood as a contributing factor to xenophobia. Id. 83Fisher, supra note 70, at A29. Oskar Lafontaine, a SPD leader, stated that Germany should redefine itself as a "community of people with similar goals" rather than a "collection of people of common origin." Marc Fisher, Bonn Bans Neo-Nazis' Main Party, WASH. POST, Dec. 10, 1992, at A43. 84Esser & Korte, supra note 8. Political unrest, oppression, and economic problems were responsible for German emigration. Id. at 166. Wisconsin International Law Journal the Baltic States.85 Others travelled west toward North America.86 Around the turn of the century, manpower shortages in Germany occurred primarily in the agricultural sector, which the government alleviated by recruiting Polish workers.87 These workers, however, could not establish permanent residence, and were forced to return to Poland each year during the Karenzzeit (waiting period) from November 15 to April 1.88 Moreover, while in Germany, they were only allowed to reside in certain areas of the country.89 Thus, early in German history, a perception developed among government officials that foreign residents were a practical economic solution to temporary labor shortages. After World War I, during the Weimar Republic, the number of foreign workers decreased dramatically due to the economic chaos in Germany.' When Hitler came to power in the 1930s, recruiting foreign workers became more difficult, even though high demand existed in the agricultural and industrial sectors. 9' Hitler's strong nationalistic platform and adulation of the Aryan race provided few incentives for migration into Germany. 92 To stave off a labor shortage, Hitler enacted the Aliens Act of 1938, prohibiting foreigners from leaving the country. 93 The Act also gave the police complete control over the foreigners' liberty.94 After World War II, Germany95 suffered from high unemployment until it slowly integrated the large number of war refugees into its workforce. Thus, there was no need for foreign workers. In the mid- 1950s, however, as the devastated German economy began to recover, a demand for additional labor emerged. The government entered into several bilateral agreements with Italy (1955), Greece (1960), Spain (1960), and Turkey (1961) to bring in temporary, or "guest," workers.96 Despite these agreements, Germany faced a potentially severe labor shortage after

11Id. at 165. 86 Id. 67 Id. at 166. 88 Id. 19Id. at 178-79. 9oId. at 168. 91Id. 92 id. 93Id. 94Id. 9' All references to Germany after World War II and before reunification refer to the Federal Republic of Germany. 96Esser & Korte, supra note 8, at 170. Other agreements followed with Morocco (1963), Portugal (1964), Tunisia (1965), and Yugoslavia (1966). AUFZEICHNUNG ZUR AUSLANDERPOLITIK, supra note 6, app. 2. Vol. 11, No. I German Immigration Policy

the construction of the Berlin Wall in 1961 and the subsequent halt of refugees fleeing Eastern Europe. From 1961 to 1973, privately-owned German firms, aided by the government, established recruiting offices in countries with whom bilateral agreements existed. These offices provided temporary work and residence permits for guest workers.97 In addition, the Aliens Act of 1965 provided terms under which foreigners would be allowed to take up residence in Germany.98 The Act did not, however, grant foreigners any legal right to residence and gave the authorities broad discretionary powers over them.99 Thus, Germany maintained an easily controllable work force which could be maneuvered as economic conditions dictated," ° and the presence of temporary guest workers in Germany was fully institutionalized. In 1973, the worldwide oil crisis brought about an economic slowdown and increasing unemployment in Germany. Manipulating its "maneuverable resource," the government suspended the recruitment of foreign workers. 0' The guest workers already in Germany, however, fulfilled a need for unskilled labor by taking positions undesirable to most Germans."2 The government allowed them to stay and attempted to integrate them into German society. 0 3 Ironically, the number of foreigners actually increased after recruitment ended because family members of workers who remained in Germany were allowed to immigrate and establish permanent residency. 1°4 Moreover, throughout the 1980s, the number of asylum seekers and refugees residing in Germany continued to increase. After the reunification in 1989, official government figures recorded approximately five million foreigners in Germany of which only 1.32 million were citizens of the EC. "0

I' Marilyn Hoskin & Roy Fitzgerald, German Immigration Policy and Politics, in TH4E GATEKEEPERS 97 (Michael C. LeMay ed., 1989). " Esser & Korte, supra note 8, at 170. 99 Id. 100Id. o AUFZEICHNUNG ZUR AUSLNDERPOLITIK, supra note 6, at 9. Id.M02 at 10. 'o Hoskin & Fitzgerald, supra note 97, at 98. 4 James Hollifield, Immigration Policy in France & Germany: Outputs v. Outcomes, 485 ANNALS AM. ACAD. POL. & SOC. SCI. 117-18 (1986). The policy of family reunification is implicit in Article 6 of the Grundgesetz. Section (1) reads: Marriage and family shall enjoy the special protection of the state. BAsIC LAW, supra note 11, at GG art. 6. "'i AUFZEICHNUNG ZUR AUSLANDERPOLITIK, supra note 6, at 13. Wisconsin International Law Journal

V. GERMANY'S FOREIGN POPULATION IN THE 1980s AND BEYOND

The German government and Chancellor Helmut Kohl have developed a three-tiered immigration policy in order to balance the desire to integrate Germany's foreign population with the need to contain its growth. 1° It includes the integration of legal foreign residents, the restriction of further immigration from outside the EC, and financial assistance for foreigners who voluntarily return to their native countries. 107 During the 1980s, Germany developed several financial assistance programs to entice foreigners to leave Germany voluntarily and return to their country of origin. ' Specifically, in 1983 the German government established an "assisted return" plan ("Riickkehrf6rderung"). 109 It disbursed a cash payment of 10,500 German marks ("DM") to each adult foreigner who agreed to leave Germany permanently." 0 In addition, families received 1500 DM for each departing child, and the refund of all insurance and retirement benefits that the worker had paid into the German social security fund."' Over 250,000 foreigners took advantage of this 2 offer. "1 The "assisted return" program was only available for ten months, and the German government has expressed no desire to renew it." 3 It has, however, instituted other programs to aid foreigners to adjust socially and

06 Id. at 3. Castles, supra note 4, at 528. 07 AUFZEICHNUNG ZUR AUSLANDERPOLITIK, supra note 6, at 3. The government has explicitly rejected the forcible ejection of legal foreign residents. Id. at 7. Conversely, the German government in the last century did not hesitate to force Polish workers out of the country when they were no longer needed. See supra text accompanying note 46. 'o Hoskin & Fitzgerald, supra note 97, at 103. AUFZEICHNUNG ZUR AUSLANDERPOLITIK, supra note 6, at 57. The government further limited the pool of qualified applicants by requiring that the guest worker be currently unemployed due to factory closures or employer bankruptcies, or have engaged in short-term employment for the past six months. Id. 111Id. 112 Id. "3 Id. at 58-61. Vol. 11, No. 1 German Immigration Policy professionally to their native countries if they return."' Despite these incentives, many foreigners have remained in Germany. The government has encouraged the integration of foreigners into German society through language instruction, vocational training, and cultural programs.' 15 Integration, however, is a fairly new policy development and arguably not the German government's primary goal." 6 Indeed, it did not implement an integration program until 1978, five years after guest worker recruitment stopped. 117 In 1985, integration was still only weakly advocated, and naturalization, the logical end result of integration, remained a very difficult process." 8 The Ministry of the Interior stated: "Naturalization should not be an instrument for the promotion of integration, but rather should stand at the end of a successful integration process. The Federal Republic does not intend to facilitate naturalization. ""' 9 Indeed, the federal government has not granted citizenship liberally, and the naturalization of 40,000 foreigners per year has been considered high.'20 The German government would like to limit integration, especially naturalization, to second and third generation foreigners.' 2' In 1985, the Ministry of Interior further stated:

114Id. On January 1, 1986, the German government enacted a statute which provides financial assistance to families returning to their native countries for the purchase of land and construction of family homes. Id. at 58. The amount is limited to 60,000 DM and is available only to foreigners from non-European Community countries. Id. Other efforts to entice foreigners to leave include budgetary provisions for over 900 social workers, specially trained to assist returnees, and to provide them with necessary information. Id. at 59. Germany has also sent 80 German teachers to schools in Turkey to teach the children of former guest worker families. Id. Moreover, the federal government has set aside 12 million DM in a special fund for foreign tradespeople originally from Third World nations now living in Germany. Id. If they return to their native lands, they will receive a salary bonus from the German government during the first two years of their return. Id. at 60. ..Id. at 18; Hoskin & Fitzgerald, supra note 97, at 102-03. 116AUFZEICHNUNG ZUR AUSLNDERPOLITIK, supra note 6, app. 2 at 2. Hoskin and Fitzgerald note that the implementation of this policy has been delegated to state governments whose commitment "can best be characterized as general, lacking in operational detail, and .... frequently in conflict with other goals." Hoskin & Fitzgerald, supra note 97, at 103. As of 1991, even the German government admitted that young foreigners are still proportionally underrepresented in college preparatory schools, universities, and vocational training programs. AUFZEICHNUNG ZUR AUSLANDERPOLITIK, supra note 6, at 17. .. AUFZEICH-NUNG ZUR AUSLANDERPOLITIK, supra note 6, app. 2 at 2. "I Hoskin & Fitzgerald, supra note 97, at 101. ...FEDERAL MINISTRY OF THE INTERIOR, RECORD OF POLICY AND LAWS RELATED TO FOREIGNERS IN THE FEDERAL REPUBLIC OF GERMANY (1985) excerpted in Hoskin & Fitzgerald, supra note 97, at 99, 101 [hereinafter 1985 RECORD OF POLICY]. 10Hoskins & Fitzgerald, supra note 97, at 101. .2 Id.; see also AUFZEICHNUNG ZUR AUSLANDERPOLITIK, supra note 6, at 4. Wisconsin International Law Journal

A special situation, to be sure, exists for those who were born here and grew up here. Their life is in Germany and they are aliens to their country. The public interest is in naturalization, since no state wants a large group with no loyalty. The Federal Republic is of the view that the naturalization of foreigners from the second and third generations should be promoted through easing the process.122

In spite of this explicit policy statement, the German parliament passed no new laws until the massive migrations into Germany over the last three years forced it to ease restrictions on naturalization.123 In 1991, Germany enacted a law that allows foreign youths ages sixteen to twenty-three who were educated or raised in Germany to obtain citizenship. 24 Other adults who have consistently remained in Germany for the preceding fifteen years may also file naturalization papers, but must do so before December 31, 1995. 125 Both statutes require applicants to relinquish their other citizenship. 126 Despite easing naturalization restrictions somewhat, the German government remains steadfast in its opinion that Germany is not an immigration country, and it continues to support severe limitations on the entry of foreigners from non-EC countries. 127 The Ministry of Interior explains that Germany has not become an immigration country simply because foreigners have resided for long periods of time or even permanently within its borders.'28 Rather, it opines that an immigration country is one that requires the influx of foreigners for its economic development, and it expressly declares that need. 29 The Ministry emphasizes that Germany, which is one of the most densely populated and highly developed nations in the world, does not fit into this category. 3° Furthermore, it claims that restrictions on immigration will improve the labor market for the remaining foreigners, and ensure adequate employment 1 opportunities for EC members within Germahy. ' Germany's definition of an immigration country and its subsequent exclusion of itself from this category is rather misguided. First, a highly developed economy is not incongruous with a flexible immigration policy.

122 Hoskins & Fitzgerald, supra note 97, at 101. 123 AUFZEICHNUNG ZUR AUSLANDERPOLITIK, supra note 6, at 7-8. 124AUSLANDERGESETZ [AuslG] § 85, BGBI. 1 1354 (F.R.G.). 125AuslG § 86. 116AuslG §§ 85-86. 127AUFZEICHNUNG ZUR AUSLANDERPOLITIK, supra note 6, at 8. 121Id. at 51. 129id. "0Id. at 51-52. 131Id. at 6, 11. Vol. 11, No. I German Immigration Policy

Traditional immigration countries such as the United States, Canada, and Australia may once have required large influxes of immigrants to develop large expanses of uncultivated land, but that is certainly not the case today. Although these nations' economic well-being is no longer economically dependent upon immigration, they continue to allow foreigners into their countries and provide for naturalization. Because Germany is so economically strong and possesses the financial resources to invest in and promote developmental projects, the country is arguably more capable of assimilating immigrants into its workforce than the source countries of would-be immigrants.132 Indeed, many economists believe that western Europe should welcome the influx of able and relatively cheap labor brought by immigration, especially because of its own aging population and declining birthrate. '33 Second, despite the German government's protestations to the contrary, it is and has been an immigration country since the 1950s. From 1955 to 1973, the government deliberately and aggressively recruited guest workers for its factories due to a shortage of manpower and rapid economic growth. Although these workers were officially given only temporary status, that status was continually extended. And while recruitment stopped in 1973, family members continued to join the guest workers in Germany. Asylum- seekers invoking Article 16 have continuously entered Germany, especially during the 1980s. Although only 4.4% of 193,063 applicants in 1990 were granted asylum, deportation orders were not issued in many cases. 134 In 1989, two-thirds of those denied asylum eventually remained in Germany."' Finally, a third group of foreigners, the Aussiedler or ethnic Germans, are also legal immigrants under the German Basic Law. Indeed, from 1979 until September 1991, over 1.6 million resettled in 36 Germany. 1 In light of these statistics, it is difficult to classify Germany as a non- immigration country. Moreover, the population explosion predicted in North Africa and continuing strife in the former Yugoslavia suggest that Germany will be the chosen destination of many future immigrants. 13 It is unlikely that they will be easily thwarted by a dubious policy statement concluding that Germany is not an immigration country. The federal government is not completely oblivious to the societal fallout from its "no immigration" policy and its economic incentives to

"IMortimer, supra note 45, at 25. 133Id. 134 Focus, supra note 16, at 4-5.

'3 Id. at 5. See also supra text accompanying notes 32-33. 36Focus, supra note 16, at app. 6. 33See supra part I.B. Wisconsin International Law Journal foreign residents who leave the country. For example, the government admits that legal barriers to immigration foster a general feeling of insecurity about their future among foreigners residing in Germany. 38 Not surprisingly, these fears affect their everyday lives and their ability to integrate comfortably into German society.139 Full integration will always be limited through lack of citizenship and the inability to vote."'4 Yet, the German government has shown no sign that it will significantly alter the basic tenets of its immigration policy. Through its failure to pursue a more pragmatic approach, the German government will only exacerbate tensions within the country as the national leaders' attitudes foster an "us/them" relationship among Germans and foreigners. Although the new naturalization laws are an important first step towards improved integration, they still exclude several important groups of foreigners. Section 86 of the revised Auslindergesetz clearly addresses only guest workers and their families since applicants must have lived at least fifteen years in Germany by December 31, 1995.41 Anyone arriving in Germany after 1980, including asylum seekers and humanitarian refugees, are simply ineligible. Moreover, under Section 85, young foreigners may only apply for citizenship if they have lived at least eight2 years in Germany and attended school in the country for six years.11 Again, the law is geared primarily at the guest workers' children. As a result, many foreign residents within Germany will never be fully integrated. As long as the German government continues to view immigration as a threat to Germany's well-being, full integration of foreigners seems unlikely. On the other hand, a strong immigration policy which shows support for all foreigners may actually encourage interaction among German citizens and foreign residents. Moreover, government action may demonstrate to foreigners that the government looks favorably upon a more

"11985 RECORD OF POLICY, supra note 119, at 189. 139 Id. 140Under the Basic Law, foreign residents have no right to participate in federal, state, or local elections. AUFZEICHNUNG ZUR AUSLANDERPOLITIK, supra note 6, at 36. The German Federal Constitutional Court ("Bundesverfassungsgericht") affirmed this interpretation in two decisions decided on October 31, 1990. In the first case, the Court declared unconstitutional a law in Schleswig-Holstein which granted foreigners from six European nations the right to vote in local elections ("Kommunalwahlrecht"). Id. In the second case, the Court nullified a Hamburg law allowing foreigners who had lived in a certain region for eight years the right to vote in regional assembly elections ("Bezirksversammlungen"). Id. Foreign residents may be members of political parties and labor unions. Id. at 35. Participation in company elections is acceptable if the company's regulations governing industrial relations ("Betriebsverfassung") so provide. Id. "I'AUSLG § 86. 142AUSLG § 85. Vol. 11, No. I German Immigration Policy

active political role for them in German society. It may also weaken the perceived threat that a permanent foreign presence will strain the labor market and lower the standard of living of all inhabitants. In this way, a carefully drafted immigration policy can foster general acceptance of a permanent multicultural presence in Germany.

VI. THE REPEAL OF ARTICLE 116(1) OF GERMANY'S BASIC LAW

Immigration regulations, however, will be equitable and effective in controlling the number of immigrants allowed into Germany only if they are coupled with the repeal of Article 116(1) of the Basic Law. Article 116, which served a humanitarian purpose during the aftermath of World War II, no longer reflects Germany's current situation. Under Article 116(1), many ethnic Germans now living in Eastern Europe and the former Soviet Union have an automatic right of entry into Germany, and enjoy the same legal rights as German citizens.'43 Furthermore, German statutory law requires that all requests for citizenship from these Germans be granted unless the applicants pose a national security threat.' 44 While it is not evident from the text of Article 116, these German citizens include the descendants of families who have lived for centuries in present day Hungary, Romania, the Czech Republic, Slovakia, Poland, Russia and the Ukraine.' 45 Prior to World War II, these Germans had lost all contact with their former German villages and established new communities in Eastern Europe. 46 Today, these individuals, who claim German blood but have only the slightest cultural connection to Germany, may immigrate and immediately apply for German citizenship. Most other foreigners, who not only speak German but have lived and worked in Germany for years, may at best hope for an unrestricted residence permit. This blood-based immigration and naturalization policy is out of place in a modern democracy and should be repealed.

' Article 116(1) states that an individual possesses German citizenship if he was "admitted to the territory of the German Reich within the frontiers of 31 December 1937 as a refugee or expellee of German stock ... or as the spouse or descendant of such person." BASIC LAW, supra note 11, art. 116(1). "German stock" is further defined by statute as an individual who has identified himself with the German culture insofar as this identification can be proven through family history, language, and upbringing. BEKANNTMACHUNG DER NEUFASSUNG DES BUNDESVERTRIEBENENGESETZES [BVFG], 1971 BGBI. 1 1565, 1569 (F.R.G.). '4STAATSANGEHORIGKEITSREGELUNGSGESETZ[StAngRegG] § 6 (F.R.G.). 1 See infra part V.A. 146 See infrapart V.A. Wisconsin InternationalLaw Journal

A. Article 116 within Its Historical Context

During the eighteenth and nineteenth centuries, German peasants migrated into Austria-Hungary, Romania, and Czechoslovakia.' 47 The largest group of ethnic Germans emigrated to Russia, attracted by Catherine the Great's 1763 Manifesto inviting all foreigners into her country to settle vast stretches of uncultivated land.'48 German peasants and artisans established closed colonies in order to preserve their German customs, language, and religion, and exercised self-government. 49 In 1939, an estimated 1,423,000 ethnic Germans, who were direct descendants of these emigrants lived in the Soviet Union.'50 German minorities in the Soviet Union did not reestablish their ties with Germany until the 1930s, when Hitler and Stalin signed the Frontier and Friendship Treaty on September 28, 1939.'' The treaty outlined the partitionment of Poland and a large scale population exchange between Germany and the Soviet Union.' 52 All persons of German ethnicity living in areas to be annexed by the Soviet Union would be permitted to resettle in Germany. Likewise, all Russians living in areas to be annexed by Germany would be allowed to resettle in the Soviet Union. 'I The agreement affected about 800,000 Germans, some of whom relocated in the occupied areas of Poland. 54 Others entered the Third Reich's war industry and were promised resettlement opportunities after the war. The treaty, however, was short-lived, as relations disintegrated decisively with Hitler's invasion of the Soviet Union. Fearing that the German enclaves within his regime would revolt, Stalin uprooted more than 400,000 Germans from the Volga region alone, and deported them to Kazakhstan, Novosibirsk and Omsk, remote Asian regions of the Soviet Union. 5

14' ANTHONY KOMJATHY & REBECCA STOCKWELL, GERMAN MINORITIES AND THE THIRD REICH (1980) (references to Czechoslovakia, at 17; Hungary, at 43; Poland, at 65; Romania, at 106). These migrations occurred after the redistributions of land within Europe following the partition of Poland and Austria-Hungary's implementation of settlement programs. Id. '14 ADAM GIESINGER, FROM CATHERINE TO KHRUSHCHEV, THE STORY OF RUSSIA'S GERMANS 1 (1974). 141Id. at 224. "0 WENZEL JAKSCH, The Fate of the German Poplulation Groups in Eastern Europe and the Soviet Union Since 1939, Report of Dr. h.c. Wenzel Jaksch, in GERMANY AND EASTERN EUROPE, Two DOCUMENTS OF THE THIRD GERMAN BUNDESTAG 37, 39 (1961). 151GIESINGER, supra note 148, at 300. 152Id. 153Id. 154JAKSCH, supra note 150, at 41. ...The German settlements were located primarily in European Russia, along the Volga River and the Black Sea. GIESINGER, supra note 148, at 303-06. Vol. 11, No. I German Immigration Policy

As the German army retreated from the Soviet Union in 1943 and 1944, they were preceded by over 280,000 Germans who fled their homes fearing retribution from the Soviets.' 56 Those who reached resettlement camps in Poland were granted German citizenship.'57 Some of these Germans were present when the Soviet army invaded, and either fled further West or were returned involuntarily by Soviet soldiers to the Soviet Union's eastern provinces.'58 Furthermore, approximately 45,000 Germans who managed to reach the Occupation Zone of the Allied Forces were sent back to the Soviet Union within the first few months of the end of the war after a Soviet declaration demanded that displaced Russian citizens be repatriated. ' The German government formulated Article 116 as a direct response to the events of World War II, particularly the forced displacement of hundreds of thousands of ethnic Germans. "6 The provision's primary purpose was to moderate the fall-out from German nationalistic policies on ethnic Germans during the war by providing a new life free of persecution in Germany.16' In 1961, Dr. Wenzel Jaksch, a member of the German Federal Parliament, stated in a report of the Committee for Foreign Affairs:

Hitler's attack on the Soviet Union had tragic consequences for the Russo- German settlements, the climax being the forced resettlement of the Volga Germans to Inner Asia. Although this step was taken by Stalin on the grounds of wholly untenable assertions of collective guilt, it was at the same time evidence that the war-inducing policy of the Third Reich was

chiefly responsible for the distressful fate of the groups of ethnic62 Germans in Eastern Europe and the Soviet Union (emphasis added).'

6 11 Id. at 311. 157 Id. at 312. "I Id. at 313. 159 Id. at 312-14.

'60 JARASS & PIEROTH, supra note 21, at 712, 714. The development of Article 16 asylum rights was also in response to the massive human rights violations of Hitler's Third Reich. See supra text accompanying notes 16-17. Article 16 preserves the fundamental human right to be free from political persecution, a cornerstone of any democratic society. Id. On the other hand, Article 116 is simply a means to facilitate integration of immigrants from one special ethnic group into German society. Its repeal would not undermine the basic principles of a democratic society. Indeed, Germany would become more democratic because all individuals, regardless of ethnic background, would be treated equally in naturalization decisions. 161 JARASS & PIEROTH, supra note 21, at 712, 714. 162 WENZEL JAKSCH, The InternationalSituation, the Security of Berlin and the Reunification of Germany, Report of Dr. h.c. Wenzel Jaksch, in GERMANY AND EASTERN EUROPE, Two DOCUMENTS OF THE THIRD GERMAN BUNDESTAG 31 (1961). Wisconsin International Law Journal

Thus, German policymakers were able to justify Article 116's discriminatory language. After this report, the German Federal Parliament unanimously agreed to "devote special attention and care to the considerable state of human distress that still exists in [East European countries and the 163 Soviet Union] among German nationals and ethnic Germans.1

B. Article 116's Inconsistency with the Policy Goals of a United Germany

The reunification of Germany and the breakdown of Communist regimes have not only swept away former barriers to free movement and expression, but have also swept aside any justification for Article 116's grant of citizen rights to ethnic Germans. The Germans living under communist rule were often victims of an uncompromising assimilation policy to eliminate any ties these Germans still possessed to Germany." East European Communist governments often forbade German language instruction and the speaking of German in public places. 165 Ethnic Germans could not organize cultural organizations or hold German language church services.'66 In Czechoslovakia, Germans suffered discrimination in educational and career opportunities.'67 With the fall of communism, these countries have officially recognized the existence of ethnic minority groups, including Germans, within their borders.' 68 More significantly, they have recognized the minority groups' rights to preserve their cultural heritage through the organization of cultural groups and language instruction. 6 9 In Hungary, ethnic Germans are now represented in the national parliament and hold key positions in the Office of National and Ethnic Minorities. 70 Indeed, the Czech, Hungarian and

163Id. Dr. Kopf, Chairman of the Foreign Affairs Committee of the German Federal Parliament in 1961, recognized the diplomatic difficulties involved in pursuing such goals because of the conflict in the German Federal Republic between the desire to pursue a policy of reconciliation and cooperation with Eastern Europe, and the desire not compromise the interests of the German people with respect to reunification and self-determination. Id. at 3. In other words, although the government would enter into negotiations with eastern European countries, it would not enter into an agreement that would in any way harm German populations in those countries, or jeopardize their claim to German citizenship and immigration to Germany. 14 See generally Eduard Lintner, Die Deutschen in Ostmitteleuropa im ersten nichtkommunistischen Jahr, DEUTSCHLAND ARCHIV, Aug. 1991, at 795. 65 Id. at 794-95, 798-801. 166 Id. 167 Id. at 798. 16 See generally id. 169Id. "" Id. at 799. Vol. 11, No. I German Immigration Policy

Polish governments are committed to the protection of the status and rights of ethnic Germans as an official minority group.' 7 Since 1989, the German government has actively intensified diplomatic relations with Eastern European countries and the Commonwealth of Independent States in an effort to finally close the door on World War II and forge better relationships with its neighbors.' 72 These efforts have already produced results. On June 17, 1991, Germany and Poland signed a treaty to encourage neighborly and friendly cooperation.173 The treaty preamble speaks of the two country's commitment to work toward a more free and united Europe through the improvement of human rights and democracy. 174 Article 20 of the treaty guarantees German minorities in Poland the right to establish German schools; the right to pursue domestic and international contacts; the right to use German first names and surnames; the right to found local German chapters of larger international organizations; and the right to form cultural and religious groups. '75 Polish minorities in Germany have identical rights. In addition, Article 21 requires the governments of both nations to protect minority rights and to ensure that the educational system within that country adequately and accurately reflects the history and culture of minority groups. 176 Furthermore, Article 22 obligates all minority members to remain loyal and law-abiding citizens of their respective nations. 17 German Chancellor Helmut Kohl signed similar friendship treaties with Hungary on February 6-7, 1992,178 and with Czechoslovakia on February 27-28, 1992. 179 He has also discussed the possibility of resettling ethnic

M7'See Lintner, supra note 164. 172 Id. " Vertrag fiber gute Nachbarschaft und freundschaftliche Zusammenarbeit, June 17, 1991, F.R.G.-Pol., reprinted in DEUTSCHLAND ARCHIV, Aug. 1991 [hereinafter Vertrag]. 174Id. ' Id. Approximately one million ethnic Germans live in Poland. Lintner, supra note 164, at 797. 176Vertrag, supra note 173. 177id. 178Kohl unterzeichnet Vertrage in Budapest und Prag, DEUTSCHLAND NACHRICHTEN, Jan. 31, 1992, at 1 [hereinafter Kohl Vertrdge]. The full German text is reprinted in DEUTSCHLAND ARCHIV, July, 1992, at 767. 220,000 ethnic Germans reside in Hungary. Lintner, supranote 164, at 798. 179Kohl Vertrdge, supra note 178, at 1. The full German text is reprinted in DEUTSCHLAND ARCHlY, July 1992, at 774. Over 100,000 ethnic Germans live in the former Czechoslovakia. Lintner, supra note 164, at 798. Although Germans are now able to freely organize, many social problems still exist. Id. For example, the Communist Party confiscated all German-owned property after World War II without Wisconsin International Law Journal

Germans from the Commonwealth of Independent States to the southern Ukraine with Ukrainian President Leonid Krawtschuk."8° German parliamentary secretary Horst Waffenschmidt reported "interesting" initiatives proposed by the Ukrainian government, such as economic incentives and self-administration powers, to encourage other Germans to resettle there.' 8' In addition, Russian President Boris Yeltsin has suggested the possible resettlement of ethnic Germans in Saratow, a city in Russia's Volga region. 82 German farmers with economic assistance from Germany would aid the development of the Saratow region to offset the loss in food productivity caused by the withdrawal of the agriculturally rich Ukraine and Kazakhstan from the former Soviet Union.'83 As the quality of life continues to improve for German minorities across Europe, either as a result of the independent initiatives of Eastern European nations or through successful diplomatic relations such as the German-Polish friendship treaty, the need to grant ethnic Germans special immigration status diminishes. First, the German government never had any interest in these German emigrants until World War II. Furthermore, ethnic Germans had only limited emotional ties with Germany. They were re-introduced to one another by war, and Article 116 developed as a means to atone for the subsequent guilt caused by Hitler's war policies. The obligation symbolized by Article 116 pertained to that generation. Fifty years have passed; and although the ensuing generations of ethnic Germans have been forced to assimilate into the Eastern European and Soviet societies, they now have new hope, fostered by unilateral measures and German financial aid, to preserve their ethnic heritage. Second, as Germany continues to be an economic powerhouse in the twenty-first century, and consequently the preferred destination for many living in poor or politically oppressive areas, its political leaders should not exacerbate the existing social and political problems associated with large influxes of immigrants by continuing to support Article 116. 84

providing just compensation. Id. Moreover, many Germans were discriminated against in education and job promotions resulting in below average salaries for the young, and poverty for retirees. Id. Young Germans have also been unable to obtain formal German language education; today, many lack even a working knowledge of German. Id. Similar problems face German minorities in Romania and the former Soviet Union where 90,000 and over 2 million Germans live, respectively. Id at 800-801. 18"Deutsch-ukrainischer Vertrag, DEUTSCHLAND NACHRICHTEN, Feb. 7, 1992, at 1. 181Id. 82Russlanddeutsche nach Saratow?, FRANKFURTER ALLGEMEINE, Jan. 22, 1992, at 6. 183Id. "4 As of January 1992, over 500,000 Germans from Russia alone are waiting for their visa and citizenship applications to be processed. Czaja warnt vor unaufhaltbarerSturzflutvon Aussiedlern, FRANKFURTER ALLGEMEINE, Jan. 16, 1992, at 5. Vol 11, No. I German Immigration Policy

Finally, the movement toward a unified Europe decries the continued existence of a constitutional provision that is so clearly nationalistic in its preference for ethnic Germans over other possible immigrants. Repeal of Article 116 should not be viewed as foreclosing immigration for ethnic Germans into Germany; rather, its demise should be seen as the first step toward a general immigration policy that treats all potential immigrants, including ethnic Germans, equally.

VII. THE COMPOSITION OF GERMANY'S FUTURE IMMIGRATION POLICY

Germany's refusal to recognize itself as an immigration country rests in its belief that it simply cannot absorb any more immigrants. While it reasons that its size and its highly developed economy are incompatible with immigration, an analysis of U.S. immigration law shows this belief to be false. U.S. immigration policies have consistently focused on three objectives: family reunification, admission of refugees, and the "enrichment of America's storehouse of skills."185 Prior to the Immigration Act of 1990, approximately ninety percent of all U.S. immigrants entered under the family reunification policy since the U.S. government placed no limit on the immigration of immediate relatives (spouses, parents, and minor children) of U.S. citizens." 6 Amid growing concern that too much emphasis upon family preferences neglected the U.S. labor market's ability to absorb so many low- or unskilled immigrants, Congress passed two major reform bills in 1986 and 1990.'87 The Immigration Reform and Control Act of 1986 ("IRCA") addressed concerns over increasing number of illegal immigrants crossing the U.S.- Mexican border from Mexico and other Latin American nations."'8 ICRA provided for the naturalization of illegal aliens who entered the U.S. prior to January 1, 1982. In addition, it established provisions for the protection

185 Francis A. Gabor, Reflections on the Freedom of Movement in Light of the Dismantled "Iron Curtain", 65 TUL. L. REV. 849, 868 (1991). 6 11 Id. at 875, n. 106; Arnold H. Leibowitz, United States: Immigration Act of 1990, 30 I.L.M. 298, 299 (1991). Under the old law, 216,000 family preference (not including immediate relatives) and 54,000 employer-related visas could be issued annually. Id. 117 Leibowitz, supra note 186; Gabor, supra note 185, at 869-72; Peter H. Schuck, Overview: Domestic Implications of Immigration Policy, 7 YALE L. & POL'Y REV. 1, 17 (1989). The two acts symbolize the most dramatic reforms since 1965 when Congress eliminated a quota system based on national origin which favored European immigrants. Thomas Muller, Immigration Policy and Economic Growth, 7 YALE L. & POL'Y REV. 101, 114 (1989). That reversal paved the way for the largest wave of immigration into the United States since the turn of the century so that today, most new immigrants are of Latin American or Asian descent. Id. at 115. 18' Schuck, supra note 187. Wisconsin InternationalLaw Journal of migrant labor, increased border control, stronger deportation measures, and employer sanctions. 8 9 The Immigration Act of 1990 improved the availability of legal immigration, increasing the total number of aliens allowed to permanently migrate into the United States from 500,000 to 700,000."g The new law allowed for only modest increases in family-related immigration; however, it sharply increased the number of employment-related immigration visas offered from 54,000 to 140,000, or from less than 10% to 20% of all visas issued. 191 Under the 1990 Immigration Act, the preference structure for employment visas has been revised and expanded. Applicants now require certain skills and credentials in the sciences, art, education, business, and athletics to be eligible for these immigration visas. 192 The Act stressed the alien's level of post-secondary education, allowing no more than 10,000 visas to be issued to unskilled immigrants.'93 Furthermore, the expanded employment-based preference system included a new category for foreign investors who will infuse at least one million dollars of capital into the U.S.

' Id. at 10; Leibowitz, supra note 186, at 298. ICRA assures western U.S. growers a reliable labor force. Schuck, supra note 187, at 12. First, aliens who have worked in the United States with perishable commodities for a specified period of time prior to May 1, 1986, can apply for temporary legal resident status as "special agricultural workers" ("SAWs"). Id. Second, if a farm labor shortage develops, "replenishment agricultural workers" ("RAWs") are able to enter the U.S. as temporary residents. Id. Both SAWs and RAWs are potentially eligible for permanent residence status. Id. 19 Leibowitz, supra note 186, at 298. '9' Id. at 299. Immigration Act of 1990, Pub. L. No. 101-649, §101, 104 Stat. 4978, 4982 (1990). By comparison, Canada, another traditional immigration country, has always advocated a more selective visa process in order to avoid the "landing of pauper or destitute immigrants." Ronald G. Atkey, CanadianImmigration Law & Policy: A Study in Politics, Demographics& Economics, 16 CAN.-U.S. L.J. 59 (1990). In Canada, immigration applicants are placed in various categories on a prioritized list favoring individuals with education, training, skills, and other distinctive qualities. For example, in 1989, immigrants granted visas fell into the following categories: family class, 32%; independent (fulfilling occupational demand), 14%; designated class (qualified and willing to work in designated occupation), 14%; relative assisted, 11%; business entrepreneurs, 7%; conventional refugees, 5%; retired, 2%; self-employed, 1%; and investors, 1%. Id. at 61. "9Leibowitz, supra note 186, at 301. Immigration Act of 1990, supra note 191, § 121 at 4987- 90. 93Immigration Act of 1990, supra note 191, § 121, at 498-90. Unskilled aliens are defined as individuals without a college degree. Id. Although one might speculate that more emphasis on well-trained and skilled aliens is a trend that, if manipulated further, would discriminate against immigrants from poorer, generally less-educated nations, the current law is still predominantly centered upon family preferences. See supra text accompanying note 191. Vol. 11, No. I German Immigration Policy economy through operation of a new commercial enterprise creating at least ten new jobs for U.S. workers. 94 These two statutes illustrate that countries such as the United States can adapt their immigration policies to reflect domestic constraints. In particular, the United States has sought to reconcile the growing number of relatively low-skilled aliens seeking permanent residency in the U.S. with labor market considerations favoring both skilled and unskilled workers.' 9 Germany now faces the same predicament that the United States has confronted for generations. Many individuals would like to establish permanent residency in Germany, but the economy and its infrastructure are unable to absorb a large influx of immigrants so quickly. Recognition that it is an immigration country does not imply that Germany must now take in thousands of immigrants indiscriminately. Yet, refusal to address the immigration issue will not halt the flow of immigrants into Germany. Thus, the development of a formalized immigration policy would be to Germany's advantage. Historical German attitudes toward immigration have always been very pragmatic, dictated by supply and demand. In nineteenth century Germany, the government allowed the entry of foreign laborers when manpower shortages existed. The workers left, however, when demand dwindled.'96 In the 1960s, the government again recruited foreigners as guest workers to fulfill the need for labor. Recruitment stopped when the economy slowed and unemployment rose. The overriding factor in all these decisions was concern over the national economy and whether foreigners could contribute to productivity and growth. Current trends in immigration policies in developed countries such as the United States also reflect attempts to correlate immigration quotas with labor market demands. Thus, a German immigration policy based on the United States example is philosophically conceivable. "9

' Leibowitz, supra note 186, at 301. Lower levels of capital investment are allowable for investors willing to settle in rural areas or areas of high unemployment. Id. 19 Schuck, supra note 187, at 299. Muller, supra note 187, at 129. U.S. labor statistics project a need for 800,000 additional scientists and engineers between 1986 and 2000. Id. at 130. Yet, Americans are under-enrolled in these fields. Only 43% of all new engineers holding doctoral degrees are U.S. citizens. Id. at 131. On the other hand, 4.2 million new positions in the food preparation and service personnel areas are projected by 2000. Most of these jobs require few skills and limited English language ability. Id. 196 See supra text accompanying notes 89-91. '9 Furthermore, U.S. policy, which places great emphasis on family-preferenced immigration visas is not only consistent with previous German state action, but also with Article 6 of the Basic Law. Article 6 provides special state protection of marriage and the family. See supra note 55. Wisconsin International Law Journal

Germany's expressed concern regarding the implementation of an immigration policy is its ability to absorb new immigrants due to Germany's size and high level of economic development. 98 These restraints, however, do not preclude the formation of an immigration policy; rather, they may be incorporated within one. For instance, Germany may decide to issue almost all employment-based visas. Furthermore, in order to make an immigration statute politically palatable, the German government could formulate a separate family category for ethnic Germans which would be capped and which would only allow ethnic Germans with family members in Germany to immigrate. Such a concession, in conjunction with the repeal of Article 116, would remove the uncertainty surrounding the number of ethnic Germans immigrating each year. Therefore, the establishment of an immigration policy is not an unthinkable solution to the current social and economic problems resulting from the massive migrations into Germany within the last four years. Indeed, in light of Germany's continuing economic strength and future European migratory patterns, an immigration policy may be the best solution to curb xenophobic political movements within Germany. Moreover, the German government would be assured that it could better cope with the number of foreigners entering the country, and better facilitate their full integration into German society.

VIII. CONCLUSION

Whether the German government decides to actively pursue some type of federal immigration policy in the near future is still questionable. Unfortunately, inaction may only hurt the country, both economically and socially. The temporary phenomenon of guest worker migrations into Germany is no longer a valid description of the situation in which Germany finds itself. As populations in eastern and southern European nations and Third World countries continues to grow exponentially, Germany will appear more attractive to those living in poverty. Moreover, ethnic Germans will have a strong incentive to take advantage of their free ticket into Germany and seek full citizenship almost immediately. Right extremist political parties have also shown their willingness to capitalize on the German citizenry's frustration with the government's inability to fully discuss the immigration issue. Consequently, the social tensions among German citizens and foreigners living in Germany will only increase.

.98AUFZEICHNUNG ZUR AUSLANDERPOLITIK, supra note 6, at 51-52. Vol. 11, No. 1 German Immigration Policy 215

The formulation of an immigration policy is a reasonable solution. Full integration can easily be achieved with more lenient legislation facilitating naturalization. Furthermore, repeal of Article 116(1) would not completely close the door on immigration to ethnic Germans; rather, it would allow the German government to incorporate these people through a nondiscriminatory policy and more closely regulate the entry of foreigners into its country. Although senior German politicians may not yet be ready to admit it, Germany is an immigration country.