FECL 12 (February 1993):


Throughout Europe the open door policies of the post World War II period have been eroded or radically transformed. On the national, bilateral and multilateral levels, migration experts and far sighted euro-technocrats are now slamming the door on asylum seekers and potential immigrants.

The public debate on the reform of Germany's refugee legislation has forced one question more than any other to the forefront, i.e. are the current changes in Western Europe's immigration and refugee policy the product of nativist and neo-nazi violence, as many national governments maintain, or has the xenophobic and ultra-rightist violence witnessed in the last several years been instigated by the very federal and local officials who now claim they are only reacting to the voice of the people?


"Germany is open to the world"

The recent pogroms in Germany sent shock waves around the world. The German federal government and the Social-Democratic opposition have claimed that the neo-nazi skinhead violence is only the tip of an iceberg of national discontent directly the product of the liberal refugee policy anchored in the West-German constitution. According to this interpretation, the upcoming highly restrictive constitutional reforms, which will limit the influx of immigrants and asylum seekers to a mere trickle, were introduced in order to stop the movement of the general population towards the rightist fringe. A recently passed policy reversal, narrowly accepted by a special Social-Democratic convention in November of 1992, was justified along the lines that in order to save Germany's tradition as "a country open to the world", paragraph 16 of the constitution had to be sacrificed. This paragraph is the linchpin of the country's refugee policy and simply states that "victims of political suppression shall enjoy asylum", no if's, and's, or but's about it.

A closer examination of Germany's refugee policy within the last years makes quite evident that not only has the government's refugee policy been anything but "open to the world", but that internationally, Germany has maneuvred itself into a situation where it has no other choice than to water down or fully eliminate paragraph 16 of its federal constitution.


Internationalisation of Immigration and Refugee Policy

Beginning with the original TREVI (1975) and Schengen (1985) agreements, the process of internationalisation of West-European immigration and refugee policy has made limited but effective progress in tightening and coordinating the alien laws of the individual EC member states. Germany, as a driving force within both bodies, has at all times supported "Europeanisation"as a way of reducing the impact of the unwanted immigration the country has faced as a so called EC "front state". The German green (land) and blue (sea) outer borders are the longest of any of the prosperous EC members.

In 1986 the EC Council set up the "Ad Hoc Group Immigration" to deal with the effects the four freedoms of the "Single Market" will have on the individual states and the often times disparate alien policies. Finally, the Dublin Convention on refugee policy (1990) and the Schengen Implementing Agreement (1990) have set up an alien policy "fast track", enabling those states willing to cooperate, to harmonise their immigration and refugee policy prior to a comprehensive EC agreement. Ireland, Great Britain and Denmark have, for different reasons, choosen to remain outside the Schengen body of states, often referred to as "Schengenland". Here again, Germany has played a leading role in forcing through the "fast track" concept, which will enable it to take the pressure off its northern, eastern, and southern green and blue borders.


"Finally we can profit from our centrally located position"

Paragraph 16 was included in the West-German constitution as a symbol of retribution and gratitude, demonstrating that the Federal republic of Germany recognised its responsibility to make up for the damage done by the Third Reich in World War II and to show thanks towards those countries which had harboured German asylum seekers between the years 1933 and 1945. Paragraph 16 has, however, prevented Germany from fully benefiting from the Dublin and Schengen agreements. According to Dublin, so called "refugees in orbit", i.e. asylum seekers who travel through one or more safe countries in order to apply for asylum in a third or who apply for asylum in various safe countries must be returned to their country of origin or at least expelled from the single market area, once their claim has been rejected by the country defined responsible for considering the asylum application. Both demands were not only supported but also co-sponsored by the Federal Republic of Germany.

The Federal Republic of Germany has been tightening its immigration and refugee policy since the late 1970's. In 1975 the recruitment of "guest workers" was officially ended. To prevent the presumed abuse of the refugee status, entry visas were introduced for the citizens of Pakistan (1976), Afganistan, Ethiopia, Sri Lanka, Bangladesh, and Germany's NATO ally Turkey (all in 1980). Passenger carriers who allowed above mentioned nationals on board without an entry visa are fined and have to return these unwanted aliens feee of charge. Between 1969 and 1980 the recognition rate of refugee applicants dropped from ca. 87% to ca. 19%. In 1986 the then Secretary of the Interior Zimmermann declared that the ruling Christian democratic parties (CDU and CSU) would center their alien policy discussion on a restriction of the asylum laws. This was followed by a broad anti-refugee campaign sponsored and carried out by federal, state, and local members and state officials of the Christian Democratic parties. The crescendo we are now experiencing in East-Germany began as early as the mid 1980's in the west, i.e. long before the reunification with Eastern Germany and the outburst of anti-foreigner violence.

Paragraph 16 of the constitution is the last hurdle now preventing Germany from fully closing its borders to all unwanted aliens. The provision does not allow Germany to draw full benefit from the Dublin Agreement because "refugees in orbit" are formally protected by their constitutional right to asylum once within the country. Schengen ratification has been blocked for the same reason. In Maastricht (1991) the EC handed over responsibility for the future harmonisation and "Europeanisation" of alien policy to the "Ad Hoc Group Immigration". Great Britain, Denmark and Germany have blocked significant progress in the "Ad Hoc Group" up until now.

The demise of paragraph 16 was therefore more than overdue. Because this aspect of the German constitution is not only of political but also cultural significance, its "reform", i.e. elimination had to be carefully orchestrated. The wave of nativist and xenophobic violence was a welcome excuse, at the least. To which extent local, state, and even federal officials were actually involved in the instigation or escalation of the pogroms of 1991 and 1992 can not now be ascertained. Claims by various refugee and immigrant rights groups that this is indeed the case must remain what they are, unproven, i.e. unproveable claims.

The government - opposition (CDU/CSU/FDP/SPD) compromise reform of paragraph 16 has two central aspects. In the future not all "victims of political suppression shall enjoy asylum" but only those covered by the Geneva Convention, which is the basis of refugee policy in the other Schengen member states. German authorities are on the point to complete a list of all those countries considered democratic and whose nationals shall therefore automatically be excluded from refugee status. Secondly, all those countries bordering on Germany have been declared "safe countries", including the EFTA countries Austria and Switzerland as well as reform countries Poland and Czechia. The latter two countries will be paid to take back unwanted aliens. There is now, for all practical purposes, no way to legally enter Germany other then by air or sea. The existing visa stipulations prevent most Third World and many former East Bloc nationals from using this form of transportation. Now situated per definition within the centre of "democratic" Europe, Germany hopes to solve its immigration and refugee problems with the stroke of a pen.

Xenophobia and nativism have played a central role in allowing the German government to realise, on the international level, policies which they previously introduced at home. The mass marches and "chains of light" now common in the country are most certainly honestly intended by their organisers. They should not, however, be abused in order to cover up the fact that most of the damage has already been done.

Eugene Sensenig, Salzburg


Sources: Der Spiegel; International Herald Tribune; Klaus-Peter Nanz, Der dritte Pfeiler der Europäischen Union", in: Integration (3/1992). pp.126-140.
Contact: Dr. Eugene Sensenig, Hofhaymerallee 21/31, A-5020 Salzburg, Tel: +43/662 823651.