A hyperactive legislator
Numerous changes in asylum and residency law have led to differences in the way that the law is applied and legal uncertainty
Asylum and residency laws have been changed more frequently in the space of just a few years than almost any other area of legislation in Germany. This makes it increasingly difficult to make sense of the large number of regulations, both for asylum seekers and for the authorities responsible for applying them. According to studies conducted by two researchers at the Max Planck Institute for Social Law and Social Policy, a revision of the system is urgently needed – in part because the changes to the law at national level increasingly infringe the standards set out in European and international law.
Since the summer of 2015, when hundreds of thousands of people sought refuge in Europe, the member states of the European Union have increasingly acted in contradictory ways, and with their own national interests in mind. As a result, at European level, asylum legislation has practically come to a standstill. “This means that there is now room for interpretation, which the legislator in Germany has exploited to become ‘hyperactive’ in terms of its legislative activity,” explains Constantin Hruschka, a legal expert conducting research at the Max Planck Institute for Social Law and Social Policy. “Since 2015, 40 amendments have been made to laws relating to asylum and residency rights, each of which usually leads to changes in numerous individual standards – and more legislative amendments are already being discussed.”
The first change in the law between 2015 and 2020, the period studied by the researchers, came into effect just four weeks after it was first presented in the Bundestag – a far shorter period than is usual for legislative procedures. Other changes were made just as swiftly. In 2019, the National Regulatory Control Council, an independent committee used by the German Federal Government, which advises the government on legislative issues, criticized the manner in which laws were being passed as being an “ad-hoc repair measure.”
With their analysis of legislative texts and parliamentary discussions, Constantin Hruschka and Tim Rohmann from the Max Planck Institute for Social Law and Social Policy in Munich have demonstrated that the main cause of the intense legislative activity is the increasing political and public pressure in the debate surrounding migration. This debate became even more heated in the wake of individual incidents such as the events that occurred in Cologne on New Year’s Eve or the attack on the Christmas market on Breitscheidplatz square in Berlin. “Following these events, the legislator attempted to change the national legislative framework, which had frequently been criticized as being inadequate – while in some cases failing to meet the relevant international standards. The aim was to use the residency and asylum laws to prevent criminal acts and to ‘improve’ implementation of existing mandatory expulsion orders. For example, the list of offences that lead to expulsion has been extended, and restrictions have been introduced for people who refuse to provide evidence of their identity.
The large number of amendments to the law, which have been passed in quick succession, have reduced the degree of coherence with regard to asylum and residency law. The researchers show that since the start of 2016, the focus of legislative activity has also shifted, from a management approach designed to provide a short-term response to a strong increase in numbers to one that is focused mainly on sending people back home and “combating abuse of the law”.
The researchers conclude that as a result, earlier attempts to promote the integration of asylum seekers are now being replaced by a policy of exclusion. “Even when it comes to promoting the integration of people in need of protection, we have now found numerous cases where exclusion mechanisms have been put in place,” says Tim Rohmann. For example, the opening up of the employment market and the integration courses for asylum seekers, which were first implemented in 2015, have now been made subject to “good prospects for remaining”. “This has had a particularly severe impact on people from so-called safe states of origin, who are completely excluded from the employment market and integration courses,” Tim Rohmann adds. Furthermore, he says, the legislator has severely curtailed the scope of eligibility for social benefits and has significantly restricted the freedom of movement of asylum seekers by extending the 18 month period during which they are obliged to remain resident in the anchor centres and other similar facilities.
With this in mind, the researchers have come to the following conclusion: the wave of laws introduced as a result of the “perceived” loss of control is exacerbating this lack of control rather than helping to counter it. “In practice, due to the lack of coherence in asylum and migration law caused by the many amendments, there is a high level of uncertainty among everyone involved, including legal advisers, asylum seekers and particularly the authorities responsible for implementing the law,” Constantin Hruschka explains. Above all, the local authorities vary widely in the way that decisions are made. “As a result of the scope for interpretation when it comes to making decisions, there is a risk that when the law is applied, standards set out in international and European law will be breached, for example with regard to access to social rights such as the right to access to education or to family reunion,” says Tim Rohmann. For this reason, according to the findings of the two researchers, legislation that is driven purely in response to specific events and current political developments cannot produce adequate solutions to the challenges created by refugee migration.