efms Paper Nummer 10 Illegal Migration in Germany efms Paper Nr. 10 Harald Lederer

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1 efms Paper Nummer 10 efms Paper Nr. 10 Illegal Migration in Germany Harald Lederer International Conference on Impacts of Migration: Migration from Middle and East to Western European Countries Migration between Middle and East European Countries September 24-26, 1997 in Frankfurt/Oder europäisches forum für migrationsstudien (efms)

2 1 1. Towards the Term Illegal Migration Generally, illegal behaviour is associated with infringement of a law. In the context of migration it means that foreign migrants are illegal according to the law of residence. That means these people have no residence permit for the host country. In another broader meaning it also means that foreign migrants are illegal according to the employment law. They have no work permit irrespective of a residence permit. In the case of Germany especially the absence of a residence permit (or a toleration) determines the whole way of living of these migrants. Every social contact, especially with the public authorities, holds many dangers. The implicit consequences would be the detention and deportation of the foreigner (see 61 Foreigners Act). Qualitative research in Germany is confirming this result that the state of illegality influences the way of living to a large extent (cf. Cyrus 1995a, 1995b, Hofer 1993a, 1993b). So this missing legal status constitutes a social group and this missing status is their common attribute. The term illegal is being preferred in the following remarks because rigid legal conditions determine the migrants Lebenswelt totally. Other concepts like irregular, uncontrolled, or undocumented migration are not clear and unambiguous. These concepts do not imply that other groups of migrants (labour migrants, refugees, ethnic privileged migrants (i.e. Spätaussiedler), family reunification) differentiate in the fact that these forms are legalized forms of migration. Illegal residence in Germany means in every case an infringement of law. I have to add that the term illegal should not be used in a pejorative or discriminating way. These people are mostly victims of false promises or often victims of crimes. They are not illegal as a person only the absence of a resident permit is illegal. 2. The Legal Conditions As mentioned above I will give a short overview of the legal framework of illegal migration and illegal employment in Germany in an international comparative perspective (cf. von Pollern 1996, Aurnhammer 1996). 1. Every foreigner who lives in Germany needs a residence permit, which has to be renewed regularry (see 3 Foreigner Act). For getting a residence permit it is required that someone is entering Germany legally (see 8 Foreigners Act). People who try to come illegally are rejected at the border (see 60, 61 Foreigners Act). In addition, illegal residence is prohibited (see 92 Foreigners Act). So in Germany illegal migration and residence is being sanctioned in a very restrictive way (deportation). 2. There is no possibility (except marriage) to get legalized in an individual or a collective procedure. Germany does not enforce regulation programs. 3. Some other offences which are connected with illegal migration are punished. Aggravated trafficking, forging documents etc. are declared as crimes and will be sentenced with imprisonment (see 92a, 92b Foreigners Act). 4. Illegal residence is often related with illegal employment of foreigners, which means that these phenomena occur very often together. In principle, in Germany every foreign non-eu-migrant worker needs a work permit (see 19 Arbeitsförderungsgesetz). 1 1 There are some exceptions (i.e. citizens of EU member states).

3 The labour offices issue the work permits and they check if a person has a valid residence permit. So it is impossible that a person without a legal residence status will get a work permit. Because of this "dual permit system" a migrant with a valid residence permit can be illegal in the way of employment. This is the case when an asylum seeker with a special form of residence permit (Aufenthaltsgestattung), which prohibits working explicitely is working. Despite of a valid residence permit the employment of this person is illegal. A foreign migrant who has neither a residence permit nor a work permit is illegal in a "double way". In the case of illegal employment German law allows sanctions against employers and employees: fines (max. 100,000 DM for employers and 1,000 DM for employees) and imprisonment in more serious cases (max. 5 years) (see 229, 227a Arbeitsförderungsgesetz). Furthermore, the German law implies a lot of offences concerning the employment of foreigners (i.e. offences against contract work rules, or offences of EU-workers) The Emergence and Forms of Illegality Illegality in the context of residence and migration is not always a result of a clandestine border crossing. There are plenty of ways how a foreigner can become illegal. In principle we can distinguish three ways of entrance (into the state of illegality): 1. Illegality by crossing the border clandestinely and undocumented: People cross the land or sea borders away from border crossing points without getting detected or they are hidden in cars, lorries, coaches, trains or aircrafts. These forms of border crossing are often organized by professional alien smugglers. 2. Illegality by crossing the border seemingly legal: The legality of border crossing is pretended by using forged documents (passports). 3. Illegality after staying legal in Germany without crossing the border: This form of becoming illegal is usually called "visa-overstaying". But we can differentiate several forms of illegality after staying legal in Germany: A tourist enters the country and stays longer than 3 months (the duration which is usually approved for tourists). People who legally pass the border with a valid visa (i.e. for the purpose of visiting relatives) are becoming visa-overstayer after the validity of their visa expires. Another case is when someone gets a resident permit from the local foreigners office (Ausländerbehörde) by forging documents (i.e. birth certificate) or by bribing an employee of the foreigners office. Or someone gives false personal details with the purpose to obtain a resident permit. An example for this case is the fictitious marriage. Finally, people get illegal when they are to be expelled (after a legal residence time-period for example as an asylum-seeker) and they have been able to go underground. It should be added that there is not only an access of illegal migrants but there is also undocumented remigration and transitmigration in Germany. Probably plenty of illegal migrants who failed in the host country return undocumented.

4 Considering the group of illegal migrants a heterogeneous picture appears concerning the motives and causes of migration and concerning the social situation. We have to assume that plenty of specific patterns of illegal migrants exist. In my work I have identified 18 different patterns (Lederer/Nickel 1997). In the following paragraph eight examples of these patterns are mentioned: 1. Former economically motivated contract or seasonal workers stay in Germany after their permits run out. Many of them have a job and they have built up social networks during the legal phase of work and residence (cf. Cyrus 1995). 2. Also foreign students lose their residence permit when they stay in Germany after finishing their studies and the validity of thier visa expires. 3. Another type of migrant without a legal residence permit enters Germany by reasons concerning the scope of family and relationship. It concerns forms of illegal family reunification. In Germany the right to reunite family members refers only to a small group of persons. Only children under 16, spouses and hardship cases have this right in contrary to the other goups of relatives (children over 16, parents, brothers and sisters). If we look at the number of more than five million people from outside the European Union living in Germany we can assume that there exists a huge potential of family members, who do not have this privilege (cf. Röseler/Vogel 1993: 14). Because of social inclusion in the family and in ethnic social networks these groups of migrants are not very conspicuous. 4. The illegality of persons can be caused also by divorces. When a foreign migrant who is married with a german spouse gets divorced after a short time the foreigner loses its residence permit. 5. Another special group that must be mentioned is the group of female prostitutes who have no residence permit. In a lot of documented cases (often published in the press) foreign women especially from eastern Europe or from the so-called Third World have been lured to Germany under false promisses. Many of these women are getting in an extreme state of dependence of criminal organizations (see Bundesminister für Frauen und Jugend 1991: 162ff). 7. Former asylum-seekers who are finally rejected can become illegal when there are no reasons that hamper their deportation and they go underground. 8. Considering the German legal conditions and the patterns of migration found, we have to ask if this phenomenon can be described as a process of immigration (in way of settlement) or as a new form of mobility that is induced by borders getting more and more permeable and a revolution in the field of transportation. Many of these identified migrants stay only for a short time in Germany and are crossing the border very often to work illegaly in Germany. So that their social and cultural relations in the countries of origin totaly retain (see Morokvasic 1994, Cyrus 1995a). As a result it can be summarized here: It has to be assumed that degrees of illegality are existing with regard to the legal and the real social situation. The variety of existing pattern of illegality reaches from more formal offences against employment rules to aggravated alien smuggling. The considered group is not homogeneous. There does not exist one pattern of illegal migration. It has to be seen as consisting of different social groups each of which have specific motives and biographic backgrounds. 3

5 Migration research should discuss if some of these forms of mobility can be still described as migration in the traditional meaning (as a permanent movement of people over significant distance). It can be presumed that a new social reality emerges in this sense Measuring Illegal Migration Newspapers, journals and politicians often give estimations regarding the numbers of migrants, who stay illegal. These estimations without scientific foundations range from 500,000 to 1 million people who live in Germany without a residence permit. The mentioned numbers are under suspect to be "political". The principle obstacle to give exact numbers of illegal migration is the fact that these migrants will be only registered when they come in contact with the offical administration (police, border police, local foreigners office). But migrants try to prevent this contact at any rate, because as a consequence they will be expelled. In addition the follwing methodological problems can be identified: 1. As mentioned above the migrant group is very heterogenous regarding the emergence and the way of life so that the group cannot be registered as one group. 2. For the estimation of the population stock (of migrants without residence permit) under those conditions it is necessary to have information about the population flow, especially scale of illegal immigration and undocumented emigration. 3. Considering the number of apprehensions made by public authorities (i.e. by the border police) it should be taken into account that only the recognised cases are being registered. The number of undetected cases is unknown. Without further inquiries there can be made no statement regarding this scope. But we can interpret the number of apprehensions as "traces" of migrants they leave in the statistics. In a longitudal perspective these statistics refer to tendencies. But it has to be taken into account that all these statistics have their own methodological biases. Figure 1 2 Pries (1996) observed "transnational social spaces" (Transnationale Soziale Räume) emerging between Mexico and the U.S.A. These "transnational social spaces" show attributes like migration networks, a permanent circulation of men, goods and information.

6 Considering the apprehensions the german border police has made between 1990 and 1996 it can be noticed that there is an increase since The number, however, reaches the peak in the year 1993 (see figure 1). It must be mentioned that the efficiency of the border police was probably also increasing during these years because the technical infrastructure has been improved and the personnel staff has been extended in a large scale. But we have to rember that illegality is less a result of clandestine border-crossing. It is much more comprehensive and is related to illegal the phenomon of illegal employment. Figure 2 5 As we see on figure 2 the numbers of fines and charges because of illegal employment of foreigners have also increased in a high degree since In the year 1990 more than 9,000 cases of illegal employment of foreigners were reported by the prosecuting attorney. This indicator reflects also the intensity and efficency of checks made especially by the Offices for Labour. These and other additional statistics (i.e. apprehensions by the police) indicate that illegal migration in Germany has increased over the last seven years. 5. Conclusions This contribution should be finished by touching two other important topics: First, illegal migration and illegal employment is declared as a social problem by all western European states. And illegal migration has complex impacts on the welfare system, on the free market economy and on the labour markets (cf. Vogel 1996, Lederer/ Nickel 1997). But none of the industrial states has solved this problem in a satisfying way. Secondly, hitherto we do not know very much about illegal migration in Germany because the phenomenon has only emerged in Europe since the beginning of the nineties. Only a couple of qualitative studies have been made so that there is a huge lack in the field of sociology and migration research. Illegal migration is one of the less inquired scopes in society.

7 6 References: Aurnhammer, Katharina 1996: Spezielles Ausländerstrafrecht, Die Straftatbestände des Ausländergesetzes und des Asylverfahrensgesetzes, Eine vergleichende Untersuchung, Baden-Baden. Bundesminister für Frauen und Jugend (Hg.) 1991: Umfeld und Ausmaß des Menschenhandels mit ausländischen Mädchen und Frauen, Stuttgart. Cyrus, Norbert 1995a: In Deutschland arbeiten und in Polen leben. Was die neuen WanderarbeiterInnnen aus Polen bewegt, in: Infodienst Migration Nr.1, März 1995 (Diakonisches Werk der EKD). Cyrus, Norbert 1995b: Neue Konzepte sind erforderlich. Zur Situation irregulärer polnischer Zuwanderer in Berlin, in: Infodienst Migration Nr.1, März 1995 (Diakonisches Werk der EKD). Hofer, Konrad M. 1993a: Arbeitsstrich, Unter polnischen Schwarzarbeitern, Wien. Hofer, Konrad M. 1993b: In einer Welt der Illegaliät. Unter SchwarzarbeiterInnen aus Polen, in: Pilgram, Arno (Hg. 1993): Grenzöffnung, Migration, Kriminalität, Jahrbuch für Rechts- und Kriminalsoziologie, Baden-Baden. Lederer, Harald W. / Nickel, Axel 1997: Illegale Ausländerbeschäftigung in der Bundesrepublik Deutschland, herausgegeben vom Forschungsinstitut der Friedrich-Ebert-Stiftung, Bonn. Morokvasic, Mirjana 1994: Pendeln statt auswandern. Das Beispiel der Polen, in: Morokvasic, Mirjana / Rudolph, Hedwig (Hg.) 1994: Wanderungsraum Europa, Menschen und Grenzen in Bewegung, Berlin. von Pollern, Ingo 1996: Das spezielle Strafrecht für Ausländer, Asylbewerber und EU-Ausländer im Ausländergesetz, Aslyverfahrensgesetz und EWG-Aufenthaltsgesetz, in: Zeitschrift für Ausländerrecht und Ausländerpolitik, 4. Quartal Pries, Ludger 1996: Transnationale Soziale Räume, Theoretsich-empirische Skizze am Beispiel der Arbeitswanderungen Mexico-USA, in: Zeitschrift für Soziologie, Jg. 25, Heft 6, Dezember Röseler, Sibylle / Vogel, Dita 1993: Illegale Zuwanderer ein Problem für die Sozialpolitik?, ZeS Arbeitspapier Nr.1/93 (Zentrum für Sozialpolitik), Bremen. Vogel, Dita 1996: Illegale Zuwanderung und soziales Sicherungssystem eine Analyse ökonomischer und sozialpolitischer Aspekt, ZeS Arbeitspapier Nr.2/96 (Zentrum für Sozialpolitik), Bremen.