Kirchhoff, Lorenz, Schwenken (University of Kassel): Deportation through the backdoor --- Draft: please do not circulate!

Transcription

1 General Conference of the European Consortium for Political Research (ECPR), Glasgow, September 2014, Section 5 Bridging Worlds: Political Parties and International Migration, Panel 247, Saturday, 09:00 10:40, Party Contestation over the Deportation Issue Maren Kirchhoff, David Lorenz, Helen Schwenken 1 Promoting deportation through the backdoor: How the German Conservative Party depoliticized contestations over asylum policies and how this influences the German and European deportation regime 1. Introduction Deportation is rarely promoted openly by policy makers, with two exceptions: the deportation of delinquents and by parties from the radical right. However, more general regulations on migration and asylum that are matter of highly controversial political contestations entail decisive consequences for deportations, as we show in this paper with regards to the so called German asylum compromise that took place in 1992/1993. This phase in Germany migration and asylum policies can be considered a watershed moment for any development thereafter. In this case deportation has been promoted through the backdoor in a double sense: (a) as part of a more general reform of German asylum policy and (b) that has been achieved after long contestations on the national level by a strategic scale shift to the European level. In our paper we elaborate on how the developments in the early 1990s have been furthered by conservative politicians, especially members of the CDU. The analysis of the negotiation process of the asylum compromise gives an insight into the multilevel strategy used in the context of the Europeanization of migration policies to advance national policy change. 1 All: University of Kassel, Faculty of Social Sciences, Nora Platiel Str. 1, D Kassel, Germany; Research project Protests against Deportation in Austria, Germany and Switzerland ( ). The German project is funded by the German Research Council DFG (project number SCHW 1389/5 1). Please direct comments to: kirchhoff@uni-kassel.de 1

2 Furthermore, we analyze the development of the German deportation regime since the early 1990s. We argue that with the introduction of the safe third country regulation on the national as well as European level, there has been a decisive shift in the German deportation regime in the early 1990s: from deportation of rejected asylum seekers to deportation to countries of transit before any asylum procedure. The procedural question whether an asylum seeker has the right to claim asylum or not thus increasingly replaces the question about the validity of the claim. This fundamental change in the deportation regime persists until today, expressing itself in both, the increase of Dublin cases among deportations and rejections and the recent bill to declare Western Balkan states as safe countries. Our analysis aims at providing the contextual prerequisites for the German country study (of the comparative project) on protests against deportations from 1993 until 2013 (quantitative protest event analysis and qualitative case studies). Such protest incidents can only be analyzed with thorough analyses of the changing meanings of the policy issues of asylum and deportations and the related political opportunity structures. We build our analysis on concepts that have been developed in (critical) Europeanization and migration studies. 2. Controversies over asylum and the strategic shift to the European level After the end of the guest worker regime in Western Germany in 1973, asylum and deportation became a highly debated topic. Whereas in 1978 only 38% of the population was in favor of a return policy, the share amounted to around 80% in 1983 (Oulios 2013, 216). This general trend was both reflected and furthered by official politics, e.g. with the campaigning against the misuse of asylum ( Asylmissbrauch ) in the late 1970s/early 1980s (Kannankulam 2014, 100). In the following years, a set of measures was taken to restrict such misuse : In July 1978, the parliament decided unanimously on an Acceleration Act to speed up the examination of asylum applications. This was follow by a second Acceleration Act in 1980 and the Asylum Procedures Act in These administrative changes led to a temporary pause in the political discussion on asylum 2

3 (misuse) (Müller 2010, ). Nevertheless, the public discourse on migration, admission of refugees and deportation started to get increasingly polarized 2 (Oulios 2013, ). During the West Berlin election campaign in 1985, the generosity of the German asylum system was detected as the basis for the misuse of asylum by some conservative politicians. A general amendment to the Basic Law was far from being consensual, though, both among the CDU/CSU members, and with the coalition partner FDP and the oppositional SPD. Against the resistance of the other parties, CDU and CSU introduced asylum as a topic in their federal elections campaign, and the Minister of the Interior at the time, Friedrich Zimmermann (CSU), stated that the problem could only be solved by putting into question the Basic Right of Asylum (Müller 2010, ). The breakdown of the socialist states in Eastern Europe fundamentally changed the background of this debate. It was expected that the number of migrants from the former Soviet Union and Eastern European states would rise after the breakdown of tight emigration restrictions. Furthermore, an increasing hatred of foreigners in the German society led to several electoral success of right wing parties in regional parliaments following the German reunification (cf. Koopmans 1996). This was accompanied since autumn 1991 by street hunts of foreigners and arson attacks 3 and increased the support within the conservative parties for an amendment of the German constitution. Some SPD politicians, too, started to attach themselves to the conservative demands, complaining about the financial burden that asylum seekers mean for the local level. The government still lacked the support of its coalition partner FDP and the majority of the Social Democrats, though (ibid.; Oulios 2013, 226). 2 Whereas the 1980s saw strong protests against deportation (especially after the suicide of the Kurdish activist Kemal Altun in order to escape his potential deportation to Turkey) the foundation of a net of initiatives and self organized groups fighting for migrants and refugees rights, several local and campaigns were mobilizing in the context of local and federal election campaigns to stop the admission of foreigners (o.a. 1982). 3 In September 1991, asylum seekers were evicted from their accommodation in Hoyerswerder; in October, two refugee minors got hurt in Hünxe. In August 1992, an accommodation in Rostock Lichtenhagen was beleaguered for days and finally set on fire, the asylum seekers get attacked (Bade und Oltmer 2004, ). 3

4 The final success of the CDU can only be understood with regards to the strategic use of a multi level approach or venue shopping (Guiraudon 2000), i.e. putting a strategically calculated emphasis on negotiations at the European level in order to shift forces in the national debate. Since the late 1980s, the discussions on German asylum law reform were increasingly influenced by the Europeanization of migration and asylum policies (cf. Lavenex 2001). These negotiations on the European level have been furthered and to a huge extent influenced by the German chancellor Helmut Kohl and the respective Ministers of the Interior (Zimmermann, Schäuble, Seiters) and were used in turn as a strategic means for a restrictive rearrangement of the German asylum laws (Müller 2010, 161; Schwarze 2001, 152). On the national level, it was argued that in the context of the gradual abolition of internal borders within the Schengen territory, Germany would turn to a reserve country for asylum. Due to its constitutionally backed individual right to asylum, Germany would not be able to make use of the regulations of responsibility that were part of the Convention Implementing the Schengen Agreement and the Dublin Convention. The CDU /CSU faction refused to sign the Convention Implementing the Schengen Agreement if a change of national asylum regulations did not materialize (Schwarze 2001, 156). In June 1992, the coalition partner FDP started to support the conservative aims to amend the German asylum law, justifying its change in mind with the forthcoming European harmonization (Müller 2010, 164). One month later, the British presidency of the European Union presented an initiative regarding the safe third country regulations that were taken as the basis for negotiations on the European level. As Schwarze highlights, the conditions to define a safe third country that were presented in the London Resolutions closely resembled the definitions that had been discussed on the German level. This was accompanied by the demand of both the Council of Ministers and the European Council to quickly implement the resolution into national laws (Schwarze 2001, ). By strategically changing the context in which the policy discussions took place and reaching results of negotiations on the European level that were very close to what they foresaw for the German level, the conservative parties could thus legitimize their demands as all big parties were pursuing a European harmonization in the policy field of asylum (Schwarze 2001, 164). In August 1992, the SPD chairperson Engholm agreed upon a change in asylum laws, too, referring to the European acquis. Even though 4

5 there were still some parts of the SPD that were against the amendment, this was the decisive turn that paved the way for the final change of national asylum laws (Müller 2010, 164). On Dec 6, 1992 the CDU/CSU/FDP government agreed with parts of the SPDopposition on the so called asylum compromise. This led to the amendment of Art 16 of the German Basic Law, which entered into force on July 1, One of the most important elements of the amendment was the construction of safe third states (Art 16 a, 3) and safe states of origin (Art. 16 a, 3): Anyone who had either entered Germany from a safe third country by which Germany is surrounded per definition or was national of another country that was regarded as safe country of origin could not rely on the individual right to asylum. 3. The intersection of national and European asylum policies and its consequences for the German and European deportation regime Despite the fact that deportation was not a direct matter of the above described discussions and negotiations on migration and asylum policies, the interrelated policy reforms and formulations on the national and supranational level led to a decisive change in the German and European deportation regime, as we will illustrate in the following. In this context the Dublin System with its legal basis matters: the Dublin Regulation 4 is one of the most important pillows of the recent European deportation regime. The decisive political decisions concerning the basic structure have been taken during the negotiations about the Schengen Agreement in 1990 and lead to the constitution of the Dublin Convention in 1990 that came into force in Since 2003 it was recasted as a European regulation and as such part of the European Union law. The history of the Dublin regulation and particularly its recent recast in 2013 (from Dublin II to Dublin III) has been complex and full of conflicts (c.f. Meyerhöfer et al. 2014). One of the main assumptions, on which the Dublin Regulation is founded, is the construct of safe third countries. As adumbrated above, this idea was 4 The full name of the Dublin Regulation is REGULATION (EU) No 604/2013 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third country national or a stateless person (Dublin III 2013). 5

6 intensively promoted by the German CDU/CSU chancellor and Minister off the Interior on the European level. The Dublin Regulation iss based on the counterr factual idea, that all member states of the EU are safe countries for asylum seekers 5. As, according too the regulation, all member states are safe, the examination of the asylum applications can be distributed between all EU member states and the responsibility distributed. Due to the fact thatt asylum seekers often have different reasons too choose a specific member state to examine their application, the distribution of responsibility has to be repressively enforced. For this purpose a whole new system of inter EUU deportations, the soo called Dublin Transfers has been created. The Dublin System and its deportations have increasingly gained in importance and are today one of the cornerstones of the European deportation regime. On the German national level, too, the introduction of the idea of safe third countries into the legal framework led to major changes in the deportation n regime. Since 1998 the t total number of deportations 6 has been declining considerably as illustrated in Chart 1. Chart 1: Deportations, rejectionss and Dublin transfers from Germany This assumption was negated by the European Court of Human Rightss and the European Court of Justice, whichh lead to a mayor crisis off the Dublin System and the of as goodd as all transfers to Greece in 2011 (Meyerhöfer u. a. 2014, ). In Germany there are different legal forms of forced returns. When wee use the termm deportations in this paper, we include deportations, returns and Dublin Transfers. 6

7 Chart 1 shows the number of deportations, rejections and Dublin Transfers in Germany from 1997, the year in which the Dublin Convention entered into force, to the year Deportation and rejections are shown in orange, Dublin transfers in blue. The chart only shows deportations, rejections or transfers from Germany, not to Germany. There can be different reasons for the deportations and rejections. Mainly they are enforced against migrants whose asylum application has been rejected, whose permit of stay has ended or whose presence in the German territory has been declared illegal. This form of deportation still accounts for the most part of deportations. However, in the last years the numbers have been declining. Contrary to the general trend, the numbers of Dublin transfers from Germany have been rising by trend. In 2013, nearly every third deportation out of Germany has been a Dublin transfer. These figures indicate that there is a shift in the German deportation regime away from the classic form of deportations of illegalized migrants or of asylum seekers whose asylum request has been examined and rejected because of the content of the request. Instead, deportation decisions are increasingly based on purely formal reasons the question is not, if someone has a right to protection, but if the person has the right to request this right in Germany. We perceive this as a strategy of bureaucratization and thus depoliticization of a highly contested policy field. The recent intentions of the grand coalition of the conservative Christian parties and the Social Democrats go into the same direction. On June 6, 2014 the coalition decided on another significant change in asylum regulations: By declaring Serbia, Macedonia and Bosnia Herzegovina as safe countries of origin and shortening asylum procedures, they intended to cut the rising number of asylum seekers from Western Balkan states 8. This advance is certainly one of the biggest reforms since the so called asylum compromise of the early 1990s 9. 7 The abbreviations mentioned in the chart refer to: Bundesregierung 2007; Bundesregierung 2008; Bundesregierung 2009; Bundesregierung 2010; Bundesregierung 2011; Bundesregierung 2012; Bundesregierung 2013; Bundesregierung 2014; Kreienbrink 2007; Jahresbericht des Bundesgrenzschutzes 1999 ; Jahresbericht des Bundesgrenzschutzes The decision of the second chamber of the German parliament Bundesrat is still outstanding. 9 Today as back then, the policy reforms are backed by racist debates on the misuse of asylum. 7

8 4. Conclusion In the paper we have traced changes in German and European asylum policies and their impacts on deportations. As illustrated above, asylum politics and asylum regulations have been one of the most contested topics of German domestic politics in the end of the 1980s and early 1990s. As the main actors that promoted the asylum compromise, the conservative parties CDU and CSU, encountered strong resistance on the national level, they shifted the arena and strategically used the negotiations at the European level. By influencing the intergovernmental discussions on the European level and using this in the political discussions on the national level, the CDU/CSU succeeded in partly depoliticizing this contested policy field and thus in putting forward a restrictive asylum policy. The successful installation of some regulations on the European level that were quite similar to what they tried to achieve on the national level changed the constellation in Germany in a way that allowed the CDU/CSU to convince their party opponents of their plans. The achieved asylum compromise has been central for the German migration and deportation regime with decisive repercussion on the European level. Even though deportation was not discussed in this context, the implementation of the safe third countries regulation and the safe countries of origin principle on European and German levels led to major shifts in the German and European deportation regime. Why do these historical developments matter for a comparative research project on protests against deportations? First, one has to take into account that the meaning, and also its public perception and acceptance of deportation as a normal policy, has changed over time. Second, the types of deportation have changed significantly, with Dublin deportations having drastically increased. The so called Dublin transfers as well as the introduction of safe third countries are both an expression of the technocratic or bureaucratic turn in asylum policies as described in this paper. Such bureaucratic decisions appear as neutral, as unquestionable. Further, those being deported are usually deported right away, not having a chance to apply for asylum, to make friends or integrate otherwise into Germany. For potentially critical bystanders it is much more difficult to mobilize against these then against inhumane deportation decisions taken after a family, for example, has 8

9 lived in Germany since a couple of years. Apparently, this is of importance for our analysis on contested deportation polices. As shown, if such policy shifts have been promoted vigorously by the Conservative Party (and applauded by significant parts of the Social Democrats), one could consider it a clever tactic to sell a policy that has had an undertone of resentment and racism as a bureaucratic or technocratic necessity. References Bade, Klaus J., und Jochen Oltmer Normalfall Migration. Bpb, Bundeszentrale für Politische Bildung. Bundesregierung Antwort auf kleine Anfrage Abschiebungen 2006, Bundestagsdrucksache 16/ Antwort auf kleine Anfrage Abschiebungen 2007, Bundestagsdrucksache 16/ Antwort auf kleine Anfrage Abschiebungen 2008, Bundestagsdrucksache 16/ Antwort auf kleine Anfrage Abschiebungen 2009, Bundestagsdrucksache 17/ Antwort auf kleine Anfrage Abschiebungen 2010, Bundestagsdrucksache 17/ Antwort auf kleine Anfrage Abschiebungen 2011, Bundestagsdrucksache 17/ Antwort auf kleine Anfrage Abschiebungen 2012, Bundestagsdrucksache 17/ Antwort auf kleine Anfrage Abschiebungen 2013, Bundestagsdrucksache 18/782. Dublin III lex.europa.eu/legalcontent/de/txt/pdf/?uri=celex:32013r0604&qid= &from=de. Jahresbericht des Bundesgrenzschutzes Jahresbericht des Bundesgrenzschutzes Guiraudon, Virginie European Integration and Migration Policy: Vertical Policy making as Venue Shopping. JCMS: Journal of Common Market Studies, 38: doi: /

10 Kannankulam, John Kräfteverhältnisse in der bundesdeutschen Migrationspolitik. Die Asyldebatte als Schlüsselereignis des schwerfälligen Wandels vom Gastarbeitsregime hin zu Managed Migration. In Kämpfe um Migrationspolitik, herausgegeben von Forschungsgruppe Staatsprojekt Europa, Bielefeld: transcript Verlag. Koopmans, Ruud Explaining the rise of racist and extreme right violence in Western Europe: Grievances or opportunities? In European Journal of Political Research, 30, 2, Kreienbrink, Axel Voluntary and Forced Return of Third Country Nationals from Germany. Research Study 2006 in the framework of the European Migration Network. Lavenex, Sandra The Europeanisation of Refugee Policies. Between Human Rights and Internal Security. Ashgate. Meyerhöfer, Andreas, Ulrich Hartl, David Lorenz, Sebastian Neumann, und Adrian Oeser »Dublin II kippen!«kämpfe um selbstbestimmte Migration in Europa. In Kämpfe um Migrationspolitik Theorie, Methode und Analysen kritischer Europaforschung, herausgegeben von Forschungsgruppe»Staatsprojekt Europa«, Bielefeld: transcript Verlag. Müller, Doreen Flucht und Asyl in europäischen Migrationsregimen. Metamorphosen einer umkämpften Kategorie am Beispiel der EU, Deutschlands und Polens. Göttingen: Göttinger Universitätsverlag. o.a Ausländer: Das Volk hat es satt. Der Spiegel, Mai 3. Oulios, Miltiadis Blackbox Abschiebung: Geschichten und Bilder von Leuten, die gerne geblieben wären. Berlin: Suhrkamp. Schwarze, Susan Das Arenen Verhandlungsmodell Deutsche Asylpolitik im europäischen Kontext von 1989 bis Freie Universität Berlin, Germany. berlin.de/diss/receive/fudiss_thesis_