European Migration Law and Practice between Imagination, Integration and Exclusion

European Migration Law and Practices MLL Hasenkamp

1 von 56

European Migration Law and Practices between Integration, Imagination and

Exclusion

Miao-ling Lin Hasenkamp

Otto-von-Guericke-University Magdeburg, Germany

[email protected]

Paper prepared for presentation at the 1st research colloquium, Institute for Political Science

(IPW)

Feb. 5, 2015


2 von 56

Abstract:

This paper investigates the relationship between migrants’ rights to work and the factors law

and culture affecting the articulation of these rights into legislation in the European polities

and societies. The role of international and European law in influencing national migration

policy and practice is largely limited to invocation of various forms of “soft law” in

international forums. Policy on migration is still regarded as the major redoubt of unfettered

national sovereignty. According to different domestic legal settings, socio-cultural

circumstances and economic needs, the issues of migration, migrant workers’ rights and

integration into new homelands have been approached with various different outlooks. For

instance, though Germany has made a breakthrough in its immigration law and policies since

2005, it continues to struggle with the supranational harmonization of immigration control

and a national veto on regulation. Similarly, though Great Britain (GB) has refined its

managed migration through the establishment of a point-based system, its dubious policy

measures involving the introduction of a temporary cap to stop immigration flow and the

treatment of asylum seekers and refugees have prompted criticisms not only from business,

but also from human rights organizations.

Supported by an interdisciplinary (political, sociological, legal-cultural, institutional

economics, anthropological, and cross-cultural psychological) approach with four levels of

analysis (informal institutions, formal legal rules, governance structures and policy

outcomes), this paper examines German and British migration policies against the backdrop

of international and local efforts campaigning for the ratification of the International

Convention on the Protection of the Rights of All Migrant Workers and Members of Their

Families (ICRMW) as well as European Union’s efforts to harmonize a European migration

policy. It aims to make explicit the cumulative effects of overlapping factors (the dominance

of material law in the German legal system, national identity, instrumental calculations,

traditional attitudes toward migrants, participation of migrant communities, support for

European integration, British Elitism, war on terror and etc.) in shaping migration discourses,

legislation, policy and practice. It will also show how specific political and economic

preferences have dominated these processes and explain why some migrant groups remain

disadvantaged.

Key words: European Migration Law; Migration and Integration in Great Britain and

Germany; Human Rights, Culture and Law; Levels of Analysis


3 von 56

Introduction

Driven by a variety of powerful forces (economic globalization, European integration, global

anti-terror war, demographic change, and irregular flows of refugees following civil wars and

conflicts in neighboring regions), immigration issues have become prominent in the policy

agenda of the European Union (EU) and its Member States. Meanwhile, human rights of

migrant workers, particularly in the social and economic areas, remain insufficiently

addressed. Despite the entry into force of the ICRMW in July 2003 and the recognition of the

need to protect migrant workers’ rights, none of the Member States of the EU have ratified

the Convention. Even in the midst of its legislation action to construct a common migration

policy, the EU has paid more attention to regulate migration flows (both regular and irregular)

than to address the vulnerability and rights issues of migrants (Macdonald and Cholewinski

2009, 375). As policy on migration is still regarded as the major redoubt of unfettered

national sovereignty, the EU’s Member States insist on an intergovernmental approach that

allows the maintenance of a degree of flexibility in managing immigration. Depending on

different domestic legal settings, socio-cultural circumstances and economic needs, issues of

migration, migrant workers’ rights and integration into new homelands have experienced

several phases of change with various different outlooks. For example, despite the

diminishing annual inflow of migrants since the end of the 1990s, Germany began to

recognize itself as an immigration country (with more than 19% percent of its population

having an immigration background and dominated by third-country nationals from Turkey).1

With the adoption of its 2005 “Law for Control and Limitation of Immigration”

(Zuwanderungsgesetz) that introduced significant innovations in the area of integration

policies, Germany has moved from its traditional zero-immigration policy onto a more

positive approach towards legal migration (Wiesbrock 2010, 40). Still, like many other

Member States of the EU, Germany resists the adoption of common rules regarding the

admission of third-country nationals for work and self-employment purposes and prefers to

follow a selective and sectoral approach (Pascouau 2013). It continues to struggle with the

1 According to the German Federal Statistics Office, all individuals who have immigrated to the Federal

Republic of Germany since 1949, all foreign citizens born in Germany, and all children born as German citizens

to at least one parent who immigrated or was born in Germany as a foreign citizen are considered to have a

migration background. In 2011, Germany had 81.75 million residents. Of those residents, 15.96 million – more

than 19% of the entire population – had a migration background. In comparison, in 2005, 17.9% of the

population had a migration background. See Dokumentationszentrum und Museum über die Migration in

Deutschland e.V. (DOMiD). 2013. Migration History in Germany. http://www.domit.de/en/migration-history-germany (visited on Jan. 21, 2014)


4 von 56

supranational harmonization of immigration control and a national veto on regulation.

Similarly, the United Kingdom (UK) has enhanced its managed migration approach that

welcomes potential skilled workers to meet the demand in the British labor market while

adopting restrictive measures towards family migrants and asylum-seekers (UK Home Office

2002). Its dubious policy measures involving the introduction of a temporary cap to stop

immigration flow and the treatment of asylum seekers and refugees have prompted criticisms

not only from business, but also from human rights organizations.

This paper investigates the relationship between migrants’ rights to work and the

factors law and culture affecting the articulation of these rights into legislation in the

European polities and societies. To what extent do international norms have a say in

influencing European and national migration law and policy? What is the role of culture and

law in shaping national immigration control? Supported by an interdisciplinary approach

(political, sociological, legal-cultural, institutional economics, anthropological, and cross-

cultural psychological) with four levels of analysis (informal institutions, formal legal rules,

governance structures and policy outcomes), this paper examines German and British

migration policies against the backdrop of international and local efforts campaigning for the

ratification of the ICRMW as well as the EU’s efforts to harmonize a European migration

policy. The reasons why Germany and the UK are selected as the focus of examination are

twofold. First, the differences and divergence of both countries in terms of their legal

traditions, historical backgrounds, as well as approaches to immigration and integration can

be best presented through a comparative legal-cultural and political analysis. Secondly, while

post-2000 Germany and the UK have contrasting views of the European integration, a

comparative analysis of their migration and integration policies can help manifest some

dominant economic, institutional, cultural and legal factors in shaping their (common)

resistance toward the ICRMW and why both have been ranked as moderate multicultural

countries (Koopmans et al. 20005) with latent or some recognizable race tensions. My

purpose is to make explicit the cumulative effects of the overlapping factors (national identity,

instrumental calculations by political elites, public attitudes toward migrants, political

participation of migrant communities, support for Europe’s Fortress project, British Elitism,

and war on terror) in shaping migration discourses, legislation, and policy outcomes. It also

aims to demonstrate how specific political and economic preferences have dominated these

processes and to explain why some (unwanted) migrant groups remain disadvantaged.


5 von 56

The paper is divided into four sections. Supported by an interdisciplinary approach

focusing particularly on the legal-cultural and political aspects, the first section constructs a

theoretical framework with four levels of analysis (cultural backgrounds and informal

institutions, formal legal rules, governance structures and policy outcomes) that should help

explore the role of culture and law in the intersections of global and local norms. The second

section gives an overview of migrants’ human rights in international and European law as a

normative and legal framework to which national immigration policy can refer. The third

section first briefly reviews relevant theoretical and empirical work on the determinants of

state immigration law and policies. It then examines German and British migration and

integration policies supported by the scheme of four levels of analysis. The fourth section

identifies and compares the major factors in shaping German and British immigration policies

and highlights their implications for the relevance of international norms at the domestic

level.

The Intersections of Global and Local Norms: Levels of Analysis through an

Interdisciplinary Perspective

The legal status of migrants in international law, as Richard Perruchoud (IOM 1998) reminds

us, is linked to their condition as aliens. The so-called law of aliens - mostly unwritten - needs

to be considered in any attempt at understanding the treatment afforded to migrants. In the

course of the past century, particularly after the enactment of International Bill of Rights (the

1948 Universal Declaration of Human Rights (UDHR), the 1966 International Covenant on

Civil and Political Rights as well as the 1966 International Covenant on Economic, Social

and Cultural Rights), the alien or migrant has progressed through various phases from a status

of quasi-enemy, a tolerated foreigner, then a progressive assimilation to a national, then the

minimum standard of international law,2 and finally the applicability of international human

rights instruments to aliens and nationals alike. At least, the fundamental or basic human

rights constituting a kind of jus cogens of human rights3 have become the starting point for

2 The international minimum standard - articulated by the US Secretary of State Root in 1920 and subsequently

by Borchard in 1940 - contains substantive and procedural elements. The former includes "certain elementary

privileges of human existence ... mainly rights to life and the elementary liberties connected with the earning of a

living". The latter is defined by "fair courts, readily open to aliens, administering justice honestly, impartially,

without bias or political control". This minimum standard, in its substantive dimension at least, is still regarded

as providing basic rights to non-citizens. Cited in IOM 1998. 3 The recognition of the hard core of basic rights means that no derogation is permitted, even in time of public

emergency which threatens the life of the nation. These rights include: the right to life, freedom from torture and


6 von 56

any definition of migrants’ human rights and their protection, in which the relevance of the

UDHR in national law (both as a rule of decision in national courts as well as an aid to

constitutional or statutory interpretation) can no longer be ignored (Hannum 1995/96).

Indeed, following the ratification process, international human rights have been

incorporated into different domestic legal systems of the United Nations’ Member States.

They have often called into question the existing local value systems and dominant dogmas.

Intersections4 among global principles, normative propositions and local norms and

experiences seem to have provided alternative spaces for the creation of new communicative

concepts of law and self-understanding inspired by a democratic reason with a consciousness

of rights and difference (Galindo 1997, 135). In particular, backed by the establishment of the

human rights regime, international norms have been enforced, as Harold Koh argues, through

a transnational legal process of institutional interaction, interpretation of legal norms which

attempts to internalize those norms into domestic legal systems. With the evolution of human

rights law practice from coincidence, conformity, compliance to obedience at both

international and domestic levels,5 we witness a rise in what one might call an increase in

“normativity”, an internalized normative form of behavior, which derives from the

incorporation of external norms or values into a person’s or organization’s internal value set

(Koh 1999).

Meanwhile, a variety of cultural regulatory systems with different legislation and legal

practices and participations in justice and rights protection at national and local levels have

challenged the normative basis and practical relevance of international norms in specific

inhuman treatment, freedom from slavery and servitude, non-applicability of retroactive law, right to recognition

as a person before the law, and the right to freedom of thought, conscience and religion. 4 Intersectional work aims to tackle the problematic aspects of unitary (universalizing) and multiple strands of

research, namely, static and enduring categories (for example, race or/and gender), one category as most salient

for political explanation, a priori assumptions of a predetermined relationship between categories that pave the way how researchers select and use survey data for empirical analysis. See Hancock 2007. In exploring the

interactions between human rights, law and culture, an intersectional approach enables a more differentiated

reading of human rights practices at individual and institutional levels, articulated in different socio-cultural

contexts and legal positions. It can offer some new insights into how those overlaps occur and how those

dominant legal and cultural perceptions of certain human rights issues have influenced deliberation and

implementation practices. 5 Taking the traffic law in England as an example, Koh mentions four possibilities of the relationship between

rule and conduct or how the law has been brought into practice: coincidence, conformity, compliance and

obedience. While coincidence might explain why one person follows a rule, but not why millions of people

throughout the country do the same, the possibility of conformity says that if people know of the rule that you

must drive on the left, they may well choose to conform their conduct to that rule when convenient; but feel no

obligation to do so when inconvenient. In case of compliance, people are both aware of the rule and accept the

rule for a variety of external reasons (to get specific rewards, to receive insurance etc.). The fourth possibility

“obedience” says that a person or an organization adopts the behavior that is prescribed by the rule because he or it has somehow internalized that rule and made it a part of their internal value system. Koh 1999, 1400-01.


7 von 56

socio-cultural contexts. As such, state parties’ behavior toward international treaty law varies

ranging from ratification without reservations, ratification with reservations, understandings,

and declarations (RUDs), marginalization of international norms to refusal. As noted by

Neumayer (2007), the legitimacy and role of reservations to international human rights

treaties is a highly contested issue. On the one hand, RUDs are in fact a legitimate means to

account for diversity and are used predominantly by those countries that take human rights

seriously. This account predicts that liberal democracies set up more RUDs than other

countries do. On the other hand, some hold that RUDs are detrimental to the international

human rights regime at worst. In his empirical quantitative analysis, Neumayer confirms the

first account and finds that liberal democracies generally have more, not fewer, RUDs in

place than other countries (Neumayer 2007, 420-21). Focal countries like the US regard

RUDs as a perfectly legitimate means for qualifying ratification.6 Worse, there exist huge

discrepancies between state parties’ pledged commitment to international human rights law

and the implementation practice of these norms into domestic law. Mayerfeld (2007) shows

for example how US marginalization of international human rights law particularly under the

Bush Administration in playing by their own rules led to torture. The main reason for the

failure, according to Mayerfeld (2007, 94), was the longstanding refusal of the US to

incorporate international human rights law into its legal system. Major legal obstacles that

would otherwise have confronted the Bush Administration had been removed by previous

congresses and administrations.

In view of such contingent and sometimes resilient character of state parties’ behavior

towards international human rights, the questions emerge regarding the intersections between

global and local norms and the role culture and law may play in these processes. For the

purpose of this article, a theoretical framework will be constructed that should facilitate the

exploration of possible relevant variables in shaping policy preferences and constraints of

German and British migration policies. As shown in the figure below, the framework

illustrates first how international human rights influence in a vertical direction both culture

and law (with their respective variables) at the domestic level. Derived from Oliver

Williamson’s institutional economic approach (2000), a notional model of policy process

6 In this sense, further empirical analysis may be needed that address the questions of the legitimacy and impacts

of RUDs upon the entire project of codifying human rights norms in international treaties as well as the

motivations of state parties to opt out from certain obligations in such a qualified and contingent manner. See Neumayer 2007.


8 von 56

distinguishing four levels of analysis and incorporating cultural, legal and further variables

will be presented.

Before trying to capture some relevant aspects of the intersections of human rights,

law and culture, I shall briefly define the key concepts “human rights”, “law” and “culture”.

Human rights are individual’s or person’s claims and entitlements to basic rights towards

third parties (fellow human beings, others, community, society, the state, and the world). Out

of the past exile or repressive experience and deprivation, human rights will also include

those political claims made by any collective agent such as ethnic minority rights, the right to

a homeland (interwoven with the issue of self-determination), people’s right, the right to

development (both anchored in the African Convention of Human Rights), and the rights of

indigenous peoples. From a universal moral standpoint, Talbott outlines a category of human

rights which are reasonably reliable and should have universal appeal.7 They include the

rights to autonomy, physical security, and subsistence; the rights of children to “normal,

physical, cognitive, emotional and behavioral development” and to education; freedom of

speech and association; a sphere of personal autonomy free from paternalistic interference and

a right to democracy, as Talbott sees that democracy, despite all its limitations, can best

provide necessary, though not sufficient conditions for the protection of human rights (Talbott

2005). As regards migrants’ rights, one may pose the question if and to what extent the liberal

democratic structures in major receiving countries have provided adequate policy

arrangements to address migrants’ rights and needs.

From a neo-Aristotelian perspective, according to L. A. Hart (1994), law can be

approached as a type of reason created, maintained and recognized for distinctive reasons. In

this sense, attention should be paid to the variety of law’s normative and social functions.

Indeed, Hart’s understanding of the content of law as fixed social facts without a full

exclusion of certain minimal moral principles has paved the way for the ongoing refinements

of the legal positivist thoughts in establishing law as a practical, cosmopolitan and

prescriptive discipline seeking to provide guidelines for lawyers in practice and to influence

the daily behavior of courts, legislators, regulators and private actors (Shuck 2000, 188). In

7 Out of pragmatic reason for real moral progress, Talbott presents a self-testing equilibrium model for the

justification of moral beliefs without any proof. He believes that every normal capable adult can form reasonably

reliable moral judgments through the adoption of a universal moral standpoint that attaches due weight to the

interests and perspectives of all affected peoples. Through the cultivation of empathy, the formation of

reasonably reliable judgments can justify broader moral principles that make sense of our beliefs as a whole.

Such an inductive bottom-up moral reasoning enables a permanent examination of our own moral beliefs against other peoples’ arguments and against the known facts about human nature and human society. See Talbott 2005.


9 von 56

particular, if we go further to conceive of law as a form of institutionalized social practice, we

are dealing with actual behavior, which takes place at particular times in particular places. As

such, legal geography (Twining 2009) can further shed light on the case with personal and

religious laws. For example, as noted by Twining (2009), if we assume that shar’ia travels

with every devout Muslim, a good map of Islamic diasporas can give a general indication of

where Islamic law is likely to exist at a given time as an institutionalized social practice. In a

similar vein, we are also required to take heed on the discussion of trichotomy which involves

the divergence between the law in action and the law in people’s minds, on the one hand, and

the laws on the book, on the other (Shuck 2000, 189). With regard to migration law and

policy, the issues at stake involve not only how law shapes the incentives that drive the

decisions of potential migrants but also how policy- and law-makers respond to migrant flows

with what calculations and strategies. At stake are the (non-cultural) legal variables that

include state sovereignty right, citizenship rights and non-citizenship rights based on basic

human rights principles (dignity, freedom and equal treatment), the legal family (including

common law, civil law, socialist and Islamic legal traditions), the relevance of legal rules, and

legal formalism.

Concerning the concept of “culture”, Keesing’s ideational theories of culture (1974)

may serve as a starting point. For Keesing, culture is viewed as social heredity, as systems of

symbolically encoded conceptual phenomena that are socially and historically transmitted

within and between populations. In subjective term, culture refers then to the complex of

meanings, symbols, and assumptions about what is good or bad, legitimate or illegitimate that

underlie the prevailing norms and practices in a society. Seen this way, value emphases are

the essence of culture. They are the implicitly or explicitly shared ideas about what is good,

right, and desirable in a society. As noted by Licht et al. (2005, 233-34), value emphases

justify and guide the ways how social institutions function and form their goals and modes of

operation. Social actors (e.g. organizational leaders, policy-makers, individual persons) draw

on these cultural value emphases to select actions, evaluate people and events, and explain or

justify their actions and evaluations. From a cross-cultural psychological perspective with a

postulate that all societies confront similar issues or problems while regulating human

activity, we carefully combine three cultural-psychological approaches that should help

identify reliable dimensions to synthesize major distinguishing aspects of culture for the

formulation of hypotheses: a dynamic onion model with selected Hofstede’s (1980 and 2001)

and Schwartz’s (1994) cultural dimensions against the backdrop of a


10 von 56

transactional/transformational paradigm. They shall provide an alternative to conceptualize

and measure culture as a complex, multidimensional structure rather than as a simple

categorical variable (Soares et al. 2007, 279). First, the onion model recognizes that different

layers of culture can interact and mesh in complex ways. Such layers may influence particular

behaviors differently for individuals or groups with different backgrounds (Evaristo et al.

2000). The layers are permeable, and their thickness signals the strength of the value held by

the individual. Second, drawn from four innovative cross-cultural psychological studies

(Schwartz 1994; Hofstede 1980 and 2001; Hofstede and Bond 1988), we use three sets of

cultural value dimensions with polar extremes which are situated in the inner layers of the

onion model: Individualism/Collectivism (Hofstede), Uncertainty Avoidance (Hofstede 1984)

and Large versus Small Power Distance (Hofstede) or Hierarchy/Egalitarianism (Schwartz

1994).8 Thirdly, while Hofstede’s and Schwartz’s cultural dimensions have been widely

praised as a fruitful agenda in comparative cross-cultural research (see Malcolm Chapman’s

1997 review of Hofstede’s work on culture, cited in Hofstede 2002, 6), critiques have rejected

Hofstede’s model and find national culture implausible as a systematically causal factor of

behavior (McSweeney 2002; Williamson 2002). In view of these critiques, we introduce a

transactional-transformational paradigm (Bass 1997), which instantiates an onion model with

Hofstede’s and Schwartz’s cultural dimensions found in the inner layers. Borrowing from the

transactional-transformational leadership paradigm, we assume that the function of cultural

factors as either a matter of contingent reinforcement by transactional (self-interested and

culture-bounded) individuals/actors or the moving of individuals/actors beyond their self-

interests for the good of the group, organization, or society inspired by a transformational

vision such as the promotion of a human rights culture.

With regard to our analysis of migration control, we are interested in finding to what

extent specific national cultural value dimensions (found in the inner layers of the dynamic

onion) as well as international human rights law (found in the outer layers of the dynamic

8 The first set Individualism/Collectivism (Hofstede) involves valuing loosely knit social relations in which

individuals are expected to care only for themselves and their immediate families versus tightly knit relations in

which they can expect their wider in-group (e.g. extended family, clan) to look after them in exchange for

unquestioning loyalty. The second set, Uncertainty Avoidance (Hofstede 1984), involves feeling uncomfortable

or comfortable with uncertainty and ambiguity, and hence, valuing or devaluing beliefs and institutions that

provide certainty and conformity. Hofstede and Bond (1988, 19) find Uncertainty Avoidance as one uniquely

Western dimension that deals with a society's search for Truth. The third set, Large versus Small Power Distance

(Hofstede) or Hierarchy/Egalitarianism (Schwartz 1994), deals with the extent to which the members of a society

accept that power in institutions is distributed unequally. People in large power distance societies accept a

hierarchical order in which everybody has a place which needs no further justification. In comparison, people in small power distance societies strive for power equalization and demand justification for power inequalities.


11 von 56

onion through the spread of international norms) have influence on the formation of the law

on the books (legal rules) and the law and policy in practice at the domestic level.

Human Rights, Law & Culture and Their Intersections in the Political Process

Level 1 1) Inner Layers of the Onion Model /Transactional Paradigm: Informal institutions

(norms, customs, traditions, religion)

- Contraints and motivational factors

- Sense of belongingness

- Hofstede’s and Schwartz’s cultural values

2) Outer Layers of the Onion Model / Transformational Paradigm

- Cosmopolitan moral principles - International human rights

Level 2 Formal legal rules (constitutions, law, citizenship rights, regulations) - Definition and enforcement of legal rights

- The level of legality

- Legal family classification

Level 3 Governance structures - Association with historical legal pedigrees and with concurrent, general social

orientations

- Political institutions, political orientations of governments, coalitions, Ideologies,

interest group influence

Level 4 Economic and political outcomes

Figure 1: Levels of Analysis of the Intersections of Human Rights, Law and Culture

Law Culture

International Human Rights

Cultural value dimensions (Legal) Non-cultural variables


12 von 56

As shown in the Figure 1 above, the link between human rights and law, with our first

association, is that human rights need law as binding social forces and means to rights

protection and enforcement (Afshari 2007). The incorporation of these norms into

international and domestic law in the second half of the twentieth century has facilitated the

inception of a mixed materialist/ideational ontology that has not only challenged the

mainstream normative parameters but also entailed new spaces of pragmatic activism in the

transnational context. As regards the intersection of human rights and culture, against the

backdrop of the continuing economic and cultural globalization facilitated by modern

information technology, the twin relationship has been characterized by a paralleled existence

of the proliferation of international norms in proclaiming the emergence of a culture of

(individual) rights and a growing consciousness to safeguard and articulate specific cultural

identity backed by the claims of cultural rights and rights to cultural differences, whereby

culture as it is construed may be both a barrier and facilitator for rights protection.

Meanwhile, the intersection of human rights and culture in linking with broader rights issues

in a variety of transnational and local settings have often called into question our

understandings of sovereignty and the meaning and location of culture (Coombe 1998/99).

Consequently, the legal practices at international and domestic levels have become a matter of

ambiguities, contradictions and dilemmas. With regard to the intersection of law and culture,

it involves the questions of law’s place in culture, culture’s place in law, and law as culture.

This focus proceeds from the twin premise that law, itself a cultural form, reacts to and is

shaped by the cultural context in which it operates and that culture in turn is shaped by the

regulative forces of law. Therefore, a cultural analysis of different legal systems will show

how culture as a set of shared signifying practices that are always in the making and always

up for grabs has marked the differences of the most basic generalities for example between

the common law system and the civil law system.9 Lawrence Friedman (1997) introduces the

9 There are four significant legal systems in the world: civil law, common law, the socialist law system and the

Islamic law. The well-known difference between the common law system and the civil law system is that the

former follows an “adversarial” model while civil law is more ”inquisitorial,” “code-based,” and its judges do

not interpret the law but instead follow predetermined legal rules. As indicated by Apple/Deyling, two

quotations can best illustrate the fundamental differences between the two systems. In the common-law system,

“[t]he common law lawyer, by and large, simply doesn’t care whether such a [comprehensive, logical, legal]

system exists or not. He is busy deciding cases, with the aid of judicial precedent and with or without the aid of

statutory enactment of rules in particular cases.” In contrast, in a civil-law country, law students are taught

“[t]hat law is a science, and that the task of the legal scientist is to analyze and elaborate principles which can be

derived from a careful study of positive legislation into a harmonious systematic structure.” Meanwhile, from a

historical perspective, one should take heed of the heterogeneity of English law in incorporating an array of non-common-law tribunals, including the ecclesiastical courts, equity courts, and High Courts of the Admiralty that


13 von 56

concept of “legal culture” which refers to “ideas, values, expectations and attitudes towards

law and legal institutions, which some public or some part of the public holds.” He intends to

demonstrate that what falls within this term is “living law”.

How do these intersections take place in a political policy process? Oliver Williamson

(2000) advances a notional model distinguishing four levels of analysis which may be of great

help to capture how cultural, legal and further political and economic variables interact in

shaping the migration law and policy process. In this model, higher levels impose constraints

on the development of the levels immediately below. “Level 1” consists of informal

institutions. This is where norms, customs, and traditions are located in defining cultural value

dimensions and where religion plays a role. According to Williamson, “Level 1 is taken as

given by most institutional economists.” For policy analysts, Level 1 serves as the base for the

building of constraints, preferences and motivations. Level 2, located below Level 1, consists

of formal legal rules, comprising constitutions, law, citizenship rights, etc. The definition and

enforcement of legal rights are important features of this level. Williamson postulates that

Level 1 informal institutions are pervasively linked with complementary institutions, both

informal and formal, which are transferrable to the Level 3. The resulting institutions “have a

lasting grip on the way a society conducts itself.” Governance structures (e.g. of governments)

and policy analysis (e.g. of political and economic outcomes) belong to Levels 3 and 4. A

claim is often made that culture adjusts to socio-economic conditions such as democratization

and free markets (Kuran 2004). While such a causal link is plausible, Williamson surmises

that informal institutions at Level 1 change very slowly. Culture can impact law-making in

two different ways: first, cultural values may motivate policy- and lawmakers and interest

groups to prefer certain legal arrangements to others; second, culture may constrain reforms

were the chief locus of jurisdictional tension in England (Cormack 2008, 2). Today, the distinctions between the

civil law and common law systems have blurred. Common-law countries are adopting some of the characteristics of the civil-law system, while civil-law countries are incorporating features of the common-law tradition into

their legal systems. See Apple/Deyling 1994/95. In the socialist legal system law, career bureaucrats and party

members often take the function of judges. There exists a very limited degree of judicial independence. With the

fall of the Soviet empire, one observes the resulting precipitous decline of the socialist legal tradition. Still China

as one of the few surviving socialist regimes has pledged to pursue the goal of formulating a socialist legal

system with Chinese characteristics. China Daily 2012. “Socialist System Takes Shape,”

http://www.chinadaily.com.cn/china/2010npc/2010-03/09/content_9563257.htm (visited on Jan. 5, 2013).

Finally, the Islamic legal system is derived from Qur’an. Its judges receive in general both religious and legal

training. From a more liberal and moderate perspective, the Islamic jurisprudence can be established through the

consideration of the historical aspects and the adoption of hermeneutics (igtihad) to appropriately interpret

Koran in line with the times. See Hefny 2010.

http://www.chinadaily.com.cn/china/2010npc/2010-03/09/content_9563257.htm


14 von 56

that are not compatible with prevailing value priorities. Aus such, culture has been called “the

mother of all path dependencies.” If cultural value priorities underlie national laws, then

national cultural profiles should relate consistently to laws that govern a variety of subject

matters. For example, Chase (1997) argues that the tightly controlled legal procedure (legal

formalism) in Germany serves the cultural value of high Uncertainty Avoidance. This

contrasts with the volatile and relatively unpredictable quality of the lawyer-dominated

American trial.

Based on these notional four levels of analysis, we assume that cultural values impose

constraints on the functioning of the legal (at Level 2) and political variables (at Level 3).

Meanwhile, two variants of the interactions of cultural, legal and political variables may

counter the hierarchical order of our notional model and demonstrate either a reverse feedback

launched by the lower Level or mutual reinforcing forces across Levels.

First, if cultural values adjust rapidly to changes in the legal and political environment,

culture may either have little relevance to policy formation or its values may conflict against

each other. For instance, in the 1980s, despite the mainstream cultural conservatism that

reaffirmed the mantra that Germany was “not an immigration country” and Christian

Democrat attempts (CDU) to introduce several incentives to reduce family reunion and to

encourage non-nationals (guest workers) to return “home”, these restrictive measures ran into

strong opposition not only from the CDU’s coalition partner the FDP, but also from the

churches which pointed to the constitutionally enshrined duty of government to safeguard the

family (Article 6 of the Basic Law (Grundgesetz)).10

The church’s support itself for family

reunion would not be possible without being undergirded by an another already established

cultural value, namely, the sacred role of family as the basis of society. Second, in view of

various competing concerns (unexpected migrant flows, humanitarian crises and the demand

side on the job market particularly in the service and high technology sectors), public

expectations for the government to set up clear rules for effective and efficient migration

control will rise. It follows that the adoption of restrictive measures towards unwanted

migrants and favorable policy programs towards skilled workers may increasingly influence

public attitudes toward migrants over the longer term. Joppke (1999) explores the ways in

which immigrant integration impacts upon citizenship and argues that national citizenship

with its changed legal rules in order to incorporate immigrants (e.g. the law of dual or

10 See Christina Boswell and Dan Hough (2008, 336-37).


15 von 56

multiple citizenship) remains relevant, albeit through the modification of nationally distinct

schemes of multiculturalism. Hence, possible reverse causality11

from the lower levels to the

cultural variables (from Levels 2 and 3 to Level 1) and/or the mutual reinforcing forces of

cultural, legal, political and institutional factors in sustaining the functioning of certain policy

regimes cannot be ignored.

Besides cultural variables, legal variables and further variables deserve a more detailed

description. State sovereignty rights involve a high degree of state’s comprehensive authority

in ensuring its territorial and political integrity and supremacy. Citizenship rights involve state

obligations to guarantee its citizens’ political, civil, social, economic and cultural rights. Non-

citizenship rights for this paper mean migrant rights and involve, as mentioned above, the

guarantee of jus cogens internationally recognized human rights standards. Legal families

draws on commonly recognized taxonomy of legal systems according to their origin in

common law, civil law (with a breakdown into French, German, and Scandinavian laws), and

several other families of law.12

The level of legality involves the relevance of legal rules

which hinges on a general infrastructure of legality, or rule of law, operationalization of

statutory rules and case law interpretations.

Furthermore, other national characteristics will be considered. They include public

attitudes toward migrants and interest groups politics. According to Hatton and Williamson

(2005, 352-53), there are three familiar forces influencing public attitudes toward

immigration: labor market competition, fiscal burden, and cultural prejudice. The first

exhibits macro instability. Bad times breed immigration hostility; and good times breed the

opposite. This correlation has characterized much of European experience, in which there is a

good times/bad times dynamic where migration is tolerated or even encouraged during

expansionary phases, but becomes the focus of anxieties when unemployment rises. Besides

economic self-interest reason, voters may reject immigration out of non-economic reason.

Racism, xenophobia, nativism, and goals of cultural homogeneity can all generate anti-

immigrant attitudes. In addition, while examining discrimination against immigrants in

Switzerland, Hainmüller and Hangartner (2013) find that country of origin determines

naturalization success more than other applicant characteristics, including language skills,

11 In general, addressing reverse causality between variables relies on using an instrumental variable in two-stage

least squares (2SLS) regressions. An ideal instrument would correlate with the predicting variable but not with

the predicted one. Alternatively, lagged-period values may be used as instruments as they are not susceptible to

feedback from the predicted variable. See Licht et al. 2005, 245. 12 Details see footnote 9.


16 von 56

integration status and economic credentials. Finally, interest group politics have also a say in

shaping national migration policy. The theory of collective action and interest group or client

politics (Olsen 1965; Wilson 1980) has helped explain the gap between voters attitude and

government policy. Diverse groups such as taxpayers (concerned about the welfare

implications of additional low-quality immigrants), unskilled workers (who feel threatened in

their labor market), racists (who dislike foreigners), and nativists (who place high value on

cultural homogeneity) are all too diffuse and can be best characterized as free riders. The

interests groups favoring immigration include labor-intensive business interests in agriculture,

manufacture, nursing service etc. Also, in demonstrating their credibility towards migrant

groups, governments appreciate the activism of well-organized ethnic groups and

associations. Altogether, while liberal states are self-limited by interest-group pluralism,

autonomous legal systems, and moral obligations toward particular immigrant groups, the

weight of these factors differ across particular cases (Joppke 1999).

The first hypothesis upholds the tensions between different layers of culture. It argues

that the tensions between the cultural specific self-interest (Power Distance, Uncertainty

Avoidance, and Individualism/Collectivism) and transformational moral principles rooted in

international human rights have caused a cultural deadlock, which has strongly constrained

the function of legal rules, the articulation of political preferences, and the function of

institutional arrangements. My second hypothesis is that the autonomy of legal forces (e. g.

citizenship rights, non-citizenship rights, the principle of legality), the preference-driven

political forces, judicial activism, and the political and legal institutions have demonstrated a

strong degree of reverse feedback upon the Level One, which has entailed prospects for

cultural adjustment and change (particularly toward the outer layers of the onion model). My

third hypothesis argues for the potentials of the mutually reinforcing forces of different

variables across Levels in shaping policy outcomes. It assumes that governance outcomes of

migration legislation reflect the degree to which formal and informal institutions favor

specific coalition formation.

The ICRMW and European Migration Law as a Normative and Legal Framework

International Migration Law

The role of international and European law in influencing national migration policy and

practice is largely limited to effective invocation of various forms of “soft law” in

international forums. To be sure, classical learning recognizes no role for international law in


17 von 56

affecting national migration policy and practice. But in modern times, the salutary effects are

increasing, although they remain modest. As noted by David Martin (1989), international law

influences migration policy primarily through effective invocation of various forms of "soft

law" in internal and international political forums. More limited prospects exist for beneficial

gradual changes enforced by international institutions and domestic courts. A study of

international jurisprudence and its national incorporation demonstrates that international

norms have had belated and circumscribed effects on national policies, mainly regarding the

expulsion of foreigners (Guiraudon and Lahav 2000). However, Martin (1989) cautions

against inflated expectations in the latter settings, particularly because overly ambitious

claims can be counterproductive.

Existing international law contributes to a normative and legal framework regulating

the powers and responsibilities of individual States to manage movements of people across

their borders, the rights and responsibilities of international migrants, and State cooperation in

managing international movements of people (Martin 2005, 1). Still, the gaps in international

law and norms remain, particularly related to migration for family and economic reasons. On

the one hand, States exercise their sovereign powers to determine who will be admitted and

for what period. In support of these powers, States enact law and regulations to govern

issuance passports, admissions, exclusion and removal of aliens, and border security. States

have developed different policy approaches and vary in the types of laws and regulations

adopted, with some being more restrictive than others are. On the other hand, as emphasized

by Susan Martin (2005), non-nationals enjoy de jure all of the unalienable rights applicable in

international law. The International Convention on Civil and Political Rights (ICCPR)

defines such basic rights of all persons as the right to life, liberty and security; the right not to

be held in slavery or servitude; the right not to be subjected to torture or to cruel, inhuman or

degrading treatment or punishment; the right not to be subjected to arbitrary arrest, detention

or exile; the right to marry and to found a family. Further rights are conveyed by the

International Convention on Economic, Social and Cultural Rights (ICESCR) guaranteeing

social and economic rights, the Convention on the Elimination of All Forms of Discrimination

against Women (CEDAW), the International Convention on the Elimination of All Forms of

Racial Discrimination and the Convention on the Rights of the Child (CRC). More

specifically related to movements of people across international borders are provisions

granting rights in the Convention Regarding the Status of Refugees, the Convention against

Torture (CAT), and the Protocol to Prevent, Suppress and Punish Trafficking in Persons,


18 von 56

Especially Women and Children and the Protocol against the Smuggling of Migrants by Land,

Sea and Air, both of which supplement the United Nations Convention against Transnational

Organized Crime.

In particular, a wide range of universal standards protecting all workers’ rights have

been developed, including some that specifically address the needs of migrant workers. At the

international level, the rights of migrant workers are protected notably by promoting the

ratification and implementation of the principal international conventions protecting migrant

workers’ rights, namely the International Convention on the Protection of the Rights of

Migrant Workers and Their Families (ICRMW), the International Labor Organization (ILO)

Convention 97 on Migration for Employment and ILO Convention 143 (supplementary

provisions) on Migrant Workers. The ICRMW strived to accommodate the competing

concerns between the precarious social situations faced by irregular migrants and the

urgent need for human rights protections for these individuals, on the one hand,13 and the

interests of states in territorial sovereignty. The Convention thus has reached a middle

way, in which human rights protections for undocumented migrants can be guaranteed

that are substantial but less extensive than provided to documented migrants and that state

continuing authority can be ensured in the spheres of immigration control and national

“membership policy”. The Committee on Migrant Workers (CMW) monitors

implementation of the convention. The treaty is meant to ensure minimum protections to

all migrants, focusing on ensuring freedom from discrimination based on race, national or

ethnic origin, sex, religion or any other status, in all aspects of work, including in hiring,

conditions of work, and promotion, and in access to housing, health care and basic

services. It also ensures freedom from arbitrary expulsion from their country of

employment and protection from violence, physical injury, threats and intimidation by

public officials or by private individuals, groups or institutions. The treaty recognizes that

legal migrants have the legitimacy to claim more rights than undocumented migrants, but

13 Very often migrants are faced with a number of problems and difficulties which are not likely to disappear.

The major problems identified are the following: inadequate capacities of States to establish mechanisms and procedures to protect the human rights of migrants; administrative measures making access to courts difficult;

racism, xenophobia and other forms of intolerance; trafficking, in particular of women and children; wages

below the established minimum levels; dangerous working conditions; confinement in sub-standard housing;

border police violations against migrants, etc. (IOM 1998).


19 von 56

it stresses that undocumented migrants must see their fundamental human rights

respected.

With these international specific protection mechanisms for migrants, the law of

international migration has pioneered in an effort to redefine its paradigm with emerging

issues. They include the protection of human rights where tension between anti-terrorism

legislation and immigration measures increases; the human rights of vulnerable groups of

migrants, such as migrant workers, women, victims of trafficking, and stateless persons.

The law of international migration also addresses forced migration warrants relating to

groups such as internally displaced persons, as well as the international community's

response to secondary movements of asylum-seekers (ICJ 2011; Cholewinski et al. 2008).

However, as contested by Linda Bosniak (1991), despite the normative value of many

protective provisions of the Convention, the Convention’s ability to ameliorate substantively

the human rights situation of irregular migrants is largely constrained by its overriding

commitment to norms and structures of sovereign statehood. Many nations have signed, but

most are countries of origin of migrants. No Western migrant-receiving State has ratified the

Convention, even though the majority of migrants live in Europe and North America

(Guchteneire et al. 2009). Despite the local activism and efforts made by some politicians,

Great Britain is unwilling to ratify the Convention due to the possible resulting high welfare

costs as well as the fear of changing massively the existing migration regulation system. In

Germany, public unawareness towards the Convention has been the major reason why the

Convention remains ungratified (Ryan 2009; Hillmann et al. 2009).

In addition, a weak but growing body of international law and practices has emerged

focusing on international cooperation in managing international migration. A number of

models exist through which international cooperation has been advanced. For example, in the

General Agreement on Trade in Services (GATS), States voluntarily commit to rules for the

admission of certain categories of migrants. The 1951 UN Refugee Convention and regional

agreements on refugees promote international cooperation as a way to share responsibility for

assisting, protecting and finding solutions for persons who cannot rely on their own

governments. The forms of international cooperation include the sharing of financial

resources, the exchange of databanks, and the potential movement of refugees and others in


20 von 56

need of protection from one country to another.14

However, the effectiveness of international

cooperation remains largely limited. Much of the consensus building has taken place through

ad hoc, informal mechanisms such as the Berne Initiative at the international level, and the

various consultative mechanisms established at the regional level. While there has been

progress in setting out common understandings, fundamental disagreements among States still

exist over causes and consequences of international migration and the extent to which it is in

the interests of States to liberalize or restrict flows of migrants (Martin 2005).

European Migration Law

At the European level, there exist two important human rights protection regimes which are

applicable to regular and irregular migrants in the EU territory: the EU Charter of

Fundamental Rights, which has acquired a legally binding status with the entry into force of

the Treaty of Lisbon in December 2009; and the system of the Council of Europe that includes

two primary human rights instruments – the European Convention on Human Rights (ECHR)

and the European Social Charter, to which every EU member state is a contracting party. To

be sure, the Charter of Fundamental Rights of the EU (hereinafter “the Charter”) constitutes

the core instrument for the protection of fundamental rights in the EU. It lays down in a single

text the range of civil, political, economic and social rights granted to European cit izens and

all persons resident in the EU. The most significant change following the entry into force of

the Treaty of Lisbon has been the conversion of the Charter into a legally binding “bill of

rights” for the Union, and the official mandate for the EU to accede to the 1950 ECHR, which

is currently at an advanced stage of negotiations. For Carrera et al. (2012, 2), these

innovations give the Union a strengthened fundamental rights mandate that has provided the

basis for the emergence of a novel “fundamental rights architecture”. Regarding labor rights

of migrant workers, Article 15 of the Charter enshrines the right to work and Article 12

provides the right of everyone to form and join trade unions. Nevertheless, the Charter does

accord some leeway to Member States to restrict the application of certain articles, by

qualifying that rights are provided “under the conditions established by national laws and

practices.” The challenge, moreover, as the European Commission has noted, consists of

14

A key role is assigned to the United Nations, particularly the UNHCR, not only in protecting the rights of the refugees but also promoting cooperation among States. See Martin 2005.


21 von 56

turning what is merely an architectural design into an effective institutional, policy and legal

apparatus that ensures the practical delivery of fundamental rights to individuals.15

In a similar vein, within the comprehensive human rights framework of the Council of

Europe, which includes about 200 legally binding treaties or conventions, the ECHR and the

European Social Charter (ESC) provide a framework of protection which is also applicable to

irregular migrants. The proactive case law of both the European Court of Human Rights

(ECtHR) and the European Committee on Social Rights – bodies that are charged with

monitoring the application of the ECHR and the ESC – has been central to extend their

respective reaches in protecting the fundamental rights of regular and irregular migrants.

EU’s immigration and asylum law and policy, the growing case law on European

citizenship, as well as developments in free movement regimes have set an example for the

expansion of regional legal frameworks concerned with migration control (Cholewinski et al.

2008). Since the 1998 Treaty of Amsterdam (ToA), the EU has striven to make the case for the

importance of harmonization and the definition of a common minimum denominator in

regulating the issues of visas, asylum and immigration in the area of Justice and Home

Affairs, particularly under the Title IV (Articles 62 and 63).16

Later, the Tampere agenda (a

five-year programme 1999-2004) was introduced to reach the ToA’s objective of creating an

area of freedom, security and justice.17

The Tampere agenda was ambitious in the rapid

adoption of some proposals of institutional innovation. For instance, with the adoption of the

June 2000 Anti-discrimination Directives based on the Article 13 of the ToA, a far-reaching

system has been established covering both direct and indirect discrimination and even

allowing scope for “positive action in areas where there was no prior Treaty competence

15 In her speech delivered at the Centre for European Policy Studies (CEPS) on April 16, 2012, Viviane Reding,

Vice-President of the European Commission, Commissioner for Justice, Fundamental Rights and Citizenship

emphasized that “…The question of how to render effective the existing law should be examined thoroughly, as

it enables us to connect abstract legal texts with the reality that citizens face on the ground.” See the European

Commission’s (EC) 2010 Report on the Application of the EU Charter ofFundamental Rights, COM(2011) 160

final, Brussels, 30 March 2011

(http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2011:0160:FIN:EN:PDF). Also, the EC’s 2011

Report on the Application of the EU Charter of Fundamental Rights, COM(2012) 169 final, Brussels, 16 April

2012 (http://ec.europa.eu/justice/fundamental-rights/files/2011-report-fundamental-rights_en.pdf). 16

Reasons for and implications of shift from “pillarization” in the Maastricht Treaty to “communitarization” in

the Amsterdam Treaty are: 1) Blurring of the distinction between external and internal security; 2) The role that

supranational institutions such as the European Commission are playing (or trying to play) in policy

development; 3) Debates about migrants' rights in an integrating Europe; 4) Links between migration and EU

enlargement. See Geddes 2001. 17 It envisaged the enactment of measures in four policy fields: 1) partnership with countries of origin; 2) a

common European asylum system; 3) fair treatment of third-country nationals; 4) the management of migrant flows.


22 von 56

(Geddes/Guiraudon 2004). Despite the security-oriented agenda of the EU Justice and Home

Affairs following the terrorist attacks in New York (2001) and in Madrid (2003), in 2003, two

Directives in the field of immigration law were finally adopted, namely, Council Directive

2003/86/EC on the right to family reunification and Council Directive 2003/109/EC

concerning the status of third-country nationals who are long-term residents.

In 2005, the Hague programme (2005-2010)18

continued the task done by the Tampere

agenda. It recognized the importance of legal migration in contributing to economic growth in

the EU. At the same time, it upheld national sovereignty in the field of labor migration and

pointed to the importance of integrating immigrants and foresaw the adoption of common

basic principles of integration (Wiesbrock 2010, 138). Following the entry into force of the

Lisbon Treaty on 1 December 2009, the so-called pillar structure has been put an end. In Title

V of the TFEU (Treaty on the Functioning of the Union), all aspects of justice and home

affairs have been put together under five chapters and thus marking the Communautarization

of migration control.19

In particular, the abolition of pillar structure means that almost all

policy areas of Justice and Home Affairs have come under the Community method of

decision-making (qualified majority voting). And the role of the European Parliament has

been extended as the co-decision making procedure (known as the “ordinary legislative

procedure) that applies in most areas of justice and home affairs. Moreover, Article 79 (4)

TFEU provides a legal basis for the adoption of measures supporting integration policies of

Member States. However, as noted by Wiesbrock (2010, 143), the harmonization of national

laws in this area is explicitly excluded. As regards economic migration, Article 79 (5) stresses

the right of Member States to determine volumes of admission of labor migrants will not be

affected.

Finally, under the title of “an open and secure Europe serving and protecting the

citizens”, the Stockholm programme (2010-14) focused on the interests and needs of citizens

and particularly “other persons for whom the EU has a responsibility”. In this programme, the

EU has set an overarching priority in addressing the “external dimension of migration

policies”, reiterating the migration-development nexus and stressing the need to further

investigate and take action in the areas of remittance, diaspora groups and circular migration.

While recognizing the potential contribution to the EU’s competitiveness and economic

18 European Council, the Hague Programme: Strengthening Freedom, Security, and Justice in the European

Union, OJ C 53/1 of 3 March 2005. 19

They include: 1) general provisions; 2) policies on border checks, asylum and immigration; 3) and 4) judicial cooperation in civil and criminal matters; and 5) police cooperation.


23 von 56

vitality, the Stockholm programme still underlined Member States’ competences for

managing their labor markets and calls for flexible admission systems. In terms of protecting

migrants’ rights, the Stockholm programme came back to the Tampere objective of “fair

treatment,” stating that the goal of granting legally resident third-country nationals rights and

obligations comparable to those of EU citizens should be reached by 2014. However, the

concept of “comparable rights and obligations” remains vague and may easily fall into a

hollow commitment (Wiesbrock 2010, 145).

Moreover, in the context of EU enlargement, new tendencies in East-West migration

in Europe challenge and transform the traditional migrant trajectory from migrant to citizen

that lies at the heart of state-centred accounts. While one observes that the movement of

family members, asylum seekers and labour migrants has been substantially positive;

enlargement itself generates dynamics of inclusion as much as exclusion. There is a

significant component of intra-European circulatory migration. As such, as suggested by

Favell and Hansen (2002), neo-liberal and older Marxian theories of the international

immigration labour market need to be re-introduced to explain the selective, expansive and

reconfiguring effect of market forces on European immigration policies, as existing

theoretical accounts of immigration policy – dominated by a state-centred institutionalist and

political focus – offer only partial explanations of the new European migration scenario.

Notwithstanding the EU’s efforts to manage migration effectively, some have

criticized its partial commitment to the protection of migrants’ human rights (Kostakopoulou

2000; Boswell 2003; Hepple 2004). For one thing, the EU’s attempts to manage migration

through cooperation and partnering with migration sending or transit countries can be

discerned with two rather distinct concepts of the “external dimension”.20

The first involves

efforts to externalize traditional tools of domestic or EU migration control; the second to

prevent the causes of migration and refugee flows, through development assistance and

foreign policy tools. With a close look at the circumstances under which these concepts

emerged and have been articulated, Mary Boswell (2003) finds that both the institutional

context and domestic political-electoral pressures contributed to the prevalence of

externalization approaches to the detriment of longer-term strategies of migration

management, refugee protection and relations with third countries. In particular, the

universality of human rights is undermined by the principle of territorial supremacy, which

20 Details about “partnering” for migration in EU’s external relations see Lavenex and Stucky 2011.


24 von 56

allows Member States of the EU to discriminate against those who are not citizens of the

Union. Taking the case of the European Roma as an example, Bob Hepple (2004) contends

that the European Convention on Human Rights (ECHR) and the EC Race Directive are

incapable of redressing collective racial or ethnic disadvantage, as they do not provide for the

enforcement of positive social, economic and cultural obligations. Similarly, although the

partial communautarization of the Third Pillar of the Treaty on European Union (TEU) will

enable the Community to expand its so far modest acquis in migration-related issues, it has

also opened the way for the installation of exclusive categories and the security paradigm

which characterized the Third Pillar within the body of Community law. Unless active

intervention by the Commission and the European Court of Justice subvert structural

determinants and the logic of securitization, communautarization offers the Member States

the opportunity to reinforce their restrictive and law-enforcement approach to migration

flows, and to construct new forms of power which not only increase their regulatory capacity

within a geographically contained structure, but also enable them to impose their security

agenda beyond the confines of the Union (Kostakopoulou 2000). Hence, far from weakening

EU Member States or symbolizing some “loss of control”, EU cooperation and integration

have helped them consolidate and reassert their ability to regulate international migration

through the use of new EU-level institutional venues. This raises legitimacy issues as the EU

moves into politically sensitive policy areas (Geddes 2001). As such, the prospect of

persuading the EU’s Member States to ratify the ICRMW looks increasingly dim, as the

tendency of the erosion of rights in Europe continues, even toward legal migrant workers.

With the accusation of “fortress Europe”, the EU is probably to face legitimacy challenges on

both the “input” (democracy, openness and accountability of decision-making) and “output”

(implementation and compliance) elements of decision-making.

In addition, since the early 1990s, a collection of European regulations to manage

asylum flows has evolved as part of an executive effort to strengthen migration control

(Guiraudon 2000). Against the backdrop of a European area without internal frontiers that has

progressively developed since the Schengen Agreement of 1985, the “Dublin system” aims to

determine which state is responsible for examining an asylum application.21

The so-called

21 The Dublin system establishes a set of hierarchical criteria to determine which state is responsible for dealing

with an asylum claim. The general principle is: Those states which played the greatest part in the applicant's

entry into or residence on the common territories of the participating states are responsible to examine an asylum

claim, subject to exceptions designed to protect family unity. If none of the criteria applies, the first state in which the application for asylum is lodged is responsible for examining it. The Dublin system also includes rules


25 von 56

“Dublin Regulation” (also termed “Dublin II Regulation”) was adopted and entered into force

with effect from September 1, 2003, which currently provides the primary legal basis for the

Dublin system. The Regulation has maintained the main structure and criteria of the Dublin

Convention, which was signed in June 1990 and entered into force in September 1997, with

important sovereignty and humanitarian clauses, but with some differences in time limits

within which requests to “take charge” and to “take back” can be made (Battjes 2002,179).

Besides a long and cumbersome ratification process, the Dublin Convention has suffered from

both the effectiveness and the legitimacy problems. Under the Maastricht Treaty (1992), the

main problem was that there were few compliance instruments to enforce the criteria agreed

in the Dublin Convention: Both the European Commission (EC) and the European Court of

Justice (ECJ) had no power to start an infringement procedure (for the EC) and no

competence to enforce compliance (for the ECJ). Hence, the intergovernmental framework to

a large extent hampered the implementation of the Dublin Convention. In particular, in times

of international crises, such as in Bosnia and Kosovo in the 1990s and in Libya and Syria

since 2011, asylum law has become highly politicized in response to the uneven distribution

of asylum seekers over European countries. In view of the practice of burden-shifting instead

of burden-sharing among Member States, the European Council on Refugees and Exiles

(ECRE 2008, 6) has criticized that the Dublin system undermines, rather than strengthens

solidarity among Member States. More strikingly, in a landmark statement in the case of MSS

vs. Belgium & Greece (January 21, 2011), the European Court of Human Rights (ECtHR)

dealt a major blow to the Dublin system.22

This episode exposes the fact that, despite all the

past intergovernmental efforts to regulate asylum flows, the Dublin system remains a long

way from a harmonization of asylum policies in Europe.

In sum, despite the comprehensive normative and legal frameworks found both at the

UN and EU levels, intergovernmental cooperation to guarantee migrants’ fundamental human

rights, basic labor standards as well as the social and economic rights and to consistently and

efficiently manage mixed flows of migrant workers, irregular migrants including asylum

seekers and refugees has proved to be largely limited by the political will of Member States in

which apply when a person has already lodged an asylum claim in another state. Like the Schengen Convention’s

provisions on asylum, the Dublin system is not aimed at harmonizing substantive or procedural rules of asylum.

Rather, it is limited to fixing uniform criteria for the allocation of responsibility to one single State for the

examination of an asylum application. See Vink 2012; Marinho and Heinonen 1998. 22 The Court judged that an asylum seeker who was transferred from Belgium to Greece under the Dublin system

was exposed to inhuman and degrading treatment and that his right to an effective remedy was violated. As a

result, participating states in the Dublin system have suspended transfers of asylum seekers to Greece (UNHCR 2011).


26 von 56

their elaboration of national interests to liberalize or restrict flows of migrants. Particularly at

the EU level, the ongoing communautarization and securitarization in its internal and external

policy areas seem to have provided alternative policy articulation spaces for national

governments, and as such even speeded up the exclusion and discrimination towards

unwanted migrants of third-country nationals.

Correlates of Law and Culture in Shaping National Migration Policy

How have EU’s Member States responded to the communautarization of migration control

against the backdrop of the accelerating transnationalizing forces? Which cultural, legal and

further variables have been playing a role in shaping national migration and integration

policies?

To be sure, the post-911 world in Europe has seen a surge of insecurity and

uncertainty in the public mood. National governments were expected to take assertive action

in the area of immigration control. By creating transnational cooperation mechanisms

dominated by law and order officials with the EU institutions playing a minor role,

governments have been able to circumvent national constraints on migration control

(Guiraudon 2000). It follows that new laws have been introduced to cope with long-existing

integration problems in multicultural society and that the national texts have undergone deep

modifications, restricting not only the rights of legal migrants but also setting strict rules

towards illegals. As such, with the help of the concept of transnationalism, immigration policy

developments are increasingly viewed as fragmented and incipient and can no longer be fully

captured at the most formal levels of international public law and conventions, nor in the

national representations of the sovereign state. Hence, attentions have been paid to the

operation of states under a new rule of law with the two cornerstones of immigration policy in

developed countries, namely, the border and individual as sites for regulatory enforcement,

and the constraints faced by developed nations in formulating immigration policy with the

tendencies of criminalization and securitarization (Sassen 1998; Piper 2007; Aas 2011). For

example, in tracing the evolution of two types of immigrant rights - alien rights and the right

to citizenship - across European polities, Christian Joppke (2001) detects the sources of rights

expansion being mostly legal and domestic: Rights expansion originates in independent and

activist courts, which mobilize domestic law (especially constitutional law); and domestic

legitimatory discourses have been deliberated, often against restriction-minded,

democratically accountable governments. At the same time, one notices a major


27 von 56

transformation in the legitimate mode of exclusion from group to individual-based, which

takes place in the context of the discussion about universalistic trends in contemporary

Western states’ immigration and citizenship policies. Conflicting with the notion of a “nation-

state” defined by a particular ethnic group or nation, as Joppke (2005) notes, these trends are

better captured in terms of a “liberal state” that has self-limited its sovereign prerogatives by

constitutional principles of equality and individual rights.

For Antoine Pécoud and Paul de Guchteneire (2006), a largely shared feature of

contemporary migration policies is first and foremost, their restrictive nature. Migration is

commonly understood, in security terms, as a “problem” and many countries feel the need to

protect against this “threat.” In recent years, terrorism-related concerns have further fueled

this trend and put borders in the spotlight. In this context, irregular migration is perceived as

a central phenomenon reflecting the porosity of borders and calling for greater surveillance.

Controlling immigration has consequently become an important field of policy in which

several evolutions have taken place in recent years. The borders between Western countries

and their less-rich neighbors have become fortified, partly through the use of sophisticated

methods of control.23

New actors are also involved in controlling migration such as airline

carriers that are required to check their passengers’ right to travel to their country of

destination (Guiraudon and Joppke 2001). In particular, as observed by Alison Mountz et al.

(2012), detained populations, detention facilities, and industries have expanded globally.

During 2009 in the U. S. alone, approximately 380,000 people spent time in the vast and

continuously expanding migrant detention system, which was a historical high. Similarly,

across the EU, detention facilities have proliferated and now number in the hundreds

(Schuster, 2011). Lengthened stays are due, inadvertently, if in part, to a Return Directive

adapted by the European Parliament in 2008 that allowed Member States to detain migrants

for up to 18 months (Karlsson, 2010, cited in Mountz et al. 2012, 2).

Particularly with regards to the labor rights and social protection of migrant workers,

despite the existence of well-established international standards operating in this area, there

exists something of a lack of an integrated, holistic approach to the various challenges faced

by migrant workers. Several new developments and dimensions are to be mentioned here.

23 The most documented case is the U.S.-Mexico border, along which segments of walls have been constructed

and where a growing number of patrol agents rely on technologically advanced equipment including high-

intensity lighting, high steel fencing, body heat- and motion-detecting sensors, and video surveillance (Nevins

2002). The same trend can be observed in some European regions, notably around Gibraltar and the border between Spain and Morocco.


28 von 56

First, as noted by Olivier and Govindjee (2013, 1-2), there exists increasingly a tendency to

superimpose immigration law on the social security legal and the labor law framework. For

instance, dependency on state social welfare (i.e. social assistance) and the increasing state

burden have constituted a ground for refusing admission and/or permanent residence status

and expelling migrant workers whose status has not become permanent. In such a situation,

irregularly employed migrant workers may find it difficult to enforce their labor rights. A

second development relates to the tendency on the part of migrant-receiving countries in the

global north to increasingly restrict the extra-territorial application of social security

entitlements, including the exporting of benefits acquired by migrants and even citizens.

Paradoxically, in the third place, this has to be contrasted with recent steps taken by several

migrant-sending countries of the global north to extend some form of social security

protection and related support, also in terms of labor migration services at the pre-departure

stage, during the stay in the destination country, and upon return (Olivier and Govindjee

2013). Fourthly, a renewed interest in the treatment of irregular migrants and asylum seekers

has emerged in recent years. On the one hand, the policy and legislative domain tends to

become more restricted, in particular in countries of the global north. On the other hand, from

a human rights perspective, all migrant workers, including those who migrate and work as

undocumented workers should be entitled to at least basic forms of social assistance and

emergency care. At least, human rights law recognizes the special protection which is due to

specifically vulnerable categories of migrants, including children and, in particular,

unaccompanied children. The question involved is the exploration of the extent to which the

receiving state has fulfilled its obligation under international human rights law in light of its

domestic economic, political and social interests.

For decades, scholars have striven to uncover the puzzles surrounding the models of

national immigration policy making and the resulting models of migratory behavior. For

migration scholars, there are three dimensions of the apparent immigration “policy gap.” They

include the disjuncture between publics and policy-makers at the decision-making and

implementation stage, the relationship between policy goals and outputs, and the dynamic

between the international and domestic arenas. controversies remain regarding the role and

nature of domestic actors, the role of public attitudes as well as exogenous constraints

imposed by international structures, such as the EU and NAFTA, bilateral agreements, and

human rights norms at international, regional and domestic levels (Soysal 1994). On the one

hand, scholars attempt to explain the limited efficacy of control policies by focusing on


29 von 56

domestic interest groups, political institutions, and the interaction among them (Cornelius and

Rosenblum 2004). For instance, Guiraudon and Lahav (2000) detect the emergence of a

transgovernmental governance in the incorporation of a plethora of actors to regulate those

cross-pressures and to control migration through both immigration and integration policies.

The devolution of decision making upward to intergovernmental fora, downward to local

authorities, and outward to nonstate actors can be best exemplified in the receiving countries’

externalized control, so that prospective “unwanted” migrants or asylum seekers do not reach

their territory (Guiraudon and Lahav 2000). On the other hand, Lahav and Guiraudon (2006,

207) argue that while international actors have provided policy frames and enacted soft and

legal norms, far from constraining nation-state, international and supranational agreements

sanction national or protectionist initiatives. Furthermore, the role of public attitudes towards

migrants remains controversial. While Facchini and Mayda (2008) find that only a small

minority of voters favor more open migration policies across countries of different income

levels, Bauer et al. (2001) note that publics may view immigration more favorably if

immigrants are selected according to the needs of the labor markets (which is the case of the

UK). Also, national traditions have strongly shaped the attitudes, forms and content of

national migration policy. For instance, the politics of citizenship vis-à-vis immigrants in

Germany has been informed by its distinctive ethno-cultural and differentialist self-

understanding, deeply rooted in political and cultural geography (Dittgen 1999).

In exploring the correlate of cultural, legal, political and economic factors in shaping

German and British migration policies, we assume that policy-makers in liberal democracies

need to reconcile security interests and traditional attitudes and concerns of publics with those

of liberal norms and free trade (Lahav and Guiraudon 2006, 208). As such, immigration

outcomes can be reached through the delineation of competing interests involved in prevalent

logics (i.e. the logic of labor market, the logic of populism, the logic of legal norms, the logic

of citizenship and state right, the logic of social cohesion, the logic of control and security),

the bureaucracies that defend these points of view and the actors that compete in each policy

configuration. Institutions (at the Level 3 in our pyramid-like model above) then play an

important role in determining which logic and which actor within each logic will prevail. As

the institutional make-up varies in major receiving countries, we expect cross-national

variation in policy choices.


30 von 56

German Migration and Integration Policy

In general, post-war migration to Germany can be divided into five phases: war adjustment

(1945-54); manpower recruitment and rapid labor migration (1955-73); consolidation or

restrained migration (1974-88); since 1988, the dissolution of socialism and its aftermath with

migration flows of ethnic Germans from the former Soviet Union with a special status; and

finally, an increasing inflow of highly skilled migrants since 2001 (Schmidt and Zimmermann

1992; Bauer and Kunze 2003). While the second phase of labor migration has recruited

workers from abroad particularly from Turkey, the guest worker model was essentially a

temporary scheme of labor migration with the hope that a large number of guest workers

would return to their country of origin (Wiesbrock 2010, 37). In 1972, Germany signed a

bilateral treaty with Turkey to create incentives for returning migrants. However, in the early

1970s, despite an economic downturn, the number of migrant workers and migrants falling

into the category of family reunification continued to rise. Germany had already turned into a

country of immigration (with 14 million people entering Germany in 1973), a fact which was

not recognized by politicians and society until 2005.

With the focus on labor migration, attention is particularly paid to the change of

migration law since the 1990s. In the beginning of 1990s, as the German construction industry

encountered its biggest crisis since 1945, controversies arose with regard to the opening of the

normally tightly regulated labor market.24

On the one hand, the federal government proposed

a law (the so-called posted workers law) to prevent an undermining of national wage and

labor standards. On the other hand, the neoliberal coalition consisting of the German

employer association (BDA), the liberal party (FDP), Gesamttextil, Gesamtmetall, economic

think tanks) supported for the flexibilization of the labor market, services liberalization and

the use of temporary migrants to lower the costs of construction. While the BDA welcomed

temporary labor migrants that represented an interesting instrument to ease the domestic labor

market, the BDA in general held a skeptical attitude towards immigration (BDA 1992, 17-19).

At that time, as far as integration is involved, German immigration rules were categorized as

the prime example of a non-integration policy. Notwithstanding a variety of initiatives (the

Commissioners for Foreigners since 1978, Foreigners’ Commissions (Ausländerbeiräte)

24 To be sure, German labor markets are governed by agreements negotiated between employers’ associations

and industrial unions. The degree of union organization in Germany remained stable in the 1980s, whereas it

decreased in Great Britain, Japan, and the US. In Germany, collective agreements covered 82 per cent of

employees between 1980 and 1990s. In contrast, their reach decreased in Great Britain, Japan and in the US.

Moreover, in Germany, there is not much variation in the coverage of the collective agreements between sectors unlike in Great Britain, Japan, and the US. See Dreher 2007, 171.


31 von 56

serving as a channel of representation for certain migrant groups), the integration of

immigrants was not identified as an explicit policy aim until the adoption of Aliens Law

(Ausländergesetz) in 1990. The lack of political will on the part of the German government

was responsible for a half-century of policy neglect to confront and address the integration

life of immigrants. Prior to 2000, much of the responsibility for devising and implementing

measures to advance integration fell on employers, local governments and civil society

organizations (Süssmuth and Morehouse 2009).

In parallel to the debates regarding the temporary migration programs (TMP), during

the 1990s, grassroots public demands for a more restrictive asylum policy arose, as an

upsurge in the number of asylum seekers presented municipalities and counties with daunting

policy challenges. To date, Germany had safeguarded the constitutional right of asylum

without restrictions in its Art. 16 II of Basic Law (Grundgesetz (GG)) as an individual

constitutional right, until it was changed on July 1, 1993. With the fall of the Iron Curtain and

the ensuing civil wars in former Yugoslavia, the number of asylum seekers crossing into

Germany soared. Particularly between 1988 and 1992, applications more than quadrupled,

culminating in a historic high of 438,200 (Bundesamt für Migration und Flüchtlinge 2006).

As noted by Antje Ellermann (2009, 54ff), charged with providing public housing and income

support for applicants, many local communities were confronted with soaring social

expenditure when they were also facing rising public assistance caseloads. In 1993, after one

of the most heated debates in the history of postwar Germany, the two houses of parliament

passed the supermajority hurdle of constitutional reform and enacted far-reaching measures of

immigration control. The SPD departed from its longstanding ideological opposition to

amending the Basic Law’s asylum provisions (Article 16) and acquiesced in a reform effort

that was to transform Germany’s asylum system from one of relative openness to one of tight

closure (Ellermann 2009, 54). With the Asylum Seekers Benefits Act

(Asylbewerberleistungsgesetz), a law thus was created, starting November 1, 1993, to define

minimum maintenance for asylum seekers and certain other foreign nationals. With the

Asylum Seekers Benefits Act (Asylbewerberleistungsgesetz), a law thus was created, starting

November 1, 1993, to define minimum maintenance for asylum seekers and certain other

foreign nationals. It regulates that if beneficiaries of the Asylum Seekers Benefits Act do not

have any assets of their own, they rely on existential benefits.

These far-reaching constitutional changes of asylum issues showed their desired effect

immediately. By 1994, the number of asylum applications had fallen to just over 127,000 – a


32 von 56

drop of over 70 per cent compared to 1992. By 1998, the number of applications did not

surpass the 100,000 mark for the first time in ten years. Most importantly, the reform

succeeded in bringing an end to the escalation of anti-immigrant sentiment and right-wing

violence. Opinion polls showed a marked decline in the salience of the asylum issue in the

post-reform period (Ellermann 2009, 60). However, in its decision on the judgment of the

First Senate of 18 July 2012, the Federal Constitutional Court finds that the amount of cash

benefits paid according to § 3 of the Asylum Seekers Benefits Act is evidently insufficient

“because it has not been changed since 1993.”25

Following the end of 1990s, the situation began to change with the introduction of new

laws (a flexible Nationality Law (Staatsangehörigkeitsgesetz, StAG)) and the adoption of

temporary immigration of high-skilled labor, namely, the 2000 Green Card initiative). In

accordance with public as well as center-right parties’ opposition to the jus soli principle and

dual citizenship, the new Nationality Law of 2000 under the SPD and Green coalition

government led by Chancellor Gerhard Schröder did not permit dual citizenship.

Nevertheless, it contained an alternative known as the “optional model” of temporary dual

citizenship that requires children to choose one of their two nationalities at adulthood. In

particular, the Nationality Law did succeed in making naturalization easier (Abali 2009, 36).

The Law allows immigrants to apply for naturalization after eight instead of fifteen years of

residence (with proof of independent income and the absence of criminal record).

Besides citizenship reform, Bauer and Kunze (2003, 9-10) show that from the

introduction of the Green Card in August 2000 until the end of April 2003, 14,144 Green

Cards were assured to IT specialists from outside the EU. Despite the good will of the

initiative to meet the shortage of high-skilled labor, during this period, it showed a downturn

trend. Far behind the expectations to attract IT specialists particularly from India, the number

of issuance of work permits was disappointing. This could be explained with the preferences

of Indians to migrate to the UK and the USA due to the language affinity (English-speaking),

the existence of Indian communities, as well as the promise of better opportunities to become

self-employed and gain residence right on a permanent basis (Bauer and Kunze 2003, 10).

25 As argued by the Court, if the legislature wishes to consider the particular characteristics of specific groups of

individuals when determining the dignified minimum existence, it may not, in defining the details of existential benefits, differentiate across the board in light of the recipients’ residence status. Such differentiation is only

possible if their need for existential benefits significantly deviates from that of other persons in need, and if this

may be substantiated consistently based on the real and actual need of this group specifically, in a procedure that

is transparent in terms of its content. See decisions from the Federal Constitutional Court on BVerfG, 1 BvL

10/10 of 18.7.2012, Absatz-Nr. (1 - 110), http://www.bverfg.de/entscheidungen/ls20120718_1bvl001010en.html (visited on May 4, 2014).


33 von 56

Although the Green Card system proved to be ineffective, it already set the scene for a

more comprehensive change in German immigration rules. In 2001, an independent

“Süßmuth Commission” proposed wide-ranging changes in immigration and integration law.

As late as 2005, the new Law for Control and Limitation of Immigration

Zuwanderungsgesetz) entered into force. It regulates the entry, residence, employment and

integration of immigrants in Germany. Although the law introduced significant innovations in

the area of integration policies, for example, the establishment of a dialogue forum between

the Muslim representatives and politicians, the restrictions on labor migration was maintained

with regard to all other categories of workers from third countries (Wiesbrock 2010, 43). With

the new immigration rules that bear a connection to integration policies, new rules on family

reunification and the integration of newly arriving immigrants can be found in the 2005

Residence Act and in Section 30 (1) of the amended Residence Act (Aufenthaltsgesetz,

AufentG), which establishes a precondition for spousal reunification as a minimum age of

eighteen years old. Details on the integration courses are to be found in the Ordinance on the

Provision of Integration Courses for Aliens and Returning Ethnic Germans, published in

December 2004.

Meanwhile, not only in Germany, but also in Denmark and Great Britain (see the next

section), the increasingly restrictive national integrative conditions have challenged the basis

of Community Law in two ways. First of all, as pointed out by Wiesbrock (2009, 310-12ff), in

those countries that are bound by the EU’s Directive on family reunification and long-term

residence, Third-country nationals (TCNs) could attempt to circumvent national integration

conditions by relying on the rights conferred upon them. According to Groenenijk (2006), the

automatic refusal attached to the failure of “integration tests” constitutes a violation of Article

17 of the family reunification Directive which requires that the individual interests and the

length of residence of each applicant must be taken into account. Secondly, several

integration measures mentioned above could be considered to fall short of the standards of

non-discrimination and equal treatment upheld by Community Law, and thus can be viewed

as indirectly discriminatory.26

A recent case before the European Court of Justice (ECJ)

indicates that there might be a slight scope for TCNs to rely on their right to non-

discrimination as a fundamental principle of Community Law. In the case of Mangold v Helm

26

Indirect discrimination occurs where an apparently neutral provision, criterion or practice puts persons of a racial or ethnic origin at a particular disadvantage compared with other persons. See Wiesbrock 2009, 312.


34 von 56

(2005),27

the ECJ ruled on a violation of the principle of equality by the German state that had

provided employers with the possibility to discriminate on grounds of age. The significance of

this judgment is that the Court underlined the existence of a free-standing general principle of

equal treatment as a fundamental right under Community Law that exists independently from

the Directive (Wiesbrock 2009, 313). Hence, by recognizing the right to non-discrimination

as a constitutional principle of autonomous legal effect, the Court provided a basis for the

challenge of national legislation, administrative order or Court decision that contravenes the

principle of equal treatment (Schiek 2006, 339).

In particular, since October 2007, a series of labor law legislations and new

regulations have been introduced which have launched a shift in migration patterns. For

example, the entry into force of a Labor Law in October 2007 has eased restrictions for work

in certain sectors in Germany for citizens of the A8, the Eastern European nations that joined

the EU in 2004. Following the Meseberg Cabinet Decision in July 2008, since January 2009,

academics (persons with a tertiary degree) from the new EU Member States have equal

opportunities for jobs in Germany. The “domestic worker preference” regulation

(Vorrangprüfung) is no longer permissible for such academic workers. Also, third-country

national academics may be employed in Germany if no qualified German or EU citizen

applies for the job (Vorrangprüfung). The introduction of a Labor Law in January 2009 has

eased regulations for self-employed immigrants. In other words, with these recent labor

reforms and regulations, the outlook of Germany’s migration patterns has begun to change.

For a half-century, the face of migration in Germany was large-scale, Turkish, low-skilled and

labor-driven. More recent migration has become increasingly small-scale, European and

family-driven. While skilled and highly-skilled labor immigration of third-country nationals

remained statistically tiny (See Bundesministerium des Inneren, Bundesamt für Migration und

Flüchtlinge 2008), since 2007, Germany has experienced a boom of migration. According to

data released in May 2014 by the Organization for Economic Cooperation and Development

(OECD), Germany has become one of the most popular immigration destinations in the world

and is now second to the US as the most attractive market economy for foreign workers. In

the five years between 2007 and 2012, the number of people coming each year to Germanyfor

work rose 72 per cent to almost 400.000, while it dropped 60 percent in crisis-hit Spain and in

the UK with a minus number of 60.700.28

27

Case C-144/04, Mangold v Helm, ECR I-9981. 28 Source OECD 2014.


35 von 56

It is worth mentioning here that, in the midst of the global hunt for the most talented,

as German economy booms and urgently begs for the highly skilled workers to enter into its

labor market, in February 2014, several German local governments introduced several pilot

projects to ease restrictive labor rights for skilled workers among asylum seekers. Whereas

conservative centre-right politicians still hold mistrust towards asylum-seekers and refugees,

the president of the Bundesamt for Migration und Refugees has pledged for a purposeful

search for skilled workers among asylum-seekers and refugees who have entered into

Germany’s territory.29

Furthermore, in the midst of the deliberation process of the national integration plan

and also hereafter the establishment of the regular meeting of the so-called German Islam

Conference, the role of political representation of immigrant associations representing the

interests and needs of immigrants cannot be underestimated. Through a comparison of the

diverse approaches adopted by two Turkish immigrant associations in terms of immigrant

incorporation and citizenship rights, Gökçe Yurdakul (2006) demonstrates that immigrants

are no longer victims of the political decisions of the German state. On the contrary, Turkish

immigrant elites become important political actors to negotiate rights and memberships in the

name of this ethno-national group. In other words, the agency of the immigrants in the socio-

political discourse and also in the governing process deserves closer examination. For

example, with its newly elected double leadership in June 2014, the Turkish Community in

Germany (die Türkische Gemeinde Deutschlands (TGD)) pledges to strengthen its lobby work

for the introduction of a double citizenship that should be applied for all the young people

born in Germany. It also pursues the goal that a right to election at the local level should be

introduced particularly for the non-EU citizens (TCNs).30

Nevertheless, despite these breakthroughs, cases of latent and implicit racism and

discrimination toward migrant workers have increased in the past decades. Worse, eight

Turkish immigrants were the targets of several arson attacks in the 1990s and 2000s, which

killed a total of ten people (including a policewoman). During the criminal investigation

29 Away from the German public eye, a series of training programs have been started in Augsburg, Bremen,

Dresden, Freiburg, Hamburg and Köln to make the former skilled workers from those crisis regions capable to

adapt to the German labor market. See Uwe Ritzer. 2014. “Willkommen.” Süddeutsche Zeitung, Nr. 80, April

5/6, 2014. 30 The TGD is an association of more than 260 different groups (sport clubs, worker unions, women

organizations, and German-Turkish friendship organizations). It does not attach to any specific political and

religious ideologies and parties and is critical of Turkey’s domestic politics under the Prime Minister Tayyip

Erdogan. See Uta Rasche. 2014. “Kämpferische Doppelspitze.” Frankfurter Allgemeine Zeitung (FAZ), Juni 5, p. 10, Nr. 129.


36 von 56

process, the German government was unaware that these killings were organized by a German

right-wing terrorist cell, the National Socialist Underground (NSU). Although the German

government has belatedly issued compensation programs for the victims’ families, a

comprehensive open debate about the racism problem toward migrants as well as useful

concepts and methods to fight discrimination and to cope efficiently with cultural diversity

seem to be overdue in German society.

Besides the racism and discrimination problem, like other major receiving developed

countries (Great Britain, France, Italy and the USA), cases of deportations and detentions

toward asylum-seekers have emerged and increased (Welch 2005). Roma as ethnic minority

group has been often forcefully deported, despite the warning of the danger of exclusion in

their home countries and the fact that, with their refugee status, they have lived in and to a

great extent integrated in Germany for more than ten years. In June 2014, the German

parliament planned to introduce a legislation that would ease the access to the labor market

for asylum seekers. Later, the passing of the new asylum law in September 2014 that is

designed to open the labor market for asylum-seekers marked a breakthrough in addressing

the past detention and immobility problems. At the same time, the reform has proved to be an

instrumental political compromise between the coalition government parties (the CDU and

the SPD) and the Green party which unfortunately demonstrates a policy trade-off between

the right of newcomers to work and the right to stay (das Bleibrecht), for those refugees who

have lived in Germany for more than a decade. As the Balkan states (Serbia, Bosnia-

Herzegovina and Macedonia) are now considered as safe third countries (following the

Dublin system), a number of Roma families are faced with the deportation destiny back to

their home country, where they as a minority group are traditionally discriminated by

mainstream society. The central committee of German Sinti and Roma has already warned

that Roma as a minority group continues to be marginalized and decriminalized in those

Balkan states.31

While local activism remains fruitless due to the lack of widespread public

support in German society, in November 2014, a local Administrative Court questioned the

classification of Serbia as a safe country of origin. The judges gave an urgent application of

an asylum seeker Serbian Roma family and stopped their imminent deportation. The court’s

31 “Die Tür zum Balkan fällt zu. De Maiziere verteidigt Verschärfung des Asylrechts. Roma sind empört.“ Westfälische Nachrichten, Juni 7, 2014.


37 von 56

decision questioned the constitutionality of the new asylum reform and thus sat in conflict

with the German government.32

Undoubtedly, the changed migration patterns in Germany should be examined in the

light of the shifting of German migration policy-making to address both demographic

challenge and the challenge of increasing social inequality (Süssmuth and Morehouse 2009,

268-69). Germany has a fertility rate of 1.4 children per woman, a rapidly shrinking

population and the increase of the population over 65 or older (nearly 30 per cent by 2030)

will cause exceptional strains on social security systems and the economy. Also, in the past,

misconceptions about future migration led Germany to ignore integration policies during its

recruitment period for guest workers in the 1950s through 1970s, a mistake which has

resulted in the emergence of the so-called parallel society and widening social inequality.

Furthermore, Germany’s buoyant economy and strong job market (with an unemployment

rate of 5.1 per cent in March 2014, despite the economic and financial crises in the EURO-

zone since 2008) as well as its comparatively generous welfare system have attracted both

skilled workers and unskilled benefit seekers. Unlike other EU crisis-hit member states who

have been grappling with double-digit jobless rates, Germany became a magnet for immigrant

workers. Nationals of other European countries who need neither visas nor work permits to

settle in Germany made up three quarters of the newcomers.33

At the same time, successive

waves of EU enlargement to countries such as Bulgaria and Romania, where gross domestic

product per capita is about 50 per cent below the EU average, have stoked concerns about so-

called benefit tourism, a term used to describe migrants who claim benefits without making

efforts to find work.

With regard to the role of public opinion in shaping German immigration policy, as

shown above, negative sentiments about immigrants, particularly towards asylum seekers,

were strong in the late 1980s and the 1990s. An Allensbach survey conducted in 1989 showed

that a majority of Germans (59 per cent) thought asylum proceedings should be handled

32 The Administrative Court in Münster (Nordrhein-Westfalen) wanted to clarify in the main proceedings,

whether the law to safe countries of origin should be submitted to the Federal Constitutional Court in Karlsruhe

for examination (Az. 4 L 867/14.A). The Administrative Court of Stuttgart stressed in March 2014 that Roma

become circumcised recently by the Serbian state in their elementary rights to freedom of movement and

criminalized when they exercise the human right of free exit. According to the newly introduced paragraph 350a

of the Penal Code, Serbian asylum seekers risk to be prosecuted and convicted for an asylum application abroad.

See “Gericht widersetzt sich Asylrechtsverschärfung.“ Die Zeit, Nov. 30, 2014,

http://www.zeit.de/gesellschaft/zeitgeschehen/2014-11/asylrecht-gericht-roma; “German court has doubts about

Serbia as a safe country of origin.” Tiroler Tageszeitung Online, Nov. 28, 2014. 33

See Harriet Torry. 2014. “Germany Becomes Magnet for Immigrant Workers.” The Wall Street Journal, May 21, 2014, p. 6.


38 von 56

quickly and restrictively, with failed applicants being repatriated immediately. Public

discontent and mistrust could be read in the media coverage portraying Germany as being

swamped by asylum seekers and “the boat being full.” (Cited in Abali 2009, 33). Illegal

immigration was a major concern. This unease extended also to long-resident immigrants.

Between the mid-1980s and the beginning of the 1990s, in response to the rising influence of

extreme parties, open signs of xenophobia, and electoral losses in the local elections,

intergovernmental lobbies – akin to individual local mandate holders – successfully used their

connections to the mainstream parties to lobby for reform. Prior to the introduction of the

asylum law reform in 1993, the Union CDU/CSU was quick to instrumentalize the divisions

within the SPD (between local SPD officials and their federal party leaders) in order to push

for more fundamental asylum reform. Despite the opposition of more than one-third of the

SPD representatives contending that the proposed law was discriminatory and repressive, in

the end, the Bundestag passed the constitutional amendment by a clear two-thirds majority.

Two days later, the Bundesrat passed the amendment with the required supermajority. Thus,

as observed by Antje Ellermann (2009, 67), after over two years of political debate, the two

chambers acceded to the demands of the public and of intergovernmental lobbies and took the

drastic step of constitutional reform to curtail Germany’s once sacrosanct asylum protections.

Nevertheless, the results of an innovative study by using the measures of the Motivation to

Control Prejudice (MCP) suggest that the social norm against prejudice (also under the

influence of human rights culture), and individual motivations to comply with it, have become

crucial elements in affecting policy and party preferences. In examining the evidence from

Great Britain and Germany, Scott Blinder et al. (2013, 841-42) find that that many majority-

groups’ individuals have internalized a motivation to control prejudiced thoughts and actions

and that this motivation influences their political behavior in predictable ways. At least, this

finding backed by the model of MCP shows that immigration and race policy preferences

suggests an ever present intersection between politics and prejudice. Individual motivation

and normative context jointly determine whether anti-prejudice values or negative affect

towards minorities or immigrants hold sway for a given individual facing a particular political

choice.

Altogether, in contrast with the early stubbornness of viewing the complex

immigration issues of negotiating difference exclusively through the ethno-cultural lens, the

citizenship reform, the creation of the first coherent immigrant integration policy in 2005 as

well as a series of labor law legislations and new integration and training measures towards


39 von 56

new comers particularly towards asylum-seekers have represented great progress over the

denials of the past. Judicial and agency activism at European, national, and local levels has

increasingly played an important role. The Federal Constitutional Court’s decisions in

questioning the compatibility of the Asylum Seekers Benefits Act with the Basic Law has

prompted a rethinking of the praxis of asylum law. Similarly, the 2005 ECJ’s ruling in

defense of equal treatment, the increasing agency activism on the part of Turkish migrant

groups as well as the introduction of pilot projects in searching for skilled workers among

asylum seekers and refugees, and as such in breaking the regulations of labor restrictions

upon asylum seekers have begun to challenge the existing negative opinions and stereotypes

about out-groups such as asylum-seekers, immigrants, Muslims, and ethnic and racial

minorities in German society.

Nevertheless, as Klusmeyer and Papademetriou point out (2009, 274-75), the basic

narrative has remained emphatic that immigrants must accept Germany’s cultural norms if

they want to take part in German society. Despite a series of reforms to tackle immigration

control, neither the Schröder government nor the Merkel government have been able to

elaborate a rational and comprehensive immigration system based on Germany’s long-term

economic and social interests. Instead, Germany would continue to show its renewed

nervousness about immigration and the immigration-integration nexus (i. e. benefit tourism

and poverty migration) in response to current domestic and European developments, as

reflected in the demand of restrictive measures following the opening of the labor market for

the new EU member states since January 1, 2014.

British Migration and Integration Policy

From a historical perspective, British migration law has undergone several changes: it shifted

from the inclusive tenor of the 1948 Nationality Act to increasing controls on entry and

settlement up to the 1971 Nationality Act, which together with the 1981 British Nationality

Act, forms the main source of law in relation to immigration (Platt 2006). The 1948

Nationality Act guaranteed the freedom of British subjects to enter and settle in Britain and

enabled some industries to actively search for labor from the Caribbean and India.

However, since the 1970s, the growth of Britain’s established minority ethnic groups has been

predominantly through reproduction rather than primary immigration. As such, the majority

of British Caribbeans and British Indians (originating from India rather than East Africa) are

British-born. The first restrictions on immigration of British nationals came with the 1962


40 von 56

Commonwealth Immigrants Act, which introduced a voucher system to limit entry for those

wishing to exercise their Commonwealth right to settle in the UK. Despite the limitations,

access to Britain remained possible for those UK-passport-holders who had no alternative

citizenship when their country of residence gained independence. Later, in response to these

nationals, 1968 Commonwealth Immigrants Act was introduced and required ancestral links to

the UK for settlement. At the same time, the first Race Relations Act was introduced in 1965,

as the Labor government saw an urgency of strict immigration control as part of “good race

relations”. It was then followed by the second 1968 Race Relation Act which made

discrimination in housing or employment unlawful. As noted by Bob Hepple (1992), this Act

was an attempt to compensate for the 1968 Commonwealth Immigrants Act and served again

to link “good race relations” to tight immigration policy. A third Race Relation Act was

passed in 1976, modeled on the sex discrimination legislation in 1975 and remained the basis

of race relations legislation till it was strengthened by the 2000 Race Relation Amendment

Act.

Meanwhile, the application of Britain’s famous integration philosophies under its Race

Relations regime has been harshly under attack, particularly from some of its established

ethnic minority groups. Earlier than any other immigrant-receiving country in the West,

Britain rejected the idea of "assimilation" and accommodated the relationship between

mainstream white community and minority groups through the application of the concepts of

multiculturalism and cultural diversity, which have been inspired by its former indirect

colonial rule. However, instead of simply implanting the system of indirect colonial rule into

Britain, as Ira Katznelson (cited in Poulter 1990) cynically suggests, the emergent race

relations regime also inherited the consensual tenet of British culture, which was carried by

the genuine impulse to eradicate racial discrimination and to spread "equal opportunities" to

disadvantaged ethnic minorities. British culture as such is tainted by a paternalism of this

"civilizing" mission that cannot be easily put away in the post-imperial race relations regime.

Thus, the reality of British race relations can be best described as "uneasy paternalism on the

one side, a quiet hostility on the other" (David Kirp, cited in Poulter 1990).

The major factors that influence the migration patterns in the UK include first and

foremost skill shortage. The UK still needs immigrants to fill jobs at both the low and high

ends of the continuum. Its labor market continues to attract the most talented so that the

economy retains international clout. Secondly, demographic pressures have also played an

important role. Immigration surely will not rejuvenate an aging population, but more people


41 von 56

of working age will mitigate the impacts of demographic change. Thirdly, through denser

immigrant networks, migration works in networks, with immigration begetting further

immigration to some degree (Somerville 2009, 325).

In particular, against the backdrop of the EU’s enlargement process, the volume of

immigration in Great Britain has significantly affected the labor migration. Together, foreign

born workers from different entry categories make up 12.1 per cent of the UK labor force

(between 1997 and 2006), up from 7 to 8 per cent. This portion is high by British historical

standards but below that of other major migrants-receiving countries such as Australia, the

US, Ireland, Germany, Sweden and Switzerland. In the UK, since May 2004, Accession 834

workers have been able to take up employment freely and legally as long as they registered

with the Worker Registration Scheme (WRS). The opening of the UK labor market to

workers from these countries led to a surge of immigration. Net migration (inflow minus

outflows) peaked at 320,000 in 2005. During 2004–09, net-migration to the UK was about

304,000 and A8 migrants accounted for about 25 per cent of all net migration to the UK

during that period.35

It fell to a low of 154,000 in the year ending September 2012 and rose

again in 2013 and 2014 following the boom of the British economy.

Normally, British citizens have been broadly favorable towards immigrants whom

they feel make a contribution to the economy. Coupled with a belief that migrant workers

from A8 states,36

particularly from Poland, are hard-working, this ensured that there was

relatively little public opposition to the large inflows of Central and East European (CEE)

workers after May 1, 2004. Nevertheless, the sheer numbers of migrants – 500,000 compared

with the 13,000 the government initially predicted – led to some concerns, contributing to the

government’s decision not to open up the labor market to Bulgarians and Romanians when

their countries joined the EU on 1. January 2007 (Smith 2008, 421). In a similar vein, British

voters tend to be less comfortable with asylum-seekers who do not contribute to the economy,

even though many are highly skilled (Page 2009, 134-35).

34 The Accession 8 or simply A8 countries (Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland,

Slovakia and Slovenia) joined the EU on May 1, 2004. As members of the EU, citizens of the A8 have the right

of mobility within the EU system. However, the accession agreements allowed the 15 pre-existing EU member

states to impose restrictions on the employment of citizens from the A8 countries for a maximum of seven years.

See Vargas-Silva 2011. 35 Figures based on the data of the UK Office for National Statistics (ONS). The main sources of data are the

Labor Force Survey (LFS), the Annual Population Survey (APS) and the Long-Term International Migration

(LTIM) estimates from the International Passenger Survey (IPS). 36 See Somerville 2009.


42 von 56

To address the changed migration pattern mentioned above, since the end of the

1990s, the Labour party government changed the course of its immigration policy. While the

dominant postwar policy model was a bifurcated one, emphasizing both the integration of

immigrants through a “Race Relations” approach and the restriction of immigration, this

template has now been replaced by a commitment of economic migration (Somerville 2009,

321-22). As a result, limiting or restricting immigration is no longer a prerequisite for UK

policy. Among the most important new policies that enabled change were those aimed at

high-skilled immigrants (such as the Highly Skilled Migrants Program, now incorporated in

Tier 1 of the new Points-Based System (PBS); the expansion and redesign of the work-permit

system (now Tier 2 of the PBS); and the measures to attract international students (including

two Prime Ministers’ Initiatives)). At the same time, to reduce “undesirable flows,” the

government has instituted a set of measures to extend UK borders beyond the physical

coastline. These include more restrictive visa regimes for some countries, such as transit

visas, biometric visas and mandatory identity cards for foreign nationals living in the UK.

With the establishment of the UK Border Agency, the Government has created a separate

arms-length agency that has greater operational freedom and combines custom and

immigration functions – the implementation of major institutional reforms. In particular, as

detected by Alexandra Hall (2010), the UK authorizes detention if the identities of asylum-

seekers are questionable. In her ethnography with a focus on how staff emotions shape

detainee experiences, Hall (2010, 894) notes that detention “is a productive strategy, which

brings forth categories of illegality and undesirability as it seeks to contain them.”

The policy approach to integration has also pivoted away from a race relations and

multicultural approach. Instead, integration has become multi-layered but generally more

proactively concerned with national identity and social cohesion (Somerville 2009, 322-23).

As Bernhard Ryan (2009, 277ff) observes, the new policy presents its argument in two ways:

First, it expands economic and social opportunities for migrants. Secondly, it advances

“community cohesion.” With the Home Office’s proposals in the White Paper “Secure

Borders, Safe Haven” of February 2002, for the reform of naturalization law,37

three issues

stood as the focus of reforms: the existing requirement of knowledge of an official language, a

new requirement of “sufficient knowledge about life in the United Kingdom,” and the

formalities for the acquisition of British citizenship. These proposals were part of the response

37

Home Office 2002, Secure Borders, Safe Haven: Integration with Diversity in Modern Britain. White Paper (London: The Stationery Office).


43 von 56

to civil disturbances in the summer of 2001 in a number of Northern English cities and towns

with substantial Muslim communities.

Specifically, against the backdrop of the global anti-terror war as well as the

strengthened intergovernmental cooperation to fight against organized crime at the

Community level, as pointed out by Matthew Gibney (2013, 218ff), something deeper is at

work in public enthusiasm for deportation. Hostility to criminal migrants seems rooted in a

widespread view that non-citizens convicted of crimes are particularly undeserving of

sympathy because they have betrayed the hospitality of the society that let them enter and live

in the state. Hence, deportation seems to have become a powerful legitimate instrument for

the Government to facilitate the construction of the established boundaries of membership in

contemporary states and as such reinforces the normative unity of membership and the

practical significance of citizenship. In response to the emerging public enthusiasm for

deportation and to address inner security issues, in 2002 and 2006 respectively, the Labour

Government extended denaturalization (deprivation of citizenship) provisions to native-born

citizens (with a second nationality) and lowered the standard necessary to use this power.

With the new Nationality, Immigration and Asylum Bill (2002), a deprivation order was

served, as planned on Abu Hamza, a Muslim extremist preacher living in the UK.

In the context of the UK’s commitment of the EU’s immigration policy, although

British politicians have been largely mute on the growing influence of the EU, the UK

government has chosen purposeful coordination strategies with the EU that emphasize

sovereignty control. The messages have essentially been variations on the themes of

“control,” “strengthening borders,” “targeting illegality and criminality and “ensuring

fairness” often using exactly that terminology, backed up by a set of facts and statistics that

imply progress toward achieving those goals. In short, as observed by Will Somerville (2009,

323), politicians have shown an overarching desire for greater control over migration flows

while also “selectively opening” British borders to desirable flows. The core narrative

remains one of control combined with a greater emphasis on national identity and fairness and

a vision of cohesive communities, with little room for other actors, whether they be European

institutions, employers or trade unions.

Seen from this perspective, with regard to British asylum- and refugee policies, the

UK has adopted a differential and conditional engagement to signify its commitment to

human rights protection, on the one hand, and to underline its special role permanently

looking for its favorite in the context of uneasy EU-British relations, on the other. The


44 von 56

enactment of the 1998 Human Rights Act had marked a successful incorporation of the

European Human Rights Convention into British domestic law, whereby judges joined forces

with political activists. In reconciling in subtle form the protection of human rights with the

sovereignty of Parliament, the Act, as upheld by Ewing (1999, 79), represents an

unprecedented transfer of political power from the executive and legislature to the judiciary,

thereby re-structuring fundamentally the British political constitution. However, the boost of

judicial power in terms of human rights protection has not been extended to immigration

control, particularly in the areas of asylum- and refugee protection. While Britain (like

Denmark and Ireland) is outside Schengen, opted out of the free movement, asylum and

migration provisions of the Amsterdam Treaty, it remains fixed on the maintenance of border

controls at ports of entry to the UK. As such, it has unexpectedly become quite closely linked

to key aspects of EU migration and asylum policy in opting into key aspects of it, particularly

the more coercive components concerned with asylum and border controls (Geddes 2005).

The tight British immigration policy, as Ana Aliverti (2012) points out, can be best

demonstrated in its practice of criminal law. Like many West European countries and the

United States, one observes in the UK an expansion of the “frontiers of criminalization”,

whereby the use of criminal law for regulatory instrumental purposes becomes normal. From

1997 to 2006, the Labour government created more than 3000 criminal offences. As part of

this criminal law expansion, Labour introduced a large number of new immigration offences.

The period between 1997 and 2009 witnessed the fastest and largest expansion of the

catalogue of immigration crimes since 1905. The recent increase in criminal offences in

immigration legislation is a clear example of regulation through punishment.

Analysts explain Britain’s response to public pressure to bring immigration under

control in a context of increasing social anxieties about the steady dismantling of the welfare

state, the erosion of social security protections and the restructuring of the labor market. The

working class was particularly affected by these changes (De Giorgi 2011; Garland 2001, 82).

Faced with structural limitations in implementing inclusionary social policies, the Blair

administration sought to appease an important fraction of its electorate by promising a halt on

immigration and by resorting to draconian measures to tackle the “unauthorized mobility of

this ever more globalized proletariat” (De Giorgi 2010, 151). In fact, the Government’s appeal

to criminal sanctions to enforce immigration rules had a communicative and expressive

dimension: to be seen to be doing something about immigration law-breaking. The symbolic

appeal to criminal law in the fight on illegal immigration in domestic politics reveals a highly


45 von 56

politicized, emotionally charged exclusionary discourse (Aliverti 2012, 422). In this context,

the criminalization of immigration breaches is but one facet of what some authors have

referred to as the criminalization or securitization of immigration (Aas 2011; Huysmans

2006).

Despite a series of strengthened immigration and integration measures mentioned

above, the rise of anti-immigration and Eurosceptic parties in the UK (the British National

Party (BNP) and particularly the UK Independent Party (UKIP))38

reflects not only fears that

migration from poorer countries is interpreted as a threat to the social system, but also the

increasing public discontent toward the mainstream parties (the earlier Labour Government

and the current Conservative Government under David Cameron since 2010) in falling short

of effectively tackling migration control (Cutts et al. 2011; Lynch et al. 2012). the result of a

first ever individual level analysis of the social and attitudinal drivers of support for the UK

Independence Party at the 2009 elections to the European Parliament shows that while

Euroscepticism is the most important driver of UKIP support, it is only a part of the whole

story. Other attitudinal drivers, namely dissatisfaction towards mainstream parties and

xenophobia, are also important (Cutts et al. 2011). The analysis of Cutts et al. (2011) suggests

that UKIP is well positioned to recruit a broader and more enduring base of support than the

BNP and become a significant vehicle of xenophobia and, more specifically, Islamophobia in

modern Britain. Indeed, the results of the party’s second-place finish in the UK’s 2010

General Election as well as its first-place finish in the 2014 European Parliament Election

indicate that it is now gradually entering the political mainstream.

As a whole, while the UK has largely profited from economic immigration from both

EU and non-EU net migrations (three quarters of immigration being for work), the missing of

the target set out by the Tory Government in 2011 to reduce immigration to 1980s and 90s

38 As Catherine Fieschi (2005) points out, there exist a set of lowest common denominator similarities between

the BNP and UKIP. Both parties are anti-European, non-mainstream parties, their voters are closer to the Tory

party than to Labour or the Liberal Democrats. They are xenophobic and nationalist. At the same time, the BNP

and UKIP are different. The BNP is a far-right, extremist party. Its roots are to be found in white supremacist

ideals. It aspires for a white, hierarchically ordered Britain. In comparison, UKIP presents a very different profile

and offers slightly different prospects. As a nationalist, anti-European, populist party, UKIP resembles other

European nationalist populist parties such as the French Mouvement pour la France or the Italian Northern

League. What UKIP fears is not the mixing of races or the dilution of the white gene pool, but the emergence of

a complex, transnational authority. What it hates is not the immigrant per se, but bureaucratized and technocratic

politics that seeem to remove national control over the UK’s own collective destiny. Therefore, it advocates for the return to the manageable and less bewildering politics of a sovereign nation state.


46 von 56

levels (far below 100,000) has damaged “public confidence” in the immigration system.39

Even though the Tory Government has maintained to have the controls over non-EU

migration and identified EU migration as the key pressure point, both increased EU and non-

EU net migrations suggest that the Tory Government seems to have lost control over the

whole immigration system, as immigration continues going in the wrong direction the

Governments wants it to.40

Intersections of Multiple Variables in German and British Migration Policy and Law

As shown in the changed immigration pattern in Germany through the introduction of new

immigration laws and policies, we find that the cultural variables (social attitudes towards the

issues of dual citizenship and benefit tourism, a high degree of uncertainty avoidance to push

for the introduction of restrictionist policy as well as public discontent and mistrust toward

asylum and benefit seekers etc.) have imposed constraints on the articulation of citizenship

and asylum rights in the legislation process. The intergovernmental lobbying between federal

and local governments has further facilitated the articulation of public interests for a

restrictionist migration policy.

Meanwhile, the tensions between the inner and outer layers of the onion model

(between traditional politics of belongingness and socialization of anti-prejudice in favoring

for a less restrictive migration policy) at Level 1 and the reverse effects from Level 3 onwards

to the Levels 2 and 1 through judicial activism, the formation of political and economic

preferences and interest group coalitions (migration groups activism and pilot projects to train

high-skilled workers among asylum-seekers, for example) have signified a considerably high

degree of intersectionality not only across Levels but also within a certain Level. These new

developments including the internalization of a widespread social norm against prejudice and

discrimination as well as judicial activism have marked a significant reverse feedback in

challenging mainstream public attitudes towards immigrants and sharpened the internal

tensions within the cultural onion model between the transactional paradigm, on the one hand,

and the transformational paradigm, on the other.

39 Said Liberal Democrat leader and Deputy Prime Minister Nick Clegg. For Clegg, the target had never made

sense. See “Net migration to UK rises to 260,000 in year to June.” BBC News, Nov. 27, 2014,

http://www.bbc.com/news/uk-30224637. 40 For Sunder Katwala, director of the British Future think tank, the net migration target is dead and buried. "The

question is what happens next, why this has happened and what the government is going to do about it." See

Robinson, Nick. 2014. “David Cameron's 'agonising' EU immigration speech.“ BBC News, Nov. 28, http://www.bbc.com/news/uk-politics-30241251.

http://www.bbc.com/news/uk-30224637


47 von 56

In comparison, unlike the active role of the organized public presented by interest

groups and non-governmental organizations found in German immigration politics, we find

that immigration in the UK is an elite-led highly institutionalized field with a relative weak

level of civil society engagement. Elites dominate the field and hold a decisively bipartisan

restrictive stance. This points, as Paul Statham and Andrew Geddes (2002, 248) suggest,

toward an explanation where the direction of immigration policies is not an outcome of an

organized pro-migrant lobby-winning over a resource-weak diffuse anti-migrant lobby.

Instead, their direction has been determined in a relatively autonomous way by political elites.

Despite the critiques exercised by the opposition with regard to the Government’s capacity to

effectively control immigration, in general, the major political parties in the UK have broadly

welcomed globalization and the benefits it can bring. Therefore, it is hard to discern a

distinctive party-specific for example center-right approach. Both parties worry about the

public’s lack of faith in the state’s ability to control immigration flows (the Conservative

Party goes further to suggest a cap on non-EU flows). Yet they rarely diverge on long-term

strategic goals on integration or the need for immigration, at least publicly. However, the two

parties question each other’s ability to control flows and debate whether existing policies to

properly manage immigration have been competently implemented (Somerville 2009, 323;

Smith 2006).

In referring to our pyramid-like model above, we find that the British elite have

responded to public insecurity and enthusiasm for deportation against criminal migrants with

strengthened security measures. The introduction of new migration and integration policies

and laws mostly has been launched at Level 3 of governance structures and as such has begun

to reshape the landscape of migration agenda with strong reverse feedback upon the Level of

legal rules (Level 2) and the Level of informal institution (Level 1).

The analysis of German and British immigration and integration policies demonstrates

that motivational factors, deep-rooted cultural prejudice and public opinion towards migrants

as constraints (Level 1) have been the major force of the passing of new migration and

integration laws in both the German and British contexts. The ambivalence in and fluctuation

of public opinion has had strong influence in shaping the immigration and integration agenda.

On the one hand, due to the market demand and demographical change, public preferences for

economic immigration in highly and low skilled sectors remain strong, which have pushed for

the introduction of new labor and integration regulations. On the other hand, social anxiety

and insecurity, public hostility and implicit racism toward criminal and unwanted migrants


48 von 56

and asylum-seekers have prompted the emergence of public enthusiasm for deportation,

which has contributed to an increasingly restrictive immigration agenda in Britain. On the part

of Germany, the success of political outcomes (Level 4) hinges strongly on the existence of

socio-cultural support and favorable legal and political circumstances, in Levels 1, 2 and 3.

As shown in the case of the German Green Card Initiative, the lack of corresponding law in

providing a prospect of settlement on a permanent basis, as well as the lack of cultural affinity

and infrastructure were responsible for the failure of the Initiative.

At the same time, the elite-led reforms and the dynamic of governance structure (Level

3) by including new actors in political processes have strong reverse effects upon Levels 1

and 2. The political representation of Turkish migrant groups as an active agency in

Germany’s integration plan can be regarded as a historical and political breakthrough.

Nevertheless, the limitations and the danger of proliferations of laws in Level 2 can be

subsumed in three points. First, the killings organized by the NSU cell towards Turkish

migrants in Germany and the lack of public awareness toward the danger of racism have made

visible the insufficiency of existing laws to address the latent and implicit racism and

discrimination problem. Second, the tendency of criminalization and securitarization of

immigration (in the UK) has helped contribute to a globalizing culture of control (Welch

2005), which stands in contrast with judicial activism found both at the national and regional

levels to promote international human rights norms. Here in the Level of motivational factors

and informal institution (Level 1), we see a dynamic of contrasting forces within the onion

model between the cultural specific self-interest (Power Distance, Uncertainty Avoidance,

and Individualism/Communitarianism) and transformational moral principles rooted in

international norms in shaping the agenda and process in the Levels downwards. Third, the

proliferation of laws (Level 2) has both cultural and political functions (at Level 1 and Level

3). Not only does it strengthen the political legitimacy of a polity. It also addresses public

anxiety and insecurity with a policy goal to create a more secure environment. Here we

observe a strong degree of intersectionality across levels in shaping the outlook of migration

and integration agenda in Germany and Britain. These intertwining intersections with a

selective and discriminatory character as policy outcomes (Level 4) can be found in the labor

market reforms, citizenship reforms, the search for skilled workers among asylum-seekers,

and strengthened control over poverty migration in Germany, on the one hand, and the

“selective opening” approach for low- and highly skilled workers, the extension of


49 von 56

denaturalization powers, and the criminalization or securitization of immigration in Britain,

on the other.

In light of the results shown above, we can largely confirm the first hypothesis which

upholds the tensions between different layers of culture at Level 1. With a slight difference of

degree, in both German and British contexts, the tensions between the cultural specific self-

interest (Power Distance, Uncertainty Avoidance, and Individualism/Communitarianism) and

transformational moral principles rooted in international human rights might have caused a

cultural deadlock, which has strongly hindered the function of legal rules, an appropriate

assessment of existing migration control as well as the elaboration of a long-term

comprehensive migration policy based on social and economic needs.

To a great extent, we also can confirm our second hypothesis. The increasing judicial

activism as well as the autonomy of legal forces (e. g. citizenship rights, non-citizenship

rights, the principle of legality), the preference-driven political forces including immigrant

agency activism in the German case and British elitism have caused strong reverse feedback

upon Level One, which might have entailed prospects for cultural adjustment and change

(particularly toward the outer layers of the onion model). At the same time, the rise of public

concern regarding benefit tourism and poverty migration in the German case, a more

generalized shift towards the acceptance of the populist right as a mistrust vote towards

mainstream parties reflects a strong hold of the inner layer of cultural values (Power Distance,

Uncertainty Avoidance, and Individualism and Mastery) particularly in Britain and to lesser

degree in the German case.

Finally, the mutually reinforcing forces of different variables across levels in shaping

policy outcomes in both cases have confirmed our third hypothesis. The interplay of cultural,

legal, political and institutional factors (public attitudes toward unwanted migrants, the

ideological nature of policy preferences, e. g. the selection of high-skilled workers as

welcomed migrants, the emphasis of “britishness”, ”community identity”, and “social

cohesion”, the separation of powers and interest group politics) have furthered the exclusion

of unwanted migrants that remain illegal. Nevertheless, the potential of judicial activism and

transformational social attitudes to promote the domestic salience of international norms

cannot be underestimated in a longer term.


50 von 56

Some Concluding Remarks

This paper is set out to explore the role of culture and law in shaping national migration and

integration policies. It finds the cumulative effects of overlapping factors (national identity,

instrumental calculations, public attitudes toward migrants, political participation of migrant

communities, support for Europe’s Fortress project, British Elitism, and the war on terror) in

shaping German and British migration policies and laws. With tightened immigration control,

it seems that Europe has turned out to be a continent of exclusion that contrasts deeply with

its founding principles (democracy, human rights and the rule of law) and with its self-

definition as a political community of values.

Possible prospects for an improvement of current situations may hinge on the potential

of majoritarian activism on the part of international and regional human rights regimes (Sweet

and Brunell 2013; Guiraudon 1998). Furthermore, two major reforms brought about by the

Lisbon Treaty may provide a prospect for a solution to address the national policy gap of

migration control: the emancipation of migration within the area of freedom, security and

justice and the binding character of the Charter of Fundamental Rights. As suggested by

Daniel Thym (2013), both changes help us to understand that EU primary law represents a

noteworthy accommodation of countervailing theoretical arguments about the normative

foundations of international migration. EU migration law is committed to a "cosmopolitan

outlook", which rejects the traditional notion of unfettered sovereign State control without

mandating open borders.

As far as the methodology is involved, further empirical evidence may be needed to

explore the intensity of reverse causality between Levels in a bottom-up direction. For

example, an examination of how current political mood, e. g. the rise of anti-immigrant

populist right parties, economic and demographic concerns in the labor market, how

humanitarian concerns for migrant workers and pressure from human rights activism (Level

3) have influence on the development of informal institutions (Level 1) and legislation

behavior and decisions (Level 2) may be first helpful steps for such an exploration.

References

Aas, Katja Franko. 2011. “Crimmigrant’ bodies and bona fide travelers: Surveillance, citizenship and global

Governance.“ Theoretical Criminology 15: 331–346.


51 von 56

Abali, Oya S. 2009. “German Public Opinion on Immigration and Integration.” In Migration, Public Opinion

and Politics, edited by Bertelsmann Stiftung, Migration Policy Institute, The Transatlantic Council on

Migration, Gütersloh: Verlag Bertelsmann Stiftung, 29-51.

Afshari, Reza 2007. “On Historiography of Human Rights. Reflections on Paul Gordon Lauren’s The Evolution

of International Human Rights: Vision Seen.” Human Rights Quarterly 29: 1-67.

Aliverti, Ana 2012. “Making people criminal: The role of the criminal law in immigration enforcement.”

Theoretical Criminology 16(4): 417-34. Apple, James G. and Robert P. Deyling. 1994-1995. A Primer on the Civil Law System. The Federal Judicial

Center, Washington D.C.

Ashworth, Andrew 2000. “Is the criminal law a lost cause?” Law Quarterly Review 226: 225–256.

Bass, Bernard M. 1997. „Does the Transactional-Transformational Leadership Paradigm Transcend

Organizational and National Boundaries?“ American Psychologist 52 (2): 130-39.

Battistella, Graziano 2009. “Migration and Human Rights: The Uneasy but Essential Relationship,” Guchteneire,

Paul de / Pécoud, Antoine / Cholewinski, Ryszard (eds.) Migration and Human Rights. The United Nations

Convention on Migrant Worker’s Rights. New York: Cambridge Univ. Press, 47-69.

Battjes, H. 2002. “A Balance between Fairness and Efficiency? The Directive on International Protection and the

Dublin Regulation.” European Journal of Migration and Law 4: 159-92.

Bauer, Thomas K., Magnus Lofstrom and Klaus F. Zimmermann. 2001. Immigration Policy, Assimilation of Immigrants, and Natives' Sentiments Towards Immigrants: Evidence from 12 OECD Countries. Working

Papers, Center for Comparative Immigration Studies, UC San Diego.

Bauer, Thomas and Astrid Kunze. 2003. Demand for High-Skilled Workers and Immigration Policy. RMI

Discussion Papers No. 11, Essen.

Biswas, Dan / Toebes, Brigit/ Hjern, Anders/ Ascher, Henry/ Norredam, Marie 2012. „Access to health care for

undocumented migrants from a human rights perspective: A comparative study of Denmark, Sweden, and the

Netherlands.” Health and Human Rights. An International Journal 14 (2): 49-60.

Blinder, Scott, Robert Ford and Elisabeth Ivarsflaten. 2013. “The Better Angels of Our Nature: How the

Antiprejudice Norm Affect Policy and Party Preferences in Great Britain and Germany.” American Journal of

Political Science 57 (4): 841-57.

Bloch, A and Schuster, L 2005. “At the extremes of exclusion: Deportation, detention and dispersal,” Ethnic & Racial Studies 28: 491–512.

Boswell, Christina 2003. “The ‘external dimension’ of EU immigration and asylum policy.” International

Affairs 79 (3): 619-38.

Bosworth, Mary 2008. “Border Control and the Limits of the Sovereign State.” Social and Legal Studies 17 (2):

199-215.

Bosworth, Mary / Guild, M 2008. “Governing through migration control: Security and citizenship

in Britain,” British Journal of Criminology 48: 703–719.

Bosworth, Mary 2011. “Human rights and immigration detention in the UK,” In Dembour M and

Kelly T (eds) Are Human Rights for Migrants? Critical Reflections on the Status of Irregular

Migrants in Europe and the United States. Abingdon: Routledge.

Bloemraad, Irene / Korteweg, Anna / Yurdakul, Gökҫe 2008. “Citizenship and Immigration: Multiculturalism,

Assimilation, and Challenges to the Nation-State,“ Annual Review of Sociology, Vol. 34: 153-79. Bosniak, Linda. 1991. “Human Rights, State Sovereignty and the Protection of Undocumented Migrant Workers

under the International Migrant Workers Convention,” International Migration Review

25 (4): 737-70. Special Issue: U.N. International Convention on the Protection of the Rights of All Migrant

Workers and Members of Their Families.

Bundesamt für Migration und Flüchtlinge. 2006. Migrationsbericht. Berlin.

Bundesamt für Migration und Flüchtlinge. 2014. Das Bundesamt in Zahlen. Asyl, Migration und Integration.

Nürnberg.

Bundesvereinigung der Deutschen Arbeitgeberverbände (BDA). 1992. Ausländerbeschäftigung in Deutschland.

Grundsätze und Empfehlungen der Arbeitgeber. Köln.

Carrera, Sergio, Marie De Somer and Bilyana Petkova. 2012. The Court of Justice of the European Union as a

Fundamental Rights Tribunal Challenges for the Effective Delivery of Fundamental Rights in the Area of Freedom, Security and Justice. The Centre for European Policy Studies (CEPS) Paper in Liberty and Security

in Europe. No. 49, August.

Chase, Oscar G. 1997. “Legal Processes and National Culture.” Cardozo Journal of International and

Comparative Law 5: 1.

Cholewinski, Ryszard, Richard Perrouhoud, and Euan Macdonald. eds. 2008. International Migration Law:

Developing Paradigms and Key Challenges. Cambridge Univ. Press.


52 von 56

Coombe, Rosemary J. 1998/99. “Intellectual Property, Human Rights & Sovereignty: New Dilemmas in

International Law Posed by the Recognition of Indigenous Knowledge and the Conservation of Biodiversity.”

Indiana Journal of Global Legal Studies 6 (1): 59-115.

Cornelius, Wayne A. and Marc R. Rosenblum. 2004. Immigration and Politics. Working paper N. 105, October,

Center for Comparative Immigration Studies, UC San Diego, http://escholarship.org/uc/item/24t4f706 (visited

on Jan. 25, 2014)

Cutts, David, Robert Ford and Matthew J. Goodwin. 2011. “Anti-immigrant, politically disaffected or still racist after all? Examining the attitudinal drivers of extreme right support in Britain in the 2009 European elections.”

European Journal of Political Research 50: 418–40.

Dauvergne, Catherine 2008. Making People Illegal. What Globalization Means for Migration and Law.

Cambridge Univ. Press, 232 pp.

De Giorgi, A 2010. “Immigration control, post-Fordism, and less eligibility: A materialist critique

of the criminalization of immigration across Europe,” Punishment & Society 12: 147–167.

De Giorgi, A 2011. “Post-Fordism and penal change: The new penology as a post-disciplinary social control

strategy. In: Melossi D, M. Sozzo and C. Sparks (eds) Travels of the Criminal Question: Cultural

Embeddedness and Diffusion. Oxford: Hart.

Deparle, Jason 2010. "Global Migration: A World Ever More on the Move." New York Times. June 26th.

Ditttgen, Herbert. 1999. “Einwanderungskontrolle: einige Beobachtungen nationaler Traditionen, innerer und äußerer Überwachung und Politik-Paradigma.“ In Internationale Migration und freiheitliche Demokratien,

herausgegeben von Axel Schulte und Dietrich Thränhardt, Hamburg: Lit Verlag, 77-86.

Dreher, Sabine. 2007. Neoliberalism and Migration: An Inquiry Into the Politics of Globalization. Hamburg: Lit

Verlag.

Ellermann, Antje. 2009. States against Migrants. Deportation in Germany and the United States. Cambridge

University Press.

Evaristo, J. R., E. Karahanna and M. Srite 2000. Culture and Information Systems. Proceedings of the Global

Information Technology Management (GITM) World Conference, Memphis, TN.

European Council on Refugees and Exiles (ECRE). 2008. Sharing Responsibility for Refugee Protection in

Europe: Dublin Reconsidered.

<http://www.ecre.org/files/Sharing%20Responsibility_Dublin%20Reconsidered.pdf> Ewing, K.D. 1999. “The Human Rights Act and Parliamentary Democracy,” The Modern Law Review, Vol. 62

(1): 79-99.

Facchini, Giovanni and Anna Maria Mayda. 2008. From Individual Attitudes towards Migrants to Migration

Policy Outcomes: Theory and Evidence. Institute for the Study of Labor (IZA), Discussion Paper (DP) Series

No. 3512.

Faist, Thomas (ed.) 2007. Dual Citizenship in Europe: From Nationhood to Societal Integration. Aldershot:

Ashgate, 226 pp.

Favell, Adrian and Randall Hansen. 2002. “Markets against Politics: Migration, EU Enlargement and the Idea of

Europe.” Journal of Ethnic and Migration Studies 28 (4): 581-602.

Fieschi, Catherine. 2005. “Far Right Alarmism. UKIP and Veritas are not very pretty, but must not be lumped

together with the BNP.” Prospect Issue 108, 3 p.

Friedman, Lawrence M. 1994. “Is There A Modern Legal Culture?” Ratio Juris 7(2): 117-31. Galindo, Fernando 1997. “Cultural Environment and the Concept of Law,” In Law, Justice and Culture, edited

by Arnaud, André-Jean and Peter Koller Proceedings of the 17th World Congress of the international

Association for Philosophy of Law and Social Philosophy (IVR), Bologna, June 16-21, 1995, Stuttgart: Franz

Steiner Verlag, 129-40.

Garland, D. 1996. “The limits of the sovereign state: Strategies of crime control in contemporary

society,” British Journal of Criminology 36: 445–471.

Garland, D. 2001. Culture of Control: Crime and Social Order in Contemporary Society. Oxford:

Oxford University Press.

Geddes, Andrew. 2001. “International Migration and State Sovereignty in an Integrating Europe,” International

Migration, Vol. 39 (6): 21-42.

Geddes, Andrew and Virginie Guiraudon.2004. „Britain, France, and EU Anti-Discrimination Policy: The Emergence of an EU Policy Paradigm.” West European Politics, Special Issue: Policy Change and Discourse

in Europe 27 (2): 334-53.

Geddes, Andrew. 2005. “Getting the best of both worlds? Britain, the EU and migration policy.” International

Affairs 81 (4): 723-40.

http://www.ecre.org/files/Sharing%20Responsibility_Dublin%20Reconsidered.pdf

http://www.tandfonline.com/action/doSearch?action=runSearch&type=advanced&searchType=journal&result=true&prevSearch=%2Bauthorsfield%3A%28Guiraudon%2C+Virginie%29


53 von 56

Gibney, Matthew J. 2013. “Deportation, Crime, and the Changing Membership in the United Kingdom.” In The

Border of Punishment. Migration, Citizenship, and Social Exclusion, edited by Aas, Katja Franko and Mary

Bosworth. Oxford: Oxford University Press, 218-36.

Groenenijk, G. 2006. “Family Reunification as a Rights Under Community Rights.” European Journal of

Migration and Law 8 (2): 215-30.

Guchteneire, Paul de / Pécoud, Antoine / Cholewinski, Ryszard (eds.) 2009. Migration and Human Rights. The

United Nations Convention on Migrant Worker’s Rights. New York: Cambridge Univ. Press. Guiraudon, Virginie 1998. „Third country nationals and European law: Obstacles to rights’ expansion,” Journal

of Ethnic and Migration Studies 24 (4): 657-74. Special Issue: The European Union: Immigration, Asylum and

Citizenship.

Guiraudon, Virginie 2000. „European Integration and Migration: Vertical Policy-Making as Venue Shopping,“

Journal of Common Market Studies 38 (2): 251-71.

Guiraudon, Virginie and Gallya Lahav. 2000. “A Reappraisal of the State Sovereignty Debate. The Case of

Migration Control.” Comparative Political Studies 33 (2): 163-95.

Guiraudon, Virginie and Christian Joppke. eds. 2001. Controlling a New Migration World. London: Routledge.

Hainmüller, Jens and Dominik Hangartner. 2013. “Who Gets A Swiss Passport? A Natural Experiment in

Immigrant Discrimination.” American Political Science Review107 (1): 159-87.

Hall, Alexandra. 2010. “’These people could be anyone’: Fear, contempt (and empathy) in a British Immigration Removal Centre.” Journal of Ethnic and Migration Studies 36 (6): 881–98.

Hancock, Ange-Marie. 2007. “When Multiplication Doesn’t Equal Quick Addition: Examining Intersectionality

as a Research Program.” Perspectives on Politics 5 (1): 63-80.

Hannum, Hurst. 1995-1996. “The Status of the Universal Declaration of Human Rights in National and

International Law” Ga. Journal of International and Comparative Law 25: 287.

Hart, H.L.A. 1994. The Concept of Law. Second Edition. Oxford Univ. Press, 315 pp.

Hatton, Timothy and Jeffrey G. Williamson. 2008. Global Migration and the World Economy: Two Centuries of

Policy and Performance. Cambridge: the MIT Press, 471 pp.

Hefny, Assem. 2010. “Hermeneutik, Koraninterpretation und Menschenrechte,” In Elliesie, Hatem (Hg.)

Beiträge zum Islamischen Recht VII. Islam und Menschenrechte. Leipziger Beiträge zur Orientforschung, Bd.

26, Frankfurt am Main: Peter Lang. Hepple, Bob. 2004. “Race and Law in Fortress Europe,” The Modern Law Review, Vol. 67 (1): 1-15.

Hillmann, Felicitas / Koppenfels, Amanda K. 2009. “Migration and Human Rights in Germany,” In Guchteneire,

Paul de / Pécoud, Antoine / Cholewinski, Ryszard (eds.) Migration and Human Rights. The United Nations

Convention on Migrant Worker’s Rights. New York: Cambridge Univ. Press, pp. 322-42.

Hofstede, Geert H. 1980. Culture’s Consequences: International Differences in Work-Related Values. Sage

Publications.

Hofstede, Geert and Michael Harris Bond. 1988. "The Confucius Connection: From Cultural Roots to Economic

Growth." Organizational Dynamics 16 (4): 4-21.

Hofstede, Geert 2001. Culture’s Consequences: Comparing Values, Behaviors, Institutions, and Organizations

Across Nations. 2nd ed., Sage Publications, 616 pp.

Hofstede, Geert. 2002. “Dimensions do not exist: A reply to Brendan McSweeney.“ Human Relations 55 (11): 1-

7. Home Office 1998. Fairer, Faster and Firmer: A Modern Approach to Immigration and Asylum.

London: Home Office.

Home Office 2010a. Control of Immigration: Statistics United Kingdom 2009. 15/10. London:

Home Office.

Home Office 2010b. Protecting Our Border, Protecting the Public: The UK Border Agency’s Five

Year Strategy for Enforcing Our Immigration Rules and Addressing Immigration and Cross

Border Crime. London: Home Office.

Home Office 2011. UK Border Agency Business Plan 2011–15: Delivering Our Commitments

with a Smaller, More Efficient Agency. London: Home Office.

Huysmans, J. 2006. The Politics of Insecurity: Fear, Migration and Asylum in the EU. Abingdon,

Oxon: Routledge. International Commission of Jurists (ICJ) 2011. Migration and International Human Rights Law. Practitioners

Guide. No. 6. Geneva, Switzerland.

International Council on Human Rights Policy (ICHRP) 2010. Irregular Migration, Migrant Smuggling and

Human Rights: Towards Coherence. Geneva, Switzerland, 165 pp.


http://www.tandfonline.com/loi/cjms20?open=24#vol_24



54 von 56

International Organization for Migration (IOM) 1998. Migrants’ Rights and International Law. Statement by

Mr. Richard Perrouhoud, Seminar on Human Rights and Migrants, Washington DC, 23-24 April.

http://www.rcmvs.org/documentos/investigacion/Rights.htm (visited on Feb. 28, 2013)

Joppke, Christian. 1998. Challenge to the Nation-State: Immigration in Western Europe and the United States.

Oxford Univ. Press.

Joppke, Christian. 1999. Immigration and the Nation-State. The United States, Germany, and Great Britain.

Clarendon Press, 368 pp. Joppke, Christian. 2001. „The Legal-domestic Sources of Immigrant Rights,” Comparative Political Studies,

Vol. 34 (4): 339-66.

Joppke, Christian. 2005. “Exclusion in the Liberal State. The Case of Immigration and Citizenship Policy,”

European Journal of Social Theory, Vol. 8 (1): 43-61.

Kastoryano, Riva. 2004. “Religion and Incorporation: Islam in France and Germany,” International Migration

Review, Vol. 38 (3): 1234-55.

Keesing, Roger M. 1974. “Theories of Culture.” Annual Review of Anthropology 3: 73-97.

Klusmeyer, Douglas B. and Demetrios G. Papademetriou. 2009. Immgration Policy in the Federal Republic of

Germany. Negotiating Membership and Remaking the Nation. New York / Oxford: Berghahn.

Koh, Harold Hongju. 1999. “How Is International Human Rights Law Enforced?” Indiana Law Journal 74:

1397-1417. Kostakopoulou, Theodora. 2000. „The ‘Protective Union’; Change and Continuity in Migration Law and Policy

in Post-Amsterdam Europe,” JCMS: Journal of Common Market Studies, Vol. 38 (3): 497–518, September.

Kuran,Timur. 2004. “Cultural Obstacle to Economic Development: Not Necessarily Real, Often Transitory,” In

Rao, Vijayendra & Walton, Michael (eds.). Culture and Public Action.

Lahav, Gallya and Virginie Guiraudon. 2006. “Actors and Venues in Immigration Control: Closing the Gaps

between Political Demands and Policy Outcomes.” West European Politics 29 (2): 201-23.

Lavenex, Sandra and Rachel Stucky. 2011. “’Partnering’ for Migration in EU External Relations.” In

Multilayered Migration Governance. The Promise of Partnership, edited by Rahel Kunz, Sandra Lavenex and

Marion Panizzon. London and NY: Routledge, 116-42.

Lindstrom, Channe. 2006. “European Union Policy on Asylum and Immigration. Addressing the Root Causes of

Forced Migration: A Justice and Home Affairs Policy of Freedom, Security and Justice?” In Finer, Catherine Jones (ed.) Migration, Immigration and Social Policy. Maldon / Oxford: Blackwell Publishing, pp. 29-47.

Loader, Ian. 2009. “Ice cream and incarceration,” Punishment & Society 11: 241-57.

Lynch, Philip, Richard Whitaker and Gemma Loomes. 2012. “The UK Independence Party: Understanding a

Niche Party’s Strategy, Candidates and Supporters.“ Parliamentary Affairs 65: 733–57.

Macdonald, Euan and Cholewinski, Ryszard 2009. “The ICRMW and the European Union,” In Guchteneire,

Paul de et al. (eds.) Migration and Human Rights. The United Nations Convention on Migrant Worker’s

Rights. New York: Cambridge Univ. Press, pp. 360-92.

Martin, David A. 1989. “Effects of International Law on Migration Policy and Practice: The Uses of Hypocrisy.”

International Migration Review 23 (3): 547-78, Special Silver Anniversary Issue: International Migration an

Assessment for the 90's.

Martin, Susan. 2005. The legal and normative framework of international migration. A paper prepared for the

Policy Analysis and Research Programme of the Global Commission on International Migration (GCIM). McSweeney, B. 2002. “Hofstede’s Model of National Cultural Differences and their Consequences: A Triumph

of Faith – A Failure of Analysis.” Human Relations 55 (1): 89–118.

Mayerfeld, Jamie. 2007. “Playing by Our Own Rules: How US Marginalization of International Human Rights

Law Led to Torture.” Harvard Human Rights Journal 20: 89-140.

Modood, Tariq. 1994. Racial Equality. Colour, Culture and Justice, London: Institute for Public Policy

Research.

Mountz, Alison, Kate Coddington, R. Tina Catania and Jenna M. Loyd. 2012. “Conceptualizing detention :

Mobility, containment, bordering, and exclusion.“ Progress in Human Geography DOI:

10.1177/0309132512460903, pp. 1-20.

Neumayer, Eric. 2007. “Qualified Ratification: Explaining Reservations to International Human Rights

Treaties.” Journal of Legal Studies 36: 397-429. Nevins, Joseph. 2002. Operation Gatekeeper. The Rise of the “Illegal Alien” and the Making of the U.S.-Mexico

Boundary. New York: Routledge.

Olson, M. 1965. The Logic of Collective Action. Cambridge, MA: Harvard Univ. Press.

Olivier, Marius and Avinash Govindjee. 2013. Labor rights and social protection of migrant workers: In search

of a coordinated legal response. Paper presented at the Inaugural conference of the Labour Law Research

Network (LLRN), Barcelona, Spain, 13-15 June.


55 von 56

Page, Ben. 2009. “British Attitudes to Immigration in the 21th Century.” In Migration, Public Opinion and

Politics, edited by Bertelsmann Stiftung, Migration Policy Institute, 131-54.

Pascouau, Yves. 2013. Intra-EU mobility: the ‘second building block’of EU labour migration policy. Issue Paper

No. 74, European Policy Center.

Pécoud, Antoine and Paul de Guchteneire. 2006. “International Migration, Border Controls and Human Rights:

Assessing the Relevance of a Right to Mobility.” Journal of Borderlands Studies 21 (1): 69-86.

Piper, Nicola. 2007. Governance of Migration and Transnationalization of Migrants’ Rights. An Organizational Perspective. Paper presented at the conference on ‘Transnationalization and Development(s): Towards a

North-South Perspective’, Center for Interdisciplinary Research, Bielefeld, Germany, May 31 - June 01.

Platt, Lucinda. 2006. “New Destinations? Assessing the Post-Migration Social Mobility of Minority Ethnic

Groups in England and Wales” In Migration, Immigration and Social Policy, edited by Catherine Jones Finer,

Maldon / Oxford: Blackwell Publishing, 137-60.

Poulter, Sebastian. 1990. Cultural Pluralism and Its Limits: A Legal Perspective, “ In CRE Britain: A

Plural Society. Report of a Seminar, London: Commission for Racial Equality.

Ryan, Bernard 2009. “Policy on the ICRMW in the United Kingdom,” In Migration and Human Rights. The

United Nations Convention on Migrant Worker’s Rights, edited by Guchteneire, Paul de et al. (eds.). New

York: Cambridge Univ. Press, 278-94.

Sales, Rosemary 2002. “The deserving and the undeserving Refugees, asylum seekers and welfare in Britain.”

Critical Social Policy 22 (3): 456-478.

Sassen, Saskia. 1998. “The de facto Transnationalizing of Immigration Policy,” In Challenge to the Nation-

State: Immigration in Western Europe and the United States, edited by Joppke, Christian. Oxford Univ. Press.

Schiek, Dagmar. 2006. “The ECJ Decision in Mangold: A Further Twist on Effects of Directives and

Constitutional Relevance of Community Equality Legislation.” Industrial Law Journal 35 (3): 329-41.

Schuster, L. 2011. “Dublin II and Eurodac: Examining the (un)intended(?) consequences.” Gender, Place and

Culture 18 (3): 401–16.

Schwartz, Shalom H. 1994.”Cultural Dimensions of Values: Towards an Understanding of National

Differences,” In Kim, Uichol et al., (eds.) Individualism and Collectivism: Theoretical and Methodological

Issues 85.

Shuck, Peter H. 1984. “The Transformation of Immigration Law,” Columbia Law Review, Vol. 84: 1. Shuck, Peter. 2000. “Law and the Study of Migration.” In Brettell, Caroline B. / Hollifield, James F. (eds.).

Migration Theory: Talking Across Disciplines. Routledge.

Smith, Julie. 2008. “Towards Consensus? Centre-Right Parties and Immigration Policy in the UK and Ireland.”

Journal of European Public Policy 15 (3): 415-31.

Soares, Ana Maria, Minoo Farhangmehr and Aviv Shoham. 2007. “Hofstede's dimensions of culture in

international marketing studies.” Journal of Business Research 60: 277–84.

Sommerville, Will. 2009. “Future Immigration Patterns and Policies in the United Kingdom.” In Migration,

Public Opinion and Politics, edited by Bertelsmann Stiftung, Migration Policy Institute, 314-39.

Soysal, Jasmin Nuhoglu. 1994. Limits of Citizenship. Migrants and Postnational Membership in Europe. The

University of Chicago Press.

Statham, Paul and Andrew Geddes. 2006. “Elites and the ‘Organized Public’: Who Drives British Immigration

Politics and in Which Direction?” West European Politics 29 (2): 248-69. Stone, Alec Stone and Thomas Brunell. 2013. “Trustee Courts and the Judicialization of International Regimes.

The Politics of Majoritarian Activism in the European Convention on Human Rights, the European Union, and

the World Trade Organization.” Journal of Law and Courts 1 (1): 61-88.

Süssmuth, Rita and Christel Morehouse. 2009. “The Future of Migration and Integration Policy in Germany.” In

Migration, Public Opinion and Politics, edited by Bertelsmann Stiftung, Migration Policy Institute, 263-90.

Talbott, William J. 2005. Which Rights Should Be Universal? NY: Oxford Univ. Press, 232 pp.

Taran, Patrick A. 2009. “The Need for a Rights-Based Approach to Migration in the Age of Globalization,” In

Guchteneire, Paul de et al. (eds.) Migration and Human Rights. The United Nations Convention on Migrant

Worker’s Rights. New York: Cambridge Univ. Press, pp. 150-68.

Taylor, Savitri. 2006. “From Border Control to Migrant Management: The Case for a Paradigm Change in the

Western Response to Transborder Population Movement,” In Migration, Immigration and Social Policy, edited by Finer, Catherine Jones. Maldon/Oxford: Blackwell Publishing, pp. 5-28.

Thym. Daniel. 2013. “EU Migration Policy and its Constitutional Rationale. A Cosmopolitan Outlook.”

Common Market Law Review 50 (3): 709-36.

Twining, William. 2009. General Jurisprudence: Understanding Law from a Global Perspective. Cambridge

University Press.

UN High Commissioner for Refugee (UNHCR). 2011. Global Trends Report.


56 von 56

Welch, Michael 2005. “Detention of asylum seekers in the US, UK, France, Germany, and Italy: A critical view

of the globalizing culture of control,” Criminal Justice 5 (4): 331-55.

Wiesbrock, Anja. 2009. “Discrimination Instead of Integration? Integration Requirements for Immigrants in

Denmark and Germany,” In Illiberal Liberal States. Immigration, Citizenship and Integration in the EU, edited

by Elspeth Guild, Kees Groenendijk and Sergio Carrera, Farnham: Ashgate, 299-314.

Wiesbrock, Anja. 2010. Legal Migration to the European Union. Leiden/Boston: Martinus Nijhoff Publishers,

809 p. Williamson, Oliver E. 2000. “The New Institutional Economics: Taking Stock, Looking Ahead,” Journal of

Economic Literature 38 (3): 595-613.

Williamson, Dermot. 2002. “Forward from a critique of Hofstede’s model of national culture.“ Human Relations

55 (11): 1373-95.

Wilson, J. Q. 1980. The Politics of Regulation. NY: Basic Books.

Yilmaz, Ihsan. 2000. “Muslim Law in Britain: Reflections in the Socio-Legal Sphere and Differential Legal

Treatment,” Journal of Muslim Minority Affairs, Vol. 20 (2): 353-60.

Yurdakul, Gökçe. 2006. “State, Political Parties and Immigrant Elites: Turkish Immigrant Associations in

Berlin,” Journal of Ethnic and Migration Studies32 (3): 435-53.

http://www.tandfonline.com/action/doSearch?action=runSearch&type=advanced&searchType=journal&result=true&prevSearch=%2Bauthorsfield%3A%28Yurdakul%2C+G%C3%B6k%C3%A7e%29

European Migration Law and Practice between Imagination, Integration and Exclusion

Documents

Transcript of European Migration Law and Practice between Imagination, Integration and Exclusion