9. Germany’s ‘Atypical’ Leadership in the EU Migration System of Governance and its Normative Dimension

For a thorough presentation of the concepts and rules underlying Germany’s immigration and asylum policy, see ‘Definitions and legislative frameworks of Germany’s migration policy’, see Antonio Zotti 2019.

The strict implementation, in the early post-World War II period, of the newly-founded international regime of human rights protection also reflected the Federal Republic of Germany’s status as a quasi-sovereign state, which at the same time entailed (temporary and partial) ‘tutelage’ by the western international system, and an avant-garde position within the liberal international order. See Lucarelli (2020).

Respectively, COUNCIL DIRECTIVE 2009/50/EC of 25 May 2009 on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment, and COUNCIL DIRECTIVE 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third-country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted.

Palmowski (2008) dismisses the traditional idea that Germany’s jus sanguinis-based citizenship policy and laws, even after the end of the Third Reich, have been intrinsically related to ethnicity, as a reflection of a distinctive political and cultural tradition. The author points out that both in the nineteenth century and after World War II German conceptions of citizenships were never too far from those of other states in Europe.

Bundesamt für Migration und Flüchtinge, Fachkräfteeinwanderungsgesetz. Available at https://​www.​bamf.​de/​SharedDocs/​Meldungen/​DE/​2020/​20200301-am-fachkraefteeinwa​nderungsgesetz.​html.

The situation did not significantly change when the European Agenda on Migration of 2015 developed the so-called hotspot approach, which allowed the creation of a number of centres, located on EU external borders, where the registration, identification, fingerprinting and debriefing of asylum seekers takes place. If the asylum seekers refuse to be identified, they are transferred in the CIE in order to be identified and returned to their country of origin. Greece and Italy are the EU Member States where the hotspot approach has been implemented during the last years (Open Migration 2020).

The ‘safe third country’ concept is based on a strict and heavily criticized interpretation of Art. 31(1) of the Geneva Refugee Convention, which excludes asylum seekers from penalization for entering the territory of a state unlawfully when coming ›directly‹ from a territory where they face persecution (Roman/Baird/Radcliffe 2016). The safety of the country to which a refugee is returned is necessary if it is to fulfill the protection standards of the Refugee Convention and the European Convention on Human Rights (ECHR). This principle has been transposed into EU law in the EU Asylum Procedures Directive, which puts common procedures for EU Member States in place for granting and withdrawing international protection. Art. 33(2)(c) stipulates that a claim for international protection does not need to be considered on its merits and may be considered inadmissible if a country that is not a Member State (third country) is considered to be a safe third country (Gkliati 2017). Germany’s reaction to the massive surge in human movements in the 2010s also contained a strong external dimension. In order to curtail asylum demands, lawmakers declared Balkan countries ‘safe states’ and made an unsuccessful attempt to do the same with Morocco, Algeria and Tunisia.

The EU and Turkey agreed to re-energize the accession procedure by opening additional negotiation chapters and accelerating the process of visa liberalization (aiming to reach conclusion by October 2016). The agreement also included the establishment of the (initially 3 billion euro) EU-funded Refugee Facility for Turkey, preparations for upgrading the Customs Union and engagement in high-level dialogues at ministerial and governmental level in various strategic policy areas.

Piattoni (2009) calls this alternative regulatory strategy ‘blurring’: distributing risks and responsibilities among socio-spatial levels—an approach that interlinks peripheral levels—especially governments of Member States, non- and quasi-Member States (i.e. EU candidate states, closely associated and neighbouring states) because ‘the centre’ (i.e. the EU level of governance) can no longer sustain the more ‘vertical’ structure of the system of governance.

The EU allotted 6 billion euros to help Turkey provide temporary protection for Syrians. The non-agreement also prescribed that Turkey enhance measures to prevent the opening and use of new sea or land routes for irregular migration, provided an additional 3 billion euros towards the Refugee Facility for Turkey and called for the improvement of humanitarian conditions inside Syria; on the other hand, the acceleration of the visa liberalization procedure was confirmed and the re-opening of accession negotiations envisaged.

The Council’s two decisions (taken by qualified majority voting) on relocating a mere total of 160,000 asylum seekers were voted down by the Czech Republic, Slovakia, Hungary and Romania. As an effect of the failure to apply the quota system, the Czech Republic, Hungary and Poland were referred to the Court of Justice of the EU (CJEU) together for ‘non-compliance with their legal obligations’ on relocation. Slovakia was let off because of the relocation of 16 people.