Participants' Reports

Germany’s citizenship policy is often assumed to be ethnically-based and fundamentally exclusive, arising from a long ethno-cultural tradition. This argumentation is generally based upon an analysis of the legal status of two distinct populations: that of ethnic German migrants from Central and Eastern Europe and the former Soviet Union “returning” to Germany, or Aussiedler, as well as that of non-citizens resident in Germany. The mere presence of the Aussiedler policy in Germany is seen as indicating an integral reliance upon ethnicity as a key factor, if not the key factor, in determining inclusion in German society. This paper will argue that the Aussiedler policy is not, however, an ethnically-based policy, but was an outcome of the Cold War; in other words, it was an ideologically-based policy rather than an ethnic one.

There are two sets of Acts, or laws, which are relevant for this analysis. First is the set of Acts regulating German citizenship, first and foremost the Reichs- und Staatsangehörigkeitsgesetz (RuStaG) of 1913 (Imperial and State Citizenship Act), most recently and most significantly amended in 1999, coming into effect 1 January 2000, with the new name of Staatsangehörigkeitsgesetz, or Citizenship Act. Between 1913 and 2000, there were numerous additions, amendments and revisions to the Act. The second set of Acts are those regulating Aussiedler migration to Germany, of which the most significant is the 1953 Bundesvertriebenen- und Flüchtlingsgesetz (BVFG), or Federal Expellees and Refugees Act, amended as the Kriegsfolgenbereinigungsgesetz (KFbG) in 1992, or Act Dealing with the Consequences of the War, coming into effect 1 January 1993. I believe it can be shown that the laws maintained or passed during the Cold War, as well as their application, reflect a reliance upon an ideology which was intended to undermine Communism rather than further German ethno-nationalism.

Aussiedler migration and integration not only raise questions as to the widely assumed restrictive nature of German citizenship, but as to the nature of citizenship more generally. Emphasis is often placed upon the possession of the passport as the solution to any problems which immigrants to a new country may have. In other words, the argument goes, a liberal naturalization policy would smooth immigrants’ path to integration, while a more conservative one, such as Germany’s (prior to reforms in 1990, 1993 and 2000), results in the marginalization of immigrants. However, while it is certainly true that the passport permits an individual to participate in formal political activities, it appears that the significance of the passport has been over-estimated. In one strand of research, researchers study migrant (non-citizen resident) communities and show that, although they are marginalized in the formal political system, migrants are involved in substantive political activities, such as strikes, petitions and collective bargaining. My work supports these arguments, but studies another group of migrants – those I have called "immigrant citizens" – namely Aussiedler, who do have German citizenship, but who are nonetheless migrants. I argue that these migrants are, to a large extent, marginalized in German society because of their poor command of German, their lacking educational background and their unfamiliarity with German culture, society, educational system, and so forth. None of these factors is immediately resolved by the possession of a German passport.

This paper explores these two aspects of citizenship, outlining the legal and political steps in the development of Aussiedler policy, as well as discussing the post-Cold War developments in the same policy. The final conclusion of this analysis is that German citizenship policy is not now, and was not in the past, an ethnically based one. A secondary analysis is more broadly applicable and is not limited to Germany: that of the decreasing importance of the passport, or of formal citizenship. As noted here, the increasing involvement of non-citizens in substantive aspects of society is one means of measuring the decreasing significance of the passport. However, an investigation of the involvement and integration of immigrant citizens is perhaps an even more meaningful measure. These two aspects of citizenship policy, taken together, indicate that German citizenship is not the exclusive and ethnically-based policy which it is often seen to be.

Privileging Laws

The German Aussiedler policy, primarily based upon Article 116 of the Basic Law, can, I believe, be clearly established to be dependent upon anti-Communist ideological considerations, as were many aspects of migration policy throughout Europe: according to Dietrich Thränhardt, “In the decades before 1989, an important part of the migration agenda was driven largely by ideology” (Thränhardt 1996a, 13). The less-quoted but equally valid Paragraph 2 of Article 116 also offers German citizenship to individuals and their descendants stripped of German citizenship between 30 January 1933 and 8 May 1945 for political, racial or religious reasons and who returned to Germany after the end of the war. More recently, as of 1990, Soviet Jews are permitted to migrate to Germany where they receive widespread benefits including language training, welfare payments, job re-training and access to German citizenship (Harris 1997).

During the Cold War, all citizens of the German Democratic Republic were seen as citizens of the Federal Republic of Germany. Any East German who managed to arrive in West Germany was welcomed and immediately given West German citizenship; about 22,000 did so annually between 1961 and 1988. Likewise, anyone suffering persecution at home could come to Germany under its liberal asylum law, also enshrined in the constitution, as Article 16 of the Basic Law, which was judged to be the most liberal in all of Western Europe. The ca. 16,000 asylum applications made in West Germany annually between 1953 and 1989 were primarily from Eastern Europe, with high points corresponding to political crises in Hungary (1956) and Czechoslovakia (1968). Until the early 1980s, the recognition rate for these asylum seekers was quite high. None of these policies was questioned. When some twelve million Germans were expelled from Poland and Czechoslovakia (eight million settled in West Germany, four in East Germany), while the immediate situation was quite difficult both for the expellees and the indigenous Germans, the policy of accepting the Germans who had been expelled because of their German ethnicity has also not been questioned internationally. The acceptance of the expellees was a reactive decision – reacting to Stalin’s and the Allies’ actions.

The Aussiedler policy, then, which was developed to permit Germans to “return” from Central and Eastern Europe and the Soviet Union, among other things, to include Germans who might have escaped expulsion, should be seen as one of a number of measures intended to provide an escape from Communism and not any particular ethnically-based policy. As such, the Aussiedler policy should have begun to wind down with the end of the Cold War, which it has. This section will now explore the legal bases for the Aussiedler policy, showing its development throughout the Cold War and after the Cold War.

1913 Imperial and State Citizenship Act

The law which is most relevant for an analysis of German citizenship policy is the 1913 citizenship law (RuStaG), which represented the first time there was a single German citizenship law. Prior to the passage of this law, each German state (of which there were many) had its own citizenship law. Citizenship was based upon residence in a city, which in turn meant citizenship in a state. As citizenship was based upon residence, if a citizen chose to leave, or was forced to leave, the city of which he was a citizen, other cities (and states) were under no obligation to naturalize him or to support him financially. Since poor relief was under municipal jurisdiction, this principle had particularly catastrophic results for those individuals on poor relief.

The introduction of the principle of descent – still independent from ethnicity – in German citizenship law was based upon the need to clarify inclusion and belonging to avoid the problems of those on poor relief. The principle of descent was first introduced in the 1842 Gesetz über die Erwerbung und den Verlust der Eigenschaft als preußischer Untertan sowie über den Eintritt in fremde Staatsdienste, or Law Regarding the Acquisition and Loss of the Status as Prussian Subject as well as the Entry into the Service of Foreign Governments. Paragraph 2 stated that any child born to a Prussian citizen received Prussian citizenship (Franz 1992, 238). Ethnicity is not mentioned.

The principle of descent was taken up by the 1870 Northern German Confederation’s Gesetz über die Erwerbung und den Verlust der Bundes- und Staatsangehörigkeit, which again included the term “loss of citizenship” in its name: Act Regarding the Acquisition and Loss of Confederation and State Citizenship. Paragraph 21 of this Act stated that any German who remained abroad for a continuous period of ten years automatically lost his citizenship, which, in addition to internal migration, in this most intense period of emigration to the United States, was significant. Citizenship was not yet regarded as a status that, once achieved, remained permanent, as it is in the German Basic Law and the Constitutions or legal codes of most other states. Thus, at the time of German unification in 1871,[1] losing one’s citizenship for a German was seen as the greater problem to be addressed than was the naturalization of foreigners.

The 1913 RuStaG then addressed these issues, codifying the principle of passing citizenship on by descent, by jus sanguinis, of which a precise translation is law of the blood. It is from this term that the misnomer of Germany having a “blood-based citizenship law” and the mistaken belief that only those with “German blood” are permitted to become German citizens have arisen. At the time of the law, all those who were citizens, often of French or of Polish origin, were included, and their German citizenship was passed along to their children. Jus sanguinis simply refers to the attribution of citizenship by parentage, i.e. children born to German citizens are themselves German citizens.[2] The 1913 law should, more properly, be called one of descent. According to the 1913 law, children adopted by German parents were also granted German citizenship, as were any abandoned children of unknown parentage, thus indicating that inclusion was a more important concept than exclusion.

The 1913 law did, however, also include a relatively conservative naturalization policy, i.e. one that, while it provided for naturalization, also included no right to naturalization, and was generally discretionary. Anyone who had served for one year in the German army or navy, however, had a right to naturalization (§ 12). While the citizenship of “former Germans” could (discretionary clause, the same as for naturalizations) be reinstated (§ 13), far more paragraphs (§§ 17- 29) referred to the different reasons for the loss of citizenship. Thus, loss of citizenship, as in the 1842 and 1870 laws, was maintained. Paragraphs also addressed the re-acquisition of citizenship for “former Germans” who may have lost their citizenship, i.e. the problem that arose under the 1842 and 1870 laws. The naturalization of non-Germans was simply not a priority, while the exclusion of undesirable foreigners appears to have been a low priority. At the time, any woman marrying a German automatically became a German citizen, and thus their children as well. Emigration and internal migration was a more immediate problem/issue than immigration.

The question then arises of why the RuStaG was maintained for nearly one hundred years. First, in the German legal tradition, it is more common to maintain laws with substantial revisions rather than to remove one law from the books and replace it with another. Even the so-called “new citizenship law” which took effect in 2000 is not, in fact, a new law, but rather the 1913 RuStaG with substantial revisions, including a change of name (not the first time a law’s name has been changed). Second, to underscore the decision not to legitimize East Germany as a state, the 1913 RuStaG was never replaced: as long as the Federal Republic never created its own citizenship law, even after the Federal Republic recognized the existence of a second state in Germany, the 1913 law was regarded as the legal basis for a single German citizenship, including East Germany. Consequently, East Germany could not claim that its citizens were not eligible for West German citizenship. All East Germans fleeing to West Germany were granted citizenship; indeed, they were seen as West German citizens. The 1913 law had been equally applicable in the territory of East Germany and of West Germany prior to World War II and, not replaced by any subsequent law, remained applicable. This maintenance of the RuStaG is more accurately seen as a means of protecting the 16 million Germans living behind the Iron Curtain in East Germany and was a statement against Communism and against the division of Germany. The German Basic Law (Grundgesetz), established in 1949, was intentionally not called a Constitution for the same reasons, thus emphasizing that the division of Germany was temporary; a Constitution would be passed when Germany was united.[3]

The Division of the Cold War: The Ethnicization of German Citizenship

Until World War II, German citizenship was based purely on the 1913 German citizenship law (RuStaG). As noted above, this law is one of descent, or jus sanguinis, but does not draw upon a specific ethnically-based status. Nonetheless, the RuStaG is often mistakenly seen as creating a highly exclusive and ethnically-based German citizenship. While the RuStaG cannot be said to play this role, two key events during World War II, however, did have the effect of ethnicizing German citizenship:[4] Stalin feared that the ethnic Germans resident in Russia since the eighteenth century might be loyal to Hitler when Hitler invaded Russia in 1941. Accordingly, Stalin ordered 500,000 ethnic Germans deported eastward to Kazakhstan and Siberia purely on the basis of their German ethnicity, where they remained in internment camps until 1956. At the Potsdam Conference in July 1945, a decision by the Allies to expel Germans, westward this time, was again made on the basis of ethnicity.[5] In both cases, the Germans were expelled purely on the basis of their German ethnicity.

These two events played a large role in the inclusion of ethnicity per se in laws affecting West German citizenship: German ethnicity was introduced in these laws so as to ensure the inclusion of all those affected by deportation and expulsion. The most significant of these legal or constitutional provisions, what I have called “privileging laws,” are: Article 116, Paragraph 1 of the Basic Law (Grundgesetz; 1949); the Federal Expellees and Refugees Act (Bundesvertriebenen und -Flüchtlingsgesetz, or BVFG, 1953); and the Act Regulating Questions of Citizenship (Gesetz zur Regelung von Fragen der Staatsangehörigkeit, or StaReG, 1955). These laws were crafted to include the expellees in post-war Germany and to provide options for the estimated three to four million ethnic Germans remaining in Eastern Europe and the Soviet Union. The BVFG was also the law which explicitly included and provided for the 16 million Germans in East Germany, as identified in §3 "Refugees from the Soviet Zone of Occupation."

Having some form of special provision for particular groups of migrants is not unusual: most countries with a history of colonialism, in particular Britain, France and the Netherlands, do so. All three of these countries had, and to some extent, still have, privileged entry for individuals from former (or current, in the case of the Netherlands Antilles) colonies. Aussiedler have been regarded as representing the last remnant of Germany's colonies. Arriving late in the race for colonies, Germany did not achieve the wide holdings of Britain, France, the Netherlands or Belgium, but instead spread its cultural sphere eastward into Eastern and Central Europe and Russia as German settlers moved eastward (Bade 1992). Aussiedler today are the descendants of these German settlers (indeed, “Aussiedler” means “out-settler”, or one returning from settlement). The case of the pieds-noirs, or French settlers in Algeria, in France is perhaps the most comparable with the Aussiedler policy. After France’s pull-out of Algeria in 1962, hundreds of thousands of pieds-noirs left Algeria, followed by significant numbers of Algerians.

Article 116

In the wake of the 1945-1949 expulsions, the citizenship status of the eight million expellees in West Germany was legally unclear. Some were Polish or Czech citizens while others were German citizens, meaning that their legal status was by no means uniform, and was to some extent ambiguous. Article 116, Paragraph 1 of the Basic Law clearly included expellees as full members in the German polity (See Table 1), setting expellees equal to indigenous Germans with no legal differentiation between indigenous Germans and expellees. To assure the legal equality of the expellees, the phrase deutsche Volkszugehörigkeit, roughly translated as "(German) ethnicity," but literally meaning "belonging to a people," was explicitly introduced into the text of Article 116 (Parlamentarischer Rat, Hauptausschuß; 19 January 1949, 45th session, 596). The addition of this phrase to the constitutional provisions, clearly intended to ensure the inclusion of all expellees, is a direct result of Stalin's and the Allies' use of German ethnicity as the determining factor for deportation and expulsion.

The growing ideological conflict of the Cold War also played a key role in Germany's policy toward ethnic Germans in the East Bloc, as reflected in these legal texts. Some three to four million ethnic Germans remained in Eastern and Central Europe after the expulsions.[6] An additional 16 million ethnic Germans also resided in the Communist Bloc, in East Germany. West German parliamentarians felt that both these groups of Germans were owed a special debt, particularly as they continued to suffer ethnically-based discrimination within the East Bloc. Consequently, West Germany provided a safe welcome to all of these ethnic Germans as a means of registering political protest against the East Bloc. Similarly, West Germany chose not to acknowledge the East German state out of pure political considerations. As noted above, the 1913 RuStaG was never altered to underscore this decision. The status of ethnic Germans in the East Bloc is codified in Article 116 as well as in the second, more extensive legal text relevant for post-war citizenship developments, the BVFG.

While the 1949 Basic Law (Art. 116) had established that expellees were full German citizens and, as such, subject to all rights, obligations and privileges of German citizenship, the Basic Law did not address the issue of integration. Article 119 of the Basic Law clearly provides the basis for additional legislation, stating that “...the Federal Government may, with the consent of the Bundesrat, issue regulations having the force of law, pending the settlement of the matter [of expellee integration and distribution among the Länder] by federal legislation.” The BVFG served many purposes in one, providing for the integration of the expellees – an important task, as one in five Germans in post-war Germany was an expellee – as well as the continued acceptance of (including the granting of West German citizenship to) ethnic Germans remaining in Central and Eastern Europe and refugees from East Germany. The BVFG fulfilled this role and was in force until 1993, when it was replaced by the Act Dealing with the Consequences of the War (Kriegsfolgenbereinigungsgesetz, or KfbG).

In broad overview, laws were passed during the Cold War which enabled Aussiedler – originally those who were left in Eastern Europe after the post-war expulsions as well as other Germans, including the East Germans – to come into the Federal Republic of Germany and claim a passport. Essentially, it was feared that Communist regimes would harm Germans because of their implied, although seldom actual, link to Hitler and Fascism. Thus, these laws enabled them, in theory, to come to Germany and benefit from a variety of integration assistance, including language training and certain subsidies. It was only as the Cold War ended that Aussiedler were actually able to come to Germany (prior to the fall of Communism, they were essentially not permitted to leave their homes in Central and Eastern Europe, except for certain periods of eased exit restrictions, hence the question “was the door ever open”?).

Federal Expellees and Refugees Act, 1953

This Act established a legal basis for the integration and equality of the expellees in all spheres – economic, professional, social, educational and residential. Their integration was to be aided where necessary, even if it appeared that expellees were privileged over native Germans.[7] One of the means of aiding the expellees was to distribute them more evenly throughout Germany. This distribution would be fully voluntary (§27) and was intended to help them find housing and jobs in the destroyed Federal Republic. Expellees were explicitly set equal to native Germans in all Sozialversicherung (social insurance) issues; pensions, unemployment and health insurance were to be paid as if the expellees had been born and had worked in the Federal Republic. Explicit means of integration, such as language courses or job retraining programs, were not emphasized. Rather, emphasis was placed on equal representation of expellees in all spheres of German society. Ultimately successful in promoting integration, the BVFG provided a legal framework which enabled the expellees to take control of their own future.

Provisions for the continued acceptance of Aussiedler and refugees from East Germany, again reflecting West Germany's political positioning during the Cold War, were contained in the BVFG. Again, in reaction to expulsion and discrimination, the term Volkszugehörigkeit figures more prominently in the BVFG than it did in the Basic Law, even being explicitly defined (§ 6). This definition of German ethnicity which, it is important to note, is a purely legal definition and is not an ethnological concept, provides a clear legal basis for the acceptance of ethnic Germans who had been targeted on the very basis of their ethnicity. The Basic Law merely provided the basis for a new clause of citizenship in the Federal Republic, whereas the BVFG specifically addressed the integration of the expellees and acceptance of ethnic Germans.

Act Regulating Questions of Citizenship, 1955

The 1955 Gesetz zur Regelung von Fragen der Staatsangehörigkeit (Act Regulating Questions of Citizenship) explicitly draws on Article 116 of the Basic Law, stating that "whoever is a German in the sense of Article 116 without being a German citizen must be naturalized upon his application," unless his naturalization would compromise the domestic or external security of the Federal Republic (§6). German law distinguishes between two types of naturalization: Ermessenseinbürgerung, or discretionary naturalization, and Anspruchseinbürgerung, a legal right to naturalization. The 1955 StaReG indicates that Germans in the sense of Article 116 have a right to naturalization with the use of the phrase "must be naturalized." Together with two later amendments, the StaReG is the last of the post-war regulations that explicitly include the post-war expellees and ethnic Germans remaining in the East Bloc.

Aussiedler: Continued Acceptance

The conclusion of the expulsion measures in 1949 was accompanied by a change in terminology: ethnic Germans coming to Germany after 1950 were no longer referred to as "Vertriebene," or expellees, but rather "Aussiedler." It is important to note here that "Aussiedler" indicates a special legal status rather than being a collective term for ethnic German migrants. The continued acceptance of Aussiedler after 1950 can be seen as arising from two causes: first, it was an after-effect of the expulsions – it provided an option for those left behind – and, second, as discussed above, was an ideologically-determined provision. The BVFG regulations for Aussiedler were largely instituted to ensure that any Germans remaining under Communist governments would have the legal right to be accepted in the Federal Republic as German citizens. The ideological, i.e. anti-Communist, nature of this policy is supported by the countries from which ethnic Germans could come to Germany and be accepted as Aussiedler: Albania and, after 1957, China, were also included, with their very few German settlers, while countries such as Brazil, Argentina, the United States or Canada, all countries with significant German populations, were not. Although the term "expellee" was no longer used, the assumption continued to be that Aussiedler were leaving their homes in Central and Eastern Europe involuntarily, as a result of ethnically-based pressure to immigrate, or Vertreibungsdruck.[8] Averaging about 36,000 per year from 1950 to 1986, the immediate post-war Aussiedler migration flow was clearly, from a numbers perspective, secondary to the eight million expellees who settled in West Germany within the four immediate post-war years. The legal framework accepting and incorporating Aussiedler into Germany was seen as an important tool in regulating treatment of ethnic German minorities in Central and Eastern Europe, also as a means of placing pressure upon Central and Eastern European governments, and shifted accordingly over the decades since World War II.

Contrary to popular opinion, the basis for acceptance as an Aussiedler in Germany is not German ethnicity per se, but is, as noted above, rather Vertreibungsdruck arising as a result of German ethnicity. Thus, the potential Aussiedler must have seen himself in his home as a German, represented himself as a German to others and, as a direct result, have suffered ethnically-based discrimination. This distinction is the basis for requiring Aussiedler to show that they have maintained German linguistic, cultural and/or social elements.

Until the late 1970s, ethnically-based discrimination was generally taken for granted by the German authorities. Thus, during the height of the Cold War, ethnicity and ethnically-based discrimination, despite the legal distinction, were essentially synonymous; any ethnic German from the East Bloc could be virtually guaranteed admission as an Aussiedler. As we will see, however, this equation did not persist in post-Cold War Germany. The necessary "subjective acknowledgment of belonging to the German Volk," (Bekenntnis zum deutschen Volkstum, as required in §6 of the BVFG) has always required certain "objective characteristics," such as the following: German descent, language, upbringing or culture (as expressed in the retention of certain German dishes, songs, fairy tales or religious practices). Until the late 1970s, this requirement was interpreted rather loosely. Ethnically-based discrimination was taken for granted. In general, documents showing German descent were regarded as sufficient and knowledge of the German language was not required.[9] The courts and other relevant authorities saw the situation in the following light: one of the distinguishing characteristics of the ethnically-based discrimination in Central and Eastern Europe was that Germans, as part of the forced assimilation policy of the Central and Eastern European governments, were not permitted to speak German. Consequently, therefore, it was not reasonable to ask that they be conversant in German.

Starting in the late 1970s, however, the situation shifted somewhat, not owing to any change in the laws, but rather to court decisions altering the interpretation of the relevant laws in reaction to changes in the political landscape. Rather than Vertreibungsdruck being taken for granted in all situations, certain factors were now regarded as a refutation of Vertreibungsdruck. These included an active turning away from German Volkstum, a high-level political or professional employment which implied supporting the (Communist) political system, and an application for asylum in Germany that would imply a reason for migrating to Germany, such as economic, other than ethnically-based discrimination. In other words, as the war and its consequences, such as discrimination against Germans in Eastern and Central Europe, declined in importance, the policy became more stringent as well.

When Gorbachev came to power in the Soviet Union in 1985, the political landscape of Eastern and Central Europe began to change even more. In recognition of this shift in the poles of the Cold War, the German Federal Administrative Court decided in 1986 that there could be exceptions to the rule: the legislature should develop new regulations to adapt to the new political developments. However, in practice, the policy was the following: if the investigating authorities could not explicitly disprove the assumed Vertreibungsdruck, then the potential Aussiedler had to be accepted into Germany. Thus, the burden of proof lay on the side of the German government, and the Aussiedler policy continued to be relatively generous until the passage of a revised BVFG in 1992, the Act Dealing with the Consequences of the War.

Post-Cold War De-Ethnicization of German Citizenship:
Restricting Laws

The first part of this paper analyzed the legal framework which permitted Aussiedler to “return” to Germany, arguing that these laws were put in place for ideological reasons rather than ethnic ones. For the logic of this argumentation to hold, it would mean that, as the ideological polarization of the Cold War began to break down, the ideologically-based policies should have done so as well. As noted above, even by the 1970s and certainly by Gorbachev’s entry on to the scene, this process had already begun.

As emigration restrictions were eased in Central and Eastern Europe in the late 1980s, the Aussiedler migration flow rose correspondingly steeply (see figure below). On a purely practical level, it is certainly true that West Germany was simply not equipped to accept the nearly 380,000 Aussiedler who arrived in 1989 and the 400,000 Aussiedler who arrived in 1990 (together making up about 2% of the then ca. 62,000,000 strong West German population). In addition, as Eastern and Central Europe opened up, the situation for ethnic minorities improved and opportunities for ethnic Germans to remain in their homes increased. Germany and the Soviet Union signed a bilateral agreement which also provided for the protection of ethnic minorities in 1990, Germany and Poland signed a similar

agreement in 1991, and Germany and Romania, Hungary and the Czech and Slovak Republics did so in 1992. However, Aussiedler policy could not be abolished completely: domestic considerations played a large role in maintaining the Aussiedler regulations: not only did conservative factions still believe in the concept of protecting co-ethnics, but the post-war expellees, who supported the maintenance of the Aussiedler policy, still exercise a certain amount of power within Germany.[10]

Thus, starting in 1989, a series of laws were passed which began to control and restrict the acceptance and integration of Aussiedler without wholly abolishing the practice. Discussed here are the laws which affect actual entry to Germany as well as immediate acceptance. The restrictions in benefits, which are also considerable, are not discussed here.

Residence Assignment Act, 1989

The Wohnortzuweisungsgesetz (Residence Assignment Act, WoZuG) of 1989 called for the even distribution of Aussiedler (and East German Übersiedler) within West Germany according to a quota system (later expanded to the new federal states of the former East Germany). Each federal state (Land) receives a percentage of Aussiedler based upon area and population; the quota is based upon the same key used to determine how many asylum seekers should go to each federal state. The states are then responsible for distributing the Aussiedler evenly within each state. Unlike the distribution of expellees, this distribution is not voluntary, nor were any Aussiedler consulted about the impending legislation. Initially valid for three years, this law was intended to lessen the impact of Aussiedler migration on any particular federal state and applied to all Aussiedler reliant upon any form of public assistance (this applies to nearly all Aussiedler immediately after arrival in Germany, when the law is applied). Aussiedler were required to stay in the federal state to which they were assigned for a period of two years, unless they could demonstrate they had a job, apprenticeship or were accepted as a student elsewhere. Aussiedler migration had concentrated primarily in Lower Saxony, Northrhine-Westphalia, Baden Württemberg and Bavaria, due to family-determined network migration.

Aussiedler Acceptance Law, 1990

The Aussiedleraufnahmegesetz (AAG) (Aussiedler Acceptance Law) of 1990 shifted part of the burden of determining Aussiedler status outside the borders of Germany. As of 1990, potential Aussiedler were required to fill out a form establishing both information about the applicant and their families. Information was collected on family members’ birthdates, places of birth, place of residence later in life, "nationality," including the nationality entered in the domestic Soviet passport and maintenance of German language and customs. Applicants were also asked to provide information on German language knowledge. Which languages were spoken at home: German, Russian, other? At what age did the applicant start speaking German? From whom did the applicant learn German: the mother, father, grandmother, grandfather or other relative? How often (never, seldom, often, exclusively) were the following languages currently spoken by the applicant: German, Russian, other? How well does the applicant understand German (not at all, little, almost everything, everything)? How well does the applicant speak German (not at all, only single words, enough for a simple conversation, fluently)? Does the applicant write German (yes, no)?¹⁹The application is handed in at a German consulate in the country of origin, then forwarded on to Germany for the decision-making process, which can take three or more years.

The AAG also introduced a test of language ability in a brief oral exam consisting of a simple conversation upon arrival in Germany. If it appeared that the potential Aussiedler had misrepresented his German abilities in the application form, he could be denied entry and returned to his country of origin.[11] Precisely these cases have become quite problematic, as many Aussiedler sell all their goods in their home countries, and a return would be devastating. This is one issue which the Commissioner of Aussiedler Affairs is attempting to resolve. The introduction of the AAG and the application proved effective immediately; the numbers of Aussiedler dropped from nearly 400,000 in 1990 to around 222,000 in 1991 (see figure above). From 1990 on, ethnic Germans who migrated to Germany on tourist visas, rather than follow the prescribed path, forfeited their Aussiedler status.

Act Dealing with the Consequences of the War, 1992

The passage of the Act Dealing with the Consequences of the War (KFbG) in 1992 as part of the so-called asylum compromise marks the end of the era of loose regulations on Aussiedler admission. The asylum compromise of 1992 refers to the concession of the political left to restrict the right to asylum (amendment of Article 16 Basic Law) and the concession of the political right to restrict Aussiedler migration (passage of KFbG). With the passage of this act, only ethnic Germans from the former Soviet Union may, as a general rule, take advantage of Aussiedler status. They are the only ones said to still be suffering under Vertreibungsdruck; all others must prove explicitly that they still suffer ethnically-based discrimination or the after-effects of earlier such discrimination (in 2002, only 829 of the 91,416 Aussiedler did not come from the former Soviet Union). Ethnically-based discrimination is no longer taken for granted, and is certainly no longer synonymous with ethnicity; after the change of law in 1992, all ethnic Germans from the former Soviet Union are not eligible for Aussiedler status. In a significant procedural change, the KfbG now specifically lists bases for exclusion from Aussiedler status (§5), such as having abused a high position, having supported Nazism or worked in a job which was of significance to upholding the Communist system, or have shared a household for more than three years with someone who had done so. These grounds of exclusion are clearly based upon the same anti-Communist ideology which has informed the whole policy. The KFbG also sets an end to Aussiedler migration, stating that those who were born after 1992 may not enter as Aussiedler after 2010, although they may enter as family members.

Language Tests, 1996

In June 1996, language tests, administered in the country of origin before the submission of the application, were formally introduced as a means of testing German abilities, thus shifting yet another part of the application process outside Germany. The

language test is administered by a civil servant who starts with a relaxed conversation and then moves to the actual test. According to the Bundesverwaltungsamt, "the applicant must be capable of carrying on a conversation about the simple facts of daily life." The conversation could be about professional life in Kazakhstan or the life of a German in the former Soviet Union and may be either in high German or in dialect. The questions are not rote questions, but are improvised by the examiner for each case, meaning that the test can be made more difficult as time goes by, resulting in fewer Aussiedler applications without a further change in law. The examiner writes down what questions were posed, whether the applicant understood the question, and whether the question was answered in high German, dialect or in Russian. While passing the language test does not guarantee admission as an Aussiedler, passing the test is required for entry.

Partially explained by the increase in mixed German-Russian marriages, the German language competence of the post-Cold War Aussiedler is at a much lower level than that of their predecessors. Thus, these tests are a means of ensuring that ethnic Germans have the linguistic tools to ease their integration into contemporary German society. A Federal Administrative Court decision in November 1996 lent extra support to this decision, declaring that ethnicity or descent alone does not suffice for claiming Aussiedler status; some basic grasp of the German language must also persist. The institution of language tests can be interpreted as testing for integration capacity. The emphasis once placed on language as a carrier of identity has shifted to an emphasis on the significance of language for integration and communication; as the figure above shows, the percentage of those passing the tests has decreased from a high of 69.3% in 1996, when the test was not yet fully obligatory, to 44.0% in 2002.

Residence Assignment Act Revisited

By the late 1990s, it became apparent that the 1989 Wohnortzuweisungsgesetz (extended in 1992 until 1995) was not working according to plan; Aussiedler would be assigned to a federal state, but promptly move to, for instance, Lower Saxony to be near family or friends. Accordingly, a new version of the WoZuG was passed in 1996 which linked social services to place of residence. For two years after entry to Germany, the Aussiedler must remain in the federal state of assignment, or must forfeit all social services such as language courses, welfare, unemployment benefits, job retraining programs, etc. In 1997 (under the Kohl government), the restriction on movement was no longer limited to two years, but was in place indefinitely, and the law was extended to 2007. In 2000 (under the Schröder government), a three-year limitation was put in place and the law was extended to 31 December 2009. Since the majority of Aussiedler are on some form of public assistance during their first two years, this act has been successful in ensuring that Aussiedler remain in the assigned federal state, thus evening out the burden on the states.

However, this act clearly restricts the freedom of movement of the Aussiedler (this restriction is acknowledged in the Act itself). Article 11, paragraph 1 of the Basic Law states that “all Germans have the right to move freely throughout the federal territory”. Paragraph 2 goes on to say that this right may be restricted by a law and “only where a person does not have a sufficient livelihood and his or her freedom of movement would be a considerable burden on the community” or where such a restriction is necessary to avoid danger to the existence of Germany or a federal state, or to prevent a natural disaster, epidemic etc. In other words, not every restriction of freedom of movement is a violation of this right. The WoZuG does draw upon this language, stating that the law is intended to achieve a “sufficient livelihood” for Aussiedler.

Another Article of the Basic Law also comes into play here, however, namely Article 3, or “Equality before the law”. Paragraph 1 states that “all people are equal before the law” while paragraph 3 states that “nobody shall be prejudiced or favored because of their … national or social origin,” which in this case could apply to Aussiedler. Advocates of the Act could point out that not all Aussiedler are targeted, but only those on some form of social assistance (although, in practice, this applies to nearly all Aussiedler for at least their initial period in Germany, by which point they have often settled down in one place). There is no such restriction on other German recipients of social assistance; indeed, §107 of the Bundessozialhilfegesetz (Federal Social Assistance Act) states that, in the case that an individual on social assistance moves, the previous office is responsible to continue paying, if it becomes necessary within the first month after the move. It is certainly true that the logistics involved in applying this to large numbers of Aussiedler would be staggering. However, if this were the case, then it would appear that the WoZuG was not put into place to aid the Aussiedler, but to solve some logistical issues for German bureaucracy. Ultimately, there remain some serious question marks about the WoZuG's constitutionality.

Revision to the Citizenship Law

Parallel to the changes in Aussiedler policy, significant changes were also occurring in policy affecting non-citizen residents in Germany. The 1990 revision of the Foreigners' Law, followed by a 1993 government decree, had the effect of making naturalization for those aged 16 to 23 essentially automatic upon application: eight years' residence and six years' attendance in German schools are the basic requirements for youth naturalization. For adults to naturalize, until 1 January 2000, a ten-year waiting requirement was still required for discretionary naturalization, and fifteen for a right to naturalization. The 1999 citizenship law reduces to eight years the requirement for a right to naturalization as well as introducing limited jus soli, whereby a child born to foreign parents (of whom at least one has lived in Germany for eight years and has had an unlimited right of residence for three years) receives German citizenship, but would have to choose by age 23 between the German citizenship and that of his parents. Thus, German citizenship approaches the most liberal states in the European Union and surpasses the most conservative.

Conclusion

What I have called “restricting laws” clearly indicate that not only was Aussiedler migration restricted after the end of the Cold War, but, in terms of internal treatment, in particular in assignment of residence, Aussiedler are treated as another category of migrant and not as another category of German citizens; that is to say, not in the way that indigenous Germans are treated. The post-Cold War period has seen many changes in these post-war policies. No longer is the ideology of the Cold War a factor in the admission of Aussiedler or

of refugees from East Germany. The end of the Cold War and German unification not only ended the need for laws granting ethnic Germans from Eastern and Central Europe privileged access to West Germany, but also placed a great amount of stress upon German identity as well as financial strain, creating the need to cut costs where possible. The Aussiedler policy, no longer ideologically defensible, was one of these areas.

Significance of Aussiedler Case for Formal vs. Substantive Citizenship

Aussiedler, then, occupy a somewhat unusual position in Germany; they are, for the most part, the holders of German passports, but are nonetheless migrants. Formal citizenship (possession of the passport) is often assumed to be a strong factor in migrant integration. However, studying the Aussiedler case, it can be stated that, where once membership in the nation-state – formal citizenship – was the crucial determinant for the access to rights and belonging, now substantive citizenship – made up of civil, social and political rights – is the more crucial of the two. Regardless of formal citizenship status, social integration remains a central predictor of a migrant's (or migrant group's) subsequent integration and organization.

The earlier Aussiedler flows – when the average annual migration was around 36,000 annually – were composed mostly (see figure below) of migrants from Poland, whose German language skills were still quite good and whose training was relatively similar to that in Germany. They were able, for the most part, to find jobs and to settle into Germany. As time went on, and the region of origin shifted to the former Soviet Union, training, skills and German language ability were no longer on the same level, and serious problems began to emerge in earnest. Today, Aussiedler migration is essentially restricted to the former SU (in 2002, 99.1%, or 90,587 of the 91,416 Aussiedler, came from the former SU), where restrictions on speaking German were stronger. Indeed, the reason that Aussiedler migration is restricted to this area is precisely because they were discriminated against more strongly. Hence, it makes sense that their German language skills are poorer and that they have less education.

Civil Rights

Every citizen and resident has claim to the same bundle of civil rights (essentially basic human rights). However, these rights must be accompanied by language skills and education for their full exercise. Many Aussiedler are, thus, especially with the worsening language skills of entering Aussiedler, incapable of taking full advantage of these rights. The growth of Aussiedler ghettos has resulted in an increase in criminality among Aussiedler youth, much as American inner-city ghettos produce their own brand of violence.

While the Aussiedler certainly have the formal right to a fair trial, the prejudices in German society against Aussiedler, particularly in areas with high concentrations of Aussiedler, are growing. In terms of equal protection under the law, many Aussiedler are not familiar with the system in Germany, whereas non-citizens resident in Germany have a better chance of knowing the system. Aussiedler are often taken advantage of by people selling completely needless insurance, for instance, or other exploitative measures. Rarely, if ever, do they seek legal redress. Thus, access to justice, and civil rights, is limited because of their unfamiliarity with the system, with the language and with the society. As noted above, the WoZuG may be questioned on the basis of its constitutionality but, it appears, no court case has been brought on this basis. The Aussiedler are beginning to have advocates, largely lawyers who see a potential clientele, and NGOs, although these are still relatively limited. However, as Aussiedler achieve social integration, substantive rights will likely follow.

Social Rights

On the level of social rights, which historically began with the development of community associations and organizations, and later with the development of a welfare state, Aussiedler are also somewhat disadvantaged vis-à-vis those non-citizens who have lived and worked in Germany. Likewise, again unfamiliarity with the educational system means that parents do not always make the best choices for their children’s education, which in turn influences much else. The last aspect of social rights, namely participation in organizations and associations, is mixed in the Aussiedler case. A number of small self-help associations are emerging, and church membership appears to be relatively high. The issue of social isolation, however, remains very problematic, as repeatedly noted by Commissioner of Aussiedler Affairs Jochen Welt: "Do not form ghettos!" This problem must be addressed for the full enjoyment of social rights.

Political Rights

The Aussiedler do have the formal right to vote and to participate in the political process and it does appear, from various micro studies, that Aussiedler do in fact vote. Despite their voting participation, they remain, for the most part, isolated from political life in Germany. As Heisler and Schmitter Heisler have stated,

[a] narrow or even primary focus on participatory rights, particularly voting rights, overlooks crucial aspects of membership in the political community of the modern welfare democracy. Such a focus is, thus, inadequate and may mislead, since it often misses key relationships between the state and its members and among the latter (Heisler and Schmitter Heisler 1991, 95).

Heisler and Schmitter Heisler refer here to the substantive citizenship of non-citizens, but this concept is equally applicable to the Aussiedler. If we place our focus on voting rights, the Aussiedler are politically integrated. However, the Turks – just about as numerous in Germany as Aussiedler[12] – have a higher representation than the Aussiedler in the European Parliament (currently two German MEPs of Turkish origin and 1 of Greek origin), the German Parliament (currently two MPs of Turkish origin), at the state level and even on the local level, which is the only level where Aussiedler are represented. It is important to note here that, while there are two million Turkish non-German citizens in Germany, many of them were born in Germany and, thus, have a greater chance of being well-integrated into the socio-economic sphere and polity than do the newly-arrived Aussiedler. So, even though the

Aussiedler exercise the right to vote, they do not exercise the passive voting right – the right to be elected. Furthermore, they do not, following Heisler and Schmitter Heisler, exercise many other aspects of membership in the political community in a way that other minority and non-citizen groups in Germany do with demonstrations, strikes, etc.

Unemployment

With respect to specific issues, which in turn have an impact upon the general civil, social and political rights outlined above, Aussiedler are disadvantaged. The majority of Aussiedler had a German passport, yet many are unemployed; of the 95,000 who came to Germany in 2002, just 54,000 were of working age. Of the 41,000 who were not of working age or who are not in the work force for some other reason, some 1500 have finished school, but have no further plans. In 2002, some 16,000 Aussiedler were in language courses, and about 60,000 were unemployed. Unemployment statistics for Aussiedler are only calculated for five years after migration. So, taking the total number of those of working age from the previous five years, we can calculate, for 2002, an unemployment rate of 19.9 per cent for Aussiedler. For Germans in the former East Germany, the unemployment rate was

19.5%, for non-citizen residents in Germany it was 19.1% and for Germans overall it was 10.8 per cent. Aussiedler thus have the highest unemployment rate. If those participating in language courses are taken out of the calculation, the figure goes to 21.6 per cent. None of these figures include those who are doing short-term work, part-time work or participating in make-work schemes. Any of these calculations results in Aussiedler having a higher unemployment rate than non-citizens. However, there are essentially no statistics available after the first five years. It is clear that the outlook is particularly grim for those who migrated to Germany shortly before the age at which required schooling ends.

Education

In Germany, young people are required to go to school only until the age of 15, so the most at-risk group, according to social workers, is the group of teenagers who migrated to Germany when aged from about 13 to 17; those who were too young to be able to choose to stay, but too old to benefit from years of the German educational system. Instead, these young people – who are often somewhat unhappy with the family’s decision to leave for Germany – are not required to attend school, or are required to do so only for one or two years, and are consequently not able to compete in the labor market with native German youth or non-citizen youth who have attended German schools since childhood.

Aussiedler Migration vs. Development of Naturalization

In terms of the development of numbers, it is often said that Germany permits more Aussiedler to migrate than non-citizens to naturalize. We must note here that many more non-citizens have always been eligible to naturalize (particularly after reforms to the Foreigners’ Act in 1990 and 1993) than have done so. However, even with that aspect of the situation, in

1998, the point was reached where there were more naturalizations (excluding Aussiedler) than there were Aussiedler migrating to Germany. The decline after 2000 is not, in fact, a decline, but of 2000 was in fact an artificial high, when the newly revised citizenship law was being applied retroactively.

Conclusion

The elements discussed here serve to illustrate the point that German citizenship is, first, not ethnically based, as is often assumed, and that, second, the significance of the passport itself is declining. The decreasing significance of formal citizenship, and the increasing significance of substantive citizenship is, of course, not limited to Germany, but is relevant in many other countries with immigrant populations. In reference to this paper’s title: The door is slamming shut, but was it ever open? The possibility for persons of German origin from the former Soviet Union to “return” to Germany is ever less likely, i.e. the door is slamming shut. But, the question remains, was it ever open? I argue that it never really was significantly open: during the Cold War, Germany’s Aussiedler policy was quite flexible and relaxed, however the Communist countries did not let their citizens travel, so that the 36,000 average number of Aussiedler who came to Germany annually in the years from 1950 to 1986 are a small number of people who managed to enter Germany despite the exit restrictions. When quite significant numbers of Aussiedler started coming to Germany, with 1988 (202,673) the first year with large numbers, as exit restrictions were eased and the Cold War drew to an end, Aussiedler policy, reacting to the change in political constellation, became more restrictive.

In terms of the substantive vs formal citizenship debate, Aussiedler are formal citizens, yet do not exercise these rights fully; nor do they exercise substantive rights, while many non-citizens do so. Integration and inclusion in Germany of Aussiedler has become seen as a significant and problematic issue. There are of course success stories, which are becoming more numerous as more and more integration programs are developed and implemented.

Works Cited

Bade, Klaus J., ed. 1992. Deutsche im Ausland - Fremde in Deutschland: Migration in Geschichte und Gegenwart. München: Beck.

Franz, Fritz. 1992. "Das Prinzip der Abstammung im deutschen Staatsangehörigkeitsrecht." In Rassismus und Migration in Europa. Berlin: Argument.

Harris, Paul. 1997. "The Politics of Reparation and Return: Soviet Jewish and Ethnic German Immigration to the New Germany." Ph.D. diss. Auburn University.

Heisler, Martin O. and Barbara Schmitter Heisler. 1991. "Citizenship - Old, New, and Changing: Inclusion, Exclusion, and Limbo for Ethnic Groups and Migrants in the Modern Democratic State." In Dominant National Cultures and Ethnic Identities, ed. Jürgen Fijalkowski, Hans Merkens, and Folker Schmidt. Berlin: Institut für Allgemeine und Vergleichende Erziehungswissenschaft.

Parlamentarischer Rat. 19 January 1949. Steneographische Berichte über die Verhandlungen im

Ruhrmann, Ulrike. 1994. Reformen zum Recht des Aussiedlerzuzugs. Berlin: Duncker and Humblot.

Thränhardt, Dietrich. 1996a. "Introduction to the Second Edition." In Europe: A New Immigration Continent, ed. Dietrich Thränhardt. Münster: LIT Verlag.

Thränhardt, Dietrich. 1996b, ed. Europe: A New Immigration Continent. Münster: LIT Verlag.

[1] In 1871, the Northern German Confederation (led by Prussia), Hessia, Bavaria, Württemberg and Baden unified to form the German Empire.

[2] This method of attribution of citizenship contrasts to jus soli, wherein those born in a certain country, e.g. the United States, receive the citizenship of that country. The United States, however, which is usually seen as the quintessential jus soli state, also has elements of jus sanguinis; the children of US citizens born abroad are also automatically US citizens.

[3] As history turned out, when German unification did occur, the Basic Law was maintained, largely due to the speed with which unification was carried out.

[4] This paper does not discuss the period of Nazi dictatorship in Germany. It is clear that, during this period, German citizenship most definitely was given a negative ethnic nature, with Jewish Germans being stripped of their citizenship. However, this twelve-year period of history, as significant as it was, does not represent continuity in the development of German citizenship and, as such, is not discussed in this paper.

[5]The Allies, fearing instability and ethnic conflict in Central and Eastern Europe, determined at the Potsdam Conference in July 1945 that the estimated several million ethnic Germans remaining to the east of the four occupied zones of Germany, in Poland, East Prussia and Czechoslovakia were to be expelled in an "orderly and humane fashion" to Germany between 1945 and 1949. The number was underestimated; twelve million ethnic Germans were expelled, eight million to West Germany and four million to East Germany.

[6] Some areas (Romania, Hungary, Soviet Union) were not subject to the widespread expulsions. In addition, a number of ethnic Germans were able to escape expulsion in Poland and Czechoslovakia; those who were of use to the Communist governments, such as as miners or skilled craftsmen, were not permitted to leave, and those who had Polish or Czech spouses could often avoid expulsion.

[7] Among the Bundestag members at the time, great concern was exhibited that the expellees not be treated as second-class citizens in any way. See, e.g. Stenographische Berichte, 12th Session, 20 October 1949, p. 285ff; 250th Session, 25 February 1953, p. 11971ff.

[8] Literally, "expulsion pressure." This term is widely used to mean the ethnically-based discrimination which theoretically made conditions in the country of origin impossible and caused ethnic Germans to return to Germany. Any other reasons for migration were not compatible with Aussiedler status.

[9] Ulrike Ruhrmann, Reformen zum Recht des Aussiedlerzuzugs, Berlin, 1994, p. 108. Romania was an exception to this policy; ethnic Germans were largely permitted to maintain cultural institutions including German-language schools and churches.

[10]The expellees still exercise influence both in the domestic sphere as well as in foreign affairs. Chancellor Kohl's delay in 1990 in officially recognizing the Oder-Neisse border as the final German-Polish border was at least in part driven by the need to keep expellee votes. There are quite a number of German MPs who were expelled as children. German relations with Poland and the Czech Republic are also affected by expellee organization and expression. The forthcoming enlargement of the European Union has been, especially in the case of the Czech Republic, heavily influenced by this debate.

[11] The applicant is, in fact, warned of this possibility on the application form that the permission to settle in Germany can be taken back if it is determined that the information given is untrue or incomplete.

[12]About 2 million Turks live in Germany, while between 1972 and 2000 about 425,000 Turks became naturalized German citizens; about 2.7 million Aussiedler have entered Germany since 1989.

Aussiedler Migration to Germany:

Table of Contents

Aussiedler Migration to Germany:

Questioning the Importance of Citizenship for Integration

Introduction

Privileging Laws

1913 Imperial and State Citizenship Act

The Division of the Cold War: The Ethnicization of German Citizenship

Article 116

Federal Expellees and Refugees Act, 1953

Act Regulating Questions of Citizenship, 1955

Aussiedler: Continued Acceptance

Post-Cold War De-Ethnicization of German Citizenship:
Restricting Laws

Residence Assignment Act, 1989

Aussiedler Acceptance Law, 1990

Act Dealing with the Consequences of the War, 1992

Language Tests, 1996

Residence Assignment Act Revisited

Revision to the Citizenship Law

Conclusion

Significance of Aussiedler Case for Formal vs. Substantive Citizenship

Civil Rights

Social Rights

Political Rights

Unemployment

Education

Aussiedler Migration vs. Development of Naturalization

Conclusion

Works Cited