Desis in Deutschland / 'Foreigner Policy' and Applied Law in Germany

1. Introduction

"International relations can be strained in a particular manner when citizens of developing countries are naturalised. These countries make a stay in the federal territory possible for their citizens for education and training purposes in order to get them trained to be specialists and managers. Here they are provided with school, university and research places as well as apprenticeships and places for practical training. With this personal development aid the Federal Republic of Germany contributes to the world wide measures of development politics. This is true also when the trainee does not receive financial education aids (scholarships, grants, loans) beyond this.

The intended success can only be achieved if this person returns after finishing the education or training to his home country and participates there in its development. The naturalisation of members of developing countries who have experienced in the federal territory or another industrial country an education or training in the bounds of personal development aid should thus be avoided." (5.2.1. EinbürgRiLi/ own translation)

In 1998 despite the presence of more than 7 million 'foreigners' in Germany, the German state and thus also its population adhered still to the idea of a homogenous white Germany which is no Einwanderungsland (land of immigration - see 2.3. EinbürgRiLi ). §1 Abs.2 AuslG defined anybody who has not got the German citizenship as Ausländer (foreigner) thus using a term which literally stands in contrast to Inländer (resident in a country) to refer not only to those resident outside Germany but also to most of the ethnic minorities living in the country. The law, accordingly, suggests both to 'Germans' and 'foreigners' that the latter do not really belong to the country and thus need a special treatment. This distinction is further strengthened by the German concept of citizenship which is based on ius sanguinis (§4 RuStAG), i.e. the idea that one can belong to the German Volk (people) only if one descends from Germans. The law of the country has, accordingly, always made the process of naturalisation for people of other ancestry very difficult and tedious. As the above quote from the Einbürgerungsrichtlinien (rules for naturalisation) illustrates this is particularly the case for migrants from the developing world.

While there has, thus, been in Germany a general dislike for immigration, the extent to which it is allowed and accepted by the state and the population depends very much on the current economic situation. During the 'economic miracle' in the 50s and 60s there was such a lack of qualified labourers that Germany was happy to receive many people from abroad. It not only recruited the mostly unskilled Gastarbeiter from the Mediterranean countries, but also welcomed many young men (and a few women) from all around the world at German universities and provided many of these with scholarships and grants. The opportunity to get further education in Germany was seized by many South Asians, who came to get away from a tense labour market situation on the sub-continent and to get to know the world. Both for the migrants and the German state the belief was that the former would come for some time to study and work and would then return to their country of origin. In fact, any other plan would have been in opposition to the German imagination of not being an Einwanderungsland. If anybody at that time, however, had thought about the dynamics of migration, it would have been clear that neither all the Gastarbeiter nor all the students would leave the country again after they had spent a considerable part of their formative years there. Given that university studies in Germany last several years without there being a definite time of ending, it is not surprising that many of the South Asian students became increasingly adjusted to living abroad and started to form families at their place of residence. As many of the wives were German, the longing for a return to South Asia lost in urgency and the roots for South Asian communities in Germany were laid.

In the 70s when the South Asian students had completed their studies, were in their first employments in Germany, when their first children had been born and the state got more restrictive in its application of the laws made for 'foreigners', many of the migrants thought about applying for the German citizenship. The latter was particularly appealing to physicians as the employment situation for non-German physicians became increasingly tense. Applications for naturalisation, however, were generally countered by the German administration by reference to the state's interest in development politics and its obligation to prevent a brain drain from the developing world. It was argued that given this hurdle the only way to become German was to pay back all scholarships and grants received from German bodies during the studies, as they had been given as a part of development policy. Although a clause to that effect had not been part of most of the contracts entered in by the South Asian students, most who wanted to become Germans and were faced by this demand of the German authorities did not see any alternative, gave in and paid back. There were, however, a few student migrants (not only South Asians) who questioned the validity of the claim and went to court. Despite the fierce resistance of the German administration and government, some did not give in after the first defeats, battled for years using all possibilities of the appeal system, going up and down the court hierarchy.

One of them was an initially young Indian who had applied for German citizenship in 1970 and finally got it in 1987 without being anymore required to pay back the money he had received in the course of his studies. Together with another case which was decided by the Bundesverwaltungsgericht (the highest court for administrative law) on the same day, his case thus set a precedent forcing the German administration to change its approach concerning applications for naturalisation by former students from developing countries. This case will in this essay be taken to illustrate the kind of arguments and methods used to prevent the naturalisation of (South Asian) student migrants and to investigate how the applied law has been used in Germany for the purpose of Ausländerpolitik (foreigner politics). In order to do this first of all a brief description of the history of the case will be given, before then the case's arguments and methods are analysed and finally major features of this case and the implicit agenda of the administration will be discussed.

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© Urmila Goel, / englishDesis in Deutschland/ Recht/ naturalisation 1998/2004