Hyperactivity of the Legislator Creates Fragmentation of Asylum and Residency Law
Asylum and residency laws have been changed more frequently in the space of just a few years than almost any other area of legislation in Germany. Since 2015, the Residence Act alone has undergone 40 amendments, some of them with extensive changes. In a new publication, Dr. Constantin Hruschka and Tim Rohmann, researchers on asylum and migration law at the Max Planck Institute for Social Law and Social Policy, certify hyperactivity to the legislator that not only implies serious negative effects on the functioning of the protection system as a whole, but also infringe some of the standards set out in European law. For example, it is not compatible with Article 21 of the EU Charter of Fundamental Rights, which prohibits discrimination on the basis of nationality, to exclude nationals of a safe country of origin from the German labor market, as provided for in § 61 para 1 cl.2 no. 3 of the Asylum Act.
The study was conducted within the framework of the scientific initiative "The Challenges of Migration, Integration and Exclusion", which was launched by the Max Planck Society in 2017. With the help of the analysis of legislative texts and parliamentary debates, the two legal scholars found that the lively legislative activity is primarily due to increasing political and public pressure in the migration debate. Even the justifications for the laws amended take up the general public debate on asylum and the crisis logic contained therein. The significant decline in the number of asylum applications since 2017, however, has not led to an easing of the situation. The focus of asylum and migration legislation merely shifted from resolving an acute factual reception crisis to overcoming a (perceived) crisis of the rule of law.
Legislative hyperactivity resulted in a fragmentation of migration law that unsettles not only refugees, but also the implementing authorities. "When one no longer knows what the legal situation is, one has a tendency to make decisions simply by gut feeling, and this can be observed according to our research," explains Hruschka in an interview with the radio station BR. As a result, the uniform application of existing norms is hindered and migrants are partially excluded from access to basic rights. It is to be feared that further ad hoc legislative measures will increase fragmentation and exacerbate existing inconsistencies.
What is needed, however, is an evidence-based, comprehensive reform of the regulatory system in order to bring the national legal situation back into harmony with higher-ranking law and at the same time establish a manageable, transparent system in asylum and residency law.
Interview with the radio station "Bayerischer Rundfunk" for its broadcast "Politik und Hintergrund" from August 14, 2020 (minutes 3:03 - 9:37; in German)
"Ad-Hoc-Reparaturbetrieb statt kohärenter Rechtsrahmen: das Geordnete-Rückkehr-Gesetz": Further contribution on the topic by Dr. Constantin Hruschka on verfassungsblog.de (21 May 2019; in German)