In 1993 Art. 16 of the German constitution was changed, making the right to asylum to go from a benevolent law to one of the strictest laws in Europe at that time. Is this change a reform or not? Reform is described ”as the fundamental, intended, and enforced change of the policy paradigm and/or organizational structure of (an organization within) a policy sector.”(Bannink&Resodihardjo, 2006, p.4). A clear and needed two-thirds majority of the Federal Council voted in favour of the change to Germany’s constitution concerning the asylum policy. This alteration of the constitution can be recognized as a reform because it is fundamental, clearly intended and an enforced change of a policy paradigm.
Normally, reform is very difficult to achieve because of multiple barriers that stand in its way(Bannink&Resodihardjo, 2006, p.8). So, how can a policy deeply embedded in Germany Constitution and in the public’s eye as compulsory, for almost half a century, suffer such a radical transformation? Before 1993 there was another attempt to change the same article but it failed. Which barriers blocked the first attempt and which were overcome in the second one?
To better understand the concept of reform and its constraints I will investigate this case in order to answer the before mentioned questions. This essay aims to study the factors and agents which facilitated to the constitutional reform of Germany’s asylum policy. In the next section, there will be presented a historical insight of the new and old Article 16. Section three lists the theories that will be used for this case. The fourth section will combine second and third sections to make the case analysis. And the last section will shortly reevaluate and answer the question and subquestion mentioned before.
Before 1993 Germany’s right to asylum guarantee state that „persons persecuted on political grounds shall enjoy the right of asylum.” (GRUNDGESETZ [Germany's Constitution] , art.16). After the war, Germany’s constitution opened the German borders widely for refugees because of their knowledge of the difficulties that the refugees who ran from the Nazi regime faced in obtaining asylum in other countries. For merely half a century article 16 of the Basic Law of the Federal Republic of Germany protected refugees from all over the world. Following this change in Germany’s constitution, over a million refugees looked for asylum in the land from which many had fled between 1918 and 1940 (Lucassen, Feldman, Oltmer, 2006, p. 78-97 p. 116-138).
In October 1991 there was an attempt to reform, but it failed because the opposing political parties did not want to change the asylum policy. Therefore the supporting and opposing sides came to an agreement to find a solution in the existing framework of the constitution. Despite the conflictual opinions between the main political parties towards the asylum issue, the Christian Democratic Union/Christian Social Union (CDU/CSU) coalition continued to negotiate with the Social Democratic Party (SDP). Germany’s political and decision-making structure, a two-thirds majority needed to pass a law, made negotiations unavoidable for the CDU/CSU coalition. After negotiating for months the party leaders came to an agreement in changing the asylum procedure but staying in the existing policy paradigm of the article 16 and not altering the article itself. The compromise which held a radical change for the asylum procedure was named Asylum Acceleration Procedure Law. Before reaching the agreement, CDU/CSU identified the new law as being unsuccessful(Alink, 2006 , p. 73-85). The state politicians from the CDU/CSU did not give true support to the Asylum Acceleration Procedure even if it was backed up by the Free Democratic Party (FDP) and the SDP. The Bavarian Minister of Internal Affairs, Stoiber (CSU) and Prime Minister Teufel (CDU) of Baden-Württemberg state viciously opposed the new law. Both politicians stated clear that, in their opinions, the Asylum Procedure Acceleration Law was „absolutely unrealistic, not to say ridiculous”(Alink, 2006 , p. 73-85). Stoiber said that the law was impractical. Stoiber was sure that the reforming of article 16 is inevitable and wanted to push for change. His view was supported by experts and by the CDU/CSU which saw the law as an illusion(Alink, 2006 , p. 73-85). As a consequence of the reformed asylum procedure, von Niedling (managing director of the Immigration Service), resigned.
After the implementation of the new law, pressure on politicians increased for two reasons: the first one was the failing of the new legislation and the second one was the four-day attacks on asylum seekers in the city of Rostock of right-wing members in August 1992. The incidents in Rostock angered the Germans and led to more attacks throughout Germany(Haas, 2003,p. 186-206 ). Also, German cities had another big problem, poor living conditions and overcrowded reception areas. Furthermore, the asylum seekers number was even higher in 1992 than in 1991. Moreover, as the impact of the procedure turned out to be insignificant, politicians’ criticisms increased and civil protest actions expanded(Alink, 2006 , p. 73-85).At the same time the crisis deepened, discussions about reforming the constitution continued. The implementation of the Asylum Procedure Acceleration Law had failed to stop the crisis.
Succeeding years of debate and conflict about the right for asylum, the two opposing parties in Germany (CDU/CSU and SDP) agreed on reforming Article 16 in a much stricter manner.Even though the new asylum article still holds the right to the asylum, three crucial additions make a big difference in restricting the procedures that deal with requests for asylum. First, the rule of safe third countries bans the entrance of Germany through a member state of the European Union plus refugees who reach Germany can be blocked from the asylum procedure. Second, the rule of safe countries of origin states that asylum seekers who originate from countries in which there is no prosecution going on are also excluded from the asylum procedure. The last added restriction is the airport procedure, which grants processing of asylum requests at the airport. Airports not being German territory means that expulsion is made more easily for those whose applications are rejected (Hailbronner, 1994,p. 160-166).The final result of these restrictions is that obtaining asylum has become more difficult, and ways of appealing it have been diminished and expulsion has become easier.
For a reform to occur it has to overcome barriers which are categorized as opportunity barriers and preference barriers. Opportunity barriers occur when decision-making procedures provide limited opportunities for actors to push for reform. They are composed of the decision-making process, policy inheritance and policy lock-in. The decision-making process disturbs the policy-making process because of the great number of veto points a reform has to go through. Policy inheritance takes form when policies in the past delimit contemporary views. And the policy lock-in effect means that decisions taken by past governments inhibit current competency. Preference barriers hamper reform by producing preferences, norms and values that withstand change. They consist of policy paradigm, status quo, vested interests and when a reform is upsetting and unsettling. Policy paradigm is composed of norms, values and preferences that determine how actors act. The status quo is about actors protecting their status because of the benefits they get in the current paradigm. Vested interests appear when people invest time and resources in obtaining a position or creating a new goal for the organization, and reform would destroy them. The last barrier consists of a reform seen as upsetting and unsettling (Bannink and Resodihardjo, 2006, p. 5-6).