Between inclusion and exclusion: Tolerated migrants in Germany

Gianna Eckert is a PhD student at the University of Bristol Law School. Her research investigates the regulations and policies applicable to migrants whose removal cannot be enforced due to persisting legal and practical barriers. Focusing on the UK and Germany, her PhD project explores how both countries manage cases in which removal has been de facto or de jure suspended. This blog post is based on Gianna’s masters dissertation, for which she was awarded the runner up prize of the Border Criminologies Dissertation competition.

In 2022, around 247.670 ‘tolerated’ migrants lived in Germany. Many have spent years in toleration, shaped by high levels of uncertainty and precarity.

My research examines the migration control logics underpinning Germany’s statutory toleration system, highlighting its biopolitical dimension and governmental effects. In particular, my findings illustrate the ways in which the toleration system contributes to the systematic marginalisation of tolerated migrants in an attempt to curb their settlement efforts. Promisingly, recently introduced legislation might offer thousands of migrants a way out of chronical instability associated with the toleration status. 

Germany’s statutory toleration system and impeded removals

In principle, tolerated migrants are subject to removal proceedings, as they do not hold a legal right to remain in the country (having had, for example, their asylum claims rejected).

Yet, authorities struggle to enforce their removal due to persisting legal or practical issues. While legal barriers often relate to the risk of refoulement, illness or the preservation of family unity, deportation is most commonly impeded by practical issues, particularly missing identity documents. In reality, though, a high number of cases involve a complex combination of multiple factors, which go beyond the simplified categorisation of circumstances within or outside of migrants’ control.

In cases of barred removal, migrants are typically granted ‘tolerated stay’ (also known as a ‘Duldung’), which temporarily suspends removal proceedings and absolves them of criminal liability for irregular residence. Moreover, the toleration certificate affords migrants access to various public services, including healthcare and basic financial subsistence means, thus protecting them from destitution. After three months of toleration, migrants may also be granted permission to work provided certain conditions are met.

However, from a legal perspective the toleration status does not amount to a fully-fledged residency permit: tolerated migrants continue to be considered as residing irregularly in the country and remain obliged to leave on their own terms, as the toleration certificate merely confirms that the authorities are aware of the barrier to removal. In fact, removal may be enforced as soon as the impediment ceases to exist — in some instances without the need for authorities to give any further notice following the revocation of the toleration certificate.

Issued for periods varying between three to six months, the toleration certificate — in theory — constitutes a short-term measure bridging the gap until the barrier to removal is cleared. Yet, in practice, ‘chain tolerations’ (where short-term toleration certificates are consecutively renewed) are no longer the exception: according to recent figures from 2022, around 136.000 individuals have held their toleration status for at least five years.

Long-term toleration and the enduring sense of ‘deportability’ have a profound impact on tolerated migrants and their families, as their status does not necessarily guarantee a future in Germany. Indeed, several cases of tolerated families facing sudden removal after years of living in Germany have been documented.

Moreover, the ‘official-yet-irregular’ toleration status imposes certain restrictions on migrants. For instance, tolerated migrants may be required to live within a in a predetermined area and remain mostly excluded from language and integration classes. During the first 15 months of their toleration, access to healthcare is limited to emergency care and essential treatment. Equally, their subsistence payments are reduced to a minimum and more severe restrictions may be applied to tolerated migrants suspected of obstructing their own removal.

The biopolitical governmentality of statutory toleration in Germany

My research investigates the governance rationalities of the ‘janus-faced’ toleration system, which on the one hand secures migrants’ basic rights, yet simultaneously denies them legal residency. Inspired by critical political theory on tolerance, I approach the practice of toleration as an instrument of power and minimalist biopolitical governmentality.   

My findings illustrate that the toleration system effectuates a biopolitical structuring of migrants’ lives through the provision of ‘minimalist care’, which brings migrants within the purview of authorities. In this way, tolerated migrants may be provided with the bare necessities required for physical survival, yet also remain confined to the position of the ‘merely tolerated’ through the very status that ensures their subsistence. Their inclusion remains incomplete and tolerated migrants are forced into a precarious position of dependency.

This dynamic not only allows authorities to assert control over them, but also produces disciplinary effects. In particular, the very attempt to exercise their rights confronts tolerated migrants with a sense of being ‘unwanted’, thereby reinforcing their marginalised position as the ‘merely tolerated’.

As the barrier to removal persists, these governance rationalities are designed to hinder migrants’ settlement efforts beyond the period of suspended removal. This dynamic is particularly accentuated in the case of migrants suspected of obstructing their own removal, who may be subject to further sanctions (i.e., exclusion from the labour market and regularisation). In the absence of direct enforcement options, such tactics are deployed to indirectly influence migrants’ decision-making about voluntary return, while regularisation remains reserved for individuals deemed more cooperative.

A paradigm shift? Regularisation options for tolerated migrants

Since completion of this project in 2021, regularisation pathways for long-term tolerated migrants have undergone a number of changes. 

The first regularisation mechanism for tolerated migrants was introduced in 2011 and initially targeted young individuals, who have spent at least six years in toleration. Four years later this option was expanded to adult migrants, who have held their toleration status for at least six or eight years (depending on whether they have children or not). Nonetheless, a high number of migrants have become trapped in ‘chain tolerations’, struggling to meet the conditions required for regularisation. Difficulties in procuring new identity documents (in some instances due to a lack of cooperation from embassy staff) meant that some tolerated migrants could not benefit from these regulations.

New legislation, which entered into force at the beginning of this year, sets out to address the issue of ‘chain tolerations’ by adopting a novel approach. In addition to reducing the qualifying residence period needed for regularisation, the legislation’s key contribution is the creation of the ‘opportunity residence permit’, valid for 18 months. Tolerated migrants, who can prove five years of uninterrupted tolerated residence by 31st October 2022, will be eligible for it and are not required to provide a passport or establish their identity at this stage.

During these 18 months of ‘probationary’ residence migrants will be able to work, pursue education and join integration and language classes. The expectation articulated in the legislation is for migrants to use this window of opportunity and the enhanced stability to fulfil the missing requirements needed for longer-term regularisation. In particular, migrants are expected to also make progress in obtaining identification documents, while they are protected from removal. Those who achieve economic self-sufficiency, can demonstrate a certain level of language mastery and provide proof of their identity will be able to transition into long-term regularisation by the end of the 18 months. Individuals, who fail to satisfy these requirements within this timeframe, will fall back into toleration and may be deported, if the barrier to removal has since been cleared.

Further research will need to evaluate whether this new policy proves workable in practice. Critics have pointed out that this legislation may not solve the problem of people caught in ‘chain tolerations’ in the long-term, given the legislation is subject to a sunset clause and excludes anyone, who completed their five-year residence period after the deadline (31st October 2022).

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