Pre-1973 developments in labour migration

At a time when the labour necessary for sustained economic growth was no longer available in the domestic market, the demands o f the employers for the importation o f cheap and flexible labour were supported by the state through a laissez faire admission policy combined with regulations facilitating the rotation o f the foreign work force (Leitner 1987: 73).

Increasing numbers of Turkish workers entered West Germany in the late 1960s and early 1970s. By 1972 Turks were the largest immigrant group in the FRG (see Korte 1985: 32-33, table 2-1). Their presence in the FRG is neither the result o f random events nor the outcome of strictly private decisions but rather the product of policies advanced by officials at the highest level (Mushaben 1985: 127). In Hans-Jochen Vogel's (SPD) statement,

"One must always reiterate to our countrymen why these people are here...They did not come here illegally...and we didn't bring them here out of solidarity or pity for their poor standard o f living in Anatolia."219

218Note that this puzzling situation derives also from the rules for citizenship as Germany applies the principle of ius sanguinis.

219Bendix 1985: 37, quoting Die Neue Gesellschaft (1982), p. 512.

As the volume of labour migration was determined by the requirements of the labour market in the receiving countries, policy was reduced to organising recruitment, transport and social care, and to establishing minimum housing standards (Schiller 1975: 335).

An examination of the recruitment procedure in operation between 1961-1973 in Germany helps to explain the central role played by the Federal Labour Department (Bundesanstalt filr Arbeit) and various priorities of the labour market (see Honekopp and Ullman 1982: 121-122).

The Federal Labour Department with the local employment offices is responsible for the administration of all labour-related matters in Germany. This federal department was in charge of the ‘German Commissions', such as the one established in Istanbul, who served as intermediaries for the local administrative authorities who assumed the major responsibility for recruiting manpower under bilateral agreements.

The prospective German employer initiated the recruitment procedure by notifying the competent employment office of his intention to recruit foreign labour, specifying his requirements with respect to the number o f workers, level of qualification and nationality (anonymous recruitment) (Abadan 1986: 331). The employers’ requests would then be passed on to the Turkish Employment Service, which would then choose a sufficient number of applications from the waiting list. Another method was known as 'nominated recruitment' under which an employer in Germany would file an application for a specific worker who would then be recruited regardless of him having been in the waiting list (Abadan 1986: 331).

The operation o f the recruitment procedure shows that the hiring o f foreign workers depended entirely on economic policy decisions taken by employers (Honekopp and Ullman 1982: 122).

Although, in principle, immigrant workers to Germany were required to get a labour permit and visa before their arrival, in practice this condition was not strictly applied during periods of severe labour shortage. Thus, many Turkish immigrants entered Germany until 1972 on tourist passports and subsequently obtained a work permit after they had found a job (Paine 1974: 69; Miller 1982: 53).

The Recruitment Agreement between the FRG and Turkey in 1961 only laid down rules for the process of recruitment; it was not drafted primarily in recognition of the interests of the Turkish workers in West Germany (Ansay 1991: 834). Another bilateral agreement in 1964 was mainly concerned with the practical issues of retirement and social security benefits for those who had worked in both countries and would retire in Germany or return to the home country.

The German Federal Republic has retained the right to renew or refuse to renew the residence permit o f foreigners. For example, according to Clause 10 of the Agreement with Turkey of 30 October 1961, as amended in 1964, Turkey is supposed to accept their workers back at any time. As a result, the German government had the opportunity to send back foreign worker when it did not need them any more due to possible deteriorating market conditions (Nikolinakos 1971: 81).

The Foreigners Act (.AuslOndergesetz) of 1965220 was not a comprehensive codification of the rights and duties of the aliens. It regulated basically the right of entry, sojourn, deportation and some political rights. In fact, the Foreigners Act of 1965 did not give foreigners a right to residence, merely stating that 'a residence permit may be granted, if it does not harm the interest o f the German Federal Republic1. The official guidelines on how to implement the law stated that:

"Foreigners enjoy all basic rights, except the basic rights of freedom of assembly, freedom of association, freedom o f movement and free choice o f occupation, place o f work and place of education, and protection from extradition abroad".221

In addition to this, the Act had to be completed by rules and regulations or circulars issued by the administrative organs at the Federal level as well as at the state level (Ansay 1991: 835).

220Replaced now by a new Foreigners Act of 1990 in force since 1991.

221 See Castles 1985: 522, quoting Allgemeine Verwaltungsvorschrift zur Ausfuhrung des Auslandergesetzes. para. 6.

Some of these circulars were known neither to the public nor even to lawyers (Hailbronner 1989: 35). Further the Foreigners Act o f 1965, promulgated in conjunction with the Promotion of Labour Act (Arbeitsfdrderungsgesetz) of 1969, offered ground rules, but no definition o f guestworkers’ formal legal status (Mushaben 1985: 127).

Considerable discretion is given to the administrative authorities in granting and renewing work and residence permits. While foreign workers have equal rights de ju re under the labour and social security laws, this does not necessarily imply de facto equality since they can be denied renewal of their work and residence permit for reasons that can appear to be ad hoc or arbitrary (Leitner 1987: 77). According to section 2 o f the Foreigners Act o f 1965, the officials can only grant or extend the residence permit if the foreigner’s presence does not injure the interests of the Federal Republic of Germany. When an alternative law was proposed in 1970 in order to change the Auslandergesetz, Hans Dietrich Genscher, then the Minister of the Interior, refused it on the grounds that it was too favourable to foreigners, because in his view "it is not only the right but the duty of the German Parliament to first serve its own people” (Stange 1973: 3).

The determination of what those interests include and what that prejudice means remains solely at die decision of the individual executive (O’Brien 1988: 116; Bendix 1985: 37). If a foreign worker referred expressly to the entitlement to residence in pursuit of Para 8 of the Foreigners Act of 1965, he was usually informed that this entitlement was subject to the limitation that the interests of the state will not be jeopardised (Franz 1975: 54). Accordingly, when a Turkish worker wished to remain another six years after nine years residence in order to complete the minimum social insurance contribution period, such jeopardy was deemed to exist.222 It should be noted, nevertheless that

"While relatively few migrants seem to have directly lost work and residency authorisation because permits were not renewed, the threat of non-renewal weighed heavily on short-term workers, and the resulting uncertainty contributed

222Bundesverwaltungsgericht (BVerwG), Case IB 51. 72 (20 August 1972).

to decisions by many such workers to return to their country o f origin" (Miller and Martin 1982: 26).

The return movement of Turkish workers prior to 1973 has perhaps been influenced by such uncertainty as well as the dissatisfaction of some returnees concerning their expectations from life in Germany.