Creating Legal Pathways to Reduce Irregular Migration? What We Can Learn from Germany's "Western Balkan Regulation"

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The arrival of over 1 million people in Europe in 2015 and the sense of crisis it provoked have renewed debates on appropriate ways to establish a more orderly migration management system. How can we ensure pathways are available for those in genuine need of protection, while reducing the number of migrants arriving irregularly? “Legal pathways” are often presented as an essential tool toward this end. In 2015, Germany created such legal pathways in the form of access to the German labor market in a little known, and almost accidental migration policy experiment: the Western Balkan Regulation. Against the backdrop of large numbers of people arriving in Germany from the six Western Balkan states (Albania, Bosnia and Herzegovina, Kosovo, Montenegro, Macedonia and Serbia) who had almost no chance of receiving asylum and then from 2015 the sudden increase of Syrians and others coming through the Balkan route, the regulation was part of a broader initiative in Berlin to reduce the numbers of people seeking asylum. The regulation, also known as section 26.2 (§26.2) of the employment regulation (Beschäftigungsverordnung), essentially opened the labor market for nationals from the six Western Balkan countries, without, more surprisingly, including any minimum skill or qualification requirements. The only pre-requisite was a valid job offer by an employer in Germany, subject to a standard priority check for third country nationals.

The Western Balkan Regulation is now being invoked by some German politicians as a success and a model to apply to other countries and regions, such as North Africa, when it comes to migration management and irregular migration. These references often imply that creating legal pathways is an effective component of reducing irregular migration, in that it somehow “re-routes” part of it to legal channels – channels that are simultaneously in line with labor market needs. There are others who offer a more critical perspective and do not support the continuation of the regulation after 2020 or beyond the Western Balkans. Although the number of asylum applications from the Western Balkans did drop after the regulation, it is not clear how big of a role the new process played – nor is it certain what labor market consequences the regulation may have in the medium or longer term.

While the policy environment at the time was so complex that one cannot credibly single out the exact effect the Western Balkan Regulation had on reducing irregular migration from the region to Germany specifically, it is nonetheless a unique migration policy experiment from which important lessons can be drawn, lessons that are even more relevant as policy makers are considering using the regulation as a model for other regions or countries going forward.

Findings and Lessons from the Western Balkan Regulation

• Since the regulation entered into force, over 117,123 valid work contracts for applicants from the Western Balkans were submitted and approved under §26.2 in 2016-17 by the Federal Employment Agency (Bundesagentur für Arbeit); of these 44,093 received visas for work during the same time period. This coincided with a significant drop of asylum seekers from the region of over 90%, from the height of 120,882 first time asylum applications in 2015, to 34,360 in 2016, to 10,915 in 2017.

• However, as the regulation was only one of many policy measures at the time, including many restrictive measures and faster processing times of asylum applications as well as the “closure” of the Western Balkan route, it is not possible to isolate the exact causal role the Western Balkan Regulation may have played. It is plausible that it contributed.

• Of the work contracts submitted for pre-approval under the regulation, for 2016-17, 51% were in the “Helper” (Helfer) category (unskilled or low skilled) 46% skilled (Fachkräfte). In 2017, the plurality, or 42%, of pre-approvals were in the construction sector; hospitality and the health care sector were the other biggest fields.

• The regulation was born out of a grand political bargain between different political parties. It was pushed by Germany’s more liberal parties, as part of negotiations on two asylum packages containing largely restrictive measures towards asylum seekers, and discussions on designating Albania, Kosovo and Montenegro “safe countries of origin.” This resulted in an unclear migration policy logic regarding how exactly the regulation would potentially influence migration to Germany from the region and which people exactly the regulation was intended for.

• The implementation suffered from process issues related to the initial set up, and underdefined responsibilities between different agencies, for instance between embassies, the employment agency, the foreigner’s office or German customs. This, in turn, has given rise to concerns about alleged misuse of the regulation.

• There were no monitoring or information collection mechanisms built into the process that could have provided valuable data for evaluation. Improving this would be important to address worries of misuse and to provide more insights for future policies.

• There was not a clear communication strategy toward or in the Western Balkan countries, and some policymakers in these countries did not even know the regulation existed. The lack of official or proactive communication also left space for dubious information from local recruiters and informal networks.

• There were significant differences between the six Western Balkan countries. This indicates that many different variables are at play. One crucial variable is diaspora networks, which play a role in communication and contract facilitation, and thus should be considered in the crafting of policy.

Our conclusion is that there are key factors that should be addressed and analyzed in greater detail for any future policy that seeks to draw on or use the Western Balkan Regulation as model. These include:

1. Apply a clearer policy logic on how exactly “legal pathways” will address a given migration policy goal. Is it a foreign policy logic needed to ease return and deportation policies with countries of origin? Is it to “re-route” irregular migration from a country or region to regular channels? Is it based on real demands of the labor market? A demographic argument?

2. There is no “one size fits all approach” when transferring this model. Rather, depending on the country, different factors regarding the labor market, diaspora ties etc. will influence how any regulation plays out in practice.

3. Improve coordination processes and adapt mandates of various government agencies in order to maintain the credibility of legal immigration channels. This includes establishing better cooperation mechanisms between German embassies, the employment agency, the foreigners office, and customs, among others.

4. Consider labor market and development implications both in Germany and the country of origin, for example regarding brain drain in certain sectors, or implications for the low skilled labor market in Germany.

5. Develop a systematic communication strategy, in order to limit misinformation or rumors spread by, say, dubious recruitment agencies, and to better manage expectations of individuals and governments in partner countries.

At a time when Germany is reordering both its asylum and immigration laws and systems, the lessons from the Western Balkan Regulation can offer valuable insights, also as Germany and Europe are shifting their focus toward partnerships with African countries on the management of migration. This is particularly important as the general assumption remains in place that legal pathways are at least a partial but crucial component in managing irregular migration.^[1]