Abstract: With the continuous enlargement of the EuropeanUnion, the EU’s external borders have shifted furthereast with border controls being increasingly moved to these common borders or externalised even further.While the freedom of movement and the possibility tocross internal borders without being controlled is one of thecornerstones of the European Union and allows for a greatermobility of its citizens within the Schengen Area, this mobility is limited for third county nationals wishing to enter the EU. Irregular migration is usually discussed in the context of security policy. This article addresses the question, to what extent does border enforcement affect families and children of irregular migrants in Germany? Looking at the German education system, it shows how internal controls in Germany affect children’s access to education, due to their parents’ fear of contact with the authorities. By excluding these children from educational possibilities and due to the lacking provisions for amnesty or regularisation, these children grow up in a criminalised situation. The article therefore argues that irregular migration is not a one-generation phenomenon and that the situation of these children needs to be addressed by policy-makers.
With the continuous enlargement of the European Union (EU), the EU’s external borders have shifted further east with border controls being increasingly moved to these common borders or externalised even further. While the freedom of movement and the possibility to cross internal borders without being controlled is one of the cornerstones of the European Union and allows greater mobility for its citizens within the Schengen Area, this mobility is limited for third-county nationals wishing to enter the EU. As entering the EU by following the proper legal procedures has become increasingly difficult, third-country nationals are often forced to find ways to cross the borders irregularly. Despite ever more sophisticated border policing equipment, migrants have still found ways to avoid the regular immigration channels and entered the EU clandestinely. Although estimates do exist, due to the hidden nature of the phenomenon, it is impossible to know how many people currently live in the EU or any specific Member State irregularly. This problem is further exacerbated by the number of children who are currently living in the EU irregularly.
The topic of irregular migration only recently emerged in the political debate in European countries. While the issue is usually discussed within a security context or as a threat to welfare systems, its human rights dimension is addressed less frequently. The effects of irregular migration on the migrants themselves, especially their families and children, have so far been largely ignored. Yet, as the Brussels-based Platform for International Cooperation on Undocumented Migrants (PICUM) has pointed out, the children of irregular migrants face a triple vulnerability, first as migrants, second as children, and third due to their irregular status (PICUM 2008: 6). This essay will address the question of how far rigorous border enforcement affects families and children of irregular migrants in Europe. Using the example of Germany, where an elaborate internal control system is being employed to check a foreigner’s migration status, it will show that irregular migration is not a one-generation phenomenon. Looking at the educational system in Germany, this article will demonstrate that children of irregular migrants suffer immensely from their lack of legal status in Germany, which impacts their ability to benefit from their fundamental human rights.
Immigration has long been an especially sensitive topic on the German political agenda and for decades German politicians held on to the mantra that ‘Germany is not a country of immigration’. It was only at the turn of the millennium that German politicians began to face the reality that Germany is indeed home to a considerable foreign population. Considering this reluctance to address even regular migration, it is not surprising that German politicians try to avoid discussing the problem of irregular migration, but trust that the elaborate control system will silently take care of this problem.
In order to better understand this approach to irregular migration, the first part of the essay will address the problem of defining irregular migration and part two will explore the policy responses and the existing system of external and internal controls carried out in Germany. Since the focus will be on the situation of children living irregularly in Germany, emphasis will be on the elaborate internal control system. The impact of these internal controls will then be analysed more closely in the third part of the essay, particularly to understand the extent to which fear of discovery influences children’s access to the educational system.
Defining irregular migration
Although irregular migration has become a highly debated topic in the Member States of the European Union, there is currently no common definition of the term ‘irregular migration’. Numerous national definitions which reflect the diverse legal cultures of the Member States exist (Düvell 2009: 2), based on ‘the unspoken assumption […] that there is no substantive difficulty in defining who is an illegal migrant’ (Guild 2004: 3). Yet according to analysis by the Clandestino project of 12 EU Member States, there are a great variety of ways to define irregular migration (Düvell 2009: 5). ‘Definitions are usually based on a mix of references to irregular border crossing, entry and stay; lack of residence and/or work permits; obligation to leave the territory or violation of expulsion orders’ (Düvell 2009: 6).
Like other national laws, such as the British Immigration Act of 1971, German law does not offer a definition of illegal residence in Germany, but does regulate entry into the country and the conditions for staying there. The regulations are based on the principle that entering the country is illegal unless the permission to do so has been granted explicitly. The Aufenthaltsgesetz (Residence Act) stipulates that foreign nationals need to be in possession of a valid passport or equivalent travel document, as well as an Aufenthaltstitel that allows them to stay in Germany. This is usually issued in the form of visas or residence permits, unless the applicant is an EU citizen or can benefit from bilateral agreements (e.g., the Association Agreement with Turkey). Foreigners who do not possess a residence permit are obliged to leave the country either immediately or within a set period of time and failure to do so makes their stay illegal (Guild 2004: 22; Sinn et al. 2005: 23-24). This corresponds to Baldwin-Edwards’ definition of irregular migration as ‘migration that occurs outside of the legal-institutional framework established by states’ (2008: 1449).
While Baldwin-Edwards’ definition appears rather straightforward, it does not acknowledge the numerous forms irregular migration can take, the various motivations for living in a country irregularly or the experiences of migrants concerned. As Guild points out:
Illegal migration as a concept covers a number of rather different issues. Three are immediately apparent: a foreigner arriving clandestinely on to the territory of a state; a foreigner staying beyond his or her permitted period of entry or residence; a foreigner working when not permitted to do so or in a manner inconsistent with his or her immigration status. These categories are implicit rather than explicitly stated in law. (Guild 2004: 3)
According to the findings of the EU-funded Clandestino project on irregular migration, the most relevant pathway into irregularity is overstaying after entering the EU legally or working and thus breaching immigration regulations, followed by refused asylum seekers who do not return or cannot be returned to their country of origin. Only a small number of irregular migrants enter the EU clandestinely, which is thus ‘the exception rather than the norm’ (Düvell 2009: 2). Since visa overstayers or migrants working in breach of immigration regulations comprise the biggest group of irregular migrants, the issue of working illegally, without a work permit or any form of documentation, is often part of the migration process. Thus irregular migrants are framed as ‘outsiders who have no right to be here’ (Kostakopoulou 2004: 43) and are forced deeper into a situation of illegality, which makes them more vulnerable to exploitation.
Policy responses to irregular migration – a two-tier system of external and internal controls
The discussion of irregular migration has changed immensely in the last decades. During the economic reconstruction and the time of the guest-worker program in the 1960s and 1970s, irregular migrants were – while not openly welcomed – treated in a pragmatic fashion due to the economic need for labour. During the time of the Cold War, the attitude towards irregular migrants changed drastically, which becomes especially apparent regarding the issue of human smuggling, as ‘in the times of the East-West Conflict smuggling sometimes had even positive connotations. It was [even] possible to sue for the agreed smuggling fees’ (Sinn et al. 2005: 29). Only in the late 1980s did the smuggling of migrants become a criminal offence in Western European countries (Sinn et al. 2005: 29), while on the other side of the Iron Curtain ‘its political meaning differ[ed] completely from the western and southern countries, in so far it referred to unlawful and often politically motivated exit and flight from the communist countries’ (Düvell 2009: 2).
Irregular migration only became a security concern in the 1990s, when the ‘opening of the Iron Curtain […] made access to the country via its long “green” border in the east easier’ (Marshall 2000: 28). Simultaneously, the asylum system was closed off as a legal route of entering Germany in reaction to the high influx of asylum seekers from the former Yugoslavian Republic (Marshall 2000: 28). The opening of the Iron Curtain, the reform of the asylum system and the abolition of internal border controls in the EU all coincided in the beginning of the 1990s. This helped to reframe migration as a ‘criminalised threat of illegal migration that was spreading via the proliferation of mafia-like structures and leaking countless “illegal immigrants” into Europe’ (Bade 2001: 66 in Sinn et al. 2005: 30). Thus, migrants became the new threat to Western welfare states and democracies with politicians taking up the challenge to regulate migration ‘in the name of “the defence of society”’ (Bigo 2004: 64).
Since the political debate in Germany focused mainly on the issue of asylum seekers from the former Yugoslavian Republic and German politicians still held on to the mantra that ‘Germany is not a country of immigration’, it was difficult to address the issue of irregular migration in the political debate. It was still perceived as a threat: irregular migrants were criminalised and equated to human smugglers and traffickers and, probably most importantly, immigration policy is an issue on which the political parties in Germany are fundamentally opposed (Sonntag-Wolgast 2006: 128). However, the Council of Europe’s Human Rights Commissioner Hammarberg warned that this policy of criminalisation causes even ‘further stigmatization and marginalization’ (2009: 384). Every attempt to move to a more liberal immigration policy, away from security concerns, has failed due to external events such as the terror attacks of September 11, 2001 (Sonntag-Wolgast 2006: 131). Thus ‘the hallmark of the German [migration] control system is […] [still] its overall negative approach to migration’ (Marshall 2000: 83).
Within the last two decades the situation at the German Eastern border changed dramatically from the impenetrable Iron Curtain to a highly controlled external border of the EU and now – following the EU enlargement of 2004 – an internal European border. Preventing illegal border crossings is, however, still an important task of the sovereign German state. Although the ability to do so has been limited by the abolition of the internal border controls within the EU as well as refugee protection commitments (Marshall 2000: 82), a two-tier system of external and internal controls is used in Germany to prevent unauthorised entry. Using Koser’s ‘typology of state policy instruments to address irregular migration’, external controls consist of pre-frontier measures and measures relating to border management, while internal controls focus on post-entry measures (2005: 14). By using this combination of controls the numbers of irregular migrants is kept low (Marshall 2000: 83).
Following the terrorist attacks of September 11, 2001, the database for visas was extended to not only store information on visas granted but also on refused applications, as well as biometric information in order to prevent the forgery of German visas.
Sinn et al. (2005) list the following practices as part of the external control system. First, access to the territory is controlled through a visa policy that requires nationals from certain countries of origin to obtain a visa before they are allowed to enter the German territory via an official entry point at ports or airports (Marshall 2000: 82). However, since no exit controls are carried out, it is unknown how many migrants decide to overstay their visas. Following the terrorist attacks of September 11, 2001, the database for visas was extended to not only store information on visas granted but also on refused applications, as well as biometric information in order to prevent the forgery of German visas (Sinn et al. 2005: 67-68). Second, the technical equipment of the German border police has become increasingly sophisticated and the number of staff grew quickly, especially in the beginning of the 1990s to stop immigration from the former Soviet states (Marshall 2000: 28; Sinn et al. 2005: 70). Furthermore, the competences of the border police were extended when it was given the authority to carry out controls at transit routes, train stations or airports following the adoption of the counter-terrorism law of 2002. Besides these areas, the regular police force can also carry out ID checks without a prior suspicion, during which the police are required to check the residence status of foreigners (Sinn et al. 2005: 71). Third, while controlling national borders is still the prerogative of the respective national border authorities, many controls have been harmonised between EU Member States and the focus has shifted to policing the EU’s common external borders.
There is a trend to push controls to the external frontiers or externalise them even further (e.g., negotiating readmission agreements with non-EU states or involving airline personnel) (Sinn et al. 2005: 69). An important part of the cooperation on the EU level is the establishment of several databases, such as the Schengen Information System (SIS) that has now entered its second phase (SIS II), the Visa Information System (VIS) and EURODAC, where fingerprints of asylum seekers and irregular migrants are stored (Baumann 2009). Next to these European databases, the Bundeskriminalamt (Federal Criminal Agency) has access to Europol and Interpol (Baumann 2009: 74). Furthermore, several highly specific national databases exist, dealing with, for example, human trafficking, the identification of vehicles or lost and found travel documents (Baumann 2009: 75). Yet, the most important database on foreigners in Germany is the Ausländerzentralregister (AZR, Central Foreigner Register) that is maintained by the Federal Office for Migration and Refugees. This plays an important part in the internal control system, since every foreigner living in Germany regularly has to be registered in it.
These measures are just some examples of the external border control system. German border controls are considered more encompassing than in other EU Member States, however, it is unclear how stricter border controls can reduce irregular border crossings. Several studies have pointed out that ever more sophisticated border control strategies usually result in a movement towards human smuggling.
In order to find migrants who have entered the EU irregularly, Germany has established a close-knit internal control system.
Although external controls are in place and are carried out thoroughly, it is still not possible to prevent all irregular border crossings, which only account for a small portion of irregular migration. In order to find migrants who have entered the EU irregularly, Germany has established a close-knit internal control system. While controls by the border police can be carried out without suspicion, it is this internal control system that sets Germany apart from other European Member States such as the UK (Schönwelder et al. 2006: 39; Sinn et al. 2005: 10). First of all, it is a legal requirement that all German residents have to be able to identify themselves upon request ‘either by passports, ID-Cards or, in the case of certain categories of refugees, by a document certifying that identification has taken place’ (Marshall 2000: 83). While this is an important element of the internal control system, the system especially relies on ‘labour market surveillance and social security checks’ (Marshall 2000: 82) to target irregular migrants who are already present in Germany. Schönwelder et al. point out that while this ‘“highly developed system” of registration and surveillance’ is an important element for internal controls, it is also characterized by the social acceptance and normality of personal identification in Germany” (2006: 39; emphasis added).
Due to the density of these controls and the amount of statistical data that different law enforcement agencies are able to supply, some scholars argue that official statistics are more accurate than in other countries (cf. Heckmann 2004: 1107). Since basically every contact with authorities, banks, employers and even landlords requires some sort of official documentation from the migrant, they are especially vulnerable for exploitation, as they have to rely on people who hire them or rent a flat to them illegally.
An important element of the internal control system for the discovery of irregular migrants are workplace inspections, which have been carried out exclusively by the Principal Customs Offices since 2004 (Schönwelder et al. 2006: 39). Since every employer is required to ask for a national insurance card and social security number as well as an income tax card, it is impossible for irregular migrants to find regular employment. In order to obtain these documents, the residential status is checked by the relevant authorities to ascertain if the foreigner in question is in possession of a work permit (Sinn et al. 2005: 79-80). This exchange of data, as well as the cooperation between different public authorities, is central to the prevention of illegal employment in Germany and the existence of national databases compensates for problems caused by the federal nature of the controls (Sinn et al. 2005: 82-83). Besides the severe consequences that the discovery of illegal employment has on the irregular migrant, employers can also penalised with high fines and possible prosecution. Depending on the severity of the cases and the number of irregular migrants employed the sentences can range between six months to five years and fines can amount to a maximum of 500,000 Euros (Sinn et al. 2005: 84-85). However, these maximum fines are rarely enforced and several studies doubt the effect of these penalties by referring to the comparative advantages of employing migrants illegally (Sinn et al. 2005: 84-85).
The requirement for proper documentation and the density of controls thus contribute to forcing irregular migrants into illegal employment (Schönwelder et al. 2006: 63), which makes them highly vulnerable to exploitation by their employers. The lack of required documentation, however, does not mean that irregular migrants do not have a right to receive wages for their work, but relying on their right to adequate wages would result in their discovery by the authorities (Mitrovic 2009: 214). ‘De facto, it is not possible for persons living illegally to enforce their right for remuneration by relying on the rule of law’ (Borgards 2006: 158).
Finally, next to the ID checks, workplace inspections and employer sanctions, internal controls in Germany rely on an obligation to report that is part of the Aufenthaltsgesetz (Residence Act). While Section 86 (1) and 87 (1) require public institutions to provide the foreigners’ authority with information and the regular or actual place of residence upon request (Sinn et al., 2005: 87), it is Section 87 (2) of the Residence Act that has the most far-reaching consequences. It requires public bodies to notify the foreigners’ authorities once they learn about a foreigner who is present in Germany without a valid residence title or who breaches geographic restrictions of his residence permit.
Thus, all public servants ‘are legally obliged to inform the foreigners’ authorities about the presence of irregular residence, at least if they check documents in the course of their work’ (Vogel 2009: 4). In particular the sentence ‘[…] Public bodies should notify the competent foreigners authority forthwith if, in discharging their duties, they obtain knowledge of special integration needs […]’ has caused a great degree of insecurity among public bodies. Sinn et al. (2005: 87) point out that these public bodies include schools, universities, employment centres, youth welfare offices and the welfare office. Doctors and medical staff have been exempt because medical confidentiality has been found to outrank concerns about irregular status (Deutsches Institut für Menschenrechte, DIMR, 2008: 14). However, there is a widespread uncertainty on whether the obligation to report also applies to the administration of public hospitals (DIMR 2008: 15). Legal uncertainty also exists in the education sector, where the problem is complicated even further by the federal nature of German education policy (Sinn et al. 2005: 89, 101). Furthermore, there is a possibility for prosecution of principals who accept pupils without proper documentation, if it can be argued that the child’s attendance at school facilitates the irregular stay in Germany or if schools repeatedly admit irregular children (Sinn et al. 2005: 103). The obligation to report combined with a threat of prosecution for assisting irregular migrants cause a lot of legal insecurity among professionals working in these fields as well as a fear of discovery among the irregular migrants and their families, which impacts every aspect of their life as the following section will show by focusing on the example of education for irregular children.
The children of irregular migrants and their access to education
While the migration control instruments discussed above target adult migrants, they also have a considerable effect on children within the irregular migration process. As evidence that irregular migration is not a one-generation phenomenon, this section of the essay will address the situation of irregular children by focusing on their access to education. Therefore, the legal framework will be laid out first, to be followed by an analysis of case studies from Munich, Hamburg and Cologne that will address the impact this has on the life of irregular children and their families.
The problems in accessing the right to education have been addressed in a study issued by PICUM in 2008 on the situation of undocumented children in nine European countries, which is one of the most encompassing studies carried out on such children so far. It devotes a whole chapter to the barriers these children experience in different European educational systems and it distinguishes between three groups of countries regarding the right and access to education. First, there are countries with explicit references in their national legislation concerning its application to undocumented children (Belgium, the Netherlands and Italy). The second group focuses on countries where the right to education is implicit in the national legislation and thus also applicable to undocumented children (France, Spain, Poland and the UK). Finally, there is the group of countries in which access to education is dependent on the child having a regular residence permit and thus excludes undocumented children (Hungary and Malta) (PICUM 2008: 16). Using these categories, Germany would belong to the second group of countries, those with an implicit right to education for undocumented children. There are also some striking similarities between the German and Polish systems.
The right to education is a universal human right enshrined in the United Nations’ Universal Declaration of Human Rights from 1948 (Cremer 2009: 6). Since then it has been addressed in several human rights Conventions such as the International Covenant on Economic, Social and Cultural Rights and the Convention for the Rights of the Child (Cremer 2009: 6; Mitrovic 2009: 177-178). The latter, however, has only been ratified in Germany with an added declaration:
Nothing in the Convention may be interpreted as implying that unlawful entry by an alien into the territory of the Federal Republic of Germany or his unlawful stay there is permitted; nor may any provision be interpreted to mean that it restricts the right of the Federal Republic of Germany to pass laws and regulations concerning the entry of aliens and the conditions of their stay or to make a distinction between nationals and aliens. (United Nations 1989)
This reservation restricted the application of the CRC to refugee children. However, following years of lobbying by human rights groups and the German churches in particular, this provision which effectively permitted discrimination against children who are irregularly present in Germany, was finally repealed in 2010. Still, human rights campaigners argue that the Convention of the Rights of the Child is not the only legal basis that provides children of irregular migrants with a right to education. This can also be derived from the United Nations’ International Convention on the Elimination of All Forms of Racial Discrimination or the International Covenant on Economic Social and Cultural Rights mentioned above (Cremer 2009: 9). Mitrovic refers to a study according to which the right to education can also be obtained from the German Basic Law: ‘According to Fischer-Lescano and Löhr […] it is possible to derive the right to education for children without residence right from Articles 1 and 2 in connection with Article 3 of the Basic Law’ (2009: 178). These articles focus on human dignity (Article 1), personal freedoms (Article 2) and equality before the law (Article 3). Hence, German law implicitly grants the right to education to children without a regular resident status, thus falling into the second category of countries identified in the PICUM study.
However, while it has been formally acknowledged that children with an irregular status have a right to education, they still face certain barriers. It can be argued – as e.g. Bommes does – that education is not denied to irregular migrants, but that they ‘exclude themselves from these services’ (Bommes, 2006:111) for fear of discovery of their irregular residence status. They have to decide if sending their children to school is worth the risk of being found out, as this could mean that the ‘the basis for their stay and their life in their host country will be taken away from them’.
Similarly Schönwelder et al. point out that ‘Even if they have no legal status, children have the right to education, although in this case they are not subject to compulsory school attendance’ (2006: 66). While school attendance is compulsory in Germany for all children – including children of asylum seekers as well as unaccompanied minors – it is more complicated for irregular children (Bommes and Wilmes 2007: 93). Due to the federal organisation of Germany there is not one education policy that is applicable everywhere in the country, but education policy is managed by the Länder and each Land addresses the issue of education for irregular children differently. So far only Bavaria and North Rhine-Westphalia have explicitly included irregular children in the requirement for school attendance, while the policy in other Länder is less clear and sometimes relies on a proof of residence that is almost impossible to obtain for irregular migrants (Bundesministerium des Inneren, BMI, 2007: 23-24). This fragmentation of education policy results in a high degree of legal uncertainty and several studies in German cities have shown how inconsistently the education of irregular children is organised (Anderson 2003; Bommes and Wilmes 2007; Mitrovic 2009). According to the interviews carried out by PICUM this is, however, not a uniquely German response, but a problem that has been reported in other countries as well (PICUM 2008).
One especially unclear question concerns the obligation for public school principals and teachers to report irregular migrant children. Different legal interpretations on the applicability of this requirement to public schools already exist and the heterogeneity of regulations and practices within the country additionally complicates the situation (Cremer 2009: 5). Due to the inconsistent assessment of how far public schools are obliged to report irregular migrants, it is usually the responsibility of the schools to decide whether they accept the enrolment of irregular children. Thus it is up to the schools to choose whether to ignore the obligation to report and – by acting in the best interest of the child – risk prosecution for facilitating an irregular migrant’s stay (Sinn et al. 2005: 113). Studies in Munich (Anderson 2003), Hamburg (Mitrovic 2009) and Cologne (Bommes and Wilmes 2007) have all shown that there is a great degree of uncertainty and that even within these cities practices vary considerably depending on the goodwill of the school.
One especially unclear question concerns the obligation for public school principals and teachers to report irregular migrant children.
According to Sinn et al. there are indications that the educational situation of irregular children becomes more difficult as they get older. While the education and care of preschool-age children can be organised either within the personal network or in private kindergartens, parents with children who have reached they age for mandatory school attendance have to decide if they can risk enrolling their children at school and risk discovery of their irregular status (Anderson 2003: 75; Sinn et al. 2005: 114). However, in the case of Cologne, Bommes and Wilmes showed that some migrants rely on kindergartens but that this care is extremely difficult to organise, since irregular children in Germany do not have a right to access to kindergarten. Furthermore, kindergartens require not only the child’s personal details, but also proof of residence, an ID and a registration card as well as a declaration of income to determine the kindergarten fees payable. During the registration process, the information is cross-checked with the city registry. Usually, attempts to get children into kindergarten fail at the first contact, when parents are not able to provide a registered address (BMI 2007: 95-96). Only individual persistence by parents and especially the assistance of committed social workers have shown to have limited success in securing kindergarten placements (Bommes and Wilmes 2007: 96). Mitrovic (2009) confirmed these observations from Cologne for the case of Hamburg as well. Cremer points out that it is currently only possible to properly enrol children at day-care facilities or kindergartens if they live in Germany regularly (2009: 16).
These case studies have shown that enrolling a child with an irregular status in primary school is generally easier; however, there are still numerous challenges and differences between schools. While the Federal Ministry of the Interior assumes that irregular children in North Rhine-Westphalia are included in the mandatory school attendance, insecurity about the obligation to report hinders children’s access to schools (Bommes and Wilmes 2007: 100). In order to address these insecurities the education minister in Hamburg Goetsch clarified that irregular children have a right to education, that these children should be admitted even without a proof of registration and that schools are exempt from reporting the discovery of their irregular status to the relevant authorities, i.e. the foreigners’ office (Mitrovic 2009: 176). However, a great degree of uncertainty still exists with teachers, students and parents with the result that parents often decide not to send their children to school to avoid discovery (Mitrovic 2009: 186). As Cremer points out, children are the ones who suffer most from this situation, although they were not involved in the decision to migrate to Germany or to be born or raised there (2009: 5, 8).
No matter for which reasons children have come to Hamburg with or without their parents, they grow up in a situation that easily pushes them towards social isolation. If they cannot attend school due to the fear of discovery of their parents’ irregular status, they will not learn the German language and cannot communicate with other children (Mitrovic 2009: 192).
Mitrovic also points out that children who are required to attend school but are not enrolled for the fear of discovery are usually forced to stay indoors during normal school hours, because otherwise it would be discovered that they are not attending school (Mitrovic 2009: 192). Their days are usually spent in front of the TV or playing video games while their parents are working (Bommes and Wilmes 2007: 105). By keeping their children at home, parents not only risk socially isolating their children, as children are prevented from integrating with their peers and lack a possibility to get to know the culture and life in their new country of residence, but also risk that children do not learn how to read or write (Borgards 2006: 162). This contributes to cementing their social marginalisation and in the long run increases social costs (Bommes 2006: 13).
Even when children do attend school, they feel that they are different from their peers. Although their attendance at school provides a certain degree of normality, situations such as school trips or accidents at school increase the possibility of discovery. A lack of knowledge and transparency concerning the insurance coverage of irregular children at school causes further insecurity amongst principals. Mitrovic cites an interview with a principal in Hamburg who had to decide whether she should call for an ambulance, as she would have done for every regular child, or if she should protect the child from discovery. Interviews in Cologne have shown that children who are aware of their irregular status are very careful to make a good impression and to not raise attention to themselves (Bommes and Wilmes 2007: 103-104). As Borgards pointed out it can only be imagined what consequences the threat of deportation might have on the children, who might feel responsible for the discovery of the family (2006: 162). Therefore these children carry a psychological burden even if they attend schools.
Germany’s policy towards irregular migrants is characterised by a strong focus on internal controls. By controlling irregular migration in every place where migrants come in contact with public institutions, irregular migrants live in constant fear of discovery. Although their children have a right to access the educational system in Germany, they are often effectively prevented from it due to the threat that the authorities might detect their irregular status. This does not only apply to the educational system, but also to the provision of health care, housing or the ability to rely on legal protection. The internal control system thus impacts every aspect of life, for both adults and children. Irregular migration is therefore not a one-generation phenomenon. Children of irregular migrants grow up in a criminalised situation and since there are no provisions for amnesties or regularisations of these children, they are unlikely to escape from this irregular existence.
Germany has already struggled with the realisation that it has become a country of (regular) immigration. The focus on economic and security concerns, the use of labour market regulations and the welfare system as control mechanisms and the framing of irregular migrants as criminals show the overall negative approach to migration. Arguments that less control, for example in the educational and health system, would not lead to more migration into Germany are largely ignored. Yet, the precarious situation of irregular migrants has been addressed by NGOs, human rights activists, political parties and – most importantly – the Catholic and Protestant church in recent years. Following lobbying campaigns by these groups, the Bundesrat decided in 2010 to agree to review the declaration added to the Convention to the Rights of the Child, which is seen as a first step towards a more human-rights based approach to irregular migration. It finally led to the added declaration being revoked in summer 2010.
While the reform of immigration and citizenship laws has facilitated life for regular migrants and provided them with a possibility to obtain German citizenship, when it comes to irregular migration Germany is still very hostile. Since irregular entry into the country cannot be prevented, the internal control system is meant to discover irregular migrants as soon as possible. By ignoring the societal problems of irregular migration, German authorities still seem to follow the approach that Germany is not a country of immigration, when it comes to irregular migrants. Furthermore, especially where children are affected it might be in the best interest of the government to turn a blind eye to practices of schools or medical staff, because a public debate would probably cause great sympathy with the children concerned (cf. Leutheusser-Schnarrenberger 2006: 122). Thus, according to Anderson, many decision makers might consider it as preferable not to know exactly what is going on in the schools (2003: 74).
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 Within this paper the term ‘irregular migration’ will be used for consistency where original sources use the terms of undocumented, illegal or irregular migration.
 An overview of different definitions is provided by the Clandestino project (Düvell 2009: 4-6).
 Own translation.
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 cf. Residence Act Section 96
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 ‘There was one situation, where she got injured […] and there I was unsure, should she be taken to hospital […]? But then I decided it did not matter, before she would end up with brain damage she should be taken to the hospital. […]. But I noticed that it was horrible that in that moment I had to think, is this a danger or should I just go to the doctor next door? For every other child I would have immediately called 112 […]. That was the only moment where I really noticed that the child is disadvantaged. I had to decide: will she be discovered and what is more important? I decided in favour of her health.’ (in Mitrovic 2009: 190; own translation)Tags: Academic