1 Introduction

The gap between the restrictionist goals of migration policies and their expansionist outcomes represents one of the major dilemmas of immigration control (Cornelius et al., 2004). The consequence of this gap is often the presence of politically unwanted migration on the host state’s territory in the form of irregular migrants and potential asylum seekers. Their presence not only emphasises a sense of a loss of control in nation-states, but also these states’ difficulties in managing migration according to the expectations of their own populations. Since the 1990s, the Northern European recipe to reduce unwanted migration has mainly consisted of implementing measures to curb asylum flows by reducing welfare benefits for asylum seekers and strengthening external European borders. In contrast, new immigration countries in Southern Europe often had to solve the challenge of irregular migrants a posteriori through regularisation measures that granted residence permits to unauthorised residents on the state’s territory (Ambrosini, 2018; Peixoto et al., 2012). It almost goes without saying that Northern European Union Member States viewed the Southern Europeans’ ex-post regulation strategies with great concern. Regularisations were seen first of all as the direct consequence of the Southern European soft underbelly, i.e. the “porous” southern borders of the European Union. Second, the Southern states were sharply criticised by Northern EU Member States since the frequency and degree of these regularisations was taken as further proof of Southern Europeans’ “public ambiguity” towards irregular migration (Brochmann, 1993; Baldwin-Edwards, 1999).

Public criticism about regularisation processes was linked to scepticism about their long-term effectiveness. For instance, there was general agreement on the fact that regularisations had a sort of “pull effect”, creating expectations of more or less imminent regularisation and attracting an increasing number of irregular migrants, rather than reducing their numbers (OECD, 2000). In addition, researchers assumed that not all irregular migrants on the territory could fulfil the regularisation requirements, and that regularised migrants would usually fall back into irregularity after the expiration of their residence permit, because they would be unable to renew it in time (Reyneri, 1999). Finally, researchers also generally assumed that a considerable number of regularised immigrants would continue to be employed in the shadow economy, despite having legally obtained a residence permit through a regularisation process (Zincone, 2004). As argued by Papademetriou et al. (2004, p. 31), “evidence is meager and provides only spotty support for the beneficial labour market effects of regularisations.”

More than other migration regulation tools, regularisations were used to highlight the “efficacy gap” (Czaika & de Haas, 2013) existing between Northern and Southern European control regimes, and these policies became the object of several confrontations between Northern and Southern European Member States. At the European level, the EU Commission repeatedly expressed its scepticism about such measures, questioning their capacity to reduce the shadow economy and arguing that they represented a “form of encouragement to illegal migration” (EU Commission, 2004, p. 10). In addition, some European countries clearly attempted to counter regularisations in other Member States. For instance, after Italy’s 2002 regularisation, representatives of various Member States attempted to exclude immigrants regularised under such circumstances from the categories laid down in the European Directive on Long-term Residents from third countries (Finotelli, 2007). In 2005, both the German and Dutch governments heavily criticised a decision by the Spanish government to give a mass regularisation to irregular immigrants. The same Spanish government was also blamed for not having informed the other EU Member States about the process in a reasonable timeframe (Europapress, 2005). In particular, German and Dutch criticism was fuelled by a widespread fear that large numbers of regularised immigrants in Spain would subsequently enter other EU Member States, attracted by their generous welfare systems (Finotelli & Arango, 2011). As a consequence, Member States signed the European Pact on Immigration and Asylum in September 2008, where they agreed “to use only case-by-case regularisations rather than generalised regularisations carried out nationally for humanitarian or economic reasons” (European Council, 2008, p. 7). Since then, Italy has been the only Southern European country to maintain mass regularisations; Spain and Portugal turned to individual regularisations, which have garnered less media attention (see Malheiros & Peixoto, Chap. 6 in this book).Footnote 1

The use of regularisations seems to have strengthened the stereotype of “weak” Southern European migration regimes, ostensibly characterised by chaotic and unplanned regulation mechanisms (Finotelli & Arango, 2011). Yet, in this chapter I argue that the function of regularisations should be assessed beyond a dichotomous distinction between “weak” and “strong” migration control regimes. Instead, regularisations and ex-post regulation strategies should be seen as instruments to overcome weak internal controls and state ignorance on irregular migration, where ignorance is defined as the difference between what public authorities think they should know on unauthorised residence and what they actually know about it (Boswell & Badenhoop, 2021). Irregular migrants in the form of overstayers, sans papiers or non-deportable but rejected asylum seekers are probably the most evident examples of the expansionist outcomes of restrictive immigration policies. Such migrants represent a challenge for many national welfare states, since their presence cannot be registered by official statistical systems, while police identification and the subsequent deportation of the irregular migrants identified is often difficult to implement (Colombo, 2013; Sainz de la Maza Quintanal, 2015; Landini & Sciortino, Chap. 2 in this book). Recent Eurostat data is very illustrative in this respect: in 2019, only 29% of the immigrants ordered to leave a given state’s territory were eventually returned to their country of origin (Eurostat, 2019). Against this backdrop, the goal of this chapter is to show that regularisations cannot be seen as a phenomenon unique to Southern Europe. Instead, they reflect a rather widespread strategy to “repair” the inconsistencies of internal control regimes by producing state knowledge on the presence of unauthorised immigrants. To demonstrate this, I examine the Italian and German immigration regimes as comparative examples, since they represent two opposed migration patterns in Europe, with opposed approaches to unauthorised residence. Italy is a rather recent immigration country, which nevertheless accounts for at least half of all regularised immigrants in Europe and where expectations about the state capacity of law enforcement and knowledge production are low. In contrast, in the Federal German Republic, which has so far received the largest number of refugees in Europe, regularisations are rare and expectations about the state’s capacity for law enforcement and knowledge production are high (Finotelli, 2009). Driven by the concept of regime proposed in the introduction to this volume, analysis focuses on organisational strategies and processes rather than simply on policy goals and outcomes in order to understand the functioning of regularisation processes beyond national typologies. The aim of this comparison is not only to discuss how these very different migration regimes produce knowledge on unauthorised residence on their territory, but also to highlight the importance of these measures for the stabilisation of a precarious immigrant population.

The analysis, based on research conducted in 2004 and 2021, draws on official statistics and government documents. The first part of the chapter describes the use of regularisations in the Italian case; the second deals with ex-post regulation measures, such as old-case regulations and “exceptional leave to remain” (Duldung) in Germany; the last part of the chapter compares the two countries to show the functional equivalence of the different types of ex-post regulation measures that are used to bring irregular migrants back under the radar of the state.

2 When the Exception Becomes the Rule: The Role of Regularisations in the Italian Migration Regime

Italy’s transformation to an immigration country was anything but easy. From the very beginning, the country had to adopt an extremely restrictive immigration policy approach, since “this was the price that this ‘new’ immigration country and future Schengen member had to formally pay for its European membership” (Finotelli & Arango, 2011, p. 499). As a consequence, irregular migration became a structural feature of the Italian migration regime, resulting from the combination of dysfunctional entry policies with an urgent labour demand in various economic sectors. According to Italian law, foreign workers had to be recruited before they entered Italy and were only admitted if previous labour-market checks had demonstrated the unavailability of Italian or EU citizens for the offered position. Such labour market checks, however, turned recruitment procedures into burdensome and ineffective processes. Moreover, the number of available entry slots annually included in the so-called “decrees on flows”, Italy’s annual entry quotas, often underestimated the real labour-market demand. Ultimately, the inadequate immigration legislation, together with growing overall migration numbers and an expanding informal economy, spurred an increase in irregular migrants (Finotelli & Sciortino, 2009). As a result, most employers started hiring foreign workers who had already begun living in Italy as irregular immigrants. In the 1990s, Italian governments used “decrees on flows” to regularise a given number of irregular immigrants every year, and “thus to “correct” the consequences of a dysfunctional migration regime (and the structural demand for low-skilled labour)” (Finotelli & Arango, 2011, p. 499).

However, resorting to “fake” quotas was not enough to curb the number of irregular migrants working in the informal economy. For this reason, Italian governments carried out five mass regularisations between 1986 and 2002, issuing a total of 1,417,000 residence permits. The large number of immigrant workers regularised in 2002, half of them in the domestic service sector, brought to the forefront the crucial need to revise recruitment procedures and strengthen both the external and internal control apparatus. Indeed, in the last two decades, Italy has been able to strengthen its external controls, especially through the signing of ad hoc admission agreements with various countries of origin (Finotelli, 2018). In contrast, internal controls have remained weak due to the wide gap between the number of deportations ordered and the number carried out, as well as insufficient labour market controls (Colombo, 2013). In addition, recruitment in sectors with high labour demand, such as domestic service, is still very difficult though formal recruitment procedures. Not surprisingly, the difficulties in designing and implementing labour migration policies that can efficiently match supply with demand have greatly contributed towards the continued use of regularisations and “fake” quotas in Italy (Sciortino, 2009). Similar to what occurred in the 1990s, the objective of the decrees was not to allow “new” workers to enter, but to regularise the irregular immigrants who had already been living in Italy as visa overstayers. In 2006, the Berlusconi government approved a so-called “maxi-decree” on annual entry quotas, allowing the entry of 470,000 foreign workers. The maxi-decree was followed by two new “decrees on flows” in 2007 and 2008, while a new regularisation process – albeit limited to domestic and care workers – was carried out in 2009. Another regularisation followed in 2012, which also targeted domestic workers, but was not limited to them. However, both the 2009 and 2012 regularisations were not only accompanied by a remarkable decrease in the number of applications with respect to regularisations in the past, but also in the number of residence permits ultimately issued. According to Colombo (2009), the decrease was not only related to the poor performance of the Italian bureaucracy, but also to changes in the type and dynamics of migration systems, which have shown an increasing presence of intra-EU mobility from Eastern Europe (see Devitt, Chap. 10 in this book). The most recent regularisation was carried out in 2020 to address the consequences of the Covid pandemic. Also in this case, the results of the process were significantly below expectations; it has experienced several bureaucratic delays with the consequence that only 60,000 residence permits, equating to 26% of the 230,000 applications submitted, had been issued one year after the beginning of the regularisation process in 2020 (Ero Straniero, 2021).

All in all, Italian governments have carried out eight regularisations since 1986. Each one was accompanied by the promise that it would be the last of its kind. Their objective was to regularise as many immigrants as possible in order to bring irregular migrants out of the shadows of residence invisibility and labour exploitation. Other than the 1990 regularisation, they all depended on the immigrant’s employment status, which meant that foreigners could regularise their stay if they were able to regularise their employment situation.

In general, regularisations in Italy were very burdensome processes. Their implementation was often complemented by administrative memos, which often added details or changed requirements in the course of the ongoing process; these included the ability to accept expulsion orders for illegal residence as proof of the applicant’s residence in Italy after a certain date (Finotelli, 2007; Asgi, 2021).

Undoubtedly, regularisations have profoundly shaped Italian migration policy to date. They have been equally carried out by both centre-right and centre-left governments, and have often benefited from the lobbying action of trade unions, business associations and – especially – Catholic organisations, which have also been described as the “strong lobby for weaker strata” (Zincone, 2011, p. 259) and whose lobbying action benefited from the presence of Christian parties, such as the UCD (Unione Cristiano-Democratici) in government coalitions. Clearly, the widespread support of regularisations reduced their public perception as controversial measures. This has also been reflected in the media discourse, where coverage of the so-called “sanatorie” and “condoni” in the immigration field tended to occupy a marginal position compared to other types of amnesties of this kind (Colombo & Sciortino, 2004). Analogous regularisations have often been carried out in several other fields, most often the construction sector or to reduce tax evasion, but also in less important sectors, such as that of the illegal possession of archaeological findings or of exotic animals (Colombo & Sciortino, 2004). The implementation of immigration regularisations was generally accepted as necessary to deal with irregular migration and the weak penetration capacity of the Italian state on its own territory. Such acceptance was embedded in the economic legitimisation of immigrants – corresponding to the idea that if migrants work, then they deserve a right to residence – and the political culture and organisational structures of the Italian state.

Even though Italian voters accepted these regularisations as necessary policy measures, they were deemed by experts to offer only very precarious residence statuses to migrants. This was not only due to the short duration of the residence permits (with a maximum of 2 years) and precarious employment conditions, but also due to the discretionary power of the public officials who renewed the permits. For this reason, it was generally assumed that the protracted renewal procedures, the precariousness of labour in sectors where immigrants were employed, and the frequent use of short-term labour contracts might have facilitated regularised immigrants’ “return to irregularity” (Reyneri, 1999). However, research conducted to date seems to contradict this assumption. Data from 2002 showed that more than half of the immigrants regularised in Italy between 1986 and 1998 were still in possession of their original residence permit at the beginning of 2000 (Carfagna, 2002). Another study showed that the number of residence permits issued between 1992 and 2000 increased from 649,000 to 1,341,000. More than 60% of the permits issued during that time came on the heels of the 1995 and 1998/1999 regularisations (Istat, 2005). In addition, the 2002 regularisation caused a spike in residence permits registered in 2004 (724,000 more than in 2003). At the same time, the number of individuals who applied to more than one regularisation programme remained negligible (Carfagna, 2002). Considering the restrictive and dysfunctional entry and residence rules in Italy since the 1990s, we can assume that regularisations represented a major stabilisation channel, since the majority of the initial residence permits in Italy were issued after a regularisation process, paving the way for family reunion and long-term residence (Einaudi, 2007; Ponzo et al., 2015). Renewal regulations, together with the labour market structure, have facilitated residence consolidation in spite of an initial period of legal instability for regularised migrants (Vianello et al., 2019). Moreover, the periodic execution of regularisations has compensated for the lack of active (and effective) labour-migration policies. This is especially true for domestic service and small and medium-sized enterprises, whose representatives have often advocated more generous quota regulations and more flexible recruitment procedures. Most of all, however, the periodic regularisations have prevented the uncontrolled spread of irregular employment and have allowed “invisible” irregular migrant workers to be brought back “into the light” of state control. The internal control function of regularisations in a country such as Italy, where internal controls – including labour market controls – are very weak, is particularly relevant when assessing the importance of ex-post control mechanisms in the German migration regime, as will be seen in the next section of this chapter.

3 The Path to “Real” Residence: Forms of Regularisation in the German Migration Regime

3.1 From the Suspension of Deportation to Residence Regularisation

Germany is considered the strongest bastion against the “temptation of regularisations” in Europe. In contrast to Italy, regularisations are rather alien to the German political culture, and if the possibility of a regularisation is raised, it usually meets with little acceptance in public and political debate. Such attitudes are certainly linked to the public’s strong expectations about the law enforcement capacity and knowledge production of the German state. Indeed, Germany (in contrast to Italy) has a rather efficient state monitoring system in which public administration offices are closely interconnected and are subject to a general reporting obligation (Boswell & Badenhoop, 2021). It is under such assumption that German policymakers, for instance, almost immediately turned down a proposal by several NGOs in 2004 to issue “papers for all” irregular migrants; after that, the Finance Minister at the time, Hans Eichel, proposed to declare the employment of irregular domestic workers as a crime and to control private households (Balser, 2004). Likewise, when immigration experts from the Federation of German Industries (Bundesverband der Deutschen Industrie) argued in favour of economic utility as a criterion to address the problem of irregular migration, it immediately met with political resistance (Alt, 2003). For all practical purposes, the use of regularisations in Germany has only been accepted under humanitarian premises. At the beginning of the 1990s, Germany was the largest asylum country in Europe. An amendment of the Basic Law (the equivalent of Germany’s constitution) on 1 July 1993 not only triggered an increase in irregular entries and visa overstays, but also created the subsequent need to address the growing number of rejected asylum seekers remaining on German territory after their asylum claim had been rejected. According to data provided by the German Parliament, about 650,000 rejected asylum seekers were still staying in Germany in 1997. Some of them were still waiting for a result of their appeal to a negative decision on their application; the rest had received exceptional leave to remain (Duldung), i.e. a temporary suspension of deportation. Exceptional leave to remain may be granted for legal or factual reasons, or because of obstacles to deportation due to considerable specific danger to life, limb and freedom. Nevertheless, the granting of exceptional leave to remain was predominantly based on legal or factual grounds. “Legal” obstacles to deportation included, for example, the threat of torture, the death penalty, and inhuman and degrading treatment, or in favour of the protection of marriage. The reasons for “factual” obstacles to deportation have ranged from an unverified identity and a lack of deportation possibilities (such as the lack of an airport) to the inability of the person concerned to be transported, to the lack of a passport; this seems to have been the most frequent reason for exceptional leave to remain to be granted (Heinold, 2003).

Since the restrictions of the German asylum system were put in place, the constant decline in the number of asylum seekers contrasted with quite a steady presence of foreigners with exceptional leave to remain (see Fig. 7.1). Most came from the former Yugoslavia; others came from Turkey, Afghanistan and Iraq (Finotelli, 2007). The number of persons with exceptional leave to remain at the beginning of the new century reflected the problem of the whereabouts of rejected but not deportable asylum seekers, which is often considered in the literature as one of the preconditions for permanent, irregular stays. Foreigners’ Office (Ausländeramt) employees interviewed in various German cities at the beginning of the new century blamed the absence of the necessary documents on a lack of cooperation by foreign authorities (Finotelli, 2007). Many countries of origin had no interest in the return of their own citizens, either because they were politically undesirable or because they wanted to maintain remittances from abroad. In addition, the lack of readmission agreements also complicated or prevented speedy readmission procedures (ibid.).

Fig. 7.1
A line graph of the number of Duldungen, and asylum applications in Germany versus years. The Duldungen increases from 2,99,000 in 1995 to 3,40,000 in 1996, then drops and rises a few times, then decreases gradually to 2,00,000 in 2004. The asylum applications decrease from 1,30,000 in 1995 to 49,000 in 2004. Values are approximated.

Duldungen and Asylum Applications in Germany (1995–2004). (Source: Finotelli, 2007)

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Exceptional leave to remain documents were therefore considered by state authorities to be a useful tool to overcome temporary non-deportability. The government issued them for very short intervals; depending on the cases, these documents could have a duration from a few days to many months, and they were not necessarily linked with a work permit. Due to deportation difficulties, many Duldung holders remained in extremely precarious situations for several years, trapped in so-called Kettenduldungen (serial suspensions of deportation). Due to the high level of uncertainty they bring, the Duldung system has repeatedly come under criticism. In particular, the impossibility of deportation combined with the de facto residence of Duldung holders in Germany for a period of many years was also perceived as a challenge for integration. As the Expert Council on Integration and Migration described in a 2004 report, “a permanently high number of merely tolerated refugees is associated with the organisational decline of integration potential” (Sachverständigtenrat für Zuwanderung und Integration (SVR), 2004, 106). As mentioned above, exceptional leave to remain does not allow a stable residence status, and thus gives immigrants only limited opportunities for social participation. At the same time, people with exceptional leave to remain are dependent on benefits under the Asylum Seekers’ Benefits Act (Asylbewerberleistungsgesetz – AsylBLG) and are largely paternalistically cared for by the state in the form of in-kind benefits, since they are not always allowed to work.

The presence of a large number of long-term de facto residents who were in judicial limbo forced policymakers to act. The words of an employee from a Foreigners’ Office exemplify this, who described Duldung holders as migrants whom “nobody wants, but the state can’t get rid of” and added: “At some point they are there, and I have to think about what to do with them” (Head of a Foreigners’ Office, April 2004). For this reason, the German government decided to introduce residence regulations for rejected asylum seekers who could not be deported and who had been staying in the Federal Republic for years with exceptional leave to remain. Before the Immigration Act of 2005 (Zuwanderungsgesetz) came into force, these regulations were made by the immigration authorities of the respective local federal states (Länder) in agreement with the Federal Ministry of the Interior in accordance with Paragraph 32 of the Foreigners Act of 1990. According to this procedure, the Ministries of Interior of the Länder implemented seven “old-case” regulations between 1990 and 2000 (Kraler et al., 2009). These regulations addressed rejected asylum seekers who had found a job and belonged to specific ethnic groups. In any case, the possession of exceptional leave to remain represented an essential precondition to apply for this regulation. Despite the media interest in these measures, the number of cases processed with a positive outcome remained low, while the number of Duldung holders in Germany remained high. According to information provided by the German government, old-case regulations carried out between 1996 and 2002 allowed the country to issue about 60,000 residence permits (Bundestagsdrucksache 14/9916 of 30 August 2002). Yet in 2003, according to data of the German Statistical Institute there were still 226,569 Duldung holders in Germany, half of whom were rejected asylum seekers, and half of whom were migrants who had entered the country irregularly and could not be sent back for legal or factual reasons (Finotelli, 2007).

To resolve this situation and to adapt the new immigration legislation to reality, the German government introduced the instrument of the “right to stay” (Bleiberecht) into the new Immigration Act of 2005; this included the Residence Act of 2004 (Aufenthaltsgesetz – AufenthG), which itself replaced the old Foreigners Act of 1990. The new Residence Act kept exceptional leave to remain as a regulation tool for those foreigners who could not be deported for legal or factual reasons (Paragraph 60a (2)). Nevertheless, the new law also introduced new possibilities for immigrants to normalise their residence status. According to Paragraph 25 (5) of the 2004 Residence Act, the local Foreigners’ Office authorities may grant a temporary residence permit to foreigners who are subject to an enforceable obligation to leave the country if their departure is impossible for legal or factual reasons, and if their deportation has already been suspended for 18 months. However, a prerequisite for obtaining the “right to stay” is that the foreigner concerned is not prevented from leaving Germany due to their own fault. In particular, the foreigner is deemed to be “at fault” if they have provided false information or deceived the German authorities with respect to their identity or nationality, or have failed to meet reasonable requirements to remove the obstacles to departure (Paragraph 25 (5) Sentence 2, Residence Act of 2004).

Soon after the approval of the new Residence Act, the state-level interior ministries promoted an additional far-reaching old-case regulation, which was however not laid down in the new law, but remained a Decision by the Conference of the Ministers of the Interior (also called the IMK-Bleiberechtsbeschluss). According to available data, 71,857 people applied for a residence permit, 19,779 of whom received a residence permit by September 2007, while an additional 29,834 were granted exceptional leave to remain to be able to look for a job and fulfil the income requirement (Kraler et al., 2009). Overall, since 2006, about 80,000 people have obtained a “right to stay” according to one of these regulations (Diakonie Deutschland, 2021). Indeed, one of the most criticised aspects of this ad hoc regularisation was that applicants had to prove they had sufficient income for themselves and their family members – despite the fact that Duldung holders in Germany are not always allowed to work. Consequently, the government had to progressively relax the application criteria to apply for this exceptional “right to stay” (Kraler et al., 2009). In 2011, the German government introduced the option to issue a residence permit to people between 15 and 20 years old who could demonstrate a high level of integration (Paragraph 25a AufenthG), while in 2015, the German Parliament approved an Act on the New Regulation of the Right to Stay and the End of Residence (Gesetz zur Neubestimmung des Bleiberechts und der Aufenthaltsbeendigung); this turned into Paragraph 25b of the AufenthG and established the rule that Duldung holders could obtain a residence permit if the condition of effective integration was fulfilled. To assess the level of “effective” integration, Foreigners’ Offices have to consider, for instance, the applicants’ means of subsistence, school attendance in the case of minors, and language knowledge, as well as knowledge and respect of the social and legal norms characterising social life in Germany (Lower Saxony Ministry of Interior, 2019). This was new in the German migration regime, because it created a link between long-term integration and formal residence, even when some of the other minimum application criteria could not be fulfilled (Diakonie Deutschland, 2021). Finally, the German legislation gave foreigners the possibility to obtain exceptional leave to remain for education purposes (Paragraphs 60 b and c AufenthG), giving the holder the possibility to subsequently have this transformed into a residence permit according to Paragraph 23a AufenthG.

3.2 Lights and Shadows of Ex-Post Regulation Tools in Germany

Exceptional leave to remain (Duldung) is an instrument to suspend deportation; it is not equivalent to a residence permit from a legal point of view. Moreover, Duldungen are not regularisations, because they do not affect the holder’s obligation to leave Germany, although they represent a quasi-right to residence by suspending deportation (Hailbronner, 2000). In contrast, old-case regulations follow a different logic. German authorities have always denied that old-case regulations are like regularisations, and that they could be useful in solving the problem of irregular migration (Kraler et al., 2009). Nevertheless, from a technical point of view, they can certainly be considered close to regularisations since their goal is to issue residence permits to migrants who should not actually be on state territory. Against this backdrop, old-case regulations have been described as a two-phase regularisation process, which first provides for the suspension of deportation and then, as a second step, for a residence permit valid for 2 years (Hailbronner, 2000). In this vein, old-case regulations contribute to stabilising the situation of a precarious immigrant population in a similar way as in Italy.

The legal similarity between Italian regularisations and old-case regulations fits with the argument that regularisations cannot be solely considered a peculiarity of Southern Europe, although they have indeed been implemented predominantly in Southern EU Member States as a systematic measure to control irregular immigration (de Bruycker & Apap, 2000; Baldwin-Edwards & Kraler, 2009). Nevertheless, a comparison of ex-post regulations in Italy and Germany from a functional rather than a legal perspective can provide new insights into the functioning of migration regimes and the ways states handle the challenge of unwanted migrants.

Regularisations in Italy dealt with irregular immigrants whose presence was not formally known, and who were therefore referred to as clandestini. For Italy, regularisations allowed the government to recover control over a segment of the immigrant population that had escaped state monitoring. Second, taking into account that a large number of migrants living in Italy today obtained their first residence permit after a regularisation, regularisations not only contributed to overcoming state ignorance, but also paved the way for the long-term legal integration of immigrants. In contrast, old-case regulations in Germany dealt with foreigners who had already been registered, and were therefore already known by the German state as people with exceptional leave to remain. The function of registration ascribed to Italian regularisations would therefore be more conceivable in the case of exceptional leave to remain, which formalises a foreigner’s stay without granting him or her a regular residence permit. As with regularisations in Italy, issuing such documents can be understood as the state’s response to the challenge posed by the unlawful residence of foreigners that cannot be terminated for the short term (Bommes, 2006). Put differently, Duldungen, like regularisations, have allowed to overcome state ignorance on the problem of irregular migration. This means that the German regime also shows a certain degree of public ambiguity in dealing with irregular migration insofar as de facto unlawful residence in Germany is tolerated, and in a formalised way through exceptional leave to remain (Bommes, 2006). Like Italian regularisations, Duldungen have allowed policymakers to repair the dysfunctionalities of the German migration regime to a certain extent, and for this reason they have been retained as a disguised regularisation tool ever since. If they cannot be considered regularisations de jure, they are certainly regularisations de facto. Yet, due to the precariousness of the Duldung status, they have contributed little to promoting legal residence stabilisation as in the case of Italian regularisations. Such stabilisation functions took place in the second step of old-case regulations, which made legal stabilisation depend on the pre-existence of socioeconomic integration as it occurs for Italian and other types of regularisations in Southern Europe (see also Malheiros & Peixoto, Chap. 6 in this book). Notably, the German requirement of effective integration as a precondition to take advantage of old-case regulations also includes cultural aspects, such as (oral) knowledge of the German language; this does not apply in the Italian case, where regularisations only depend on whether the migrant can demonstrate economic integration – having employment and paying into the welfare system.

The rather large number of refugees with exceptional leave to remain, in spite of the recent changes in legislation, confirms the continued use of Duldungen even today, as the evolution of figures between 2013 and 2021 seems to demonstrate. Initially, the changes introduced during the first decade of the new century, together with deceasing asylum flows due to changing political conditions, contributed to reducing the number of asylum seekers and refugees with exceptional leave to remain from 650,000 to 134,000 in 2011. However, the refugee crisis of 2015 triggered a new increase in the number of asylum seekers, which jumped again, to over 725,000 applicants. By the end of 2017, the number of asylum seekers and refugees with exceptional leave to remain had returned to 511,000 (Bundestagsdrucksache 19/3860 of 30 June 2018), while 166,000 of the 229,000 foreigners with a deportation order in 2017 had received a Duldung (ibid.). The reasons for exceptional leave to remain ranged from medical reasons to the requirement to care for relatives, to a lack of travel documents, or impossibility of deportation due to the unbearable situation in the country of origin. 43% of the Duldungen issued by the end of 2017 were granted for “other reasons”, such as cases of people with relatives who could not be deported, people in the appeals process, or young people who were doing an apprenticeship (Bundestagsdrucksache 19/633 of 5 February 2018). According to recent data, 236,000 of the 281,000 unlawful residents in 2020 had been granted exceptional leave to remain (Bundestagsdrucksache 19/28234 of 6 April 2021).

Clearly, the evolution of Duldungen between 2013 and 2021 demonstrates that these instruments have come to play a crucial role in the German immigration regime in dealing with the persistence of obstacles to deportability without granting a formal residence permit (see Fig. 7.2).

Fig. 7.2
A line graph of the number of Duldungen and asylum applications in Germany versus years. The asylum applications plot an increasing curve from 1,00,000 in 2013 till 2,50,000 in 2021. The Duldungen plots a peak from 1,40,000 in 2013 till 7,50,000 in 2016, then decreases sharply till 2017, and slowly decreases till 1,20,000 in 2020, and slowly rises again till 2,00,000 in 2021. Values are approximated.

Duldungen and Asylum Applications in Germany (2013–2021). (Source: Bundestagsdrucksachen. 19/1371; 19/633;19/28234)

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The German authorities are well aware of this important function. As Boswell and Badenhoop (2021) have shown, German state officials have perceived a kind of “schizophrenia” between straightforward law enforcement against irregular residence in Germany and the ethical (and practical) problems related to the detention and return of irregular migrants. Boswell and Badenhoop noted that “the practical and ethical challenges involved in pursuing sans papiers and the political attention devoted to asylum led the federal authorities to focus their efforts on the Geduldete [migrants with exceptional leave to remain]” (ibid., p. 348). This runs contrary to the Federal Ministry of the Interior’s description of Duldungen as an “instrument of fine-tuning” to manage the challenge of those asylum seekers who should not be on the state’s territory, but who cannot be deported (Bundesministerium des Inneren, 2005, p. 4). What is less evident, but no less important, is that this instrument also allows the state to keep control of a social problem that would otherwise widen the gap between what the German state is expected to know and what it actually knows.

4 Conclusion: The Significance of Regularisations and Ex-Post Regulations Across Regimes

The comparison between Italy and Germany shows that both migration regimes have had to deal with the consequences of their “restrictive orthodoxy” to the extent that they were faced with politically unwanted migrants who remained. Both countries reacted to this with ex-post regulation tools. Both Germany and Italy have implemented specific measures to produce state knowledge on the presence of unauthorised migrants on their territory. However, comparing the two countries also confirms that the way states overcome their ignorance about social problems are deeply embedded in nation-state contexts, and that such cross-national variations are related to public expectations regarding the oversight capacity of nation-states (Boswell & Badenhoop, 2021). In Italy, public acceptance of regularisations is deeply embedded in the Italian political culture, where expectations about the oversight capacity of the state are traditionally low. Second, regularisations were able to receive widespread economic legitimisation since they were traditionally presented as a way to trigger the emergence of irregular workers from the shadows of the informal economy. Third, they also implied low political costs for the political elites due to the structure of the Italian welfare regime, where immigrants can only become regularised after they pay a certain amount into social insurance funds (at least since 1998), and only small amounts of unemployment benefit are paid for a limited period of time. Against this backdrop, the sudden unemployment of regularised immigrants would not have had any significant consequences for decision makers, since the burden on the welfare system from regularised immigrants was limited in time.

In Germany, by contrast, regularisation would represent a public refutation of the oversight capacity of the state, since expectations regarding the state’s law enforcement abilities are higher than in Italy. Moreover, mass regularisations for economic reasons would also have contradicted Germany’s public image as a reluctant immigration country or, more recently, the image of a country open to high and medium-skilled migration, but less prone to accepting low-skilled migrants. Finally, and in contrast to Italy, the implementation of a mass regularisation would have carried higher political costs because of the public salience of the debate on unemployment benefits and social aid for the long-term unemployed. At the same time, recent research has shown that German public authorities seem to be less interested in “producing knowledge” on sans papiers on account of ethical and practical concerns (Boswell & Badenhoop, 2021). Due to the unpopularity of mass regularisation measures, together with the challenge represented by the implementation of straightforward internal controls, ex-post regulations in Germany are mainly anchored in the structures of the asylum system, and do not have an economic, but rather a “humanitarian” background. As the above shows, de facto regularisations such as issuing Duldungen are bound to the structures of the non-refoulement ban, and they show how modern states cannot escape from the embedded liberalism of their norms. The existence of these barriers built into modern welfare states contribute to the de facto consolidation of residence, forcing states over time to recognise that non-refoulement is an open-ended principle. Against this backdrop, the granting of exceptional leave to remain or a residence authorisation has so far mainly taken place within the framework of an individual case assessment, rather than as a collective solution, as in the case of Italian regularisations.

All differences notwithstanding, regularisations and ex-post regulations in both Italy and Germany have allowed the state to recover control over a social problem such as irregular migration, which, by definition, escapes state monitoring. In this respect, the comparison between the two countries and their ex-post regulation tools reveals similar regime logics behind the different handling of state ignorance on unauthorised residence and legal inclusion in the long term. This functional equivalence further blurs the North-South divide in immigration by showing that “public ambiguity” about unauthorised residence is not only a Southern European feature. It further demonstrates that both the Italian and the German migration regimes are ultimately the result of “continuous repair work through practices” (Sciortino, 2004, p. 33) that allows states to produce knowledge when traditional internal controls fail. Finally, ex-post regulations have progressively contributed to the stabilisation of the immigrant population in both countries over the last three decades. In Italy, most regularised migrants are now long-term residents. In Germany, Duldungen were considered a stopgap solution before being able to obtain formal residence through old-case regulations and right-to-stay policies. However, Duldungen were granted to a smaller number of migrants compared to Italy and have been linked to more precarious conditions than regularised migrants in Italy. In this respect, Duldungen can be certainly understood as an instrument to make a particular segment of immigrant population more visible, but not more stable – stability instead corresponds to old-case regulations.