Implementing migration control in labour markets

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in Berlin to show how this framework is implemented, focussing on discretion and self- ..... 2), we start with an introduction to the chosen organisation (Federal Labour ...... goal is to show regular presence on symbolic places like Potsdamer Platz .... Officers were looking for suspicious behaviour and answers - every attempt ...

e u ro p e a n u n i v e r s i t y i n s t i t u t e

IAPASIS project Improving the Human Research Potential and the Socio-economic Knowledge Base EC Fifth Framework Programme

2001/IAPASIS-rep/D © Norbert Cyrus and Dita Vogel. All rights reserved.

Infor mal Administration Practices and Shifting Immigrant Strategies in four member -states

Norbert Cyrus Dita Vogel Carl von Ossietzky Universität Oldenburg

Implementing Migration Control in Labour Markets Routines and Discretion in Germany No part of this paper may be distributed, quoted or reproduced in any form without permission For authorized quotation(s), please acknowledge the RSCAS source For any query or information, please contact the author(s) or Catherine Divry at ✉ [email protected]

September 2001

ro b e r t s c h u m a n c e n t re f o r a d v a n c e d s t u d i e s

Does Implementation Matter?

Implementing migration control in labour markets –

routines and discretion in Germany

Norbert Cyrus and Dita Vogel

IAPASIS-Deutschland Working Paper 2/2001 Carl von Ossietzky Universität Oldenburg, Fachbereich 11, Oldenburg: Sept. 2001 Contact: [email protected]; [email protected]

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Preliminary remark This paper has been prepared in the course of an international research project. The project ‚Does Implementation matter? Informal administration practices and shifting immigrant strategies in four member states‘ (IAPASIS) is financed by the European Commission. It investigates the implementation of restrictive immigration policies in the labour markets of Germany, England, Italy and Greece. Also available on request by the authors: Cyrus, Norbert; Vogel, Dita, 2001: Ausbeuterische Arbeitgeber – Schwarzarbeiter ‚Illegale‘ Ausländer: Ist die Schwerpunktsetzung von Arbeitsmarktkontrollen diskriminierend? IAPASISDeutschland Working paper 1/2001, Carl von Ossietzky Universität Oldenburg, Fachbereich 11: Juli 2001 (in German)

Abstract Foreign nationals have only limited access to the German labour market. Employees of the labour office function as gatekeepers to the regular labour market (work permit procedure) and the irregular labour market (enforcement units), often in co-operation with other public authorities who have another clearly defined part of the gatekeeping function. This working paper explains the framework of eligibility procedures and enforcement in Germany and uses two case studies in Berlin to show how this framework is implemented, focussing on discretion and selfperception of administrating officers in the Labour Office. We sketch a portray of the interpretation and implementation of restrictive immigration policy goals by street-level bureaucrats in a legalistic administrative culture.

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Contents Part I: Introduction and framework of the study 1

INTRODUCTION ............................................................................................................................................. 5

2

RESEARCH DESIGN....................................................................................................................................... 5

3

2.1

THEORETICAL BACKGROUND........................................................................................................................... 5

2.2

METHODS AND DATA ....................................................................................................................................... 7

BACKGROUND ON THE CHOSEN INSTITUTION AND CITY.............................................................. 8 3.1

THE FEDERAL LABOUR OFFICE: BASIC FEATURES OF THE CHOSEN INSTITUTION............................................. 8

3.2

BERLIN - BASIC FEATURES OF THE CHOSEN PLACE OF STUDY ........................................................................ 10

Part II: Eligibility checks 4

5

NATIONAL IMMIGRATION POLICY FRAMEWORK: ELIGIBILITY CHECKS............................. 12 4.1

WHO MAY WORK ........................................................................................................................................... 12

4.2

WHO WORKS LEGALLY: OUTCOMES OF WORK PERMIT GRANTING ................................................................. 14

A CASE STUDY OF LABOUR CERTIFICATION: LOCAL LABOUR OFFICE BERLIN-SOUTH .. 17 5.1

AA-BERLIN-SOUTH: BACKGROUND AND ORGANISATIONAL STRUCTURE ...................................................... 17

5.2

DISCRETION OF STREET LEVEL BUREAUCRATS .............................................................................................. 19

5.2.1

The work permit office......................................................................................................................... 19

5.2.2

Employment agency............................................................................................................................. 23

5.3

SELF PERCEPTION AND PERCEPTION OF WORK ............................................................................................... 25

5.3.1

Employment agency............................................................................................................................. 25

5.3.2

Z-Office .................................................................................................¡Error! Marcador no definido.

5.4

SUMMARY ..................................................................................................................................................... 27

Part III: Enforcement 6

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NATIONAL POLICY FRAMEWORK: ENFORCEMENT ....................................................................... 29 6.1

WHO CONTROLS ............................................................................................................................................ 29

6.2

WHO IS CONTROLLED AND SANCTIONED ....................................................................................................... 32

A CASE STUDY OF ENFORCEMENT PRACTICES: THE AD-BAU IN BERLIN............................... 35 7.1

BACKGROUND AND ORGANISATIONAL STRUCTURE ....................................................................................... 35

7.2

DISCRETION ................................................................................................................................................... 38

7.2.1

Discretion in the preparation of raids: choice of work-sites............................................................... 38

7.2.2

Discretion during action ..................................................................................................................... 40

7.2.3

Discretion during examination of suspicious cases ............................................................................ 43

7.3

SELF-PERCEPTION AND PERCEPTION OF WORK ............................................................................................... 44

7.3.1

Lawfulness in the labour market ......................................................................................................... 44

7.3.2

Foreigner orientation.......................................................................................................................... 45

7.3.3

Employer orientation........................................................................................................................... 46

7.4

SUMMARY ..................................................................................................................................................... 47

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Part IV: Identity processes 8

IDENTITY PROCESSES ............................................................................................................................... 50 8.1

IDENTITY PROCESSES: CONCEPTS .................................................................................................................. 50

8.2

PROFESSIONAL IDENTITY............................................................................................................................... 51

8.3

NATIONAL IDENTITY ..................................................................................................................................... 54

8.4

PRIVATE IDENTITY ........................................................................................................................................ 57

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PRELIMINARY CONCLUSIONS ................................................................................................................ 60

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REFERENCES ................................................................................................................................................ 61

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Part I: Introduction and framework of the study 1

Introduction

Immigration is restricted in Germany. Accordingly, access to labour markets in Germany is restricted for non EU-nationals (cf. Cyrus/Vogel 2000).1 If ‘extracommunitarian’ labour migrants want to work in Germany without being eligible for it, they have two choices: They may try to gain access to legal work under false pretences or work illegally. Accordingly, migration control measures in the labour markets can be differentiated into two categories: eligibility checks and illegality prevention (see Vogel 2000:396). In both cases, labour administration is a key actor for implementing immigration restrictions in the German labour market. Being part of a European research project, we are particularly interested how the organisational culture of the competent authority shape and transform immigration restrictions and control endeavours. We assume that the organisational culture particular for the institutional arrangements and performance of a nation state substantially influence policy implementation: not only within states, but also between EU-member states. Organisational culture influences outcomes in an environment framed by organisational and legal structures. In this study, we describe basic rules and structures of German labour authority and investigate into cultural aspects by mainly looking at two selected administrational units: one in the field of dealing with work permits, one in enforcement against illegal work. After a short description of the theoretical and methodological background of our study (chapter 2), we start with an introduction to the chosen organisation (Federal Labour Office) and the chosen place of field work (Berlin). This review serves as embedding of the two in-depth studies. In Chapter 4 and 5 we analyse the dealing with work permit applications: Firstly we present an account of the general national framework, secondly the results of an in depth-case study in the Labour Office Berlin South. In Chapter 6 and 7 we turn to the units of labour authority involved in illegality prevention, again firstly presenting the general national framework and secondly material and findings for a particular enforcement unit. We conclude in Chapter 8 with a discussion of identity processes involved in the work of labour administration in Germany.

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Research Design

In this section, we give a short account of the theoretical background of our study as well as of empirical methods and the available data. 2.1

Theoretical background

This study is based on ideas of empirical administration research which analyses how rules are implemented in practice, as for example in the classical study by Kagan (1978). Concretely, we

1

For this study, we use the terms „foreign national“ or „foreign worker“ for citizens of states not belonging to the European Union, the so called „extracommunitari“ or „third country national“.

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use Lipsky (1980) as a frame of reference. Lipsky has developed a theory of work in public institutions with client-contact - street level bureaucracies. Lipsky stresses the importance of street level bureaucracies by arguing that the decisions and behaviour of street level bureaucrats do not alone help to implement public policy, but that actually they are public policy - the only policy which is personally experienced by people. He works out patterns which are common to the work of many people in this level of public service. Most importantly, discretion is a central feature of their work. According to Lipsky the front line officers, labelled ‘street level bureaucrats’, have some discretion in their decision over benefits and sanctions. Employees typically have to deal with intricate situations and a wide range of human reactions so that the regulations to deal with clients cannot be reduced to simple orders without distorting material aims of law (Lipsky 1980-14ff). When we talk of discretion in this paper, we mean formal discretion - the scope of choices which is foreseen by law and administrative regulations. In addition, informal discretion - the use of choices which are not explicitly allowed by the law or even forbidden - may be exercised. Informal discretion may serve to achieve the aims of a law because of inadequate or impractical regulations and thus ease the effects of inflexible or badly manufactured regulations. It may, however, also counteract the aims of the law, specifically if the intention of law is not shared by the implementing staff. According to Lipsky, the identification of aims and routines of street level bureaucrats forms a key to the analysis of their work. Many members of public institutions have - at least at the beginning - some sort of orientation towards public welfare, besides motives which are valid for all sorts of jobs, namely acquiring income, status, security and social contacts. The general welfare orientation may be directly linked to the clients they are in contact with, but also indirectly oriented more abstract towards the taxpayer, the imagined national community (of citizens or legal residents) (Lipsky 1980:72ff). Advocacy for public welfare or welfare of clients can easily be frustrated through the working conditions. Typically, working conditions involve the treatment of cases in a situation of limited resources. To cope with and to make sense of this working environment, street level bureaucrats develop a distinct ‘cultural software’, i.e. concepts and ideas which guide their practice and relief them from the inherent tension in their work. We propose to call this system of publicly and collectively accepted meanings within an organisation ‘organisational culture’. Organisational culture may be conceptualised as a symbolic toolknit of specific constellation of beliefs, values, norms, myths, routines and practices at disposal of the members of the organisation. These elements of organisational culture are intelligible to a researcher by analysing the reference to goals, beliefs, myths and ideologies. In addition, the field researcher may observe practices, symbols and rituals which form part of the organisational culture. In this study we will examine the organisational culture salient in the German labour authority. We assume that organisational culture strongly influences the exercise of discretion within the institution. This may not be obvious in the description of a single organisation of a single country. But by comparing the implementation of similar tasks in different countries, it may be able to identify the influence of the ‘cultural software’ of an institution on the outcomes of their activities. This report provides the basis for such a comparative analysis.

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2.2

Methods and data

Our study covers the area of eligibility checks and enforcement in the labour market - in other words, we are concerned with gatekeeping to the legal and illegal labour market for foreign nationals. We organise the presentation of our results in a two step approach: For each area we start with a general analysis at the national level and proceed with an in-depth case study of a particular unit in Berlin in charge of the implementation with a focus on organisational culture. The empirical material used for description and analysis of administrational implementation of migration control in labour markets stems from several sources. General framework (chapter 2, 3 and 5): •

Review of relevant scientific literature.



Examination of statistical information, administrative documents and the legal framework.

The data of case study of enforcement includes (chapter 6): •

data from an one-week presence in a labour office control unit in Berlin, including participant observation of three work site raids and the visit of an internal training scheme, as well listening to informal conversation among employees and conduction of informal conversation with labour enforcement agents.



Semi-structured in-depth interviews with five inspectors of the control unit under observation. Two interviews were taped and transcribed while in three interviews extensive minutes were taken. All five informants authorised the written form of the interviews.



Discussion of questions and observations with several higher ranked employees of the Landes Labour Office in charge of labour market control.



Review of newspaper articles and press statements on the organisation and its perception by media and non-governmental organisations, supplemented by informal discussions with media professionals and trade union members.



Examination of unpublished statistical information and administrative documents.

Data of case study of labour certification (chapter 4) includes: •

Four semi-structured in-depth interviews with six employees of an Local Labour Office in Berlin who are involved in different stages and steps of labour certification. Two interviews were taped and transcribed while in the remaining two interviews extensive minutes were taken.



Information from interviews are supplemented by data from observation. However, because of the short duration of presence in the Local Labour Office, only little observation was possible.

For the analysis, we firstly used interviews as expert interviews in order to clarify structures and practices which had not been clear from prior literature and document analysis. Secondly, we went deeper into the interviews and field research report, codifying passages which were of importance for our analysis purposes. Indicators of particular analysis are described in the respective section. The results were discussed among the two authors.

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3

Background on the chosen institution and city

Both case studies are located in labour offices in Berlin. Results for this units may not be typical for other enforcement units or for German public agencies in general. Nonetheless, our case study serves as an appropriate example of the implementation of immigration control as well as the interpretation of goals and achievement under the influence of organisational culture. Experiences in getting access to the field already revealed insight into basic features of German labour administration: Once the permission for research was granted all ‘street level bureaucrats’ interviewed were interested and co-operative. Thus, we would like to express our gratitude to all interview partners who enabled the study. Getting access to the administrational system, however, was a more difficult process. After approaching the President of Landes Labour Office Berlin we got permission to conduct research with the chosen control unit. While we were already doing research on enforcement, we had to commit again to get the permission to investigate into the work permit procedure, located in a distinct organisational unit. Our requests were dealt with at all bureaucratic levels including the head office of the federal labour office in Nuremberg. This experience already indicates the hierarchic and fragmented structure of labour authority in Germany. For a better understanding of the administrational hierarchy and differentiation, we provide some information on the chosen administrative authority and the chosen city. 3.1

The Federal Labour Office: Basic features of the chosen institution

For the purpose of describing general features of the Federal labour office, we will rely mainly on the organisations' self-representation. The labour authority in Germany was founded 1927 as a public body for promoting employment and the administration of the unemployment benefit funds. Today, the Federal Labour Office consists of the head office (Hauptstelle) located in Nuremberg, ten Landes Labour Offices and 181 Local Labour Offices with about 660 agencies (Geschäftsstellen). Furthermore, 15 particular agencies (besondere Dienststellen) like the higher education institution for labour administration (Fachhochschule für Arbeitsverwaltung), academy for advanced education (Führungsakademie), professional training colleges for administration (Verwaltungsschulen) or the central agency for placement (Zentralstelle für Arbeitsvermittlung – ZAV) are in charge of central and general tasks. Altogether about 80 000 persons are employed with Federal Labour office. In 2000 the budget was about five hundred millions Euro (thousand million DM). The activities of Federal Labour Office covers a wide range of tasks: careers guidance, placement into vocational training and jobs, advising of employers, assistance with vocational training and education, assistance with the integration of handicapped people into the labour market, subsidies to save and create jobs, and benefit granting like unemployment benefits or benefits in case of insolvency. Moreover, the Federal Labour Office is instructed by the Federal Ministry to pay out two important federal benefits (unemployment aid and child benefit). The Federal institution conducts research in labour market and professional development issues, monitors and reports on the situation of labour markets and elaborates statistical accounts. Lastly, control tasks are assigned to the authority: Among others, they decide on work permits and combat illegal

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employment.2 The bracket is the labour market: All tasks aim at improving the efficiency of the labour market, with a specific focus on reducing unemployment and caring for the unemployed. Besides a functional and spatial, horizontal fragmentation labour authority is characterised by a strict system of vertical division with graded supervision: Since the tasks of labour authority concern the vital interests of workers and employers, the Federal Labour Office is a body of public law (Körperschaft des öffentlichen Rechts). In the bodies of the self administration – executive board and administrative board – trade unions, employer associations and public administration are equally represented (tri-paritätische Besetzung). By that very construction the ‘social partners’ exert considerable influence on the agenda setting and exercise of the tasks of labour administration. The system of graded supervision defines and restrict the area of concerns of administrational units. •

The Federal Labour Office is subject to the Federal Ministry of Labour and Social Order as the supervising board.3 The ministry can release federal implementing decrees with immediate binding power.



The Head Office (Hauptstelle) elaborates basic guidelines to safeguard the standardised implementation of tasks by all agencies (federal implementing regulations).



The 10 Landes Labour Offices have to co-ordinate the technical work of the Local Labour Offices in their area of responsibility. There specifying interpretations will be called as operating regulations.



The 181 Local Labour Offices with their sub-agencies have to deal with the technical work in contact with the different groups of clients.4 The single Labour Offices have some discretion to interpret the standards according to the local circumstances within the limits set by the law and the superior agencies, i.e. Head Office and Landes Labour Office. If the management of a Local Labour Office directs street level bureaucrats, we talk of internal regulations.

Similar to other European countries the situation during research was characterised by administrational reform efforts. Under the label “Labour Office 2000” (Arbeitsamt 2000), the reform aimed at changing basic administrational structures. Departmental organisation is broken up in order to achieve more client-orientation. Basically, the reform tries to establish a front desk contacting the client (unemployed person) with a team serving different needs in the back.5 During field research, interviewees referred to the aims of this reform, mainly client orientation, service efficiency and ‘lean bureaucracy’ while the mere fact of changing administrative structures was not challenged. The reason may be that public administration is subject of constant reform endeavour. Public administration in Germany faced at least four deep reform acts since 1945, and a countless number of smaller administrative changes contributes to the picture of a reform oriented administration (Seibel 1996). Information from self-representation already indicate some features important in the context of the study of organisational culture:

2 3

http://www.arbeitsamt.de/hst/services/ba_stellt_sich_vor/aufgaben.html http://www.arbeitsamt.de/hst/services/ba_stellt_sich_vor/organisation/index.html

4 http://www.arbeitsamt.de/hst/dienststellen/index.html 5

http://www.arbeitsamt.de/hst/services/ba_stellt_sich_vor/aa2000.html.

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The uniformity of implementation or in other words: the standardisation of administrational conduct is a fundamental goal and value for the institution as such. Considerable effort like technical surveillance and organisational education is invested to realise this goal.



The existence of an sophisticated intra-organisational education system transmitting and exercising the particular world-view indicates the development and cultivation of a distinct organisational culture.6



The strict hierarchical regime with a top-down approach that for instance just decree fundamental changes like “Labour Office 2000” reform.



The highly politicised position of the administration with a participation of conflicting interest groups and the entanglement of politics (Ministry for Labour and Social Order).



The sheer number of employees, the heterogeneous character of tasks including benefit administration, and the functional division of units may expect some kind of heterogeneity of organisational culture. Labour authority in Germany follows the aims to support and help unemployed on the one hand and to implement bureaucratic tasks and exert control over the clientele group on the other hand. It is an authority in which control tasks are dominated by help-oriented tasks. This creates a typical dilemma for the employees of a service between helping and coercive tasks (Lipsky) 3.2

Berlin - basic features of the chosen place of study

Work permit decisions and the combating of illegal employment of foreign nationals is allocated within the local labour administration. This mirrors a dominant concept guiding the regulation of labour immigration: It should be blocked or allowed according to the needs and situation on the local and regional labour markets. Therefore, the choice of the case study location influences the way laws are implemented. We have chosen Berlin for several reasons: the capital of Germany with its approximately 3.5 million inhabitants is a magnet for immigrants for a long time and even more so since the breakdown of the communist rule in Eastern Europe. At the same time, it has experienced severe unemployment in the resident population, indicating a possible conflict between labour immigration and labour market inclusion of residents. Finally, since both researchers have done research on Berlin issues in the past (Vogel 1996 ; Cyrus 1998), we have a good knowledge of Berlin circumstances. The situation of Berlin is for historical reasons somehow particular: Until 1989 Berlin was divided by the world famous ‘wall’ that separated the two Germanies. The political history led to particular demographic patterns: In the Western parts of Berlin, an immigration population grew and forms today the biggest immigrant agglomeration in Germany - at least in absolute figures. However, in the Eastern parts of Berlin the presence of foreign residents is nearly zero. More than ten years after unification, the Eastern and Western parts of the city are still different with respect to social structures and culture (Häußermann and Kapphan 2000).

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This assumption may be supported by an analogy to the work of Ernest Gellner, E. (1983). Nations and Nationalism. Oxford, Basil Blackwell Ltd., who stressed the importance of the introduction of formal mass education by nation states with the development of a distinct national culture.

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The economic performance of the city can be characterised by a deep transformation of the industrial landscape, following the reduction and eventual abolition of Berlin subsidies and the new importance as government site. During the nineties, the industrial structure of Berlin dramatically changed: Industry collapsed while construction faced a short and overheated boom. New areas of employment developed most of all in the service sector. The foreign population was particular hit by job losses. While 40 000 foreign nationals worked in the West Berlin industry in 1990, the number fell dramatically to 18 000 in 1997. The loss of jobs could not be compensated by other branches. In the western parts of Berlin the number of employed foreign workers decreased between 1990 and 1998 about 26 per cent, in spite of an increase in the foreign population by over 30 percent. (Häußermann/Kapphan 2000: 105). The total number of jobs with social insurance coverage fell from 1 377 Mill. in 1989 to 1 162 Mill, in 1997. Thus, the unemployment rate for whole Berlin dramatically rose after unification (Table 1).

Table 1: Unemployment rate in Berlin 1990-1999 Year

Unemployment rate (in per Unemployment rate among cent) foreign residents (in per cent)

1990

7.6

11.5

1992

12.0

20.8

1994

12.7

21.7

1997

17.5

31.9

1999

17.6

33.3

Kapphan/Häußermann 2000: 109

The economic decline and bad labour market situation is not only the background, but also – because the labour market situation is a criteria for the exertion of institutional discretion - a valid aspect in the implementation of the work permit processes we will now deal with.

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Part II: Eligibility checks 4

National immigration policy framework: Eligibility checks

Here, we concentrate on the work permit administration as gatekeeper to the legal labour market. Firstly, we explain who may work - with a focus on foreign workers subject to priority check. Secondly, we present some administrative data on work permit granting. On this basis, we proceed to the detailed case study of implementation in the next chapter. 4.1

Who may work

Germany follows a strict policy of restricting and controlling immigration from Non-EUcountries. Third country nationals need a work permit, and work permits are only granted under exceptional circumstances - this is the official line since the ban of recruitment 1973 (BMI 2000). Nonetheless, definitions of exceptionality change and leave room for administrative discretion at different levels. Firstly, it has to be noted that many foreign nationals in Germany either do not need a work permit or possess an unlimited and unrestricted work permit (‘right to work’) because they are EU citizens or long term residents from third countries. According to an older analysis in 1993, 94% of all foreign employees were either exempted or holding work permits in the form of ‚right to work‘ (Velling 1995:68). They have unrestricted entrance to the labour market like German citizens. It is worth to note that no up to date administrative data on the stock of work permit holders are available. Statistics only count the administrative incident of work permit granting or prolongation. Gatekeeping is only relevant for third country nationals without established rights in the labour market. This group can be divided roughly into two categories: •

Those who have already established preliminary residence rights but have no privileged labour market access. They are mainly humanitarian immigrants (e.g. family, asylum) applying from the interior. Usually, they must surpass a labour certification after a waiting period. In some cases of exceptional hardship or for the prolongation of work with the same employer, work permits can be granted without priority check.



Those who would like to establish a residence right on the basis of a job. Most of these labour immigrants have to apply from the exterior (§ 284 SGB III). In a nutshell, these labour immigrants must belong to a specified group and surpass a labour certification.

Key elements of labour certification are the priority rule (i.e. the question whether a German or privileged foreign worker can be found for the job) and the check of predominant working conditions and wages (§ 285 SGB III). For labour immigrants, job descriptions will also be checked in order to find out whether an applicant meets one of the specified exceptional categories. In the case the labour immigrant is still abroad the labour office will not grant a work permit but give the assurance of granting a work permit. With this assurance, the applicant may apply for an entry visa on labour market grounds, which is generally granted if there are no other obstacles (e.g. entry ban because of prior expulsion) from the side of the embassy or local aliens office. After entry, the work permit is granted.

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If labour immigrants want to come with family members, they may also have to prove to the local aliens office that they have adequate housing and income. The various definitions of specified categories for third country nationals from abroad are presented in table 2.

Table 2: Exceptions from recruitment ban Privileged Group / Employment

Legal basis

Restrictions / Conditions

For education and professional training of postgraduates, Au-pair or highly qualified trainees

(ASAV § 2, Nr. 1-4)

Limited to the period of education / vocational training no priority check

Contract workers on the basis of bilateral agreements

(ASAV § 3)

Maximum duration two years no priority check fixed quota

(ASAV § 4, Nr. 1-9) Employment of seasonal workers, assembling workers, language teachers, lecturers at universities, speciality cooks, experts, domestic workers of foreign consular staff etc.

Duration from three months a years up to five years

Employment of scientists, experts, managers of foreign companies, social workers, nurses, artists and models with particular qualifications

(ASAV § 5, Nr. 1-9)

Renewable

Trans border employment: Daily return to the country of origin or only two days a week employment

(ASAV § 6)

Employment on the basis of bilateral agreements

(ASAV § 7)

Priority check

no priority check Renewable Priority check Maximum duration according to the agreement or renewable no priority check

Exceptions in individual cases: foreigners office and Länder Labour Office agree on particular public interest in the employment of the particular person

(ASAV § 8)

Renewable

Regional exceptions for citizens of Andorra, Australia, Canada, Israel, Japan, Malta, Monaco, New Zealand, San Marino, Switzerland, Spain, USA, Cyprus

(ASAV § 9)

Special provisions for IT-specialists since August 2000

(Ordinance for the limited Maximum duration five years employment of ITAbbreviated priority check specialists) Fixed quota

no priority check

Renewable Priority check

(ArGV § 9) No work permit needed for selected range of exceptions in specific branches or positions, e.g. top managers of foreign companies, sport professionals, students and transport workers

Maximum duration according to category no priority check

Source: Own compilation

The dealing with applications from exterior is highly centralised for the quantitatively most important categories: In the case of contract workers, a particular Landes Labour Offices and a particular Local Labour Office are assigned responsibility for a particular nationality. In the case of Poland the Landes Labour Office in Düsseldorf and the Local Labour Office in Duisburg are

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exclusively in charge. In the case of seasonal workers, the central agency for employment (Zentralstelle für Arbeitsvermittlung) is competent only. The reason for centralisation is that a purely local policy would not work with these categories because there are quotas and / or a cooperation with labour administration of other states. We did not investigate into this field of centralised work permit decisions. Local labour offices are confronted with a particular work load. Mostly, they have to decide on resident immigrants without established labour market rights who wish to get a first job or prolong their work permit. As far as applications from abroad are concerned, they may serve categories of workers without priority checks (e.g. top managers, au pairs) and a limited range of other categories with priority checks (namely speciality cooks). 4.2

Who works legally: Outcomes of work permit granting

It is important to note that a large part of the case-load does not concern recent immigrants for labour or humanitarian reasons, but permanent residents with a right to work. Labour certification is rather stock than flow management. Table 3 shows work permits by type in 1998 for Germany.

Table 3: Work permits in Germany by type in 1998 First employment (from interior and exterior)

Renewed and continued employment

Total

Work permit for specific employment

316 103

571 443

887 546

Right to work

86 475

76 093

162 568

Total

402 578

647 536

1 050 114

Source: Bundesanstalt für Arbeit - Referat IIIa4

In 1998, the Federal Labour Offices granted about 1 million work permits7. About 15 % of them granted a free permanent labour market access (right to work), while the vast majority permitted employment for a specific job - with or without priority check. In table 4, we show the distribution of work permits for specific employment in different categories. We select only those work permits that are granted for the first time, thus concentrating on persons who enter the German labour market. Unfortunately, we only have data for 1995.

7

1 Million work permits do not mean 1 million people. One person may have different short-term jobs during a year and need a work permit for each of them.

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Table 4: First employment with Work permits for specific employment 1995 Application from the exterior

Application from the interior

Labour immigrants: exceptions from the recruitment ban In connection with business, licence or export relation

1%

Speciality cooks

1%

Contract workers

31%

Seasonal workers

54%

Other

7% Humanitarian immigrants

Asylum seekers

36%

Husbands and wives of foreign nationals after waiting period

7%

Children of foreign nationals after waiting period

2%

Other

6% Other

Foreigners with a residence title that permits working (e.g. tolerated refugees)

5%

48%

Students

1%

1%

247 029

108 102

Total

Source: PDS-Informationsdienst "Arbeitsmarkt und Sozialpolitik" Nr. 4, März 1995, 36

Table 4 shows that nearly 250 000 or 70 % of all work permits for first employment are granted to newly entered persons, but the majority went to seasonal workers and contract workers who stay only for a short time. Only 108 000 work permits were granted to people already living in Germany, mostly to people who seek acceptance as refugees: Nearly half of internal applications were granted to persons with a residence title which permits working (e.g. de facto refugees after a waiting period) and 36 % are granted for asylum seekers. Altogether, work permit numbers can be characterised as a small but substantial portion of German labour market movements. In 1995, over 3 million job offers were registered with the Labour Office. Work permits for first employment comprise 11 % of this volume. When job offer registration rose to 3.8 million in 1998, work permits for first employment rose accordingly. Table 5 compares Berlin to two other big cities with high proportions of immigrant populations.

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Table 5: First employment with work permits for specific employment 1998 in three cities

Total population Germany

General unemployment rate (annual average)

Work permit for first employment (without right to work) Application from Application from abroad interior

82.037 Mio.

11.1 %

271.209

44.912

Berlin

3.414 Mio.

16.1 %

974

851

Hamburg

1.702 Mio

11.3 %

205

1.649

Munich

1.189 Mio.

5,8 %

3 805

2 348

Source: (Bayrisches Landesamt für Statistik und Datenverarbeitung 1999; Statistisches Bundesamt 1999; Statistisches Landesamt Hamburg 1999)Arbeitsamt München 2000; Bundesanstalt für Arbeit, 2000: source: http://195.145.119.72/hst/services/ anba/jg_1999/jz98/index.html.)

Table 5 shows that results differ considerably in the selected urban labour markets. It is significant that Munich as the smallest of the selected cities grants most work permits for applicants from exterior as well as from interior. An explanation can be seen in the low unemployment rate. The rate of rejection is an indicator of the exercise of discretion - but it is difficult to interpret. It has to be noted that an unknown number of interested employers and prospective employees may restrain from an application after information and consultation.

Table 6: Applications and rejections for first employment with work permits for specific employment 1998 Germany

Berlin

Hamburg

Munich

159 946

9 630

5 286

5 753

Numbers of rejected application for first employment

32 902

3 607

782

631

In per cent

20 %

37 %

14 %

11 %

249 412

8 601

8 875

13 021

Numbers of applications rejected for subsequent employment

34 544

670

1 790

1 790

In per cent

14 %

8%

20 %

8%

Numbers of applications for first employment

Numbers of application for a subsequent employment

Source: Bundesanstalt für Arbeit - Referat für Statistik; Landesarbeitsamt Berlin-Brandenburg - Referat für Statistik; Arbeitsamt Hamburg - Information und Controlling; Arbeitsamt München - Sachgebiet Statistik

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In 1998, about 16 % of new applicants did not get work permits, but rejection rates in the three cities vary considerably. Berlin, the city with the highest unemployment rate, also has the highest rejection rates for first employment with 37 %, while Munich shows the lowest figures with 11 %. However, looking at the figures of applications for continued employment, the picture changes dramatically: Now Berlin and Munich both have rejection rates of 8 % - far below the federal average, while Hamburg is considerably above the average. There could be different explanations for these patterns that we cannot analyse.8 Whatever the explanation may be, differences in rejection rates are so large and inconsistent that it can be doubted that they are only produced by differences in the labour market situation and applicants’ profiles. They may well indicate that there is discretion, and that practices differ between the Länder as well as between Local Labour Offices. In our case study, we try to locate where and how discretion is exercised.

5

A case study of labour certification: Local Labour Office Berlin-South

As we have shown, work permit law describes concrete categories but is fairly open with respect to the interpretation of the categories and the definition of the situation on the labour market. This scope for discretion is limited stepwise by the administrational system of graded control and supervision. Firstly, the Federal ministry of Labour issues decrees for the Federal Labour office. The functional expert within the federal head office in Nuremberg transmits federal decrees and issues federal implementing regulations offering an interpretation for the operational level. There is also a functional expert at the Länder level who may add operating regulations for the state, taking the labour market situation in the area of the Landes Labour Office into account. Finally, the director of a Local Labour Office may issue an authoritative statement on the implementation of the regulation. Regulations are compiled by Local Labour Offices as references for their decisions. Our field research took place within one of these Local Labour Offices in Berlin. With several interviews, we tried to find out how much discretion is left with street level bureaucrats, and how they interpret it. 5.1

AA-Berlin-South: Background and organisational structure

To gain permission for interviews in a Local Labour Office in Berlin, we had to apply at different levels including the head office and provide a list of questions we wanted to ask. After having gained permission, the Local Labour Office Berlin South (AA-South) was assigned to us as an adequate place for interviews. According to NGOs, the six Local Labour Offices in Berlin

8

Is Hamburg more liberal with regard to first employment and Berlin more liberal with regard to the continuation? This could be one explanation. On the other hand, absolute numbers of work permits for continued employment in Hamburg are high compared to Berlin, if you take into account that Berlin's population is twice as big. So it may also be the case that Hamburg is also more liberal for continued employment. The high rejection rate would be caused by a high number of applications - applications which would not even been put forward in Berlin because of the harder line.

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differ with respect to their client orientation in work permit matters. AA-South has the reputation of being friendly, co-operative and client-oriented. The AA-South covers municipal districts as well from the former West-Berlin (Neukölln) as from the former East-Berlin (Treptow and Köpenick). Like all formerly Eastern municipalities, Treptow and Köpenick are characterised by a significantly lower share of foreign nationals in the population compared to Western municipalities. In 1999 the share of foreign population was 12.8 percent for Berlin, but 20.8 percent for Neukölln on the one hand and only 3.8 percent for Treptow and Köpenick on the other hand.9 Our field work took place in the agency of AA-South that covers the areas of Treptow and Köpenick only.10 Here, work permit administration is in quantitatively terms of relatively less importance than in some other Local Labour Offices in Berlin. This is reflected in the administrational structure: There is only one front office with three employees in charge of the treatment of all work permit affairs. This office is a subunit of an ‘Office for Combined affairs’ (Z-office), including also wage subsidies and employer subsidies. This front office is part of a department which is dominated by placement tasks, while the enforcement unit which we discuss in chapter 6 and 7 is part of the benefit department. The Local Labour Office is headed by a director, so that in the direct hierarchy, street-levelbureaucrats are subject to ranges from director, head of department to the head of the Z-office. Organisational structures are different in other Local Labour Offices, primarily depending on immigration numbers. Depending whether a priority check is necessary or not the granting work permits is a two or three step procedure: The first step is located in the work permit office. Here three employees annually treat about 4 000 cases. They receive applications and documents necessary for processing the application, conduct the treatment and prepare a decision. As a second step, the immediate superior officer (i.e. usually the deputy head of Z-office, respectively in the case of his absence the head of Z-office) has to review and confirm with stamp and his signature the decision officially. If a non-privileged applicant asks for a work permit for a specific job, the procedure includes a sort of loop: The front office passes the application on to the employment agency within the labour office. The interested employer has to place a job offer with the employment agency. The employment agency has to examine two aspects: whether wage and working conditions are within the limits of local standards, and whether there are no privileged unemployed persons available for the job. In case of AA-South, there are five employment agents who may each receive about ten applications within a year. These agents prepare a written statement, advising the Z-Office whether a work permit should be granted. Based on this statement, the front office prepares a decision. This short account shows that employees from two distinct departments of Local Labour Office are involved in the work permit processing: the work permit office (front office and decider) and 9

Own calculations on the basis of figures from Statistical Office of the Land Berlin, www.statistikberlin.de/statistiken/Bevoelkerung/b-bz.htm 10 Thus, the use of the term AA-south in the context of this study is restricted to this Eastern agency of the AASouth (Zweigstelle Treptow-Köpenick) while neglecting the Western agency of AA-South in Neukölln.

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the employment agency. In the following part, we describe their tasks in more detail and focus on degrees of discretion. 5.2

Discretion of street level bureaucrats

Having explained the basic application procedure, it is clear that there are two street level offices which may exercise some discretion: the front office with its superior and the employment agents. Two employees of the front office were interviewed jointly during office hours, two employment agents were interviewed jointly, and the head and deputy of the Z-Office have been interviewed separately. Firstly, we analyse work and self-perception of the front office. 5.2.1 Work permit office The three employees of the front office are in face to face contact with the foreign applicants. Although applications may be handed in per mail, many foreign nationals choose to come to the office and inquire about the conditions and necessary documents for a right to work or work permit so that one of the tasks of the personnel consists of consulting. It is the exception that somebody is accompanied by a lawyer or NGO-activist. Thus, foreign nationals are the clients of front office personnel. We firstly describe scopes of discretion in the behaviour towards clients before turning to discretion in the interpretation of individual cases. The first part concerns what happens in contact with clients in the front office, the second part concerns the preparation of decisions and decision-making by the head of the Z-Office or his deputy. 5.2.1.1 Discretion in the behaviour towards clients Building a front office with the task of consulting clients and channelling cases and a back office for decision-making is one way to regulate and to cope with case-loads (Lipsky 1980:116). The front office vitally influences how policies are perceived by clients through their personal conduct and directions of advise. Employees of the front office for work permit matters are aware of this function. They may treat clients more or less friendly and encourage or discourage applications and thus influence how many applications are added to the case-load of their office. There are many client-contacts in which clients want to know whether they have a chance of getting a work permit. Employees describe their reaction: „If people come to us, we do not say directly that they have no chance to get a work permit. We say: Look for a company [which is willing to employ you; authors] and than we will see whether you may be able to get a work permit. We do not say that they do not get a work permit. But sometimes they think that they were assured to get a work permit. You have to be careful what you say. We say: Maybe you can get a work permit“(J./K. 4)

Consulting of clients is confronted with a central dilemma. Getting a work permit for specific employment is improbable (see below) but not impossible. Therefore encouraging migrants can lead to later disappointment, while discouraging them would eventually mean to withhold a right from them. There is a structural incentive for discouraging behaviour: Employees may reduce their case-load by discouraging clients.

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Information from NGOs and impression during the interviews (which were held during office hours) confirmed that members of the AA-South tried to find a careful balance in this dilemma. They treated clients respectfully and helpfully under sometimes difficult circumstances. Professional consulting is also important in the case that a client is not aware of his or her rights. Employees in the AA-South emphasised that they always check whether a client entitled to the ‘right to work’, even if the person only asks for the less favourable work permit. In this case, there are incentives for good advice, as the treatment of work permit application means more work for the staff. However, friendly behaviour and the effort to find a fair balance between informing about difficulties responsibly without discouraging unduly do not have to be typical for German labour offices. It may vary with the case-load pressure compared to staff levels, or with individual attitudes towards work backed within the context of a particular organisational office culture. We are aware that we conducted research in an office with a good reputation. 5.2.1.2 Discretion in the interpretation of individual cases The vast majority of the case-load consists of fairly standardised cases. The head of Z-office estimated that about 98 per cent of the case-load concerns people either need no work permit (but a written statement that they are exempted from the work permit obligation) or apply for a ‘right to work’. In cases of applicants entitled to get access to the labour market the work permit office mainly checks whether all relevant documents to proof the entitlement are available. For example, foreign nationals with a German school diploma and secure residence status usually do not need a work permit. The front office asks for passport, the residence permit and school diploma and prepares the statement of work permit exemption. Or somebody has worked for 5 years with a work permit. If the residence permit is appropriate, the person can get a ‘right to work’. The front office personnel checks their file and their residence documents. Usually, the decisions on exemptions are made within one day, decisions on ‘right to work’ within 10 days. Some cases of applications from abroad are also highly standardised and involve little scope for discretion. In case of Au pairs, front office employees check whether the applicant is below the required age and delivers a required proof of language proficiency. If a restaurant wants to employ a speciality cook from abroad, employment agents will check work and wage conditions and the menu. Usually, cases with work permits are also considered as easy cases: The front office passes them on to the employment agency and relies on its statement for the preparation of the decision. Assigning tasks to experts without client contact may lead to rubber-stamping - the uncritical use of outside expertise in an effort to legitimise decisions (Lipsky 1980: 129). Employment agents seem to assume that their statement determines the outcomes, although the decision is prepared and signed in the Z-office. Generally, employees from the front office and the head of the Z-office describe their work as involving very little discretion. The qualification lies in knowing all categories which are defined in regulations, and in finding ways to subsume individual cases under standardised categories. This is illustrated in the following quotation by the head of the Z-Office: „There are certain professions which you do not know much about. The colleagues in the front office had difficulties to decide these cases. Fortunately, this does not happen to often, but sometimes it does, and then you sit there and then you pore over again and again, because federal implementing regulations are relatively con-

21

crete, partly, yes, but you are not always sure: How do we categorise this case? What we usually do, we speak to the people again and tell them: That's the problem - how can we get it in terms of the law, to make it fitting.“ (H. 8/9).

However, such problems breaking the daily work routine arise only in very few cases taking into account that the head of Z-office estimated that about 98 per cent of the work consists of easy cases without any discretion. The deputy head of the Z-Office emphasises his rule-bound function: „I am strictly bound by regulation. ... only facts are counting. (. I2)

He evaluates the lack of discretion as positive: „It should be concretely regulated. It would be better if everything was clearly regulated. There should be no discretionary decisions in our state, in my opinion. One person sees it this way, the other person another way. There is the danger of arbitrariness - this is my view.“ (I. 2)

According to Lipsky (1980:15), discretion is a central feature of many public functions. This is also a basic idea of administrative law in Germany. Street level bureaucrats have to deal with diverse situations which cannot be completely foreseen and reduced to clear rules. At the same time, Lipsky (1980:149) identifies denying to have discretion as one means of coping in a work environment in which it is difficult to reach substantive aims. The deputy head of the Z-office insists that it is his opinion and his view, indicating that other people may wish to have more discretion in order to serve individual clients. There is only a small number of cases with considerable discretion. The most important kind of discretionary cases concern non-privileged resident foreign nationals who fit into the category cases of ‘exceptional hardship’. As all hardship-clauses, the exceptional hardship clause in German labour law is a means to ease the effects of a restrictive specifications for cases which are unusual and unforeseen. Discretion is a necessary feature of all hardship clauses. Staff from the front office speak about some cases in which it would have been an exceptional hardship to deny a work permit: „It happens only rarely, and it is a matter of interpretation what you consider as hardship. Some people would already see a pregnancy as hardship. Recently we had a case in which we were glad to reach a consideration as hardship case. It was a former drug addict. He had quitted the scene and also moved out of the shared flat which was looked after by a social education worker (betreute Wohngemeinschaft). He had found work, and it was supposed to give him stability, so that his way was stabilised. Normally, he had no right to a work permit, but we did all the investigations, we got the references from the shared flat, and fortunately he got the work permit. Another case was a woman who came here for family reunification. And then the husband had seemingly enough of her and threw her out of the window. He claimed that she had tried to commit suicide, but the woman said that he had thrown her out of the window. Now she applied for a work permit, and then you need to have proofs. In cases like that you hope that they will get the work permit. But we have our laws, we cannot do anything.“ (J./K.2)

In this sequence, employees are motivated to help clients in cases which they see as hardship. At the same time, they clearly indicate that they are bound by regulations and not able to decide themselves. Firstly, their discretion is limited because it is controlled two times within the division of labour and the hierarchical line in the institution. The head or deputy of the Z-Office reviews their decision. In particular difficult cases, the deciders may ask for authorisation by the head of department of Landes Labour Office or by the head of the AA-South.

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On the local level it is the director of a Local Labour Office, who possesses some interpretative discretion. The head of Z-office mentioned an example of discretion exercised by the director of the Local Labour Office: At one stage the director had ordered the Z-office to prolong work permits for ongoing employment without another eligibility check with the argument not to interfere into existing employment. This internal regulation interpreted the external regulation in a more liberal understanding than superiors from Landes labour office, since the head of Z-office commented that “the Landes Labour Office is not happy to hear about that”. But however, the use of discretion on the local level seems to be rare, and they are not encouraged within the institution. As a rule, external regulations are dominant. Specifically, the interviews with the ZOffice head and deputy show that they are always pay attention to the limits set by external regulations. „In cases of hardship, we have to exercise discretion. We have fairly high standards. Hardship cases are only vaguely defined. In some cases, our regulations are a bit more precise, because of decisions by the federal social court, but they cover at most seven case types.“ „There are some cases in our regulations where they cite certain decisions by the highest court. ... and the problem is always, that we do not have these court decisions in the labour office ... Well, we are thrown back on ourselves, often. But these cases do not occur very often, most cases that occur are covered in our regulations“ (H. 6).

Court cases have an influence on the interpretation of individual cases, but they are mainly transmitted via the federal implementing regulations or state operating regulations. The following quotation gives an idea of the kind of categories in federal implementing regulations: „Well, hardship cases are always a headache for us, something to worry about. Not always, rubbish, but often. Well there are certain hardship cases which are in our regulations - I have noted that down - which are uniformly regulated for the whole republic. For example, it would be no hardship case if somebody says that the economic circumstances in his country of origin are bad. Or if he says he is dependent on social assistance and needs a work permit to get out of it. That would be no reason to say: ‚Yes, you get a work permit, because this is a case of hardship.‘ Or if somebody has an obligation to pay maintenance, or if he has to pay something to the state because of an offence. These are no reasons because - that is in the regulations - the exceptions have to be interpreted narrowly. The circumstances of the individual case have to be special, have to stand out of the mass of comparable cases, to substantially stand out of the mass of foreign nationals who apply for a work permit. Otherwise you could take any case. ... A hardship case would be for example if you give a work permit to former German citizens or their children, according to the regulations, or, this is relatively often the case, if somebody waives the right for a work permit in favour of a spouse.” (H. 5/6).

The examples show that exceptional hardship is rather defined in terms of exceptionality than in terms of severity. The quoted example refer to cases in which the applicant has a specific relation to Germany (former citizen) or to a permanent resident (spouse). Exceptional cases have to be rare. A constellation considered as a hardship case may come under closer scrutiny if it occurs more often as the following episode highlights. The head of the ZOffice remembers the case of a refugee who had found an employer and got a work permit as hardship case. „Ok, the social circumstances were such that we said we are able to grant a work permit (laughs), and then within two days there was somebody else from a different company. I had put this cases aside in order to collect them, incidentally. And a week later there was another person from the same company. But we made it clear to them, we said, if more people are coming, we have to consider whether the cases are still exceptional, or if it becomes the rule, if we do it like that. Then - it stopped abruptly." (H. 7)

The hard line in the interpretation of exceptionality and other aspects is attributed to the functional experts at the state level. The following quotation shows that Berlin is relatively restrictive, and that the decider is aware that other states decide differently.

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„For us in Berlin, I think, caused by the Landes labour office. The responsible employee ... stands for a fairly restrictive opinion as far as work permits are concerned - rightly in my opinion. And we do it here similarly, we check the labour market fairly strictly, also with respect to hardship clauses ... Others see it maybe a bit more generous, but I think, that's why we call it hardship, because it should be an exception." (H. 5)

To summarise: Rule-bound categorisation is the main task of the front office and deciders. Even in hardship cases which are by definition not completely categorised in advance, deciders have a strong orientation towards regulative categories. Thus, formal discretion is very limited. At the same time, acknowledging the relatively hard line of the state of Berlin, the deciders concede that there is discretion at the rule-interpreting state level. 5.2.2 Employment agency We now turn to the cases that involve a priority check, mainly concerning refugees who apply from within the country, but also a limited number of exceptional cases of labour immigrants. These eligibility checks are performed by the employment agents. Their major task consists of matching job offers and unemployed persons. In this field of work, they have considerable discretion, enjoy it and use it actively (see Eberwein and Tholen 1987). For them, work permit applications create additional job offers that they may be able to fill with unemployed persons, as employers have to offer a job to everybody before they are allowed to employ a non-privileged foreign national. As far as procedural aspects of priority checks are concerned, discretion is very limited as becomes clear from the account of two employment agents interviewed together: "We do not act without thinking. We have concrete administrative regulations, decrees, we stick to them, we have to stick to all of them. In case of problems, we go to our superior and ask what should happen (M 6) ... The problem is naturally, that we do not only have administrative regulations for this procedure (laughs) but also for others. Over there, I have a full bookcase with folders (points to bookcase), and that is not everything. I know colleagues, who have even more space, and then it gets difficult (laughs) to find the track. Well, most things you know by head ... (L 6)

Following their description of priority checks, we also see that there is some discretion in the intensity of the eligibility checks. With their orientation towards unemployed persons as clients, they actively embrace the Berlin policy to check eligibility restrictively. Firstly, employment agents compare working times and wage conditions in the job offer with the usual conditions on the local labour market. Secondly, they compare the number of job offers with the number of unemployed persons in the concerned category. "If the difference is too big, basically, that was it already." (M3)

In such a case, they ask up to 40 registered unemployed out of their files to apply for the job. Afterwards, they ring some applicants and ask them whether the wage and time conditions really apply and whether the company was willing to employ someone, whether it is a 'serious offer' (M 4). If no placement is arranged, they look for explanations. One reason may be that the employer is only interested in a specific foreign person. „With unskilled workers it is no problem. There are enough people who can do the job. They do not need to be in a job, they do not need to know very much. It is different with qualified workers, for example stonemasons. I had really problems to find adequate applicants. But we found some, ... and then we often find out that they did not want anybody else. When the first stonemason went to the company to apply they said: The job is already taken. Thus, they definitely only wanted one specific person. That leads to a rejection... (M3)

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... most applications lead to a rejection, because most work permit procedures which we get up here are in the construction sector, unskilled work in construction, or in kitchens, kitchen helpers or something like that, and there we have many unemployed persons ... (M: which are privileged) which are privileged, as a rule we cannot certify (authors: that there are no privileged workers). Unless working time is chosen so clever that I cannot find anybody for the job at that time. This is getting difficult“ (L.3).

On request, he talked about an example which we quote because it also shows that legal action against a decision may prove to be successful. "A kitchen aid. I could have send 500 applicants, but working time was only between 21 and 24 at night, and it had to be a female. It was obvious for me: I will find no female kitchen aid in the whole of Berlin who will do this work at night. And I said: It breaks the principles of placement. Why does it have to be a female kitchen aid? There are also male dishwashers, kitchen aids, and they have less difficulties to work at night. And then I rejected the suggestion and we said: There are enough kitchen aids, but not female, and we do not see why it should be a female. Then an objection was raised, we got it back from the Z-Office. I do not remember the reason why it had to be a female and this specific time, but I have decided: This is plausible and finally approved it. Sure, if I can really find nobody for him and he needs the aid, he should get it if he found nobody else. It was just the first impression - You got the feeling that the whole thing was a fake, just to get a certain worker" (L2)

If placement efforts fail, employment agent always think of a fake, a 'stage-managed' job offer in order to get a specific person. In these cases, they write a negative statement. As they speak of a rejection, one can conclude that the application will be automatically rejected according to their statement. Nonetheless, they have to consider the possibility that the placement fails due to the behaviour of the registered unemployed which they have sent for the job. Unemployed persons need to be available for suitable jobs in order to receive unemployment benefits. „Naturally, what has also happened, that an unskilled worker was looked for. The employer said: Ok., I take anybody who fits here if you have somebody who wants to work here. ... It happens that we send thirty, forty placement proposals, and nobody applies, or only a small minority. Because these jobs, even if we file them under a certain category, are not the jobs that the unemployed persons really want to do. Dreaming of their own creativity and other possibilities on the labour market. They really do not go to apply ... And then the employer call us and says: Well, I really tried - we send them automatically the list of proposed persons so that he can see who should apply. And he sees: I have send forty, but only three called, but only in order to say that they have something better in mind or in order to ask. 'Do I really have to come?' Or somebody comes and says: 'Give me a stamp, I need it for the labour office. I just wanted to say that I applied.' Then it gets difficult, because I send another twenty, and it is the same picture. The really privileged workers do not turn up, although I have them in sufficient numbers, nobody, and then I have to say: 'Ok. I do not find anybody. There are people, but it is not the employer's fault, and above all not the fault of the person who wants to do the job." (L3)

The account gives a vivid image of the difficulties to get a work permit for specific employment. It rather seems surprising that there are still so many work permits after an eligibility check. It reflects the restrictive attitude of Berlin authorities which is shared by many, but not all federal states and local authorities. Procedures may vary to some degree in reaction to the labour market situation. There are some labour offices which have negative lists for certain professions – no work permits are granted for jobs in these professions due to high unemployment (Kühne and Rüßler 2000), and other labour offices in which the priority check is not fulfilled with the same intensity. As a rule, strict administrative regulation results in hardly any work permits for manual jobs in Berlin.

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5.3

Self perception and perception of work

Under these circumstances, how do street level employees perceive their work? How do they reconcile administratively ordered aims of work with personally perceived aims? As there is some discretion left - even though employees do not have to be completely aware of taking choices - their aims and orientation towards work influences the exercise of discretion. Asking employees to talk about the success of their work was our way to ask them to reflect on their perceptions. 5.3.1 Employment agency The orientation of employment agents is clearly towards their main work: Matching unemployed persons and job offers. One employment agent describes ‘spontaneous’ placement initiated by his specific ideas and proposals as success: „Without me, it would not have worked out as quickly, this is my personal success. I had the employer and the fitting client and I have brought them together - that is what I should really do here, and that worked out greatly, he could immediately go back to work, could have unregistered (as unemployed). But that happens too rarely." (L. 7)

The colleague adds that there are also ‘small success stories’, for example if somebody had been subsidised employment before, and the employment agent could find a placement in a permanent job in the first labour market. (M. 7). The quotation shows that they see themselves as part of a social profession which has been ordered to take over some control tasks. But what they should really do in the first range is to help people finding jobs, not to control eligibility for work permits and unemployment benefits. Employment agents clearly define unemployed persons in ‘their’ data sets as their clients. The clients may be of German or non-German origin and nationality. One employment agent was specifically proud of organising a language training scheme for resident Vietnamese, i.e. foreign nationals with a right to work being in their files and thus their clients. To respond to the needs of employers was mentioned to be one aspect of the work, but in a marked difference to private employment agencies, serving employers was not emphasised as a primary aim. Having a clear and positively valued aim, employment agents generally identify with their task. Doing priority checks in the course of work permit application procedures is not seen as their ‘real’ work. Federal procedural regulations allow them to integrate the work permit procedure into their usual placement procedures: Employers send a job offer, and they are looking for a match. Their employee orientation is fairly obvious in their description of their control efforts. Employers asking for the employment of non-privileged foreign workers are under the general suspicion to ‘fake’ a job offer. Trying to employ a specific non-privileged foreign national is seen as an illegitimate aim in times of high unemployment. Thus, they clearly embrace restrictive administrative regulations as necessary and scrutinise employment offers thoroughly. 5.3.2 Work permit office For employees of the Z-office, it was much more difficult to respond to the question of ‘success’ in their work:

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„What do you mean? Success, that‘s hard to say, well it is really difficult to speak of success, but what annoys me is an unsatisfactory day, when you do not get forward, when you haven't everything nicely completed“ (J./K. 4).

Being asked for positive aspects of their work, they firstly referred to appreciation of their work by their superior before turning to a material aspect of their work. „Having completed a time-consuming case, and the superior sees and acknowledges the amount of work. And I enjoy it if a work permit for first employment is granted. Recently we had a case in which someone with a toleration (relief from deportation) got a work permit. I think those who have entered should be allowed to work. But the labour market does not allow for that, but one should grant a least a permit for a part-time employment. We have unemployed persons ourselves, but some are not prepared to work“ (J./K. 3).

In contrast to the employment agents who define success spontaneously and identify registered unemployed persons as their clients, employees of the front-office see foreign nationals as their clients. Taking into account the restrictions they have to implement it is not surprising that they face difficulties when defining success in relation to their particular reference group of clients they are in personal contact. Instead, they refer to formal criteria of case-load-management. The same pattern is visible with the deciders, the head and deputy of the Z-Office. „Well, success is for example is when everything works smoothly, there are no complaints from people outside the office, the employees are content, isn't it? Well, if the clients are content, the employees are content, this is success of my work. When our co-operation works out well, which is the case in our office, I think there are not many fields where there is so much harmony as in our field, I have to say so, about the colleagues: They are all nice. And on the other side, success is if your superior sees what you do. That you get your praise there, that contributes to success, and that you may be able to help in some individual cases, somebody sitting there in tears, and you say, that's not right, and then you may find some sort of solution“ (H. 11/12).

The orientation towards the clients is only mentioned in the very end of the passage on success, after talking on working conditions, case-load management and appreciation by superiors. For Zoffice employees the lack of discretion leads to a sort of alienation in their work: They perceive incoming foreign nationals as their clients, but if they grant a work permit, they can rarely attribute it to their own activity because they only followed standardised control and categorisation routines. „We have applicants who are really happy about the granted work permit, and they come here and really express their thanks formally. But we had to decide like that, we could not have decided otherwise. Thus, there is little success“ (I. 2).

Strict regulations and superiors following a harder line, means that they can rarely help their clients, even if they want to: The structural arrangement of division of labour shifts control tasks to employment agents and supervisors. Taking into account that client-orientation has been one central demand of administrational reform efforts (labour office 2000) the work in the Z-Office is caught obviously in a structural dilemma. On the one hand, there is the politically stressed expectation that they have to restrict or at least control access to the German labour market, and that they do this task thoroughly. On the other hand, they are in daily contact with foreign nationals. These are their involuntary clients, and taking the client perspective would be easier with a more generous line in work permit granting. This is well illustrated by the respond on the question about unsatisfactory aspects of work: „What is unsatisfactory for me: If your superior sees a hardship case different than I do, so that the hardship clause is not applied. But this is not very often the case.“ (J./K. 4).

Z-office employees have to guard access to a privilege - but it is not attractive to deny access to a privilege:

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„Well, success, I would not see rejections as success, although - so to say - it is part of the work. But I would not call it success because it is not positive for the people. I could rather see it as success if somebody has committed an offence and we sanction it by withdrawing the work permit or by denying a work permit. You could say that this is success, we have followed that up so that we could impose a sanction. That would be a success although it is bad for the person. But then he has done something, so to say. But normally I would see rejections, even when they are necessary and needed, not as success“ (H. 11).

With this statement the head of the Z-Office reflects not only on the dilemma of gatekeeping functions but indicates a coping strategy salient in the office and, according to Lipsky, typically for street level bureaucrats: Clients are classified in deserving and undeserving categories (Lipsky 1980). People are expected to obey law and regulations and the blaming of deviant behaviour against the law becomes a moral foundation of the own bureaucratic activities. Generally, lack of discretion and shifting of responsibilities rather serve the function of relieving from the conflict between client-orientation and control tasks. 5.4

Summary

As we saw, employees in the Z-Office are bound by fairly restrictive regulations that limit discretion considerably. In the employment agency responsible for the priority check employees enjoy considerable discretion with regard to their primary tasks of placing registered unemployed people, but not so much as far as work permit applications are concerned. Nonetheless, we were able to identify some informal discretion in the behaviour towards clients and the intensity of investigations in the respective administrative units. Even though discretion was strictly limited at the level of street level bureaucrats, their accounts give insight on which levels discretion is exercised: The norm-setting and norm-interpreting force of federal administrative regulations surely has the strongest influence, but the state level has considerable influence as well, as state regulations interpret federal decrees and give operating regulations how to proceed. Thus they are an essential basis for Berlin’s ‘hard line’ in work permit issues. The use of language mirrors this attitude. Employees tend to express their positions in legal technical language, although making an effort to make themselves understandable to the outsider (interviewer). They tend to present decisions in a neutral way, using passive voice and a general pronoun (the German word ‘man’) - a tendency that may not come out clearly in the English translation of quotes. With this legalistic attitude, informal discretion is of minor importance. Only in few exceptional cases at the margins of the highly regulated field discretion is left on local level: Sometimes internal regulations come into force, and sometimes employees may give advice to applicants to make themselves fitting into regulative categories. Employment relations are hierarchical, and employees are aware that their decisions will be subject to scrutiny from higher hierarchical levels. They try to avoid conflict with their superior. Co-operation and open discussions within an office help to achieve this aim. Generally, some statements indicate that employees try to solve cases at their level of hierarchy in accordance with written norms. In intricate cases they seek the advise of the immediate superior officer. Employment agents also ask the head of Z-office as professional authority outside their office to clarify questions. This form of co-operation is an informal consultation. Generally, the division of labour between the Z-office and the employment agency leads to stricter enforcement. Employment agents with their orientation towards registered unemployed

28

persons tend to scrutinise employment offers thoroughly. Z-office employees are relieved from responsibility for rejections since they can refer to external examination that led to decisions negative for an applicant. Employment agents with their clear orientation towards a positive aim have less difficulties identifying with their work than Z-office employees. Control functions in work permit matters consume only a marginal amount of time and tend to be seen as supporting their ‘real’ work. Work permit employees in the Z-office function as gatekeepers to the German labour market. At the same time, they would like to see themselves as servicing their clients – the foreign nationals applying for work permits.

29

Part III: Enforcement 6

National policy framework: Enforcement

Illegal employment became an important issue in the public discourse in the last two decades (cf. Cyrus and Vogel 2000).11 The administrational endeavour to combat illegal employment was significantly enhanced. This chapter offers information about the organisational input in controls and administrative data on sanctions. 6.1

Who controls

Employers can be characterised as gatekeepers. They have to ask the employee for work permits if they intend to employ him or her. They may ask for passport and work permit on top of social security card and tax card. More importantly, they have to register the employees social security number with the health insurance (or apply for a number, if there is none). German labour authority have developed two separate strategies of cross-checking data to detect illegal employment: There is an immediate computerised cross check for false or misprinted social security numbers (DALEB). It makes invented numbers improbable and document forgery more difficult. Furthermore, a quarterly cross check of national employment data with national work permit data (‘Kontospiegel’) identifies cases in which there is no matching labour permit for a social security number of a foreign national and submits this information to the local employment administration (Lüpke 1997:28). Therefore, undocumented work usually requires open compliance between employer and employee and results in employment off the books. However, government reports on illegal work mention the increasing importance of cases of forged papers, especially E.U. passports, used for regular, tax-paying work (Bundesregierung 1996). If somebody works off the books, the employer does not necessarily know that an employee has no work permit12 but s/he certainly knows that s/he should have deducted payroll taxes. Payroll taxes are very high in Germany. About a third of labour costs (gross wages plus employer contributions) have to be deducted as social security taxes. Social security taxation starts below subsistence level, and total tax rates including income taxation may well exceed 50 % for middle class taxpayers.13 At the same time, subsistence benefits and unemployment benefits are high

11

For recent empirical studies of shadow economy in Germany see Schneider, F. and D. Ernste (2000). Schattenwirtschaft und Schwarzarbeit. Umfang, Ursachen, Wirkungen und wirtschaftspolitische Empfehlungen. München und Wien, R. Oldenbourg Verlag. and Lamnek, S., G. Olbrich, et al. (2000). Tatort Sozialstaat. Schwarzarbeit, Leistungsmißbrauch, Steuerhinterziehung und ihre (Hinter)Gründe. Opladen, Leske und Budrich.It is worth to mention that both volumes do not deal explicitly with the shadow activities of foreign nationals but deal with the shadow economy as a national phenomenon. 12 Taking into account that the work permit office is occupied with the preparing of letters of content confirming that a foreign worker is exempted from work permit duty – a ‚document‘ not foreseen by law – the pressure on foreign workers to proof their right to work by law obeying employers is obvious. 13 Contribution rates are calculated from gross wages without employer contributions. They add up to 21 percent in 1998 for an employee, and the employer has to pay the same share. Income taxation starts with a tax rate of 26 percent but leaves a family related subsistence income tax free. Jobs below the tax exemption limit of the social insurance were liable to an flat rate income tax of 20 percent. In 1999, this flat rate income tax was substituted by a partial inclusion in social security contributions, a change that weighs heavily on holders of second jobs

30

relative to net wages in many occupations (although not in relation to general German living standards). In certain crafts, occupational regulations are fairly strict, so that off the books employment or self-employment is a choice for people who see themselves capable of exercising a craft but lack formal qualification. Immigration control in the labour market is exercised in this context. Working without the required permit is seen as one type of illegal work, besides namely benefit fraud and social security tax evasion (Bundesministerium für Arbeit und Sozialordnung 1999). Detecting illegal work is the task of specified enforcement units, which co-operate with a range of other authorities responsible for sanctioning. Enforcement units were gradually built up since the eighties, originally only within the Federal Labour Office. In the nineties, enforcement was intensified: Co-operation arrangement were institutionalised; customs officers (which had less usual customs tasks due to the Single European Market) were assigned to basically the same tasks in 1991; and a number of specialised units were founded, e.g. the AD-Bau, which we have chosen for our case study and which will be further examined below. In 1981, only 50 labour inspectors were placed in specialised departments for the combating of illegal employment. In 1997 the number had increased to 2 462 employees at Labour Office and 1 074 inspectors in Customs units in charge of the combating of illegal employment (Bundesministerium für Arbeit und Sozialordnung 1997:11). The development of staff according to a federal report is shown in Table 6.

Table 6: Control personnel at Labour Office and Main Customs 1996

1997

1998

1999

Labour Office organisational Units for the Combating of illegal employment (Organisationseinheit zur Bekämpfung illegaler Beschäftigung)

2 554

2 607

2 621

2 796

Labour Office benefit departments („Regulatory Offences; work site controls“) (Leistungsstellen „OwiG, Außendienst“)

1 466

1 515

1 535

1 558

Specialised departments for the combating of illegal employment at selected Labour Offices (Bearbeitungsstellen zur Bekämpfung illegaler Beschäftigung bei den Stützpunkt-Arbeitsämtern)

519

524

516

649

Work site inspection groups for the construction sector (Außendienstprüfgruppe Bau)

570

570

570

589

1 000

1 000

1 000

1 074

Customs Authorities

but is less important in this connection as the jobs already had to be registered under the social security number before the recent changes.

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Total

3 554

3 607

3 621

3 870

Source: (Bundesregierung 2000: 70 f)

The figures indicate the high priority of efforts against illegal employment in the political discussion. After moderate employment growth in the late 90s, enforcement experiences a further substantial rise in 2000/2001. Customs authorities will increase personnel to 2 500 with a constant of about 2 800 with the Federal Labour Office. These enforcement units choose a work-site and check everybody on the place. Occasionally, if large construction sites are inspected, several organisations (different types of enforcement units and police) participate in the control. Unlike enforcement agencies in many other countries, which check companies only in cases of substantial suspicion, German enforcement agencies conduct also random controls. This condition explains the high amount of controls in a given year. Table 7 shows the extent of controls in 1998.

Table 7: Labour market inspection by Federal Labour Office and Customs authorities in 1998 Inspected companies Inspected pay and registration data Federal Labour Office

157 451

Inspected persons 980 278

440 447

Customs authorities

no data available

223 000

162 000

Total

no data available

1 203 278

602 447

Source: Bundesregierung (2000)

The last number is the most important: About 600 000 people have been checked during workplace controls. With a labour force of about 34 million, you can calculate a rate of nearly 2 controls per 100 employed and self-employed persons and year - having in mind that the risk of being controlled is substantially higher in some geographical regions (urban agglomerations) and sectors (e.g. construction) and virtually zero in others (e.g. banking). For Berlin it is stated that on average every hour a control is conducted (Senatsverwaltung für Arbeit 2000: 3). If the controlled person is a regular German or foreign resident, co-operation means basically paperwork co-operation. Enforcement units send identification data to other authorities, so that they can take further action, if necessary. The most routine procedure: All data are sent to another department in the Labour Office that checks whether the controlled workers are enrolled for unemployment benefits. If so, they may have to pay administrative fines (for announcing the new work too late), or the case may be handed over to a public prosecutor because of benefit fraud. Similarly, other authorities are informed as a more or less routine matter, especially local welfare offices (concerning welfare benefit fraud) and pensions funds (responsible for social security tax evasion, investigating cases against employers). If the controlled person seems to be foreign and produces no or a seemingly forged passport or residence permit, enforcement units need the police for further clarification and possibly arrest. This may be a special police unit (for example in Berlin) or the general police.

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Although this is the main organisational structure of immigration enforcement in the labour market, one more specific feature of the German situation has to be noted. Every public authority has to inform the Aliens office if it detects illegal residence in the course of its work (§ 76 Foreigners Act). Additionally, local co-operation agreements may encourage other officials to supply information about suspected illegal work or residence, even though they have wide to full discretion in doing it. Thus, a number of other control-oriented inspectors are dangerous from the perspective of the foreign national without residence permit as potential informers. There are a whole range of officials from different authorities which may observe irregularities during visits, for example local authority officials in charge of hygiene or communal authorisations, branch specific accident insurance, and benefit and tax authorities. 6.2

Who is controlled and sanctioned

Work without work permit is forbidden for both the employer and employee (§ 404 (2) 2. and 3. SGB III). For employees, working without work permit is only a regulatory offence (§ 404 SGB III), but: Illegal residence is a criminal offence (§ 92 Foreigners Act). While foreign residents without work permit (e.g. asylum seekers) face administrative sanctions after paperwork examination, non-EU nationals who seem to have neither work nor residence permit are handed over to the police. This also includes tourists whose stay is legal as long as they do not work, e.g. Polish people who used visa-free entrance. The minor regulatory offence (illegal work) will not be prosecuted in their case. The consequences of the major offence (illegal residence) depend on a number of factors within the aliens administration and the public prosecutors offices. A person without residence permit will definitely be expulsed and may then be released for „voluntary“ return, detained or deported. As a consequence, the person is not available any more if s/he may be needed as witness in the case against the employer. For employer, the consequences depend on the severity of violation: If an employer employs people without work permit for a long time, repeatedly or in large numbers, criminal sanctions apply (§ 407 SGB III). The same is true if pay and working conditions are excessively low (§ 406 SGB III). Enforcement units hand cases over to the public prosecutor for further investigation. If the violation is less severe, the Labour Office prosecutes employment without work permit as administrative offence. It has a variation of means, starting by a warning letter and ending by administrative fines up to half a million DM. The institutional enforcement structure poses problems assessing outcomes of immigration enforcement in the labour market as every organisation produces its own procedural statistics. These data show how bureaucratic organisations deal with their caseloads, but nonetheless policy makers and scientists often have to rely on these statistics - a well-known problem in migration research (Barbesino 1998:148). To inform policy makers, there is a government report on a number of related enforcement activities, which appears every four years (Bundesregierung 1996; Bundesregierung 2000). Unfortunately, it does not make an effort to consolidate data. Table 8 summarises the main sanctions in relation with immigration control in the labour market and shows the results in terms of sanctions.

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Table 8: Main sanctions in connection with illegal work by foreign nationals, 1998 labour market role of offender

employer

type of offence

employee

administrative offences illegal employment (normal cases)

primary way of finding suspects

illegal work

employee criminal offences

illegal employment (serious cases)

illegal residence

work place controls by labour and customs units, usually reacting to information cross check of employment with work permit data (Kontospiegel)

clarification of suspicion typical sanction

employer

Labour Office administrative fine

Investigation of suspicious cases: search of bureau; interrogation of suspect and witnesses

Police passport controls (during routine controls, on criminal investigations, on information)

public prosecutor with help of police

administrative fine

criminal fine

expulsion, deportation

number of opened 39 728 cases

34 356

4 736

140.77914

number of sanctions

8 086

/

38.479 (deportation)15

17 582

Source: Bundesregierung (2000: 101)

Table 8 shows that administrative offences are the most important way of sanctioning illegal employment by foreign nationals. Criminal sanctions against employers are of minor importance. On the other hand, work place controls are only one way to identify foreign nationals without residence permit. They may also be detected in police controls, for example in traffic controls, discretionary controls in railway stations or the border area, in the course of criminal investigations or in reaction to information. Table 9 shows how suspicions, administrative sanctions and size of fines developed in the 90s.

14

The figure encompasses the number of suspects without legal residence status. Source BKA, B. (1999). Polizeiliche Kriminalitätsstatistil 1998 für die Bundesrepublik Deutschland. Wiesbaden, Bundeskriminalamt.. 15 The figure encompasses the number of deportations. Source: BMI, F. M. o. t. I. (2000). Policy and Law Concerning Foreigners in Germany. Berlin, Federal Ministry of the Interior..

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Table 9: Development of sanctions (Labour Office) against illegal employment of foreign worker in 1998 (AFG 229 and SGB III 404) Employee Year total number of suspected persons

% forwarded for criminal persecutio n

Employer

% of cases average with fine in administra DM tive fines

total number of suspected companies

% forwarded for criminal persecutio n

% of cases average with fine in administra DM tive fines

1992

22.430

7,5%

11,4%

131

23.353

9,5%

27,2%

842

1993

38.805

7,3%

14,2%

135

35.422

6,0%

31,5%

1281

1994

40.052

6,2%

17,0%

128

37.564

6,2%

40,9%

1465

1995

39.416

7,5%

17,9%

133

39.165

6,7%

49,0%

1667

1996

41.254

10,0%

21,1%

152

44.384

9,0%

48,1%

1649

1997

37.719

14,9%

23,9%

136

40.210

13,3%

52,0%

1947

1998

34.356

13,2%

23,5%

237

39.728

11,9%

44,3%

2698

1999

34.923

13,9%

29,3%

300

40.906

11,3%

45,9%

3221

Source: Bundesregierung 1996: 93 for the years 1992-1995; Bundesregierung 2000: 101 for the years 1996-1999

Table 9 reflects that the increase in personnel in first half of the 90s lead to an increase in suspected cases, whereas the second half of the 90s seems to be characterised by a concentration on more serious cases - from quantity to quality. Until 1997 the percentage of cases fined or forwarded for criminal persecution rose and stabilised thereafter. It is important to note that even in 1999 less than thirty percent of all cases lead to administrative fines - average fines being low around 300 DM/ case. This reflects the fact that many cases are of minor importance - for example concerning regular residents who have forgotten to prolong their work permit. As far as employers are concerned, the average fine went up from 842 DM in 1992 to 3221 DM in 1999. With regard to the fact that the most serious cases were passed over to the public prosecutor and that in some cases the fine is quite impressive - the Landes Labour Office mentions cases with a fine of 500.000 DM - the average fine for an employer is quite modest. These amazingly low fines are also partly due to minor offences (e.g. late registration of work that could be authorised in principle), but partly due to the difficulties to prove substantial unauthorised employment. In an interview, the responsible Berlin public prosecutor16 in charge of cases of organised illegal employment complained that evidence is often not sufficient to reach a sentence. In 1999, his department finished 1 225 cases. 864 cases were dismissed and only 30 cases were perceived to be so serious and the evidence sufficient enough to bring a charge - other cases ending with ad16

Interview with Oberstaatsanwalt Klatt, Department 27, Dezernat 3 St, der Berliner Staatsanwaltschaft, November 2000

35

ministrative and other minor sanctions (Senatsverwaltung für Arbeit 2000: 43). The high rate of dismissals of cases – according to the public prosecutor is however not unusually high compared to other departments - indicate the severe problems to impose sanctions on employers. For public prosecutors the quality of investigations is more important than the quantity of cases, as a sequence from an essay in the reputed weekly magazine „Die Zeit“ indicates. The general public prosecutor Hans-Jürgen Karge is quoted with a harsh critique against the populist strategy to employ more control personnel: „Always increasing control staff may lead to good public relations perhaps but is not helpful. Then 100 policemen raid a construction side, arrest 20 undocumented foreigners, and afterwards 20 solved cases are announced. But in reality nothing is solved. In reality the public prosecutor has only more useless rubbish files on the table without any perspective to bring a charge“ (Fichtner 2000).

The critique basically states that control resources are not invested under the principle of efficiency but under the principle of visibility. Economically speaking, you can get the best results in terms of efficiency if you invest extra resources in the bottleneck of a production process. A policy that neglects this rationale systematically produces frictions in the process. Like other employees control agents are forced to react to these frictions. In addition, they share the general dilemma of ‘street level bureaucrats’: Public expectations are high, but capacities are limited. We will now turn to the case study to explore such strategies of ‘street level bureaucrats’ in a control unit.

7

A case Study of enforcement practices: The AD-Bau in Berlin

The control unit „AD-Bau“ (Prüfgruppe Außendienst Bau, i.e. Work Site Inspection Group Construction) existed in Berlin from 1. August 1995 until 30. September 2000 as one of several administrational units in charge of labour market controls. We analyse the empirical findings from several sources: newspaper analysis, a one-week participant observation, the information from five in-depth interviews and a number of additional informal conversational interviews form the basis for the case study. The following chapter is divided into four parts: Firstly, we give an introduction on the history, public perception and organisational structure of the AD Bau. Secondly, we analyse their work focussing on the exercise of discretion. Then, we turn to their perception of themselves and their work, finally summarising the organisational culture which arises from these descriptions. 7.1

Background and organisational structure

With regard to the institutional mission of the AD Bau, we distinguish two levels: On the one hand, there is the specific mission of this particular control unit – derived from its institutional history, political expectations and public perception. On the other hand, the control unit is embedded in the general legal framework of labour market control. Initially, the AD-Bau in Berlin was introduced 1995 as part of a federal program introduced to pacify a fierce conflict about the employment of contract workers from Eastern European countries. At that time, construction boomed. Nonetheless, a growing number of local construction workers became unemployed while the numbers of foreign workers on constructions sites in

36

Germany increased significantly (Cyrus and Helias 1993; Köbele and Leuschner 1995; Faist, Sieveking et al. 1999). Therefore, Trade Unions and some Construction Employers Associations (Hauptverband der deutschen Bauindustrie and Zentralverband des Deutschen Bauhandwerks) demanded abolishing the contract work system. They complained about unfair competition because contract work enables foreign companies to compete under country-of-origin conditions while German companies have to pay German taxes and wages. To cope with this powerful criticism, the federal government reduced the fixed quota of contract workers. Furthermore, the Federal Labour Office was directed to enhance efforts to control construction sites with foreign contract workers - with the argument to prevent irregular working conditions and illegal employment coming along with the contract work system. For that purpose the Federal Labour Office introduced a program for the additional employment of 1 000 work site inspectors for three years. Fees from Eastern European contract enterprises financed the program. The new control forces were organised in separate control units, called AD-Bau, and located in urban areas with a high share of contract workers (Faist, Sieveking et al. 1999: 171). The Landes Labour Office Berlin-Brandenburg qualified for the federal AD-Bau program and was the first to found such a unit 1. August 1995. 150 employees were employed - including people with language skills in Polish, Russian, Bulgarian, Spanish, English and French. After three years, the unit was not closed down but had to reduce personnel from 150 to 85 employees. It was attached to a Local Labour Office as an independent unit on 1. January 1999. At the same time the sphere of responsibility was widened: The unit was no longer restricted to the control of construction sites. However, the emphasis of activities did not change substantially (Senatsverwaltung für Arbeit 1999). At the end of September 2000, the AD-Bau was liquidated in Berlin. The personnel was integrated into a new Labour Office department that combines control staff of several formerly independent control units. Being introduced as a measure against abuse in the contract work system, political and administrational sources portrayed the AD Bau as a measure directed against illegal employment by foreign nationals in the construction sector - even after rearrangement of the sphere of responsibility (Senatsverwaltung für Arbeit 2000).17 The picture of the enforcement agency in the media was shaped accordingly. Emphasis lay on combating illegal employment of foreign workers.18 Several local and federal newspaper continuously report on the shadow economy and like to pick up the action-orientated AD-Bau to portray control efforts. A good example is the announcement of a TV-feature broadcasted in 1997 that give - by the way - already some insight on the work of the AD-Bau: „Wild west on construction site: On the work of inspectors in Berlin. ZDF,19 21.15 o’clock. - Out of sight of the scene of crime, mostly in the centre of Berlin, the civil servants gather. The day before, all documents have been prepared, the concept of action discussed. On air the commando comes, the action cars reach the scene of crime with an element of surprise. Suddenly all exits are blocked. Men and women with armlets and writing

17 18

Senatsverwaltung für Arbeit, Soziales und Frauen (2000). Web archives of Berlin newspapers were searched for articles on AD Bau and related topics. Some headlines at time of introduction: Tagesspiegel from 15. June 1995 („Enforced combatting against illegals. Special task force will investigate against moonlighters from Eastern Europe“); Berliner Zeitung from 15. Juni 1995 („Illegals on construction sites will be caught. A particular task force will carry out more controls“); and Handelsblatt from 13. July 1995 („In Berlin a special task force takes up the fight against illegal employment of foreign workers“). 19 ZDF, i.e. Zweites Deutsches Fernsehen is one of the public tv-companies.

37

utensils start to control the persons present, to ask for valid identity cards and work permits. This is a part of the work of the „Special Investigation Group AD-Bau“ of the Landes Labour Office Berlin-Brandenburg. With every action on the construction sites in Berlin and Brandenburg they discover illegally employed workers, unauthorised workers: Russians, Nigerians, Poles, Bulgarians, who slave away on the construction site for scandalously low dumping wages - the record being one Mark per hour. The Berliner ZDF-journalist Ulli Rothaus and his cameraman Vernon Winter accompanied the civil servants two weeks on their actions. They do not only want to show the controls but inform about results. Terms like main contractor, subcontractor, and its structural forms will be explained, affected corporations interviewed“ (Berliner Morgenpost 16.5.1997).

The demand for more controls is contested by the liberal media: „Controls are continuously expanded, maximum fines increased - with poor results. It would make more sense, to make the work cheaper which is otherwise no more affordable. Less complex rules for taxation and other contributions or the making of a sector of cheaply paid labour could motivate some men in the shadow to return to the light“ (Tagesspiegel 4. September 1999) (Jahn 1997).

Furthermore, immigrant associations and human rights groups challenge the control activities on other grounds. In the early nineties, a radical left wing grass root group even created and distributed a poster accusing inspectors to execute a racist policy of exclusion and to ‘hunt foreigners’20. A more moderate critique of immigrant- and human rights-associations says that the practice and results of the enforcement activities mainly affect employees and not employers. Moreover, the repressive control approach is blamed to lead to a situation which undermines security and negotiation power of foreign workers and increases their vulnerability (Cyrus 1995; Cyrus 1998). Taking the public discourse into account, it is not surprising that superior civil servants of the Landes Labour Office who authorised our research project paid some attention to express their point of view – focussing on the overarching mission of labour market control and rejecting public expectations: It was stated that it is most important for the Labour Office to perform controls while strictly observing the juridical categories of offences and the procedural norms codified in legislation and federal implementing regulations. It was striking that superior civil servants of the Landes Labour Office repeatedly insisted that the AD-Bau has no particular focus on foreign workers. This view was substantiated with the argument, that Labour Office inspectors have to examine every person met on work sites regardless of nationality. Deviant behaviour, not nationality, is the only aspect that matters. The Labour Office, it was stressed, would neither perform nor accept xenophobia. Moreover, it was emphasised that the main target of the institution is to detect and sanction employers. According to the federal government, the goal of control units in the Federal Labour Office is „to guarantee the order on the labour market, to deter those who want to gain an advantage over orderly competitors by irregular conduct and to compensate partly the irregular advantage by fines“ (Bundesregierung 2000:30). In accordance with this overarching mission, the official tasks of labour control are defined in an enumerative way, neither prioritising sanctions against Germans or foreign nationals, employees or employers. The AD Bau makes no exception to other control units as far as this general mission is concerned. While they are different with respect to 20

The anarcho-syndicalistic grass root group offered a poster in six languages: „Raids – No way! Police, Labour Office and trade unions are checking up on building sites, restaurants and hostels. Every day hundreds of our fellow-workers are beeing arrested – not because they killed the boss, no, they worked for him. Raids don´t hurt the employers, only the workers. Raids help the bosses to pay us less and make us work more: With constant fear of fines, prison, or even deportation, it´s hard to fight for higher wages and better conditions. If we let them divide us in „legal“ and „illegal“ workers they can exploit and oppress all of us just as they please“ Wildcat (1995). Schluß mit den Razzien. Kampagne gegen Jagd auf ArbeiterInnen. Quer.

38

choice of controlled work sites, they are not different with respect to the conduct on a work site and the legal and legitimising framework of these controls. As a mere investigation unit, the AD Bau had to deliver results to the offices in charge of fining or penalising. It had to follow two institutional orientations: The intra-institutional task of the AD-Bau was to detect offences in the areas of benefit fraud and work permit legislation within the sphere of responsibility of the Labour authorities. Additionally the inter-institutional task was to report the detection of every offence not covered by the competence of the Labour Authorities to the respective competent authority in charge. Moreover, it is important that the AD Bau and a number of other control units are located in the Federal Labour Office with the general aim of getting unemployed people into work. Order in the labour market is seen as one prerequisite for fighting unemployment, supporting other activities of the institution. During our field research the control group consisted of 85 persons, about half of them female. The service with the Labour Office was the second or third profession for the vast majority of the AD-Bau employees. They had acquired the necessary professional knowledge by intraorganisational vocational training schemes and on the job. Most of the AD-Bau employees were ranked as junior officials in charge (OfficeSachbearbeiter). The unit was organisationally divided into three teams, each supervised by a head of a team (Gruppenleiter). The head of the AD-Bau (Leiter der AD-Bau) supervised and coordinated all activities. All control inspectors dealt with the same aspects of the work. The ADBau employees had a clear consciousness of official hierarchy. The distribution of tasks and competence was accepted and appreciated as a clear orientation. Within this frame of orientation the daily composition of action groups changed and the different tasks during actions were redistributed continually - with the exception of preparation and planing of actions. A specialised team of four employees was in charge of this task. 7.2

Discretion

Daily routines can be divided into the three steps preparation of raids, conducting of raids and the administrative work in the aftermath of raids. Working time was evenly divided between exterior activities on the work sites and interior activities in the office. Each of these procedural steps includes some space of discretion. 7.2.1 Discretion in the preparation of raids: choice of work-sites From a legal point of view, work site control units are absolutely free to choose any workplace, without warrant or any procedure to defend their choice. While we have so far portrayed processes with very limited discretion, we now turn to a decision with a high degree of discretion. We firstly describe the general way of exercising this discretion before turning to two exceptions. A typical decision making process for the choice of construction sites encompasses three steps: a) Generally, starting point for control activities is the collection of hints indicating suspicious facts.

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b) The observation and planning team select some for further investigation, which means an incognito visit of the pre-selected construction sites. c) Finally, the head of the AD Bau decides on the choice of work sites. a) The collection and analysis of information is the first step preparing a choice. Members of the observation and planning team distinguish three kinds of hints: Information from the population, information from organisations and information by members of their own unit. Information, often anonymously from population: AD-Bau employees speculated that such informants may be economic competitors, or family members of unemployed native workers who connected their situation with illegal employment, or just a neighbour with xenophobic attitude or disturbed by noise pollution and dirt or . Accordingly, hints are often very vague (e.g. merely informing that many foreign workers are present on a construction site and a Babylonian mix of languages rules). Organisations: The second source of information are organisations like police or trade unions who observed or were informed of suspicious facts. For example: The criminal police was taking a person to a construction site because he had his papers there. While they were checking his papers, they saw about five or six ‘Poles or Russians’ at work whom they found suspicious and informed the AD Bau (field notes, 2000/7,14) . AD Bau inspectors: The third source is the observations of AD-Bau inspectors themselves: During participant observation it became obvious that employees checked construction sites with a scrutinising glance when passing them accidentally. Some inspectors confirmed that they pay attention to construction sites: Asked for suspicious elements it was told, that for instance, the observation of „black men handling rubble“ is perceived to be a first indicator. More generally, the AD-Bau head explained that construction sites with some visible degree of disorder are suspicious. According to their experiences, a bad outward appearance is very often linked with more irregularities (field notes: 2000/07: 15). b) On the basis of incoming information, members of the observation and planning team select construction sites. Inspectors preferred hints with concrete information on offences. They also prefer information from other organisations like police and trade unions, as they attribute a better insight and more experience to them. However, since the majority of information is very vague and often anonymous, feasibility gains importance as criterion: The work site has to be manageable for the personnel available. For practical reasons those work sites will be preferred which are not too far way from each other. Members of the ‘planning and observation team’ explore the pre-selected construction sites. The incognito visit of a work site has the aim to scrutinise the information and to explore the logistic demands connected with the particular work site. Inspectors enter the work sites and try to find indicators of off the books employment (e.g. presence of foreign looking persons, especially connected with a badly managed building site). If someone asks about their concern they normally pretend that they are looking for a company or a particular person. c) The planning and observation team presents the results of their work to the head of the AD Bau and discusses them. He decides on the choice of construction sites. At this level, feasibility is of major importance. First of all, the work site has to be controllable for the personnel available to a given moment. Thus, the decision on the frequency and the amount of controls served as an internal means to regulate the amount of work.

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The typical decision procedure is complemented by two exceptional trajectories: It is a political demand from the state level to control huge construction sites with some regularity. The strategic goal is to show regular presence on symbolic places like Potsdamer Platz and thus to make sure that every huge construction projects will be inspected sooner or later. These controls require cooperation with other agencies and therefore longer planning. The other exceptions are spontaneous controls. In two of the three work site controls in the field study, inspectors bridged waiting periods by controlling a nearby snack bar, after permission by the head of action. To sum up, the selection of the work sites for control contains considerable discretion. It is obvious from the employees’ accounts, that the presence of foreign looking or sounding workers is perceived to be a suspicious element not only for informants but for the AD-Bau decision makers too (Cyrus and Vogel 2001). 7.2.2 Discretion during action At first sight there is no extensive discretion in the course of controls. Inspectors have to control every worker on a work site.21 The aim is to collect all relevant data, or to formulate literally: To fill a form for every single worker with all relevant data. The inspectors declared that no personal discretion is left because they have to act according to a number of basic principles. Some of these principles that guide every action were codified in federal implementing orders (Durchführungsbestimmungen Außenprüfung) and some were more indirectly derived from general procedural norms concerning the exercise of formal discretion. These codified principles offer a guideline for action. We present the principles that turned out to be of particular relevance in the observed control activities. We traced these relevant principles from the accounts of the employees and the observation of their conduct. 7.2.2.1 Interrogate every worker on the work sites The primary task is to control every worker on a work site without exception. This principle sounds clear, but it is sometimes difficult to decide who is a worker and who is not. Two cases from the participant observation may illustrate the problem: In the first case a man had left the construction site - an old house under reconstruction - at the moment the action cars reached the ‘scene of crime’. The man was stopped in front of the house and asked to return. The interrogation started. According to his appearance the man had not worked. He declared that he had only looked for a flat to rent. The flats however were still far from being able to be rented out. Thus the inspectors suspected that the man could be the employer of some illegally employed foreign workers. However, since no witness and no further suspicious fact could be found the man could leave after answering questions. In the second case, a snack bar was situated immediately beside the construction site. When the action started the inspectors saw a man foreign looking with dark hair and old-fashioned clothes. He stood at the fence of the construction site, however, on the side of an adjacent snack bar. He had a bag with bricklayer tools, but he was obviously not working. Inspectors treated him as a worker and started the interrogation. This treatment was selective since a number of 'German 21

With regard to the heterogeneity of enforcement in Germany it is important to take into account that other enforcement units like police or border patrol concentrate on foreign looking people. Thus, complaints on raids only controlling foreign looking workers and leaving out German workers concern the control work of these enforcement unit we do not deal here with.

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looking' people in working clothes from surrounding work sites visited the snack bar without being controlled. It turned out that the man had no valid documents and the residence status was dubious. Thus, the inspectors had to inform the police. These two cases illustrate that the allegedly clear order to control every worker present on a work site includes a slight zone in between. Moreover, the two anecdotes revealed a motivation to interpret the circle of controllable people extensively. While the motivation in the first case was to find an employer, in the second case the chance to detect an illegal residence was triggering the extension. 7.2.2.2 Document all relevant data during the control The second principle is to collect all relevant data during a control. This task seems to be straightforward since inspectors use a questionnaire for interrogations defining all relevant aspects. The structured questionnaire is available in several bilingual versions and offers a clear guideline of questions and their sequence. The goal is to get an answer to every question relevant for the category of worker asked, and this was perceived to be much easier on the work site then by later investigations. The relevance of written documentation of procedural steps and results became obvious during the participant observation of the controls and the participation in the internal training scheme. The AD-Bau inspectors appreciated the norm that written documentation should be as complete as possible: „Certain matters are fixed by the course of procedure, the processing of regulatory offences includes a fixed procedural course, it is expected to meet the demands with high quality in time. These are important matters because the procedure has to be completed by a colleague in the case I’m absent. A good management of files is important, in particular in that area of concern. Many records are important as evidence for persecuting offices, therefore it is necessary to open files with accuracy“ (C. 3).

Moreover, it was interesting to observe the commitment to get true answers. Inspector D. explains his philosophy: „If I - as a worker - offend against legal regulations, then I have to expect that it will be fined. In such cases I tell him, we will by all means detect it. We will detect the truth about the receiving of unemployment benefits by all means“ (D. 4).

Officers were looking for suspicious behaviour and answers - every attempt of a worker to hide or to escape or answers like: „I have not worked here but visited merely a friend“ (or alternatively „asked for work“). „I just have started the job for the first day“. Then, the officers asked other workers, sometimes showing a Polaroid photo of the suspect, for how long the suspected worker had already worked. In suspicious cases the documents were scrutinised with particular care. The lack of necessary documents became more important as in cases without further suspicious facts. Inspector C. explained: „I’m annoyed when it is not possible to explain to the other what’s the matter, when someone tries to make a fool out of me. If someone says for instance that he is working the first day - this is a fairy tale. From the point of view of the other it is understandable, but it satisfies me to prove employment in these cases“ (C. 2).

The following case illustrates this orientation to get the ‘truth’: In one raid a member of the planning and observation team directed the attention to three workers he had identified as Kurds on his exploratory visit. Particular effort was made to surprise the three men still working. Two of them had no papers, while the third declared to be a EU-citizen and presented a Spanish pass-

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port. They fetched a Spanish-speaking inspector who tried to start a conversation in Spanish but the man was unable to communicate. The document was examined with particular care and the officers detected some indicators that the passport was probably forged. Therefore the police was informed. One officer told the researcher later that it was really forged - so he took care to get feed back from the police. 7.2.2.3 Conduct lawfully and protect yourself All public authorities in Germany have to follow the principle that means should be adequate – namely that officials should never use harsh means in reaction to relatively minor offences. Accordingly, superiors and employees stressed that much attention was paid to the adherence to the legal norms: „The matter is to find out the truth, and also to try, to find out adequately“ (E. 5; emphasis added by the authors).

If you apply this principle to work site controls, it is generally agreed that physical compulsion is inadequate for people who are only suspected to work in the shadow economy. However, benefit fraud and illegal residence are considered to be a criminal offence, and detection may have more serious consequences for the detected. Therefore the risk that workers could resist and try to escape or even attack the inspectors was a permanent aspect of the work. To reduce the risk some techniques were applied: Firstly, the planning and observation team took care that the work sites „suited“ the numbers of inspectors in order to show a constant majority to choke every thought of resistance or escape.22 Secondly, raids were always conducted with an element of surprise. Moreover, posting guards around the work site served at preventing escape and exerting control over the situation. Finally the inspectors always acted in groups of two or more. Most of all in the unsecured early stage of a control, officers pay attention to hold contact by sight and by walkie-talkie with the aim to concentrate forces in difficult situations. It was stressed that the protection of life and health of officers as well as workers has priority. If anybody’s health was at stake, the escape of suspect should be rather tolerated. On the other hand, officers deplored that they were not allowed to handcuff people in order to secure their mission (control of workers) or to protect their health. Formerly, it had been practice to handcuff escaping or violent workers. From formal training, officers are administrators rather than policemen, but as they are working as enforcement officers, informal training on the job includes physical confrontation. Legally, everybody has the right to arrest somebody in order to prevent a criminal act, and officers regularly made use of this right that is rather intended for exceptional situations. According to the inspectors the practice was scandalised by the media and afterwards prohibited by state operating regulations. Inspectors uniformly questioned the rationality of the order. Nonetheless, it was always stressed that officers apply the law to the letter and deal with people correctly.

22

The principle to gain a constant majority generated a side effect: When the control proceeded and the situation was under control the guards around the work sites were no longer necessary. These inspectors had nothing to do except to wait that the colleagues finished the interrogations and the police arrived to receive the detected foreign suspects. Those surplus inspectors conducted spontaneous ‚aside-controls‘ of nearby snack bars and actively used an existing discretion of action to ‚bridge‘ the waiting time.

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The researcher observed how an officer lead a man who had hidden himself to the detention room keeping him tide at the waistband. When he discussed the situation with officers, they conceded the dilemma. Even when the officers tried to prevent situations of physical confrontation, it became clear that securing their task and their health could lead them to use a compulsory means. 7.2.2.4 Disturb the production process as little as possible The production process should be disturbed as little as possible. This principle is not codified but still important. Inspector E. gave a precise remark: „We try to work quickly because we want to disturb the working process as little as possible“ (E. 2).

The head of AD-Bau explained that one reason for a quick control is to prevent formal complaints of companies about an unnecessary interruption of work (Dienstaufsichtsbeschwerde). The principle leads to a particular conduct during control: Inspectors took care that no one could leave the work site but did not generally interrupt the work. Workers were interrogated one after the other while those workers already or not yet interviewed, were not hindered to continue with their work. Inspector E. describes the procedure: „We have the division in teams responsible to search a particular area. If we have the impression that some will escape, we firstly pay attention to them. These are mainly foreign workers, who escape. We interrogate them firstly, we have to respond quickly. But this will be decided on the spot, there is no written rule existing. But it already had happened, that Czech workers line up with their documents and suddenly German workers jumped out of the container and tried to escape. We respond to strange conduct, to suspicious facts.“ (E. 4).

Firstly, they looked for workers who were suspicious according to prior information or present behaviour. In a second step inspectors turned to those workers who had not shown any sign of suspicious conduct but kept on working. Those workers were asked to interrupt their occupation to answer the questions. That way the controls were carried out with as little interference in the production process as possible. However, inspectors reported that some workers stopped working and observed the control activities: „There are some who complain about the loss of work time. There is the German who grumbles about the lost work time and then he stays around and watches the whole time and doesn’t work“ (E. 4).

7.2.3 Discretion during examination of suspicious cases In cases of initial suspicion, inspectors prepared a written note on the opening of an investigation. By that the routine questioning turned - in formal juridical terms - into the interrogation of a witness or a suspect. Inspectors have the right to demand further documents and to hear persons other workers as informants. They may even proceed with search of offices of suspect companies and individuals, but this is usually the case in cases of serious suspicion Inspectors discussed pragmatic and case-orientated - not only in the meetings arranged by the head of the AD-Bau but also in formal and informal talks during work. On the way from and to work site inspections, officers had much time to discuss and used the opportunity to exchange information and opinions about ‘interesting’ cases. It was the interpretation of the written corpus of regulations in the light of own experiences exchanged in these discussions that gave inspectors a clear orientation. For the further proceeding, the most important question then is to decide whether the case is still a regulatory offence within the area of responsibility of the Labour Office or already a case of

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criminal offence that is within the area of responsibility of other authorities like police and public prosecutor. In cases of illegal residence the answer was clear: In these cases the offence against Aliens Act is more important. In other cases, they may initially only suspect illegal employment of foreigners with a residence permit, but they may later suspect that an employer employs more than five foreign nationals illegally or pays excessively low. Then they have to collect evidence to prove this criminal offence. The question about the juridical interpretation of an offence and the accurate time to hand over the file to another authority contains some discretion.23 According to the employees such cases were discussed and colleagues were asked for their expertise. The head of the AD Bau enjoyed to participate in these discussions on an equal basis, before taking the final decision. Employees try to prove a criminal sanction and put some effort into the investigation if they see a chance. The is illustrated in a quote by the head of the AD Bau who deplores that the public prosecutor does not always share their view that a criminal offence is proven: "Well there are often cases in which you are not content with the decisions of the public prosecutor or in which you cannot understand. Well, proceedings for criminal sanctions are not initiated for unexplainable reasons, so that you get the impression - and I think it is like that - that the public prosecutor is overburdened with such cases. You get the impression that they treat these cases a bit too easily as minor, if they do not initiate criminal proceedings." (A 4)

7.3

Self-perception and perception of work

Compared to employees involved in the work permit procedure, control personnel in the AD Bau have a considerable scope of discretion, specifically in the choice of work-sites. At the same time, their institutional mission is to keep order in the labour market. The legal framework does not prioritise certain sanctions over others. The history of the AD Bau and its public perception indicate a prioritisation for combating illegal employment of foreign nationals. As we have seen from the presentation of work routines, stereotypes of ethnic difference and foreign language use do influence the exercise of discretion, particularly in the choice of work sites. At the same time, prioritising employer sanction seems to influence the exercise of discretion to a smaller degree. In this section, we ask how work enforcement inspectors see their work and their occupation in the light of the contested image of their institution. Again, we asked for their perception of success of their work in order to see what aims they relate to and how they estimate their personal influence on the exercise of discretion. We structure this section in three parts: Firstly, we explain how they relate to the overall institutional mission - keeping law and order in the labour market and caring for the unemployed. Secondly, we show their reaction to the political mission - finding illegally working foreign nationals. Lastly, we identify employer orientation as their informal mission and show how they reflect on the difficulty to defend the orientation as employee-controlling inspectors. 7.3.1 Lawfulness in the labour market AD Bau employees referred frequently to the overarching institutional mission - both in formal interviews and informal conversation. They shared the view that the state is the legitimate institution to represent and guarantee justice and order. The employees expressed their 23

According to the governmental report public prosecutors complain that they were often informed by control und investigation in the moment suspicous foreign workers are already expulsed (Bundesregierung 2000: 43).

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tution to represent and guarantee justice and order. The employees expressed their conviction that they help to secure or to regain justice and fairness in the labour markets. Inspector D. explained categorically: „Every country has its legislation that has to be obeyed“ (D 7).

All interviewees were convinced that their work is in accordance with positively valued moral goals. The own activities were positively interpreted as a necessary contribution to defend the legal order and to protect society: „There is money evaded in a degree that threatens the existence of the state.“ (E. 3). It was claimed that combating illegal work is necessary for the protection of local workers and good for the society as a whole. Their occupation was furthermore framed in narratives of care taking for the unemployed. Inspector E. emphasised: „And it is a success too, when someone unemployed, without a job, who believe it is because of the foreigners, when such an unemployed person realises that we exert controls“ (E. 6).

Inspector D. noted that he had been unemployed himself, and that this supported his motivation to work in a control unit (D. 7). His declaration shows that the recruitment of control staff among unemployed – a conscious recruitment strategy (c.f. Senatsverwaltung für Arbeit 1998: 11) - had some influence on the self-perception. 7.3.2 Foreigner orientation There was one aspect of discontent that was emphasised in all interviews and in informal conversation without conversational stimulus: the public perception of their work. They complained about the notion that their job is adventurous and persisted that it is normal work. But above all, they deplored their image of ‘hunting foreigners’. „And then it is portrayed that we are hunting foreigners (....). The reports on our work are frustrating for us“ (E. 3).

Another interviewee stressed: „And I don’t like the public relations [of the Office]. The employer's side ought to be stressed. In media features I see only foreign workers as cases to be investigated (Klärungsfälle) standing at the cars, but the employers side ought to be stressed, one should show the results, one should report the fines and punishment against employers with the full name within the limits of data protection. One should not report over the seven benefit abusers and the two foreign workers employed illegally, but later on again: The company was fined. That would be important for the public. Otherwise the impression is: The small ones are caught and the big ones escape. But that is not the case. It is true that there are more offences of employees, in mere numbers, but it ought to be also reported on employer sanction“ (D. 7f).

The reason for their critique of public perception lies in the hierarchy of guilt which they feel when coming across illegal activities. One example is the statement of inspector D: "The illegal employment of foreigners is connected with the fact that Germany is an economically strong country. For foreigners, most of all from Eastern Europe, it is profitable to work here. Concerning benefit fraud it is the matter that workers try to hold their former standard of living or simply want to earn more money. And this is not ok. The employer will make his profit with as little effort as possible, and partly in a criminal way. There is no insurance protection, the worker may suffer an accident and there is no insurance, this is seriously criminal“ (D. 6).24

And inspector E. is extraordinarily frank in the moral ordering: 24

In fact, the accident insurance is the only social insurance which always covers illegally employed workers, although they usually do not dare claiming benefits. This seems to be unknown to the inspector.

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„Black labour is a broad concept, the aim is to get more money by illegal means; to get money one has no right to. And what the illegal employment of aliens concerns: They live abroad under conditions they don’t have in Germany. Personally I understand, that a man tries to improve his situation. I’m grown up in the East, I would have had tried the same, also illegally (laughs). The little foreigner is the one I can understand if any, he has no benefits. The employer creates the situation and exploits it“ (E: 5).

Inspector E. describes a basic dilemma of the control approach: „The foreigner is the one cheated twice, we know that too. We try, however, to get the employers and the men behind it, but that is very difficult. The employees give no information“ (E. 3).

This configuration is described as emotionally burdening: „I had a case not long ago with three female workers causing quite a stir, but in the end: they offended law. But there are cases, where even police officers reach their human limits. In such cases one really tries to detect the employer“ (E. 5).

On the other hand inspector E. blames benefit fraud: „But what I can’t understand: People receiving unemployment benefits and still working off the records. For instance the scaffolders already receive high unemployment benefits. And when they work off the books, I can’t understand and by no means tolerate, there is no economic necessity. They only enrich themselves, there is nobody else behind“ (E. 5 and 6).

During the training scheme one employee expressed informally in the break that she feels upset to see how illegally employed foreign workers are treated. She described a situation she had faced during a control in which workers were accommodated in a cellar in harsh winter: „A dog is treated better!“ Furthermore she expressed the suspicion that the employer had called the control unit to get rid off the workers. Thus, she expressed serious doubts concerning the effects of the approach. Similarly inspector A.: He mentioned that foreign workers - because illegal residence is valued as a criminal offence - will be deported and get a life long ban of entry on the one hand and on the other hand „the employer will get off with a fine because of a regulatory offence, this is for me at least questionable“ (A. 4). The blame was put on the employers who profit most from illegal employment and on those workers who betray the benefit systems. Some sympathy was uttered for the illegally employed foreigners who work because of unemployment and poverty in their country of origin - often supporting their families abroad. The personal sympathy for the most powerless actors in the shadow economy did not lead to a favourable treatment, but to an emphasis on correctness. „It is important that you deal correctly with the people you meet, that the dealing is correct“ (C. 3). Inspectors partly solved the conflict between personal understanding, public perception and actual work demands by referring to a the law - thus indirectly indicating that legalism was a higher value. 7.3.3 Employer orientation Another mechanism to solve this conflict seems to be the development of an informal institutional mission. Superior civil servants of the Landes Labour Office stressed employer orientation, and the employees heartily welcomed this focus. Field research supports that employer orientation is not merely a rhetorical self-defence but a basic feature of the office culture. The question how to catch employers was of high relevance in the vocational training Cyrus visited: The participating inspectors were explicitly keen to discuss the different methods and shortcomings of employer sanctions. The employer orientation turned out to be the basic feature of selfperception. Asked about positive aspects of his work Inspector B. declared:

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„Well, a positive experience is always the completion of an employer's case, when evidence is considered and a definite sentence is reached. Well, I have two Yugoslavian businessmen in my mind with a suspended sentence of six months. Well, these are the things one says the work was worth to be done“ (B. 4).

A further example is Inspector A., who described a case which he remembered as particularly positive „because it was possible to reach a just punishment, at least from our point of view, of two persons, the employer and the illegal agent who admitted to have placed a number of workers for 4.000 DM cash“ (A. 2f). He was particularly proud to have identified the agent because the workers often refuse to give evidence as they hope to get back wages. But in this case the investigators explored the „men behind“ and that was perceived to be positive, because „the workers are exchangeable, and what matters, and that is also our view of the work, what matters is to get the employer, because he has the financial profit, and he is the one who, let me say so, according to my perception exerts the negative influences on the labour markets, because the employer could have had employed German workers without complications. And then, considering the burdensome contributions to the social system, the taxes, he is the one who saves a lot“ (A. 2 f).

However, this orientation and the organisation of work stand in contradiction. Inspector C’s description of the control approach offers a precise account of this dilemma: „We check workers; we check, whether the conditions are met and all permissions are available. The emphasis is to get the employer. That is the main task for us. The workers only serve as witness, but than the problem comes in, that the foreign worker says nothing or lies. In most cases he stated that he arrived after us. It is well known, that the employees are exploited unscrupulously, but there are legal norms, they have to be obeyed by everybody. (...) What really satisfies me, is proceeding against an employer and finally reaching a criminal sentence“ (C. 1, 2).

This account reveals the basic dilemma of the control approach: Even when employers are the main target the workers are the ones to be checked and fined, and without their co-operation the full amount of employment is nearly impossible to discover. Inspector B. made a clear statement: „Well, I see the worker as the smallest link of the chain, well it is the case in reality, and because of that the practical work... - of course, the worker is fined too, or sentenced in a criminal procedure, but I say, these are things - set in quotation marks - „going aside“, the most interesting is by all means the case against the employer. And everybody knows, that profits are earned, and thus it is surely the bigger, the more important part“ (B. 4).

7.4

Summary

The historical circumstances of the introduction of the AD Bau and the composition of the personnel is particular. It is important to keep in mind that the AD Bau was a mere detecting and fact finding unit with a great share of employees joining the Office only as second or third profession. One can say that the AD Bau was a unit with an egalitarian character within a strictly hierarchical organisation. Field research was performed shortly before the AD Bau was integrated into another enforcement unit, losing its exceptional character. Employees seemed to be merely subjects of this organisational reform. However, within the unit the researcher faced a mood of co-operation and a de facto flat hierarchy despite the fact that the AD Bau has some official differentiation with regard to remuneration, qualification and hierarchy. While impersonal authority dominated the relation to the superiors of the Länder Labour Office, personal authority was dominating within the control group. The personal character of relations

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was stressed by the interviewees. Authority stemmed from the acceptance of knowledge and experience of superiors and co-workers. The head of the AD Bau and the heads of subgroups had a non-directive style. In a way, symbols supported the personal character of authority within the unit. While informal dressing can be interpreted as a symbol of informal office relations (and indeed was interpreted as such by one interviewee), helmets and working safety shoes were rather seen as pure safety precautions than a sort of uniform. The particular office culture was strengthened by a work pattern that is largely independent of other authorities with two exceptions: Larger co-operation had to be organised monthly for controlling huge construction sites, and they had regular contact with the police who takes over cases of foreign nationals with unclear identity. Within the unit, duties overlapped to a large extent. All employees basically did the same work, except the observation and planning team that had a clearly defined preparatory function and the head and sub-group heads which have an leading function. Duties overlapped while it was expected to co-operate and assist each other – depending on skills (especially language, document checks) and the time needed for inspection. Controls and their bureaucratic aftermath were the daily routine. All activities of the AD Bau are framed by laws and moreover by federal implementing regulations issued by the head of the Federal labour office. A separate file “Durchführungsbestimmungen Außenprüfung” offered a system of detailed regulations25. In addition, there are operating regulations deciding specific questions, e.g. the ban on handcuffing. Apart from these specific orders, officers had to observe the general legal framework valid for all public employees in Germany, e.g. on the relativity of means. These rules come into force when formal discretion has to be exercised. It is noteworthy that the work permit office did not refer to it as they did not have much discretion. The work ethic is characterised by two major values: law obedience and a high motivation to be successful within the limits of law. Employees clearly had the idea that their expertise and effort made a difference for the outcomes of controls. In spite of their size, regulations left considerable scope for discretion, specifically in the choice of work sites and the intensity of work. Practice codes were developed within the officially allowed discretion, not against it. The use of professional jargon was of practical and symbolic relevance. On the one hand the terms of a jargon are coined to designate a particular event or thing according to the necessities of the organisation. It implies a kind of verbal accuracy and enhances the efficiency of communication. On the other hand the use of a common jargon becomes a symbolic expression of belonging to the same group or milieu. The jargon used in the AD Bau is thus an expression of the particular everyday necessities – and aspect of the belonging to a wider administrative control apparatus using particular terms like Klärungsfälle (cases to be cleared), and so on. The forms which have to be filled out during controls may be seen as symbols of this attitude. While legal norms do not say anything about the choice of work sites, foreign-looking or sounding workers, specifically in connection with visible signs of disorder at a construction site, are the main criterion for choosing work-sites. This way of exercising discretion is related to the founding history of the organisation: It was founded to fight unemployment in the construction sectors via controlling work-sites with foreign nationals. How this procedures are kept and reinforced even after structural changes would have to be subject of another study. Clearly, it is in25

We did not have access to this file.

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fluenced by political pressures and actors at the state level. The emphasis on foreign workers is not caused by individual prejudices of labour inspectors but of the institutional orientation leading to a statistical discrimination (Cyrus and Vogel 2001). On the other hand, officers in charge as well as superiors keep the ideology of impartiality, pointing to the ritual of controls in which all foreign and German workers have to be controlled. If you consider the whole control regime including its employee-oriented structure, employer orientation can be considered as a myth. Employees embrace this myth by identifying employers as the real culprits. Within their work, they have to balance their motivation to produce results (which can be best achieved by taking foreign stereotypes as an indication for suspicion) and their motivation to prove employer offences. From their point of view, employer orientation is a valid goal that they pursue during their work.

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Part IV: Identity processes

8

Identity processes

As we have shown in the case studies, employees find it more or less difficult to define the ultimate aims of their work and develop a positive role for themselves. In the last part of this report, we concentrate on the self-definition of employees as members of differing social contexts in modern societies and the influence of this self-definition on their work – as far as it is intelligible to us. We assume that identity processes may differ between European countries. By discussing aspects of identity of German public service employees, we provide the basis for a European comparison. In this final section, identity is firstly defined. Our approach of analysing identity aspects in our interviews is explained. Afterwards we indicate professional identity as the main identity visible in our interviews. Lastly, we ask whether private and national identity aspects showed up in the interviews. 8.1

Identity processes: concepts

Identity is a many-facetted concept. The individual is unique – but it combines a number of general characteristics s/he shares with many other people, for example sex, age, colour of skin, place of birth and others. Identity processes are the naming (Benennung) of belonging to a certain group – be it by the individual or by others (Schneider 2001:36). Every individual develops a sense of self that defines the belonging to several social groups. Identity is connected with the expectation - of ego as well as alter - that individuals are characterised by stabilised patterns of conduct and believes (Hill and Schnell 1990). Modern societies are characterised by a functional differentiation into sub-systems side by side with more or less conflicting logic of organisation (Weber 1967). Individuals in modern societies participate in a number of social circles belonging to different sub-systems and have to integrate the conflicting demands in their concept of self (Simmel 1992). For the purpose of this analysis, we assume that for the research context three layers of identity may show up to be important during interviews: Professional identity – either in a broad concept like belonging to the public service or to a professional occupation with a certain training – can be expected because we interviewed people at their work-place about their work. National identity aspects were assumed to turn up because we analyse public functions in immigration control. Immigration control is often justified with the national interest, and the categorisation of desirable and undesirable immigrants is defined along humanitarian aspects and economic needs, but also along ethnic lines. Under personal identity we subsume concepts of identities relating to the private sphere. For some people, the nuclear or broader family is the main focus of identification, and others may see themselves mainly as sports-persons or music-lovers. We assume that the layer of personal identity is more or less salient in every situation of life. If it is strong, work is merely seen as a job providing income.

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To get an idea of the identity processes of employees in our case studies, we looked at what they said about their self-perception. How did they use ‘we’, and which group of people is referred to in different contexts? In addition, to describe the three layers of identity salient in migration control in labour markets we used particular indicators: •

Professional identity may be indicated by references to professional goals, rules of work, professional ethos. Professional identity expressed in the form of ‘we’-accounts referring to a certain team of colleagues, to the department, to the occupational group, to the hierarchical level or organisation.



National identity may be indicated by references to ethnicity, nation, the nation state, fear of immigration, or political positions on immigration policy. ‘We’-accounts in this context may refer to “Germans” in sense of citizens of Germany or in the sense of belonging to an ethnically defined group.



Personal identity may be indicated by references to income, working conditions, career, private life (family, hobbies). Showing emotions and using ‘we’-accounts signifying private groups or using ‘I’ and thus framing accounts as expression of private and personal opinions are used as other indicators of the influence of private identities. 8.2

Professional Identity

According to the finding of our case studies professional identity of street level bureaucrats in German labour authority can be characterised by two features: Firstly, the self-perception to be a member of public service is a crucial aspect for the implementation of migration control in labour markets. Secondly, a legalistic attitude is the material core of professional conduct. All respondents emphasised their professionality. Taking into account the context of research this finding is not surprising: We approached respondents as employees representing a public service; we encountered them during service in their occupational environment; and we asked for expertise on their profession and their work. The frequent use of the pronoun ‘we’ with reference to the professional arena indicate that the interlocutors present and saw themselves not as individual actors but as part of a institutional network. Examination revealed that the frame of reference of the frequent use of the professional ‘we’ constantly shifted with regard to the subject and the area of concern: On the most abstract level the respondents used the pronoun ‘we’ to refer to the situation to be a member of public service. Other frames referred to the membership of the particular federal authority, i.e. labour authority; to the membership of the particular labour office in Berlin; to the membership of the particular administrational unit within the Local Labour Office; to the membership of a particular network of public service agencies with similar functions (i.e. enforcement units of labour authority with police, main customs) and to the social membership of a particular circle of colleagues with everyday face to face contact. The most important frame of reference was for all employees the group of people working often and face-to-face with each other within one office. The preferred level of dealing and solving problems laid within this social circle. Before approaching distant supervisors the colleagues of same rank or the immediate supervisor were asked for expertise to solve intricate cases. The head of Z-office explained the strategy to solve problems by informal consultations:

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„The regulations are accepted. We search for solutions in the limits of the regulations. We check the administrational circulars. We could ask the State labour office but most of the caseload we decide here“ (H.9).

Also employment agents preferred informal consultations in the case they had difficulties to treat the work permit applications which were far beyond their routine tasks: Actually our main task lies somewhere else. We simply discuss it with colleagues or call Mr. H. [head of Zoffice, residing in the same building on another floor] and ask: How this and how that, and then it's ok. The problem is that we do not have so many work permit application, maybe 5 or 6 last year, and if you do not do it every day you have to read anyway ....“ (M; M / L 6)

The quotation show a strong tendency to refer to administrative regulations, but also an inclination to rely on knowledge and interpretation of more experienced colleagues if necessary. During field research we observed that enforcement agents as well as labour certification staff frequently contacted their immediate colleagues or supervisor to address questions and to discuss problems. The culture of informal consultations supported the establishing of autonomy from superiors, enabled effective processing of cases, contributed to the positive office culture and strengthened the sense of belonging to the public service. Belonging to the public services demands a particular attitude. An enforcement officer described this aspect: An orderly performance of the work is very important because, you are visible by the public (...) Well, if we stand close to the building site manager I will not be on first name terms with the head of operation because we are also a public authority (D 6 and 8).

With this statement the enforcement officer indicates that he takes into account that he is perceived to be a representative of the state. According to the self-description of labour administration staff, public service works well if it is strictly adhering to laws and regulations. We do not act without thinking. We have concrete administrative regulations, decrees, we stick to them, we have to stick to all of them. In case of problems, we go to our superior and ask what should happen (M 6) „I am strictly bound by regulation. ... only facts are counting. (. I2) „We are working only within the limits of our regulations, we have not much discretion“ (J./K. 2)

In their accounts, all respondents gave a self-representation of being members of the public service strictly bound by formal regulations: Belonging to the public service in the first range means to act lawfully and to promote respect to law and order. According to Galtung the German tradition of law is characterised by a predilection for strong concepts of behavioural prescriptive norms (Galtung 1994: 66). Despite the awareness that legal constructions are limited, norms are perceived in the German tradition of law as if they will be valid forever. Furthermore, in the German tradition of law, norms are not perceived to be separated from reality. Legal norms are not perceived as an incomplete guidance to reality but to present a „more real reality“. The reality is only an incomplete representation of the norms (Galtung 1994: 74). In the German normative culture „a great store by deductive strength is set and not by the accordance with social reality. Facts not suitable are ignored, made invisible. The old pyramid of thoughts is not dropped. New norms are supplemented“ (Galtung 1994: 77, translation by the author N:C). This orientation linked to the concept of legality was already stressed by Weber as a key element of rational bureaucracy. Our research confirmed that the ideology of legalism has significant influence on the way officers define themselves and perform their work.26

26

Also Jochen Blaschke, J. (1998). Irregular Employment of Migrants in Germany. United Nations ACC Task Force on Basic social Services for All (BSSA). Working Group on International Migration Paper No. V., IOM. characterised the German control system against illegal employment as legalistic.

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Officers express this verbally by insisting that they stick to the letter of law and cherish clear regulations. Respondents underlined that they follow a strictly professional orientation while leaving aside personal preferences. Asked about difficult cases respondents turned to the discrepancy between the personal view and professional ethos. With regard to clients who had offended against work permit law the head of Z-office describes a case he perceives to be difficult: „You would prefer to deny a work permit. But even in such cases: If he has a right, then... Well. I can not be superior to the law, I would never behave like this. In so far, as I know that I have the order to decide according to the law... [I have to issue the work permit]. (H. 12).

In this case the personal behaviour of a client evoked a negative response and the preference to deny a work permit. In most cases, however, employees described those cases as difficult in which a negative decision goes along with sympathy for the client. „In some cases one is hoping that he will get the work permit. But we have our law, we can do nothing“ (J./ K 2/3). „We decide seriously, we really have to be seriously, a thing that doesn’t please anybody here. Sometimes it is unsatisfactorily. You see already a case of hardship, but it is not so serious that a work permit can be granted.“ (I. 2)

The dominance of the professional ethos over private moral, emphasised in the statements, is a strong aspect of the German political culture. According to the cultural anthropologist Schiffauer (1993), a certain devotion to identify with the common good as it is defined by the legislator is an outstanding feature of German political culture. It is expected that the individual has to identify with the whole and to devote (Hingabe) to the general (das Allgemeine). A mere superficial acceptance of legal regulations is considered to be insufficient. Employees identified with the overarching institutional mission of labour authorities and supported the basic principles that public service should implement democratic decisions. Public service deliberately promotes this attitude: All respondents were trained to accept professionality and legality to be dominant over divergent private opinions. Besides the deliberate internalisation of principles of public service in intra-institutional training schemes, professional ethos is furthermore enforced by the division of labour and the system of graded supervision. However, recent administrational reforms partly challenge this traditional legalistic attitude. By promoting the ideals of efficiency, flexibility and client-orientation, private sector aims are introduced into public service. All respondents were - to a different extent - affected by the claims of administration reform „Labour Office 2000“. Some aspects of these campaign for change of attitudes may me adopted easily by all kind of public service functions: Quick service and products of high quality are easily compatible with public service ideals. For example, the head of Zoffice shows pride as he explains how they administer the new ordinance for recruiting for ITpersonnel: And the whole procedure, from the time of the complete delivering of all documents at the Local Labour Office until the granting of a letter of content has to be done within one week. In our office as a rule we need three days (H. 3).

For the work permit office, client orientation and quick service is one important goal: „We do not want to have longer time of procedure for the people, this would not be our service order (H. 9).

However, in particular the goal of client-orientation was perceived with reservation. The Z-office staff, offering a service in between a controlling and a helping profession, saw themselves in a

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dilemma: The implementation of the restrictive regulations inevitably led to the frustration of non-privileged clients. Thus, professional effectivity and client-orientation partly became contradicting goals in the context of work permit applications. Employment agents had no problems to adopt the goal of client-orientation since they regarded their work as service to the mass of unemployed people. However, the framework of the reform was perceived to be inadequate. The employment agents sharply criticised that the reform should be implemented without considering the scarce resources: The tasks having priority for us, to talk to the clients intensively, visiting the employers personally, creating job offers, and perhaps presenting them documents of clients you already have in mind for placement, all this is not possible to realise at the moment (L. 1). The differences are simply too big between ambition and feasibility. Let me say so: To change the hours of business, that the possibility for clients to speak with us is enhanced is a positive aspect, I mean for the Federal Labour Office as such., And for the clients it is also positive. But for us employees here: When I have consultation hours from 8 a.m. to 4 p.m., then no time will be left to take care for the visits outside or whatever. Or you would have to work in shifts, but for such an organisation of work the personnel is not available. [L.: ...simply to small, there are not enough people, who could cover this]. And even in the case all employees present, it would be possible only with difficulties. But since the situation is never given that all are available because of training schemes, sickness, holidays, this all happens, it is impossible, that's the problem“ (M. 9).

We cannot judge about design and mediation of this reform. But we can see that it follows a hierarchic top-down approach turning the employees into mere subjects of reform. Flexibility and client orientation is more suitable for departments that perform tasks with some similarity to private sector tasks. Thus, enforcement as a traditional public task had much more difficulties to identify with client-orientation goals because their ‘clients’ are involuntary. The head of the control unit declared that he has some difficulties to see the persons they have to deal with as clients because they have to check and to punish them. With regard to the “Labour Office 2000” he reflects on the application of a private-sector service rule (In our shop, the customer is the king) in a public enforcement setting: The customer shall be the king. But in this area of concern: Can you speak of customers if you investigate against employers or workers? In investigation the customer is not by all means the king (Field Notes 07/00: 6).

In the case of enforcement, clients are involuntary. Thus, more than their colleagues from employment agency and work permit office, enforcement agents referred to the general public they serve. The professional implementation of public service, to summarise, includes a dilemma between organisational and client centred goals. For staff of labour administration, professional identity encompasses most of all adherence to regulations. 8.3

National Identity

There are good reasons to assume that the category of national belonging is a salient factor of identity processes in the administrative units we studied: Members of public service do not only devote to a “whole” that is instituted in the form of a nation state, they see themselves as representatives of the nation state. In scientific literature Germany is described as the prototype of a nation state resting on a ethno-cultural concept of citizenship (Brubaker 1992; Hoffman 1992). In difference to nation states with a political concept of citizenship like France the belonging to the nation state in Germany is traditionally framed in essentialist terms of an imagined commu-

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nity of people with common descent (Weber 1972, 237) (Anderson 1998). The privileged immigration of ethnic Germans from Eastern Europe and Asia - although historically but not ethnically legitimised - serves at enforcing this concept. Changes in naturalisation law are too recent to challenge the dominance of ethno-cultural concepts of the nation state in the political discourse. Accordingly, restrictions of labour immigration can be interpreted as expression of the ethnocultural nation state. In Germany extreme right wing parties demand a stricter regime with the slogan “labour for Germans – foreigners get off”. On the other hand, left wing groups and self organisations of immigrants blame the exclusionist work permit law for being nationalistic and xenophobic. Thus, implementation of migration control in labour markets is a discursive field deeply affected by national categories. But how do practitioners perceive and treat the categories of nationality? In spite of the ideological relevance of national categories in the public discourses in Germany the reference to nationality in the essentialist meaning was mostly avoided by the respondents. Only in some few cases employees stated that they act on behalf of German workers. For example, emphasising employer orientation, the head of AD-Bau explained that what matters, this is exactly how we perceive our work, what matters is to catch the employer, because he is the one making the profit, and he is the one, let me say so, who according to my opinion exert negative influence on the labour market, I would say so in this case, because this employees, or this employer, who by the way already had employed German workers, this employer could have had employed without doubt further German workers. And, let me say so, in the last instance, what he saves with contribution to social welfare, taxes, he saved a lot....(A 3)

In this sequence German workers are explicitly mentioned as a group of reference: The control work is understood as a mean to improve the employment chances for German workers. But on the other side, the German employer is emphasised to be the real culprit. Taking into account other statements by the same officer, an essentialist use of national categories cannot be substantiated. Answering to the question on particular groups with an outstanding relevance for control work the officer explained: In general in the course of raids we met German and foreign worker, and ähm, well as outstanding group illegally active, I would say for instance, this are with no doubt Yugoslavian workers, most of all those who do not possess a work permit; by all means this are Polish workers who neither possess a work permit nor a residence permit, and in the last year increasingly Russian workers. (...) Well, I believe, we were concerned with almost every nationality (i.e. citizenship), we had Japanese workers, Mexican workers. Well, almost no (laughs) nationality, that did not get noticed sometimes.... (A. 5)

In this account problematic nationalities - including German nationality - are mentioned in an enumerative way, partly in combination with a specification of the offence committed. The case study of enforcement revealed that nationality is a relevant category guiding the perception and interpretation of enforcement officers: One member of the planning and observation team had claimed that the could estimate the nationality and even ethnicity from appearance (Field notes 07/01: 15). The presence of foreign looking workers perceived to belong to the ‘outstanding nationalities’ was an important aspect in the choice of construction sites to be controlled. Moreover, the documents of some nationalities are scrutinised more carefully than from others. Reference to nationality was a common aspect in the organisation of migration control in labour markets. In general however, labour authority staff were sensitive and cautious in the use of national categories. Asked for problematic groups enforcement officers answered:

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Problematic? You could say probably the foreign people from Yugoslavia, but you cannot be restricted to a particular group of foreigners, it is difficult with German workers too (E. 3) You are exposed to verbal attacks, but this refers now to German and foreign workers. Also a German tells wild fairytales (D.2) Most of all foreign workers try to escape. We start interrogation with them, we have to conduct quickly. But this will be decided on the work site. There are no written regulations. It already had happened that Czech workers lined up with their documents and suddenly German workers jumped out of a container and tried to escape (D. 4).

In the quoted sequences respondents uses a particular rhetorical pattern: A reference to foreign nationality is complemented with reference to German nationality. This topos was characteristic for accounts referring to nationality and indicate that the endeavour to introduce a technical jargon was pretty successful. Also in employment agency national categories were applied to organise the work. One of the employment agents stressed in an early sequence her support to the priority rule: Unemployed persons who can perform less qualified work are available more than enough, in such a case it does not have to be someone from abroad, that does not have to be (M. 2)

In a later stage of the interview it became obvious that not only German nationals are included in her definition of privileged workers: Success for me is, for example....we now have introduced a training scheme, and I have arranged this, for Vietnamese workers so that they simply can improve their knowledge of German language (...) and if then an employment will be a result, that is a success too” (M. 7/8).

Here the category of nationality is descriptively used to designate a group with particular disadvantages in need of particular measures to improve the labour market integration. Nationality was not used in an essentialist meaning but as a descriptive designator for a particular constellation relevant for the organisation of control work. The avoidance of an essentialist use of national categories is obvious from the accounts of Z-office employees. The street level bureaucrats from the front office explained the relation to their foreign clients: „Most clients are quite nice. But some of them are quick with the reproach of bureaucratic treatment, for example, if you require proofs. They swear at us, and then you ask yourself: What would it be like in Turkey? Would it be different? Germany has fairly generous regulations. There is this lack of understanding from these people. And if they then make a comment to the effect that we are women and they do not accept and want to speak to our boss - our boss could also be a woman!“

As all three front office employees are female, they describe problems mainly as a result of the role concept of women in different cultures. The head of the Z-Office (male) shares the view that life is often difficult for ‘the women in the front’, attributing it to religious reasons: „We employ primarily women, and they are often not accepted by foreign nationals, that is a real problem with Muslims. They are seeing women in a completely different way than we do.“

In this sequence the Z-office employees frame the conflicts not in ethnic or national terms but in religious terms. This framing underlines, that it would be obviously not politically correct to explain individual behaviour with reliance to the membership to an ethnic or national collective. However, the alternative reference to the religious belonging seems to be less problematic for the respondents, not at least because the discourse on the threats of Muslim is more accepted that on national belonging (Schiffauer 2000). However, regarding the discussion of German ethnicity in the scientific and common media presentation it was surprising to see that the respondents did not refer to essentialist categories of nation and to the concept of Germanness to legitimate their work.

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On the other hand, the description of enforcement practices show that outward appearance and language are used to get an idea of the legal status of a person. At the same time, officers are aware that these features are getting increasingly weaker indicators of legal status. What makes work difficult for us is a situation when plenty foreign workers do not have their documents at hand, because we cannot distinguish if the worker lives here legally or illegally, even in the case he already lives for some years in Germany and speaks German fluently. You know very well that some illegal workers speak perfectly German. Well, that can be no proof. And that makes things complicated... (A. 15)

On the one hand, fluent German speakers may be regular foreign nationals or even without residence permit. On the other hand, persons may hold German citizenship in spite of 'foreign' appearance, language use and even residence. ...and there it was also possible on this construction site [to conduct interrogations of witnesses], because even also more Germans, respectively German-polish workers, that means German citizens, but residing in Poland, were present on this construction site.... (A. 12).

The quotes show their dilemma: The idea still persists that ethnical categories as look and language use should correlate with legal categories, but that this statistical notion is increasingly weakened. At the same time, they show that officers see legal categories as essential categories they deplore that 'ethnic' characteristics as short-cuts to legal categories do not always work- a fact that makes their work more difficult. The reference to nationality is framed in terms of professional demands and categories and turned out to be a descriptive designation related to the professional demands. Reference to nationality is used as a descriptive instrument to improve the service and to be more effective. The use of categories of nationality is, at least in the context of the work, not related to pejorative opinions toward the members of a national group. Instead of essentialist ethnic or national categories the staff referred to nationality as a juridical categories to construct boundaries of belonging. The juridical clustering of German and privileged workers was the key concept directing the work of labour administration. You should not forget the placement of these workers, of Vietnamese, of Russians, of Turks [L.: That’s right!], they belong to the group of privileged too (M. 9).

The finding that national categories are used predominantly as descriptive device does not exclude that individual Labour Authority employees adhere to an essentialist perception of nationality. It only indicates that ethnic stereotyping is not part of the office culture. 8.4

Private Identity

Implementation of public tasks is carried out by individual persons with a private life outside the office. Quality of public service depends a good deal on the identification of officials with the official goals and the satisfaction of employees with their work. In some of the previous sections, there were already some indications that officials have their individual views and their own perceptions of their work. However, it is stressed that private aspects of individual personality should not interfere in the office. The question thus is, if and how aspects of private identity matter in the professional arena. In their accounts, respondents underlined that aside of being a professional they are individuals with personal aspirations, attitudes and experiences sometimes in conflict with professional expectations. Asked about experiences in their private sphere, some enforcement officers frankly

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admitted that they have some knowledge about friends or acquaintances involved in the shadow economy. One officer explained that he has a kind of a tacit agreement: He will not interfere in informal activities he notices in private sphere - on the other hand none of his acquaintances should expect from him any kind of support in the case of his detection. The enforcement officer frankly explained: „Well I strictly distinguish the office and the private, because you have to make a ‘cut’ and to declare ‘this is service’ and ‘this is private’ “ (B. 17).

The same attitude is more clearly stated in a narrative that circulated in the AD-Bau office: In this story one inspector had controlled a foreigner and initiated his expulsion. Afterwards it turned out that the foreigner was the new friend of his sister. This officer declared that it made no difference as he could not have behave another way. The only thing he could have had done would have been to process the case not personally. In their account of being public servants employees of labour authority consciously presented a self-description restricted to the occupational activities and separated from other spheres of their life. The pattern of neglecting personal opinions in order to fulfil professional demands can be also detected in the already presented material from employees involved in labour certification. Labour authority employees themselves consciously constructed and distinguished between an identity for the occupational and for the private sphere. They emphasised their professionality without denying a personal commitment in the job with sometimes differing, sometimes conflicting personal opinions. We have already identified the sense of belonging to a professional setting and the ideology of legalism as key aspects of professional identity that dominate over identity patterns relying on national belonging. We will now explore content and significance of private identity in migration control in labour markets. We use several indicators to detect aspects of personal identity: The reference to aspects of the work not perceived to be professional (i.e. individual aspects like pay and satisfaction with the work); the remark that a statement expresses only a personal belief; or the attributing of compassion or emotions to a statement; and the use of the individual “I” instead of the collective „we“. A sequence of the head of Z-office dealing with the court decisions is a good example: Mr. H. began the statement saying that “we have a quite strict opinion here...and we were rejected in our decisions by the social courts....who argued that attention should be paid to the basic rights and the order of values it implies....and that permanent dependence on social benefits is disrespecting human dignity... and if it is said now that someone who is well integrated cannot be denied the work permit I would say: Yes, I see the case just like this”(notice bold marking by authors) (H. 7). This sequence is remarkable because the head of Z-office personally supported a court ruling that had rejected a decision he have been subscribed before as responsible public servant. The statement underlines that professional and private opinions may differ significantly. All respondents presented personal and moral accounts that showed cognitive and emotional distance to particular demands of the service – always with the explanation that this is a personal opinion that would not matter in implementation. They had two repertoires of moral reasoning and accounts at disposal: The professional and the private. Some interviewees were fairly open in the discussion of political aspects of their work, always carefully characterising these discussions as personal. The enforcement inspector supported the idea that for instance Bosnian war refugees staying in Germany should be allowed to work. One of the employees of Z-office mentioned the proposal

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of the German Liberal Party (FDP) to abolish work permit duty at for resident foreign nationals with sympathy: I have heard a good proposal, launched by the FDP, to abolish the work permit right. This is an interesting Proposal, I believe, and the Member of Parliament had substantiated it. And it is the reality: We have a lot of enterprises looking for unemployed for jobs nobody want to perform here. If now a asylum seeker would come, that would be great. We could save a lot of social benefit, and generate tax income. This would generate only advantages (I. 2).

The front line officers of Z-office with direct face to face contact also supported the idea that foreigners with established residence rights should be allowed access to the labour markets. My opinion is that foreigners should be allowed to work. In this case they need not to be on the streets, they pay taxes and contributions and also don’t receive social benefits (J. / K. 3)

Her colleague agreed: Here are a lot of foreigners, they should be allowed to work. Formerly this was possible with asylum seeker, they used to get a work permit for all kind of work, but then the law changed and it became more difficult to get a work permit. There are a lot who arrived 1991, and they should be allowed to work. You can set a temporal limit or a dead line, but in principle we support that they should be allowed to work here. Please, don’t misunderstand me. I mean not that everybody should be allowed to enter the country, we cannot accept everybody, but those already inside should be allowed to work. I mean, I would not like to decide who may come in, that is a difficult decision (J. / K. 3).

Again, it is noteworthy that the interviewed employees never referred to their belonging or affiliation to a certain political group or party but only discussed personal opinions about professional aspects. In a similar sense, working conditions were discussed. All respondents mentioned aspects of their work that gave them some personal satisfaction. Regardless of the function all respondents mentioned the good social relation with their colleagues and direct superiors. It was stressed that they preferred working within their respective units, only occasionally asking public personnel in higher functions or other units. In difference to ADBau staff, employment agents, however, were severely unsatisfied with conditions of labour: The case load was perceived to be to heavy and impossible to handle, while AD-Bau control personnel has an influence on the size of case-loads by the choice of work-sites. It is noteworthy that respondents did not refer to aspects of pay and career during formal interviews. Only one trained labour authority agent informally expressed dissatisfaction with his ranking and pay he considered to be to low with regard to his education and tasks he had to fulfil. Besides this exception nobody touched the questions of pay and career perspectives. There are several reasons possible: In Germany workers in general do not exchange information about income. Some of the employees previously had been unemployed or been occupied in another, less paid occupation. With regard to their qualification the pay was not too bad. The bad labour market situation may lead to view that the job with the public service is the best and safest available for the moment. So they had no reason for complaint - but this also was not emphasised in formal or informal conversation. The absence of personal motives of career, pay and safety in conversation is the other side of the professional orientation: If a certain devotion to the public welfare in general and the job in special are expected, it cannot be expected that informants talk about financial aspects with outsiders. The interviews are characterised by an absence of any uses of 'we' which refers to private groups like families, sports, music, political party, religious affiliation. The dominance of professional identity processes in this work-related field is confirmed by this absence.

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9

Preliminary conclusions

Foreign nationals have only limited access to the German labour market. Employees of the labour office function as gatekeepers to the regular labour market (work permit procedure) and the irregular labour market (enforcement units), often in co-operation with other public authorities who have another clearly defined part of the gatekeeping function. While federal legislation is often fairly open to interpretation, federal decrees and ordinances limit formal discretion for street level bureaucrats considerably. They are further specified at the state and local administrative level so that the individual bureaucrats see themselves mainly as categorising and norm-adhering officers. Generally, they do not complain about this but rather cherish clear orientation as legitimising, promoting justice and making it easier to define their gatekeeping role. They claim to have little formal discretion and to resist the temptation to use informal discretion against the letter of the law and the body of administrative regulations. This corresponds to a strict separation of private and professional in their self-presentation. Personal and national identity aspects were virtually absent in their interpretation of their work, while only directly work-related aspects were an accepted topic for conversation. Specifically, national identity aspects that are relevant in public political discussions about immigration control policy are not part of the argumentative repertoire of public officials in actual immigration control. As far as work place enforcement is concerned, there is considerable discretion concerning the volume of the case-load and the choice of controlled work-sites. This allows for a successoriented attitude, as individual employees can influence the probability of success. Success is primarily defined in terms of sanctions. While sanctions against employers are valued highest, it is easier to achieve sanctions against employees by using ethnic stereotyping in the choice of work-sites. The tension between the rational and impartial bureaucracy and efficiency-oriented ethnic stereotyping is displayed in the interviews.

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