1 Introduction

In 2005, Christian Joppke published a spadework in the field of comparative migration research. In “Selecting by Origin” he examines a triumphant cross-country victory of universalist philosophies and admission policies over principles of ethnic selectivity across Western democracies. In particular, he describes the end of selective settler state constellations in the nineteenth and twentieth century, in which the legal framework for immigration and naturalization epitomized an instrument for (ethnic) nation-building, and a turn towards source-country universalism and ethnic equality. His analysis tracks the sustainable ousting of negative discriminatory admission legislation and practice in democracies such as Australia and the United States, i. e. bans in immigration or naturalization for particular groups as enshrined in the—virtually emblematic—US 1882 Chinese Exclusion Act. Furthermore, he shows that even Western liberal nation states, which have given preferential access to residence and citizenship to particular groups due to colonial, national, ethnic or ethno-religious ties follow a universalistic trend, with ethnic migration losing momentum.

The root image for his analysis is “to assume a built-in tension between universalistic and particularistic elements in all liberal nation-states, the liberal component commanding nonascriptive, universalistic criteria and equity in the selection of immigrants, the national component (sometimes) commanding the opposite, in the name of reproducing the particular beliefs that constitute a political community” (Joppke, 2005, p.18). While he considers blatant forms of negative ethnic discrimination as “stamped out” and “racist”, with no empirical example remaining in twenty-first century Western democracies, he claims the more subtle form of positive ethnic selectivity tend to take over the same function. As the “reverse side of prioritizing some is discriminating against all others, […] most ethnically selective immigration policies have presented themselves as positively selective policies, even if their primary intent was the exclusion of particular groups” (ibid., p. 23). The most straightforward examples of persisting ethnic preference migration exemplified in his book are the regimes associated with a diasporic concept of dispersed members of the tribe, who are by law allowed to “return” (as in the case of Jews in Israel) or to “repatriate” (as in the case of ethnic Germans from Eastern and Southeast Europe and the former Soviet Union).

Other ethnic immigration policies exemplified in the book differ in two ways from this ethnic migration in its purest form: for one, the salience of the ethnic factor is frequently reduced in the sense that origin is not the exclusive, nor the primary criterion for selection. Rather, it is “nested within or tagged onto other, nonethnic selection rules such as skills or family ties”, while the “overarching frame is nonethnic”—which makes the particular policy “less objectionable from a liberal point of view” (Joppke, 2005, p. 222–223). For another, they do not put the oftentimes complicated question of ethnic kinship upfront, but rely on country of birth or citizenship in the formal sense of state membership as a criterion for positive discrimination. This model may still be based on “panethnic constructs of state-transcending community”, as the case with the Portuguese and Spanish preference regimes depicted in separate case studies (ibid., p. 25). In other constellations—and thus particularly relevant for the analysis of the distinct regime for labour migration in Germany undertaken in this Chapter—it will even ignore ethnic sub-affiliations and rely solely on the requisite state (or civic) membership. Again, one needs to differentiate: while such nonethnic preference regimes may be the result of diplomatic reciprocity (involving the definition of “best friends” between nation-states), they oftentimes also involve the expectation of “assimilability” (Joppke, 2005, p. 23, 26; FitzGerald et al., 2018) of nationals of particular countries due a similar or the same language spoken, cultural or religious proximity, or migrant networks already present in the country.

The purpose of this chapter is to make a humble contribution to these considerations—not by putting into question any of the persisting subtle, indirect mechanisms of discrimination observable in admission policies. Rather, we maintain that there is slow but steady return of first-level source-country selectivity and particularistic features within the German migration policy. Thus, we take Joppke’s analysis as a starting point for a case study and apply it specifically vis-à-vis a clearly delineated segment of Germany’s immigration policy: the regime for recruiting labour migrants. In doing so, we aim to add another, more subtle layer to the debate over source-country particularism. Rather than analysing immigration policy writ large, we focus on country-specific configurations in Germany’s system for admitting labour from third countries. In addition to the “hard” legal regime for admission, residence and settlement in the narrower sense (Groß, 2018) we also consider “softer” aspects such as information campaigns, infrastructure for language acquisition or scholarships, i. e. non-legal frameworks. Empirically and methodologically, the paper is based largely on an extensive analysis of legal and policy documents. A special role is played by the political and legal genesis of the so-called Western Balkans Regulation, which in the meantime has been the subject of several studies both in terms of its political context of origin and its legal dogmatics.

We follow a rather narrow concept of the term “regime” by limiting it to the labour migration from third countries and identifying its constituent parts. Thus, our understanding of a labour migration regime is more or less congruent with what Cvajner, Echeverría and Sciortino (2018, p. 69) have described as the “internalist” perspective. This perspective center-stages the regulatory and institutional framework of the country of destination—one could also say: its public policy. The state tries to develop and maintain a distinctive profile in its law, policies and institutions across sectors, levels and actors. We are interested in whether this profile—implicitly or explicitly—has discriminatory effects, i. e. whether the legal and institutional framework plays out in favour of citizens from particular countries of origin and thus discriminates against others. In doing so, we try to take into account that “migration regime is usually not the outcome of consistent planning” (Sciortino, 2004: 32), but rather a complex set of circumstance, in which “public and private bodies, as well as decision-makers and administrative agencies, can coordinate (or at least try to coordinate) their expectations and produce and carry out governing decisions” (Cvajner et al., 2018: 13).

Following this introduction, Sect. 9.2 will give a brief account of Germany’s labour migration regime from the 1950s until the end of the Millennium. In Sect. 9.3 we describe the rather rapid policy change in the area of labour migration since the year 2000 from ethnic particularism to almost complete source-country universalism. The main part of the analysis, Sect. 9.4, tracks both the more obvious and the less visible cracks within this universalist regime which have occurred since 2015 and asks, whether the labour migration regime in Germany is on its way back to ethnic selectivity. In Sect. 9.5, we then put the “re-ethnicised” labour migration regime into a comparative perspective and observe a tendency of Germany to adapt certain traits that have traditionally been considered as typical for Southern EU Member States, suggesting a tendency towards blurring boundaries between formerly described clear-cut Northern and Southern models in the European labour migration policy domain.

2 Source-Country Particularism: Germany’s Labour Migration Regime Before 2000

The history of labor migration to the Federal Republic of Germany is almost as old as the country itself. For heuristic reasons we differentiate the post-war history of labour migration until the new millennium into two different periods which are separated by the recruitment ban of 1973 and look at each of these periods specifically under the lense of the extent the country of origin of a respective applicant for labour migration to Germany is used as key criterion for the screening and selecting process.

2.1 The Pioneer of Labour Migration Policy in Post War-Germany: Guest Worker Recruitment 1955–1973

In 1955, just a few years after the founding of the Federal Republic of Germany and already a few years before the onset of the post-war economic upswing, a German-Italian agreement was reached on the recruitment of Italian workers to Germany. This was soon followed by agreements with other mainly Southern and Southeastern European countries. In most cases, the concrete initiative for the agreements came from the countries of origin which hoped that sending workers would relieve the pressure on their domestic labor markets and that remittances would improve their balance of payments (Thränhardt, 2002, p. 347; Knortz, 2008, p. 67–68). In the case of Turkey, with which an agreement was concluded in 1961, geopolitical considerations also played a role: the country became a member of NATO in 1952, and the possibility of sending workers to Germany was intended to contribute to the stabilization of the NATO partner (Steinert, 1995). Accordingly, the agreements on guest worker migration were a case of labour migration without a (primary) motivation in terms of labour migration policy.

In the absence of a corresponding legal standardization of labour migration (there was no immigration law or equivalent legislation), “migration control […] resulted from the recruitment agreements themselves (Conradt & Hornung, 2020, p. 171; our translation)”. The decisive or even exclusive selection criterion in this phase of labour migration to Germany was thus the origin of an applicant or, more specifically, the question of whether an applicant was a national of a certain group of countries with which—on the basis of different constellations of motives—special contractual relations existed in the form of bilateral agreements on labour migration. The guest worker migration thus can be understood as a prototype or even the purest form of a “selecting by origin”-approach in the field of labour migration.

2.2 Exceptions from the Ban After 1973: Migration by Ordinance and Bilateral Agreements in the 1990s

With the recruitment stop of 1973 guest worker migration ended; labour mobility from the formerly sending countries partially became part of the free movement of workers. However, the structure of a labour migration policy that focused strongly (or even exclusively) on an applicant’s country of origin in terms of the dominant selection criterion persisted. At the end of the 1980s, certain sectors of the economy suffered a shortage of labour (e. g., agriculture, hotel and catering), despite generally high unemployment in the country. This led to a partial rollback of the recruitment stop. Particularly in the years following the collapse of the Eastern bloc in 1989/1990, the German government used a familiar pattern of migration control and concluded bilateral agreements with numerous Central and Eastern European states to employ their nationals as seasonal, contract, guest and border workers. Source-country particularism at this stage was also affected by foreign policy considerations in the wake of the upheavals of 1989: the permission for time-limited employment of workers from Eastern Europe was aimed at supporting these states in the transition from a centrally administered national economy to a system of market economy and channelling the migration pressure from these countries to Western Europe and, above all, to Germany.

The extensively reformed Aliens Act, which came into force shortly after reunification did not contain any specific material provision on the basis of which gainful employment migration could have taken place. Possible constellations of labour migration to Germany (also beyond bilateral agreements) were summarized in the ordinance on exemptions from the recruitment ban (Anwerbestoppausnahmeverordnung (ASAV)) in 1998, but were narrowly defined and—with the exception of seasonal employment privileging nationals of a few countries—hardly relevant empirically. The ASAV was a flexible but binding regulative instrument subordinate to a formal law, which was adjusted several times according to labour market needs. It already contained, for example, the so-called “best friends” regulation, which allows a certain group of nationals to be granted permission to pursue any employment in Germany. The according white list included countries from which, on the one hand, low immigration figures are expected, but with which, on the other hand, very good foreign and economic relations have existed for many years.

As regards the selective bias of the labour migration regime, Christian Joppke, in his meticulous comparative study on immigration, integration and citizenship in the United States, Germany and Great Britain, qualified German foreigners law as “violat[ing] non-discriminatory norms and the principle of source-country universalism in drawing categorical distinctions between non-privileged foreigners and privileged foreigners […], which would never pass constitutional muster in the United States” (Joppke, 1999, p. 76). This was about to change as of the year Joppke published these lines.

3 Triumph of Meritocracy: A Universalized Regime for the Twenty-First Century

The turn of the century was an important landmark in the history of German migration policy. On first January 2000 a new Citizenship Act came into force, which modernized Germany’s ius sanguinis dominated nationality law. This year 2000, however, also witnessed an important reform in the area of labour migration, which is particularly relevant for the main interest of this Chapter, the alternating ways the respective country of origin is used as a criterion of labour migration policy. The Green Card of 2000 (see Sect. 9.3.1), a special regulation for foreign IT specialists, was soon followed by a comprehensive immigration policy reform in 2005 which also affected the area of labour migration (see Sect. 9.3.2). In 2012 the German government used the transposition of an EU directive for a further reform of labour migration policy (see Sect. 9.3.3) and in 2020 the Skilled Immigration Act came into effect (see Sect. 9.3.4). Since it is far beyond the scope of this Chapter to comprehensively inform about these measures, all these instruments are exclusively scrutinized under the specific lens of a dominance of particularism or universalism in terms of the countries of origin of the respective applicants.

3.1 First Steps of Farewell to a Labour Migration Policy Based on Countries of Origin: The German Green Card

The introduction of the Ordinance on Work Permits for Highly Qualified Foreign Professionals in Information and Communications Technology (IT-ArGV), which became known to a wider public as the German “Green Card”, marked no less than the beginning of a new era in German labour migration policy since it was the starting point of a universalist era of labour migration policy: with this sector-specific recruitment tool, an applicant’s qualifications began to replace his or her country of origin as the primary criterion for selection decisions. The focus on IT specialists from India, which was present in the political and media discourse before and after the measure came into force, fell completely short of the legal reality, as the ordinance did not contain any restriction on nationals of certain countries of origin. The criteria were exclusively merits-based, the decisive factor being a university or technical college education with a focus on information and communications technology or – in order to take into account the cases of specialists without university certificates, which are not uncommon in the IT sector in particular – an annual minimum salary of at least EUR 51,000 (Jurgens, 2010). In sharp contrast to particularistic measures such as the guest worker recruitment and the attraction of posted and seasonal workers, the Green Card opened a pathway for citizens of any country.

3.2 Qualifications in the Centre: The Immigration Act of 2005 as Paradigm Shift

As a second and much bigger step the Immigration Act (Zuwanderungsgesetz) came into force in 2005 and replaced the old Foreigners Law with an all-new Residence Act (Aufenthaltsgesetz). Yet, its introduction did not mean a landslide reform in the sense that it starkly liberalized access for foreign workers (Schönwälder, 2013, p. 277–282). In retrospect, the provisions for the admission of skilled and highly-skilled migrants as well as for self-employment as they were laid down in the 2005 law appear almost bizarrely restrictive, and they have undergone numerous amendments and (liberal) extensions ever since. However, they continued the trend initiated in the context of the “Green Card”: promoting a qualification-based selection decision irrespective of the ethnic or geographic origin of the candidate. Immigration for the purpose of gainful employment from any country of the world, which had been narrowly introduced for a specific sector through the Green Card, was generalized by the Immigration Act. The key question of labour migration policy “Where do you actually come from?” got replaced by “What qualifications do you bring?”, laying the foundation for a nascent cross-occupational, skills-based labour migration policy, which made the question of access decisions in the area of labour migration primarily dependent on the individual qualification of the applicant (and thus—ex negativo—not any longer on the applicant’s country of origin or nationality).

3.3 Implementing the Blue Card – And Much More Than That

This fundamental shift in the meaning of criteria applied in the context of selection processes specific to labour migration, described here as a universalist turn, was continued and further strengthened in the implementation of the so-called EU Blue Card Directive in 2012. The legislator made a conscious decision to place the residence title, which had to be created by the directive’s requirements, at the centre of German law by implementing the European requirements as liberally as possible (Cerna, 2013). The consequence of this decision was a further strengthening of universalist principles in German law, since the Directive defined a valid employment contract, a certain form of qualification, and a minimum salary as the only selection criteria. Country-specific considerations remained absent (Thränhardt, 2014, p. 9–10). However, the law implementing the Blue Card Directive went far beyond the mere implementation of European law requirements (Laubenthal, 2014, p. 485–486; Thym, 2017, p. 366). It also for the first time introduced a residence title for job-seeking, despite the fact that there were no Union requirements in this regard. This job searcher visa was—and this being decisive for the purposes of this Chapter—universalistic from the outset, i. e. not limited to certain countries.

3.4 The Culmination of Selecting by Qualifications: The Skilled Immigration Act

So far, the last step in a history of liberalization of German labour migration policy spanning over the last two decades was the Skilled Immigration Act of 2020. The core element of this act was to align the legal position of vocationally and academically qualified specialists and to strengthen the options for training and post-qualification of third-country nationals. The new and expanded options for labour migration within the Skilled Immigration Act are universal in that sense that they fully abstract from a potential applicant’s country of origin. The law can thus be regarded as the culmination of a gradual process of geographical universalization of labour migration policy which barely left any space for considerations based on the respective origin of labour migrants and thus as the (so far) final stage of a process of two decades of source-country universalism.

4 Back to the Sixties: The Return of a Policy of “Selecting by Country of Origin”?

The history of German labour migration policy of the past 20 years so far was described as a linear amplification of a universalist philosophy of screening and selecting labour migrants by their merits. Recent developments, however, have the potential to challenge this assessment and instead pose the question of a legal und institutional rollback in a way that labour migration policy increasingly focuses on the countries of origin (again), instead of further disregarding the origin and exclusively focusing on the qualification of individual applicants. These tendencies can be found in migration law (see 9.4.1) but also in the specific features of the institutional framework, of the polity, and of the way Germany organizes and funds migration policy (see 9.4.2).

4.1 Selecting by Origin in the Legal Framework: The Western Balkans Regulation

Just a few months after the entry into force of the Skilled Immigration Act another important decision in the area of labour migration was pending at the federal level, the question of how to deal with a specific segment of labour migration and concretely with a section in the Employment Ordinance, which became publicly known as Western Balkans regulation. This exclusive entry channel is the most telling with regards to the observation of a particularistic turn of German labour migration policy and thus warrants a more detailed analysis.

The Western Balkans Regulation, which favours nationals of Albania, Bosnia-Herzegovina, Kosovo, North Macedonia, Montenegro and Serbia, was not introduced as an answer to particular labour demand in Germany’s industry, nor did it primarily involve considerations of cultural or linguistic proximity, nor any inter-governmental strategic cooperation on labour migration. Rather, its introduction resulted from a grand bargain in domestic politics about how restrictions in Germany’s asylum policy towards these countries, particularly their inclusion into the list of safe countries of origin, could be “compensated” for (Bither & Ziebarth, 2018, p. 13–16). Thus, it was a political attempt to “trade the asylum channel for a labour channel”, to the benefit of nationals of these important source countries (SVR, 2017, p. 77). The only preconditions for nationals of these countries are a work contract with a German employer and a labour market test which assesses whether a German national or another entitled foreign worker can be given priority in filling the position. Its relevance for German labour migration policy is twofold: on the one hand, empirically, because the norm rapidly developed to be one of the central immigration channels for labour migration (SVR Research Unit, 2019). On the other hand, because the approach of primarily (or even exclusively) targeting the origin of a potential labour migrant can push the guiding universalistic principle of labour migration policy of the past 20 years (a focus on individual qualifications; see 9.2), overboard again.

Originally, a sunset clause ruled the regulation to expire on December 31, 2020. The new regulation adopted in October 2020, however, extended this country-particular labour migration channel for another 3 years. Yet it limited the number of approvals to 25,000 per calendar year starting in 2021 (while the original regulation did not provide for such a cap). Thus, the Western Balkans Regulation 2.0 is slightly more restrictive than the first edition. However, this cannot challenge the notion that there are signs of a general change on the horizon: towards a country-specific re-particularization and thus a renaissance of the relevance of origin as recruitment criterion in the area of labour migration management. This potential blueprint of a new structure and basic understanding of Germany labour migration policy can be observed on two different but argumentatively interconnected levels, the spatial and the temporal.

In the context of the 2020 discussion on the future of the Western Balkans regime, the original nexus to the policy goal of reducing asylum migration largely got lost. The instrument was no longer understood as part of a migration policy package or as an element to correct or compensate policy developments in other areas of migration policy, but as a stand-alone instrument of labour migration policy – praised and appreciated particularly by the employers’ associations for being an unbureaucratic exception from the complicated standard procedures of labour recruitment. This again very clearly indicates the character of a migration regime as “negotiated outcomes of multiple actors and organisations with different interests and different functioning logics” (Finotelli and Ponzo, in this volume). A telling example of reframing the structural foundations of the Western Balkans regulation from a regulatory outsider to a potential blueprint of German labour migration policy was the argument put forward by the Committee on Labour, Integration and Social Policy of the second parliamentary Chamber, the Bundesrat. Its plea for a renewed evaluation of the measure was based on the argument that this would provide further and more detailed findings “in the event that the system is extended to other states or regions” (BR-Drs. 490/1/20, p. 5). In doing so, the Committee implicitly resumed a discussion that had been taken place in the years 2016 to 2018 in the course of the federal government’s planned (and so far unsuccessful) inclusion of the three Maghreb states of Algeria, Morocco, and Tunisia in the list of safe countries of origin. The ideas of the Liberal parliamentary group in the German Bundestag, which is part of the federal government, go much beyond. In a position paper, they go so far as to subject not only the Maghreb states but also India and Nigeria, and thus two of the most populous states in the West, to this new “selecting by origin” principle.Footnote 1 Thus, at least at the level of political discourse, the consideration of decoupling the measure from the original spatial restrictions becomes visible and proposes a labour migration policy in the style of the of Western Balkans regulations in other regions.

The tendencies outlined above to remove the exceptional character of the regulation by transferring it to other regions finds its expression in a temporal dimension. A good example for this was the initiative of the federal states of Rhineland-Palatinate, Bremen, Hamburg and Thuringia in the second chamber not only aimed at eliminating the restrictions decided upon in the context of the extension, such as the introduction of a quota of 25,000 consents per calendar year, but also at extending the regulation by making this option permanent. Even stronger as an argument for this development is the agreement of the parties forming the federal government in the 20th legislative period to “make proven approaches […] such as the Western Balkans regulation permanent”. Admittedly, this is only a political declaration of intent and it remains to be seen whether this announcement will be implemented. However, it is a clear expression of how strongly particularistic regulations are now seen as a standard instrument of labour migration policy.

4.2 The Institutional Framework: Labour Demand, Migration Control and Development Cooperation as Drivers of Particularism

Public policies are never confined to the statutory legal framework and its execution. This is also the case in labour migration governance: there are spheres beyond the law, in which institutions and (funding) programmes can let “country-specific regimes” emerge, or contribute to their manifestation. Following a “universalistic decade” after the year 2000 (see Sect. 9.3), Germany has continuously invested more in institutional arrangements that facilitate labour migration from particular countries. Three main underlying rationales may be identified for this (Beirens et al., 2019, p. 12–17): first, current or future prospected labour demand in specific areas is the most pressing factor from a domestic perspective—the nursing and care sectors serving as the emblematic case in Germany. Faced with the double challenge that nursing diplomas acquired abroad often do not meet the requirements for recognition and that Germany’s starting position in a fierce global competition for care workers is rather unfavourable (not the least due to the difficult German language), the Federal government has engaged in strategies for labour recruitment. Second, an important impulse for bilateral labour migration arrangements stems from the intention to incentivize cooperation with “partner” countries in order to reduce irregular migration, secure borders, or improve the return of nationals from these countries. Offering pathways into legal migration for work or vocational training can mark a flipside in formal or informal migration partnerships or agreements, which are primarily geared at restrictive measures and the prevention or (irregular) migration. Third, facilitating the entry of citizens of particular third countries for work or training may be an instrument of international diplomacy, economic exchange or development cooperation. In the latter, the case for legal migration is made on the basis of expected benefits for countries of origin, such as remittances or skills transfer. Without claiming completeness, the following three subsections provide a sketch of the institutional frameworks that are highly source-country-selective, providing further evidence for our thesis of an increasing particularization of Germany’s labour migration regime.

4.2.1 Triple-Win Programmes, Bilateral Agreements and Skilled Labour Bridges

The first generation of migration partnerships launched at the level of the European Union were driven primarily by the goal of managing and limiting unwanted migration. Nevertheless, following a “carrot and stick” logic, they also brought organised migration into play for partner countries: EU Member States were to engage in circular migration schemes in order to “address their labour needs while exploiting potential positive impacts of migration on development and responding to the needs of countries of origin in terms of skill transfer and mitigating the impact of brain drain” (COM, 2007, p. 2). Within the EU partnership with Georgia, Germany started a programme which provided the first structures for a development-oriented approach to labour migration, supporting migrant entrepreneurship, circular migration and the involvement of civil society actors (Nordhus, 2015). It also laid the foundation for a subsequent pilot that recruited around 40 skilled workers from Georgia for the German hotel, catering and care sectors.

In the years to come, care and nursing evolved as the main fields of recruitment. The German agency for development cooperation GIZ started a programme called “Triple-Win Migration” in 2013. It targets countries with a surplus of professionally trained nurses whose qualifications can be (partly) recognised in Germany. Candidates undergo linguistic and intercultural preparation in their home country. Once they are in Germany, they benefit from a swift procedure for recognising their certificates and some of them undergo further training to adapt to the required standards. Ever since 2013, more than 3000 skilled workers from Serbia, Bosnia-Herzegovina, Tunisia and the Philippines have taken up employment or adaptation training in Germany, most of them with the option of a longer-term or permanent sojourn.

In the run-up to the adoption of the Skilled Immigration Act (see 9.3.4), a “Skilled Worker Agency for Health and Care Professions” founded by the Federal Government started its work at the beginning of 2019 to further support the recruitment of care workers. The agency “helps to bring large number of qualified international healthcare professionals to Germany [by] organiz[ing] administrative procedures of application with domestic and foreign authorities and services”. For each recruitment case handled, the agency charges the commissioning companies (e. g., hospital operators, nursing services) a fee of just 350 Euros; for 2020 there were call-off quotas for more than 1200 skilled nurses, primarily from the Philippines and Mexico (German Bundestag, 2020). In this sense, Mexico could become the new source-country of choice, as the German Federal Minister of Health travelled to Mexico in September 2019 and concluded an agreement with his Mexican counterparts to speed up the issuance of work permits.

Beyond the care and nursing fields Germany has also set up training partnerships in sectors such as construction and hospitality. For instance, the German–Moroccan Partnership for the Training and Recruitment of Skilled Workers provided vocational training to young Moroccans in hotels and restaurants in Germany. Participants undergo 3 years of full vocational training and acquire a German language certificate. To be eligible for this programme, applicants have to prove they have practical experience in the hotel and restaurant sector, but they are not required to present a vocational qualification. A more general German–Tunisian Mobility Pact was commissioned by the German Ministry for Foreign Affairs and implemented by the GIZ between 2012 and 2016 to facilitate labour migration of the highly skilled and arrange language classes and internships for Tunisians in German businesses with the goal to facilitate labour matches. Eventually, the German Federal Government concluded a higher-level agreement for cooperation on migration issues with the Republic of Egypt in 2017 (“Agreed Elements of Bilateral German-Egyptian Cooperation on Migration”; German Bundestag, 2018b). Among other things, it involved Egypt into what so far might be the largest and most ambitious pilot programme in terms of supporting mobility for labour and training on the African continent: the project THAMM (“Towards a Holistic Approach to Labour Migration Governance and Labour Mobility in North Africa”). It will run between 2019 and 2023 and is worth about 20 million Euros, 15 million of which are provided through the EU Emergency Trust Fund for Africa (Beirens et al., 2019, p. 46). The project’s aim is to strengthen partner institutions for labour migration in Egypt, Morocco and Tunisia and support them in providing safe, development-oriented labour migration. The various programme lines are supposed to foster the mobility of up to 750 young people from the three North African countries who are interested in migrating to Germany for labour or to receive vocational training (ibid.). Bearing in mind that at least Morocco and Tunisia have been called up as candidates for the special extension of the ultra-liberal Western Balkans Regulation (see 4.1.1) one could go as far and qualify the various programmes to facilitate labour mobility, including THAMM, as functional equivalents to a legal provision, as they facilitate skilled but also semi-skilled labour migration, therefore providing an institutional framework for preparatory language classes and (partial) recognition of skills and certificates.

This was only a cursory overview of a plethora of country-specific programmes funded through the German Federal budget, which foster labour mobility or vocational training. In any case, it becomes evident that, below the surface of an overly universalistic immigration law, there is a solid layer of policies and frameworks for labour migration that evidence structural source-country particularism.

4.2.2 Migration Advisory Centres

Another trend to country particularism—ironically—results from the domain of return policy. Since the introduction of two funding lines in 1979 to encourage the voluntary return of rejected asylum-seekers and other foreigners mandated to depart with the help of the IOM (REAG/GARP) Germany has been maintaining a list of countries “of particular interest to Germany in terms of migration policy”, which defines nationals who are eligible for return subsidies. Thus, return and reintegration aid is highly selective, and both the country list and the amounts paid out to returnees have been subject to bureaucratic engineering between the Federal Ministry of the Interior and the Federal States (Länder), taking into account current political developments.

As a result of the so-called refugee crisis in 2015/16, the number of third country nationals forced to return rose considerably. Besides legislative changes it was agreed within the Federal Government to invest massively into return and reintegration support. In fact, the considerable use of funds in a budget line linked to the Ministry of Economic Cooperation and Development for the reintegration of rejected asylum seekers marked a paradigm shift in the understanding of return (Schneider, 2022). One important step was the establishment and expansion of migration advisory centres in relevant third countries to coordinate the various return and reintegration measures. These centres were run by the German agency for development cooperation GIZ (see 9.4.2.1). At the same time, the new paradigm acknowledged that these countries might as well be source countries for prospective labour migration. Consequently, besides counselling those returning from Germany and assisting them with reintegrating, the centres’ official task is to give advice to the local population on channels for legal migration to Germany (German Bundestag, 2018a). In May 2021, there were 12 of these centres up and running with more than 100 staff, namely in Afghanistan, Albania, Egypt, Ghana, Iraq, Kosovo, Morocco, Nigeria, Pakistan, Senegal, Serbia and Tunisia, and it was planned to open one more in Gambia.

The GIZ has a long record of facilitating labour migration, particularly through the transnational exchange of experts and the large triple-win programme (see 9.4.2.1). Thus, the migration advisory centres (and the associated networks and services such as information on, and referrals to, language and training classes) set up in those 13 countries provide an ideal infrastructure to link them to the new migration programmes fostering labour and vocational training such as THAMM. They provide for an opportunity structure in particular partner countries (namely those which at some point had been major countries of origin of asylum-seekers), which are unavailable to people in other third countries (who might yet be interested to come to Germany for training or gainful employment). While this institutional framework certainly does not constitute positive discrimination in legal terms, such as the Western Balkans Regulation does, it still favours distinct (national) groups and is thus a subtle expression of source-country particularism.

4.2.3 Recruiting Seasonal Workers

As one last example of imminent source-country particularism in German labour migration policy we want to refer to the category of seasonal work. For many decades, this category has been of utmost importance in quantitative terms, with around 300,000 admissions per year (Palumbo & Corrado, 2020). Bilateral placement agreements are a reminiscence of Germany’s recruitment particularism in the 1980s and 1990s (see 9.2.2), which became meaningless with the accession of Eastern and Southeast European countries such as Poland, Romania, Bulgaria, Croatia, Hungary and Slovakia to the EU. A changing geopolitical situation resulted in a new reservoir of workers, putting third-country specific recruitment policies on hold. Until very recently, the demand for seasonal workers (mostly for the seeding, planting and harvesting) could be satisfied primarily with Poles and Romanians, i. e. through intra-EU mobility. However, demands for allowing the recruitment of workers in (designated) third countries were increasingly voiced as this reservoir dried up. Among other reasons, for many Central and Eastern European citizens more attractive employment opportunities have been opening up, either in other sectors in Germany or in their home countries. In fact, the precondition for admission of seasonal workers from third countries (Section 15a Employment Ordinance) is the existence of bilateral agreements between the German Federal Employment Agency and the labour administration of the country of origin in question. Upon provision of a work contract, a residence permit for up to 6 months can be issued for activities in the agriculture, forestry, gardening and the hotel and restaurant industry. But no such agreement had been concluded with any third country, and the provision in the Employment Ordinance therefore ran empty for many years (Offer & Mävers, 2016, margin number 10 to Section 15a Employment Ordinance).

This changed in 2020: even before the onset of the Corona-pandemic and the travel restrictions in March 2020, which severely aggravated the challenge of recruiting workers, an agreement was signed with Georgia to start a programme with 500 seasonal workers per year. The agreement was the first to be struck as a result of a whole series of bilateral talks to initiate placement agreements with third countries, among them also Bosnia-Herzegovina, Albania, Moldova and North Macedonia (Lechner, 2020, p. 17), but also Ukraine. What was planned as a slightly cautious pilot scheme with 500 recruits for the harvesting season of 2020 at first had to be postponed and was then boosted in the following year. After the Corona pandemic had put many farms in dire straits and a return to freer cross-border movement was on the horizon for the 2021 harvest season, Germany put its money where its mouth is: the quota was increased tenfold to 5000, immediately applicable. Given that the interest in employment opportunities in Germany is considerable in Georgia, the years of repeated seasonal employment ahead could be the starting point for deepening labour migration relations in other sectors of the economy as well. The new seasonal workers scheme with Georgia (and potentially soon with other third countries) can thus be interpreted as the latest expression of a shift towards a much more country-specific regime of labour migrant selection in Germany.

5 Discussion and Conclusion: Blurring Boundaries and Unexpected Similarities Between Germany and Southern Europe

The question whether the German regime for labour migration has departed from the twenty-first century universalistic victory still awaits a final answer. However, the described developments in its legal and institutional framework are clear markers of the growing importance of what—following Joppke (2005)—we might coin source-country particularism (regarding configurations in which nationals from particular third countries are preferred over others by law or regulation) or preferential bilateralism (delineating cases where contractual agreements, other soft law or a favourable institutional framework are benefiting nationals of particular countries, thereby discriminating against others).

The analysis of country particularism in Germany almost inevitably brings to mind the migration regimes of Southern European states and their configurations for labour recruitment, particularly in Italy and Spain, challenging also the North-South divide in immigration policies. Both countries, for quite some years now, display “hybrid” labour migration regimes in the sense that they are universalistic in principle but feature distinct particularistic pillars. The latter come primarily as preferential bilateralism and are typically rooted in a strategic quid pro quo logic of cooperation with third countries, which began to take shape with the increasing migration pressure faced by the Mediterranean EU Member States, particularly in the first decade of the new century (Beirens et al., 2019, p. 39–42). Special labour migration quota or pathways for vocational training cast into bilateral agreements became part and parcel of broader arrangements for cooperative migration management, which—from the European vantage point—primarily aimed at reducing irregular migration and securing external borders and the functioning of the asylum system (Ferreira, 2019). Given the fact that the details about the specific traditions of Southern European countries of resorting to source-country particularism have been elaborated in detail elsewhere it is not necessary to explain those in order to highlight some unexpected parallels between Germany and Southern Europe: Germany is displaying policy traits traditionally associated with the EU Mediterranean Member States and integrates various country particularistic structures into its labour migration regime. The recent agreement on the placement of up to 5000 seasonal workers from Georgia most closely resembles the southern pattern of selective cooperation. Even if Germany does not yet have any outspoken migration-related bilateral agreements at ministerial level in which fixed quotas are promised, the various state-sponsored country-specific programmes can be understood as functional equivalents to this, as can the growing network of migration advisory centres in various third countries—even if their substantive focus has so far been on providing information and to support the reintegration of returnees. In one respect, Germany’s country particularism even goes beyond that of the Southern EU Member States: with the Western Balkans regulation, positive discrimination in recruitment policy in favour of nationals of six countries was enshrined in the Employment Ordinance—a quasi-law for which amendments are typically the result of parliamentary resolutions in both chambers and not only decreed by the responsible Ministry of Labour and Social Affairs.

What remains unanswered (at least in this article), however, is the question of how to explain these first indications of a new particularistic trend of German migration policy. Putting the German case study into a comparative framework might help to generate some explanatory hypotheses. In the case of Southern European countries cooperation agreements are certainly related to the imperative to intensify cooperation against irregular migration. In Germany the motivation is less clear. But it cannot be excluded that the newly emerging particularism also has its roots in a mix of geopolitical interests and intention to intervene on the routes of unwanted migration flows towards Germany—the Western Balkans Regulation (despite the fact that it originally was only motivated by consideration of domestic politics) gives rise to such an explanation. With regard to other geographical areas the motives for the emergence of country-specific frameworks might be even more opaque, i. e. resulting from contingent opportunity structures, rather than from distinct clear-cut policy rationales. As in the case with the THAMM project in North African countries, foreign policy considerations, development cooperation, migration management objectives as well as domestic demand on the German labour and vocational training market all may play a role, thus forming a bundle of motives which constitutes a (more or less) coherent policy regime.

The renewed importance of the national origin of would-be migrants in Germany’s post-2015 migration regime is not only at odds with the basic principles of its labour migration law, which is supposed to regard the interests of the Federal Republic of Germany in terms of its economy and labour market—and thus focuses primarily on qualifications. Moreover, it is problematic from a normative perspective: origin is an ascriptive characteristic and as a primary criterion for labour migration requires much more justification than non-ascriptive, merit-based characteristics such as skills and qualifications, which depend on performance and personal effort. The growing importance of source-country particularism in labour migration control is therefore irritating, besides the fact that such positive discrimination cast into the legal framework, as the case with the Western Balkans Regulation in the Employment Ordinance, can hardly be reconciled dogmatically with the norm structure of the migration policy regime as it has grown over the past two decades, aligning the latter to the primary criterion of qualification. Undoubtedly, it would be an exaggeration to state that Germany has already undergone a fundamental backlash in the sense that an applicant’s ethnic or national origin has become the key criterion for admitting labour migrants. However, with the Western Balkans Regulation as a potent and meaningful instrument of positive discrimination which defines origin as a primary criterion, Germany has opened up a path that might and—according to the agreement of the parties forming the new government—will be used in a broader way in the future.

As far as the institutional framework beyond the mere legal sphere is concerned, our analysis has shown increased dynamics: Germany’s labour migration-related activities abroad cover a growing number of third countries, and they have picked up in volume. As such, the migration advisory structures, training programmes and skilled labour bridges would be unsuspicious of discriminatory country particularism if they resulted from the free play of a transnational labour market and global value chains. Indeed, employers follow the economic principles of supply and demand and try to meet their labour needs according to the opportunities available to them. In times of growing sector-specific domestic labour shortages, these options quickly reach their limits, as employers’ networks in third countries through visits or diaspora connections tend to be limited (Beirens et al., 2019). If then, we argue, the state invests massively in labour recruitment and identifies such bilateral mobility-promoting constellations as part of the respective government policy (explicitly or implicitly linking them to other policy fields such as migration control, return policy or to development cooperation), it leaves the path of a universalistic, “country-blind” migration regime. In that same vein, carving a corridor for up to 5000 Georgian nationals for seasonal work in agriculture as of 2021 is a clear expression of positive discrimination and source-country particularism. Given the serious domestic policy discourse over a spatial extension of the Western Balkans Regulation towards countries in the Maghreb and the recent popularity of legal migration pilot projects and talent partnerships within endeavours towards a common European Union Framework for migration and asylum management (COM, 2020, p. 17–19, p. 24–29), one is to expect growing relevance of origin as a central criterion in Germany’s labour migration regime—and thus a further approximation towards Southern EU Member States with a tradition of preferential bilateralism and country-specificity in their migration systems: Ethnic selectivity in the area of labour migration policy might be increasingly utilized as a means to boost effectiveness in other sections of migration control. This would imply a return of a policy of “selecting by origin”—in a different shape as described in Joppke’s analysis, but with the same potential of discriminatory power.