Germany's temporary ban on family reunification for beneficiaries of subsidiary protection - A comparative discourse analysis of (de)-legitimation strategies

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Faculty for Culture and Society

Germany’s temporary ban on family reunification for

beneficiaries of subsidiary protection -

A comparative discourse analysis of (de-)legitimation

strategies

Imke Feindt

International Migration and Ethnic Relations Two-year Master’s programme

Summer 2018

IM622L – 30 Credits

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Abstract

The German government’s decision in 2016 to reduce the number of incoming immigrants by suspending family reunification for beneficiaries of subsidiary protection for two years, sparked a controversial debate, with some critics arguing that family reunification represents a human right. Contributing to the very scarce literature about this development, the aim pursued in this thesis is to better understand the differing discourses and (de-)legitimation strategies regarding the suspension by comparatively analysing written statements handed in to German parliament by the government and civil society organisations in March of 2017. The theoretical framework underlying this thesis are the discursive understanding of human rights by Seyla Benhabib and Michel Foucault’s theorisation of power and knowledge. The methodological framework consists of a three-dimensional critical discourse analysis by Norman Fairclough complemented with an analysis of the four categories of (de-)legitimation by Theo van Leeuwen. The results of the analysis show that two types of discourse are pursued in the material: a legal, technical discourse by the government supported by (de-)legitimation strategies relying on national laws, administrative court decisions and the value of qualities like leadership and a discourse focused on the value of family life by the civil society organisations. Despite the diverse backgrounds of the civil society organisations analysed, coinciding (de-)legitimation strategies based on the importance of family life for integration and based on the case law of federal and European courts were identified.

Key Words: Family reunification; subsidiary protection; human right; critical discourse analysis; (de-)legitimation

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Acronyms

AWO Workers’ Welfare Association

BAMF Federal Office for Migration and Refugees

BMJV Federal Ministry of Justice and Consumer Protection CDA Critical Discourse Analysis

CDU Christian Democratic Union CSU Christian Social Union in Bavaria DAV German Bar Association

DIMR German Institute for Human Rights ECHR European Convention on Human Rights ECtHR European Court of Human Rights

EU European Union

FDP Federal Democratic Party

SPD Social Democratic Party of Germany

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1. Introduction

In 2015 large numbers of refugees, mainly Syrians fleeing the war in their home country, reached Germany. According to Hafez (2016: 2-4), over the course of the year 2015 many people in Germany got the impression that the number of incoming refugees became increasingly uncontrollable. Politicians quickly responded to this sentiment and a discussion about how to regulate refugees entering Germany erupted. One contested aspect of this discussion was the right to family reunification. It resulted in the decision to grant Syrian refugees almost exclusively subsidiary protection in the future and to suspend family reunification for beneficiaries of subsidiary protection for two years, from March 2016 until March of 2018. This suspension has been a controversial issue, dividing the German government, which at the time consisted of a coalition between the Christian Democratic Union (CDU), its sister party the Christian Social Union in Bavaria (CSU) and the Social Democratic Party of Germany (SPD), and the opposition parties The Greens and The Left in the German parliament, called Bundestag. It also provoked criticism from civil society organisations like Germany’s largest pro immigrant organisation Pro Asyl (Muy/ Gutekunst 2017: 151-152). This tightening of the German asylum law is in line with a wide range of restrictive measures implemented by Western states during the last three decades aiming at deterring refugees from entering their territory to seek asylum. However, the study of family migration and family reunification in particular, which have been the subject of extensive restrictions, have been largely neglected so far especially in Europe (Kofman 2004: 243; Borevi 2015: 1491). According to Carens (2013: 187), this is striking because the claim to family reunification, which is based on the human right to family life, is a very sensitive issue and any restrictions imposed by the state need to be based on serious justifications to legitimise their decisions. In this thesis I will therefore focus on restrictions of family reunification and their legitimation, analysing the case of beneficiaries of subsidiary protection in Germany. As I outlined above, this issue is highly topical in Germany, which is why a deeper understanding of the debate seems to be of great importance. In order to develop this better understanding, I have chosen one specific segment of the debate that I will analyse in depth. I will concentrate on two proceedings that took place in German parliament at the same time in March of 2017. On the one hand, the German government submitted a written statement to parliament explaining its position regarding the suspension of family reunification for beneficiaries of subsidiary protection in response to a brief parliamentary inquiry made by the opposition party The Left (Deutscher Bundestag 2017d). On the other hand, and parallelly, civil society organisations

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were invited to do the same by a parliamentary committee (Deutscher Bundestag 2017c). Analysing these two proceedings regarding the suspension of family reunification will thus be the focus of my thesis.

1.1. Research questions and aim

The suspension of family reunification for people granted subsidiary protection is a highly contentious issue that has divided Germany’s political landscape for almost three years. This is all the more important as the restriction of family reunification concerns a very sensitive although scientifically under-represented issue. Some argue that it represents the restriction of a human right and thus the question arises how this is legitimised. Hence, the declared aim pursued in this thesis is contributing to better understanding the differing discourses about the suspension of family reunification and the underlying power relations. Specifically, to better understand how the German government legitimises the restriction of a right some consider representing “a moral limit to the state’s right simply to set its admission policy as it chooses” (Carens 2013: 97) and which (de-)legitimising strategies can be found in the discourses of civil society organisations. The research questions that will guide me through the thesis are thus:

1) Which discourses regarding the suspension of family reunification can be identified in the statements of government and civil society organisations?

2) Which (de-)legitimation strategies are pursued in these discourses?

1.2. Delimitations

Since the scope and time frame of this thesis are limited, I must confine my analysis to a certain point in time and will focus on March of 2017, as already mentioned above. I chose March of 2017 since both the government and civil society organisations handed in statements to parliament during that month regarding the suspension of family reunification. Analysing this material allows me to conduct a comparative analysis of discourses about and (de-) legitimising strategies regarding the suspension of family reunification of several different actors. However, there is much more material regarding the suspension of family reunification from both the government as well as the civil society organisations that was produced at other points in time and can therefore not be included in this thesis.

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1.3. Background

In consequence of the so called ‘refugee crisis’ in 2015, a legislative package came into force in March of 2016 which included various aggravations regarding the German asylum law. One of these aggravations concerned family reunification for beneficiaries of subsidiary protection, which had been liberalised just one year earlier (Gutekunst/ Muy 2017: 154). Beneficiaries of subsidiary protection are not recognised as refugees as defined in the Geneva Convention since they are not persecuted based on their race, religion, nationality, political convictions or membership of a particular social group. They are in need of international protection for facing other life-threatening dangers in their home country, for instance due to a civil war (Feijen 2014: 175). In Germany, this protection status is accompanied by fewer rights and privileges than the refugee status (Federal Office for Migration and Refugees (BAMF) 2016: 1).

However, beneficiaries of subsidiary protection had been granted the privileged right to family reunification in August of 2015. Since then, paragraph 29 of the German Residence Act stipulates that foreigners who have received a residence permit as an asylum seeker, a refugee or a beneficiary of subsidiary protection have a right to privileged family reunification, meaning they do not need to provide proof of adequate housing or salary to be eligible for family reunification. The only condition is that the application for family reunification must be lodged within three months of recognition as a person entitled to protection and that the reunion of the family is not possible in a third country to which the person in question or his or her family has a close connection (Federal Ministry of Justice and Consumer Protection (BMJV) 2018). Still, in March of 2016 the new legislative package practically repealed this amendment by suspending the right to family reunification for people granted subsidiary protection for two years. At the same time, the Federal Office for Migration and Refugees, abbreviated “BAMF”, sent instructions to its officials declaring that the granting of the refugee status would no longer be the norm for asylum seekers from Syria. Instead, from then on Syrian asylum seekers were increasingly granted subsidiary protection without the immediate right to family reunification. The objective of these restrictions was supposed to act as a deterrent to potential asylum seekers and was meant to limit the immigration of families of beneficiaries of subsidiary protection (Muy/ Gutekunst 2017: 151-152).

As already outlined above, this suspension divided the political parties in Germany. The Greens advocated against it and presented a legislative proposal in parliament which aimed at reversing this two-year suspension in October of 2016 (Deutscher Bundestag 2017a). One month later,

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another opposition party, The Left, also submitted a legislative draft aiming at allowing unrestricted family reunification for people granted subsidiary protection (Deutscher Bundestag 2016a). After a first discussion in parliament, the draft legislations were passed on to several parliamentary committees for further discussion. The Interior Committee, responsible for asylum policy, was named the leading committee in charge of coordinating further steps (Deutscher Bundestag 2017a). In March of 2017, the Interior Committee decided to conduct a public hearing, which is a frequent practice when polarising issues are debated. The committee invited some representatives of civil society organisations and other institutions to submit written statements, explaining their position regarding the two-year suspension of the right to family reunification. In addition to those explicitly invited to participate in the public hearing, other organisations were also allowed to submit statements if they wished to do so (Deutscher Bundestag 2017b: 1-2).

In the same month, the German government submitted a response to parliament concerning questions raised by The Left (Deutscher Bundestag 2017d). Any parliamentary group in the German Bundestag in entitled to request written information on specific matters from the government which the latter is obligated to answer within 14 days (Linn/ Soboloweski 2017: 74). The opposition party The Left made use of this right in early 2017 by asking the government to explain its position on the suspension of family reunification for beneficiaries of subsidiary protection.

This heated debate also contributed to the difficulties of Germany forming a new government after the last parliamentary elections in September of 2017, when a further suspension of family reunification was discussed. Coalition talks between the CDU, the Free Democratic Party (FDP) and the Greens failed in November of 2017, one issue being family reunification. The Greens were vehemently opposed to extending the suspension for family reunification for beneficiaries of subsidiary protection after the initial suspension expired in March 2018 while the CDU and the FDP were in favour of a further suspension (Gathmann et. al. 2017). Summarising, the political debate about the suspension of family reunification has been ongoing since 2015 and continues, therefore one cannot analyse the entire discussion in a thesis of this scope.

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1.4. Structure of the thesis

To pursue the aim of this thesis and answer my research question, I will begin by reviewing previous research in the field of family reunification, its suspension in Germany and the general debate about whether it constitutes a human right. Additionally, I will review the literature about the legislative procedure in the Bundestag, especially analysing public hearings and brief parliamentary inquiries before moving on to civil society organisations. This chapter will also help me to clearly define the different concepts I am working with. Next, I will outline my theoretical framework. Here, I will present the discourse-theoretical understanding of human rights developed by Seyla Benhabib which I adopt in this thesis. I will also retrace the theoretical background of my methodology and in consequence operationalise Foucault’s work regarding power and knowledge. Then I will turn to my methodological framework which is based on Fairclough’s three-dimensional model of critical discourse analysis (CDA). As my focus will lie on (de-)legitimisation strategies, I will complement Fairclough’s model with Van Leeuwen’s four categories of (de-)legitimation strategies, which I will outline in chapter four. I will then carry out my analysis in chapter five before discussing my findings and return to my research questions in the conclusion.

2. Literature review

In this chapter I will review literature relevant to my thesis to illustrate the field of research I am working with. This will also allow me to outline the concepts I am using for my research. I will start by reviewing the literature about family reunification, specifically about the recent legislative changes in German asylum law relating to family reunification. Then I will focus on the legislative procedure in German parliament. This section will serve as a brief introduction of the mode of operation in the Bundestag which is relevant so that the reader develops a better understanding of how my empirical material was produced and which role it plays in the overall procedure. Here, I will focus on research dealing with small inquiries and public hearings since I am planning to analyse one of each. Finally, I will shortly review the literature about the conceptualisation of civil society organisations.

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2.1. Family reunification

Kofman (2004: 243) claims that the study of family reunification has been neglected so far and that this research gap is particularly large regarding Europe. According to Borevi (2015: 1491), this is noteworthy because policies regarding family reunification have become a contentious issue and the subject of many legislative changes in various European countries during the last couple of years. Most policy changes constituted restrictions that reflect the desire of many states to reduce the number of refugees and migrants entering their territory. Moreover, Borevi (ibid.) adds that this represents the diminishing importance states attribute to the value families might have for a successful integration of refugees or migrants in the host country. At this point the term family must be clarified before I continue. In the context of family reunification, the term generally only includes the immediate family, hence ones’ spouse, ones’ parents, who are often only admitted for humanitarian reasons or when they are dependent on their children, and minor children. The asylum seeker him or herself cannot decide who is constituted as belonging to his or her family and thus eligible for reunification (Kofman 2004: 245).

When searching for literature about family reunification and particularly the changes its regulation underwent in Germany since 2015, few scientific articles can hitherto be found. Muy and Gutekunst (2017) have written one of the more comprehensive articles on the subject, providing the reader with an overview of the legislative package that came into force in March of 2016 and which incorporated the suspension of family reunification. Kalkmann (2016: 107) offers an explanation of the respective legal text and stresses that the suspension constitutes a temporary derogation from paragraph 29 of the German Residence Act. He assumed that beneficiaries of subsidiary protection would be granted the right to family reunification again once the two-year period of suspension expired. Sare (2018: 51) observes a restrictive trend in German migration policies, which specifically concerns the regulation of the rights of people fleeing their home countries. According to her, the German government is using the suspension of family reunification for beneficiaries of subsidiary protection as an instrument to reduce the overall number of migrants entering the country. However, there is a discussion about whether this suspension is in accordance with the German constitution, to which both Muy and Gutekunst (2017: 157) as well as Sare (2018: 61) draw attention. The three researchers illustrate that article six of the German constitution guarantees the right to marriage and family life, irrespective of a person’s nationality. A long-term ban on family reunification would thus not be compatible with the constitution. In this context all three researchers also emphasise a judgement of the German Federal Constitutional Court from 1976, wherein the latter ruled that

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the realisation of the desire to live together as a family can only be denied for a reasonable period of time. Finally, the three authors add that the lawfulness of the suspension of family reunification is also debatable regarding the case law of the European Court of Human Rights (ECtHR). Article eight of the European Convention on Human Rights (ECHR) expressly protects the family unit and the ECtHR ruled that any permanent or temporary prevention of the family constitutes an infringement of this right (Muy/ Gutekunst 2017: 157; Sare 2018: 61). However, what none of the articles quoted above provide information about is the number of people actually affected by the suspension of family reunification for beneficiaries of subsidiary protection. Regarding this question, a study published by the German Institute for Employment Research provides more information. According to Brücker (2017: 1), the author of the study, between 50.000 and 60.000 family members of beneficiaries of subsidiary protection would be entitled to come to Germany had the suspension of family reunification not been determined. Brücker points out that this number is lower than initially estimated. His study revealed that most of the people entitled to protection who arrive in Germany are single and do not have children yet and that those who do often travel together with their family in the first place. Family members that qualified for family reunification before the suspension were mostly those that Kofman (2004: 245) already included in his definition of the nuclear family: parents were entitled to being reunited with their minor children, minor children to being reunited with their parents and spouses to being reunited with their husband or wife. In addition, registered civil partners were also entitled to being reunited and in hardship cases exceptions for other family members could be applied for as well. Overall, the biggest group affected by the suspension of family reunification are Syrians. In 2016, 94 percent of family members entering Germany through family reunification came from Syria (Brücker 2017: 2).

On a broader level, when studying literature that deals with family reunification in general and not specifically with the legal development in Germany, one quickly comes across the debate about whether family reunification should be acknowledged as a human right. What exactly is understood by human right will be outlined in more detail in chapter three, where the theoretical framework of this thesis will be discussed. The origin of this debate is the circumstance that so far, no human rights treaty explicitly recognises family reunification as a fundamental right, yet it can be derived from several human rights treaties and articles. Cholewinski (2002: 274) explains that the family unit and family life have been recognised as especially deserving of protection and hence human rights in important human rights conventions like the Universal Declaration of Human Rights (Art. 16) or the International Covenant on Civil and Political

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Rights (Art. 23 (1)). He argues that moving from protecting the family unit to acknowledging the right to family reunification is a small step to take, which several courts have already done. Among them is the ECtHR which ruled that Article 8 of the European Convention on Human Rights (ECHR), concerning the respect for family life, places states “under a positive obligation to admit a family member in a situation where the family unit cannot reasonably be expected to relocate to the country of origin” (ibid.: 275). Honohan (2009: 774-775) adds that deriving the right to family reunification from the human right of family life can also be advantageous for the state itself. Apart from the argument that living with ones’ family is of grave importance for most people, many also argue that it enhances integration in the host country.

However, Honohan also sheds light on the fact that there are arguments against the right to family reunification. For instance, Honohan (ibid.: 775) illustrates that some critics of the right to family reunification question whether the family is still as important an institution today as it may have been in the past. These critics argue that other less formal forms of partnerships become more and more important than legally defined relations. Additionally, it could be argued that a residence permit in “prosperous liberal democratic states is a scarce resource” raising the question why people who happen to have relations to others who made it to these states should be granted privileged access over others (ibid.: 777). Family reunification is thus a controversial topic that is not yet regarded as a human right by human rights treaties, but it is construed as such in certain judicial decisions.

Summarising, due to the novelty of the suspension of family reunification in Germany, only a limited number of articles and studies have been published up to now. The focus of this literature has been on the analysis of the legal text itself and its legality. Moreover, there seems to be a general disagreement in the literature about whether family reunification constitutes a human right or not. This discussion is also reflected in the literature about the recent developments in Germany. The analysis of the discourse about and (de-)legitimation strategies regarding the suspension that will be conducted in this thesis will thus contribute to this new field.

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2.2. Legislative procedure in the Bundestag

The legislative procedure in Germany is complex and can be lengthy, therefore I will limit this short review and introduction to the key steps of the procedure that are important to understand for this thesis and what has been published about them. Comprehensive introductions to the legislative procedure in the Bundestag have been written by Ismayr (2000) and Linn and Sobolewsky (2017). Ismayr (2000: 239) begins by explaining that legislative proposals can be submitted to the Bundestag by various actors, such as the Federal Government itself, a parliamentary group, like for instance The Greens, or at least five percent of the members of parliament. Linn and Sobolewsky (2017: 111) add that the Bundestag usually deals with legislative proposals during three public deliberations, which are called readings. These readings do not primarily serve the purpose of convincing members of other parties but rather to inform the public and the media about the differing standpoints of parties regarding a specific topic. At the end of the first reading, the draft legislation is always referred to one or more parliamentary committees. These consist of parliamentarians who are specialised in certain policy fields. If a draft is assigned to several committees, one leading committee is appointed which is responsible for the further discussion of the draft and eventually for recommending the Bundestag to accept, amend or reject a draft law (ibid.: 113).

Regarding the role these committees play in the legislative procedure, two studies have been published recently by Eising and Spohr (2017) and Mickler (2018). While Eising and Spohr analyse the influence interest groups have on committees, Mickler analyses the process through which draft legislation is assigned to different committees. What the three researchers agree on is that committees represent the most important venue for revising draft legislation in the German Bundestag (Eising/ Spohr 2017: 314; Mickler 2017: 518). They do so inter alia by consulting interest groups and experts by inviting them to public hearings which Eising and Spohr (2017: 316) consider to be their “most important power”. Yet, while research about the committees themselves is not a new research field, analysing public hearings has been neglected so far (ibid.: 315). I will illustrate this aspect more extensively in the next sub-point.

Linn and Sobolewski (2017: 125) proceed that after the committees have completed their work and made a recommendation on whether to accept or reject the draft law, the second reading in the Bundestag takes place. Now the parliamentary groups as well as individual members of parliament get the chance to request amendments and discuss the draft a second time. If there are no requests for amendments the third reading follows directly afterwards, during which the final vote on the draft legislation takes place (ibid.: 128).

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2.2.1. Public hearings

As already mentioned above, the analysis of public hearings in the committees of the German parliament is a neglected field of research (Eising/ Spohr 2017: 315). Ismayr (2000: 407) points out that this is the case even though public hearings have already been held since 1952. However, they have not been conducted frequently until the early 1980s when the opposition party The Greens entered the German parliament and started to make use of this instrument of information and control. They were able to do so since the rules of procedure of the German Bundestag stipulate that a committee must hold a public hearing if at least a quarter of its members insist on it. It thus represents a minority right in parliament (ibid.).

According to Ismayr (2000: 408), in principle the main purpose of public hearings is supposed to reduce the asymmetry of information between the ministries over the parliament and the government over the opposition. Public hearings enable all members of parliament to obtain relevant information to base their decisions on, independently of whether they belong to the government or the opposition. In this regard Weßels (1987: 286), who studied public hearings when they became a more and more relevant instrument of parliamentary committees in the 1980s, analyses the communicative role public hearings play and stresses that they should not be underestimated in the parliament’s decision-making process. However, how informative and influential they are partly depends on which groups and experts are invited to share their knowledge with the committee. Here Ismayr (2000: 409) points out that if a public hearing is initiated by a minority, the informants that the minority wishes to hear must be invited. Still, the number of experts that can be invited is often limited and then the number of experts to be named by the different parties depends on their strength in parliament. In these cases, smaller opposition parties are at a disadvantage especially because political parties often favour experts that share their position and hence the majority will invite people who confirm their views (ibid.).

Apart from this general overview of the purpose and regulation of public hearings, few systematic researches about these hearings have been conducted so far. An exception is Weßels study (1987: 293) since he analyses how many public hearings the different committees carried out between their introduction in the 1950s and the early 1980s. He finds out that most public hearings are conducted when draft legislation is discussed and far fewer for preparing future drafts or simply for investigating certain matters. His study also reveals that the committee of internal affairs, which is also the one that organised the public hearing I will analyse in this thesis, is among the four committees that make use of this instrument the most. Nonetheless,

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his study does not offer any up-to-date information and leaves other questions relevant to this thesis unanswered.

For one thing, there is currently no study that specifically analyses the use parliamentary committees make of public hearings in the research field of flight and migration. So far, there is only one study conducted by Bade (2017) analysing two public hearings called for by the committee of internal affairs from the year 2002 that dealt with labour migration. Yet, there is presently no research about how often public hearings are conducted when draft legislation regarding refugees or migrants is discussed or which experts and organisations are invited to these hearings. Furthermore, no critical discourse analysis of any material submitted during a public hearing regarding flight and migration has been carried out yet. In this regard, the analysis of a public hearing planned in this thesis will make a small contribution to developing this research field.

2.2.2. Brief parliamentary inquiries

As I will not only analyse material submitted during a public hearing but compare it to material the German government handed in in response to a brief parliamentary inquiry, I will now shortly review literature regarding the latter. Parliamentary inquiries have not been mentioned in the introduction of the legislative procedure in the Bundestag since they are not per se a firmly established part of this procedure. However, Ismayr (2000: 341) points out that they are an instrument predominantly used by members of parliament to obtain information from the government during the process of drafting or discussing legislation. More detailed research regarding the purpose and use of brief parliamentary inquiries has been conducted by Kepplinger (2009) and Siefken (2010).

Kepplinger (2009: 103) explains that members of the German parliament have various options when it comes to acquiring information from the government. They can inter alia make so called large or brief parliamentary inquiries, asking the government questions about issues of their interest to which the government must answer in a specified period of time. The difference between these two forms of inquires is that a large inquiry is more extensive and answering the questions requires the government more administrative effort since it is not only obligated to prepare a written response but also a discussion about the issue in the Bundestag. Brief parliamentary inquires on the other hand are more frequent since they are easier to prepare and answer. To these the government is only making a written statement. In order to file a brief parliamentary inquiry, at least 34 members of parliament have to support it and submit it to the

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president of the German Bundestag. The president then passes the inquiry on to the responsible Federal Ministry. Once the respective ministry has prepared the answer, for which it has two weeks, the answer is sent to all members of parliament (ibid.).

Siefken (2010: 21), whose study is an analysis of the use and benefits of brief parliamentary inquiries in recent decades, points out that due to the obligation of the government to respond, these inquiries represent the only reliable way of quickly obtaining binding information from the Federal Government and its ministries. They are primarily used by the opposition and represent another minority right in the Bundestag. Just like public hearings in parliamentary committees, brief parliamentary inquiries have become more frequent since the opposition party The Greens entered parliament in the 1980s and since the predecessors of the opposition party The Left were elected to the Bundestag in the 1990s. Today the party that submits the highest number of brief inquiries is The Left, which also submitted the inquiry I will analyse in this thesis (ibid.: 26). In this context Kepplinger (2009: 103) adds that since these opposition parties have become an integral part of the Bundestag and have established contacts to the ministries, brief parliamentary inquiries do no longer exclusively serve the purpose of their own information. The opposition also strategically uses them to put the government under pressure to position or justify its decisions in certain subject areas. Moreover, the inquiries also serve to induce interest and mobilise the public and media (ibid.).

However, there is no research yet that systematically studies how brief parliamentary inquiries are used to obtain information from the government in specific policy fields. For instance, there is no research that investigates brief parliamentary inquiries in the policy field regarding refugees or migrants. Additionally, few studies have been conducted so far that analyse how the government responds to specific brief inquiries even when looking at other policy fields. There is thus a general research gap in the literature about these inquiries and more specifically regarding the analysis of the government’s responses to brief inquiries, particularly concerning the policy area of flight and migration. Moreover, no study could be found that analyses both a public hearing and a governmental response to a brief inquiry concerning the same draft legislation. The comparative analysis of both sets of material in this thesis regarding the same topic will thus contribute to this hitherto little developed research field.

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2.3. Civil society organisations

Although I already pointed out that there is very limited research about which civil society organisations participate and influence public hearings of parliamentary committees of the Bundestag, especially in the policy field of flight and migration, there is another strand of literature relevant to my thesis that I will review here. It concerns the term civil society organisation itself. The term has been mentioned various times in this thesis already without a clear definition. This is because there is no universally accepted definition of the concept and the choice for one of the many definitions available must be explained in more detail. Authors like Jensen (2006), Castells (2008) and Rainey et al. (2017) shed light on this problem in their research about the different concepts of civil society organisations and their role in society. Rainey et al. (2017: 1991) illustrate that the terms civil society organisation, non-governmental organisation, interest groups and so forth are often intermingled or used as synonyms which contributes to the conceptualisation challenge. In accordance with this display of the problem Jensen (2006: 39) criticises that the use of the term is often “more obfuscating than illuminating”. Therefore, I will use this section to explain exactly what I understand by civil society organisation and why I chose to work with this term even though it is not uncontroversial.

Scholte (2002; 2011) has developed a comprehensive and inclusive definition of the concept civil society organisation which I will adopt for this thesis. According to Scholte (2002: 146) civil society describes “a political space where voluntary associations deliberately seek to shape the rules that govern one or the other aspect of social life”. The term rules can refer to any norm, policy or legislation that is being discussed. Furthermore, Scholte (ibid.: 34) clarifies that through their political actions, civil society organisations are deeply involved in various struggles of society and are aiming at influencing the power relations of the society they operate in. The author also points out that the consequences of civil society action are not always beneficial, the result of these actions depends on the organisations in question and their backgrounds and aspirations (Scholte 2011: 39).

What civil society organisations have in common according to Scholte (2002:146) is that they are non-state and non-profit actors. They do not seek any public office or financial gain from their actions. This thus excludes political parties as well as business enterprises. Apart from these exceptions however, the definition is inclusive as many other actors fall under it. Following Scholte’s line of thought (ibid.: 147), an academic institution as well as philanthropic organisations, peace movements, labour unions, think tanks and many more can be labelled

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civil society organisations if they fulfil the requirements mentioned above. The key to this concept of civil society organisation is the conscious effort to shape policies, legislation or norms. Scholte (ibid.: 149) summarises his conceptualisation as follows: “In sum, civil society spans a large and multi-coloured canvas. It exists wherever people seek through voluntary association to affect the ways we manage our collective affairs”.

Hence, Scholte favours a conceptualisation that entails exclusion criteria differentiating between state and civil society organisations but is otherwise not overly restrictive. This is also the reason why he, like Rainey et al. (2017: 1997), choose not to work with the term non-governmental organisation which they consider to be too limiting. Scholte (2011: 35) argues that the term non-governmental organisation places too much focus on criteria such as being a formally institutionalised or administered organisation which are not the criteria he deems decisive. In addition, this would exclude social movements and other forms of collective action which Scholte considers to be important to analyse as this type of civil society tends to criticise social structures more profoundly then institutionalised organisations (ibid.).

The including definition of civil society organisation by Scholte which has clear exclusion criteria that draw the line between the state and civil society is thus the reason why I chose to work with this definition. It allows me to analyse material submitted by very different actors which are clearly different from the German government, enabling me to conduct a clearly delineated comparative analysis.

To conclude this chapter and summarise how I aim to contribute to the different research fields reviewed above, I intend to contribute to the research field on the recent restrictions of family reunification and their legitimation, focusing on the case of beneficiaries of subsidiary protection in Germany. Moreover, I will also contribute to the research about public hearings discussing migration and the civil society organisations involved in them as well as brief parliamentary inquiries thematising migration.

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3. Theoretical framework

To begin with, I will introduce the theoretical background of my understanding of human rights that I adopted for this thesis. Next, as I intend to analyse the discourses and (de-)legitimation strategies regarding the suspension of family reunification for beneficiaries of subsidiary protection by applying Fairclough’s version of CDA, I will trace Fairclough’s theoretical underpinnings. This leads me to Foucault’s contribution to social theory on language and discourse.

3.1. Human rights

First of all, the term human rights needs to be clarified as it is a part of the debate about the suspension of family reunification as could already be seen in the literature review. In this thesis, I chose to work with the discourse-theoretic understanding of human rights developed by Seyla Benhabib. She (2011: 12) argues that human rights are first and foremost moral and cosmopolitan principles which can scarcely obligate a state to certain actions unless the state in question interprets these moral principles and concretises them into its own national law. Benhabib (ibid.: 59) adds that although there is an uncontested language of human rights in international politics, in reality this language has yet to be converted into actual legislation in many cases. For this to happen, the author (ibid.: 88) is convinced that the moral principles called human rights have to pass through the legal and political channels of a self-governing entity in order to be acknowledged as legitimate and binding by a state and its people. During this process, the principles will be discussed, evaluated and interpreted differently depending on each state’s history and background, which can lead to slightly divergent outcomes in different countries. However, Benhabib (ibid.: 126) claims that this is the only way human rights can “become elements in the public culture of democratic peoples”.

The justification of human rights is thus a continuing and complex dialogical process. This dialogical process implies that the debating actors involved, which can be legal or political institutions or organisations as well as civil society organisations, respect each other’s communicative freedom. They must respect each other’s capacity to agree or disagree on certain matters based on justified reasons. In this context, Benhabib adapts the phrase “right to have rights” which was originally developed and used (although in a different way than here) by Hannah Arendt. Benhabib highlights the importance of communicative freedom by using the phrase “right to have rights”. By this she means each human being’s claim to be recognized as a rights-bearing person entitled to protection due to their humanity which can only be

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constrained through justified reasons that have been the subject of a public deliberation (ibid.: 67-68). Benhabib (ibid.: 79) thereby recognises that not all moral rights claims are converted into legal entitlement. Discourses about moral principles often emerge when a situation of conflict arises, or a group is under the impression that they are being discriminated against. However, there is no guarantee of the outcome of this deliberation. This means that no human rights list can be considered as being complete since every new struggle in a society can lead to a discussion about adopting further human rights (ibid.).

The discourse-theoretical understanding of human rights thus offers a framework to understand and analyse the current debate about the suspension of family reunification because it evolves around the question of whether family reunification should be recognised as a human right by the German state.

3.2. Foucault

Foucault is one of the most influential theorists in social science in relation to the popularisation of the concept of discourse and the development of discourse analysis as a method according to Fairclough (1992: 37). He has written a very comprehensive body of books and articles in which he focuses on different themes, periodically changing his concept of discourse. Therefore, it is important to point out which phase of his work one refers to when operationalising his work. For the purpose of this thesis, I mainly consult literature such as “The Archaeology of Knowledge and the Discourse on Language” or “The Order of Discourse”. These publications can be categorised as being part of Foucault’s first phase of creation during which he focused on discourses of power and knowledge and how they only allow specific patterns of argumentation and forms of speech, which he calls discursive practice (Ruffing 2010: 8). This share of Foucault’s work is what Fairclough refers to as being part of the theoretical background of his version of CDA (Fairclough 1992: 37-39).

3.2.1. Power and knowledge

I will begin by defining the concepts of power and knowledge by Foucault. Foucault believes that it is essential to study power when conducting a critical discourse analysis since discourse is an important instrument of power. According to Foucault’s understanding “discourse does not simply translate reality into language; rather discourse should be seen as a system which structures the way we perceive reality” (Mills 2003: 55). Discourses are constructed through procedures of exclusion. During these procedures certain statements are discredited by people in power, leading to a limited scope of statements that are considered to be true by a society.

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Hence, by truth Foucault does not refer to an objective truth but something that is socially produced by discursive policies, something that is established through rules (Foucault 1972: 224).

Exerting influence on what is regarded to be true by a group of people can only be achieved through power (Foucault 1993:11). According to Foucault (1980: 93) “we are subject to the production of truth through power and we cannot exercise power except through the production of truth”. This means that Foucault does not see power simply as oppressing and negative but also as a productive force. “Power itself creates and causes to emerge new objects of knowledge and accumulates new bodies of knowledge” (ibid.: 51). Hence, both power and knowledge are intertwined. New knowledge is not just the result of scientific research but is produced by certain institutions to uphold and legitimise existing power relations. These bodies of knowledge will then be circulated in society and eventually become ’common-sense knowledge’ and incorporated into a ‘regime of truth’ every society creates. Thus, one should be critical when analysing a stock of knowledge even if it is generally accepted by many people since it plays a crucial role in the maintenance of existing power relations (Mills 2003: 72-74, 79). Any critical discourse analysis therefore involves studying which statements a body of common-sense knowledge excludes, since these are the oppressed elements of discourse Foucault is especially interested in (Foucault 1993: 43).

Foucault (1982: 786) focuses on how exactly power is exerted. He believes that power is based on relations between people, between the individual and society. He defines power relations as “a mode of action which does not act directly and immediately on others. Instead, it acts upon their actions […] or on those which may arise in the future” (ibid.: 789). Power relations can thus determine the actions of others. A characteristic feature of power relations is that certain people or groups have more influence over the actions of others, than different individuals or groups (Ruffing 2010: 109). Here it is important to note that Foucault does not see the individual merely as the subject of power. Individuals are always targeted by power but also exercise it. Power is not a stable, unidirectional element but something that is dispersed in and circulates within every society. Foucault thus breaks with the traditional idea of power as being monopolised by some sovereign force that exerts power top-down. (Foucault 1980: 98). Another characteristic of power relations is that the subjects of power must be free in the sense that they have several possibilities of how to act. Otherwise power could not be exercised over them and there could be no resistance. And particularly strategies of resistance in power relations presents themselves as a suitable starting point to Foucault to study power relations in

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the first place (Foucault 1982: 780, 790). He believes that because power is spread in society, it is always threatened by resistance as it can be challenged in every interaction between individuals or groups. For it to persevere, the existing power relations need to be maintained and re-enacted constantly (Mills 2003: 52).

To briefly refer back to the case study of this thesis, Foucault’s suggestion to study power relations by looking at different forms of resistance seems very suitable for the analysis of different discourses about the suspension of family reunification for beneficiaries of subsidiary protection. Following Foucault’s line of thought, one can expect the German government’s discourse about the issue to be trying to legitimise and uphold its decision to suspend family reunification. By also consulting material from civil society organisations with different interests and backgrounds, I would like to create room for the identification of potentially marginalised discourses regarding the suspension of family reunification which might challenge the discourse of the government. As Foucault speaks of different strategies of resistance, I aim to identify these by conducting a critical discourse analysis with a focus on (de-)legitimising strategies developed by van Leeuwen.

3.2.2. Operationalising Foucault

Before moving on to the methodological framework and to Fairclough, one issue needs to be discussed to ensure the coherence of this thesis. Foucault’s and Fairclough’s work contain differences that must be taken into consideration when using both of their literature. Fairclough points out that “one cannot simply ‘apply’ Foucault’s work in discourse analysis; it is, as Courtine says, a matter of ‘putting Foucault’s perspective to work’” (Fairclough 1992: 39). This has several reasons. First, Foucault advocates a more abstract approach of CDA than Fairclough. As I outlined above, his main interest is not the linguistic analysis of speech or written text, but the less tangible discursive process by which some statements are portrayed as true and treated like a fact while other statements are dismissed as being untrue (Mills 2003: 67). To ensure the methodological coherence of this thesis, I will therefore follow Fairclough’s approach of taking on the theoretical claims of Foucault’s work that are important to Fairclough’s three-dimensional model of CDA but not conducting CDA like Foucault would. Summarised these theoretical claims, which I already presented in the last section of this chapter, include the constitutive nature of discourse, which does not just reflect reality but forms the objects and social subjects of which we speak. Furthermore, important theoretical claims are also the discursive nature of power and what Fairclough calls the political nature of power. He means that power struggles are carried out in and over discourse, and the discursive nature

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of social change, since the maintenance or change of power relations depends on discourse (Fairclough 1992: 55-56).

Second, an important difference between Foucault’s and Fairclough’s work that must be considered is their ontological dissimilarity. Foucault holds a social constructionist and relativist position. He believes that social facts are constructed by people, do not exist independently of our belief in them and any knowledge gained about them is always relative to the concepts through which we interpret them. For instance, as I outlined above, he is convinced that power and knowledge are socially constructed and influence people’s actions as long as they believe in them and accept them (Rosenberg 2012: 153). Fairclough on the other hand holds a “critical realist position which is moderately socially constructivist […] with an analytically dualist epistemology” (Fairclough 2005: 916). Critical realists contend that social constructionists underestimate the longevity of socially constructed entities. They argue that once these entities are constructed, they are more durable and less susceptible to change than social constructionists assume (Fairclough 2012: 460). Therefore, any human being is born into a world which is socially pre-constructed and contains elements of knowledge the individual does not know about. Hence, critical realists like Fairclough do believe that there exists a world, also a social world, independently of us knowing about it and that the social practices that exist in this world should be studied with a critical mind (Fairclough 2005: 922). In addition, Sayer (2000: 2) points out that we as human beings are and thus our knowledge is fallible. The inferences people have made about the social world in the past have repeatedly proven to be wrong which strengthens the belief of critical realists that there is a world that exists no matter what we think about it. However, this also means that objectively true knowledge about this world is difficult to acquire. Therefore, Fairclough adopts a dualist epistemology which recognises this. Summarising, Fairclough’s work is based on a realist ontology but acknowledges that there are socially constructed entities. However, he believes that they are more persistent and eventually more independent of our belief in them than Foucault might have thought. Insofar, Fairclough and Foucault can be applied together if one is conscious of this difference and makes clear which ontology prevails in one’s work. Since I consider myself to be a critical realist myself, sharing the basic criticism Sayer pointed out regarding social constructionism, I decided to adopt Fairclough’s ontology for this thesis and further operationalise Foucault.

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4. Methodological framework

In this chapter, I will begin by introducing CDA and clarifying some of its basic assumptions before turning to Fairclough’s three-dimensional model of discourse which I chose as a method for this thesis. Afterwards, I will present van Leeuwen’s four categories of legitimation and specify my empirical material.

4.1. Critical discourse analysis

Although there are various versions of critical discourse analysis, they all share some common characteristics. To begin with, CDA is generally a problem-oriented approach. According to Meyer (2001: 22), prominent analysts working with CDA agree that “by all means CDA should pursue emancipatory objectives, and should be focused upon the problems confronting what can loosely be referred to as the ‘losers’ within particular forms of social life”. Fairclough et al. (2011: 395) explain that CDA is not an impartial approach, since researchers applying this method clearly position themselves on the side of the marginalized and oppressed groups whose problems they study. Nevertheless, this does not mean that CDA is not committed to working scientifically accurate. It requires those conducting CDA to be able to reflect on their own role as a researcher, their political position and their role as part of the social structures they study (Wodak 2001: 10).

Another commonality the different understandings of CDA share, is that they are all deeply rooted in theory. However, there is not one established theoretical framework all critical discourse analysists fall back on. Which theory is chosen by a researcher depends on the research problem he or she intends to analyse. As CDA generally focuses on social conflicts involving an imbalance of power, a prominent theoretical framework authors like Fairclough and van Leeuwen largely base their forms of CDA on is Foucault’s work on power (Meyer 2001: 18). To uncover relations of dominance and power, Fairclough et al. (2011: 402) suggest that researchers applying CDA should focus on language of legitimation or persuasion which can often be found in political discourse.

Structures of dominance and power relations are often legitimated by ideologies. Ideologies emerge when groups with different backgrounds and interests come in conflict with each other and struggle over power. These can be ethnic groups, social classes or groups of a different nature. The result is an ideological struggle which presents itself in language and over language. Fairclough (2015: 10) illustrates that “having power to determine […] which word meaning or which linguistic or communicative norms are legitimate or ‘correct’ […] is an important aspect

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of social and ideological power, and therefore a focus of ideological struggle”. Furthermore, Fairclough (2003: 9) asserts that CDA is useful to identify ideological representations and to study the effects texts have on ideology. They can be used to maintain certain ideologies and hence power relations or they can contribute to change them. Consequently, an interest in ideological struggles is a third common feature different approaches of CDA share.

What makes CDA a particularly critical approach and links it to critical theory is thus its commitment to analysing inequality through its manifestation and legitimation in discourse and hence leading to more awareness about these power relations and ultimately emancipation (Wodak 2001: 3).

4.2. Fairclough’s three-dimensional model of discourse

From all the different approaches associated with CDA, I have chosen Fairclough’s three-dimensional model of discourse for my analysis because this approach in particular is very rigorous. It includes both a textual analysis as well as an analysis of the broader context of a text (Fairclough 1992: 4). The latter allows the researcher to add another level of critique to his or her analysis, which Fairclough (2015: 6-7) calls explanatory critique. It goes beyond critically analysing discourse but encompasses the critique of the social structures in which the discourse is embedded. Fairclough believes that understanding and possibly acting to change power structures depends on explaining them comprehensively.

The origin of the three-dimensional model of discourse lies in Fairclough’s definition of discourse. Unlike theorists like Foucault who favour an abstract approach of CDA, Fairclough (1992: 4) argues that one needs to combine one’s underlying theoretical understanding of discourse with a textual and hence linguistic discourse analysis. His concept of discourse translates into language which he sees as “a form of social practice” (ibid.: 63). By language being social practice Fairclough (2015: 56) means that language is not external to society but part of it: “Linguistic phenomena are social in the sense that whenever people […] write […] they do so in ways which are determined socially and have social effects”. There is thus a dialectical relationship between language and society.

Moreover, Fairclough is convinced that language is a social process which can be studied by inter alia looking at texts. Yet, he defines texts as the product of a process of production. A text is hence only the outcome of an entire process which is why Fairclough advocates for a three-dimensional discourse analysis. Apart from the first dimension, the text and text analysis itself, the process of production as well as the process of interpretation should be studied secondly to

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fully grasp its meaning and context. To understand the process of production and interpretation, Fairclough points out that one needs to add a third dimension and analyse how they are socially determined (ibid.: 57).

For the purpose of this thesis, I will follow Fairclough’s three suggested steps of CDA which correspond to the three dimensions of discourse he identifies. The first is description, during which the formal features of the text will be studied (ibid.: 58). Next is interpretation, which ideally studies both the process of production of the text and interpretation of it by other discourse participants (ibid.: 155). Since the scope of this thesis is limited and the focus does not lie on studying the interpretation of the empirical material by the other discourse participants, I will not include this step of interpretation in my analysis. I realise that this represents a limitation but do not believe that it will impair the purpose of this thesis. Finally, the last step is explanation, which focuses on the social context of the process of text production and its social effects. To ensure the transparency and enhance the reliability of my analysis, I will clarify how exactly I will proceed during each step in the following.

4.2.1. Description

During the text analysis, which is called description here, formal features of the text are analysed. However, conducting a complete analysis of every single characteristic of all texts I intend to include in my analysis in relation to its vocabulary, its grammar and structure are not possible within the scope of this thesis. I will therefore focus on one aspect, namely the vocabulary of the material I chose. Fairclough (2015: 131) proposes to study characteristics of vocabulary, since “ideological differences between texts in their representations of the world are coded in their vocabulary”. Hence, different discourses can be identified and studied by looking at their wording of reality (ibid.: 133). This will help me answer my first research question regarding the identification of discourses about the restriction of family reunification for beneficiaries of subsidiary protection.

More specifically, Fairclough suggests studying features like the use of ideologically contested words or features like “overwording” or “rewording”. Overwording means studying the use of words which are or nearly are synonyms and say something about the focus of a text and the ideological struggle it is positioned in. Rewording refers to the systematic replacement of dominant wording by another which is clearly opposed to the dominant wording (ibid.: 133). Another feature of the vocabulary that can be analysed are expressive values of words. According to Fairclough (ibid.: 135), it is important to identify how an author uses evaluative

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words which give an insight into his or her ideology and which are especially important when studying persuasive language and hence also legitimation. In this context, another interesting feature are metaphors. Fairclough argues that different metaphors are attached to different ideologies and hence an important aspect of the study of vocabulary (ibid.: 137).

To sum up, these are the characteristics of vocabulary that I will look out for when analysing my material to identify different discourses. To show how exactly I carry out this step of the analysis, I will add examples of my analysis in annex I (see p. 58, 59).

4.2.2. Interpretation

As already outlined above, this step of the analysis will focus on the process of text production. Fairclough (2015: 179) argues that this process is socially determined. What Fairclough (1992: 80) means by this is that the creativity of the author during the process is constrained by “the available members’ resources, which are effectively internalized social structures, norms and conventions, including orders of discourse […]”. While producing a text, the author refers to texts associated with his or her social background. Therefore, a text is embedded in a specific sequence of other texts which are incorporated into it and responded to. Texts are dialogic and engage in relations with other texts (ibid.: 166). Fairclough (1992: 104) calls this either manifest or subliminal reference to other bodies of text intertextuality.

Depending on which body a text belongs to, different presupposed notions can be found in it. These notions might be based on a specific source or text or can arise more generally from the authors background. Here Fairclough (2015: 165) works with the term common-sense knowledge from Foucault which has been introduced in the theoretical framework.

Hence, by studying the process of production of my material I mean to analyse its intertextuality and underlying presupposed notions. Studying the aspect of intertextuality will help me to better understand how the material was produced through relations with other discourses and analysing presupposed notions will allow me an insight into the production of common-sense knowledge by the different actors. These insights will also be useful when I start analysing the (de-)legitimation strategies.

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4.2.3. Explanation

While I focus on the process of text production and how it is determined by social norms and structures during the stage of interpretation, the stage of explanation focuses on how texts and discourses are part of a larger social process. Social processes both determine discourses but are also shaped by them. According to Fairclough (2015: 174), discourses can have different effects on the social process they are part of: “a discourse may reproduce its own social determinants […] which it draws upon with virtually no change, or it may to a greater or lesser extent contribute to their transformation”. Fairclough suggests analysing which power relations shape the discourse(s) one analyses and constitute the social determinants he speaks of. Furthermore, the suggests looking into the ideologies that are drawn upon in the discourses and the effects the discourse might have on the broader social process.

Finding out whether the discourses I analyse are maintaining or openly challenging the status quo regarding the suspension of family reunification and existing power relations will help me to more clearly isolate different discourses and serve as an indicator for whether legitimating or delegitimating strategies are pursued in them.

4.3. Van Leeuwen’s four categories of legitimation

So far, my methodological approach has focused on answering my first research question and finding first indicators for answering my second research question. However, to effectively study (de-)legitimation strategies, Fairclough suggests consulting van Leeuwen’s work since he developed four main strategies of legitimation (Fairclough 2003: 99). Van Leeuwen (2008: 106) argues that authorities in power need to legitimise their position to maintain it and that the most important means to do so is by using language. He presents four categories of legitimation: authorisation, moral evaluation, rationalisation and mythopoesis. These can be used to legitimise but also delegitimise and critique practices of authority.

The first category is authorisation. This strategy of (de-)legitimation is pursued when an author (de-)legitimises something by referring to tradition, custom, law or specific people that hold a position of power in an institution for instance. Authors following this strategy might answer the question “why should we do this in this way?” by quoting a certain policy or guideline (ibid.: 109). The second category van Leeuwen introduces is moral evaluation. This category is fulfilled when the author of a text legitimises his or her point of view by relying on specific value systems instead of an authority. Words that can point to this category are adjectives like good, bad, natural or healthy. They indicate an underlying value system (ibid.: 110). Next is the

Germany&apos;s temporary ban on family reunification for beneficiaries of subsidiary protection - A comparative discourse analysis of (de)-legitimation strategies