The German Government wants to facilitate deportations by increasing detention. This picture shows the former prison wing for persons awaiting deportation in Frankfurt/Main. Photo: Max Klöckner / PRO ASYL

On 17 April 2019 the German Government pushed ahead with the deprivation of rights of refugees with two laws – the so-called »Orderly Return Bill« and an amendment to the social welfare law for asylum seekers.

The high­ly con­tro­ver­si­al »Order­ly Return Bill« pro­mo­ted by the Minis­try of the Inte­ri­or has now been pas­sed by the cabi­net mee­ting of the Govern­ment and will be dis­cus­sed in par­lia­ment. The draft law is part of a recent wave of legal mea­su­res that repre­sent a crack­down on asyl­um see­kers. It pro­vi­des for far-rea­ching chan­ges which have been shar­ply cri­ti­cis­ed by civil socie­ty asso­cia­ti­ons as they include the depri­va­ti­on of rights, expan­si­on of the use of detenti­on, and with­dra­wal of social bene­fits. It also makes the sta­tus of reco­g­nis­ed refu­gees more pre­ca­rious, intro­du­ces a down­gra­ded ver­si­on of the »Dul­dung« (tole­ra­ti­on) sta­tus, and tar­gets peo­p­le and orga­ni­sa­ti­ons invol­ved in refu­gee support.

Facilitate Deportations by Increasing Detention

The law pro­po­sed by Inte­ri­or Minis­ter Horst See­ho­fer lowers the thres­hold for the use of detenti­on making it easier for the govern­ment to detain peo­p­le befo­re depor­ta­ti­on. While pre­vious­ly the law requi­red the govern­ment to pro­vi­de the reasons why it con­side­red a per­son at risk of abs­con­ding, the new law shifts the bur­den of pro­of from the govern­ment to the per­son affec­ted. The per­son pre­su­med at risk of abs­con­ding has to pro­ve the non-exis­tence of this risk while they are held in detenti­on and wit­hout being pro­vi­ded with a legal representative.

This draft is a bla­tant shift to the dis­ad­van­ta­ge of tho­se affec­ted and also con­tra­dicts the prin­ci­ple that detenti­on should only be used as a last resort

In addi­ti­on, ever­y­day cir­cum­s­tances will ser­ve as an indi­ca­tor of a risk of abs­con­ding, such as the fact that a per­son has paid a cer­tain amount of money to come to Ger­ma­ny (to whom does this not app­ly?) or that they made fal­se state­ments at some point, even if the­se have later been cor­rec­ted. This is a bla­tant shift to the dis­ad­van­ta­ge of tho­se affec­ted and also con­tra­dicts the prin­ci­ple that detenti­on should only be used as a last resort.

The Ger­man govern­ment also wants to intro­du­ce a new form of detenti­on (»Mit­wir­kungs­haft«) for use in the event that per­sons obli­ged to lea­ve the coun­try do not appear for an inter­view at the repre­sen­ta­ti­ve office of their coun­try of ori­gin and do not pro­vi­de an excu­se for their non-appearance. The­se appoint­ments ser­ve pri­ma­ri­ly to cla­ri­fy the iden­ti­ty of the per­sons con­cer­ned. Accor­ding to an expl­ana­to­ry memo­ran­dum atta­ched to the pro­po­sed law, a detenti­on peri­od of up to 14 days will »exert pres­su­re on the for­eig­ner with the aim of incre­asing his wil­ling­ness to coope­ra­te« and thus enable their deportation.

A par­ti­cu­lar­ly con­tro­ver­si­al part of the legis­la­ti­on allows fede­ral sta­tes to place peo­p­le awai­ting depor­ta­ti­on in regu­lar pri­sons as long as they are phy­si­cal­ly sepa­ra­ted from other pri­soners. This tem­po­ra­ry mea­su­re is inten­ded to buy time for the fede­ral sta­tes to expand their migrant detenti­on capa­ci­ties by mid-2022. The lif­ting of the ban on sepa­ra­ti­on from the gene­ral pri­son sys­tem enshri­ned in Art. 16 of the EU Return Direc­ti­ve, con­sti­tu­tes a fla­grant vio­la­ti­on of Euro­pean law.

Reducing »Pull Factors« – Increasing Precariousness

Chan­ges to the social wel­fa­re law for asyl­um see­kers jeo­par­di­ze con­sti­tu­tio­nal gua­ran­tees. For refu­gees reco­g­nis­ed as such in other EU Mem­ber Sta­tes, bene­fits are to be com­ple­te­ly can­cel­led. They will only recei­ve a »bridging bene­fit« for a maxi­mum of two weeks. In other words, return to count­ries like Ita­ly, Greece and Bul­ga­ria whe­re reco­gni­zed refu­gees often live in mise­ra­ble con­di­ti­ons, is enforced with hun­ger and home­l­ess­ness.  Per­sons flag­ged by EURODAC as eli­gi­ble for return to other EU count­ries under the Dub­lin III Regu­la­ti­on would recei­ve only limi­t­ed bene­fits. This even appli­es to the peri­od during which a court is exami­ning an applicant’s appeal against the Dub­lin trans­fer decis­i­on. The Fede­ral Con­sti­tu­tio­nal Court has ruled that the fact that a poli­cy is aimed at redu­cing migra­ti­on does not jus­ti­fy people’s exclu­si­on from bene­fits. The reduc­tion of bene­fits below sub­sis­tence mini­mum cle­ar­ly vio­la­tes the cor­ner­stone of the Ger­man con­sti­tu­ti­on, which gua­ran­tees a life in digni­ty for all peo­p­le in Ger­ma­ny (Artic­le 1.1).

More Statuses – Less Security

In addi­ti­on, Seehofer’s new law intro­du­ces a down­gra­ded ver­si­on of the »Dul­dung« (Tole­ra­ti­on) sta­tus, a legal sta­tus in Ger­man law for peo­p­le who­se depor­ta­ti­on is sus­pen­ded on admi­nis­tra­ti­ve or huma­ni­ta­ri­an grounds. This sta­tus of »Dul­ding light« will app­ly to »per­sons with uncla­ri­fied iden­ti­ty« and rest­ricts the rights of peo­p­le belie­ved to bear respon­si­bi­li­ty for obs­ta­cles to their depor­ta­ti­on. For exam­p­le, not having papers, miss­ing appoint­ments with aut­ho­ri­ties, and not fol­lo­wing the argu­ab­ly inef­fec­ti­ve steps to obtain papers, allows Ger­man aut­ho­ri­ties to down­gra­de sta­tus and rest­rict access to social bene­fits and the labour market.

The con­ti­nuous inse­cu­ri­ty will ham­per the inte­gra­ti­on pro­cess of tho­se affected

The new mea­su­res also con­cern refu­gees reco­g­nis­ed as such years ago. For tho­se reco­g­nis­ed bet­ween 2015 and 2017, the peri­od during which the Fede­ral Office for Migra­ti­on and Refu­gees (BAMF) can revo­ke or with­draw refu­gee sta­tus will be exten­ded from three to five years. The­se pro­ce­du­res con­cern around 600,000 refu­gees pri­ma­ri­ly from Syria, Iraq, Afgha­ni­stan and Eri­trea. The situa­ti­on in the­se count­ries has not fun­da­men­tal­ly impro­ved, which would be the reason to revo­ke reco­gni­ti­on. Howe­ver, the con­ti­nuous inse­cu­ri­ty that comes with this chan­ge will ham­per the inte­gra­ti­on pro­cess of tho­se affected.

Criminalising Civil Society

Final­ly, chan­ges to the ori­gi­nal draft bill in the cour­se of the coali­ti­on nego­tia­ti­ons have not eli­mi­na­ted the thre­at to civil socie­ty and tho­se working in refu­gee sup­port. By decla­ring the enti­re pro­cess of depor­ta­ti­on, inclu­ding Embas­sy and doc­tor appoint­ments, a sta­te secret, tho­se pro­vi­ding coun­sel­ling to asyl­um see­kers  could be accu­sed of »aiding or abet­ting« in the »betra­y­al of secrets«, an offence punis­ha­ble with up to five years in pri­son.  The mere pos­si­bi­li­ty of indict­ment will lead to gre­at uncer­tain­ty among tho­se com­mit­ted to the sup­port of peo­p­le see­king protection.

Legal Crackdown on Asylum Seekers without Justification

Despi­te the low num­ber of asyl­um see­kers arri­ving in Ger­ma­ny and good struc­tures for their recep­ti­on, the cur­rent draft legis­la­ti­on is being nego­tia­ted as if Ger­ma­ny were in a sta­te of emer­gen­cy. It comes as part of a new wave of laws that redu­ce the con­di­ti­ons for asyl­um see­kers and refu­gees. In fact, sin­ce autumn 2015 more than 20 legis­la­ti­ve amend­ments have been pas­sed by par­lia­ment, the impact of which has not yet been eva­lua­ted. And the­re are curr­ent­ly over ten draft laws on asyl­um and migra­ti­on being nego­tia­ted in par­al­lel and in extre­me­ly short timeframes.

PRO ASYL also cri­ti­ci­s­es the public rela­ti­ons work of the Fede­ral Minis­try of the Inte­ri­or (BMI), which sug­gests that 235,000 rejec­ted asyl­um see­kers in Ger­ma­ny should be depor­ted. It is true that, accor­ding to the Cen­tral Regis­ter of For­eig­ners (AZR), 235,000 per­sons are obli­ged to lea­ve the coun­try. Howe­ver, first, almost one half of them have never appli­ed for asyl­um! Second, most of them have the sta­tus of »Dul­dung«, mea­ning that they can­not be depor­ted, for exam­p­le due to health pro­blems or fami­ly reasons. The infla­ted figu­re also includes almost 30,000 peo­p­le from Afgha­ni­stan and Iraq who can­not be depor­ted becau­se the situa­ti­on in their coun­try of ori­gin is too dan­ge­rous. Final­ly, a lar­ge num­ber of peo­p­le regis­tered in the AZR have alre­a­dy left Germany.

The stra­tegy of using sta­tis­ti­cal tricks to stir up sen­ti­ments against peo­p­le see­king pro­tec­tion and bull­do­ze through an outra­ge­ous legis­la­ti­ve packa­ge is unacceptable.


This artic­le was first published by the Euro­pean Coun­cil on Refu­gees and Exi­les (ECRE) and can be found here.