Germany's Deportation Lottery Migrants' Fate a Game of Chance

Because the deportation of rejected asylum-seekers from Germany is the responsibility of the states, a highly arbitrary system not unlike a lottery. For the close to a half-million people expected to receive orders to be deported this year, whether they must leave or not may depend on where they live. By SPIEGEL Staff

Dmitrij Leltschuk/DER SPIEGEL

Sometimes it only takes only a few words to signal a major conflict. Before Angela Merkel gathered the governors of Germany's states in the Chancellery three weeks ago to determine tougher deportation measures in the country, she sent out the draft of a planned joint statement to be made with the regional leaders. The statement noted that a "greater national effort" was needed.

By the next draft, those words had already been placed in parentheses. The final official statement by the governors said, "Considerable further efforts are needed from the federal government and the states." Never has a great national effort seemed to deflate so quickly.

The state of Thuringia, home to a left-wing coalition government comprised of the Left Party, the Social Democrats (SPD) and the Greens didn't even attend the meeting. Instead Governor Bodo Ramelow of the Left Party sent a note of protest that was half as long as the resolution itself. And although Schleswig-Holstein Governor Torsten Albrig of the center-left SPD approved the statement, one week later he announced his state would stop deportations to Afghanistan. The move prompted the protest of German Interior Thomas de Maizière, who said, "This is not how you work together."

Divisive Political Issue

The deportation of migrants whose asylum applications have been rejected has become one of the most divisive political issues going into this year's federal election in Germany. The question now is whether Germany can show as much firmness when it comes to deportations as it showed heart when it opened its borders to refugees during the fall of 2015, allowing hundreds of thousands to enter the country.

The federal government has made it its goal to massively increase the number of deportations. It wants to send a message of deterrence to people outside Germany, but also to show its own citizens that while Germany is generous when it comes to providing protection to people in need, it also moves decisively to remove those that do not need asylum.

This has prompted considerable resistance at the state level. Is it really justifiable, some ask, to deport people to unstable countries like Afghanistan? Does it truly make sense to send migrants who are well-integrated and, in some cases, have already been living and working in Germany for years, back to their home countries?

As a result of this debate, the deportations are being handled in wildly different ways from state to state. While some states governed by the left-leaning SPD and Greens are showing more reserve, from the perspective of the Christian Social Union, the Bavarian sister party to Merkel's conservative Christian Democratic Union (CDU), deportations of rejected asylum-seekers cannot happen quickly enough. Baden-Württemberg, which has a coalition government bringing together the center-right CDU and the Greens, is also rigorous about deportations -- so much so that courts have already intervened several times all the way up to the Federal Constitutional Court. The high court's rapporteur, Ulrich Maidowski, is critical, saying "Basically, the military situation there changes daily."

Is Germany Kicking Out the Wrong People?

For many refugees, their fate is dependent on the state where they have been placed, meaning that who gets to stay and who is forced to leave is decided by chance. Depending on whether an asylum-seeker is placed in Schleswig-Holstein or in Bavaria, they can expect leniency -- or toughness.

Things are made even more unfair by the chaos within the authorities and the practical difficulties of deportations. Rejected asylum-seekers who have resorted to tricks or deception to obtain a residence permit in Germany can profit from this state of affairs: They invent convincing stories, produce dodgy medical checkups or simply go into hiding. In the end, it's often not people who present a potential threat to Germany -- those who are violent or are criminals -- who get deported, but rather law-abiding, well-integrated people that the country could actually use right now.

Afghanistan is the perfect example. The German government considers at least some parts of the unstable country to be safe enough to return rejected asylum-seekers to. The Interior Ministry and the Foreign Ministry affirmed this in a letter to the states last week. Even liberal countries like Sweden and Norway are deporting people to Afghanistan on a "significantly higher scale," the letter stated. It also noted that 3,300 Afghans voluntarily left Germany last year to return home. "They see a future in the country and obviously consider the security situation to be tolerable."

But in an internal situation report in February, the Foreign Ministry offered a considerably more pessimistic view. It described the Afghan unity government as "fragile." It noted that the "Taliban is advancing in rural areas."

Berlin is nevertheless sticking to its position. The deportations back to Afghanistan also send an important message from the chancellor. For years, people only got deported back there in exceptional situations. But in 2015 and 2016, a total of close to 160,000 Afghan asylum-seekers came to Germany, including many young men who hadn't been persecuted by the Taliban and just hoped for a better life. Since December, Germany has flown three charter jets with 77 people back to Afghanistan. Other flights are also planned, in the hope of sending the message to thousands of other Afghans that it would be better if they left voluntarily.

But several German states where the governments are led by the SPD and the Greens -- including Bremen, Lower Saxony and Berlin -- are boycotting the national government's organized mass repatriations despite being required by federal law to carry them out. Schleswig-Holstein has officially suspended deportations until May and would prefer to stop them indefinitely. Officials in the state capital point to a United Nations report showing a record level of civilian victims in Afghanistan in 2016. "Nothing is safe in Afghanistan," says Governor Torsten Albig.

In Bavaria, in southern Germany, politicians hold an altogether different view. Markus Söder, the state's minister for home affairs, describes the action of flying just under 20 Afghans back to their home country the week before last as a "joke." If he had his way, he says, he would put thousands on the plane. In Bavaria, the deportation measures are also starting to affect young men who are already well-integrated into society.

Refugees in Limbo

Men like Rahmat Khan. The young Afghan fled to Germany in 2010. He claimed that the Taliban had murdered his father, but the Federal Office for Migration and Refugees (BAMF) didn't believe him and rejected his application for asylum. Since then, Khan's residency in Germany has been tolerated by the government. He found an apartment, he learned German, got involved in a Catholic youth group and began working as a mason for a construction company in the town of Essenbach. "A gift from heaven" is how his boss Thomas Monzel describes him. "All it would take for a German trainee to call in sick was a sore muscle, but he even came to work when he had the flu."

Now Monzel has lost one of his best employees. The company hired a lawyer for Khan, begged the authorities to extend his work permit, wrote a letter to the Chancellery and submitted a petition to the state legislature, but nothing helped. On Dec. 14, police rang Khan's doorbell at 5 a.m., waking him up, and put him in a bus to the Frankfurt Airport, where a chartered jet took off for Afghanistan. Now Khan calls his former employer every Friday. "If you help me get back, I will work twice as much," he tells the company. But there's nothing Monzel can do.

If Khan hadn't ended up in Landshut in Bavaria when he came to Germany and had instead arrived 800 kilometers further north, he would still be living in Germany today.

In an attic apartment in the municipality of Nahe in Schleswig-Holstein, Jawid Youosof, 32, pours a cup of tea. The doctor has lived in Germany with his wife Zarlasht for the past year and a half. They entered the country via the Balkan route, a path through Eastern Europe followed by many migrants to Germany. In July, they had a son and Youosof's main wish right now is that his child be able to grow up in a safe place.

He told case workers at BAMF that he had been threatened by the Taliban in Afghanistan. Youosof says that because he worked for the World Health Organization, he had become an enemy of the Islamists. He was certain that he and his family would be granted asylum because of the threats. But BAMF rejected the family's application, arguing that with his training he could also work in an area outside his home province of Laghman, where the Taliban has a strong presence, and find work - in Kabul, for example. "The applicants are ordered to leave Germany within 30 days," the decision states. But then Schleswig-Holstein issued a suspension of all deportations of Afghans two weeks ago. Now the family is hoping it will be able to obtain the right to stay.

An Escalating Conflict

The conflict over deportations to Afghanistan will continue to escalate. In the coming months, BAMF must still decide on the applications of tens of thousands of asylum-seekers from Afghanistan that have not yet been processed because the authorities have been unable to keep up with their massive workload. Only about half of the asylum applications are expected to be approved.

The German public is still largely unaware of the sheer scale of the expected deportations. The consultancy McKinsey estimates that around a half-million rejected asylum-seekers will be designated as "obligated to leave the country" by the end of the year. They are technically required to leave the country.

In its 102-page classified study, McKinsey consultants advised the government on how it could implement more forceful deportation policies. It states that there is "an urgent need to act." It also claims that cooperation between the federal government, state governments and alien registration offices is far too complicated. It takes around 12 months from the time of the rejection of an asylum application until deportation -- in extreme cases it can take up to four and a half years. If processes were improved, staffing increased and pressure ratcheted up on asylum-seekers' countries of origin, the number of deportations could be increased dramatically, McKinsey consultants believe. They write that seven times as many deportations -- in other words, 195,000 in 2017 -- could "theoretically be possible." Around 300,000 migrants could also be convinced to go voluntarily through financial incentives, they claim.

But pragmatically inclined people working within the responsible agencies believe that anything close to those numbers is unrealistic. They say that even if all states had the will, many problems tied to the plan's implementation cannot be solved quickly.

In the past two years, many of the deportations in Germany have been focused on people from western Balkan countries. Their home countries tend to cooperate with the German authorities and are also willing to accept the repatriations on the basis of temporary identity papers issued by Germany. But now, many of the migrants whose applications are getting rejected come from countries refusing to take their back their nationals. That's why high-level officials believe it will be tough to reach the 2016 figures, in which around 25,000 people were deported and 55,000 left the country voluntarily.

In any case, the figures don't say anything about whether all the deportations actually make sense. It happens again and again that people like Rahmat Khan, a well-integrated migrant, get deported while a person like Anis Amri, the man behind the terrorist attack on a Berlin Christmas market in December who also cheated the system with forged identities and nationalities, manage to stay.

On Feb. 7, police in the town of Diepholz in Lower Saxony arrested three Moroccans after they caught the men breaking into an apartment. The public prosecutor ruled that they couldn't be placed into temporary detention and the local alien registration office reviewed whether it was possible to place the men in pre-deportation custody, but decided against it. One of the men's asylum application was still under consideration, another one's had been rejected but he had not yet been served papers ordering him to leave the country, and the city-state of Berlin had jurisdiction over decisions relating to the third man. Officials in Diepholz say that nobody in Berlin responded to their emails and faxes. Two of the men disappeared. One resurfaced one more time on Feb. 12 to pick up his welfare payment. After that, he disappeared again and hasn't been seen since.

And even in cases where the deportation actually happens, success is in no way guaranteed. On Friday, Feb. 24, federal police in Heidelberg intercepted an Algerian man in the city's train station after he harassed two women and threatened to shoot them. When the officers tried to arrest him, he threw a bicycle at them, punched at them and kicked and spat. After the police took his fingerprints, they were able to determine they were dealing with Khodja M., age 51, born in Mila, Algeria. In Germany, the authorities are aware of at least 14 aliases he has used. He traveled into the country for the first time in 1992. Since then, he has been deported six different times - in 2003, 2005, 2008, 2011, 2015 and, most recently, on Nov. 25, 2016. He came back every single time.

'Basically, Nothing Has Changed'

Often the migrants' countries of origin refuse to take them back. Even after the Amri attack and warnings from the German government to North African countries, "basically, nothing has changed," says one senior federal police official. The atmosphere may have gotten friendlier and the numbers a little higher, but the problem remains the same.

Chancellor Merkel recently wanted to pay a courtesy visit to Algerian President Abdelaziz Bouteflika, but the elderly leader canceled, saying he was ill. Since then there has been speculation among German interior authorities over whether the president had actually been sick or if he just didn't feel like negotiating with Merkel over taking back Algerians who have been ordered to leave Germany. During a visit to Berlin in February, Tunisian Prime Minister Youssef Chahed caused an affront by making it clear that he wasn't even considering simply taking back all those that Germany would like to send his way. Meanwhile, in Morocco, the German ambassador has sometimes had to wait as long as six months before being granted a meeting with the head of an interior department.

Other countries are even less cooperative. Iran only repatriates people who want to return home, making deportations to the country virtually impossible. Ethiopia isn't currently responding to German queries. Without the cooperation of the countries of origin, it isn't possible to obtain replacement passports, which in turn means that citizens of those nations can't be deported. Close to 70 percent of all asylum-seekers arrive in Germany without a passport.

Germany is slated to open a new administrative center in Berlin on March 13 to provide support to the states in their deportation efforts. Some 40 state and federal government employees will be housed in the facility, which is known by the acronym ZUR. Their task is to coordinate collective deportations and to intervene when problems mount with certain countries.

Politicians Divided over Deportations

Deportations aren't just a divisive issue for the states. German political parties are also divided over the deportations -- especially those to Afghanistan. Nowhere are these divisions greater than within the Green Party. The party is opposed to the deportations at the federal level, but the Greens are also members of coalition governments in 11 states and, as such, are required to carry out deportation orders. To the irritation of the Green Party's grassroots base, Hamburg, Hesse, Baden-Württemberg and North Rhine-Westphalia all took part in the collective deportations of recent weeks.

The Greens have recently tried to pass the buck to the federal government in Berlin, which is made up of Merkel's conservatives and the center-left SPD. Ten state government ministers sent a letter to newly appointed Foreign Minister Sigmar Gabriel of the SPD, calling on him to re-evaluate the security situation in Afghanistan. In an internal email to the party's executive committee, North Rhine-Westphalia Lieutenant Governor Sylvia Löhrmann crowed, "Now the ball is where it belongs -- in the federal government's court!" She says the move by the state politicians had been coordinated with Katrin Göring-Eckart and Özdemir, who are the party's main candidates in this fall's national election: "Katrin and Cem were of course involved."

But in a letter sent this week by Gabriel's Foreign Ministry and de Maizière's Interior Ministry to the states, they said there would be no re-evaluation. The message coming from Berlin is clear: The deportations should continue.

The Greens are now placing their hopes in SPD chancellor candidate Martin Schulz. Sources close to him say they have received signals that he may have a different view on the matter than Gabriel. A poll has been circulating at SPD headquarters showing that although three-quarters of all Germans support the deportation of rejected asylum applicants who are known to be criminals or potential threats, only 20 percent approve of sending every rejected applicant back to Afghanistan.

In contrast to his Schleswig-Holstein counterpart Albig, Winfried Kretschmann, the Green Party governor of Baden-Württemberg, who governs together with the conservative CDU, sees no elbow room for stopping the deportations. "The fact that we follow rules is what makes us a nation of law," he recently said at a party gathering.

Sometimes, having the right person advocating on your behalf can matter more than the rules. Nader Darabi*, who came to Germany six years ago and converted to Christianity here, was already sitting in the bus to the plane in Frankfurt that would deport him on Dec. 14. But the police suddenly let him out at the airport train station, where he got onto a train back to Sinsheim. "God protected me," says Darabi. In truth it was the church: The Protestant regional bishop of Baden had intervened on his behalf with the government in Stuttgart.

Challenges in Germany's High Court

A growing number of deportation cases are landing at the Constitutional Court, which can intervene as a last resort in asylum cases. The signals coming out of the court so far have largely been clear: it will not tolerate rogue interpretation of the law.

The court views deportations to Afghanistan as an especially sensitive issue. The rapporteur responsible for the issue of refugees on the court is Justice Ulrich Maidowski. He has stacks of files from expedited legal procedures piled up on and next to his desk. Before he joined the Constitutional Court in 2013, there had only been 27 cases pertaining to refugee law. This year alone, there could be more than 200. The fact that the judges responsible for the issue don't know when a deportation is about to happen creates significant difficulties for them, because it often leaves them with only a few hours to consider multiple cases. Maidowski says he wishes the authorities would confide in him and alert him a few days in advance of pending deportations. "As it is, we have to rely on rumors." Maidowski says he doesn't even plan vacations anymore and that he has also ordered the receptionists at the court to wake him up at night if a new case arrives.

Maidowski spent four years as a child living in Kabul, where his father was a school principal. He continues to maintain regular contacts in Afghanistan today. That's why he knows just how insecure developments are in the country and how problematic it is when the responsible authorities and the administrative courts don't base their decisions on the latest situation reports.

In three different cases since December, the court has issued temporary injunctions against deportations to Afghanistan. By doing so, it has demonstrated just how closely the court is watching. The court plans to issue its final verdicts in the cases soon. Observers do not expect it to order a blanket ban on deportations to Afghanistan, but it's also very unlikely the court is going to do anything to make things easier for politicians.

*Nader Darabi's name has been changed by the editors in order to protect his identity.

By Anna Clauß, Jürgen Dahlkamp, Susan Djahangard, Jan Friedmann, Matthias Gebauer, Hubert Gude, Dietmar Hipp, Ann-Katrin Müller, Nico Schmidt, Andreas Ulrich and Wolf Wiedmann-Schmidt

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