A Migration Nightmare Why Germany's Deportation System Is Failing Everyone
Part 2: 'It's Just Not That Simple'
As of Jan. 31, there were 238,740 foreigners in Germany who were "required to leave the country." Only half are refugees whose asylum claims have been rejected. Tourists whose visas have expired or students whose semester is over are also required to leave the country. The terminology can be confusing, even for lawyers. In many instances, a "deportation ban" is issued, which translates into a right to stay. Such protection applies when an affected person faces "a significantly concrete threat to limb, life or freedom" or when treatment for a serious disease cannot be guaranteed back home. On top of that, there are many other obstacles to deportation that can lead to a person being given a "tolerated" status.
They include things like serious health concerns or an imminent marriage. If a child living in Germany would lose touch with their father. If someone is caring for a family member in Germany. These are all reasons why deportation may be prevented. In addition, German states have the power to impose deportation bans to certain countries based on their own humanitarian or political reasons. The official position on deportations to Afghanistan, for instance, varies from state to state due to the complicated security situation there. Afghans that make it to Bremen, for instance, have a good chance of being allowed to stay. But if they're in Bavaria, their country of origin will do little to protect them. When it comes to deportations, German policy is reminiscent of a patchwork rug.
The system of "tolerated" foreigners has become byzantine. Of the nearly 240,000 foreigners who were required to leave the country at the end of January, 182,169 had a "tolerated" status for a variety of reasons, based on various interpretations of the law. Some people may see a political or humanitarian argument for tolerating refugees, but there's been a lot of fiddling around lately. For a long time, everything was stuffed into one paragraph of Germany's Residence Act, from obstacles to deportation to tolerated statuses due to educational enrollment. Now, Paragraph 60a seems so long, complex and at the same time wildly cobbled together that even a renowned legal expert in this field would despair. But now the federal government is planning to restructure the whole thing and, in doing so, make it possible for a migrant to receive tolerated status due to employment.
That means the problems are definitely being worked on. But how! Working groups and sub-working groups from the federal and state level have been meeting regularly for years. Specialists are initiating legislative changes. In the fall of 2015, their efforts led to the so-called Asylum Package I, and in 2016, the Asylum Package II. Both were designed to weaken the rights of affected foreigners and strengthen the ability of the state to intervene. Regulations were also tightened after Anis Amri's attack on the Berlin Christmas market in December 2016, and in July 2017, a law was created especially for the treatment of individuals deemed threats to public safety. As far as the government was concerned, it had done its job. Yet for all the fiery wording of its lawyers, the government had not created a coherent, uniform legal reality for Germany. And that wasn't only because of the seemingly never-ending back-and-forth between the federal and state governments.
Currently, of the roughly 240,000 foreigners who are required to leave Germany, more than 75,000 of them are tolerated "due to a lack of travel documents." But since Germany's Central Registry for Foreigners is so poorly maintained, that number is probably even higher than 100,000, according to estimates by the Interior Ministry. Most of all, they complicate the lives of Germany's immigration officials. The most attention is garnered by those foreigners labeled as "dangerous persons." This is a vague term, derived from police jargon, that is applied to people for whom "certain facts justify the assumption" that they "will commit politically motivated crimes of considerable importance."
It's a tricky needle to thread, because a person cannot be punished in Germany for having certain convictions. People are free to think what they like. Thanks to the part of the Residence Act that refers to people deemed to pose a serious danger to public safety or order, the German government can at least try and keep a close eye on them: Paragraph 58a provides that such dangerous people can be directly deported. At least in theory.
In practice, however, those deportations are often thwarted because the person in question's country of origin doesn't want to take them back. Sure, there are international treaties and repatriation agreements, but a written promise isn't worth much if a country doesn't follow through on it, even if it does bear the signature of a head of state.
Morocco is a perfect example of just how complicated it can be to achieve tangible results with individual countries. In 2016, the Task Force Morocco was created at the initiative of the state government in North Rhine-Westphalia (NRW), because the number of Moroccan criminals there had risen significantly over the years. Since the 1990s, an agreement has been in place with Morocco over the issuance of passport replacement papers, but it stopped working a long time ago. So the state government got in touch with the Moroccan general consulate in Düsseldorf to make clear to the diplomats that their criminal compatriots in Germany were damaging the reputation of their homeland.
'It's Just Not That Simple'
Meanwhile, things have improved, at least slightly -- not least because Germany has exerted pressure on a federal level. While Germany once had to send fingerprints to Morocco in the mail in order to check identities and have replacement passports issued, officials now report there is a digital data exchange system in place that is compatible with the German system. Fingerprints can now be transmitted to Morocco instantly -- and within 45 days, the Germans receive a response.
In 2016, NRW deported 59 Moroccans. By last year, that number had increased to 382. So the system works, albeit slowly. Morocco doesn't allow Germany, for instance, to deport its citizens en masse via chartered aircraft. When asked how the situation could be improved, representatives of NRW's state government suggested the federal government would have to negotiate with Morocco, otherwise the most problematic cases will take years to sort out. "We have thousands of people who are 'enforceably obliged' to leave the country," says NRW's interior minister, Joachim Stamp. "And whoever reads that, thinks, 'Are the politicians crazy? Why aren't these people being deported? But it's just not that simple."
Nothing is simple when it comes to deportations. Not even when it comes to foreigners who have committed multiple crimes and whose presence in Germany is regarded by many as an intolerable provocation. Violent men from crisis countries like Syria, Libya or Gambia, among them alcoholics and drug addicts, only make up a tiny portion of migrants in Germany, but they're the ones throwing the most fuel on the political fire. How does one regain control of this situation? What should Germany do with a habitual offender like the Pakistani Saïd K., who stormed into the district office in the city of Tuttlingen in May 2018 with a wooden slat full of nails? A man who reportedly later raped a fellow prisoner? Whose asylum application had already been rejected in 2016, but who couldn't be deported because he didn't possess a valid passport?
Removing Obstacles to Deportation
The perpetrator finally was able to be ejected at the end of January thanks to a special task force at the Baden-Württemberg Interior Ministry. The unit was established in early 2018 to deal with the new situation in the state: Between 2012 and 2017, the number of non-German suspects who had committed at least five crimes a year jumped from 2,807 to 4,058.
The special task force not only has its eye on potential terrorists, but also the most detestable foreign criminals as well. The unit's director, Falk Fritzsch, operates a complex case management system with only a handful of employees. Their stated goal is to accelerate repatriations by "removing obstacles to deportation," Fritzsch says.
To do so, his unit must first determine where a perpetrator is from. Sometimes Fritzsch will personally visit foreign consulates in Stuttgart to discuss missing passports, replacement documents and repatriations. He cooperates closely with various foreigner registration offices, which are overwhelmed by the sheer number of cases. Most of the time, the offices don't have time to arrange for someone's mobile phone data to be analyzed.
Fritzsch maintains contact with public prosecutors' offices, the State Office of Criminal Investigation (LKA), the Office for the Protection of the Constitution and federal ministries. In the case of the Pakistani Saïd K., Fritzsch got in touch with the Foreign Ministry. Through a trusted lawyer, he was able to find the repeat offender's family and determine his country of origin. The special task force in Stuttgart has been able to solve 56 cases using methods like this. "The work we do isn't on a mass scale," Fritzsch says. "We focus on getting people who pose a direct threat to society out of the country." But their case list is growing faster than they can whittle it down; the same is true in other states as well.
Within NRW's Ministry for Children, Families, Refugees and Integration, there is an office called Unit 524, the purview of which is "security conference, extremism." At the moment, it is processing the cases of around 130 foreigners who pose threats to public safety as well as "relevant persons." Last year, NRW, as Germany's most populous state, deported the most people who had been required to leave Germany. In total, there were 6,603. But there are still around 15,000 more people in NRW who are considered to be enforceably obliged to leave the country.
'Johnnie Walker' Cases
The state of Hesse is fighting a similar battle. In the last year, several "joint working groups for repeat offenders" have been established, pulling from local police forces and employees of the state's foreigner registration offices. Thanks to the work of these units, some 200 habitual offenders have been deported, says Peter Beuth, Hesse's interior minister. He speaks of a "successful model."
In Saxony, a working group with the designation "Residence" inside the state Interior Ministry is working to specifically deport Islamists and criminal foreigners. Estimates put the number of repeat offenders in the state at around 1,600, most of whom are Libyan or Tunisian. Here, too, most of the battles are fought and won on paper: The job is all about overcoming a lack of documents, missing passports or insufficient proof of identity.
For years, officials have complained about how difficult and thankless it can be to find missing travel documents. In Interior Ministry documents, foreigners who don't cooperate in the clarification of their identity are considered "identity swindlers" and "refuseniks." Sometimes, 20 years can go by without determining whether a man is from Burkina Faso or Senegal. In reference to the often fantastic names some refugees like to give themselves, the head of one foreigner registration office calls them "'Johnnie Walker' cases." The authorities have little choice but to send the "Johnnie Walkers" to the embassies of the countries of which they claim to be citizens. But when those embassies then say, sorry, this person isn't one of ours, there's often not much the authorities can do about it.
Even if a person's citizenship can be determined, some countries will still refuse to take them back. Lebanon, for one, was long regarded as one of the most uncooperative countries when it came issuing the necessary passport replacement papers. More than a year ago, German officials noted that "responses to applications are rare. Contact with the embassy is poor." With India, they said, "Processing of passport replacement applications ranges from slow to not at all." And with Iran, the verdict was, "In many cases it is impossible to obtain a replacement passport, since Iran continues to demand a statement of willingness from the people concerned." This makes it virtually impossible to deport an Iranian against their will.
The fact that many deportations are thwarted by paperwork isn't only the fault of prospective deportees' native countries. German immigration authorities are also overburdened. In some embassies in Berlin, completed passport replacement papers are piling up, according to officials in the federal government. In some diplomatic missions around Berlin, clerks wonder whether their German counterparts are simply too dumb to pick up the documents they themselves requested.
A Mood Shift
Any serious assessment of the current situation must recognize that for a long time, deportations were a taboo subject in Germany, one that politicians were all too happy to avoid. There was basically an implicit consensus that it was wiser not to get involved in such a sensitive issue. Church groups and humanitarian organizations, as well as gung-ho lawyers, did a good job of making a big emotional splash anytime a family or a well-integrated immigrant were adversely affected by deportation. For a long time, many Germans regarded deportations as an expression of an overzealous and unsympathetic state.
But public sentiment shifted in 2015, when more people migrated to Germany than ever before. The mass sexual assaults that occurred in Cologne on new year's eve that year swept aside any lingering moral ambivalence and had people longing once again for the rule of law. For many people, including many politicians, the "nafris" -- a diminutive made up of the German words for "North African habitual offender," since most of the perpetrators in Cologne had been North African men -- could not be deported soon enough. And while they were at it, send all the rejected asylum-seekers back with them, people thought.
The federal government commissioned McKinsey to conduct an analysis of the deportation process from the ground up. The consultants' conclusions were entirely to be expected: Things weren't going so well. They prescribed a give-and-take solution that, on the one hand, foresaw higher financial incentives for voluntary departures, and on the other, more severe penalties for anyone who resisted. They also recommended closer, more efficient cooperation between the many agencies involved in the deportation process -- better "deportation management," so to speak.
There can be no illusion that this has been achieved yet, even though the various agencies are working together more closely today. There is a central asylum database that can be accessed by any involved agency, for instance; files can be transmitted electronically; and agencies don't do nearly as much redundant work anymore. But problems remain, to be sure: There are contradictions, loopholes and planning errors that prevent things from going more smoothly.
No Uniform Jurisdiction
And so, a political-administrative consensus on deportations has yet to be reached in Germany. The amount of leniency a rejected asylum-seeker can count on depends on the political constellation of the state in which they find themself. This confusion also spills over into the courts. Contrary to what one might expect, the administrative courts responsible for matters of asylum don't always hand down consistent rulings. For instance, some judges think deporting refugees back to Bulgaria -- if that's the first EU country they set foot in -- is unconscionable because asylum-seekers are not treated properly there. Other judges, however, have no problem with that. Such contradictions exist because there are no fundamental rulings in asylum law that judges can use as guidance. Court proceedings have been shortened to such an extent that many cases no longer end up in the higher courts, which are usually responsible for ensuring uniform jurisdiction.
"It's an asylum lottery in the end," Robert Seegmüller, a judge with Germany's Federal Administrative Court, said at a recent conference. "And of course everyone then says, 'Hey, I'll take part in the lottery. Who knows? Maybe I'll win.'"
To be fair, when it comes to people deemed to be threats to public safety, the authorities have woken up -- also at the federal level. Since Anis Amri's terrorist attack, the federal government has upped the pressure on North African countries to take back their citizens, whether they are dangerous or not. Tunisia and other countries in the region have, in fact, been notably more cooperative. While only 17 Tunisians were deported back to their home country in 2015, that number had climbed to 343 by last year. Algeria and Morocco are repatriating 10 times as many citizens now as they did in 2015; last year, the Algerians took back 567, while the Moroccans took back 722.
Desperate Times, Desperate Measures
At the Joint Counterterrorism Center in Berlin, the "Status" working group is currently handling around 660 cases involving Islamists, according to the Interior Ministry. At the center, specialists from multiple agencies look into what measures are possible under German residency law -- all the way up to an immediate deportation order by the interior minister himself. When it comes to deporting criminals, they receive support from the task force "Security" at the Joint Center for Repatriation Support, which was created in 2017. Currently, 120 cases are being processed there. In addition, the Interior Ministry has also set up another task force -- "Public Threat" -- to help the states deport Islamists and habitual offenders.
The ministry has some other measures in the works too. For the next few weeks, Chancellor Angela Merkel's cabinet will be drafting an "Orderly Return Law." Corresponding working papers circulating internally seem to have been compiled with an eye to state elections this fall. Prerequisites for being awarded a "tolerated" residency status are to be curtailed. Anyone who is demonstrably at fault for not having the necessary papers to be deported, or anyone who is caught cheating or swindling, will from now on be given a "less than tolerated" status and be required to live in group housing without the ability to work. Refugee aid organizations will also face legal recourse if they warn people of impending deportations or other planned measures.
In the future, it will also be easier to place migrants in custody pending deportation. German Interior Minister Horst Seehofer also intends to flout existing EU law in order to hold people awaiting deportation in normal jails. Much like U.S. President Donald Trump invoked his executive privilege to declare a state of emergency, Seehofer argues that desperate times call for desperate measures. Given that there is only space for 479 people in Germany's pre-deportation detention centers, and the German states still have to create more space for the deportees, he argues the EU's separation rule should be suspended for three years.
Much of this seems like political whitewashing. Instead of creating a new space in Germany for asylum and immigration law and convincing federal states to adopt a common policy, Germany's approach is jumbled and confused. The German Federal Office for Migration and Refugees (BAMF), determines which asylum-seekers may stay and which must go, and it's also responsible for processing cases that fall within the purview of the Dublin Regulation. Deportations and "tolerated" statuses fall under the jurisdiction of the central foreigner registration offices and the around 600 municipal foreign registration offices in the various states. When a deportation is imminent, employees from a state's foreigner registration office or the state police will pick the person up and drive them to the airport. On the plane, however, deportees are accompanied by Federal Police officers. A layperson could be forgiven for not fully understanding Germany's complicated deportation structures. Even those directly involved sometimes have a hard time wrapping their brains around it. And wherever there is institutional confusion or legal gray areas, novel workarounds are bound to arise.
An Atmospheric Shift
"Church asylum" is one such workaround. Officially it doesn't exist, yet somehow it's tolerated. At any rate, this phenomenon involving churches helping to protect people from deportation, causes regular tension between authorities and representatives of the church. In 2015, BAMF and emissaries of both churches agreed upon the current wording: "The participants agree that church asylum is not an independent institution existing outside the rule of law, but rather has established itself as a Christian-humanitarian tradition." It's essentially a truce agreement.
Since then, public prosecutors' offices have regularly gone after representatives of the church for aiding and abetting illegal residency, but they nearly always let them off the hook eventually. Most of the lawyers are annoyed by this practice since they are legally obliged to look for violations of the law, making them seem like callous bureaucrats in the public eye while priests and ministers and their congregations get to look like heroes.
Some 3,000 migrants have at least temporarily entered church asylum since 2017, though that number has declined steadily as laws have been tightened. Whereas in 2017, between 100 and 200 new church asylum cases were being reported every month, there have only been around 60 a month since August 2018. But the decline does not change the fundamental legal dilemma. Church asylum, as it were, has become a favorite topic of Germany's far-right Alternative for Germany (AfD) party. In the German parliament, the Bundestag, as well as in several state parliaments, the party has agitated against the concept, which it says has "no legal basis" -- the government was "granting the church a de facto special role as an advocate for asylum-seekers."
The AfD isn't alone in its condemnation. Throughout Europe, the mood toward asylum-seekers has become much less sympathetic. This is just as true in Italy as it is in Austria and Hungary. The Scandinavians were long viewed as being the most liberal in Europe, but now even they have adopted stricter rules and regulations for new arrivals. This has had something of a domino effect. According to documents from the Federal Police, the number of refugees who have moved to Germany after seeking asylum in Scandinavia has been rising steadily for years. Experts call this secondary migration, and according to the Federal Police, it is attributable to the Scandinavians' stricter immigration policies.
Denmark has cut social expenditures for refugees and wants to enforce deportations more consistently. Finland's public agencies can require asylum-seekers to live in specially designated housing and regularly check in with authorities. Norway has also considerably tightened its deportation policy. In Sweden, rejected asylum-seekers receive less social assistance than before. Europe is witnessing an atmospheric shift, even in places where the climate toward refugees has been relatively mild until now.
By Matthias Bartsch, Felix Bohr, Jürgen Dahlkamp, Jörg Diehl, Lukas Eberle, Ullrich Fichtner, Jan Friedmann, Dietmar Hipp, Roman Lehberger, Andreas Ulrich, Wolf Wiedmann-Schmidt and Steffen Winter
- Part 1: Why Germany's Deportation System Is Failing Everyone
- Part 2: 'It's Just Not That Simple'