Joint press release from the Republican Lawyers' Association, the Committee for Fundamental Rights and Democracy, and the North Rhine-Westphalia Deportation Reporting
On October 25, 2023, the Federal Cabinet adopted the draft bill for the so-called "Return Improvement Act" and submitted it to the Bundestag and Bundesrat. The Republican Lawyers' Association, the Committee for Fundamental Rights and Democracy, and the North Rhine-Westphalia Deportation Reporting Project, affiliated with the Committee for Fundamental Rights, strongly criticize the far-reaching infringements on fundamental rights, particularly the right to liberty, the inviolability of the home, the right to privacy, and the principle against self-incrimination, as well as the legislative process itself.
The 72-page draft bill was sent to the associations without any objective justification, with a mere 48-hour deadline for comments. The Federal Government clearly does not want a serious, expert discussion of the bill.
Julia Schulze Buxloh of the Republican Lawyers' Association explains:
"Many of the planned regulations are clearly unconstitutional and violate European law. Instead of a race to the bottom in terms of shady practices and unconstitutional pseudo-solutions, we need objective debates and policies that comply with human rights."
Britta Rabe of the Committee for Fundamental Rights and Democracy criticizes:
"The 'Repatriation Improvement Act' contains populist-motivated measures. Even more relentless harshness and the use of force—such as detention, police control, and disciplinary action—are to be used against people. The primary goal is to racially label refugees as allegedly fraudulently 'welfare fraudulent' criminals."
Sebastian Rose of the North Rhine-Westphalia Deportation Reporting Unit states:
“This law will not achieve its stated goal. The rights of those affected by deportations are already being violated, as we know from the research and documentation of the North Rhine-Westphalia Deportation Reporting Unit. The planned restriction of fundamental rights is completely disproportionate to the additional 600 deportations per year promoted by the federal government.”
The Republican Lawyers' Association, the Committee for Fundamental Rights and Democracy, and the affiliated North Rhine-Westphalia Deportation Reporting Unit therefore call upon the federal government, the Federal Council, and parliament – especially in light of the further tightening of regulations currently under discussion – to fundamentally reverse its migration policy.
What is needed is a progressive policy that finally dares to place the protection of human rights at its core, acknowledges the fact of ongoing migration movements, and actively shapes them.
Regarding some of the proposed legislative changes in detail:
• The expansion of the possibilities for the detention of refugees (§ 62 para. 3 sentence 4 AufenthG- E): Deportation detention should also be ordered whenever it is clear that deportation can be carried out within six months and no longer within three months as before.
• The continuation and imposition of deportation detention (§ 71 para. 8 AsylG – E) will in future be possible regardless of any asylum applications or subsequent applications. This will lead to people being deliberately forced into a never-ending situation of fear of potential detention.
• The so-called pre-deportation detention (§ 62b para. 1 AufenthG – E) is to be increased from ten to 28 days. This can already be imposed under even less stringent conditions than deportation detention, for example, even without an existing risk of absconding. In practice, pre-deportation detention is also usually carried out unlawfully in the same detention facilities as other forms of deportation detention.
• All these measures are being planned even though deportation detention and pre-deportation detention are already frequently ruled unlawful by courts after the fact. In addition to the generally massive infringement on the right to liberty of those affected, this regulation will accordingly lead to even more unlawful detention. It will also place an even greater burden on the courts.
• Expansion of the authority of state authorities to enter private spaces (§ 48 para. 3 Residence Act – Draft)
The protection of privacy and the inviolability of the home, which are fundamental rights protected under Article 13 of the Basic Law, will be further restricted in the future for refugees and people with precarious residency status. In collective accommodations, it will now be possible to enter the rooms of third parties.
These other rooms may be searched for individuals who are to be deported. The requirement of a judicial warrant for searching private residences is already regularly disregarded. With the expansion of these powers to the detriment of third parties, it is feared that the requirement of a judicial warrant will be observed even less frequently.
This constitutes a serious violation of Article 13 of the Basic Law. This explicit legal approval primarily serves to legitimize official harassment, which will instill fear in all residents of collective accommodations and could lead to further traumatization. Furthermore, the legislature is aware that the question of the inviolability of living space during deportations is currently pending before the Federal Constitutional Court. However, this decision is deliberately not being awaited.
• Non-notification of deportations (§ 60a para. 5a Residence Act – draft) According to the draft law, the one-month notification requirement for deportations following at least one year of tolerated stay that has been revoked is to be abolished. An exception will only apply to families with children under 12 years of age. The non-notification of deportations already severely restricts the effective legal protection of those affected. Now this practice is to be expanded. Those affected often describe it as particularly undignified. People facing deportation cannot prepare for their departure, say goodbye, or organize the dissolution of their household. Furthermore, it is planned that in the future , deportation will no longer be announced to foreign nationals in detention or public custody (§ 59 para. 5 sentence 2 Residence Act – draft) . One of the frequently cited reasons for not disclosing deportation dates is that those affected could otherwise remain hidden. However, this is precisely what is impossible in detention or public custody. Therefore, this measure in the draft law can only be interpreted as further restricting the rights of those affected. Effective legal protection is prevented. The draft law itself cites the sole reason for the measure as relieving the burden on immigration authorities.
• Expansion of criminal liability: (§§ 15 para. 2, 85 para. 1 no. 5, para. 2 Asylum Act – Draft)
False or incomplete information in asylum, revocation, or withdrawal proceedings will be criminalized in the future. While previously false or incomplete information could lead to the rejection of an asylum application or the loss of protected status, this new provision will employ the most severe measure available to the state.
This regulation violates the principle of non-incrimination, a fundamental pillar of our rule of law. Furthermore, it deprives asylum seekers of the assurance that the content of their hearings will remain confidential, which is a crucial prerequisite for many to be able to speak about their experiences of persecution. There is also a risk of infringements on the professional freedom of lawyers and advisors if law enforcement authorities are required to investigate them ex officio.
This could entail an obligation to conduct an exhaustive examination of the veracity of the statement, which could make providing advice impossible. Furthermore, this proposal will contribute to the already existing overload of law enforcement agencies and courts.
• Expansion of grounds for deportation: (§ 54 para. 1 no. 2a AufenthG – E)
The already extremely broad grounds for deportation3 are to be expanded even further. A particularly serious interest in deportation will in future exist "if facts justify the conclusion that [a person] belongs or has belonged to an association within the meaning of § 129 of the Criminal Code."
A legally binding conviction will therefore not be required; preliminary investigations or even assessments by the immigration authorities may suffice to confront the person concerned with the ever-present threat of deportation.
Given
that a large number of investigations are already being conducted under Section 129 of the German Criminal Code (StGB), but the suspicions are not ultimately sufficient for a conviction,
– that Section 129 of the German Criminal Code is already being used in connection with so-called “clan” crime – again without a corresponding criminal conviction – and that racist measures are being taken against individuals,
– that increasingly, investigations are being initiated against anti-fascists and climate activists pursuant to Section 129 of the German Criminal Code in order to criminalize undesirable political attitudes, an instrument is being created that, from our perspective, contradicts democratic law: The deportation of those affected is only possible on the basis of suspicion.
• The grounds for rejecting an asylum application as "manifestly unfounded" are to be expanded (§ 30 para. 1 AsylG – E). This violates EU law and once again curtails legal protection, especially for those who need it most urgently: refugees, and thus particularly vulnerable individuals. This expansion is yet another expression of placing refugees under suspicion of being "fraudsters" and "asylum seekers".
