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efms Migration Report

July 2002

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European Court of Justice grants more rights to spouses of third-country nationals

The European Court of Justice has granted more rights to third-country nationals who are married to EU citizens. The court has ruled that spouses from non-EU countries cannot be refused a residence permit even if they lack the necessary documents. It is therefore neither permissible to refuse respective persons entry at border checkpoints, even if they lack the necessary visa, nor to expel them from an EU country for non-compliance with legal requirements. According to the court, the only pre-condition that non-EU nationals have to fulfil is to provide proof of their identity and their marriage with an EU citizen. However, this rule does not apply to those third-country nationals whose spouses, even though they are EU citizens, exclusively live in their country of origin. In these cases national laws will continue to apply. Any further restrictions are only permissible if the person who is trying to migrate to the EU constitutes "a danger for public order, security or health".
BZ 26.07.02 // FR 26.07.02

First regulations of new immigration law take effect

As of 1st July, the first provisions of the new immigration law, which, as a whole, will take effect on 1st January 2003, have come into force. As of 1st July, officials responsible for reviewing asylum applications individually will be bound by directives. In addition, the position of the Federal Commissioner for Asylum Matters has been abolished, following criticism from human rights organisations for its tendency to appeal mainly against positive asylum decisions.

The Nuremberg-based Federal Office for the Recognition of Foreign Refugees, which up to now has only been responsible for processing asylum applications, will be converted into the Federal Office for Migration and Refugees (BAMF) and take on additional responsibilities. Among other things, the office will be responsible for the necessary preparations to ensure that, as of 1st January 2003, the then obligatory language and integration course, which have been introduced by the new immigration law, can be offered throughout Germany. In order to achieve this aim, it will be necessary to develop a course outline and syllabus, choose suitable project partners, devise criteria for language tests and ensure adequate funding.

Federal Interior Minister Otto Schily (SPD), in his speech at the opening ceremony for the reformed office, has stated that from 2003 the BAMF "will be responsible for the main (...) duties concerning immigration and integration". Among other things, these are going to include applying the new credit system for labour migrants, the admission and distribution of so-called "quota" refugees, and the administration of the Central Register for Foreigners. Another major innovation will be the office's responsibility for co-ordinating integration measures.
FR 02.07.02 // FR 09.07.02 // Pressemitteilung BMI 09.07.02 // FAZ 10.07.02 // NN 09.07.02 // BZ 10.07.02 // SZ 10.07.02 // Tagesspiegel 10.07.02 // Stuttgarter Zeitung 19.07.02

CDU/CSU-led state governments appeal against new immigration law

Approximately four weeks after Federal President Johannes Rau has signed the new immigration bill into law, six CDU/CSU governed states (Bavaria, Baden-Württemberg, Hesse, Saarland, Saxony and Thuringia) have submitted the law to the Federal Constitutional Court for a constitutional review. The explicit goal of the six state governments is, according to the Saarland State Chancellery, to have the law repealed "because of a material violation of the German constitution".

In the view of the CDU/CSU-led state governments, the passage of the law in the Bundesrat, the second chamber of parliament representing the sixteen states, has been unconstitutional, as the state of Brandenburg has not cast a unanimous vote as prescribed by the constitution. In addition, they also argue that Federal President Rau, on signing the bill, has called it "desirable" to have the law reviewed by the Federal Constitutional Court in order to settle all remaining legal questions.

SPD General Secretary Franz Müntefering has criticised the conservative parties for trying to discredit the law and pandering to xenophobic sentiments. Other representatives of the governing parties (at the federal level) have also criticised the CDU/CSU appeal in strong terms. The FDP, which participates in Baden-Württemberg's and Hesse's government coalitions and has therefore also been involved in the appeal, has emphasised that, if it forms a government coalition with the conservative parties after the federal elections in September, it will veto all efforts to repeal the new immigration law as a whole. According to Hesse FDP chairwoman Ruth Wagner, the FDP is in favour of immediately taking up further negotiations for reforming the law if the Federal Constitutional Court were to sustain the objections and repeal the law.
FR 01.07.02 // dpa 07.07.02 // Spiegel 15.07.02 // FAZ 16.07.02 // SZ 16.07.02 // Welt 16.07.02

Controversy over assimilation demands and interpretation of immigration statistics

In an interview, Federal Interior Minister Otto Schily (SPD) has called assimilation the best form of integration. His remarks have triggered protests and a widespread integration debate across party lines. According to Mr. Schily, nobody should be pressured into renouncing his origins, but in his view integration means that migrants accustom themselves with German culture and adopt German as their mother tongue.

Leading representatives of the SPD and the Greens, on the other hand, have distanced themselves from Mr. Schily's remarks, expressing their view that integration continues to be the appropriate term. Marieluise Beck (Greens), the Federal Government Commissioner for Foreign Resident Affairs, has confirmed the established "consensus in society", according to which migrants settling down in Germany do not have to give up their language, culture and religion.

Bavaria's Interior Minister Günther Beckstein (CSU) has rejected Mr. Schily's demands for assimilation as an "exaggeration", calling once again on migrants to acknowledge Germany's "Leitkultur" or guiding culture. Max Stadler, the domestic policy spokesman of the FDP parliamentary party in the Bundestag (the federal parliament) has supported the view that migrants are entitled to "preserve their cultural identity"; however, he considers it indispensable for them to learn the German language and acknowledge the basic values of the Grundgesetz, i.e. the German constitution.

Another controversy focussed on the issue of integration, and efforts to quantify the number of migrants that actually have to be integrated each year. Mr. Schily (SPD) rejected claims by Edmund Stoiber (CSU), the conservative parties' candidate for chancellor, who had argued that Germany has to integrate 500,000 migrants annually. In Mr. Schily's view, the majority of migrants entering Germany each year are not in need of integration, as they have no prospects of settling down in Germany permanently. In his view, this is particularly true for persons entering Germany as temporary labour. According to Marieluise Beck's estimate, approximately 150,000 foreign nationals and 100,000 Aussiedler (ethnic German immigrants) enter Germany each year with the intention of settling down for good, and should therefore be supported by integration programmes.

Another debated issue concerns speculations about the potential effects of the new immigration law on migration inflows. Mr. Stoiber (CSU) has asserted that the new law would allow "an additional 100,000 to 150,000 foreign nationals" to migrate to Germany. Chancellor Gerhard Schröder (SPD) has reproached his challenger for frightening the public with his "arbitrary figures". In the opinion of Interior Minister Schily (SPD), the new law will actually lead to a decrease in migration inflows.
SZ 27.06.02 // FAZ 29.06.02 // FR 29.06.02 // 30.06.02 // FR 01.07.02 // SZ 01.07.02 // Focus 08.07.02 // dpa 09.07.02 // taz 10.07.02// Welt am Sonntag 21.07.02

Federal Administrative Court: ban on headscarves for Muslim teachers

At German schools, female teachers of Muslim belief are not permitted to wear headscarves during classes. This is the gist of a ruling by the Federal Administrative Court in Berlin, which has rejected an appeal by a Muslim teacher from Afghanistan who has been granted German citizenship. In 1998, school authorities in the state of Baden-Württemberg had refused to employ her as a civil servant as she had insisted on wearing a headscarf during lessons. In its ruling, the court states that a headscarf is a "clearly visible symbol of a certain religious affiliation". Wearing a headscarf during class constitutes a violation of the obligation of all state schools to be strictly neutral in religious terms, as it "constantly and conspicuously" confronts pupils with a certain religious affiliation.

The Central Council of Muslims in Germany has criticised that the ruling actually amounts to no less than an "employment ban" for female Muslim teachers, and wants to have the ruling reviewed by the Federal Constitutional Court. However, the ruling of the Federal Administrative Court has been welcomed by Baden-Württemberg's education minister Annette Schavan (CDU), who is also the education secretary in the CDU/CSU shadow cabinet, and by the Turkish Community in Germany, which favours a strict separation between religion and state.
FR 05.07.02 // NN 05.07.02 // Zeit 11.07.02

Federal Constitutional Court: detention for the purpose of deportation only permissible with court ruling

The Federal Constitutional Court has ruled that foreign nationals can generally only be detained for the purpose of deportation if there has been a court ruling. This principle also applies to cases where the custody ends before the following day expires, for example by deporting a person during this period.

According to the Court, this period, which the Grundgesetz (the German constitution) defines as the maximum period of detention permissible without a court ruling, does not allow to generally waive the obligatory court hearing in cases of short-term detention. In principle, a court ruling has to be obtained before the beginning of a detention; in cases where this is not possible, a court ruling has to be submitted immediately.

In its ruling, based on one of the "essential civil liberties", the Federal Constitutional Court has sustained the appeal of a Gambian national, who in 1999 had been detained over night by German police without a court ruling, and deported on the following morning. The court has thus rejected statements by police authorities arguing that they had been unable at the time of the arrest to contact the judge responsible for the detention hearing.
FR 17.07.02 // SZ 17.07.02 // Tagesspiegel 17.07.02

Federal Administrative Court rules that "Mehmet" is entitled to residence in Germany

The Federal Administrative Court has ruled that Turkish national Muhlis A., who, four year ago, had been deported from Germany as a fourteen-year old, is entitled to return to his home town Munich. Muhlis, who for privacy reasons is called "Mehmet" by media and authorities, committed a large number of criminal offences before turning 14, which under German law is the age of criminal responsibility. He was then sentenced to a one-year prison sentence and deported to Turkey without his parents by local authorities in Munich.

The Federal Administrative Court has now ruled that, according to Germany's Aliens Act, Muhlis, as an "Inländer" or factual German resident, is entitled to have his residence permit extended. The court has also stated that his deportation has been in violation of the special protection against deportation granted to non-German minors. Minors can only be refused residence if they have committed a particularly serious crime. "Mehmet", however, has been convicted of a criminal offence that, in the court's view, cannot be regarded as "particularly serious".

Whereas the ruling has been welcomed by federal and state representatives of the Greens, FDP and SPD, it has been criticised by Bavaria's Interior Minister Günther Beckstein (CSU) and Munich local authorities. Mr. Blume Beyerle (SPD), head of Munich local authorities, has expressed the fear that the ruling will send out the "wrong signal to juvenile delinquents". Mr. Beckstein has called for a new law against serial offenders, which allows the deportation of non-German offenders and includes the possibility to have non-German residents serve their prison sentences in their country of origin. In addition, he has announced that prosecutors in Munich will re-open the Muhlis case, which had been closed in 1998.
NZ 15.07.02 // FAZ 17.07.02 // SZ 17.07.02 // NZ 18.07.02 // SZ 18.07.02 // taz 18.07.02

Asylum statistics

In July 2002, a total of 5,947 persons has submitted petitions for political asylum in Germany, an increase by 5.0% (283 persons) over the previous month. However, compared to July 2001, respective figures have decreased significantly by 26.5% (-2,146 persons). Similarly, the total of asylum applications submitted so far this year is significantly lower (-13.8%) than for the same period in 2001.

In July 2002, applicants' main countries of origin have been Turkey (839), Iraq (757) and the Federal Republic of Yugoslavia (554), followed by the Russian Federation (397) and Iran (248). In total, the Federal Office for the Recognition of Foreign Refugees has passed decisions on 9,691 asylum applications, 1.4% (138) of which have been recognised as entitled to political asylum. An additional 1.8% (177) have been recognised as protected against deportation according to §51 Par.1 Aliens Act. 58.3% of all applications (5,644 persons) have been rejected.
Pressemitteilung BMI 04.08.02

July 2002

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