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efms Migration Report

October 2002

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Council of Europe calls for harmonised approach to illegal migration

The Parliamentary Assembly of the Council of Europe has called on the organisation's Committee of Ministers, which comprises government representatives of the forty-four member states, to draw up international guidelines on how to deal with illegal migrants. Both the Human Rights Commissioner of the Council of Europe and the European Union are to participate in the process.

It is the aim of the Parliamentary Assembly to put issues such as the causes of illegal migration and human trafficking on the agenda of European states in order to work on a common solution. The talks are to place special emphasis on human rights as well as co-operation between source countries, transit countries and countries of destination.

The Assembly has expressed the belief that this is the only approach that takes into consideration the legitimate interests of the receiving countries as well as human rights issues. In the view of the Assembly, the current situation is marked by a lack of specific international treaties guaranteeing elementary human rights for illegal migrants. As an example, the Assembly has pointed out the right of children, and persons that are facing particular risks, to public assistance and medical aid in case of an emergency.
Das Parlament 07.10.02 // NZZ 14.10.02

European Parliament supports liberalisation of asylum law

In its draft for an EU directive on common minimum standards for recognising applicants as entitled to political asylum, the European Parliament has supported a liberalisation of asylum law, taking a more liberal stand than the EU Council of Interior Ministers.

The majority of MEPs calls for recognising additional entitlements to political asylum, such as the refusal of an applicant to participate in a war in his or her home country, or other so-called "self-created retroactive asylum entitlements", e.g. political activity in the receiving country. In addition, the right to asylum for family members is to be expanded to children of the applicant's partner and to partners of the same sex. Furthermore, the European Parliament has demanded that asylum petitions should only be rejected due to existing safe havens in refugees' countries of origin if respective national governments are able and willing to grant protection to refugees.

However, persons that have committed terrorist acts, or who are searched by a European arrest warrant, are principally to be excluded from asylum procedures.

As the European Parliament has only a consultative function in interior policy, Mr. von Boetticher, the spokesman of the Christian Democrat parliamentary party, has expressed the view that these far-reaching proposals by the European Parliament are bound to be rejected by the Council of Ministers.
FAZ 23.10.02 // NZZ 24.10.02

Federal Constitutional Court commences deliberations on migration law

The Federal Constitutional Court has commenced deliberations on appeals against the new migration law that six federal states (governed by a CDU/CSU majority) had submitted in July. The Second Senate of the highest German court has not to decide about the content of the new law, but if the passing of the law has been carried out in accordance with the constitution. The main issue here is the voting behaviour by representatives of the state of Brandenburg in the Bundesrat (upper house of parliament representing the interests of the federal states) session of 22nd March 2002. Whereas representatives of the CDU/CSU, the main opposition parties, have argued that the votes cast by Brandenburg are invalid, representatives of the governing parties have expressed exactly the opposite view.

Legal experts have also expressed opposing views concerning the constitutionality of the passing of the law. At the constitutional court's first hearing, several legal experts have presented their evaluation of the matter, with some supporting the government line, whereas others supported the view of the opposition parties. In addition, the court heard statements by Bavaria's Interior Minister Günther Beckstein (CSU), Saarland Premier Peter Müller (CDU) and Federal Interior Minister Otto Schily (SPD). Meanwhile, the constitutional court has stated its intention to decide the case be-fore the end of the year, i.e. before the new migration law is to take effect (as of 1st January 2003).
FR 23.10.02 // Welt 23.10.02 // Spiegel 23.10.02 // FAZ 24.10.02 // FR 24.10.02 // SZ 24.10.02 // taz 24.10.02

Chairman of the Conference of Interior Ministers calls for postponement of new migration law

Kuno Böse (CDU), chairman of the Conference of Interior Ministers, has called for a postponement of the new migration law by six months, no matter how the Federal Constitutional Court is to rule in this matter. According to Mr. Böse, carrying out the law as planned would lead to "considerable chaos" in the administration of federal states. CDU/CSU-governed states have repeatedly pointed out the considerable problems that would be inevitable if the law were to take effect as planned as of 1st January 2003, with several important issues still being unresolved, such as the funding of integration courses and the necessary updating of computers and software in order to bring them in line with the new Central Register for Foreigners.

Speculations as to whether several SPD representatives are also considering a possible postponement of the law has been rejected by Lower Saxony's Interior Minister Heiner Bartling (SPD). Representatives of SPD-governed countries have conceded that the new law might initially lead to administrative problems, but Mr. Bartling has emphasised that there have been "no discussions or agreements whatsoever among federal states to postpone the law".

Petra Roth (CDU), the mayor of Frankfurt/Main and President of the German Conference of Local Authorities, has called on federal and state governments to resolve remaining questions. Several directives have still to be passed before the new migration law can take effect, but as many of these directives need to be passed by both houses of parliament, the legislative process will not be concluded before the end of November.
Focus 21.10.02 // Spiegel 21.10.02 // FAZ 23.10.02 // FR 24.10.02 // BZ 25.10.02 // FR 28.10.02

Federal Labour Court decision on wearing headscarves at workplace

In a principle-establishing decision, the Federal Labour Court has ruled that a female Muslim employee from Hesse has the right to wear a headscarf during work at a department store. The ruling has repealed earlier decisions by regional and state courts, which had ruled that the employer had been entitled to dismiss the woman (a German national of Turkish origin) for wearing a headscarf at work.

In general, the federal court has not questioned the employers' right to impose dress restrictions on their staff, but the court has emphasised that the constitutional right to religious freedom prevails over the basic rights of entrepreneurs. According to the presiding judge, the mere fear of an employer that his department store could lose customers who feel uncomfortable being served by a shop assistant wearing a headscarf is not sufficient to justify the dismissal of a shop assistant. (Ref. BAG 2 AZR 472/02)

Meanwhile, the management of the department store has carried out the ruling of the court and re-employed the Muslim shop assistant who had been made redundant over three years ago. However, the management is considering lodging a complaint with the Federal Constitutional Court.
SZ 08.10.02 // SZ 11.10.02 // FR 18.10.02

Mixed response to repatriation centres in Bavaria

The opening of the first Bavarian repatriation centre has met with a mixed response. The centre has been set up in order clarify the identity of asylum applicants whose petition has been finally rejected and who are subject to deportation. On the one hand, the Bavarian Interior Ministry has expressed its satisfaction with the fact that one resident of the centre has agreed to reveal his real identity and has applied with his consulate for identity documents. On the other hand, the Green state parliamentary party, the Bavarian Council for Refugees and the human rights organisation res publica have reiterated their demands to close the centre immediately.

By mid-October, 14 of the 35 foreign nationals who had received a "redistribution order" calling upon them to take residence in the repatriation centre in Fürth have followed the directive, with 14 other persons disappearing into illegality. The remaining seven foreign nationals have lodged urgent appeals against the directive, two of which have already been rejected by the administrative court in Ansbach.

However, the administrative court in Braunschweig (Lower Saxony) has ruled that the compulsory allocation of an Asian refugee to a repatriation centre in Lower Saxony has been unlawful. In its statement, the court has pointed out that authorities in Lower Saxony had failed to carry out intensive efforts to clarify the identity of the man, who had spent more than eleven months in the centre; accordingly, any further residence of the foreign national in the repatriation centre would serve the sole purpose of exerting pressure on the man. As there is no legal basis for this coercive measure, the court has ruled that any further residence in the centre would be unlawful.
taz 30.09.02 // FR 04.10.02 // FR 05.10.02 // dpa 10.10.02 // Press Statement by the Bavarian Interior Ministry 15.10.02 // SZ 16.10.02 // NN 24.10.02

Debate on lawfulness of Al-Aqsa ban

The Al-Aqsa-Association, which had been banned by Federal Interior Minister Otto Schily (SPD) in August 2002 for its support of the terrorist organisation Hamas, has lodged an appeal against the ban at the Federal Administrative Court. The association's lawyer has argued that, with the majority of members having received German citizenship, it has been incorrect to classify the organisation as a non-German association. The legal basis for the ban is constituted by a law which had been passed as part of the anti-terrorism package at the end of 2001; under the legislation, an association can only be banned because of its support for non-German terrorist organisation if the supporting organisation in Germany can be classified as a non-German organisation, i.e. comprising a predominantly non-German membership.

A judge at the administrative court has been quoted as saying that if the facts provided by the Al-Aqsa lawyer were to be confirmed, this would cast some doubt on the lawfulness of the ban of the association. However, the Federal Interior Ministry has made further allegations against the Al-Aqsa association, accusing the organisation of violating the principle of peaceful co-existence between ethnic groups. If these allegation were to be confirmed, they could justify the ban of a "German association", too.

In similar legal proceedings, some of the organisations that had been banned as subdivisions of the Caliph State have also lodged appeals with the Federal Administrative Court, arguing that the majority of their members are nationalised Germans. Nevertheless, observers do not expect these appeals to be successful as respective organisations are clearly controlled by their Turkish leader, Metin Kaplan.
dpa 29.09.02 // taz 02.10.02

Asylum statistics

A total of 6,568 persons have submitted a petition for political asylum in Germany in October 2002, a slight increase over the figure for the previous month (6,286), but a significant decrease by 25,1% over respective figures for October 2001 (8,764 persons). Adding up application figures for January until October 2002, on arrives at a total of 60,808 asylum applicants, a decrease by 18,6% or 13,915 over the same period last year.

In October 2002, applicants' main countries of origin were Turkey (867), Iraq (841) and the Federal Republic of Yugoslavia (628), followed by the Russian Federation (457) and Iran (249). The Federal Interior Ministry has pointed out that the increase of asylum applicants from the Russian Federation is mainly due to rise in applicants from Chechnya. Whereas 103 asylum seekers in September 2002 originated in Chechnya, their number rose to 275 in October.

In October 2002, the Federal Office for the Recognition of Foreign Refugees has passed decisions on asylum applications of 9,739 persons, 1.7% (165) of them have been recognised as entitled to political asylum. An additional 2.5% (243 persons) have been recognised as protected against deportation according to §51 Par.1 Aliens Act. The applications of 6,634 persons (68.1%) have been rejected. The remaining 27.7% of cases (2,667 persons) have been closed for other reasons.
Press Statement BMI 06.11.02

October 2002

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