Germany: Immigration law infringes migrants' privacy rights
01 October 2007
Germany's new Immigration Amendment Act, which came into force on 28 August this year, was received by migrant communities and asylum rights associations with sustained criticism. Turkish migrant associations, in particular, are opposing newly introduced far-reaching remits to collect and exchange asylum seekers' and foreigners' data.
The Act extends EU biometric provisions (1) to apply to travel documents issued to third country nationals. Furthermore, visa applicants will now be photographed and fingerprinted; data exchange is increased between the immigration service and local authorities responsible for administrative registration; photographs are included in the central foreigners database (
Ausländerzentralregister); electronic face recognition technology is used to compare stored data with various databases, and law enforcement and immigration authorities have increased access to the central foreigners database (BT-
Drucksache 16/5065, page 4).
Moreover, the already existing provision that grants data exchange for "security checks" between aliens' authorities and law enforcement or intelligence agencies (which concerns all personal data collected in a visa procedure by German embassies or consulates or foreign representation of other Schengen states on the applicant and on the inviting party), has now been extended to apply not only to the above-name persons, but also to any other "reference person".
The relevant agencies the data is exchanged with are: the External Security Service (
Bundesnachrichtendienst), the Federal Office for the Protection of the Constitution (
Bundesamt für Verfassungsschutz), the Military Intelligence Service (
Militärischer Abschirmdienst), the Federal Crime Police Authority (
Bundeskriminalamt) and the Custom's Crime Authority (
Zollkriminalamt). The data exchanged may be collected and used by the security agencies "in as far as this is necessary for the fulfilment of their remits" (Article 73(3)
AufenthG). An automatic data exchange between aliens' and local authorities is now regulated under Article 90 of the residency regulation (
AufenthG).
Turkish associations have voiced particular concern about the regulation that orders public authorities, which in their regular work come across foreigners they find "in need of integration", to pass their personal data on to the aliens' authorities (Article 87(2)
AufenthG). Data can be exchanged in accordance with Article 43(4)
AufenthG, which gives the government powers to pass a regulation on data exchange between authorities with regard to those who "qualify" for integration measures. This way, says the Amendment Act, the aliens' authority can impose the integration course onto people they would not otherwise "have in their field of vision" (
BT-Drucksache 16/5065, page 195).
Problematic here is, firstly, that the obligation to report presumes that public authorities are able to assess if a third country national is "in need of integration". However, neither the qualification for this assessment, nor a clear definition of what constitutes "in need of integration" are provided in the text. Secondly, the remits of the obligation to report are not defined, so that it is not clear if teachers, for example, may or even must report parents of schoolchildren who they believe are "in need of integration". Finally, public authorities whose work is based on trust between them and their clients are transformed into the helpers of aliens' authorities, thereby endangering relationships of trust and the rights of third country nationals to have their privacy protected.
(1) Council Regulation (EC) No 2252/2004 (13.12.2004) on standards for security features and biometrics in passports and travel documents issued by Member States, OJ L 385/1, 29.12.2004
For a detailed critique by the organisation Turkish Community in Germany,
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