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Germany: Return to an Aliens Police Law? Anti-terrorist legislation in Germany's new Immigration Act

01 May 2005

by Marei Pelzer

Anti-terror laws introduced after 11.9.01 particularly curtailed the rights of migrants and refugees living in Germany. The new immigration law is a continuation of this "aktionismus" [taking action for the sake of it] legislation. Its centrepiece is the deportation of terror suspects without prior conviction.

The Immigration Act, which came into force on 1 January 2005, contains immense reinforcements of security measures [1]. These were promoted particularly by the conservative parties CDU/CSU (Christlich Demokratische Union Deutschlands & Christlich Soziale Union), who could exert their influence because the law had to be approved by the Upper House of the German parliament. Rather than abolishing the threat prevention aspects that characterised the former "Aliens Act", the new law extended them. Instead of creating a modern immigration law, the regulation has extended measures resembling pre-democratic "Aliens Police Laws".

The centrepiece of the new law's security policy is the increased power to deport. As in the earlier debates that accompanied the anti-terrorist measures introduced at the end of 2001, the CDU demanded deportation powers on mere suspicion, in contrast to the argument that only persons who had received a final and binding sentence could be expelled and deported from Germany.

In their demands, it remained unclear who and how many people the measures were meant to target. Bavarian's interior minister Günther Beckstein was talking of up to 3,000 people [2], thereby obviously targeting members of foreigners' associations that have fallen out of favour. Furthermore, he presented a list of 20 people residing in Bavaria who had, until then, not been deported. However, as the liberal MP Max Stadler (Freiheitlich Demokratische Union) revealed, some of the named persons could not have been deported even if increased deportation powers had been in force, due to lack of evidence. In other cases, final deportation orders had already been issued and in one case, the person in question had already been deported. Finally, a third group of people could in fact not be deported for humanitarian reasons, which the authorities could not have circumvented even with more powers to deport.

Still, the CDU stuck to their restrictive proposals and deliberately misled the public. Even before the introduction of the anti-terrorist measures, a binding sentence, for example, was not a precondition for deportation [3]. According to s45 paragraph 1 Aliens Act (Ausländergesetz), foreigners could be deported if their stay "endangered public safety or order (öffentliche Sicherheit oder Ordnung) or other significant interests". Deportation regulations put in force after 11 September do not even require a preliminary criminal investigation anymore. Since the introduction of the so-called "security packages", a false statement made by a foreigner during an interrogation by the authorities on grounds of security concerns already suffices. In any case, additional powers in deportation regulations were therefore unnecessary [4].

Deportation of foreign terrorist suspects

One of the newly introduced reasons includes the possibility to deport terrorist suspects. This new power goes hand in hand with a new accelerated deportation procedure. On grounds of the novel s.58a of the residency law (Augenthaltsgesetz - AufenthG), the highest regional authority (or the Federal Interior Ministry when the procedure is taken over by the same):

can issue a deportation order without a prior expulsion procedure against a foreigner on grounds of a prognosis supported by facts for the prevention of a particular threat to the security of the Federal Republic of Germany or a terrorist threat

The key aspect here is that extradition and deportation procedures are conflated. The deportation order is to be carried out immediately, there is no requirement of a warning.