On the 2nd of July the Bundestag adopted the redefinition of the right to stay and the termination of the residence permit. Parts of the law shows the intention of making the lives of those already residing in Germany better. At the same time legal opportunities will be created to act more rigorously against newly arrived asylum seekers. An overview of the changes and its consequences:
Grounds for detention in the Dublin procedure will be limitless
The new law creates the legal possibility to detain asylum-seekers for the sole reason that they entered Germany from another EU country. According to Chapter 15, paragraph 2, sentence 2, makes an arrest on Dublin grounds possible “when a foreigner leaves a member state before the conclusion of the asylum application process or the application for international protection”. This will mean that the majority of asylum seekers falling under the Dublin III Regulation, can be taken into custody. This acts against the Dublin III Regulation, where it is stated that one cannot be arrested because of a Dublin-procedure.
Also particularly worthy of criticism is the reason for imprisonment described in §2, Chapter 14, number 4, after which a foreigner may be detained for paying large sums of money to a smuggler (§96 of the Residence Act) for his/her unauthorized entry.
How can people seeking protection enter Germany, without a so-called smuggler when legal means are largely cut off? Since 1980, Germany has systematically introduced the visa requirement for all countries of origin of asylum seekers. This was accompanied with the creation of sanctions for transport companies. Refugees cannot simply legally travel to Germany. They won’t get a visa. They depend usually on smugglers to be able to seek refuge in Europe.
PRO ASYL fundamentally criticizes the detention of asylum seekers in Dublin procedures. Detention is a totally inappropriate measure against people seeking protection. In addition, a large proportion of asylum seekers are traumatized or, for other reasons, are particularly vulnerable – in these cases prison is above all unacceptable.
Right to stay for those who have Duldung for several years
The hypocritical approach of the past, to solve the problem of long term Duldung holders by giving a right to stay for everybody who applied before a specific date (Stichtag) some years before, is over. The new regulation to get a right to stay independently from a “Stichtag” is welcomed.
People living for several years in Germany will now be given the chance to finally acquire a secured residence. Even though there are still huge obstacles with integration and language learning, many of the Duldung holders will be able to benefit from the provisions of the Residence regulations.
People fulfilling following conditions can get a right to stay according to §25b:
– having stayed as a family with underage children for at least six years in Germany
– Residing without underage children for at least eight years in Germany
– Possess a minimum knowledge of German A2 and secure their livelihood by working primarily or those who will be likely to do so in the future. However, these conditions are not to be applied to those who can’t work because of age, illness or disability.
– have revealed their identity, presented a passport or shown the effort by presenting such documents and didn’t fulfill the criteria for deportation according to § 54.
It is positive that the life subsistence of the asylum seeker does not have to be already secured for granting or renewal time. The securing of the life subsistence of those with Duldung is currently a major problem because in some parts of Germany the remaining bans on asylum seekers exclude them from the labor market despite the liberalization of the employment law (see § 33 BeschVO).
This has statistically detectable consequences: in 2010 only 11% of Duldung holders were employed in Germany, according to a study of the Federal Office for Migration and Refugees’ called: “Immigrants in the low-wage sector with special attention to Duldung holders and those allowed to stay”.
It is unfortunate that this law, like the ones before, has a long list of exceptions.
At least it is not based on past misconduct. Excluded from accessing the right to stay are only those who still don’t fulfill the obligation to cooperate.
On the negative side, family reunification is now absolutely impossible. Even after years, the people who received a residence permit through § 25b don’t have the right to have their spouses brought to Germany. This is not acceptable, since the protection of marriage and the family must also apply to those who reside here permanently.
Improved right to stay for pupils – only partial protection from deportation during education
The existing residence permit to young Duldung holders under § 25a of the Residence Act has improved. The right to stay will be granted after four years, instead of six years, for those residing and attending school in Germany. This is positive. However, the regulation will still be unnecessarily restricted by rigid age limits. Namely, the right to stay for well-integrated young people (§ 25a) shall be granted only if they have attended school for four years before their 21st birthday.
This has problematic consequences: many unaccompanied minors will not benefit from the right to stay, since most of them are already 17 years old. From the general provisions on residence rights for the well-integrated, they can only benefit if they have lived at least eight years in Germany (§ 25b). The consequence: young people will be stuck with Duldung, the most precarious status for integration because it makes much more difficult for potential employers to invest in training for example.
In addition to this change, there are negotiations within the big coalition to give a right to stay for people in educational training, which means a long term Duldung (§ 60a para. 2) instead of a proper residence permit. The training must start before they reach the age of 21 years. And the person must not be a former asylum seeker whose country of origin is on the list of “safe countries of origin”. That means, once again refugees from the Western Balkan countries are excluded.
At least the Duldung for those under Training last for a long period. But this cannot hide the fact that it does not create any right of residence. For many employers Duldung status gives a deterring signal. Often Duldung holders will not get the training in the first place. Those who really want to give young people a chance to integrate, must give them a proper residence permit!
New re-entry bans would criminalize West Balkan refugees
The new regulation, which allows the Federal Office to issue an entry and residence ban (§ 11 para. 7) to rejected asylum seekers coming from “safe-country of origin” is a further intensification which is directed against the West Balkan refugees. After the big coalition was established in 2014, with the approval of the Bundesrat in disregard of the massive human rights deficit in the countries of the Western Balkans, a discriminatory special treatment in the asylum procedure, there is now a further threat of discrimination.
If asylum seekers from Serbia, Bosnia-Herzegovina and Macedonia are provided EU-wide with an entry ban, this accompanies fatal politics of at least two of these countries (namely Serbia and Macedonia). Roma will be particularly prevented to leave and will be interrogated and sanctioned when they are sent back/deported because of allegedly “illegal” stay abroad or supposedly provision of false declarations.
This trend is reinforced by the effects of the new § 11 Chapter 7 according to which the person concerned will receive a EU-wide entry ban and be intercepted at the EU’s external borders of Hungary or Bulgaria. Those who still manage to come to Germany will be threatened with a sanction by the criminal codex. Whoever enters bypassing visa bans can be prosecuted. This regulation will lead to a completely disproportionate criminalization of those affected.
Custody for those awaiting Deportation: constitutionally questionable
Custody for those awaiting deportation, which as an instrument has had hardly any practical relevance in the past recent years, will now be revived through various measures.
One of the most problematic aspects is the introduction of the so-called exit custody: if a collective deportation is planned, people can be imprisoned for four days without the usual constitutional requirements (existence of special grounds for detention). This is not compatible with European law and constitutional law.
The law doesn’t need approval by the Bundesrat. The hearing in the Bundesrat expected for the beginning of July will only be a formality. An exact date for the law entry into force is not yet known.
Translated by International Women Space from the Original text published by Pro Asyl.