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"Residenzpflicht": A part of the adminstrative system of deterrance - and what to do against it

"Residenzpflicht": A part of the administrative system of deterrance - and what to do against

Visiting relatives, a visit to the doctor, if you are ill, the everyday way to work, to take part in a protest march, to be an active member of a football club ... are quite normal activities for Germans. But not so for refugees: on one hand refugees are forbidden to do this things, e.g. to go to work, on the other hand some of these things increse to big problems, because you have to pass the borderline of the administrative dis-trict, in German called "Landkreis". If you as refugee want to paas you need a permission from the compe-tent office, which deals with the affairs of aliens living in the district. Exceptions to this rule are only dates with the lawyer, visits to the office of the United Nations High Commissionar for Refugees (UNHCR) and other comperable organisaziones like the Red Cross or Caritas. As a refugee you are forced to tell very private things to civil servants, you do not know. Because you have to say, for what reason you want the permit to leave the district. You are dependent on the decisions of this officials in planing and living your own life. This constantly making up somebodys mind for himself or herself and this constantly controll is very humiliating. And also more discriminating is the fact that refugees are punished by the state, if they leave the district without permission and they are catched by the police on this trip. Its inconceivable, that the administration would do this against Germans.

Nevertheless this behaviour of the administration towards refugees is in a lawfull manner. This is also the opi-nion of the Federal Constitutional Court, in German called "Bundesverfassungsgericht", which is the high-est German court and which has to controll the kepping of the human rights, which are part of the Ger-man constitution (Basic Law). How is this possible? What is the structure of the administrative system, of which the "Resedenzpflicht" as a humiliating rule, is a part of. What are the purposes of this system and especially the Residenzpflicht? And: What can we do against this situation ?

I. Residenzpflicht - function and history of this rule

All refugees are just permitted to move in the administrative district (Landkreis), in which they have to live in the camp. In the official language of the German administration this obligation is called "Redeidenz-pflicht". This obligation exists in the atcual version of law since 1982. In this year the Asylverfahrensgesetz was in-tro-duced as a special law for refugees and asylumseekers. With the coming into force of the AsylVerfG in 1982 also the following messures were established: refugees are forced to live in camps, the posibilities for refugees to work are restricted considerably. On the other hand refugees have the duty to do work for the pu-blic, which is payed very low. In a short way: all structures of discrimination by the state already exist in 1982. With one exception: the act on benefits for asylumseekers (Asylbewerberleistungs-gesetz) still was not in force. There were - officially - no social standards espacially for refugees, which are lower than the so-cial standards beeing in force to Germans entitled to get social benefits. The level of social benefits for Ger-mans corresponds to the undispensible subsitence level, that must be secured becaus of the human dig-nity.

Since 1982 the UNHCR again and again harshly critizised this new rules, exspecially the obligation for refu-gees to live in camps, the restriction of posibilities to work and the Residenzpflicht. In 1983 two in-de-pen-dent commissions of UNHCR visited various camps for refugees in some Länder of Germany. As a re-sult the commissions wrote reports to some institutions of the United Nations, also the General Assembly. One of these reports says that the Asylverfahrensgesetz establishes mesures of deterrance against asylum-see-kers and refugees, that have no parallels in any other country in Europe. But Germany and his gouver-ment and administration was never interessted in the protest of UNHCR and the the fact, that this interna-tional or-ga-nisazion regards the living conditions of refugees in Germany very critically. Quite the reverse: The le-gal situation and the living conditions of refugees in Germany got worse since then. In particular with the more or less abolition of the individual right of asylum and the coming into force of the Asylbewerberlei-stungsge-setz, the Act on Social Benefits for Asylumseekers. Now refugees have to jump with a parachute into Ger-many, if they want to have a chance to get asylum in this land.

These "responsible people" assume, that most or even all refugees, who are living in Germany, come to the country for economic reasons and are looking for financial advantages. All legaslative messures against refugees aim to scare away refugees, who are going to come in the future by bad treatment as far as pos-sible of those refugees, who are already living in Germany. Court decisions, which deal with the the problem of living conditions in refugee camps, name clearly the purpose of the rules: deterrance. And the refugees, who are already living in the country, should not be given a chnce to integrate in the German society. Also the Residenzpflicht is made for this purpose. The Residenzpflicht and the obligation to live in camps hinders the integration within the "host country" and the relationsship with native people, even if refugees live here for years. 1

The official arguments for establishing the Residenzpflicht are: better distribution of public costs and be-ne-fits, maintenance of law and order, better contact to the refugees during the procedure of asylum-seeking and for - thats hard to believe - the public employment office. This official grounds are already inconsistent and the real purposes are uncovered. Because the distribution of costs and benefits is related to the allo-cation of redicence in a certain camp. And why should it be important, that the employment office can con-tact refugees immediatly, if they are principiallly not allowed to work? And whats about law and order? In this official argument the stereotype that most refugees are criminals, who must be controlled, is visible very clearly.

The living conditions in the refugee camps were shaped from clear statements in court decisions of highest German courts saying that detarrance is the main purpose of the law for refugees. The law of asylum and the law for foreigners in general is marked by discriminatory structures. Some of these structures have their origin in the time of National Socialism, e.g. the difucult scheme of permissions acording to the Aliens Act.

At least substandards for refugees were established because of the comimng into force of the Asylbewer-ber-lei--stungs-gesetz. If the the safty of the subsitence level is a question of human dignity, but there are two different rules for Germans and refugees, there would be a logical consequence: The creators of this law are convinced, that there are two different human dignities for Germans and refugees. That is a bad viola-tion of human rights. Because human dignity can not be divided. And in a country in the past gouverned by a re-gime, that named some groups of human beeings "Untermenschen" and acted against them in this way, a discrimination against refugees must not be done. In Germany untill now foreigners were welcomed just as workers, as human ressource and as a good instrument for economic growth. At first as Zwangsarbeiter then in times of the economic meracle as Gastarbeiter now as IT-specialist from India and other countries.

Germany calls itself a state under the rule of law. Because of this fact some refugees have tried to chance their situation with the help of German courts. Especially the problems of Residenzpflicht. With the following result: A district court sat in judgement against a refugee who offended against the Residenzpflicht. The judges had the oppinion that the Residenzpflicht not correspond with the human rigthts being part of the German Constitution. It is a violation of article 1, the right of human dignity and of article 2, paragraph 1, the right to free development of the personality. The freedom to travel- and also the right to move freely all over Ger-many, is seen in our days, especially since German reunification, not only as an ex-pression of general freedom of behaviour, but is percieved as human right as well. To summerise: the FRG critisised strongly the former GDR for not allowing their citizens to travel whereever they wanted; more specified: for not allo-wing them to move to the west. Freedom of traveling, "Reisefreiheit", was one of the most frequently made demands in the demonstrations in autumn 1989. The judges also said: the "Residenzpflicht" contravenes the essence of human dignity because planing for the future is no longer possible - and it has been like this for years. And it is not consistent with mans dignity to subject all refugees to an obligation of residence to scare away supposed "false" asylumseekers. Article 1 of the Basic Law forbids degrading of human beeings as meduims of national scaring away policies. With this arguments the district court was following the state-ments of critical lawyers in Germany.

Supplied with this arguments the district court gave the case to the Federal Constitutional Court to answer the question, if the Residenzpflicht is a violation of constitutional law. In its ruling in 1997 the Constitutional Court came to the following results: The Residenzpflicht is no violation of constutional law. It corresponds to the human rights of the Basic Law, and punishing offences against the Residenzpflicht is lawfull. Because of the possibility to get a privious permit and the possibility to visit the lawyer without permit the refugees are not restricted excessevily. The grounds of establishing the Residenzpflicht are lawfull. The purposes of con-tac-ting refugees immediatly and to secure law and order can only be achieved by puniching offences a-gainst the Residenzpflicht.

An anlysis of criminal statistics shows clearly that the indroduction of the Residenzpflicht was not a useful methode to reduce crime levels amongst refugees. In recent years petty crimes such as thefts have increa-sed. With the backround of coming into force of the Asylbewerberleistungsgesetz with its substandards and the social benefits be granted in kind it is not astonishing. But most crimes comitted by refugees are viola-tions of Residenzpflicht and matters concerning the residence permit. In fact crimes that native people can not comitt. The Residenzpflicht is not a methode of cutting crime as it is touted - and the crime figures verify that such measures against regfugees are not necessary - but these measures are instruments to make re-fugees into criminals. To discriminate, to criminate and to attribute so called marginal groups as scapegoats and branding them as the supposed cause of social and political problems has infortunatly a long and terri-ble tradition in German history. The highest German court obivously was not interested in the protest of UNHCR and the arguments of critical lawyers. A change in jurisdiction of Constitutional Court can not be expected for the near future. Because of this facts refugees no longer can expect help from the German state under the rule of law. 1

II. Situtaion in other contries and the International Law / Law of Nations

In view of this situation in the FRG it is very important, to deal with the situation of refugees in other Euro-pe-an contries and with the possibilities how to protect refugees with the help of international law. In any other country in Europe exists a rule, which is comperable to the German "Residenzpflicht". So the information of UNHCR. Some countries act much more positive against refugees than the FRG does it.

Italy, e.g., has given to 250.000 refugees, who were living as illigals in the land, a residence permit. And the mayor of a big city in Italy supported this action during his election campagne. And he was elected again as mayor by the inhabitants. If a mayor of a city in Germany did the same, he most probably would be mayor never again. The decision of Federal Constutional Court is remarkable for laking connections to internatio-nal agreemants on human rights. Nethertheless this rules are of overriding importance than the Asylverfah-rens-gesetz. But this international treaties have not the same rank as the constitutional law. In other Euro-pean countries the law of nations is of greater importance than it is in the german law system. In Belgium e.g. this law has the same rank as the Constitution. And in the U.K. the law of nations is part of the national law system without an act of transmission as it is necessary in Germany. It is also remarkable that high courts in the U.K. have dicided, that Germany is longer a land, which garentees the safty of refugees, especially of Kurds, because they are in danger to be deported to Turkey.

There are three international treaties on human rights including rights to which are refugees entiteled to.

The European Convention for the Protection of Human Rights and the UN-Covenants on Human Rights. One on political and civil rights and one on economic, social and cultural rights.

The European Convention is of benefit to every person, who lives in the country of a state party. And it does not matter from which homecountry the person has come.

Acording to Article 3 no person must be treated in a degrading and humiliating way. It has to be proofed, if the legal system related with the situation of refu-gees in general is violation of Article 3. One case of viola-tion is, if a state exposes one group of the society deliberatly to poverty and / or discriminatory treatment.

A violation of Article 5, the right of liberty and security in person, is also possible. in this view the connec-tions between Residenzpflicht and the obligation to live in camps are very important. Protocol Nr. 4 to the Convention says in Article 2 "Every person, who have lawfull residence in the country of a state party has the right to move without restriction in the whole country and to choose his residence freely". This right can only be restricted because of public law and order. As shown above there are no such reasons for the Residenz-pflicht and other discriminatory rules.

Art.8 garantees the right to respect private life and family. Right to respect for private life means the right to live without state control, where the person can live according to his own discretion and without the interfe-rence of authorities. There are exception from the residence obligation within the German legislation, howe-ver the procedure provides the authorities with a wde scope of possible decisions. Furthermore Art.8 is al-ready violated by the fact, that refugees must report their private activities in detail to the authorities, as soon as they want to leave their assigned residence area. Also the obligation to live in camps is a violation of Art.8.

In Art.10 and 11 are named very important Human rights: the right of free expression and the freedom of assembly. Since the Declaration of Human and Civil Rights during the French Revolution it is part of the general political attitude in Europe that the freedom of expression and the freedom of assembly are the most important rights within a democracy. Everyone effected by the power of the state should be able to hold his own views and interest against the national power - publicly and in association with others.

Art.14 forbidde the state to discriminate foreigners and also refugees in the use of the rights garanteed in the Convention.

Art.16 give the state authorities the possiblity to ristrict political action of foreigners. However by no means Art.16 may have the concequence that the persons concerned, like here the refugees, havent got any pos-sibility at all to raise awareness for their situation and their problems. Art.16 and the national rules, in Ger-many Article 37 Aliens Act, must not be used to hinder the participation in a peaceful assembly like the refugee congress in Jena. 1

In the UN-Covenants on human rights are rules, which correspond to the cited rules of the European Con-ven-tian. The Covenant on political and civil rights garantees the safty of the private in Art.17. And in Art.19 and 22 are garanteed the right of free expression and the freedom of assembly. Art.12 says that every per-son can move without restriction in his (host-)country and choose freely his residence. And Art.2 is a prohi-bition of discriminatory partices. The UN-Covenant on economic and social rights garantees in Art. 15 the right to take part in social and cultural life and activities without any restriction. Art.12 entitels every person to the maximum of physical and psychical health. This right is violated by the living conditions for refugees, because it is known because of scientific investigations and reports, that these living conditions causes deases and psycholigical problems.

The European Convention has the advantage that everyone who is effected by violation of his human rights can sue the state authorities at the European Court for Human Rights in Straßburg. But first you have to use all legal posibilities in the country you are living. Its a long and difficult way and there are not so many law-yers who are willing to go this long way with a client. And it costs much money. But in many cases it is the only chance. In the case of the UN-Conventions there are no posibilities to go to court. There are Commis-sions which with very bad violations of human rights. But the decisions of this comissions have not the same importance as a court decision.

III. Human Rights - an instrument to change the political situation

The fight for human rights get more and more important, because the actual global economic system is sha-ped by the principle of the maximum of profit and the sensless accumultaion of money and other capital. Be-cause of this principles human beeings are degraded and humiliated just to instruments in the economic process and to resources, which are exploited. And this mediums have to function in the way the system asks them for. This is inhuman because the individual is not accepted in his uniqueness any longer. And individuals or groups of the society, who are not of use to the economic system for its aims are seen as an-noying cost factors, which must be brought to a minimum: by isolation form society, by discrimination, by cutting down their subsistence (level) or total withdraw of subsistence. And refugees are the most effected group because they have no financial and political support or lobby and because the politicians like to abuse refugees as scapegoats to divert the inetrest of the public from their real aims and purposes. And to cover up the fact, that this economic system and its conseqences are inhuman and antisocial. And also "Gurus" of stockmarket, share-holder-business and globalisazion like G. Sorroes notice this negativ development. They have written books as serious warnings.

But nevertheless more and more resonsible politicians are developing themselves into henchman of the pro-ta-gonists of globalisazion. The 29 most important industrial countries still deal with the creation of a mul-tilateral convention on investments. In this treaty the cocerns should become more power and influence than the countries which are state parties to this treaty. They should have a real possibility to influence nearly all sectors of national politics. The concerns should have the possibilty to go to court, if the "host-contries" try to restrict their activities by social and ecoligical standards. The countries of the south would be mostly effected. The freedom of money and capital wuold be more important than the human rights. The figh-ters for total globalisazion see human rights just as annoying obstacles.

Now in Germany starts a discussion about the abolition of the individual right of asylum. At the same time Germany tries to persuade other contries that the Convention of Geneva concering the status of refugees must be changed in a way, which would totaly destroy its structure of protection for refugees. And in the EU Germany fights for the "harmonisazion" of the national laws concerning refugees and foreigners. There are many indications, that this will be happen on the level of German law system.

In the past the UN was more or less successfull with the protection of human rights. But now the political influence of the UN is fading away. When the NATO began the war against Yugoslawia the Secretary Ge-neral said: this is a black day for the human rights and a black day for the UN.

The human rights have just one chance: people who are effected by violation of their human rights and peo-ple who have realized the importance of this rights must associate and start political action. Thats nearly the only way to a human society and to change the situation of refugees in this country. And the refugee congress is an important step on this long way.