Right to stay instead of exclusion and illegality.

On the 23rd of May 2019, the Federal Republic of Germany celebrates the 70th anniversary of its foundation and the promulgation of the German constitution, called Grundgesetz. Seventy years of a “living” constitution in peace, freedom and an immensely unequally distributed, but enormous prosperity would probably be a reason to celebrate today. But what about democracy based on freedom and equality and the direct application of fundamental and human rights? Its core statement is: „Human dignity shall be inviolable.“ (Art. 1 para. 1 sentence 1 Grundgesetz). The state and politics are thus obliged to enable all those who live in Germany a life in dignity – not only those who are German citizens. The central condition for this is the „freedom from fear and want „, as formulated in the preamble to the Universal Declaration of Human Rights. However in fact, tolerated and illegal immigrants are subject to existential insecurity. They have to fear for their future and their possibilities for a self-determined life are considerably impaired. The anniversary of the proclamation of the Grundgesetz should be an occasion to put an end to this situation. We therefore demand a legal regulation, which grants a residence permit to all tolerated and illegalised humans on the anniversary of the constitution on the 23rd of May 2019.

In our petition, we thus claim “inviolable dignity“ for all those who live among us and who, as non-citizens, are merely „tolerated“, i.e. who “must be endured” for legal reasons with only short and uncertain prospects of residence, as well as those who are referred to as „illegal“ residents.

Politicians of all parties all too often refer to fundamental and human rights without consequences in real life. It is therefore even more urgent today, to take the day to day violations of these rights in our immediate living environment as an impetus and to protest and to point out these conditions which stand in the way of the realisation of fundamental and human rights. So that everything imaginable can be done to abolish these everyday conditions which are contrary to human rights.

„Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.” Article 1 paragraph 1 of the Grundgesetz places the human being at the centre of all public order. It is based on the formulation of the Universal Declaration of Human Rights of 1948, which states in Article 1: „All human beings are born free and equal in dignity and rights.“ Only the consequent realization of the corresponding human rights creates those social living conditions, which concretise human dignity, which in turn precedes the state’s power and which it cannot dispose of. Hence the commitment to inviolable and inalienable human rights as the basis of every human community in Article 1 paragraph 2 of the Grundgesetz.

In short: The inherent dignity of all human beings, which is protected by the constitution, can only be realised through the realization of the human rights of all human beings living in the Federal Republic of Germany. The tie between human dignity and enforceable human rights in the German constitution is a political consequence drawn from the barbarism of National Socialism, under which people were systematically discriminated against, deprived of their rights and dehumanised. It carries within it the knowledge of the vulnerability and fragility of the human being. The knowledge that human dignity can very well be violated!

However, the practical implementation of human rights is in a bad state in the Federal Republic of Germany. Human rights are considered to be open to interpretation and disregarded in particular when it comes to the rights of people of non-German nationality or of people who live and work in Germany but do not possess the necessary official permit for their stay or whose existence is so restricted by residence law that they cannot freely develop.

The existential possibility of being able to lead a dignified life presupposes the validity of concrete human rights, which may not be made dependent on the respective interests of day to day politics or the economic cycle. People generally need the right to a place where they can have a say in political, social and cultural life, in other words everything that concerns them; where they can develop according to their individual abilities and their basic needs. Without the right of residence, their civil rights remain severely restricted. Moreover, only they can violate the „law on foreigners“, a special right that only the „others“, the „strangers“, i.e. the „foreigners“ can violate.

Who is this about?
Illegalised and tolerated persons in Germany: People with second-class rights

  • The Federal Office for Migration and Refugees (BAMF) defines as „illegal“ people without asylum or alien residence status, without toleration and without official registration. These undocumented migrants also include immigrants who have already applied for asylum in another EU state (so-called Dublin cases) and have therefore been rejected in Germany. Due to personal or family ties or the difficult social situation in the Dublin states responsible for them (such as Greece, Hungary and Italy), they nevertheless decided to live in Germany, but their stay here is considered „illegal“.

A reliable number for people living in Germany without papers does not exist. Information circulating in the media usually refers to the number of newly arrived people who have not yet applied for asylum. Since the possibilities of legal migration to Germany in order of applying for asylum are very limited, most people enter „illegally“ and therefore appear as such in the statistics.

  • Another relevant group consists of rejected asylum seekers who are „tolerated“ after the rejection of their application, i.e. there are obstacles to deportation or they may not be deported for family or medical reasons. Also, in certain cases deportation is not permitted to war and crisis zones. Those affected live here with a so-called „toleration“, which must regularly be extended up to a maximum of every six months – often for years (“chain toleration”). It only affects a group of about 170,000 people. Such toleration can be revoked at any time without notice. In principle, tolerated people could thus be deported any day.

The illegalised do not receive a work permit and are thus forced to work under precarious conditions, for example in catering or on construction sites. They clean other people’s homes, care for the elderly or look after children. Some of them have children themselves who have “inherited” the non-status of their parents. What all these groups have in common is that they live in insecurity for the long run. They must remain invisible in order not to endanger their existence in the Federal Republic of Germany. They have no chance to go to court over claims to their employer, they cannot conclude tenancy agreements under their name and there is no health and social insurance for them. They are second-class people because they practically live without rights.

The situation is similar for all the other people who are merely „tolerated“, who have to live in camps and/or with an existential lack of perspective because they cannot be deported for various reasons. They, too, live extremely precariously under the constant threat of official deportation with severely restricted rights – often for years. In the first few months, tolerated persons are subject to a general ban on employment (with special exceptions: e.g. apprenticeship, etc.), which is extended permanently for certain groups due to political guidelines. Usually, they only have a subordinated access to the job market for three years: For a concrete job position, it must always be reviewed, whether a person with German passport or a European Union citizen could take the job. Only thereafter, a tolerated person may receive this job. (This so-called priority review has been suspended for three years in most federal states since 2016).

All this is not only a problem for the individuals concerned, but also for the state and society. A state which aspires to be a constitutional state under the rule of law cannot accept that a significant part of its inhabitants is outside the full scope of the law. It is equally unacceptable that welfare state and health policy safeguards for this group of people should at best be provided by charitable organisations or municipal aid.

It is an illusion to think that this state of lawlessness could be solved with rigor – i.e. by the expulsion and deportation of those affected. The fact that so many people live in Germany today with no or only a very uncertain status demonstrates that the policy of rigor has failed. Therefore, we demand to acknowledge the reality of these people and to legalise their stay. Earlier regulations on the right to stay or old cases were regularly tied to hurdles that were too high (key date regulations, „successful integration“, independent livelihood security) and therefore remained half-hearted or forced those affected to perform tricks in order to at least appear to fulfil the requirements. The democratic constitutional state should not deceive itself: A credible regulation on the right of residency must keep the requirements low so that as many people as possible trust the authorities to reveal themselves to them and apply for a right to stay. An amnesty initiative would be needed for those people without papers, such as was last done in Spain in 2005 or in the USA in 2014.

The state’s treatment of all these illegalised and „tolerated“ people is unjust under the rule of law in the sense of human rights, i.e. under the norm of the Grundgesetz. They are pushed to the outermost edge of society or beyond it. Thus they are denied the protection of their human dignity and the associated right to be part of society. The political consequences of such a state practice for the present and future consist in an accelerated, social authoritarian dynamic, which increasingly disintegrates the social conditions of a life in freedom, equality and solidarity for everybody. The disregard for the „human dignity“ of all those people listed here who are merely tolerated and forced to live in „illegality“ leads us one step closer to a state of barbarism.

Therefore, the 70th anniversary of the German Grundgesetz should be the occasion not only to appeal generally to humane values and to elaborate on the constitutionally protected human dignity in ceremonial speeches, but with this anniversary an unequivocal and effective example should be set for the seriousness of the protection of human dignity and the fundamental rights derived thereof, against nationalism, racism and the „globalization of indifference“.

We therefore call on the Petitions Committee of the German Bundestag to work towards a legislative initiative to grant a residence permit to all those who have only a short-term right of residence and to all tolerated and illegalised persons on the occasion of the anniversary of the Grundgesetz on 23 May 2019, allowing them to establish a humane existence in Germany in accordance with the constitution. Furthermore, the legislative initiative should be designed in such a way that all beneficiaries are provided with the necessary state support.