There was great excitement in the summer when Nancy Faeser’s (SPD) Federal Ministry of the Interior published a “discussion draft” on the subject of deportations. Among other things, it stated that they intended to deport suspected members of so-called clan structures – even without a criminal conviction. On suspicion, so to speak.
There was criticism and irritation. The idea suddenly came reassuringly from the ministry and did not come from the traffic light itself, but from federal states governed by the CDU. In addition, “whether such a regulation is proportionate and the regulatory goal can be achieved without unwanted side effects” still needs to be clarified in the SPD-led ministry. And now, three months later: The clan passage from the “discussion draft” can be found exactly unchanged in the government’s current migration package.
What is a clan anyway – and what isn’t?
Accordingly, a foreigner should be expelled in the future “if facts justify the conclusion” that he “belongs or has belonged to” a criminal organization within the meaning of Section 129 of the Criminal Code; even if no criminal court has been able to clarify this so far. This plan is still questionable in terms of the rule of law, criticizes migration expert Andrea Kießling, who teaches at the Goethe University in Frankfurt am Main.
Criminal organization is a very vague term. This requires legal clarification. “In criminal law, it is very controversial as to when a criminal organization can be assumed, as can currently be seen in the discussions about the ‘Last Generation’,” says the law professor. Some public prosecutors in Germany currently consider the “Last Generation” to be a criminal organization, others shake their heads about it and there are no final verdicts. “The immigration authorities will not be able to assess this any better,” warns Kießling.
The term “clan” is similarly diffuse and difficult to define, adds Mehmet Daimagüler. The lawyer is the federal government’s representative for the interests of Roma and Sinti. “If people are assigned to a ‘clan’ without the prerequisites of Section 129 of the Criminal Code having been established in court, this leads to an expulsion that is ultimately based on descent and family affiliation. This contradicts elementary ideas of criminal law and the rule of law as a whole,” he warns. And: “An expulsion is a state measure of existential importance, the consequences of which not only affect those directly affected, but also have consequences for entire families.”
The traffic light plan stipulates that the immigration authorities can make do with concrete assumptions. This is pointed out by Kilian Wegner, criminal law expert at the European University Viadrina in Frankfurt (Oder). The traffic light bill speaks of mere “members” of a criminal group, instead of demonstrably active “members” of these groups, as was previously the case in the Criminal Code. That is completely without contour, says Wegner. In addition, the traffic light wants to ensure that a lower “proof threshold” is sufficient in the future: the fact that someone belongs to a criminal organization does not have to be certain, but can be suspected on the basis of concrete evidence.
The current federal government bill makes it clear that “a family relationship or the same name” is not sufficient evidence. Nevertheless, there is a risk that, for example, the running of a shared household or close personal contact will in future be sufficient evidence of a supposed “affiliation” – even if it is not enough for a criminal conviction – due to the diffuse terminology, warns Kilian Wegner.
A similar rule already exists for terrorist suspects
It would not be the first time that German immigration law orders expulsions based on the mere suspicion of a crime. This means that there has not yet been a criminal trial in which the accused and his defense attorney have been able to present counterarguments. So far, such a regulation already exists for terrorist suspects. However, an exception applies if a terror suspect has “recognizably and credibly refrained from acting in a manner that endangers security”. Such an opportunity to avoid expulsion is now not provided for “clan” members.
Law professor Kießling criticizes this. The federal government wants to deport suspected “clan” suspects even more relentlessly than terrorist suspects. Her colleague Kilian Wegner also demands that the state must give foreigners “the opportunity to turn back” here too.
The Federal Ministry of the Interior has always emphasized that the decision of an immigration authority to classify someone as a supposed “member” of a criminal organization will remain fully subject to judicial review in the future. In short: no one will be defenseless. The courts could take a close look at whether “facts really justify the conclusion” that someone belongs to a “clan.” But law professor Kießling doesn’t quite accept this. “Of course you can always make that argument if you tighten the law.” This is still an aggravation.