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Identification of Terrorists in Aliens Law: The Situation in the Federal Republic of Germany

International terrorism has become a global threat. The scale of violence, the logistical networks of terrorists and their long-term, transnational strategy demand that legal instruments constantly be updated.

The Federal Government has responded.

The Counter-Terrorism Act of 9 January 2002 (Federal Law Gazette I, pp. 361–395) amended a broad range of security-related legislation to take account of the new threats. The Act on the Protection of the Constitution, the Act on the Military Counterin-telligence Service, the Act on the Federal Intelligence Service, the Act on the Federal Border Police and the Act on the Federal Office of Criminal Police, but also the Foreign-ers Act, the Asylum Procedure Act, the Act on the Central Aliens Register and other legislation and regulations applying to foreigners have been amended.

The revised legislation aims

- to give security authorities the necessary legal competences,
- to improve the exchange of information between authorities,
- to prevent terrorists from entering Germany,
- to improve measures to document identity in visa procedures,
- to improve possibilities for controlling borders, and
- to do a better job of identifying extremists already within Germany.

In this description, I will concentrate on the major new regulations affecting foreigners.

To ensure that persons who commit or support terrorist or violent acts are not issued visas or residence permits and are prohibited from entering or remaining in Germany, new grounds for denial have been added to the Foreigners Act. The previous grounds for denial were not sufficient for this purpose, as they did not apply to foreigners entitled to a residence permit, such as spouses of German nationals and children joining their parents already resident in Germany. Further, it was very difficult to find out whether foreigners had committed criminal offences not subject to prosecution under German law (crimes committed against non-Germans outside Germany).

Documenting identity is particularly important for the co-operation between diplomatic missions abroad, foreigners authorities and security authorities. The Foreigners Act previously made no legal provision for diplomatic missions abroad to use measures to document identity – including fingerprinting – when issuing visas; such provision has now been made. The possibility to set criteria for exchanging information with security authorities allows checks and documentation of identity to be limited to relevant cases and ensures that the authorities will be able to respond without delay to changes in the security environment.

The new legal provisions affecting foreigners are above all concerned with the following:

1. preventing foreigners with a terrorist background from entering Germany, and im-proving and expanding the authorities' exchange of information about foreigners entering or wishing to enter;
2. making it easier to terminate residence;
3. increasing exceptions to deportation bans and exclusion from refugee status ac-cording to the Geneva Convention.

Regarding 1.

1. Preventing entry and improving the exchange of information between authorities

1.1 Introducing new grounds for denial in the visa procedure (Section 8 para 1 (5) of the Foreigners Act; see annex for text).

Regulatory content

To ensure that persons who commit or support terrorist or violent acts are not is-sued visas or residence permits and are prohibited from entering or remaining in Germany, new grounds for denial have been created. These include activities within and outside German territory which threaten the constitutional principle of free and democratic order, or the security of the nation or that of a Land.

These grounds apply both to visas and to residence permits to which a legal claim may exist, thus also those which may be issued at the discretion of the authorities. In cases where suspicion of terrorist activity is justified, the Federal Republic of Germany's interest in keeping certain persons out of German territory takes precedence over claims to entry based in principle on basic rights (e.g. in Article 6 of the Basic Law), with regard both to the issuing of discretionary residence permits and to the assertion of a legal claim (e.g. family reunification). Article 6 of the Basic Law does not grant an absolute legal claim to residence within German territory, but instead obligates the state only to take family ties into account as far as possible.

Implementation

Diplomatic missions abroad check every visa application against the Central Aliens Register and the database of the Schengen Information System. If database entries indicate the presence of grounds for denial, consultations are held with the central office of the Federal Foreign Office. In accordance with the new provisions, grounds for denial are investigated more closely only when specific reason exists to do so. Suspicion alone is not sufficient.

Exceptions may be made pursuant to the amended Section 64a of the Foreigners Act (see 1.2 below).

At the border, the responsible border authorities decide whether a particular for-eigner can be granted entry to the Federal Republic of Germany or whether he/she will be refused. In doing so, queries are made of the Schengen Information System, the Central Aliens Register and the police information system.

1.2 Requirements for participation in visa procedures and in the issuing of residence permits expanded by including a new legal basis (Section 64a of the Foreigners Act; cf. annex).

Regulatory content

Diplomatic missions abroad are obligated to consult the security authorities (Fed-eral Office of Criminal Police, Federal Office for the Protection of the Constitution, Federal Intelligence Service, Military Counterintelligence Service, Customs Crimi-nological Office) before issuing visas to citizens of certain "problem countries" as defined by administrative regulation (currently 26 countries). This national consultation process complements the Schengen consultation pursuant to Article 17 para 2 of the Convention Implementing the Schengen Agreement.

Implementation

Consultations pursuant to Section 64a of the Foreigners Act and Article 17 para 2 of the Convention Implementing the Schengen Agreement are conducted in a joint procedure. In 2002, roughly 700,000 visa applications were submitted to the Federal Office of Criminal Police (BKA) and Federal Office for the Protection of the Constitution (BfV); about 20% of these were submitted on the basis of Section 64a of the Foreigners Act. For 2003, the total number of visa applications to be checked is expected to be 1.2 million. The main reason for the huge increase in 2003 is that the number of problem countries expanded from 12 to 26 on 1 September 2002.

The security authorities transmit intelligence regarding threats to state security (mandatory grounds for visa denial pursuant to Section 8 para 1 (5) of the Foreign-ers Act), as well as intelligence regarding threats below the threshold of state security. This can be optional grounds for denial of national visas; in the case of Schengen visas, denial is mandatory, if applicable.

According to available reports, the consultation process has proved to be an effi-cient and important instrument in preventing the entry of persons who would con-stitute a security risk in Germany.

In addition, via the consultation process the security authorities are able to gain valuable intelligence concerning the travel and contact persons (hosts) of suspi-cious persons and their milieu. The evaluation process often provides further leads for investigation. For example, hosts living in Germany can serve as contacts to and between several visa applicants. In many cases, important meeting places and contacts can be identified. For example:

- It was possible in a number of cases to prevent persons from entering the country who are suspected of working for enemy intelligence services.

- A Palestinian auto dealer was suspected of supporting extremist or terrorist organizations with illegal income. A visa applicant who named the auto dealer as his host gained the attention of the BKA. When checked, the applicant was revealed to be a money courier carrying €300,000 in cash. This case made it possible to carry out further investigations.

- Checks made in June 2002 as part of the consultation process revealed that an individual with an Arab name given as host for 10 visa applicants from Lebanon was listed in the telephone book under the same address as a limited company. This company – now defunct – figures in an ongoing investigation by the BKA. The German owner of the company is suspected among other things of being the leader of an international ring dealing in stolen cars and trucks. The successor to the now-defunct company was listed in February 2003 as a host for one visa applicant whose name is on a watch list due to his contacts with a person considered a member of Osama bin Laden's immediate circle; the visa applicant is the subject of a BKA investigation in connection with the terrorist attacks of 11 September 2001.

1.3 Measures to document the identity of visa applicants from problem countries and from countries to which returns are problematic
(Section 41 para 3 (5) Foreigners Act; see annex)

Regulatory content

The addition of an amendment allows German diplomatic missions abroad to carry out identification measures. The information is transmitted to the BKA, where it is analysed and stored. The BKA's results are sent back to the mission abroad.

Implementation

A pilot project in Lagos, Nigeria, based on rolled prints of all 10 fingers, ran from mid-May until November of 2003. The necessary IT requirements were satisfied and the project proceeded without difficulty.

The BKA's initial interim results demonstrated that fingerprints taken in Lagos (in conjunction with other personal information) had a high rate of matches with asylum and criminal databases: roughly 30%.

Once this pilot project has been evaluated, this procedure may be applied in other countries, or administrative regulations may make fingerprinting mandatory in problem countries.

1.4 Changes to the Central Aliens Register

Previously, the visa records of the Central Aliens Register contained information only about visa applications; in future, they will also indicate whether visa applica-tions were approved or denied. Further, the law allows law enforcement authorities, in the context of threat prevention, to find out immediately whether other rights to residence apply. In future, they may call up important residence information already upon their initial request. In addition, persons with permanent residence status are to be included in group queries, as investigations following the terrorist attacks in the U.S. demonstrated that even foreigners who have lived in Germany for many years may constitute a terrorist threat. To support the work of the services more effectively, a legislative amendment will in future allow services electronic access to the entire database of the Central Aliens Register.

Expanding the current visa records of the Central Aliens Register to include deci-sions on visa status (see, among others, amendments to Section 29 and Section 30 of the Act on the Central Aliens Register; see annex).

Regulatory content

This instrument allows for better checks of entering foreigners. Law enforcement authorities in particular will be able to determine immediately during general checks whether an individual has entered the country with a valid visa issued by a German mission abroad. And before issuing a visa, missions abroad will also be able to find out whether other missions abroad approved or rejected previous visa applications by the same person.

Note:

With regard to the desire for comprehensive consultations and attention to security issues in visa procedures, it should be noted that there is an implicit tension between the interests of security policy and those of foreign policy.

This tension arises because, in line with the Federal Foreign Office's aims, the ease and rapidity of travel continues to take priority over security policy concerns, as illustrated by the motto: When in doubt, it is better to issue a visa than to deny one. The interior authorities naturally have a different view.

It also has to do with the fact that, in accordance with existing regulations on com-petence, the Federal Foreign Office's authorized missions abroad are responsible for passport and visa matters. Transferring this competence to the Federal Ministry of the Interior runs counter to fundamental policy considerations.

The intensity and strict application of the consultation process in the visa procedure is therefore an ongoing subject of often acrimonious discussions with the Federal Foreign Office.

2. Introduction of extended regulations regarding termination of residence

2.1 Introduction of new grounds for expulsion (Section 46 (1) of the Foreigners Act; see annex).

Regulatory content

The new version allows for the possibility of discretionary expulsion in case of false information provided when applying for a residence permit, temporary suspension of deportation, or visa. By providing false information, the person in question demonstrates that he/she is not willing to comply with our legal order and is wilfully misleading the responsible authorities. In addition, false information may be used to hide possible connections to terrorist associations or movements with a propensity to use violence.

In view of the threat posed by violent, globally active groups, it is therefore neces-sary in these cases to provide the possibility of ordering expulsion. The same is true if the person in question, in violation of his/her legal obligations, fails to co-operate with measures taken by missions abroad or foreigners authorities.

The new version also makes clear that grounds for expulsion may also exist if a uniform visa was obtained under false pretences, not from a German mission abroad, but from a diplomatic mission abroad of another country using the Schen-gen visa, as the authorities responsible for policing cross-border traffic are not able to revoke such visas once the holder has entered the country. However, the authorities must inform the foreigner of the legal consequences of providing false or incorrect information.

2.2 Creation of new standard grounds for expulsion (Section 46 para 2 (4) and (5); see annex).

Regulatory content

(4) states that, as a rule, a foreigner will be expelled if he/she cannot be issued a residence permit because grounds for refusal exist pursuant to Section 8 para 1 (5) of the Foreigners Act (certain activities constituting a threat to security – "danger to state security").

(5) states that, as a rule, a foreigner will be expelled if, in response to questions intended to clear up concerns about entry, he/she withholds information regarding previous stays in Germany or provides false or incomplete information about terrorism-related associations. The foreigner must be informed of the purpose of questioning and the possible legal consequences.

Implementation

Expulsions have already been carried out on the basis of the new provisions.
Example:
With an expulsion order dated 11 September 2003, the Land of North Rhine-Westphalia expelled an Israeli citizen with immediate effect pursuant to Section 7 para 2 (4) of the Foreigners Act read together with Section 8 para 1 (5) of the For-eigners Act, and threatened deportation with a deadline of 15 December 2003. The expulsion order was based on the fact that the Israeli publicly called for violence in the party newspaper of the Hizb ut-Tahrir association, and thus demonstrated his membership in an organization that ideologically supports international terrorism.

3. Additional exceptions from deportation bans and thus from legal status as a refugee under the terms of the Geneva Convention on Refugees (Section 51 para 3 (2); see annex).

Regulatory content

The new provisions expand the possibilities for making exceptions to deportation bans in case of justified suspicions of the following:

- having committed a crime against humanity or
- having committed a serious non-political crime outside Germany prior to being admitted as a refugee or
- having undertaken actions directed against the goals and principles of the United Nations.

In connection with Section 30 para 4 of the Act on Asylum Procedures, applications for asylum in such cases can furthermore be refused as manifestly unfounded. In contrast to the previous grounds for exclusion (Section 51 para 1 (1) of the Foreigners Act), neither a direct threat to the security of the Federal Republic of Germany, nor to the public, nor evidence of a criminal offence is required.

Implementation

The provision is intended to reduce Germany's attractiveness as a safe haven for internationally active terrorists or terrorist networks by denying legal status as a person entitled to asylum or as a refugee under the Geneva Convention on Refu-gees and the accompanying possibilities of residence and mobility in Germany, as well as financial benefits. The provision is also intended to implement in national legislation the UN Security Council resolutions 1269 (1999) and 1373 (2001) calling on all states to ensure that terrorists and their supporters are not granted refugee status.

The new provision is an essential legal tool to prevent foreign terrorists and their supporters from making use of the right to asylum or refugee status under the Ge-neva Convention on Refugees. This was not previously possible, due to the lack of a prior conviction or of an immediate threat to the public or the security of the Federal Republic of Germany. The previous grounds for exclusion in Section 51 para 3 of the Foreigners Act would not have allowed this in these cases.

Problem

Despite the additional exceptions to deportation bans, and although the new provi-sion makes it easier to deny or withdraw asylum or refugee status in these cases, it is often not possible to deport the foreigners in question due to country-specific obstacles precluding deportation. This situation is less than satisfactory.

The decisive issue will be whether the relevant group of persons can be removed from the country also in cases of Article 3 of the European Convention on Human Rights (ECHR) or Section 53 para 6 of the Foreigners Act; that is, whether, as in the case of protection offered by the right to asylum, some limit applies in the con-text of Article 3 of the ECHR, or whether the security interests of the state and the general public even in the case of threat from perpetrators of terrorist violence must take a back seat to the threat of inhuman treatment or torture following deportation. In its decisions, the European Court of Human Rights has consistently referred to the special legal nature of Article 3 of the ECHR as an absolute, elemental principle of law to which no limits whatsoever can be admitted.

In the opinion represented here, when weighing the internal security of the state and its population against humanitarian interests, in case of threat from perpetrators of terrorist violence the interests of the state and its population should take priority. In the interest of the security of the state and its population, there can be no unlimited state obligation to protect perpetrators of terrorist violence. Nevertheless, limiting the state's obligation in principle to protect everyone from the threat of inhuman or degrading treatment in case of deportation will be possible only on very specific conditions. Such limits are likely to be welcomed when the state's other means of protecting itself against terrorism are not enough to deal with threats endangering other equally valuable constitutional rights.

If one were nevertheless to give the protection of the rights named in Article 3 of the ECHR absolute and unlimited priority over the security of the state and its population, as protected by the constitution, this would result in intolerable situations. An absolute ban on deportation beyond the limits of Article 33 para 2 of the Geneva Convention on Refugees derived from Article 3 of the ECHR should be rejected also in the interest of peaceful and beneficial international relations.

The difficulty of removing a person from the country in such cases is demonstrated by the case of Metin Kaplan, known as the "Caliph of Cologne". Kaplan, a Turkish citizen, was granted the right to asylum on 9 December 1992. On 15 November 2000, Kaplan was sentenced to four years in prison for two counts of incitement to crime.

Kaplan's asylum status was then revoked by the Federal Office for the Recognition of Foreign Refugees, based on Section 51 para 3 of the Foreigners Act. Kaplan's protests and appeals against this decision failed to have any effect.

But an administrative court ruled that an obstacle precluding Kaplan's deportation existed pursuant to Section 53 para 4 of the Foreigners Act, as the court believed that Kaplan would face prosecution in Turkey that would not be in compliance with legal principles. According to the court, in the presence of certain conditions an ob-stacle to deportation in the meaning of Section 53 para 4 of the Foreigners Act fol-lowed also from Article 6 of the ECHR.

The Federal Government's appeal, led by Dr. Kay Heilbronner, is directed against this point.

The appeal is based above all on the fact that the considerations used to interpret Article 3 of the ECHR to favour a deportation ban cannot be applied to Article 6 of the ECHR, because the rights derived from Article 6 of the ECHR are not absolute, uncurtailable norms of mandatory law.

The ruling of the upper administrative court sets a precedent for interpreting and applying Article 3 of the ECHR.

The case also demonstrates, however, what intense efforts must be made to suc-cessfully overcome in court, if at all, the assertion of obstacles to deportation. In the Kaplan case alone, there was a repeated exchange of notes between Germany and Turkey, and more than ten high-level discussions with the Turkish side have taken place just since December 2001.

Regardless of the results of the appeal, this case demonstrates that denying or re-voking refugee status will not as a rule mean that the foreigner in question can in fact be sent back to his country of origin or previous residence.