Deporting refugees out of Germany

None of the perpetrators of the mass sexual assaults and thefts that took place in Cologne on New Year's Eve have yet been identified, but German politicians are responding to the eyewitness reports that the perpetrators were of Arab or North African appearance with proposals to make it easier to deport asylum seekers and refugees who commit crimes.

"If asylum applicants or refugees commit such attacks, that is a blatant abuse of the right to hospitality, and the only consequence can be an immediate end to residency in Germany," said Andreas Scheuer, general secretary of the Christian Social Union. The sentiment was echoed by his party's domestic policy spokesman Stephan Mayer. "I'm convinced that we have to look very closely whether the legal hurdles for deportation of offending foreigners are too high," he told Thursday's edition of "Bild" newspaper.

Interior Minister Thomas de Maiziere was on the same page, telling a press conference on Wednesday that the current legal situation should be reviewed, for at the moment only a three-year sentence conviction has a bearing on refugee status in Germany.

Rules recently tightened

Meanwhile, the other half of Germany's governing coalition, the Social Democratic Party, accused the minister of knee-jerk opportunism. "We don't need to change either the basic right to asylum or the Geneva refugee convention to deal with organized criminality by whoever in Germany," the SPD's deputy chief Ralf Stegner told "Die Welt."

SPD Justice Minister Heiko Maas sought to appease the outrage and clamor for reaction on Thursday by saying that the current legal situation made it "completely conceivable" that, if the Cologne attackers were indeed asylum seekers, they could be deported. "The new, recently tightened legal situation is unambiguous," he told the "Funke" media group. "Even during a running asylum procedure, asylum seekers can be deported as a result of a prison sentence of one year or more."

In fact, the legal situation is a little more complicated - as highlighted by the initially confusing disparity between the three-year hurdle mentioned by de Maiziere and Maas' one-year hurdle. That's because the one-year hurdle only applies to those seeking asylum, while recognized refugees are treated like any other foreign national living in Germany - and can thus only be deported if they receive a three-year sentence.

What German law says

The relevant law is in Section 60 of Germany's Residence Act: "[The right to refugee status] shall not apply if, for serious reasons, the foreigner is to be regarded as a threat to the security of the Federal Republic of Germany, or constitutes a threat to the general public because he or she has been finally sentenced to a prison term of at least three years for a crime or a particularly serious offense."

This, de Maiziere suggested, is something Germany should consider changing - and Cologne-based lawyer Nikolaos Gazeas thinks that, knee-jerk or not, it's a sensible suggestion. "This is an idea that I think is definitely worth considering," he told DW. "A lot has to happen to get three years here in Germany, and a one-year prison sentence is often also something very serious, so I think it's justifiable."

But the problem remains - where to deport people to? Germany's Residence Act also prohibits deportation to countries where they may face serious harm, the death penalty, or human rights abuses. If the Cologne attackers do indeed turn out to be foreign nationals, the criminal justice system may well have to tackle this problem. But there is a solution, according to Gazeas. "In such cases, it is possible to deport people to other countries," he said. "The receiving country has to agree - but that isn't unusual, especially with North African countries. In that case, Germany has to negotiate with the state in question about whether it is prepared to take in person X."

Lifting the right to asylum

But other lawyers are more cautious about playing loosely with the right to asylum, which is enshrined in the German constitution as well as the Geneva Convention. Oda Jentsch, who represents asylum seekers herself, says the Residence Act can't just be used to deport someone that easily. "It's not just about whether they've been sentenced to one year or three years," she told DW. "It's about whether they represent a danger to the public, and it's not just about whether what they did means they represent a danger, but whether they will still represent a danger in the future - and the whole point of a prison sentence is that you are trying to rehabilitate them."

"I think it is a bit far-fetched to say that a pick-pocket or even a rapist represents such a consistent threat to the public that you remove their right to refugee protection," she said. "You could say that contradicts the whole spirit of the Geneva Convention."