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Information on the residential obligation pass law ('Residenzpflicht') in Germany

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15.Jun.02 - introduction and history by the VOICE

[1] Why freedom of movement?

The first issue of the newsletter, D-A-S-H forward, presents debates, events and projects that deal with the so-called Residenzpflicht, while exploring methods of media communication and networking. The legal residency restrictions for asylum seekers are a flagrant abuse of their right to freedom of movement. Throughout the duration of the asylum proceedings, which often last for months and sometimes for years, they may only leave the district in which they are registered with an "Ausnahmegenehmigung" (special permit). Plans are currently in the pipeline for extending the residency restrictions to other groups of people, like civil war refugees and people who, for humanitarian reasons, are not deported. At the same time, the counter-movement is strengthening. Within the past year, an ever-increasing number of self-organized refugee associations and youth groups have been organizing a variety of activities and events against the residency restrictions, sometimes taking advantage of possibilities offered by the internet. Some of these activities will be presented in this newsletter under the heading, D-A-S-H notes. In addition, the young journalist, Anke Schwarzer (a freelance journalist for the Frankfurter Rundschau, among other papers), has contributed an introduction to the issue, an overview of the activities up to now and a look at current legislative plans.

[2] What is Residenzpflicht?

Shopping at the nearest supermarket, visiting relatives, taking a short trip with the German railway's reduced week-end ticket or playing football on the field across the street - everyday activities like these can prove the undoing of refugees in Germany. Since 1982 asylum seekers whose applications are still being processed have been subject to residency restrictions in accordance with the Asylverfahrensgesetz (German law governing asylum application procedure) 56 - the so-called Residenzpflicht. They may not leave the district in which the Ausländerbehörde (immigration authorities office) at which they are registered, is located. As the legal proceedings determining asylum cases can take a very long time, the regulation can lead in extreme cases to a refugee being subject to this law for up to ten years. Getting a permit for a small trip is extremely difficult. Sometimes asylum seekers even have to pay for their walk in the park or visit to the doctor; a permit can cost between 15 and 20 marks.

It gets even more expensive if they are found by the police outside of the county in which they are registered. And that can happen quite easily, as the "Sondergesetze für Füchtlinge" (special laws regarding refugees) give the police sufficient grounds for picking out foreign-looking people in train stations or highway rest areas and demanding their ID. Police raids in housing for asylum seekers are also a matter of routine.

Aside from the police, bureaucrats in the government offices responsible for refugees also make life difficult. They have the power to determine where a refugee can live, and where not. They decide - this varies from district to district - where asylum seekers may travel, how often they can visit a friend, when they can see their relatives, and if they can go to political meetings.

The following points are made in the official justification of Residenzpflicht: maintaining public order and security, better distribution of public costs, and the ability to reach asylum seekers more quickly during asylum proceedings.

[3] What are the consequences of residency restrictions, or the so-called residenzpflicht?

Restriction of asylum seekers' freedom to travel has created invisible new borders in Germany. Politically drawn "intra-German borders" essentially limit the free development of the asylum seeker as a person. Residenzpflicht restricts the asylum seekers' freedom of assembly and freedom of speech. It makes it difficult to keep in touch with friends and acquaintances. Refugee children cannot meet other children in a nearby city. Freedom of religion is also restricted when asylum seekers are barred from going to the mosque or to congregation meetings. For many asylum seekers, the right to information can only be observed in distant cities because the area in which they are forced to reside is often a political and cultural void.

Residenzpflicht not only restricts refugees' freedom of movement and humiliates them when they have to beg bureaucrats for permits or when they are controlled by the police. Residenzpflicht can also be life-threatening. The consequences of residency restrictions are often desperate escape attempts that can result in injury or death. On the evening of October 7, 2000, 2 chairwomen of the African Refugees Association, afraid of being convicted of violating Residenzpflicht, jumped out of a 4th story window in a private house in Hamburg. The two women were alone in the apartment when the police rang the bell. As asylum seekers from Togo, they possessed valid residency papers for the Federal Republic of Germany but were registered as refugees in a different state. In jumping out of the window, one woman broke several vertebra. The second woman ended up with a fractured spine and must now face the prospect of life in a wheelchair.

Repeated violations of the Residenzpflicht can result in a prison term of up to one year, a fine of up to 5,000 German marks or deportation. According to the Landratsamt (county government) of Wartburg, traveling without a permit constitutes a considerable threat to public order and security and is in significant conflict with the interests of the Federal Republic. Repeated violations of the Residenzpflicht should therefore lead to the asylum seeker's deportation. No explanation is offered as to exactly which body of law is supposedly endangered by traveling without a permit. The bureaucrats argue along more general lines, claiming the need for deterrent measures. Other foreigners should be shown their place and "made to behave in accordance with the laws of the Federal Republic of Germany." Especially in combination with forced residency in so-called "Sammelunterkünften" (group housing), often located in remote areas, Residenzpflicht functions as a legislative tool of German deterrence policy.

The Komitee für Grundrechte und Demokratie e.V. (Committee for Basic Rights and Democracy) condemns the legal sanctioning of refugees simply because they've crossed county borders. The committee declared in October 2000, that "the Sondergesetze (special laws) against refugees are discriminatory and infringe on basic rights" and that "abolishing them is the only appropriate action that the political class can take in the much touted campaign against right-wing extremism, 'Ruck gegen Rechts'."

A map that tried to show refugees' freedom of movement would look like a map of the small German states of the 18th century, said Bernd Mesovic of Pro Asyl in April, 2001. He continued, "that - the 18th century, that is - is where the word, 'residenz' (residency), belongs. Refugees, though, don't reside; they live in temporary living conditions, as dictated by the law regarding minimum standards for communal housing. This is intended to show them and others that their stay is only temporary (even if it lasts years)." Since the 1980s, the UNHCR, or the United Nations High Commissioner for Refugees, has also been critical of the "unique deterrence measures used against asylum seekers".

The refugee organisations, The Voice and the Brandenburger Flüchtlingsinitiative, compare Residenzpflicht with the pass laws of the South African apartheid system. "Refugees in Germany are victims of the Residenzpflicht, a system of residency assignments and restrictions, comparable to the era of racist apartheid in South Africa. Germany, too, has its 'pass laws'. Refugees are forbidden to move freely in Germany. They may not leave the county to which they have been assigned and are obligated to live in the refugee housing that has been assigned to them (often located in remote areas or in the middle of woods)."

Many refugees point out that Residenzpflicht (in addition to many other laws such as the so-called "Asylbeweberleistungsgesetz") not only restricts their rights but also marks them as "not equal" or "different", "less important" and "weak" in comparison to Germans. Cornelius Yufanyi of The Voice says, "the laws make us - the refugees - weak and that is also how the Germans see us. These laws fuel the violence of the far-right." And Christopher Nsoh of the Brandenburger Flüchtlingsinitiative comments, "German laws have generated [a class of] 'inferior' people."

[4] The history of and perspectives on resistance against Residenzpflicht

Asylum seekers affected by Residenzpflicht have been trying to defend themselves against restrictions on their freedom of movement ever since the measure was introduced in 1982. For a long time, their efforts were limited to individual actions: some simply didn't ask for permission; others took the legal approach and fought for their permit in court. Many others, however, acquired criminal records after being caught in police checks and charged with committing an offense. Only very few judges refused to punish a person only because he or she had crossed invisible borders within Germany. Individual judges have questioned the legality of the regulation and have instituted proceedings in the Federal Constitutional Court.

The Federal Constitutional Court took up the issue of Residenzpflicht after the district court of Kirchhain/Hessen decided that a case they were trying possibly involved offenses against the basic law of the constitution. A verdict was reached in 1997. The German Supreme Court decided that neither the obligation to remain in one's allocated district, nor the fact that a violation of this is punishable by law, contravenes the basic law of the constitution.

The change from individual protest into a political campaign can be traced back at the very latest to the Caravan Refugee Congress, which took place in Jena in the spring of 2000 under the motto, "Together against deportation and social ostracism". Even in the run-up to the congress, it was clear how strong the interest of certain governmental offices was in not letting asylum seekers go to this political meeting. Cornelius Yufanyi, of the refugee organization, The Voice, and one of the congress organizers, estimated at the time that half of the asylum seekers who wanted to go to Jena were prevented from doing so. The Ministry of the Interior in Brandenburg had demanded of the "Ausländerbehörde" (immigration authorities) that they not issue travel permits. They claimed that "participation is not a matter of urgent public interest, nor does the rejection of permission constitute undue hardship." Participation was denied to asylum seekers in other states as well. The refusal to grant permission was based on Residenzpflicht.

After the congress, refugees already engaged in the issue intensified their efforts to inform other asylum seekers and to organize themselves. Signatures were collected, petitions were started and demonstrations, like the one on October 3, 2000, in Hanover, were organized.

The refugee organizations have changed their strategy to one of civil disobedience, with the following demands: no one should have to beg for a permit; no one should have to pay even a penny's fine. The trial against Cornelius Yufanyi contributed greatly to the campaign's success in making Residenzpflicht a public issue. The asylum seeker from Cameroon had repeatedly refused to pay money for his freedom of movement. The plan was to take his case to the European Court and to have the German practice of Residenzpflicht tested in court, in the well-founded hope of causing its downfall there.

His lawyers, however, do not feel that Yufanyi's case is suited to that purpose. In order to be taken to the European Court, a case has to have gone through the courts in lower jurisdictions. However, when refugees go to court over the administration's refusal to grant them a travel permit, they are usually granted the permit. In this context, Michael Meier-Borst, the asylum rights expert of the Federal Commission for Foreigner Relations, pointed out that the bureaucracy's implementation of the law is "unnecessarily restrictive".

But even if refugees always have the possibility of legal recourse should their application for travel permits be refused, it is still true that this humiliating practice makes day-to-day life nerve-racking. The campaign therefore continues to call for less harassment and less expensive procedures, so that refugees can visit a friend in another town or participate in a political meeting. They should refuse to apply for travel permits and to pay fines. Refugees should go on the offensive and bring their violations of the law to public attention - for example by giving themselves up to the police voluntarily.

In the meantime, Cornelius Yufanyi has received mail from the district court of Worbis. The judge wants to abandon proceedings against him because of extenuating circumstances. In this case, he would have to pay for the costs of the trial himself. Yufanyi would have to agree to abandoning the case, but he refuses to, as his goal is not his own acquittal, but rather the abolition of Residenzpflicht. If the proceedings are continued, the asylum seeker from Cameroon could face a prison sentence of up to one year.

There are other refugees in addition to Cornelius Yufanyi who are prepared to take their protest against Residenzpflicht to court. On February 6, Sunny Omwenyke from Nigeria, one of the organizers of the refugee congress in Jena and an activist in "The Voice", stood trial for having violated Residenzpflicht. He too refused to accept a penalty or fine for the right to freedom of movement. The same also applies to an asylum seeker from Cameroon who is currently living in Edewecht near Oldenburg.

Bringing the issue to public attention is not the only reason the people standing trial are going on the offensive. They also hope to encourage other refugees to defend themselves against this discriminatory law.

In addition to the trials' success in gaining publicity for the issue, the campaign in Berlin, from May 17-19, also contributed to greater public awareness, even if resonance in the media was negligible. On this weekend, the attending refugees hadn't asked for travel permits. Around 300 refugees met in Berlin in order to participate in a "nationwide campaign against Residenzpflicht". 1000 supporters attended the demonstration on May 19, and were joined by a further 1,200 asylum seekers, who came by bus from cities all over Germany, including Suhl, München, Meiningen, Mühlhausen, Rathenow, Hamburg, Karlsruhe und Magdeburg. Most of the 1,200 came originally from African countries.

Many refugees saw their refusal to apply and pay for the "vacation permits" that would allow them to attend the campaign as "an act of civil disobedience". They camped in tents (insofar as the police allowed this) on the Schlossplatz, a public square located in the center of Berlin, and drew attention to their situation with exhibitions and flyers.

On the first day of the campaign, a six-person delegation presented a "Memorandum on Refugees in Germany" to Annelie Buntenbach, a Member of Parliament for Bündnis 90/Die Grünen (the Green Party). The memorandum was signed by 250 organizations, including Pro Asyl and several refugee councils, and declared that "the German government cannot claim to fight racism while simultaneously allowing racist laws to fan of the flames of hate."

The initiators of the campaign, The Voice and the Brandenburger Flüchtlingsinitiative, declared it a success. In spite of intimidation tactics used by the Ausländerbehörden (immigration authorities) before the campaign started and police repression, a great number of refugees succeeded in coming together at this meeting. (In Jena, among other places, a bus was stopped because the police wanted to have the names of the asylum seekers.) The organizers were, however, disappointed at the low level of media interest. According to Cornelius Yufanyi of The Voice, the permanent presence of the police (whose harassment tactics included body searches, attempted arrests, and a ban on sleeping on the public square) also created a threatening atmosphere and hindered discussion among the refugees.

He also criticized parts of the German antiracist movement, saying, "a lot of them wait for us, just because they don't know what they can do themselves." It's necessary, he says, that those people who are not directly affected also develop their own positions on and forms of resistance to the issue of Residenzpflicht. Cornelius Yufanyi is afraid that the refugees' ability to mobilize is overestimated. For them, it still requires enormous effort to resist intimidation attempts and to take on the risk of being caught violating Residenzpflicht.

Many activists are exhausted but definitely want to continue. The next moves are still being discussed, but most of the activists are certain that no further progress can be made with petitions and memorandums. "We won't change anything if we don't get more radical," says one refugee. The Association against Residenzpflicht - made up of The Voice, the Brandenburger Flüchtlingsinitiative, the Berlin Antiracist Initiative, the Hamburg African Refugee Association, the Caravans and other initiatives and individuals - envisages another central campaign in Berlin for next year. Some activists would like to take the offensive further this year, in order to be taken more seriously and to be able to realize at least some of their smaller goals.

Becoming resigned is sometimes a great problem among politically engaged refugees, says one of the activists. He explains, "since we've begun, the situation has gotten worse and worse." Aside from chronic money problems, the (potential) deportation of fellow activists makes life difficult for the refugee organizations. Some of them are assigned to other residences; some are taken into custody pending deportation; some have to go underground and become illegal. "We make one step forwards," says a member of The Voice, "and the state pulls us 20 steps back." Residenzpflicht is certainly not the only or the greatest problem, but in all campaigns, meetings and demonstrations, asylum seekers are severely hampered by the problem of movement restrictions and associated repression.

"If we abolish Residenzpflicht, then we can fight better against deportations," says the activist of The Voice. Although they do not want to mobilize only refugees, the primary task for refugee organizations continues to be making contact with and establishing networks of asylum seekers, as well as visits to "Asylheime" (allocated refugee residences). It is their goal to develop as close a network of regional groups as possible. Decentralized activities related to the issue of Residenzpflicht take place in various cities and regions. And the Caravan for the Rights of Refugees and Migrants is supposed to tour through Germany again in 2002. Their activities will address, among other problems, that of Residenzpflicht.

[5] No change in sight: plans to extend and not to abolish the law are in the 'pipeline'

Refugee resistance against Residenzpflicht leaves politicians cold. During negotiations of EU minimum standards regarding the admission of applicants for political asylum, the German Minister of the Interior, Otto Schily, strongly fought for Germany to be allowed to continue its restrictions on freedom of movement.

The plan, however, is not simply to retain Residenzpflicht as it currently stands, but to expand it to other refugee groups. In the spring of 2001, the German states of Hamburg and North Rhine-Westphalia, governed by a coalition of the center Socialist and the Green parties, presented a bill to the Upper House of Parliament. This declared that people who illegally entered the country, but who cannot be deported and are therefore tolerated by the authorities (in German "geduldete AusländerInnen", hereafter referred to as "tolerated foreigners"), cannot freely chose their place of residence. According to the bill, they should be assigned to states and local districts in accordance with quotas.

A federal distribution arrangement currently exists which apportions the refugees first between the states and afterwards assigns them to county or local districts. This arrangement and associated residency restrictions ("Wohnsitz- und Residenzpflichtauflage") have, until now, only applied to applicants for political asylum. Tolerated foreigners (illegal immigrants who cannot be deported) are also subject to residency restrictions but these usually apply at the state level and not at the level of counties or smaller districts. Tolerated foreigners, like war refugees from Bosnia or Afghanistan, as opposed to applicants for political asylum, could until now choose the place in which they submit their application for toleration and thereby choose their place of residency within Germany. In practical terms, therefore, their residency restrictions did not effect daily life to the grave extent that the asylum seekers' restrictions did.

If this bill is made into law, tolerated foreigners' freedom of movement would be severely restricted. The bill envisages a nationwide distribution of tolerated foreigners in accordance with the ratio that is used for applicants for political asylum. The reason given for this planned regulation is that the financial burden carried by the states is unjust. "The urgent need for action stems from the monies that can be collected nationwide. Not passing distribution regulations may lead to noticeable redistribution of costs between the states." The following statement was made in the official explanation for the new bill: "Like applicants for political asylum and (civil) war refugees, illegal immigrants do not have a right to live in a particular state or place."

Georg Classen, of the Refugee Council in Berlin, points out that government offices in the past have tried to redistribute tolerated foreigners by illegally refusing to register them, to give them the official status of tolerated foreigner or to give them welfare benefits. In addition, he says, they were advised to initiate asylum proceedings, which are not allowed by law to war refugees.

The new law is not yet in force. Although the federal government fundamentally supports a "more just distribution of the costs" faced by states, it says that many of the points are not well worked-out and that these must first be clarified. Questions of technical implementation and financing are still open. The procedure for photographing and fingerprinting refugees for police records still has to be worked out, as does the issue of legal council and the handling of exceptional cases.

The political party, Grünen/Bündnis90 (The Green party), have no fundamental problems with the idea of supporting the new bill. According to the paper, "Änderungsbedarf aus grüner Sicht" ("Necessary changes, as seen from the Green perspective"), they would support it once the Minister of the Interior promised to renounce his previously publicly stated reservations about the UN Convention on the Rights of the Child. In addition, the Greens suggest introducing various points intended the weaken the bill. They argue that "humanitarian hardships" should be considered, that a clearer definition of those affected be created, and that the former East German states should not have to bear additional costs. Rather than Residenzpflicht, they have an arrangement in mind that is comparable to the residential assignment laws that apply to the emigrants of German origin from Eastern European states. The need to get a permit in order to leave the district of the Ausländerbehörde (immigration authorities office) would thus be made superfluous.

The PDS rejects the initiative of Hamburg and North Rhine-Westphalia. "Instead of moving people around like figures on a chess board, the costs of accommodation and care could be balanced at the federal level," says Ulla Jelpke, the Speaker for Domestic Affairs of the PDS parliamentary party. The PDS position is that Residenzpflicht should be abolished. In order to accomplish this, they have already introduced a bill that would repeal the measures in the Asylverfahrensgesetz (law regulating asylum procedures) that contain residency restrictions, especially the so-called "Landkreisregelung", which imposes residency restrictions at the county level. The PDS, however, have never agreed with the principle of allowing refugees to choose their own place of residency. They state that "limitations on the geographical range of residency are not necessary to insure a fair distribution of costs. After they [the limitations] have been done away with, the regulations that determine how asylum seekers are assigned to their place of residency will continue to exist."

Even if the law has not become an issue of great priority among most politicians, the public is now at least aware that such a discriminatory law exists in Germany. Just a year ago, many politicians did not know that refugees were subject to residency restrictions, or what these restrictions were. It is thanks to the Campaign against Residential Restriction Law, launched by the refugee organization, The Voice, in coordination with The Brandenburger Flüchtlingsinitiative and an association of various other initiatives, that this public awareness has

[6] Freedom of movement - an essential human right

It was under this motto that a competition and the exhibition, "Denk-Mal", took place early this year in Freiburg. In their exhibited work, the participating artists dealt with the issue of Residenzpflicht. On January 27, 2001, an independent jury awarded the prize to the work of Bernhold Baumgartner, which the artist describes as follows:

The foundation consists of concrete mixed with uneven, rough stones. The base has an area of three by four meters and corresponds to the amount of living space, including traffic areas, provided by law for one refugee. The 4 1/2 square meters of the inner cube delineate the living space allowed for one person. There are metal bars in intervals of 20 cm that compose a labyrinth whose walls range from a height of 1.2 to three meters. The labyrinth symbolizes the arbitrary restrictions and limitations of asylum laws. At the entrance, one has a sense of the structure or order of the bars, but as one moves into the interior, the barriers become more and more confusing. It is impossible to escape surveillance and freedom of movement is restricted from all sides. Seen from a distance - from the perspective of the outsider - the perils and traps of the laws are hard to recognize. But the person who is imprisoned within them experiences confinement and hopelessness. Refugees in exile live without protection in a "house without a roof" and "without windows"...

The jury and organizers of the exhibition suggest that the memorial be erected near the Landratsamt (county government offices) of Freiburg. The Foreigners' Advisory Council in Freiburg passed on this recommendation to the district council. The city, however, has refused to erect the monument, on the grounds that it cannot support any art that protests against laws currently in force.

the VOICE Jena