Frontier Justice

by Andy Lamey

  Then the Berlin Wall came down. Millions of Eastern Europeans yearned to start a new life in the West. Germany was an obvious place to do so, but its citizenship laws made it a difficult place to emigrate to for anyone who was not an ethnic German. The constitutional asylum clause, however, which now applied to a reunified Germany, presented an alternative means of entry. Anyone who made a successful claim would be able to permanently live in Germany. But even someone with a weak claim had an incentive to make an application. The asylum clause meant that everyone who sought asylum had to have their claim processed within Germany, a process that could take years. During that time applicants could easily work under the table and earn an income for themselves.

  Germany in the early 1990s continued to receive genuine refugees, both because of the crisis in the former Yugoslavia and because Denmark and Sweden made their own asylum systems more restrictive. Yet refugees fleeing persecution were quickly crowded out by applicants from places such as Bulgaria and Romania. They were overwhelmingly economic migrants seeking a better standard of living, and so did not meet the international definition of a refugee. Yet now they accounted for up to 70 percent of the refugee claims Germany was receiving each year.

  A vicious circle quickly developed. The more people who filed refugee claims, the longer it took for each one to be decided, leading to a further rise in the number of weak claims. Eventually the average processing time grew to three years, long enough for failed applicants to put down strong roots in Germany. “While the number of applicants who actually attained refugee status could probably have been integrated into Germany with relative ease, pressure built up because most unsuccessful applicants failed to leave or were not deported,” Matthew Gibney has noted. “[The] extended time period allowed asylum seekers to become firmly settled in the country, making deportation politically and ethically controversial.”

  The number of applications kept rising and rising until in 1992 it peaked at 438,000. To put this number in perspective, Germany’s post-1989 asylum boom meant that it received two-thirds of all asylum claims lodged in Europe during the 1980s and 1990s combined. As the numbers steadily ticked upwards, breaking record after record, the government went into crisis mode. It introduced still more restrictive measures, including housing asylum-seekers in “collection camps.” But by the time military bases began to be converted for this purpose, too many people were arriving for all but a small portion to be housed this way.

  German politicians were not the only people to step up their efforts as the crisis deepened. So too did political extremists. In 1990 the Far Right engaged in three hundred acts of violence. Two years later the number exceeded two thousand. The violence was particularly prevalent in the former East Germany, which was struggling economically in the wake of reunification. According to Free Berlin University historian Wolfgang Wippermann, East Germans were manifesting the strong form of German nationalism that had been preserved behind the Iron Curtain. “Their tradition of nationalism was unbroken. They were isolated … and criticized now by West Germans for being less capable and less productive, they say, ‘This may be so … but we are Germans!’ ” West Germany saw less violence but a sharper rise in support for the Far Right Republican Party, which reached 6 percent in the polls. Its platform was summed up in flyers proclaiming, “Don’t stone foreigners if you disagree with asylum. Use your vote!”

  Attacks on “foreigners” became increasingly indiscriminate. They eventually claimed seventeen lives, culminating with the firebombing of the home of a Turkish-German family in the town of Mölln, near Hamburg. After the family’s apartment building was set on fire and a ten-year-old girl and two members of her extended family burned to death, someone called the police to take credit for the attack and ended the call with “Heil Hitler!” The attack galvanized mainstream society, and hundreds of thousands of people marched in Hamburg, Munich and elsewhere to condemn the violence. This and other attacks nonetheless contributed to the atmosphere of crisis, in which curtailing the asylum problem was seen as the only way to halt the spread of extremism.

  The crisis posed a special challenge for Germany’s Social Democrats (SDP). The leading left-wing party, it had been out of power for over a decade. Under leader Björn Engholm, the Social Democrats were in the process of moving to the centre and making themselves more electable, in the mould of the U.K.’s Labour Party under Tony Blair or the U.S. Democrats under Bill Clinton. The asylum crisis, however, was a major obstacle in the way of this goal. The ruling Christian Democrats (CDU) and their wily leader, Helmut Kohl, never missed an opportunity to blame the influx of foreigners on the Social Democrats. Kohl and the CDU had long argued that the only solution to the crisis was to change the constitution, which would require the Social Democrats’ support. SDP stalwarts, however, viewed the asylum clause as a fundamental pillar of justice. But now, with a thousand people entering Germany every day, the government was pounding home the message that every new asylum-seeker could be blamed on the SDP.

  At an emergency meeting in Bonn, Engholm told assembled SDP delegates that the party had to act or risk fostering xenophobia. “Let’s not wait until the immigration problem creates new political majorities that we can no longer influence.” His position was echoed by the convention’s only guest speaker, Jewish leader Ignatz Bubis. “We have the freest constitution ever on German soil and never has a democracy lasted so long as the one we have now,” Bubis said from the dais. “But if all democratic parties do not stand together now against neo-Nazism, Weimar cannot be ruled out.” In 1948 the asylum clause had been a means of breaking from Germany’s past. Now the same goal required its abolition. Bubis’s parallel drew applause from the floor, and a majority of the fractured party voted to support changing the constitution. Six months later, Bonn witnessed its historic demonstration and vote. The constitutional amendment won 521–132 and went into effect shortly thereafter.

  The compromise the SDP reached with the government included two measures not directly related to asylum. The commitment to blood-based citizenship was loosened, making it easier for long-time foreign residents and their German-born children to acquire citizenship. A cap was also placed on the number of ethnic Germans that could immigrate to Germany. The centrepiece of the asylum compromise, however, involved amending the constitution to permit two measures that made Germany’s asylum system much more difficult to access. The first was a streamlined procedure that permitted the government to automatically reject asylum claims by applicants from countries with acceptable human rights records. The second was a series of so-called “safe third country” agreements. Such agreements stated that any asylum applicant who had passed through any country neighbouring Germany could be returned to that state and have his or her asylum claim determined there.

  These procedures had a dramatic effect on the number of asylum claims. They dropped to 122,210 in 1994 and kept falling throughout the 1990s. In that sense the asylum compromise solved the crisis. The new arrangement, however, has been decried by refugee advocates. The revised laws permit the automatic rejection of claims by nationals of countries with human rights records that are of debatable acceptability, including the Czech Republic, Romania, Poland, Ghana and Senegal. The network of safe third country agreements also makes it extraordinarily difficult to enter Germany and legally file an asylum claim. One estimate has suggested that 98 percent of pre-1993 cases would have been ineligible under the new rules.

  The end of an era had been reached. “Granting asylum is always a question of generosity, and if one wants to be generous, one has to risk helping the wrong people.” So argued German statesman Carlo Schmid in 1948 when the asylum clause was introduced. “This is the other side of the coin, and this at the same time probably constitutes the dignity of such an act.” After 1993, this sentiment no longer informed Germany’s asylum law. It was replaced by a new arrangement, the spirit of which has perhaps best been captured by Matthew Gibney: “While applying for asylum in Germany is not illegal,
it is virtually impossible now to gain protection without violating immigration laws.”

  Germany’s asylum crisis had numerous causes that sprang out of the country’s unique historical situation. The most obvious one was the fall of the Berlin Wall and the unprecedented influx it triggered. Germany’s struggle to economically integrate East and West after reunification also influenced the course of events, most clearly in the rise of violence in the former East Germany. An awareness of Germany’s authoritarian past, finally, also permeated the debate leading up to the constitutional amendment. Invocations of Weimar during this time reflected not the possibility that Germany might actually become a fascist state—the drafters of the Basic Law succeeded in creating enduring liberal institutions—but rather a common field of meaning. Calls to avoid the route of Weimar were a means of disassociating asylum reform from xenophobia and of mobilizing public opinion, successfully as it turned out, in favour of changing the constitution.

  Yet Germany’s crisis also reflected trends that are thoroughly international. Germany’s status as a bellwether state was noted during the crisis by the writer Günter Grass, who resigned from the Social Democrats when they voted to support the asylum compromise. “I was disappointed because this is the first step to building a castle of Western Europe, beginning in Germany,” Grass said in explaining his decision. Grass’s image of a castle of exclusion is an apt one. From its high towers it is possible to identify three international trends regarding asylum, occurring not only in Europe but far beyond, of which Germany’s experience forms merely one part of a larger, disquieting whole.

  The first trend concerns the situation across Europe. Germany is one of the most prominent members of the European Union, and the sharp contraction of the legal safeguards it extends to refugees is part of a continental trend against admitting asylum-seekers. Consider the following snapshots from the history of European asylum, both during and after the fall of refugee rights in Germany.

  In 1990 three Tamils were “kidnapped” by British Airways staff at Heathrow Airport. After being held against their will they were deported to Sri Lanka without the knowledge of the British government. The incident occurred after the British government introduced fines for airlines that transported inadmissible passengers, making airlines “increasingly reluctant to carry passengers whenever there is the slightest doubt about their admissibility,” as one report put it.

  In 1992, also in Britain, the government introduced visa requirements for Bosnian refugees. The fact that Great Britain had no embassies or consulates in Bosnia at the time made it extraordinarily difficult for people fleeing the civil war in the former Yugoslavia to find asylum in the U.K. The next year the British government introduced a restrictive new asylum bill, the first of six it would introduce over the following thirteen years, each making it more difficult for refugees to obtain asylum. During this period a refugee protection charity released a report documenting that “many asylum-seekers are refused asylum because evidence and proof of their persecution is demanded of them to a standard which is not only impossible to obtain in circumstances of flight, but contrary to international law.”

  In 1998 Belgian policemen smothered to death Semira Adamu, a failed asylum-seeker, during her forced deportation to Nigeria. In a 2003 report triggered by the case, Amnesty International found that although Belgium had abolished use of the “cushion technique” that had been used to restrain Adamu and had resulted in her death, many irregularities still remained in Belgium’s treatment of asylum-seekers. “Several asylum-seekers have been ‘released’ from formal detention but immediately transferred to the transit zone of the national airport by police officers and subjected to cruel, inhuman and degrading treatment—unable to leave the transit zone but without the basic means of survival such as money, food, drink, hygiene products, or access to beds and forced to rely on the charity of strangers.”

  In 1999 a forty-year-old Algerian woman, identified in the German press as Naimah H., arrived at the Frankfurt airport where she hoped to obtain asylum, telling authorities she had been repeatedly raped by Algerian police. Her claim was rejected and, because she lacked identity documents, she spent over seven months being detained at the airport, with occasional trips to a prison and a hospital. After having a nervous breakdown, she hanged herself in a shower room in the airport’s transit zone. At the time of her death, ten other people had been held in the airport’s detention facility for more than a hundred days.

  In 2003 a Human Rights Watch report on asylum policy in the Netherlands found that the government was using an accelerated application procedure, originally designed to weed out “manifestly unfounded” claims, in the majority of its asylum applications. “Certain key aspects of Dutch asylum policy and practice violate international and regional human rights norms,” the report said. “At present the procedure is being used for applicants from war-torn and repressive countries, for those with claims involving complex legal and factual issues, and for those who demonstrate signs of trauma, illness, or difficulties presenting their claims. The process is swift and affords applicants little opportunity to benefit from the assistance of lawyers assigned to them.”

  In a case reminiscent of Naimah H., Ibrahim Zijad, a thirty-one-year-old Palestinian refugee, spent seven months living in the transit zone of the Prague airport. Zijad arrived in the Czech Republic in August of 2003 and tried to make an asylum claim. Citing the fact that he had no passport or other identity documents, Czech officials rejected his application and put him on a plane to Istanbul, from where he had departed, only for Turkish authorities to send him back to Prague. Denied entry to the Czech Republic, Zijad lived off of meal tickets provided by a Czech airline company and washed himself in public toilets until Czech authorities finally granted him asylum. A few days after the government’s decision, Zijad fled to Germany and obtained asylum there.

  In 2006 Switzerland made a “dramatic retreat” from international legal standards when it introduced sweeping changes to its asylum law. Among other punitive changes, applicants who did not produce travel documents or identity papers within forty-eight hours of filing would have their application automatically rejected, unless they could demonstrate some compelling reason for their lack of identification. Birth certificates and driver’s licences were deemed unacceptable for this purpose. A report into Switzerland’s policy characterized it as “contrary to the Universal Declaration of Human Rights, which upholds as fundamental the right of everyone to seek and enjoy asylum from persecution.”

  In 2008 Slovenia introduced an asylum law that saw accelerated procedures replace full hearings for all asylum applications except those the government considered “manifestly well-founded,” or those lodged by children or adults with special needs. The new law also allowed the government to expel persons appealing negative decisions before the appeal had been decided.

  A 2008 survey documenting the world’s worst places for refugees included the European Union because of its excessive no-entry policies. “European countries have crafted policies that essentially deny access by making it as difficult as possible to enter their territory. Countries on the periphery of Europe had the harshest policies, protecting their wealthy neighbors to the north and west, often for money,” the report noted. “The European Union required asylum seekers to file their claims in the first European country they entered, meaning that most had to file claims in countries like Greece, Ukraine, Poland, and Slovenia, which denied asylum at rates far greater than other European countries.”

  In 2009 Greece rejected 99.95 percent of asylum claims at the first interview and formally abolished its appeal process. Human rights observers interviewed people who had tried to make asylum claims only to be imprisoned and forcibly transferred to Turkey, where they were beaten by Turkish police and returned to violent countries such as Afghanistan or Iraq. According to Human Rights Watch, “Greece effectively has no asylum system.”

  These images paint a bleak picture of contemporary Europ
ean asylum. Consider the situation that now awaits asylum-seekers who arrive in Europe by air. Across Europe, they must negotiate their way through so-called international or transit zones. These are portions of the airport in which they are effectively deemed not to have set foot on the soil of the country in question for the purposes of refugee law, and so they are unable to access its court system to enforce their rights. In this way Europe’s airports have become examples of what legal analysts sometimes refer to as “anomalous zones,” or special areas where fundamental legal rules are suspended.

  The concept of an anomalous zone was first used to characterize Guantánamo Bay and the limited legal rights Haitian asylum-seekers were able to exercise there. Since that time, human rights advocates in Australia have suggested that their country has its own anomalous zones. “People have said we have our own Guantánamo,” says Linda Briskman, chair of Human Rights Education at Australia’s Curtin University. “You know how certain parts of Australia were excised from the migration zone? That blocked access to Australian courts … people going to Christmas Island [didn’t] have that full access that they would on the mainland.” In Europe, airports now perform the same grim function as Guantánamo and Christmas Island. A place that for business travellers and tourists conjures up images of layover boredom and holiday anticipation is for refugees a legal and moral limbo.