Why Germany’s Plan To Deport Criminal Foreigners Won’t Work

Deport them. It sounds like an easy solution. And over the past week it’s been the one Germany’s government has offered to the spate of sexual assaults that migrants allegedly committed on New Year’s Eve. But in practice, Chancellor Angela Merkel will not be able to deport her way out of this scandal. There are just too many legal and practical barriers that protect asylum seekers from expulsion, even when they have violated German law.

“This idea is just propaganda,” says Aische Westermann, a legal adviser to migrants in Cologne, where most of the New Year’s Eve attacks took place. “It cannot be implemented.”

For one thing, many of the roughly one million migrants who entered Germany last year arrived without passports, and it can take years for their home countries to confirm their identities and provide new documents. Until then, the German authorities have no way to establish where a migrant really came from or, when it comes to deportation, where they should be sent back.

On Thursday afternoon, such dilemmas were the focus of an emergency session of parliament in the region of North-Rhine Westphalia, which includes Cologne. “We know the realities,” the head of the region, Hannelore Kraft, told the assembled lawmakers in her opening remarks. “We know that there are many who cannot be deported.” Among the 32 men charged in connection with the New Year’s Eve attacks, 17 are citizens of either Morocco or Algeria, and both countries are refusing to cooperate on deportation cases, Kraft said. “We have the problem that these countries don’t take these people back.”

Under European law, Germany does have the right in most cases to send migrants back to the country where they first entered the European Union, usually Italy or Greece. But that practice doesn’t do Germany much good either.

Just take the case of Murad Kais, a 33-year-old asylum seeker from Tunisia. The German government has been attempting to deport him since 2012, when it first rejected his application for asylum. “Every night I wait for the police to come take me and send me back again,” Kais told me recently outside a refugee shelter in Dresden, where he has lived, on and off, for the past three years.

In that time, police have come to the shelter three times and taken him to jail, where he usually waits for about two months before German officials put him on a flight to Italy. But rather than go through the complex and costly process of shipping him to Tunisia, authorities in Rome always give him a choice: Leave the country in the course of a week – ostensibly back to his homeland – or face a fine of 20,000 euros or one year in jail for violating Italian immigration law, Kais says.

He doesn’t take either option. Thanks to the absence of border controls between most E.U. countries, Kais simply makes his way overland from Italy back to Germany. In Dresden, some of his friends then give him work as a freelance interpreter, making use of the impressive German skills he’s developed in the last few years. “So he’s stuck,” says Jeanette Eckel, who volunteers at the refugee shelter Kais calls home. “He has no chance of asylum in Germany. He is not legally allowed to work. But there is no way to make him go home.”

For German immigration authorities, the options are even more limited when it comes to migrants from war-ravaged countries like Syria and Iraq. Under both German and international law, refugees from these countries cannot be sent home out of concern for their safety. So what is Germany supposed to do with the four Syrians who have been charged in connection with the New Year’s Eve attacks in Cologne? “Are we going to send them home to their deaths?” asks Claus-Ulrich Proelss, the director of Cologne’s Refugee Council, which coordinates assistance to migrants in the city. “Legally that’s a big question.”

And Merkel’s government provided few answers when it presented its deportation plan in parliament on Wednesday afternoon. It was an unusually raucous debate, punctuated by jeers and emotions like the chamber seldom sees. “We find ourselves in a critical phase,” Justice Minister Heiko Maas told the hall of lawmakers, with Merkel seated to his right, wearing a black blazer and an expression to match. “Many citizens are worried about the state’s ability to act,” Maas continued. “We cannot allow that.”

The law he proposed would seek to ease the state’s ability to revoke the asylum status of migrants who break German law and, when they are sentenced to more than a year in prison, to deport them. But in her rush to quiet public outrage in the past week, Merkel may have overlooked, or willfully ignored, the flaws in a legal response that hinges on deportation.