Desis in Deutschland / 'Foreigner Policy' and Applied Law in Germany

3.3. Phase III: litigation I (1976-9)

In order to get the case out of the arbitrary, impenetrable world of the administration and to be able to bring it to the courts Dr. Agarwal at this stage of hardened positions decided to let his friend and legal advisor Dr. Herzog appear also officially, thus indicating to the administration that it had to use legal means to win its case. The young lawyer after studying the relevant material was quite optimistic that they could soon be successful and based all his arguments on the legal issues, in particular the infringements on rights, relevant in the specific case. The town administration, thus being put under pressure themselves, reacted to the arguments by repeating its concerns about development politics and the discrimination of Germans, constructing a reasoning why scholarships were meant for development politics even if this had not been mentioned openly and how this formed a sufficient obligation to repay it, and finally by discussing the faults of Dr. Agarwal's former actions. In particular, the town now referred to the declaration about his intention to return to India he had signed under force on returning from Oxford in 1969 and which so far had not posed any problem. Instead of discussing in terms of legal concepts, the town thus tried to assemble as much evidence, independent of its applicability to the particular case, against the applicant as possible and doing so illustrated quite clearly its xenophobic point of view according to which foreigners should be grateful for all that had been done for them rather than dare to claim their rights.

"... This state aid begins for such persons already with the permit to stay here temporarily for education or training purposes. It is continued with the very cost intensive provision of university and training places and potentially with the allocation of education aid as well as the repeated permits to stay for education purposes. From this results the further demand that the thus benefited appreciate this generous aid of their guest country without any further contractual regulation by aiming for their professional goal through exceptional achievements in the fastest possible way and in particular by returning after their finishing their education to their home country.

... Considerable interests are thus given in his case because he has blocked for his studies 6 years and for his further education 2 years education places without meeting his 'explicitly and compulsory given promise' to return to this home country." (from the Widerspruchsbescheid of the town, dated 05.04.1977/ own translation)

Although the lawyer set out to disprove the town's arguments, showing that in the specific case development politics was not impaired and that the town administration in any case was not competent to decide on this issue, that the applicant faced many hardships by not getting the German citizenship without this helping development issues, that the refusal of naturalisation was also disadvantageous to the German state and that most importantly of all the administration's arguments were not in line with the existing laws, in this first stage of litigation the lower court followed the official line of reasoning by focusing on the abstract interest of the state.

By now the main issues of the debate were clearly the following:

i) Is it necessary to take into account the facts of the specific case, in particular the restrictions of the rights of the applicant, or is it sufficient to refer to the general interest of the state?

ii) In how far can the naturalisation be considered as a proof of the failure of the intended development aid?

For the town administration and the courts the answer to these questions were still clear. They considered the state's abstract interest as unquestioningly supreme and thus considered it superfluous to consider any specific facts.

"Whether development politics interests of India are infringed upon or not is of no consequence in this. It is also not the task of the naturalisation authority to check specifically and carry out in each individual case the 'international relations'. For this it has to observe its regulations. The demands of the plaintiff would lead to an exaggerated red-tapism and administrative perfectionism for which the citizen today has no more sympathy.

... the bestowal of the German citizenship is generally only possible when a public interest in the naturalisation is given.

... Ultimately also basic rights can be restricted if this lies in the interest of the state." (from the rejection of the appeal by the town to the VGH, dated 21.02.1978 / own translation)

Furthermore, while acknowledging the fact that due to the legally secured protection of the family the applicant had an indeterminate right of residence in the country and that it was, accordingly, not in the power of the state to force him to return to India in order to fulfil the claimed aim of his studying in Germany, the official line of reasoning now made a distinction between this state which in their eyes still carried the possibility of return and that of naturalisation in which case all links to the country of origin were perceived to be torn and thus the interests of the German state violated.

"The obligation to pay back the education aid arises only then when the expectation of return has to be given up definitively. This, however, is revealed provable only when the naturalisation is aimed for. It is true that an Aufenthaltsberechtigung [most secure status of permit to stay, UG] is according to §8 Abs.2 AuslG restricted neither in time nor place. Nonetheless does the bearer of the Aufenthaltsberechtigung stay here as a foreigner. His Aufenthaltsberechtigung can be equipped with conditions. ... All these conditions are not applicable any more after the naturalisation. Only with the naturalisation, which demonstrates the persistent turn towards Germany, is it clear that the applicant will definitely not return to his home country. These differing circumstances justify a distinction concerning the repayment of education aid." (from a document by the Federal Chief Attorney to BVerwG, dated 14.03.1980 / own translation)

Adding to this the town seized again the opportunity to emphasise that Germany was no Einwanderungsland , that naturalisations could only be an exception and there existed no legal claim for them. While the VGH shared the essence of the official view, the BVerwG allowed an appeal against the former's judgement because it understood the importance of the case also for other potential applicants.

The first phase of litigation was thus characterised by two polarised positions. One arguing that the specific case and its infringements of personal rights needed to be carefully investigated and the other stressing that the state's interest was so supreme that there was no further need for discussion. Accordingly the applicants' party was involved in a debate of specific details, while the official side argued on an abstract level. The town administration added political aspects by referring to issues of foreigner politics and clearly illustrating its readiness to discriminate against foreigners.

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© Urmila Goel, / englishDesis in Deutschland/ Recht/ naturalisation 1998/2004