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

4.3. State interests vs. personal interests

The second major issue of the case was the degree to which the facts of the special case had to be taken into consideration when assessing the impact the naturalisation has on the state's interests. Here there were clearly two polar positions with the administration arguing that the country's interests were so superior that the specific case had not to be taken into account at all, and the applicant emphasising the importance of considering his particular situation and not some abstract principles. If one looks somewhat closer into the issue one, however, soon recognises that it is not so much personal or state interests which are at stake but a dispute between Rechtsstaat (constitutional state) and politics. The administration, and thus the government, want to protect their political agendas concerning both development and foreigner policies and thus argue on the basis of abstract, general ideas. The laws include vague phrases which leave much room for discretion and can thus be used by the administration arbitrarily, leaving much possibility also for discrimination. The later is particularly likely, as policies in general reflect the majority view and not that of minorities, ethnic or other. Members of ethnic minorities, like Dr. Agarwal, who suffer under the policies made to please the majority cannot, thus, rely on politics in order to be protected in their rights. In a Rechtsstaat like Germany which in its Grundgesetz (basic law) has for this reason many safeguards for the protection of minority interests, the law is supposed to take care of this, in particular as Western law very much focuses on the protection of personal rights. Accordingly, Dr. Agarwal and his lawyer most of the time argue on the basis of legally guaranteed rights which are broken by the rules for naturalisation. While doing so they clearly pursue the personal interest of the applicant, it can, however, also be argued that this is in the state's interest as the state's foundation is the Grundgesetz and the idea of being a Rechtsstaat. Furthermore, it has to be emphasised that there is no objective interest of the state, that it is always politically determined and that, accordingly, this concept can be easily misused to the disadvantage of ethnic minorities.

The courts which, as has been seen, shift their focus with the passing of time away from the abstract state interest to an assessment of the specific case, do so because they perceive the infringement on the Rechtsstaat. They are, however, not harsh in their critique of former decisions and do not address the issue of the politicisation of the case. Accordingly, the final judgement has little to offer in general for improving the treatment of ethnic minorities by officials.

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