High Bars

Free movement is a foundational right of EU citizens. When expelling a citizen of another member state on the grounds of public security (the other possible grounds are public health and public policy), the expelling state must show that the citizen represents ‘a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society’. This is, or should be, a very high bar.

A Polish citizen, Kasia Wlaszczyk, and two Irish citizens, Roberta Murray and Shane O’Brien, currently living in Berlin, have been ordered to leave Germany by 21 April or be deported, along with Cooper Longbottom, an American holding a student visa. All are active in the Palestine solidarity movement. None has any criminal convictions.

Yet all are deemed a threat to public order and public security. In the letters they have received from the Landesamt für Einwanderung (LEA), the Berlin state immigration office, they are also accused of ‘support for … Hamas and its front and support organisations in Germany and Europe’, and of spreading ‘antisemitic and anti-Israeli hatred and incitement’. No evidence is presented for these accusations.

The other allegations include resisting an officer, breach of the peace and assault of an officer (tätlicher Angriff auf Vollstreckungsbeamte), a widely drawn offence which can include any kind of physical contact – and sometimes no contact at all. These accusations relate to various demonstrations over the last year and a half. Protesters are often accused of such offences after aggressively policed demonstrations.

Wlaszczyk, Murray, O’Brien and Longbottom were all allegedly involved in an occupation at the Free University Berlin last October. University buildings and property were vandalised, and an arrest was allegedly obstructed. As with most of the other allegations against the four, events at the university are described in general terms, with no specific details of the alleged acts of each person but instead the implication that all actions were the collective responsibility of an organised group. Though some of the alleged events took place more than a year ago, most are still ‘under investigation’ and so far only one has led to a trial.

Each deportation letter includes at least one reference to the phrase ‘From the river to the sea, Palestine will be free,’ either because the recipient is supposed to have chanted it, or because someone graffitied it on a wall at the university. This may contribute to the LEA’s claims that the four activists support Hamas: according to the German government the phrase is a Hamas slogan, though it has many possible meanings and a history decades older than Hamas. Some German courts have punished people for using the phrase; others have ruled that it is permissible.

In the only criminal trial that any of the four has so far faced, O’Brien was acquitted of insulting a police officer by calling him a ‘fascist’. The judge concluded that the police witnesses ‘made partly contradictory and overall not sufficiently credible statements’. As in England, it is a defence against a charge of resisting arrest or of assaulting a police officer if the officer was acting illegally: by conducting a groundless arrest, for example, or clearing a protest camp without the proper authority. In one case, video evidence I’ve seen clearly appears to contradict a claim made by the LEA. Lawyers representing the four are yet to receive the files in which the full details of the various suspected offences are given. In any event, as one of O’Brien’s lawyers argues, even if convictions follow, the offences cited by the LEA do not meet the usual bar for deportation.

Julius Engel, a migration lawyer working in Berlin, agrees. Each case is different, he told me, but in his experience a typical ‘public security’ deportation of an EU citizen involves a person who has been convicted of a relatively serious crime and has served at least a year or two in prison. The organised sale of drugs might be one such conviction, or a Körperverletzung (roughly equivalent to an assault occasioning actual bodily harm) another. Often more than one such conviction is involved. ‘I’m not aware of any cases relating to activism,’ he told me, and he’s never had a deportation case that didn’t involve a serious criminal conviction. ‘It’s hard to imagine,’ he said. (The LEA cites ‘concrete indications of membership in or support of terrorist organisations’ to justify the exception.)

Ordinarily, lodging an appeal suspends a deportation while the case works its way through the courts: here, an additional clause in the deportation notices denies this right. All four are set to be deported on 21 April and will be forced to pursue their appeals from abroad – though they will file separate motions seeking to reinstate their right to stay in Germany while their appeals are heard.

The Berlin authorities know very well that the deportations of the three Europeans, at least, are likely to be unlawful. As Hanno Hauenstein has reported in theIntercept, the head of the LEA’s crime prevention and repatriation department, Silke Buhlmann, wrote in an email shortly before Christmas that she could not comply with the directive because ‘there are no final criminal convictions to substantiate a sufficiently serious and actual threat.’ But Christian Oestmann, the head of the interior department’s constitutional and administrative law section, and a senior figure in the Berlin SPD, dismissed these concerns, ordering that the process continue.

Germany’s Palestine complex is sometimes treated as if it were primarily a discursive problem, manifesting mainly in a cowed cultural sphere and an intellectually and morally stunted national conversation. But this underplays the state’s coercive powers. Repeated police assaults on demonstrators have drawn criticism from Amnesty International but barely rate a mention in the German press. Migration administration is also used to suppress protest: ‘It hurts much more to lose your permission to stay than maybe to get a fine of €1000,’ as O’Brien’s lawyer Benjamin Düsberg says. Many non-Europeans ‘don’t go to the demonstrations anymore’ because they are ‘afraid for the next appointment at the LEA’. ‘They’re using it now against the white people,’ O’Brien told me. ‘The Arab and Muslim communities have been getting it ten times worse.’

Even if the expulsions are eventually reversed on appeal, non-German citizens will think twice before speaking out. If they are upheld, a dangerous precedent will have been set. The politically active are most obviously at risk, and there is no reason to think only Palestine activists should be effected: police in Bavaria have surveilled the phones of climate activists, listening in on their calls with journalists – with the approval of state courts. The drastic reduction of the threshold of threat could also lead to increased deportations – already a popular idea across most of the German political spectrum – of European citizens with convictions for minor crimes unrelated to activism. A core right of European citizenship will be eroded.

The letters from the LEA to the three Europeans evoke the Staatsräson, Angela Merkel’s term for Germany’s ironclad support for Israel, subsequently adopted by most other parties. ‘It is in the considerable societal and state interest that this Staatsräson is always put into practice, and that at no time – neither at home nor abroad – does doubt arise that opposing tendencies are even tolerated in the federal territory,’ the LEA writes. This assertion has no basis in German law: as a recent report by the Bundestag’s research services division put it, the Staatsräson is ‘a purely political maxim, not a legally binding principle or constitutional principle’. It has, in other words, no business informing the LEA’s decisions.

‘It’s really Carl Schmitt-like thinking,’ Düsberg says. ‘The will of the state is more important than the law, politics is the division between friends and enemies, and it is legitimate to break the law if it serves your purpose in combating the enemy.’

When alert liberals in Germany try to shake others out of their complacency, they sometimes evoke the spectre of the AfD, as if the illiberal turn of every party except Die Linke is bad because it might eventually lead to a federal government containing the far right. The situation is bad now, and could get even worse without the AfD in power: in a paper published last month outlining the key lines of discussion in the negotiations for a federal coalition between the CDU and SPD, the parties agreed to examine whether they can strip German citizenship from ‘terror supporters, antisemites and extremists’ if they also hold another nationality.

Even if there were a very high bar for defining someone as a ‘terror supporter’, such a legal regime would subject dual nationals to a permanent second-class status: probationary citizenship, liable to withdrawal at any time (as is already the case for dual nationals in the UK, who can lose their British citizenship at the home secretary’s discretion). But these deportation orders – issued by a state government run by a CDU-SPD coalition – suggest that the bar would instead be very low.