Gonzalez Lopez, L: The Legal Status of the "Tolerated" in Germany, 2008

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PUSHED INTO EXCLUSION:
THE LEGAL STATUS OF THE „TOLERATED“ IN GERMANY


Who are the ‘tolerated’ (Geduldete)? This is the first question most people ask themselves in the unlikely case that they ever come across the term. Despite the fact that there were an estimated 147.107 ‘tolerated’ in Germany in 2007 (BBIM), their existence remains unknown to the majority of German society, which is not surprising given that they are completely neglected in politics and in the media, and rarely mentioned even in migration studies. In fact, not one book has been written on the topic  – mentioned as a footnote perhaps, the topic of short articles, of the official legal brochures at the most . Writing this essay was challenging given the lack of documentation on the ‘tolerated’ but, in describing the legal framework of the toleration status (Duldungstatus) and briefly arguing that it contains a violation of human rights, it will hopefully contribute to filling this gap.

Context and Definition of the ‘Toleration Status’

After a record breaking  438.191 asylum applications were filed in 1992 (partly due to the war in former Yugoslavia), the number of asylum seekers in Germany has decreased steadily and reached 18.332 in 2007 (BAMF). It can be argued that this decrease in asylum applications is a response to the German “asylum compromise” of 1993 and to restrictive European laws in recent years such as the Dublin Agreement, which reduced rights to asylum and consolidated the principle of “safe third countries”.

As a reaction to the increasing numbers of refused asylum seekers who could not return to their countries of origin at the beginning of the 1990s, the concept and legal status of ‘toleration’ was created. In Germany, asylum seekers whose application is rejected are granted the toleration status if they cannot be deported for humanitarian or other reasons. For instance, in the case of civil war refugees who can not return for humanitarian reasons , people whose origin can not be determined, refused asylum seekers who can not yet be returned, and witnesses in judicial processes (BBIM, p.9). In 2007, foreigners with a toleration status made up 2,2% of the foreign population in Germany . Countries of the former Yugoslavia are the first place of origin among  ‘tolerated’ living in Germany (Bundestag, 2005). The toleration status is not a right of residence, but a temporary suspension of deportation of a foreigner who cannot leave the country on a voluntary basis. This suspension of deportation is granted for a short period of time and is repeatedly extended until return is possible . Just as asylum seekers must normally wait a long time for a decision on their application (21,7 months average in Germany), the ‘tolerated’ are often stuck with this status for years - around 55% have had the toleration status for longer than 6 years, 38% for over 8 (BIMB, p.7). The young age structure of ‘tolerated’ living in Germany, app. 50% being younger than 25, makes access to education and the labor market particularly important.

Legal Situation of the Tolerated

The current toleration status in Germany is a conviction to limbo– they live ‘in between’, not being able to properly enter Germany yet also unable to return.  While they wait for the inevitable yet repeatedly postponed return, they can hardly become a part of the society they live in. Access to the labor market, to education and to social welfare benefits are severely restricted, either directly or indirectly through the lack of a residence status or through the requirement of hardly attainable conditions. Fortunately, the need to facilitate integration measures to the long term ‘tolerated’ has been officially recognized by politicians in recent years. Until now there have been two regularization programs, in 2006 and 2007, whereby certain ‘tolerated’  were given refugee status and with it a residence permit and more open access to the labor market. However, there is still a lot to be done in order to develop a reasonable and human rights based integration concept.

Right of Residence

A key point of the toleration status is that it does not provide a residence status– the ‘tolerated’ temporarily live but do not legally reside in Germany. Upon entry in Germany, asylum seekers are distributed geographically according to agreed quotas. They must stay up to three months in the assigned receiving centers (Aufnahmeeinrichtungen), and their later stay (e.g. the possibility of living in private apartments) is regulated differently across the Federal States. Foreigners with a toleration status, just like asylum seekers, are forbidden to leave the city they were assigned to. This is partly so because of the obligation to extend the toleration status. Although the Aliens Department (Ausländerbehörde) tends to issue toleration status for 6 months and the minimum period of toleration is legally 1 month, in practice it is often granted for 1 or 2 weeks (BBIM, p.9). The geographical limitation, together with the mandatory and regular visits to the Aliens Department, severely restricts their freedom of movement and quality of life.

The tolerated have no right to citizenship because, as is stated in the 2000 Nationality Act, only foreigners who have legally resided in Germany for at least 8 years are entitled to it. Moreover, if a ‘tolerated’ is given the status of a refugee, the period he or she lived in Germany under toleration status does not count for the total needed period of 8 years. In short, because legal residence status is a cornerstone for accessing other rights, the lack of provision for it in the toleration status partly explains the often precarious life conditions of the ‘tolerated’ and their exclusion from German society.

Right to Work

Despite recent progress made with the latest legal reforms (see BeschVerfV 2005), access to the labor market remains considerably limited both directly and indirectly as a result of a lower education status. Foreigners with toleration status, just like asylum seekers, are forbidden to work as self employed (Selbstständigkeit), and can only do so as employees (Beschäftigte), i.e. wage laborers and apprentices. They are not allowed to work during their first year in Germany, and if they wish to do so after this time, they must first ask for a work permit from the Aliens Department. The Aliens Department can issue a ban on employment on the grounds that the ‘tolerated’ foreigner entered Germany merely to obtain social benefits or if it believes that he/she creates the obstacles for return. If the Aliens Department determines there is no ban on employment on the ‘tolerated’, it can decide on its own or in collaboration with the Federal Employment Office (Bundesagentur für Arbeit) whether the employment permit will be granted. The involvement of the Federal Employment Office in the decision making process means that it will analyze the regional market needs and usually check whether there are other work seekers with preferential status, i.e. Germans, foreigners with equal labor rights and EU citizens entitled to free labor mobility. If the ‘tolerated’ is granted a work permit, it will be for a limited amount of time (a maximum of three years) and a specific occupation.

Right to Education

According to the current law, the ‘tolerated’ can attend school, professional preparation courses (Berufsvorbereitungskurse) and apprenticeships (schulische Ausbildungen) without permits, but need to fulfill certain conditions for a real professional training. Whereas in Berlin schooling is compulsory for children up to 16, this is not the case in all Federal States, as each State has autonomy on education matters. The fact that schooling is not compulsory across all German territory lowers the chances that the children of the ‘tolerated’ will attend school and hence participate in society and move on to acquire higher education, which is already limited per se. Foreigners with a toleration status, like asylum seekers, are basically not allowed to attend university. This is only possible in exceptional cases and if they fulfill certain conditions – they must present a college admission, prove that they do not need welfare aid to survive, and fulfill other residential rights conditions. For some highly skilled people and special professional groups, there is the possibility of obtaining a residence permit just for education and employment purposes.

Social Rights

Given their difficulties to access education and work, the main source of income of most ‘tolerated’ foreigners in Germany are social benefits.  They have a very restricted access to welfare since they are not legal residents and since usually the right to social security is linked to labor, which is also limited in cases of uncertain residence status. Not just the low amount of social welfare, but also the dependence on it to survive has negative side effects, often bringing problems of role models within the family and of social recognition in the local environment.Foreigners with toleration status receive less social benefits than those provided for in the regular welfare aid (Sozialhilfe). In addition, out of the approximately 200 euros they receive monthly (the amount varies according to age), there is an established minimum of 40,90 € which must be given in cash; the rest must be given as payment in kind (BIMB, p.15). This is already an improvement compared to the law before 2007, when no cash benefits at all were allowed. After they have lived 4 years in Germany, their level of social welfare is equated with the normal one.In principle there is no right to children and parents’ money (only through interstatal agreements), no advanced payment for lodging (Unterhaltsvorschuss) and only in exceptional cases money for university and professional training (BAFöG and BAB). In order to receive welfare for education and training, he/she must have worked 5 years in Germany or have a parent who has worked 3 out of the last 6 years in Germany. No exception is made for unaccompanied minors whose parents do not live in Germany, which means they will very likely be unable to pursue higher education. As for medical insurance, the costs are only covered in cases of acute illness or pain, but after 4 years in Germany they are included in the regular health insurance system. ‘Tolerated’ who according to the authorities create the obstacles for return can be excluded from receiving the same level after 4 years, cash benefits or benefits altogether. The ‘tolerated’ have no right to family reunification (only in exceptional cases) and no right to integration or language courses, which is not surprising given that integration is not envisaged.

Final Remarks

Upon analysis of the legal situation of the ‘tolerated’ in Germany, it can be seen that the toleration status breaches some of the most basic human rights. Concerning the right to education, article 26 of the Universal Declaration of Human Rights (henceforth UDHR) claims that “elementary education shall be compulsory” and “higher education shall be equally accessible to all on the basis of merit.” These two conditions are clearly not met in German law: whereas some Federal States stipulate compulsory schooling for the ‘tolerated’, not all States do, and access to higher education is not based on merit but on difficult work and residential conditions. As regards to the right to work, it was agreed in signing the UDHR that “everyone has the right to work, to free choice of employment, to just and favorable conditions of work and to protection against unemployment” (article 23). Neither the right to work is envisaged for all ‘tolerated’ in Germany, since some of them have a ban on employment, nor the free choice of employment, as they can not be self-employed. Moreover, being the last ones in the long list of work seekers, they are not accompanied by “favorable” conditions either. Unfortunately and in the context of increasingly restrictive migration policies, similar conclusions can be drawn on the right to enjoy asylum from persecution and the right to freedom of movement within the borders of each state (14 and 13 of the UDHR).  However, the toleration status is not just unacceptable from a human rights perspective, but also from a rational point of view for Germany itself. Social and economic exclusion is the result of severely restricting rights or making access to them depend on a chain of unrealistic conditions e.g. there is no access to higher education without work experience, but at the same time it is hard to obtain a work permit without a residence status and basic education. Creating a group of excluded individuals is highly inconvenient for Germany both because it misses on the potential of the ‘tolerated’ (e.g. their work potential), and because if no legal means to lead a decent life are provided, illegal means and hostility will most likely emerge as a result. Considering that the age structure of the ‘tolerated’ is very young, the frustration that derives from a lack of socio-economic perspective is higher and can have long lasting effects.Despite recent progress, the toleration status as it is today can not be seen as a humanitarian measure but rather as a way of pushing people into exclusion. Confronted with the reality of around 150.000 foreigners with toleration status, and given the lengthy periods of time they generally hold this status, there is an acute need to develop an integration concept. Making work and education truly accessible are at the core of promoting a reasonable and human rights based integration process. In order to respond adequately to the social and economic problems surrounding the toleration status, research is needed to shed light both on the existing legal framework and on the actual possibilities and living conditions of the ‘tolerated’.

References

Auch "geduldete" Ausländer gehören zur Gruppe ausreisepflichtiger, 2005 Personenhttp://www.bundestag.de

Asylforschung in Deutschland:
http://www.asylforschung.de/info_duldung.htm

Bundesamt für Migration und Flüchtlinge – Statistics Website:
http://www.bamf.de

EU Directive on the Detention and Deportation of Immigrants (June 2008)

Gag, M.: European Policy Forum: Minimum Standards and Beyond, 2007,  http://www.equal-asyl.de/

Genge, J./Juretzka, I.: Berliner Beiträge zur Integration und Migration. Ausschluss oder Teilhabe – rechtliche Rahmenbedingungen für Geduldete und Asylsuchende – ein Leitfaden (Der Beauftragte für Integration und Migration, 2008).

Universal Declaration of Human Rights:
http://www.un.org/Overview/rights.html

Lucia Gonzalez Lopez, 2008 

TEXTS


HUMAN RIGHTS CONVENTIONS


LINKS

Arntz, M./Gregory T./Lehmer, F.: Unequal pay or unequal employment?, 2012

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Flake, R.: Multigenerational Living Arrangements among Migrants, 2012

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MOVIE TIPS


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