🇩🇪 Deutsch
Showing solidarity is human. The German government has a different view. Threats of criminalization are intended to deter people from acts of solidarity and practical political intervention. We want a Würzburg in which we are not afraid to stand up for each other as well as a city in which we are ready to bear possible consequences together. With a few security measures taken into account, it is highly unlikely that the deportation authorities will find out where a person is hiding.
If legal repression nevertheless does occur, we will of course not leave you alone with possible threats or punishments. Instead, we will try to find a solution to the situation together. There are also a number of solidarity structures that can absorb the burden of potential fines.
What is the legal status of people who are at threat of deportation?
People who are seriously threatened with deportation often own a so-called »Duldung«, a tolerated stay permit. According to § 60a (1) AufenthG [German Residence Act], a »Duldung« (»Temporary suspension of deportation«) is primarily granted to those who are obliged to leave the country but cannot be deported due to legal or factual reasons. This may occur, for example, if no passport is available or deportation is not permitted for humanitarian or other reasons.
Refugees are obliged to leave the country if their asylum application is rejected. However, people who enter Germany without a visa or remain in Germany after their visa expires and who do not apply for asylum are also required to leave the country (§ 50 AufenthG [German Residence Act]).
A »Duldung« is usually only valid for a short period of time (with the exception of those issued for educational and employment reasons). It is often issued for one, three, or six months. A »Duldung« granted due to the impossibility of deportation, is extended if deportation is still not possible. In this way, a »tolerated stay« may last for many years.
At the same time, the withdrawal of a »Duldung« may happen suddenly and at any time. Hence, the legal status is associated with permanent stress and fear of deportation for many of those affected. As soon as the obstacle to deportation no longer applies or if a certain event occurs (for example, if the country of origin issues travel documents or a hardship application is rejected), there is an acute risk of deportation.
People who are facing a Dublin deportation usually carry a so-called »Aufenthaltsgestattung« (temporary stay permit) or a »Ausweisersatzpapier« (ID replacement document). As with people owning a »Duldung«, they are also allowed to move freely and sleep in places outside their assigned communal accommodation facility, provided they comply with their residence and registration obligations.
What consequences do people have to fear when making use of Soli-Asyl?
As described previously, Soli-Asyl can be a useful instrument for bridging a Dublin deportation period. At the same time, there is a certain risk that the deportation period will be extended from six to 18 months. Especially if the person concerned is not staying permanently at their registered address. Moreover, Soli-Asyl can provide people threatened with deportation time to explore alternative solutions that may allow them to stay in Germany. However, whether and for how long Soli-Asyl makes sense always depends on the individual’s situation.
Legally speaking, staying in Germany without papers is a criminal offense (§ 95 AufenthG [German Residence Act]). In most cases, however, people have a so-called »Duldung«, a tolerated stay permit, or another identity document. They are therefore not illegalized. In other cases, the danger of imminent deportation outweighs the risk of criminalization.
We are in regular contact with other solidarity initiatives and lawyers and examine the chances and risks of a Soli-Asyl together in advance in each individual case.
Can I make myself liable to criminal prosecution by providing Soli-Asyl?
Supporting people in need, welcoming them, and offering them protection is one of the most natural things in the world. Hospitality and solidarity are no crimes and anyone can invite people into their home. Threats of prosecution and attempts to criminalize Soli-Asyl are of course still possible.
The authorities may argue that Soli-Asyl constitutes aiding and abetting illegal stay under § 95 AufenthG [German Residence Act] (»Gesetz über den Aufenthalt, die Erwerbstätigkeit und die Integration von Ausländern im Bundesgebiet« [Act on the Residence, Employment and Integration of Foreigners in the Federal Territory]). However, the form of Soli-Asyl that we practice does not constitute the aiding and abetting of an illegal stay.
As long as the person at risk of deportation has a valid »Duldung« or another identification document – which is not uncommon – Soli-Asyl is nothing more than hospitality.
Thus, it will often not be possible to criminalize the provision of a place of refuge due to the lack of fulfilment of the offence. In addition, as already mentioned, it is very unlikely that the authorities will find out where a person is staying.
Nevertheless, it makes sense to be aware of the possibility and the risks of the threat of criminalization. But remember: the risk you bear is probably much lower than that of the person who is facing deportation.
What can I do to minimize the risk of a potential criminal prosecution?
Generally speaking, it is advisable to rely on secure communication channels. This means using forms of protected communication that not everyone has access to. To this end, you should avoid sending unencrypted messages with sensitive content via insecure channels (email, Facebook, WhatsApp, …). Instead, you can encrypt your emails or use an encrypted open-source messenger app such as »Signal«. Encrypting your laptop or smartphone is much easier than you might think.
Whenever possible, it is best to discuss confidential matters with others in person. Naturally, we also provide people who make use of Soli-Asyl with a briefing on security matters.
In the (very unlikely) event that the police show up at your door, it’s good to be prepared. The police may only enter your home with a court search warrant. You can find more information on how to act during a house search in the flyer »Hausdurchsuchung. Was tun?« of »Rote Hilfe e.V.«.
If police arrest the person staying with you, contact us immediately. In many cases, an urgent court application can prevent deportation at the last minute.
And what about people like you who publicly call for the granting of Soli-Asyl?
Previous experiences from other cities show that attempts to criminalize the behavior of those involved in the organization of Soli-Asyl are possible. In this sense, calling for support for Sol-Asyl could be a punishable offense under § 111 StGB [German Criminal Code] (»Öffentliche Aufforderung zu Straftaten« [Public incitement to commit criminal offenses]). For this, the form of Soli-Asyl that we practice would have to constitute an unlawful act. However, we are not calling for the commission of criminal offenses. Rather, we are simply declaring our intention to support people in need, to welcome them, and to offer them protection.
At the same time, we are aware that the more broadly a campaign of civil disobedience is supported, the higher are the chances of a criminal prosecution. Therefore, we cannot completely rule out the possibilities and risks of criminalization.
Moreover, in May 2021, the Regional Court of Aschaffenburg confirmed that the »call to grant solidary asylum to people threatened with deportation and to hide them in their homes if necessary« cannot be considered a call to commit an unlawful act. Further information on Hagen Kopp’s acquittal can be found here.