Disciplinary measures by the university and police investigations - Legal concerns for migrant scholars and students

Now that German universities are pursuing a more international profile, higher education in Germany has benefited increasingly from the expertise of international academics in teaching and research. Similarly, at many universities international students are now an integral part of the student population. They often voice a feeling that in Germany’s debate about the conflict between Israel and Palestine they are operating within a grey zone. This grey zone surrounds not only academic statements and assessments relating to Israeli settlement policy and to the use of genocidal violence against the Palestinian population in Gaza, but also the use of slogans and symbols to express solidarity with Palestinians.

Overlaying the grey zone is a tangle of red lines constructed by society and government that many of those affected find hard to predict. These red lines usually come into play when academic or political statements about the state of Israel are condemned by an institution or a social player as antisemitic, resulting in the cancellation of events or invitations or else in dismissals, sanctions or criminal complaints. As many cases are never publicized, there are no statistics to indicate how many people have been affected. Examples include the decision by the Max Planck Institute in Halle to terminate its working relationship with the acclaimed Lebanese-Australian anthropologist Professor Ghassan Hage, the cancellation of several events under pressure from university administrations and the denial of entry, since declared unlawful, to the British-Palestinian surgeon Ghassan Abu-Sitta when he was invited by the Palestine Congress to report on his experience of treating survivors in Gaza.

Whenever the public debate shifts into employment or criminal law, the consequences for non-German nationals are compounded by legislation governing residence and citizenship. First of all, criminal investigations and the loss of employment can have implications for residence rights. For non-European academics, for example, a visa is usually conditional upon an employment contract. If the employer gives notice, that entails the loss of the holder’s residence permit. In Berlin, moreover, defense lawyers report that the police immediately inform the immigration agency whenever a criminal procedure is initiated, whereupon the agency will suspend any ongoing residence application. For those affected, this can mean that, until the criminal procedure has been concluded, they can only be issued with a provisional document. If convicted, moreover, they face the threat of deportation.

What this project flags up in relation to academics with an international or migrant background has far greater implications in practice for Palestinians and for the broader, non-university protest movement in solidarity with Palestine. The methods currently being applied in connection with the conflict between Israel and Palestine have occurred in different constellations ever since the Federal Republic of Germany was founded ‒ for example, during protests against the Turkish government’s treatment of Kurds. As a result, issues of constitutional law around protecting the freedom of expression and academic freedoms of non-nationals and naturalized Germans have shifted into the legislative sphere of residence rights. These people pay a high price if they cross putative red lines in the grey zone, and this prevents them from participating in academic and public discourse. At the same time, the need to combat antisemitism, which remains embedded in German institutions and society, has fallen out of focus.  

 ECCHR

In principle, general legislation (such as the Assemblies Act and the Associations Act) allows third-country nationals to engage in political activities. This right derives directly from the fundamental right to freedom of expression(Basic Law Article 5(1)). Under certain circumstances, however, the immigration authorities may restrict or prohibit the political activities of third-country nationals. This means that a person may, for example, be prohibited from taking part in a specific demonstration or, more generally, in any demonstration on a certain topic, or else prohibited from giving a speech at an event.

Immigration authorities hold limited discretionary power to make a decision on restricting or prohibiting political activities only if they identify what the law calls a “threat to public safety”. In legal terms, a violation of existing legislation may be deemed to constitute such a threat. Immigration authorities can only ban a specific activity but can never ban political activity in general. In addition, the authorities may restrict political activity if it is found to contradict the foreign policy interests or international legal obligations of the Federal Republic of Germany. The prevailing view is that this circumstance requires very narrow interpretation. In addition, political engagement may be restricted if it is considered to impair or jeopardize political decision-making processes in the Federal Republic of Germany. However, participating in a heated and controversial political discussion does not justify official intervention on such grounds, as long as the rights of third parties worthy of protection are not violated. 

The immigration authorities must prohibit political activity if they consider it to threaten the free democratic order or the security of the Federal Republic of Germany. They must also ban political activity that they believe supportsassociations, political movements or groups within or outside federal territory which have instigated, advocated or threatened attacks against persons or property within federal territory or against Germans or German institutions outside federal territory. In cases relating to Palestine, immigration authorities often equate political activism with allegiance to crimes amounting to terrorism, given that Hamas and the PFLP have been declared terrorist organizations by the EU.

Anyone facing restraint in the expression of their political beliefs can appeal the decision or bring an action for annulment. Both legal remedies have suspensive effect. This means that the ban cannot be enforced while the appeal is still pending and that those affected should be able to engage in further political activity despite the ban. However, the authority can and will usually order the immediate enforceability of the ban. In such cases, application can be made to the administrative court for urgent legal protection or a request for suspension of enforcement can be filed with the competent authority as part of an appeal procedure (see: Appeals). 

Nora Ebeling (attorney) 

If the police are investigating a suspected criminal or administrative offense, the immigration authorities must generally suspend their decision on an application for the issuance or extension of a residence permit until the investigation has been completed. This is particularly relevant for people whose residence permit is about to expire or is still pending. It therefore affects students and researchers, whose visa or residence permit is usually only issued for comparatively short periods. 

In some cases, however, the immigration authorities can decide on the residence permit regardless of the outcome of proceedings. Here, one decisive factor is what punishment might be imposed in the event of a conviction, and that depends in turn on the charges brought. If, for example, the police accuse the defendant of incitement to hatred or of using symbols associated with unconstitutional or terrorist organizations, conviction can result in a fine or a prison sentence of up to five years. In this case, an application to renew a residence permit can generally be suspended until the investigation has been completed. A charge of negligence, on the other hand, is not sufficient to justify the suspension of immigration proceedings. Negligence is defined as a failure to act with the legally expected level of care. 

Another decisive factor in the suspension of immigration proceedings is whether the norm establishing the requirement to grant or extend a residence permit contains a specific provision on denying the permit to an applicant convicted of a criminal offense. If, for example, a person applies for residence under Section 25a of the Residence Act (Granting residence in the case of well-integrated juveniles and young adults), paragraph 3 specifically provides that the permit can only be refused if the applicant has been convicted of an intentional criminal offense committed in Germany where the total fine amounts to more than 50 or 90 daily rates.

The legal basis for study and research permits contains no specific provisions for refusing residence in the event of a criminal conviction. Here, therefore, the general rules apply, which means that a permit can be denied following an offence incurring a minor penalty. Even Directive (EU) 2016/801 of the European Parliament and of the Council, known as the REST Directive and of primary importance to researchers and students, does not help in this regard. This directive likewise provides that the competent authorities may refuse or withdraw a residence permit if they consider a person to pose a threat to public order, security or health. 

For as long as the proceedings are suspended, those affected must be issued with a provisional residence permit, provided that they have applied for an extension of their residence permit in good time before it expires. While proceedings are pending, those affected have the same rights as they had with their previous residence permit. Nevertheless, many of those holding a provisional permit of this kind report practical problems in obtaining a rent contract or a job. 

Another issue flagged up by those concerned and their lawyers relates to the knowledge transfer between law enforcement agencies and immigration authorities. The latter are usually well informed once proceedings are initiated, but individuals report having to hire a lawyer to prove to their immigration authority that criminal proceedings have been discontinued so that immigration procedures can resume. 

If the police accuse someone of supporting terrorism, the immigration authorities can, moreover, initiate expulsion proceedings. The person concerned must then leave Germany and is not allowed to re-enter the country for a certain period of time. This happens regardless of whether criminal investigations have been instigated or whether a conviction has already been handed down. Naturalization proceedings are also suspended if the public prosecutor’s office is investigating whether a criminal offense has been committed. This happens regardless of what consequences a conviction might have.

If immigration proceedings are wrongfully suspended, an attempt can be made to force a decision by filing an action for failure to act with the administrative court. Following an expulsion order, the administrative court needs to be seized with an appeal or action for annulment and, if necessary, urgent legal protection. 

Nora Ebeling (attorney) 

Participation in a prohibited or dissolved assembly is an administrative offense punishable by fine. The violation may therefore justify the state’s interest in expulsion. In that case, the conditions for granting a residence permit would no longer be met. However, as this is an administrative offense, a single violation is generally not sufficient to justify the state’s interest in expulsion, as the threshold for minor offenses is unlikely to be reached. This threshold may be met, however, if there have been multiple violations. Anyone who has already been prosecuted or punished for such a violation should bear this in mind. 

Nora Ebeling (attorney) 

Sanctions imposed by universities can have a negative impact on a residence permit if it is tied to studies or research activities. If, for example, the person concerned has been expelled by the institution, it may be that the purpose of the residence permit, in this case studying, can no longer be fulfilled. In these circumstances a residence permit may be shortened retrospectively because an essential requirement for its issuance no longer applies. Residence permits for university studies pursuant to Section 16b of the Residence Act usually contain the condition that the permit automatically expires if studies are terminated without achieving a degree. This means that the residence permit expires as soon as the student has been expelled.  

If an order barring entry to university premises is imposed as a disciplinary measure for participating in protests or similar activities, this may also have an adverse effect on a residence permit, because the student would then de facto no longer be able to study in person. However, so long as the ban on entering the premises is temporary, it is not equivalent to discontinuing studies and the residence permit would not expire immediately, even if the permit is subject to the condition that studies are continued. In this case, the residence permit could be shortened in accordance with Section 7(2) sentence 2 of the Residence Act. However, since the authorities have discretion in this matter, it is questionable whether reducing its validity would be lawful in this case.

As a rule, disciplinary measures taken by the university can initially be challenged by filing an administrative complaint, which should in principle also have suspensive effect on the disciplinary measures. If the complaint is not upheld, legal protection can be sought from the administrative court. If the university has ordered immediate enforcement, it is also advisable to apply for urgent legal protection. 

Nora Ebeling (attorney) 

In principle, citizenship can only be revoked if naturalization took place within the last ten years and was unlawful. This would be the case if, for example, essential information is found to have been deliberately incorrect or incomplete – if, for example, the applicant concealed a criminal conviction, imprisonment or criminal investigation during the naturalization procedure. In such cases the immigration authorities hold the discretionary right to revoke citizenship rights. Equally, some immigration authorities use the discretionary principle to revoke citizenship, arguing that it was “acquired by deception” because the applicant feigned “inner democratic beliefs”. This can happen if the authorities deem certain political movements to be incompatible with fundamental German values. Whether the person also has citizenship other than German citizenship is not relevant here because statelessness does not preclude revocation. 

Individuals expressing solidarity with Palestine have reported uncertainties during the naturalization process, particularly in Brandenburg and Saxony-Anhalt. The naturalization tests in these two federal states explicitly ask about the applicant’s commitment to the right of Israel to exist as a state. This procedure has not been implemented nationwide; however, recent reforms to German nationality laws have introduced a requirement to declare unconditional support for the protection of Jewish life in Germany and for “the prohibition on conducting a war of aggression” (Section 10(1)(1a) Nationality Act). If a person undergoing naturalization affirms the right of the state of Israel to exist but is subsequently found to express what is interpreted as an opposing attitude, this can be interpreted as “acquisition by deception”. In a recent case, Berlin authorities used this argument to revoke citizenship after the person concerned expressed public support for Hamas, even though the Federal Constitutional Court concluded back in 2017 that denying naturalized Germans the same legal rights as ethnic Germans was incompatible with the free democratic basic order. Ongoing developments will show whether the deception argument is upheld by the courts.

A criminal conviction handed down after naturalization cannot reverse a naturalization that has already taken place. It follows that preliminary police investigations will be all the more irrelevant.

Nora Ebeling (attorney) 

Non-EU citizens must obtain a visa or residence permit entitling them to enter the Schengen area for a short stay. Despite a valid visa or residence permit, the border authorities may refuse entry or onward travel within the Schengen area if the person is considered by the federal police to pose a threat to public security in any member state.

The border authorities may assume such a threat if the person concerned is suspected of having committed a criminal offense, regardless of whether they currently pose a threat. In addition, entry may be refused if the holder is listed in the Schengen Information System (SIS). A person may be placed on this list, among other reasons, if a member state considers that their presence constitutes a threat to public order or to public or national security on the territory of the state, if the person has been convicted of a “serious crime” in a member state (the minimum penalty for the offense must be one year of imprisonment) or if there is a reasonable suspicion that they have committed a serious crime, or if there are concrete indications that they are planning such acts on the territory of a member state. Inciting hatred or condoning a criminal offense is not considered to be a serious crime, but supporting a terrorist organization is.

The border authority must justify its decision and provide the reasons for it. A standard form is used for this purpose. However, those affected are not informed in advance when they are refused entry. Travelers can find out whether there is an alert in the SIS by submitting a request for information to the authority responsible for maintaining the register in the member state. In Germany, this is the Federal Criminal Police Office (BKA). 

Legal remedies: 

An appeal or legal action and urgent legal protection can be sought from the administrative courts following denial of entry. Action can also be taken at an administrative court against an alert in the SIS. 

Nora Ebeling (attorney)