What makes Faeser's deportation reform so dangerous
The traffic light coalition is making the fight against online glorification of terrorism its mission - and may be shooting far beyond the target. According to a recent draft law, foreigners could already be deported for liking a post on Instagram and the like. Experts are alarmed.
A like is quickly given, but what does it really mean to mark vacation photos on Instagram or political statements on X with a heart? What exactly does someone express by reacting to a Facebook post with a thumbs up? Most people can probably agree on a kind of "like". The question of whether this always also means full agreement with the entire contribution is likely to lead to discussions. Nevertheless, this click could have far-reaching consequences in the future. Namely, when it decides whether a foreigner who has been living in Germany legally so far keeps their residence permit or loses it.
The background is a recently passed draft law by the federal government. The authorities are to be able to take tougher action against foreigners who glorify terrorism, according to the intention of the traffic light coalition. Specifically, this means: Those who celebrate terrorist crimes should lose their residence permit more easily - and thus also be deported more quickly. The decision lies with the foreign authorities in this case - a criminal conviction is not required.
The initiative came promptly after the knife attack by a 25-year-old in Mannheim last May, in which a police officer was seriously injured. Barely a few hours after the act of violence, numerous posts on X, Tiktok and Instagram were circulating in which the perpetrator was celebrated as a "role model", even as a "hero". Similarly contemptuous and anti-Semitic were the multitude of posts that flooded the net after the Hamas terrorist attack on Israel last October.
Tightening of the deportation law - or not?
Posts that fuel and glorify the worst crimes are punishable in many cases, as they can amount to incitement to hatred or the instigation of a crime. With its latest draft law, the government is now additionally demanding a direct link to the residence permit. "The brutalization on the net also fuels a climate of violence that can incite extremists to new acts of violence," said Federal Minister of the Interior Nancy Faeser, who was leading the draft. "Therefore, we need not only consistent criminal prosecution but also sharper instruments of foreign law. We are creating these now." The ministry particularly emphasizes one point in this context: In the future, even "a single comment that glorifies or approves a terrorist crime on social media could lead to deportation".
This announcement sounds like a drastic change in the Residence Act. However, the list of reasons why someone can lose their residence permit is already long. This includes numerous criminal offenses - also the "dissemination of writings" that condone terrorist crimes. That this also includes posts on X, Facebook and Co. has long been understood by the authorities, as lawyer Christine Graebsch reported in conversation with the "ND". So it's hardly anything new for authorities to use contributions from social media to deport people.
"Beyond linguistic adjustments, it's not easy to say where the expansion of the deportation right lies according to the cabinet draft," summarizes migration law expert Julia Kraft in an interview with ntv.de. This is mainly due to one reason: "In recent years, the deportation interest has been repeatedly expanded. Further stretching it, especially in the area of terrorism, would likely be very difficult."
"Made for quick clicks"
The expansions in the deportation law through the bill itself are therefore minimal. Public interest in them would likely have quickly faded, perhaps never even arisen - if not for the fine print. The justification of the draft, in particular, is causing a stir, as it provides insight into how the law could be interpreted: "The distribution of content can now also include marking a post with 'like' on social media such as YouTube, Instagram, TikTok, etc."
In other words, not only the authors of hate posts run the risk of being deported. Even those who give a digital thumbs-up to the wrong content could risk losing their legal residence in Germany. The tightening of the residence law would be enormous in such an interpretation. Lawyers see several problems with this.
"It starts with the question of whether a like can really be considered distribution," says Kraft. Then, the intention behind the digital heart or thumbs-up would also have to be determined. The initial questions arise: What did the person want to express with the like - and did they even know what they were doing? "Social media is made for quick clicks," says Kraft. It's hardly possible to assume that everyone always reads, let alone checks, the entire content. Sometimes a like is only given for the image of a post, sometimes it serves as a bookmark to read the accompanying text later. "And even if the person has read the entire post, an extremist content is not always clearly recognizable to everyone."
"A sharp sword"
The environment also plays a role in the supposed approval, says Kraft. Social media "is an emotional space, often also a place of emotional manipulation, which can easily lead to a like." The chairman of the working group on migration law at the bar association, Thomas Oberhäuser, gives an example in an interview with the German editorial network: "Imagine a man whose family lives in the Gaza Strip and can't get out," says the lawyer from Ulm. "That such a man does not react calmly and balanced to the destruction there is clear." The lawyer considers the solution proposed by the traffic light coalition to be populist. "The alleged solution does not even begin to do justice to the complexity of human life."
Liking acts of violence has nothing to do with morality. However, experts warn that reacting to this with the deportation law is not only questionable but may also be unconstitutional. The keyword is proportionality.
"The right of residence is a very sharp sword. It ends the residence of someone who lived legally in Germany up to that point," explains migration law expert Stephan Hocks in ZDF. While penalties or disciplinary measures eventually expire, deportation is something "that affects the rest of the person's life." Such a significant intervention is only appropriate if there is a considerable danger to society.
"One cannot speak of a real danger in this case," says Hocks.
The crux of the matter is this: The deportation right is not intended to condemn false beliefs, but rather for risk prevention. "It's hard to speak of a real threat in the case of a single like," says Kraft. On the other hand, someone without residence rights not only faces deportation, but their integration is also significantly hindered. The lawyer finds the recent developments in deportation law not only disproportionate, but also dangerous. "It normalizes practices more associated with authoritarian regimes than with a democracy."
In response to concerns about the cabinet draft, the Federal Ministry of the Interior told ntv.de that a like cannot "justify" a deportation. Deportations can be carried out in "serious cases" of glorifying terrorism. However, it remains unclear why the justification for the draft cites a ruling stating that a like can indeed fulfill the offense. The BMI refers to the assessment of the foreign authorities, which must evaluate each individual case. Subsequently, it will depend on the jurisprudence of the administrative courts.
However, this shift of competence is not without its problems. The deportation law primarily ties in with criminal offenses - usually, the foreign authorities receive information about offenses from the investigative authorities. "This involves evaluating a certain visual language or certain codes," explains Kraft. Questions also arise about the intention of the author and whether it was indeed their account. "For all these questions, criminal courts are trained. The foreign authorities can usually work well with the results."
Now, this evaluation has been gradually shifted forward. This means that employees - mostly without legal, let alone criminal law training - must decide whether a post, a comment, or now even a like is sufficient for a deportation. Their decision can be reviewed by administrative courts, but whether the author is criminally convicted or not remains entirely irrelevant. In terms of speeding up deportations, this is certainly an advantage, but for the affected person, it carries risks. Administrative authorities are not bound by procedural safeguards like "innocent until proven guilty." "In the end, it's possible for someone to be acquitted in a criminal trial but still be deported," explains Kraft.
But it's not just about the question of competence. The foreign authorities are already working at their limit. "I don't think they have the capacity to monitor numerous social media activities," says the migration lawyer. Instead, there's a risk that the tightening of deportation law will be used to "harass certain people who are already under surveillance."
Although the planned law tightening is not supposed to target a specific group, "media attention is primarily focused on a certain group against whom the government wants to show a tough hand," says Kraft.
In fact, Faeser repeatedly emphasized in connection with the bill that she wants to "act tough against Islamist and anti-Semitic hate crime on the net." Those who celebrate terrorism have forfeited their right to stay, explained Federal Economics Minister Robert Habeck in relation to the draft, adding: "Islam belongs to Germany, Islamism does not."
With sentiment manipulation and further tightening of expulsion laws, no one is helped, Kraft concludes. "It doesn't bring security, but further poisons the atmosphere." Already now, other groups like skilled workers, especially from the Arab region, are increasingly discouraged. People are becoming increasingly uncertain about their stay in Germany, the lawyer reports from her daily work with clients. Some are already considering leaving the country. "The impression that a single like could now be enough to be deported has not improved this mood, on the contrary." The draft law of the traffic light coalition is now in parliamentary deliberations, according to a spokesperson for the BMI.
The proposed draft law by the Federal Ministry of the Interior aims to give authorities tougher power to deport foreigners who glorify terrorism, including those who simply "like" related content on social media platforms. Experts like Julia Kraft and migration law expert Stephan Hocks raise concerns about the proportionality and constitutionality of using the deportation law in such cases. They argue that the right of residence is a significant intervention that should only be used if there is a considerable danger to society, and a like does not meet this criterion.
