Can illegal immigrants go to school?

Migrants without residence status: To school even without papers


Human rights activists and churches have been calling for it for a long time, now it is a reality: children without residence status will be able to go to school more easily in the future. The governing coalition has changed the residence law, and educators no longer have to report their children to the immigration authorities. An important step, but there is still a long way to go, comments Tillmann Löhr.

Many migrants in Germany live without a residence permit. Some have children. What happens to these children when they reach school age? The immigration authorities don't know anything about them. And the families who do not want to be deported because of illegal residence are usually very interested in ensuring that it stays that way.

Whether these children are required to attend school is determined by state law. In some countries schooling is compulsory regardless of residence status, in some it is not. Sometimes paperless children are registered at school, some are informally and some are not schooled at all.

Irrespective of this state legal arrangement, there has been a federal legal obstacle to schooling for paperless children. It was an obstacle that confronted educators with a dilemma that was difficult to cope with not only in terms of service law, but also morally. According to Section 87 (2) No. 1 Residence Act (AufenthG), a public body that learned that a foreigner was staying illegally in Germany had to report it to the immigration authorities. The staff of state schools is also a "public body" in this sense.

So if, for example, a school principal had to inquire about the residence status of the offspring when registering for school and found out that the student did not have one, he was faced with the decision to attend school or to inform the immigration authorities. A dilemma between educator and public official that could not be resolved. On Friday, however, the Bundestag exempted schools, educational institutions and educational institutions from the reporting requirements.

Paperless, but not without rights: what happened last

In the last few years there had already been a rethink in dealing with paperless children. Although you do not have the right to stay, you are not without rights. Fundamental and human rights guarantees apply regardless of residence status. You also have the right to equal access to public schools. It follows from the general right of personality from Article 2, Paragraph 1 and Article 1, Paragraph 1 in conjunction with the general principle of equality from Article 3, Paragraph 1 of the Basic Law. And also from Art. 2 S. 1 of the First Additional Protocol to the European Convention on Human Rights (ECHR) in conjunction with the general prohibition of discrimination from Art. 14 ECHR it follows that the right to education must not be denied to anyone.

Any other interpretation of these fundamental rights, even if advocated, is disproportionate. If a child is not sent to school for fear of being discovered, it must suffer from the decision of others: it was the parents who decided to stay illegally. But it is the child who has to accept lifelong socialization and educational deficits.

In 2009, for example, it was made clear in the nationwide administrative regulations for the Residence Act that educators only have to report children without a residence permit if they learn of illegal residence in the course of their duties, but not if this only happens when they are performing their duties.

If, for example, state law does not require that the residence permit be presented when registering, the school principal is not obliged to pass on the information. North Rhine-Westphalia had already provided for this interpretation by decree before the administrative regulations came into force, other states such as Hamburg and Hesse adapted their decrees or ordinances.

Such questions of interpretation have now also been resolved. The new regulation passed by the Bundestag unequivocally restricts Section 87 (2) No. 1 of the Residence Act. Public bodies are now expressly obliged "with the exception of schools and educational institutions". Whether school principals, teachers or educators in day-care centers: the educational staff no longer has to report the paperless children.

A step forward for children and educators

The change takes up a long-standing and legitimate demand from churches and human rights organizations. On the one hand, it enables all children to have human rights access to education - regardless of their residence status. On the other hand, educational staff is no longer instrumentalized for regulatory purposes. However, this will not be the last controversy about non-resident migrants.

Illegally employed migrants without residence status are often cheated out of their wages. Under civil law they have a claim, in fact they do not assert it for fear of discovery. After all, labor judges are also public bodies and therefore have to submit them. A restriction would also be required on this point, which could be implemented by the so-called EU Sanctions Directive (RL 2009/52 / EC) on sanctions against employers who employ third-country nationals who are not legally resident.

In addition, migrants without residence status are entitled to health care under the Asylum Seekers Benefits Act. Despite the often devastating health consequences, their fear of discovery often prevents them from asserting it. It is true that the administrative regulations in 2009 brought about the first improvements. An anxiety-free standard care is still pending. In short: an important step has been taken, but more must follow.

The author Dr. Tillmann Löhr is a lawyer and works as a speaker for the SPD parliamentary group. He is the author of numerous publications on migration law and human rights protection in Germany and Europe. In the contribution he expresses his personal opinion.


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