Germany: the fight against obligations to denounce undocumented migrants

In Germany, a 1990 law obliges most public sector workers to report undocumented people to migration authorities. We spoke to Sarah Lincoln from Gesellschaft für Freiheitsrechte (Civil Liberties Association) to know more about this law and what civil society is doing to have it repealed.

Paragraph 87 of the German Residence Act forces any public authority, including social welfare offices, police, and courts, to report undocumented people they come in contact with to immigration enforcement.

The only exception to this rule was carved out in 2011 for schools and kindergartens.

What this obligation means in practice is that undocumented people avoid any contact with public authorities. They do not go to the police to report abuse or seek justice in courts. Many do not even go to the doctor or end up seeking care only in life-threatening situations.

When it comes to health care, the picture is complex: while undocumented people have a right to limited health care on paper, reporting obligations prevent them from accessing it.

According to the Asylum Seekers Benefits Act, undocumented migrants are entitled to limited medical services in the event of acute illnesses or painful conditions as well as during pregnancy and childbirth. Doctors are not obliged to report undocumented patients because they are not public workers (the German health care system is based on private insurances) and are therefore not covered by the Residence Act.

In fact, doctors are not permitted to report undocumented patients because of a legal duty to confidentiality.

But there have been instances where hospital staff reported undocumented patients nonetheless.

And going to the doctor without an insurance, as is the case for undocumented people, often means paying high medical fees and long-term debt. While emergency life-saving care would be provided, the hospital would still claim medical fees in the absence of insurance.

Getting treatment covered by the state requires a person asking for a permission from the social welfare offices, which are obliged to report undocumented people to the police or the migration office.

“The person would probably not even be able to leave the office. Police would come and arrest them and then put them in immigration detention”, said Lincoln.

As a result, undocumented people do not apply for official health care. Some seek treatment through charities and medical students who provide limited health care for free, in many cases severe Illnesses remain untreated.

In one case, a person who came to Germany from the Balkans in the early 90s and later lost his status, was unable to get a heart operation to avoid a (second) heart attack. In another case, a woman from Northern Africa who had been living in Germany for years was diagnosed with late-stage breast cancer by volunteering doctors and found herself with no option to get treatment.

Official data about health outcomes for undocumented people not accessing health care is lacking. But reports from organisations providing free health care and testimonies show that stories like the ones above are commonplace.

Campaigners and advocates have been fighting this law for years. In 2011, they managed to carve out an exception for schools and kindergartens. Since 2021, a coalition led by Doctors of the World and the Gesellschaft für Freiheitsrechte has been campaigning against paragraph 87 of the Residence Act to allow undocumented people to access health care without risking immigration enforcement. The campaign is being supported by over 80 civil society organisations, with the German doctors’ association and German Churches also repeatedly criticising reporting obligations.

The UN Committee on the Elimination of Discrimination against Women noted in its 2023 concluding observations that Germany has no intention of repealing or amending section 87 of the Resident Act and called on Germany to reconsider its position.

In August 2021, Gesellschaft für Freiheitsrechte filed a complaint to the European Commission against paragraph 87 of the Residence Act, denouncing violations of the EU data protection rules (the General Data Protection Regulation) and the right to health care as enshrined in the EU Charter of Fundamental Rights.

While the German government assured that they were considering the complaint (the proposal was in fact taken up by the German government in their coalition programme), they eventually backtracked and on the contrary passed new cuts to social benefits for asylum-seekers, bowing to a political climate ever more hostile to immigration.

Advocates also pursued strategic litigation in German courts, not without challenges. For undocumented complainants, access to courts remains difficult given the court also has an obligation to report to the immigration authorities. And procedures often last too long compared to their urgent medical needs.

Gesellschaft für Freiheitsrechte is currently awaiting to hear about the outcomes of a second complaint filed to the Commission in April 2024.