Desis in Deutschland / 'Foreigner Policy' and Applied Law in Germany
The new Einbürgerungsrichtlinien of 1971 introduced formal rules according to which applicants from developing countries could in exceptional cases, such as being married to a German spouse, be naturalised if they repaid all scholarships they had received earlier. The administration was thus somewhat more limited in the application of its discretion than before and in the case of Dr. Agarwal no further objections to the naturalisation were made as long as he was willing to fulfil the condition. The German state, in doing so, to some degree faced the reality of former students having settled in the country and now wanting to obtain also citizen's rights. It was now willing to accept a financial compensation for no longer adhering to what it called its principles of development politics. At this stage there, thus, seemed to be introduced some wish to accommodate the applicant.
Dr. Agarwal, however, whose sense of justice was put under pressure continually, by for example the administration questioning his wife's right of residence in her home country or by not informing him about his right to obtain an unlimited permit to stay, was not to be easily accommodated in this manner. Given that he did not perceive himself as having entered any obligation for repayment, he set out to prove the illegitimacy of its linkage to his naturalisation. His unwillingness to part with so much money was certainly also a motive for his not accepting the offer, but as the administration was ready to make generous rules for the manner of repayment, this on its own would not have induced him to fight against it.
Acquiring proof for his scholarships never having been openly linked to development politics, however, presented itself more difficult than expected. Dr. Agarwal soon learned that his questions were answered differently depending on whether the reply was oral or written. In person most people he got in contact with agreed with his line of reasoning, but he did not receive written documentation of these agreements. In all letters the official bodies, such as the university, the ministries and the DAAD, carefully kept covered and did not contradict official reasoning. Behind the scenes, however, the points of view were not that unanimous as is illustrated by an internal paper of the DAAD of which Dr. Agarwal got possession. In it the DAAD not only complains about not having been consulted in forming the rule about repayment, but also argues in some detail why it is neither politically credible nor legally clear nor practically feasible. Despite these arguments, however, the official position towards the applicant remained unchanged, referring to the discretion of the administration, the supreme importance of development politics, the special status naturalisation confers to a migrant, the unnecessariness of there being a formal obligation for repayment and the need to prevent discrimination against German students. Dr. Agarwal's attempts to obtain arguments specifically linked to his case, to enter into a discussion of the unclear advantages gained by developing countries through the German rules and debates about the legality of the latter remained futile, all resulting in a repetition of the abstract state interest and the absence of a need to consider individual rights in this case.
"Interests of development aid politics, which would in the case of a naturalisation be deferred according to the wish of the recipient of education aid, would be doubly strained if together with the advantage of non-return the advantage of a special education aid from public sources would be cumulated." (from a letter by the ministry of education of Hessen to Dr. Agarwal, dated 25.07.1973 / own translation)
The underlying tenor of these kind of arguments was that the applicant from South Asia should be happy to be in the country of milk and honey at all, that this already was a big advantage to him and that he could not expect more than that. Solely the perceived state's interest in development policy and implicitly also the idea of Germany not being an Einwanderungsland was taken into account and there seems to be no indication that the applicant was considered a human being endowed not only with obligations but also with rights. The letters from town officials are the clearest proof of these discriminating attitudes. They persistently repeated the original arguments of the abstract interest of development politics and their own discretion in deciding about it. Dr. Agarwal's arguments were not taken into consideration at all, instead another court judgement confirming their views was used as the basis for setting him an intimidating deadline to either accept the repayment or withdraw his application.
"We want to ask you most politely to inform us latest by the 20.7.76 whether you want to be naturalised under the given conditions or whether you want to withdraw your application for financial reasons. If we do not receive a communication by the indicated date we will assume that you have withdrawn your application for naturalisation. In this case we have to charge you for the handling of your application 20% of the administration fee payable in the case of approval." (from a letter by the town to Dr. Agarwal, dated 25.05.1976 / own translation)
This early stage of Dr. Agarwal's attempt to get the German citizenship was thus characterised by much arrogance on the official side which sought to use its power of authority to discourage the applicant by letting time pass, not reacting to his arguments, refusing to issue a decision which could be challenged in court and finally setting deadlines and threatening with costs. However, while the administration, thus, kept true to its original arguments and gradually changed in its approach from indifferent in its rejection to hostile, Dr. Agarwal was not intimidated but rather strengthened in his sense of injustice and will to fight for his right, putting in his arguments an emphasis on the administration's responsibility to act within the realm of the law. An agreement, accordingly, became increasingly unlikely and the need arose to find a legal solution.
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