Desis in Deutschland / 'Foreigner Policy' and Applied Law in Germany
While it was never discussed in the case documents, another major feature of it was the seemingly strategic use of the imbalance of power by the official side. In particular in the initial phases before Dr. Agarwal officially was represented by a lawyer, the administration used its power as an official body with many specialists opposing an individual applicant with little knowledge of the system. Dr. Agarwal was repeatedly summoned to personal interviews where the responsible official gave him an oral report of the state of things and demanded from him to make a decision on the spot, i.e. without having time to think it through and consult with experts. Furthermore, the standard reply to his complaints was that it was all within the discretion of the authority and thus could not be challenged. Given that hardly any public authority will openly contradict the statement of another and that the internal information system of the administration secures that information relevant to a case is transferred from one office to another, Dr. Agarwal was faced with an impenetrable collusion of state bodies which all pursued publicly the same strategy and only by mistake released information undermining that. It was thus for him, as it would be for any other individual, very difficult to be informed about his rights and to acquire necessary documentation to prove his case. Instead of providing him with information which could help him, the administration pursued the strategy of letting time pass and not reacting to his arguments as well as trying to pressurise him to comply with its demands. The method of dealing with the irritating applicant was thus a mixture of intimidation and frustration which was adhered to also later when the courts were involved by then simply reiterating former arguments without any effort to engage in a proper debate and thus letting time work for them.
Given this imbalance of power it is, accordingly, very difficult for an individual opposing the administration to get justice and it requires many preconditions. First of all, one must be aware of the fact that one's rights have been infringed on and that one thus has the right to demand justice. Given this one can only proceed on this path if one is not intimidated by the obvious power imbalance. One needs to be endowed with patience and persistence as otherwise the playing with time on the side of the administration will soon be successful. Furthermore, it is hardly possible to fight such a battle individually without both moral and legal support from family and friends. If one is not as lucky as Dr. Agarwal having a friend who is a lawyer and is willing to work without recompense, one also needs sufficient finances to afford legal advice. Adding to this one must be able to argue one's own case, i.e. one must understand the legal system, must be articulate, etc. Finally, one can undertake such a project only if one has a secure legal status and must not fear disadvantages resulting from opposing the official view of the law.
Such a combination of factors is unlikely for any person, even more so for a member of an ethnic minority who has spend many years outside Germany. It is, thus, far from natural for members of ethnic minorities to get justice if the administration makes attempts to prevent it. It, accordingly, needs stubborn and strong characters situated in favourable circumstances to set precedents which can then be used for the benefit of others.
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