Das Ausländerrecht zwischen obrigkeitsstaatlicher Tradition und menschenrechtlicher Herausforderung

The history of German alien law starts with the police surveillance of dangerous foreigners. Although under the Basic Law foreigners are entitled to invoke fundamental rights the structure of the legal regulation of entrance and stay in Germany still has some special features going back to the police law tradition. Admittance to Germany is channeled through a very developed system of requirements for specific purposes defined primarily by the needs of the German labour market. Other than in most fields of administrative law discretion is dominant for the permission of entry while sanctions against foreigners often do not give way for assessing the individual case. In the jurisprudence of the German Federal Administrative Court as of the Federal Constitutional Court the legislation on foreigners was almost never questioned. In the case law mainly the protection of family life was used in order to introduce fundamental rights protection of foreigners. Only under the influence of the European Court of Human Rights German courts recognized the importance of the protection of the private life. The individual personal, social and economic relations of the foreigner to the country of residence have to be taken into account not only in expulsion cases but also in the decisions on entry and on the prolongation of permits. Therefore the remains of the old structure of alien police law have to be questioned in order to give more room for the protection of human rights and balancing of interests.