TO DEPT OF IMMIGRATION RECEIVED FROM:30.03.94
FAIM523
O.B02638 1818 28.03.94 CLA FOREIGN
TO.
PP CANBERRA/
FM. BONN/ FA REF O.CE373599
IN CONFIDENCE
DAVID IRVING: STATUS IN GERMANY
FROM FILE 801/5/2/1 92/1338
FOR DIEA (ENTRY LIAISON, VLS, CANBERRA) AND
SCORPION
Following receipt of reftel, we requested both the
federal interior ministry and the foreigners section of
the Munich district administration for further
information relating to (1) the March 1990 prohibition on
Irving's entry into Germany and (2) the November 1993
expulsion order.
1990 Federal "Entry Ban"
2. On this occasion, the interior ministry was not
able to provide us with further information regarding the
imposition of and Irving's compliance with the 1990 entry
ban. We were referred on to the Bundesamt fuer
Verfassungsschutz (BfV, federal office for the protection
of the constitution, Germany's federal internal security
agency), from whom we are seeking early assistance via
liaison.
3. Our impression to date is that the "entry ban" was
in fact an instruction to the Bundesgrenzschutz (BGS,
federal border police) to turn Irving away should he
present himself at the border. We hope that the BfV can
shed further light on this.
4. If correct, this would have several implications
for your line of enquiry: (1) that, although a de facto
"entry ban", the decision was directed towards the bgs
and would not normally have been served on Irving at all
and (2) subsequent entry by Irving into Germany, e.g. Via
one of Germany's many unstaffed EU border crossings,
might not have constituted an offence per se. It is also
interesting to note that the Munich expulsion order makes
no mention of the federal "entry ban" - while one
possible explanation is that this is a further
illustration of the lack of coordination between various
levels of government in Germany, it is also plausible
that the 1990 federal decision was regarded as simply an
instruction to the BGS, and therefore a separate
issue.
5. By way of embassy comment, we would simply note
that Irving is well networked through his associates, and
might have been made aware of the 1990 decision by them.
We have also heard unconfirmed reports that he may have
been turned back at the Netherlands-German border at one
point, only to succeed at another crossing which was
unstaffed at the time.[2]
Even if this can be confirmed, its relevance to
the issue of good character is not immediately clear - if
the 1990 "entry ban" is subject to a narrow
interpretation, he arguably he did not commit an offence
even if he knowingly tried to frustrate the minister's
intention.
1993 Munich expulsion order
6. We have received from Brettraeger (foreigners
section of the Munich district administration) a copy of
the expulsion order of 9 November 1993 and detailed
reasoning, totalling 33 pages. The embassy is not in a
position to translate this entire document, but we are
faxing it to you for reference.
7. In a nutshell, the expulsion order was based on two
provisions of the federal foreigners law
(Auslaendergesetz) which we summarised in O.B01355:(a)
art. 45(1) a person's stay undermines public security and
order, or other significant national interests, and (b)
art. 46(2), in particular where a person has repeatedly
and/or seriously violated laws, court orders or
administrative orders or, has committed a crime outside
Germany which would be regarded as an intentional crime
in Germany. As we also noted in O.B01355, the decision
refers to the entry bans in Canada and Austria, but makes
no/no mention of the 1990 German decision.
8. According to Brettraeger, Irving's legal
representatives have lodged an objection to the expulsion
order. The Munich foreigners office did not refute the
objection, but have forwarded it to the regional
government of upper Bavaria for decision. The decision is
pending. In the meantime, the conviction in the criminal
trial in relation to causing public offence and insulting
the memory of the dead (page 12 of the expulsion order)
has been affirmed. In a decision of 30 November 1993, the
supreme state court of Bavaria rejected Irving's appeal
against the state court's decision of 13 January 1993 as
unfounded.
9. Regarding formal notification of the expulsion
decision, Irving was served with the documentation at
1649 on 9 November 1993 in the moewenpick restaurant at
Lambach square in Munich. He was given until midnight 10
November to leave Germany.
10. The expulsion order specifically imposes an entry
ban on Irving under art. 8(2) (1) of the federal
foreigners law, stating that he may no longer enter or
remain in Germany and that, even if he otherwise meets
requirements, he will not be given a residence/visitors
permit. It goes so far as to state (page 31) that, in
view of the prevailing public interest, it is reasonable
to expect that he conduct any legal proceedings from
outside the country via legal representatives in Germany.
He must specifically apply for an entry permit should his
actual presence be required for specific court
appearances.
XC. 0.B02638 1818 28.03.94
ACTION: DEP FOREIGN + TRADE
DEP ATTORNEY GENERAL T/T
IMM + ETH AFFAIRS(C)T/T
PRIME MINISTER
MIN FOREIGN AFFAIRS
MIN FOR TRADE
MIN D C P I AFFAIRS
ATTORNEY GENERAL
MIN IMM + ETH AFF
MIN FOR JUSTICE
ASIO (C) T/T