The section on detention pending deportation in the Residence Act opens with a general clause on the principle of proportionality:
“Detention pending deportation is not admissible if the purpose of the detention can be achieved by other, less severe but equally sufficient means. The detention shall be limited to the shortest possible duration. Minors and families with minors may be taken into detention awaiting deportation only in exceptional cases and only for as long as it is adequate considering the well-being of the child.”1
In spite of this provision, lawyers and NGOs have frequently criticised that detention pending deportation is imposed by the responsible local courts in a manner “too hastily, too often, too long“ and a high number of detention orders were overturned by higher courts upon appeal.2
Furthermore, the “geographic restriction” (often referred to as “residence obligation”), which normally is only relevant for asylum seekers for a period of 3 months, can be re-imposed if “concrete measures to end the foreigner’s stay are imminent”.3 The law also contains a general provisions according to which “further conditions and sanctions” may be imposed on foreigners who are obliged to leave the country.4 In particular, these further sanctions may consist of reporting duties, but also of an obligation to consult a counselling service for returnees.5 Passports of foreigners obliged to leave the country can be confiscated.6 The authorities may also ask foreigners who are obliged to leave the country to deposit a security to cover for the costs of a possible deportation.7 However, the law does not allow for security deposits which may be used as bail and confiscated in cases of “absconding”.8
Responsibility for carrying out removal procedures lies with local or regional authorities or with the border police. Therefore, no common approach to the use of alternatives to detention could be adequately ascertained.9 In the wake of landmark decision by the German Federal Supreme Court and the CJEU, authorities apparently have been generally hesitant to apply for detention to enforce removal (see section on Grounds for Detention) since the summer of 2014.
In spite of this, the number of deportations has risen considerably (from 10,884 in 2014 to 20,888 in 2015 and 25,375 in 2016).10 The most likely explanation for this apparent contradiction is that in the vast majority of cases deportations are enforced within one day, so only a few hours pass between arrest and departure. In this manner persons who are to be deported are only taken in to police custody for a few hours and no formal detention order has to be issued by a court.
- 1. Section 62(1) Residence Act.
- 2. Pro Asyl, ‘Abschiebungshaft: Zu schnell, zu oft, zu lange’ (Detention pending deportation: too hastily, too often, too long), 13 September 2012. See also preliminary remarks of the inquiring party to Federal Government, Reply to parliamentary question by The Left, no. 18/249 of 7 January 2014, 1.
- 3. Section 61(1)(c) Residence Act.
- 4. Section 61(1)(e) Residence Act.
- 5. Section 46(1) General Administrative Regulations relating to the Residence Act.
- 6. Section 50(5) Residence Act.
- 7. Section 66(5) Residence Act.
- 8. Ministry of the Interior of the Federal State of Schleswig-Holstein, Interministerielle Arbeitsgruppe (IMAG) "Alternative Abschiebungshaft“ (Report of a working group “alternative detention pending deportation”), 25 March 2014, 5.
- 9. Cf. Janne Grote, The use of detention and alternatives to detention in Germany. Study by the German National Contact Point for the European Migration Network (EMN), Working paper 59, July 2014.
- 10. Federal Government, Reply to parliamentary question by The Left, no. 18/4025 of 23 February 2015, no. 18/7588 of 18 February 2016 and no. 18/11112 of 9 February 2017.