General

Responsibility for detention, including detention pending removal (Abschiebungshaft), lies with the Federal States. Available statistics on detention pending removal do not contain information on the number of people who have applied for asylum while in detention.

Asylum seekers are generally not detained as long as their application is not finally rejected and as long as they have a permission to stay (Aufenthaltsgestattung). However, some exceptions have been introduced with recent legal changes. In cases of applications which have been rejected as inadmissible or manifestly unfounded, a removal order may take effect regardless of legal remedy, unless a court grants an interim measure suspending such a removal. However, if applicants are detained at this point, they do not have the legal status of asylum seekers, as the asylum seekers’ permission to stay ceases to be valid once a removal order becomes enforceable.[1] Accordingly, within the meaning of German law, detention is only ordered once an asylum application has been finally rejected or in the context of a Dublin transfer.[2] However, with the entry into force of the Act on the Improvement of Removals on 27 February 2024, asylum applicants can now be detained if grounds for detention apply at the time when they lodged their application. This is relevant notably for cases where persons file a subsequent application in order to avoid imminent removal (see Legal framework of detention). Another change of the Residence Act introduced in 2020 had already allowedfor the ‘preparatory’ detention of persons who are subject to an entry ban and present ‘a significant danger to their own or others’ lives, or to internal security’ or have been convicted for criminal offences, including asylum seekers (see below).

If an asylum application is lodged after a person has been taken into detention pending removal, this does not necessarily lead to a release and detention may be upheld for a period of 4 weeks (see Grounds for detention). The application is filed in written form to the BAMF, who then designates the responsible branch office.[3] The personal interview may take place in detention during that period. There are no special rules applicable for an interview in detention and the asylum applicants have the same rights and obligations as in any other interview carried out in a branch office of the BAMF. All interviews with detained applicants are conducted by the BAMF in person.

In Dublin cases, asylum applications are rejected without any examination of the substance of the case and applicants are referred to another Member State to carry out their asylum procedure. Detention of asylum seekers therefore may occur in Dublin cases to prepare the transfer to the responsible Member State if grounds for detention exist. Transfers are usually preceded by arrests and police custody, which usually lasts for a very short period since many people are transferred on the same day.

The majority of the Federal States (9 out of 16) do not differentiate in their statistics between detention in the context of a Dublin transfer or a return decision. Nevertheless, the last available statistics provided by the other seven Federal States in 2021 indicate that persons detained for a Dublin transfer made up between 0% and 25% of all detainees in 2020,[4] with an overall average of 20.8% (2019: average of 30.8%, 2018: average of 34.4%).[5] Available statistics also indicate that the number of Dublin transfers preceded by detention is relatively low, albeit with large differences between Federal States: between 0.8% and 50% of all Dublin transfers were preceded by detention in 2020.[6] In 2023, 5,053 persons were transferred following a Dublin procedure, compared to 4,158 in 2022, 2,656 in 2021, 2,953 in 2020 and 8,423 in 2019 (see Dublin).

Pre-removal detention facilities existed in eleven Federal States in 2023 (see Place of detention).[7] The capacity of these detention facilities has increased significantly in recent years, from around 400 places in 2016,[8] to 821 available places at the beginning of 2022 (see Place of detention). As of September 2023, the capacity seems to have decreased slightly with 782 places available as of September 2023.[9] The high number of removals and the comparably low capacity of pre-removal detention facilities indicate that the vast majority of removals and Dublin transfers are carried out within a few hours or during the same day. This enables the authorities to put persons who are obliged to leave the country in short-term custody and no formal detention order has to be issued by a court. Still, the increase in detention facilities over the last years occurred in parallel with rising numbers of detentions since 2017. The decrease in both removals and detentions in 2020 is related to the Covid-19 pandemic and travel restrictions, which resulted in a suspension of removals for a certain period.

Source: Federal Government, Reply to parliamentary question by The Left, 18/7588, 18 February 2016, 18/11112, 9 February 2017, 19/800, 20 February 2018, 19/18201, 19 March 2020, 20/3130, 16 August 2022, 2, Reply to written question by Bernd Baumann (AfD), 20/765, available in German at: https://bit.ly/483S5bW, 17; Reply to parliamentary question by The Left, 20/6052, 24 February 2023, available in German at: https://bit.ly/3nGxgRt, 2 and DIE ZEIT, Zahl der Abschiebungen deutlich gestiegen, 17 January 2024, available in German at: https://bit.ly/3uwVuBv.

Source. Federal Government, Reply to parliamentary question by The Left, 19/31669, 4 August 2021, available in German at: https://bit.ly/4awfTGM (Data for 2017-2020), Mediendienst Integration, “Im großen Stil” abschieben?, 23 October 2023, available in German at https://bit.ly/3tPuZqp (Data for 2021-2022), and data obtained by the Mediendienst Integration from Federal State authorities (Data for 2023). Please note that the data for the years 2021 – 2023 are not complete as not all Federal States replied to the query (i. e. no data were provided for the facility at Berlin airport). In addition, there might be over- or undercounting due to different reporting practices by the different Federal States.

* Data for Berlin as of 14 August 2023

Legal changes as a result of the ‘enforcement deficit’ debate

Despite the stable number of removals over the last years prior to the Covid-19 outbreak, an alleged ‘enforcement deficit’ had become the subject of a heated political debate and a ‘media obsession’ in 2017 and 2018, as the authorities were being criticised for their failure to carry out removals.[10] This debate has continued under the government that took office in 2021, which pledged to increase efforts to enforce returns.[11] The debate has led to numerous restrictive reforms in 2017, 2019, 2020 and 2022 as well to an additional reform proposed in November 2023 (see below), and to a demand for increased use of detention in the removal procedure. In 2023, a total of 31,770 removals failed, compared to 16,430 effective removals.[12] This does not mean that all 31,770 persons were not returned, however, since authorities often carry out another removal attempt after the failed one.[13] The reasons for failure to carry out removals were as follows:

Source: Federal Government, Reply to parliamentary question by the AFD 20/10520, 01 March 2024, available in German at: https://bit.ly/4aNCZIq, 16.

The above statistics show that in most cases, the reasons for the failure of removals can be found at the level of local authorities, although it is not clear which exact circumstances led to the cancellation of removal measures in such cases. The Federal Government has no information on the number of cases in which persons to be deported were responsible for the cancellations (e.g. by absconding) and there are numerous other possible reasons for the cancellation of removal attempts (such as medical reasons, organisational problems etc.). Since removals are not announced to the persons concerned, it is also likely that persons can simply not be found on the date of the scheduled removals, due to them staying at another place rather than because they are deliberately avoiding arrest.[14] Nevertheless, despite the lack of empirical evidence, the comparatively high number of cancellations of removal attempts is often associated with the absconding of the persons concerned.[15]

Statistics on removals from detention also show that an increase in detention is not necessarily associated with a higher number of removals.[16] In addition, there are strong differences between the Federal States in how often detention actually results in a removal: by way of example, in North Rhine Westphalia and Rhineland Palatinate, four out of five people detained in the first half of 2023 were also removed, while the ration is only one out of ten in Saxony.[17] Nonetheless, over the past years, requests for a more frequent use of detention pending removal in the political debate resulted in several legislative reforms since 2015, of which the ones adopted over the past four years are briefly presented here.[18] August 2019 saw the entry into force of the Second Act for an improved enforcement of the obligation to leave the country (Zweites Gesetz zur besseren Durchsetzung der Ausreisepflicht, also known as the ‘Orderly Return Act’/Geordnete-Rückkehr-Gesetz). The law expanded authorities’ power to access private apartments and to arrest persons to be removed, expanded the grounds for detention and introduced a new form of ‘detention to enforce the obligation to cooperate’ with authorities (Mitwirkungshaft. Section 62 VI Residence Act; for details see the 2019 to the AIDA Country Report for Germany).[19]

The numerous and increasingly restrictive legal changes in previous years continued with a new detention provision in Section 62c Residence Act adopted in November 2020 and an extension of detention possibilities for criminal offenders which entered into force on 31 December 2022 (see Grounds for detention). In October 2023, the Federal Government issued a proposal for an additional reform of detention and the return procedure in the Act on the Improvement of Removals (Rückführungsverbesserungsgesetz).[20] The bill, which inter alia would expand detention grounds and duration, was voted on in parliament on 18 January 2024 but has not entered into force as of end February 2024 (see Legal framework of detention).[21]

[1] Section 67 Asylum Act.

[2] For an overview of cases in which detention can be ordered during an asylum procedure, see Friederike Haberstroh, Detention and Alternatives to Detention. Study by the German National Contact Point for the European Migration Network (EMN). Working Paper 92 of the Research Centre of the Federal Office for Migration and Refugees, available at: https://bit.ly/41IjHRv, 10.

[3] Section 14(2) Asylum Act.

[4] Hesse, North Rhine-Westphalia, Rhineland Plaatinate, Saxony, Saxony Anhalt, Schleswig-Holstein, Thuringia.

[5] Federal Government, Reply to parliamentary question by The Left, 19/31669, 4 August 2021, available in German at: https://bit.ly/4awfTGM. 109-123

[6] Bremen: 4 transfers out of detention (50% of all transfers); North Rhine Westphalia: 119 transfers out of detention (15.5% of all transfers), Saxony: 1 transfer out of detention (1.5% of all transfers),Saxony Anhalt: 5 transfers out of detention (0.8% of all transfers), Schleswig-Holstein: 3 transfers out of detention (4% of all transfers), Thuringia: 5 transfers out of detention (6.3% of all transfers), see Federal Government, Reply to parliamentary question by The Left, 19/31669, 4 August 2021, available in German at: https://bit.ly/4awfTGM.

[7] Stefan Keßler, Abschiebungshaft, socialnet.de, 14 January 2019, available in German at: https://bit.ly/2TiNCji.

[8] Paula Hoffmeyer-Zlotnik, ‘Return Policy in Germany in the Context of EU Rules and Standards.’, Study by the German National Contact Point for the European Migration Network (EMN). Working Paper 80 of the Research Centre of the Federal Office for Migration and Refugees, March 2018, available at: https://bit.ly/3fRwsln, 38.

[9] Federal Government, Reply to parliamentary question by the AfD, 20/8280, 8 September 2023, available in German at: https://bit.ly/47kkxVO, 22.

[10] Deutsche Welle, How do removals work in Germany?, 16 July 2018, available at: https://bit.ly/2Hhh3uM.

[11] SPD, BÜNDNIS 90/DIE GRÜNEN UND FDP, ‚Mehr Fortschritt wagen. Bündnis für Freiheit, Gerechtigkeit und Nachhaltigkeit. Koalitionsvertrag 2021 – 2025 zwischen der Sozialdemokratischen Partei Deutschlands (SPD) und den Freien Demokraten (FDP)‘, 137-142, available in German at: https://bit.ly/3ITYqJZ.

[12] DIE ZEIT, Zahl der Abschiebungen deutlich gestiegen, 17 January 2024, available in German at: https://bit.ly/3uwVuBv.

[13] PRO ASYL, Das angebliche »Abschiebungsvollzugsdefizit«: Statistisch fragwürdig, aber gut für Schlagzeilen, 14 July 2020, available in German at: https://bit.ly/3XLnGtl.

[14] Brief analysis of Dr. Thomas Hohlfeld (assistant to the parliamentary group of The Left) of the Federal Governments reply 19/17100, 20 March 2020, available in German at: https://bit.ly/4aqLV7g, 5.

[15] See for example DIE ZEIT; Mehr als jede zweite Abschiebung gescheitert, 24 February 2019, available in German at: http://bit.ly/3wobZ06.

[16] Mediendienst Integration, “Im großen Stil” abschieben?, 23 October 2023, available in German at: https://bit.ly/3tPuZqp and Victoria Rietig and Mona Lou Günnewig, Deutsche Rückkehrpolitik und Abschiebungen. Zehn Wege aus der Dauerkrise, DGAP Analyse, May 2020, available in German at: https://bit.ly/41PPlwm.

[17] Mediendienst Integration, “Im großen Stil” abschieben?, 23 October 2023, available in German at: https://bit.ly/3tPuZqp.

[18] For an overview of the legal changes between 2015 and 2020, see Friederike Haberstroh, Detention and Alternatives to Detention. Study by the German National Contact Point for the European Migration Network (EMN). Working Paper 92 of the Research Centre of the Federal Office for Migration and Refugees, available at: https://bit.ly/41IjHRv, 13-18.

[19] AIDA, Country Report Germany – Update on the year 2019, July 2020, available at: https://bit.ly/3GlpjEQ, 107.

[20] Federal Government, Gesetzentwurf der Bundesregierung Entwurf eines Gesetzes zur Verbesserung der Rückführung (Rückführungsverbesserungsgesetz), 20/9463, available in German at: https://bit.ly/3tBmMGr.

[21] For the current state of the legislative procedure, see Federal Ministry of the Interiour, Gesetzgebungsverfahren – Gesetzentwurf zur Verbesserung der Rückführung. available in German at: https://bit.ly/48AIaKw.