The section on pre-removal detention in the Residence Act opens with a general clause on the principle of proportionality:
‘Detention pending removal is not permissible 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 shall in principle not be taken into detention awaiting removal.’[1]
In spite of this provision, the federal law does not explicitly define alternatives to detention. Administrative guidelines do contain some milder measures such as reporting requirements (see below), but these do not depend on there being a ground for detention and hence it is questionable whether they can be considered alternatives to detention.[2] As of 2021, some Federal States (Bremen, North Rhine-Westphalia, Lower Saxony, Brandenburg and Schleswig-Holstein) have regulated the use of alternatives to detention in decrees.[3] Lawyers and NGOs have frequently criticised that detention pending removal is imposed by the responsible local courts ‘too often and too easily’ and a high number of detention orders were overturned by higher courts upon appeal.[4] In court decisions, alternatives to detention are rarely discussed substantially,[5] and some authorities have been found to always request the maximum duration of three months without laying out how far this is necessary given the preparations for removal.[6] The practice in resorting to detention also differs widely between Federal States: by way of example, in 2022 in Lower Saxony detention was only ordered in 134 cases compared to 789 forced removals (17%), whereas in Bavaria, 1,966 persons were detained for a total of 2,046 forced removals (i.e., 96%).[7] The share of detention orders in relation to the overall number of removals has increased from around 10% in 2015 to around 28% in 2020.[8] However, this might also be related to the fact that in 2015 and 2016, the majroty of forced returns were to Western Balkan states, where returns have been comparatively fast and frictionless.[9]
Among the available alternatives is the ‘geographical restriction’ which normally applies to asylum seekers for a period of 3 months and can be re-imposed if ‘concrete measures to end the foreigner’s stay are imminent’ (see Freedom of Movement).[10] The law also contains a general provision according to which ‘further conditions and sanctions’ may be imposed on foreigners who are obliged to leave the country.[11] In particular, these sanctions may consist of reporting duties, the obligation to reside in a specific place or to be home during night-time, but also of an obligation to consult a counselling service for returnees.[12] Passports of foreigners obliged to leave the country can be confiscated.[13] The authorities may also ask foreigners who are obliged to leave the country to deposit a security to cover the costs of a possible removal.[14] However, the law does not allow for security deposits which may be used as bail and confiscated in cases of ‘absconding’.[15]
Responsibility for carrying out removal procedures lies with local or regional authorities or, when the person reaches the airport, with the Federal Police. Therefore, no common approach to the use of alternatives to detention could be adequately ascertained.[16]
[1] Section 62(1) Residence Act.
[2] 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, 19.
[3] 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, 19.
[4] Die Rechtsberaterkonferenz, 50 Forderungen zum Flüchtlings-, Aufenthalts, Staatsangehörigkeits- und Sozialrecht, November 2017, available in German at:https://bit.ly/48kVKSN, 32-34. See also Positionspaper Pflichtbeiordnung von Anwält:innen in der Abschiebungshaft, available in German at: http://bit.ly/3knqnTl, preliminary remark of parliamentary group of The Left in Federal Government, Reply to parliamentary question by The Left, 19/5817, 16 November 2018, available in German at: https://bit.ly/485NINs, 2; See also the statistics of the pilot project of the Refugee Council of Lower Saxony at Judicial Review of the Detention Order.
[5] Stefan Keßler, Abschiebungshaft, socialnet.de, 14 January 2019, available in German at: https://bit.ly/2TiNCji, and Community for all, 4 Jahre Abschiebeknast Hessen, July 2023, available in German at: https://bit.ly/3RLsmxS, 35.
[6] Community for all, 4 Jahre Abschiebeknast Hessen, July 2023, available in German at: https://bit.ly/3RLsmxS, 35.
[7] Federal Government, Reply to parliamentary questions by The Left, 20/5795, 24 February 2023, available in German at: https://bit.ly/3nGxgRt, 15, and Information collected by the Mediendienst Integration from the Governments of the Federal States in August 2023.
[8] Community for all, 4 Jahre Abschiebeknast Hessen, July 2023, available in German at: https://bit.ly/3RLsmxS, 13.
[9] Federal Government, Reply to parliamentary questions by The Left, 18/7588, 18 February 2016, available in German at https://bit.ly/3JAXSLz, 2 and Federal Government, Reply to parliamentary questions by The Left, 18/11112, 9 February 2017, available in German at https://bit.ly/3TYYbnY.
[10] Section 61(1)(c) Residence Act.
[11] Section 61(1)(e) Residence Act. For an overview of possible alternatives 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, 21.
[12] Section 46(1) General Administrative Regulations relating to the Residence Act.
[13] Section 50(5) Residence Act.
[14] Section 66(5) Residence Act.
[15] Ministry of the Interior of the Federal State of Schleswig-Holstein, Interministerielle Arbeitsgruppe (IMAG) ‘Alternative Abschiebungshaft’ (Report of a working group ‘alternative detention pending removal’), 25 March 2014, available in German at: https://bit.ly/3S451ce, 5.
[16] 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, 19-20.