Changes following the Act on the Improvement of Removals 2024:
- Minors and families shall not be detained “in principle”, whereas previously they could be detained “only in exceptional cases and only for as long as it is adequate considering the well-being of the child.’[1]
According to German law, minors and members of other vulnerable groups must not be detained while they have the status of asylum applicants. However, asylum seekers may lose this status as a result of a Dublin procedure and may hence be detained for the purpose of a Dublin transfer (see section on Grounds for detention).
Section 62(1) of the Residence Act contains the following provision regarding the detention of children and families:
‘Minors and families with minors may be taken into detention awaiting removal only in exceptional cases and only for as long as it is adequate considering the well-being of the child.’
Between 1 January and 31 October 2023, 2,338 children (under 18 years) were deported to third countries or transferred to another state under the Dublin Regulation.[2] These measures usually involve that children are taken into custody for a few hours on the day the transfer takes place. Furthermore, 335 minors were returned to neighbouring countries after being refused entry on the territory, out of which 120 were unaccompanied by parents or legal guardians.[3] The immediate returns (Zurückweisungen) or removals (Zurückschiebungen) are usually preceded by an arrest and a short-term apprehension.
With the exception of these short-term apprehensions, detention of minors ordered by a court seems to be exceptional. Between 2018 and the first quarter of 2021, no minors were reported to be detained during a Dublin transfer.[4] By way of illustration, the regional government of the Federal State of Hesse informed the Parliament that detention of minors for the purpose of removals was ‘excluded’,[5] and Bavaria and Hamburg equally report that minors are not detained as a rule.[6] For the period of 2018 until the first quarter of 2021, only the Federal State of North Rhine-Westphalia reported that one minor had been detained, but he was released immediately when his minority had been established.[7] However, the local NGO Community for All reports one case of a detained minor aged 17 years and nine months in the detention facility in Darmstadt-Eberstadt in the period between 2017 and 2022 (Hesse).[8]
In practice, however, detention of (possible) minors may occur in cases in which the age of the persons concerned is uncertain or disputed. The Refugee Council of Lower Saxony highlighted the case of an unaccompanied minor who had been detained by way of judicial order in the detention facility of Hannover-Langenhagen immediately after he had arrived from the Netherlands in February 2020. Detention was ordered by a judge despite the fact that the police had recorded his statement that he was 16 years old. An age assessment which took place in the detention centre later on came to the conclusion that it could not be excluded that he was younger than 18. As a result, the detention order had apparently been in breach of a directive from the Federal State which stipulates that minors should not be held in detention pending removal as a matter of principle.[9] An activist from North Rhine-Westphalia further reported in an interview conducted at the end of 2019 that in some cases detained persons have entered the detention facility of Büren as adults (following an age assessment), but have left it as children, because they were found to be of minor age when travel documents were issued by the authorities of the country of origin. In one of these cases, a person detained as an adult was later found to be only 14 years old. The persons concerned were released from detention. Nevertheless, they remain registered as adults in the detention centre‘s statistics, which leads to the false impression that no minors have been detained, according to the interviewee.[10]
A few Federal States have regulations in place for the detention of other vulnerable groups (such as elderly persons, persons with disabilities, nursing mothers, single parents),[11] but most do not have any special provisions for these groups and detain them in practice. The same applies to de facto detention at airport detention facilities, which is applied inter alia to pregnant women, victims of torture and persons with medical conditions. While some Federal States provide for separate detention of women, others use the facilities of other Federal States – notably the detention facility of Ingelheim in Rhineland Palatinate – and only detain men in their own detention facilities.[12] Between 2018 and the first quarter of 2021, only North Rhine-Westphalia reported to have detained a total of 4 vulnerable persons in 2018, two of which were elderly persons, one a person with disabilities and one person who turned out to be a minor and was subsequently released.[13]
[1] Deutscher Bundestag, Recommendation for a resolution and report of the Committee on Home Affairs and Community (4th Committee) on the Federal Government’s draft bill of the Act to Improve Removals (Entwurf eines Gesetzes zur Verbesserung der Rückführung (Rückführungsverbesserungsgesetz)), available in German at: https://bit.ly/49CaKMs, 7; Section 62(1) Residence Act.
[2] Federal Government, Reply to parliamentary question by The Left, 20/9796, 14 December 2023, available in German at: https://bit.ly/3RICW8T, 9.
[3] Federal Government, Reply to parliamentary question by The Left, 20/9796, 14 December 2023, available in German at: https://bit.ly/3RICW8T, 15.
[4] Federal Government, Reply to parliamentary questions by The Left, 19/31669, 4 August 2021, available in German at: https://bit.ly/4awfTGM, 107-123.
[5] Government of the Federal State of Hesse, Response to information request by The Left, 20/773, 16 September 2019, available in German at: https://bit.ly/2VSjyJJ, 7.
[6] Federal Government, Reply to parliamentary questions by The Left, 19/31669, 4 August 2021, available in German at: https://bit.ly/4awfTGM, 7, 36.
[7] Federal Government, Reply to parliamentary question by The Left, 19/31669, 4 August 2021, available in German at: https://bit.ly/4awfTGM, 10.
[8] Community for all, 4 Jahre Abschiebeknast Hessen, July 2023, available in German at: https://bit.ly/3RLsmxS, 21.
[9] Flüchtlingsrat Niedersachsen, ‚Unbegleiteter minderjähriger Flüchtling seit 13 Tagen rechtswidrig in Abschiebungshaf‘t, Press release of 3 March 2020, available in German at: https://bit.ly/2YZedDC.
[10] ze.tt, ‚Eingesperrt ohne Straftat: So sind die Bedingungen in einem Abschiebegefängnis‘, 14 December 2019, available in German at: https://bit.ly/2T0KZ3g.
[11] Regulations regarding vulnerable groups can be found in the law on removal detention for Bremen (available in German at: http://bit.ly/3wlsJVD). In Hesse, the law (available in German at: http://bit.ly/3XvPOkv) requires that special attention be paid to the healthcare of particularly vulnerable persons. In Schleswig-Holstein, the respective law (available in German at: https://bit.ly/3Hn50KS) contains a provision on the detention of minors, which must be in compliance with Art. 37 Un Convention on the Rights of the Child. HesseNo specific provisions could be found in the laws and regulations of Berlin (available in German at: http://bit.ly/3H69Efg), Baden-Württemberg (available in German at: https://bit.ly/3HkMOBE), Brandenburg (available in German at: http://bit.ly/3Hl9z8I), Hamburg (available in German at: http://bit.ly/3HmWaNi), North Rhine Westphalia (available in German at: http://bit.ly/3QZ55b0), and Saxony (available in German at: http://bit.ly/3ZUSDNl). Bavaria and Rhineland Palatinate do not have a specific law or regulation on detention.
[12] Federal Government, Reply to parliamentary question by The Left, 19/31669, 4 August 2021, available in German at: https://bit.ly/4awfTGM, 23-25.
[13] Federal Government, Reply to parliamentary question by The Left, 19/31669, 4 August 2021, available in German at: https://bit.ly/4awfTGM, 10.