Place of detention

Germany

Country Report: Place of detention Last updated: 30/11/20

Author

Informationsverbund Asyl und Migration Visit Website

Pre-removal detention centres

Detention pending deportation is usually carried out in specialised detention facilities. Since July 2014, when the CJEU ruled that detention for the purpose of removal of illegally staying third-country nationals has to be carried out in specialised detention facilities in all Federal States of Germany,[1] most Federal States which did not have specialised facilities before have announced that the necessary institutions would be established; deportees were sent to facilities in other Federal States in the meantime.

Until August 2019, the use of specialised detention facilities for pre-removal detention was also prescribed by law. However, the relevant provision of Section 62a (1) of the Residence Act was amended as part of the so-called “Orderly Return Act”.[2] Since then, the first sentence of this provision reads:

Persons in detention pending deportation have to be accommodated separately from prisoners [Strafgefangene, i.e. persons detained in the penal system].

This means that detention pending deportation can also be carried out in regular prisons. This provision is in effect until June 2022, since the “Orderly Return Act” foresees that from 1 July 2022 the wording of the provision will again be: “As a rule, detention pending deportation is to be carried out in specialised detention facilities.”[3].

In the Explanatory Memorandum to the Orderly Return Act, the government states that the new provision shall enable the Federal States to create up to 500 additional places for the purpose of detention pending deportation. The stated reason is an alleged acute shortage of such places in the light of a high number of third-country-nationals who are obliged to leave the country. In light of this situation, the government also claims that the new provision is in line with European legislation, namely Article 18(1) of the Return Directive which allows for a derogation from the standards for conditions of detention in emergency situations.[4]

Critics and serious doubts have been raised as to whether Germany is currently facing such an emergency situation. Even if a rising number of persons in detention pending deportation were to be recorded or expected, Federal States would still have enough time and opportunity to raise capacities of specialised institutions accordingly. Thus, the mere inaction of authorities to that end should not justify a breach of European law.[5]

In any case, the new provision does not seem to have had any immediate effect. According to a media report published in January 2020, no Federal State has made use of the possibility to carry out detention pending deportation in regular prisons until the end of 2019. Moreover, most Federal States have made it clear that they did not intend to make use of the provision in the future. Some Federal States had pointed out that regular prisons do not have the capacity to accommodate other detainees. Only two Federal States (Mecklenburg-Western Pomerania and Saxony-Anhalt) were “discussing” whether or not to apply the provision while other States have raised doubts as regards its compliance with European law.[6]

Plans for a combined facility, which nevertheless takes into account the separation of prisoners and pre-removal detainees, were announced in Bavaria during the summer of 2018. According to media reports, both detention facilities are to be built on the same site in the town of Passau. However, the facility for detention pending deportation will be separated from the other buildings by a wall and it will be separately accessible from the outside. Completion of the new facility is scheduled for the end of 2022 at the earliest.[7]

To this day, several pre-removal detention centres are former prisons turned into specialised facilities e.g. Büren in North Rhine-Westphalia, Eichstätt and Erding in Bavaria. Darmstadt-Eberstadt in Hesse.

At the end of 2019, facilities for detention pending deportation existed in nine Federal States:
 

Pre-removal detention facilities in Germany: 2019

Federal State

Location

Maximum capacity

Baden-Württemberg

Pforzheim

51

Bavaria

Eichstätt

Erding

Munich Airport (“Hangar 3”)

96

35

30

Bremen

Bremen

13

Hamburg

Hamburg Airport

20

Hesse

Darmstadt-Eberstadt

Frankfurt Airport

20

 

Lower Saxony

Hannover (Langenhagen)

68

North Rhine-Westphalia

Büren

175

Rhineland-Palatinate

Ingelheim am Rhein

32

Saxony

Dresden

58

Total

12

598

Source: Stefan Keßler, Abschiebungshaft, socialnet.de, 14 January 2019, available in German at: https://bit.ly/2TiNCji and Federal Government, response to parliamentary request by FDP, 19/11676, 16 July 2019, available in German at: https://bit.ly/2xSS26T, 16.

 

The detention facility at Eisenhüttenstadt in the Federal State of Brandenburg was temporarily closed in March 2017 following a report by regulatory authorities which found various structural defects affecting fire safety and other security measures. The facility had not been reopened at the end of 2019. The Federal State of Saxony-Anhalt has announced that a former prison in Dessau-Roßlau will be converted into a detention facility, but it is considered unlikely that this facility will be opened before the end of 2020.[8] Further pre-removal detention facilities are under construction in Bavaria in the towns of Hof (extension of prison, opening scheduled for 2021)[9] and Passau (new facility functioning both as a prison and a pre-removal detention facility, opening scheduled for 2022).[10] Another facility is expected to open in Schleswig-Holstein (Glückstadt) in 2020.[11] This detention facility is to be commonly used by the Federal States of Schleswig-Holstein, Hamburg and Mecklenburg-Western Pomerania. The Federal States of Thuringia and Berlin do not intend to build facilities of their own and only make use of detention facilities in other Federal States.[12]

 

Other types of detention facilities

 

The Federal State of Berlin has established a specialised facility for “persons posing a risk” only (“Gefährder”, i.e. terrorist suspects) with a capacity of 8 to 10 places.

As regards custody pending deportation under Section 62b of the Residence Act (Ausreisegewahrsam), the pre-removal detention facilities in Dresden, Hamburg and Hannover-Langenhagen are used for that purpose.[13] In July 2019 the Federal State of Brandenburg opened a short-term detention facility (only for the purpose of the Ausreisegewahrsam under Section 62b, and reportedly limited to a maximum stay of 48 hours) at the airport of Berlin-Schönefeld, which is located on the territory of Brandenburg.[14] According to the Berlin Refugee Council the Federal State of Berlin may also use the facility at Schönefeld airport for short-term detention.[15]

Airport detention facilities

As mentioned in Grounds for Detention, asylum seekers subject to the airport procedure are de facto detained in facilities near the airport, as their stay is not legally considered to be deprivation of liberty. Since such facilities are managed by the different Federal States, they can differ in typology and even in name.[16]

For example, the airport detention facility at Frankfurt Airport, located in the the “Cargo City Süd”, a large complex of buildings in a restricted area near the airport, is entitled “initial reception centre” (Erstaufnahmeeinrichtung). The centre has a maximum capacity of 105 places. On the other hand, the facility at Munich Airport is located in the “visitors’ park” (Besucherpark) of the airport and its denomination is “airport facility” (Flughafenunterkunft).

Detention facilities used for the airport procedure are not to be confused with pre-removal detention centres which may be located close to the airport e.g. Munich Airport Hangar 3.

 


[1]  CJEU, Joined Cases C-473/13 and C-514/13 Bero v Regierungspraesidium Kassel & Bouzalmane v Kreisverwaltung Kleve, Judgment of 17 July 2014.

[2] Full title: „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.

[3]  Article 6 of the “Second Act for an improved enforcement of the obligation to leave the country”.

[4]  Federal Government, Explanatory memorandum to the Second Act for an improved enforcement of the obligation to leave the country, Parliamenty document no. 19/10047, 42-43.

[5]  Stefan Keßler, Freiheitsentzug ad libitum? Die Auswirkungen des „Hau-Ab-Gesetzes II“ auf die Abschiebungshaft, in: Das Migrationspaket, Beilage zum Asylmagazin 8-9/2019, available in German at: https://bit.ly/3boa7HM, 44-54 (53).

[6]   Spiegel Online, ‚Seehofers Abschiebe-Maßnahme verpufft‘, 3 January 2020, available in German at: https://bit.ly/2LlOf54.

[7] Passauer Neue Presse, ‚JVA Passau wird mit Neubau eigenständig‘, 3 August 2018, available in German at: https://bit.ly/3cG3bH6.

[8] mdr.de, ‚Eröffnungstermin für Dessauer Abschiebegefängnis unklar', 18 June 2019, available in German at: https://bit.ly/2VszTV9.

[9]  jvb-bayern.de, ‚Abschiebungshaft – Erweiterung der Justizvollzugsanstalt Hof‘, 10 December 2019, available in German at: https://bit.ly/2XzxavH.

[10]  Passauer Neue Presse, ‚JVA Passau wird mit Neubau eigenständig‘, 3 August 2018, available at: https://bit.ly/3a7b06I.

[11] ndr.de, Abschiebehaft in Glückstadt ist beschlossene Sache, 21 June 2019, available in German at: https://bit.ly/2RC8XRG.

[12] welt.de, „Die Kapazität genügt nicht dem tatsächlichen Bedarf“, 7 October 2019, available in German at https://bit.ly/2Z2nPNQ.

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

[14]  Initiative 100 Jahre Abschiebehaft, Berlin-Schönefeld (Brandenburg), available in German at: https://bit.ly/3aa9Ze4.

[15]  Flüchtlingsrat Berlin, 100 Jahre Abschiebehaft – 100 Jahre Haft ohne Straftat, 8 May 2019, available in German at: https://bit.ly/2RScKuz.

[16] ECRE, Airport procedures in Germany Gaps in quality and compliance with guarantees, April 2019, available at: https://bit.ly/2QgOmAH.

 

Table of contents

  • Statistics
  • Overview of the legal framework
  • Overview of the main changes since the previous report update
  • Asylum Procedure
  • Reception Conditions
  • Detention of Asylum Seekers
  • Content of International Protection
  • ANNEX I – Transposition of the CEAS in national legislation