Place of detention

Germany

Country Report: Place of detention Last updated: 21/04/22

Author

Paula Hoffmeyer-Zlotnik Visit Website

Pre-removal detention centres

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

This means that detention pending removal 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 removal is to be carried out in specialised detention facilities.”[3] Several Federal States (Berlin, Hesse, Lower Saxony, Mecklenburg-Vorpommern, Saxony Anhalt and Schleswig-Holstein) reported to make use of the possibility of detention in regular prisons at least in individual cases as of March 2021.[4]

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 removal. 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.[5]

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 removal 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.[6] After the CJEU’s general advocate had argued for the incompatibility of the provision in his opinion of 25 November 2021,[7]  the CJEU issued its decision on 10 March 2022.[8]  The Court did not adjudicate on the existence of an emergency situation, but ruled that national courts would have to examine the question when asked to issue a detention order. However, the CJEU argued that an emergency situation cannot be based solely on a high number of persons who are obliged to leave, and that a failure on the side of the state to provide for sufficient specialised detention facilities cannot justify an emergency situation. Furthermore, the court ruled that conditions in detention facilities must not be prison-like if they are to qualify as specialised detention facilities in the sense of the EU Return Directive. According to the lawyer filing the original case, this puts in question some of the existing specialised detention facilities such as Glückstadt in Schlewsig-Holstein or Hof in Bavaria that are surrounded by high walls and barbed wire.[9]

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 removal 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.[10]

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 Bavariaand Darmstadt-Eberstadt in Hesse.

In 2021, two new detention facilities opened: one in Glückstadt, Schleswig-Holstein, which is used by the Federal States Schleswig-Holstein, Hamburg, Mecklenburg-Vorpommern and has the capacity to accommodate up to 60 people,[11] and one in Hof, Bavaria. The detention centre in Hof can accommodate a total of 150 people, making it the second largest detention centre in Germany. At Munich airport, a new detention centre was opened in January 2022 which replaced the more provisional detention facility “Hangar 3”.[12]

The Federal State of Saxony-Anhalt had been planning to convert a former prison in Dessau-Roßlau into a detention facility, but this was abandoned in January 2021 as the necessary renovation works turned out to be too expensive.[13] According to press reports, the government of North Rhine-Westphalia is planning a second detention facility near Düsseldorf airport that should be used mainly for custody pending departure, with a capacity of around 25 places.[14] 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.[15]

At the beginning of 2022, facilities for detention pending removal existed in ten Federal States:

Pre-removal detention facilities in Germany: 2021
Federal State Location Maximum capacity
Baden-Württemberg Pforzheim 51
Bavaria Eichstätt

Erding

Munich Airport

Hof

96

35

22

150

Bremen Bremen 16
Hamburg Hamburg Airport 20
Hesse Darmstadt-Eberstadt

Frankfurt Airport

80

 

Lower Saxony Hannover (Langenhagen) 48
North Rhine-Westphalia Büren 175
Rhineland-Palatinate Ingelheim am Rhein 40
Saxony Dresden 58
Schleswig-Holstein Glückstadt 60
Total 14 821

Source: Source. Federal Government, Reply to parliamentary question by The Left, 19/31669, 4 August 2021, 23.

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.

 Persons in custody pending removal under Section 62b of the Residence Act (Ausreisegewahrsam) are usually detained in general detention facilities. However, not all Federal States differentiate between pre-removal detention and custody in available statistics.[16]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.[17] According to the Berlin Refugee Council the Federal State of Berlin may also use the facility at Schönefeld airport for short-term detention.[18]

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.[19]

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). The new facility opened in January 2022 hosts both pre-removal detention and the “transit centre” for persons subject to the airport procedure.[20] At the new airport of Berlin (BER), the opening of a new “arrival and departure centre” is foreseen for 2024. The centre will include facilities to carry out the airport procedure but also facilities and personnel from other authorities which are involved in the return procedure such as the Federal Police, local courts, the public prosecutor’s office and the municipal authority.[21]

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. the Munich Airport detention centre or the detention centre in Hamburg.

 

 

 

 

[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, Reply to parliamentary question by The Left, 19/31669, 4 August 2021, 6,8, 18-20.

[5] 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.

[6] 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).

[7] CJEU, Case C‑519/20, opinion available at https://bit.ly/3rFSkG3

[8] CJEU, Case C‑519/20, 10 March 2022, available in German at: https://bit.ly/3NtZt6u.

[9]PRO ASYL, ‘Abschiebehaft: Der EuGH schiebt Deutschland einen Riegel vor’, 16 March 2022, available in German at: https://bit.ly/3wIGz5S

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

[11] NDR, ‘Abschiebehaft in Glückstadt fertig, Insassen sollen bald kommen’, 5 August 2021, available in German at https://bit.ly/33L1toG.

[12] Süddeutsche Zeitung, ‘Hafteinrichtung am Airport: “Überteuertes Symbol bayerischer Abschreckung“’, 12 January 2022, available in German at https://bit.ly/33XJcEG

[13] Mdr.de, ‘Abschiebegefängnis in Dessau kommt nicht’, 29 January 2021, Available in German at https://bit.ly/3GW47GO  

[14]          100-jahre-aschiebehaft.de, ‘Land NRW will neue Haftplätze schaffen’, Press statement of “Hilfe für Menschen in Abschiebehaft Büren”, 9 September 2021, available in German at: https://bit.ly/3NrZyaT.

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

[16]  Federal Government, Reply to parliamentary question by The Left, 19/31669, 4 August 2021.

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

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

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

[20] Süddeutsche Zeitung, ‘Hafteinrichtung am Airport: “Überteuertes Symbol bayerischer Abschreckung“’, 12 January 2022, available in German at https://bit.ly/33XJcEG

[21] Information provided by the BAMF, 10 March 2022.

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