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). 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. Therefore, detention pending removal generally does not affect asylum seekers within the scope of the law. However, a new provision of the Residence Act introduced in 2020 allows for 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).

It has to be noted that 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 occurs in Dublin cases in order to prepare the transfer to the responsible Member State. Transfers are usually preceded by arrests and police custody, which usually lasts for a very short period of time since many people are transferred on the same day.

The majority of the Federal States (9 out of 16) do not differentiate between detention in the context of a Dublin transfer or a return decision. Nevertheless, statistics provided by the other seven Federal States  indicate that persons detained for a Dublin transfer made up between 0% and 25% of all detainees in 2020,[2] with an overall average of 20.8 % (2019: average of 30.8 %, 2018: average of 34.4 %).[3] 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.[4] In 2020, 2,953 persons were transferred following a Dublin procedure, compared to 8,423  in 2019 and 9,209 in 2018 (see Dublin).

Specialised pre-removal detention facilities existed in twelve Federal States in 2021 (see Place of detention). ^[5] The capacity of these detention facilities has increased significantly in recent years, from around 400 places in 2016,[6] to 821 available places at the beginning of 2022.[7] 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, suspending removals for a certain period (see below).

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 and reply to written question by Bernd Baumann (AfD), 20/765, 17.

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

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 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 any other interview carried out in a branch office of the BAMF. All interviews with detained applicants are conducted by the BAMF in person.

Detention during the Covid-19 pandemic

A number of Federal States released detainees at the outset of the Covid-19 outbreak in Germany since removals and Dublin transfers were temporarily suspended. As of mid-April 2020, there were still between 25 and 30 persons in detention, however.[8] By way of example, the Bavarian authorities reported an important decrease in the number of persons detained in the spring of 2020 as detainees were released on the ground that their removal was no longer imminent due to travel restrictions. Detention numbers started to increase again in the summer of 2020, but with reduced capacities in detention facilities.[9] In Rhineland Palatinate, no one was in detention the months of April and May 2020, whereas the numbers have been rising again since the summer of 2020.[10] Detention conditions, including access for visitors and support groups, continue to be impacted by Covid-19 related restrictions however.

Over the course of 2020, the detention facilities in Büren (North Rhine Westphalia),[11] and the closed detention facility in Eisenhüttenstadt (Brandenburg),[12] were used for the detention of asylum seekers who had violated quarantine rules in reception facilities. This practice was criticised as discriminatory and racist, as this type of detention generally only applied to asylum seekers.[13] The practice, which authorities based on the infection protection law, was ruled unlawful by a Court in Paderborn in October 2021.[14]

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.[15] This has led to the demand for increased use of detention in the removal procedure. Available statistics on the year 2021 indicate that a total of 16,407removals failed, compared to 11,982 effective removals.[16] The most prominent reasons for failure to carry out removals were as follows:

Source: Federal Government, Reply to parliamentary question by The Left, 20/890, 2 March 2022, 20, 27.

The above statistics show that in the overwhelming majority of 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.). 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 to be arrested.^[17] Nevertheless, despite the lack of empirical evidence, the comparatively high number of cancellations of removal attempts is usually associated with the absconding of the persons concerned.

In 2019, requests for a more frequent use of detention pending removal in the political debate resulted in new legislation which came into force in August 2019 through 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). As far as arrest and detention of persons to be deported are concerned, this Act introduced the following changes:

• Authorities were granted new powers to access and enter private apartments in order to search for persons to be deported (Section 58 Residence Act).
• It is now expressly regulated in the law that authorities carrying out a removal are entitled to arrest the person concerned. Thus, this short-term custody (Festhalten) is now legally distinguished from “detention” and is not subject to a court order. It has to be limited to the “inevitable” period of time which is necessary to transport the persons to be deported to the airport or to a border control point (Section 58 IV Residence Act). This new provision creates a legal basis for what has already been common practice.
• The grounds for detention pending removal were re-organised and expanded in the text of the law, in particular by adding new criteria to the definition of „risk of absconding“ (Section 62 Residence Act, see below: Legal framework of detention).
• A new legal instrument was established with a form of “detention to enforce the obligation to cooperate” with authorities (Mitwirkungshaft. Section 62 VI Residence Act).
• Furthermore, the law also allows for the execution of detention pending removal in regular prisons (with certain reservations and limited to a transition period until June 2022). Several Federal States (Berlin, Hesse, Lower Saxony, Mecklenburg-Vorpommern, Saxony Anhalt and Schleswig-Holstein) reported to make use of this possibility at least in individual cases as of March 2021.[18]

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 (see Grounds for detention).

[1] Section 67 Asylum Act.

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

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

[4] 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.

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

[6] 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, p. 38, available in English at https://bit.ly/3fRwsln

[7] For existing and planned facilities and their capacities as of 31 March 2021, see Federal Government, Reply to parliamentary question by The Left, 19/31669, 4 August 2021, 23. Two of the planned facilities (Glückstadt in Schleswig-Holstein and Hof in Bavaria) have been opened as of January 2022.

[8]  ECRE, Information Sheet 28 May 2020: Covid-19 Measures Related to Asylum and Migration Across Europe, available at: https://bit.ly/3lMPtZD;

[9]  Federal Government, Reply to parliamentary question by The Left, 19/31669, 4 August 2021, 3.

[10] Federal Government, Reply to parliamentary question by The Left, 19/31669, 4 August 2021, 5.

[11]         Hilfe für Menschen in Abschiebehaft Büren e.V., ‚Corona-Flüchtlingshaftanstalt Büren‘, 26 April 2020, available in German at: https://bit.ly/3uQmGr9.

[12] Neues deutschland, ‘Quarantäne-Verweigerer im Abschiebeknast‘, 10 February 2021, available in German at https://bit.ly/36VF4qg. 

[13]  Hilfe für Menschen in Abschiebehaft Büren e.V., ‚Corona-Flüchtlingshaftanstalt Büren‘, 26 April 2020, available in German at: https://bit.ly/3uQmGr9.

[14]  100-jahre-aschiebehaft.de, ‘Rassistische Corona-Absonderungshaft in Büren war rechtswidrig’, 31 October 2021, available in German at: https://bit.ly/3NrZyaT.

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

[16]  Federal Government, Reply to parliamentary question by The Left, 20/890, 2 March 2022, 20, 27.

[17]Brief analysis of Dr. Thomas Hohlfeld (assistant to the parliamentary group of The Left) of the Federal Governments reply 19/17100, 20 March 2020, 5.

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