General

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Responsibility for detention, including detention pending deportation (Abschiebungshaft), lies with the Federal States. Available statistics on detention pending deportation 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 deportation order may take effect regardless of legal remedy, unless a court grants an interim measure suspending such a deportation. 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 deportation 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 deportation does not affect asylum seekers within the scope of the law.

However, 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. More precisely, 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. In 2019, 8,423 persons were transferred following a Dublin procedure, compared to 9,209 in 2018 (see Dublin).

Available statistics seem to confirm this assumption, as they indicate that the number of Dublin transfers preceded by detention is relatively low. For instance, in the Federal State of Hessen, 297 persons were detained in the detention facility of Darmstadt-Eberstadt between March 2018 and June 2019, but only 79 persons (26%) were detained on the basis of Article 28 of the Dublin Regulation.[2] Findings from a survey published in 2018 indicate a similar picture: The Federal State of North Rhine-Westphalia reported that 573 persons were held in its detention facility in Büren in the first half of 2018 for the purpose of deportation, out of whom only 173 persons (30%) were detained following a Dublin transfer order.[3] In the Federal State of Hamburg, there were 101 persons in detention pending deportation in the first half of 2018, but only 12 Dublin detainees.[4] In the Federal State of Lower Saxony, between 1 January and 17 August 2018, only 29 persons had been detained prior to their Dublin transfer.[5] Since several Federal States do not distinguish between detention cases in Dublin procedures and detention based on other grounds, these figures do not necessarily represent the overall situation. Nevertheless, these statistics indicate that the majority of persons in detention pending deportation either have never applied for asylum or are no longer asylum seekers at the time of detention. They also suggest that only a comparatively small number of Dublin transfers (8,423 in 2019) is preceded by detention.

One exception is the situation at the German-Austrian border, where detention orders seem to be issued frequently by the Federal Police, including in Dublin cases. The only available figures were collected for the period between February and July 2017. During that period, the Federal Police requested courts to issue 364 detention orders in Dublin cases, of which 344 were eventually issued by the courts.[6] Another indicator is the number of Dublin transfers which were carried out without the concerned persons having applied for asylum in Germany. In 2019, 550 of such transfers took place.[7] These cases were probably managed by the Federal Police, but it is not clear how many persons were detained prior to their transfer or if these transfers were carried out immediately after a short-term arrest.

Moreover, the number of deportations from Germany (i.e. returns and/or Dublin transfers) has remained relatively stable in recent years:

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.

In the first three months of 2020, 4,088 people were deported from Germany to their countries of origin or other European countries under the Dublin Regulation, most of them to Italy, France, Serbia, Albania and Georgia according to a response from the Federal Ministry of the Interior to a parliamentary information request.[8] This marks a decrease compared to the same period of last year, when 5,613 deportations were carried out, which mainly results from the stop of deportations due to health measures related to the corona virus pandemic.

Nevertheless, an alleged “enforcement deficit” had become the subject of a heated political debate and a “media obsession” in 2018, as the authorities were being criticised for their failure to carry out deportations.[9] Statistics in 2018 indicated that only 26,114 out of 57,000 deportations were effectively carried out.[10] More detailed figures were published for 2019: according to the Government’s statistics, 32,482 scheduled deportations did not take place for a variety of reasons. The most prominent reasons were as follows:

Source: Federal Government, Reply to parliamentary question by The Left, 19/18201, 19 March 2020, 29-37.

The above statistics show that in the overwhelming majority of cases, the reasons for the failure of deportations can be found at the level of local authorities, although it is not clear which exact circumstances led to the cancellation of deportation 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 deportation 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 deportations, due to them staying at another place rather than because they are deliberately avoiding to be arrested.^[11] Nevertheless, despite the lack of empirical evidence, the comparatively high number of cancellations of deportation attempts is usually associated with the absconding of the persons concerned.

Against this background of an alleged “enforcement deficit”, requests for a more frequent use of detention pending deportation were introduced into the political debate, subsequently resulting in a 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 deportation 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 deportation 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 deportation in regular prisons (with certain reservations and limited to a transition period until June 2022), but this new regulation did not have any immediate impact.

In spite of the sometimes-heated political debate and the new legislation, specialised pre-removal detention facilities existed only in eight Federal States in 2019 (see Place of detention). ^[12] The capacity of these detention facilities was still relatively low at the end of 2019 and did not increase significantly in recent years. The high number of deportations and the comparably low capacity of pre-removal detention facilities indicate that the vast majority of deportations 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.

If an asylum application is lodged after a person has been taken into detention pending deportation, 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.