According to the law, there are two possibilities for the detention of asylum seekers whose application is still pending. The first relates to asylum applications which are lodged by people who are already in detention, in particular those:
- In pre-trial detention;
- In prison (following a conviction for a criminal or other offence); or
- In detention pending removal (Abschiebungshaft).
An asylum application lodged after a foreigner has been detained for the purpose of removal does not always lead to release from detention, as detention is legally possible under certain circumstances. However, it has to be noted that detention pending removal, ordered solely on the grounds of illegal border crossing, is in itself not a sufficient reason to uphold such detention in case an asylum application is lodged. In addition, the authorities have to prove that there are further reasons for the prolongation of detention, such as a risk of absconding or an illegal stay for a duration of one month.
The second possibility for detention during the asylum procedure was introduced in 2020 and relates to 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 (Section 62c Residence Act). According to the government, the provision is meant to allow for the detention of persons who are obliged to leave the country and who file an asylum application.[1] NGOs such as PRO ASYL and the Federal Association for Unaccompanied Minors heavily criticised the new provision as it contains no safeguards for vulnerable groups and lacks a proper legal basis in the grounds for detention as provided by the EU Reception Conditions Directive.[2]
If the lodging of an asylum application does not lead to release from detention, a detained person may be kept in detention for 4 weeks or until the BAMF has decided upon the case. Detention may even be upheld beyond that period if another country has been requested to admit or re-admit the foreigner on the basis of European law, i.e. the Dublin Regulation, or if the application for international protection has been rejected as inadmissible or as manifestly unfounded.[3]
Pre-removal detention (Abschiebungshaft)
The German Constitution provides that detention may only be ordered by a judge. The responsible authorities may only take a person into custody if there is reason to believe that this person is trying to abscond to avoid removal and if a judge cannot be requested to issue a detention order beforehand. In such cases, the detention order must be subsequently obtained from a court as soon as possible.
A judge may issue a detention order as ‘preparatory detention’ (Vorbereitungshaft) in cases of persons who have been expelled (usually following a criminal conviction) and in cases of persons who have been given a removal order on the grounds that they pose a risk to national security.[4] In most cases, however, a detention order is issued for the purpose of ‘securing the removal’ (Sicherungshaft). This type of detention is defined in Section 62(3) of the Residence Act.
This provision underwent a major amendment in August 2019 as part of the so-called 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). Section 62(3) of the Residence Act now states that a foreigner shall be placed in detention pending removal ‘if:[5]
- there is a risk of absconding;
- the foreigner is required to leave the country on account that they entered the territory unlawfully;
- a removal order has been issued pursuant to Section 58a [against persons who have been expelled or who have been found to pose a risk to national security] but is not immediately enforceable’.
However, detention remains lawful only when removal cannot be ensured by other, less severe means.[6] Authorities have discretion to refrain from ordering detention if the person credibly demonstrates that they do not intend to evade the removal.[7] The detention order is unlawful in cases where it is clear that the removal cannot take place within 3 months for reason outside the control of the detained person.[8] This period was extended to six months for persons with a criminal conviction (unless the person is subjected to juvenile criminal law) with a reform that entered into force on 31 December 2022.[9]
Risk of absconding
With the 2019 amendments, two new sub-paragraphs 62(3a) and 62(3b) Residence Act were introduced which contain an extensive definition of the grounds which may lead to the assumption of the risk of absconding (Fluchtgefahr). According to section 62(3a) a risk of absconding is to be assumed (as a refutable assumption), if:[10]
- the foreigner is providing the authorities with misleading information about their identity or has done so in connection with the planned removal or with possible impediments to removal and has not corrected false information on his/her own initiative, in particular by withholding or destroying documents or by claiming a false identity;
- the foreigner has been asked to remain at the disposal of the authorities at a certain place to carry out an official hearing or a medical examination and was not present at this place without good reason;
- the deadline set for leaving the country has expired and the foreigner has changed their place of residence without notifying the foreigners‘ authority of an address at which they can be reached, in spite of having been informed about his/her obligation to do so;
- the foreigner has been banned from (re-)entering Germany and has not been granted an exceptional permission to enter Germany in spite of such a ban;
- the foreigner has avoided removal in the past;
- the foreigner has expressly declared that they will resist removal.
Section 62(3b) of the Residence Act then defines ‘specific indications’ for a risk of absconding as follows:
- The foreigner has provided the authorities with misleading information about their identity in a manner which might result in an impediment to removal and has not corrected this piece of information on his/her own initiative, in particular by withholding or destroying documents or by claiming a false identity;
- The foreigner has paid substantial amounts of money, in particular to a third person [a smuggler or a trafficker] and it can be concluded under the individual circumstances that they will resist removal, because otherwise their expenditures would have been of no avail;
- The foreigner poses a significant risk to life and limb of third persons or to ‘significant legal interests of national security’;
- The foreigner has been sentenced repeatedly to at least one prison term for intentional criminal offenses;
- The foreigner has failed to obtain a passport or has refused or omitted to cooperate with authorities to fulfil other legal requirements for the clarification of his/her identity. The foreigner must have been informed in advance about the possibility of detention in case they did not comply with the aforementioned obligations;
- The foreigner has repeatedly failed to comply with an obligation imposed by the authorities to take up residence in a particular region or place [residence obligation] or with other obligations imposed by the authorities to secure and enforce the removal order;
- A foreigner who has entered the country legally but is now obliged to leave, cannot be apprehended by the authorities, because they do not have a place of residence at which they are predominantly staying.
It has been noted that the relationship between the newly introduced sub-paragraphs 62(3a) and 62(3b) Residence Act is not entirely clear.[11] The Explanatory Memorandum to the new Act states that the ‘indications’ listed in Section 62(3b) aim to define the more concrete grounds, whereas the ‘assumptions’ listed in Section 62(3a) ‘allow for a more reliable prognosis’ as to whether a person is trying to avoid removal.[12] This seems to imply that the ‘assumptions’ listed in sub-paragraph 3a are supposed to serve as additional grounds for detention, while the concrete evidence as listed in Section 3b would provide the basis for a possible detention order as ‘objective criteria’. However, the wording of the law does not support this interpretation: according to the law, a detention order can be based both on the ‘assumptions’ of sub-paragraph 3a and on the ‘indications’ of sub-paragraph 3b. The 2019 amendments therefore simply seem to have expanded the list of possible grounds for detention, rather than clarifying the preconditions for detention orders.
The new provisions have been criticised for their contradiction with the principle of detention as a ‘last resort’. Furthermore, it has been pointed out that the concept of a ‘refutable assumption’ as it is now set out in paragraph 3a is vaguely worded and places the full burden of proof on the individual who has to provide evidence that he/she is not trying to evade removal. Furthermore, Article 15 of the Return Directive (2008/115/EC) does not refer to the concept of a ‘refutable assumption’ as sufficient grounds for a detention order. For this reason, it is doubtful whether the amendments, in particular the concept of the ‘refutable assumption’ of sub-paragraph 3a are in line with the Return Directive.[13]
Detention in the context of the Dublin procedure
Section 2(14) of the Residence Act further contains special provisions for detention in the course of Dublin procedures (also referred to as Überstellungsgewahrsam/transfer detention). As a general rule, this section provides that most of the grounds for detention referred to above have to be regarded in the context of this provision as well: thus, the grounds listed in Section 62(3a) of the Residence Act shall apply accordingly to constitute a ‘refutable assumption for a risk of absconding within the meaning of Article 2 of the Dublin III Regulation.’ The grounds listed in Section 62 (3b) No. 1-5 of the Residence Act shall be regarded as objective criteria to assess a risk of absconding within the meaning of Article 2(n) of the Dublin III Regulation.
With the general reference to the ‘risk of absconding’ as defined in Section 62, the expansion of possible grounds for detention is now applicable to the transfer detention in Dublin cases as well. NGOs have raised doubts as regards the compliance of this provision with the Dublin III Regulation.[14] According to the latter, Member States may detain the person concerned only if there is a significant risk of absconding and on the basis of an individual assessment (Article 28 II of the Dublin III Regulation). In contrast, German law now lists numerous grounds for detention, some of which are vaguely worded thus raising the question as to whether they constitute significant reasons to assume a risk of absconding.
In addition, Section 2(14) of the Residence Act defines two other criteria for a ‘risk of absconding’:
- An asylum seeker has left another Dublin Member State before their asylum procedure (or Dublin procedure) had been concluded in this state and if there is no indication that they are going to return to the responsible Member State in the near future.
- An asylum seeker has repeatedly applied for asylum in another Dublin Member State (or several other Dublin Member States) and has left this state before the asylum procedure had been concluded.[15]
Through the introduction of another amendment in 2019, which is similar to an existing provision on detention pending removal, the authorities are now expressly given competence to temporarily detain people if there is a risk of absconding and if a court order cannot be obtained immediately. This can be regarded as providing a legal basis for what has been common practice. In these cases, authorities have to present the case to a court as soon as possible (Section 2 XIV 4th sentence of the Residence Act).
Custody pending departure (Ausreisegewahrsam)
According to Section 62b of the Residence Act, ‘custody pending departure’ can be carried out in the transit zones of airports or in other facilities ‘from where a direct departure is possible without having to cross a long distance to reach a border crossing point’.[16] This form of detention is limited to a period of 10 days and shall apply in cases in which the deadline for leaving the country has expired and in which an immediate removal (i.e. a removal within the time-limit of 10 days) is feasible. The foreigner must further have ‘displayed a behaviour which leads one to assume that he/she will make the removal more difficult or impossible.’
An amendment which took effect in August 2019 as part of 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) now further defines the grounds for this assumption. According to this provision, it is to be assumed that a foreigner is likely to obstruct removal measures, if:
- they violated their legal obligations to cooperate;
- they misled the authorities on their identity or nationality;
- they have been convicted of intentionally committing a criminal offence (with the exception of offences which are subject to a fine of up to 50 daily rates)
- they have exceeded the deadline allowed for voluntary departure by more than 30 days.’
Custody pending departure is subject to the same rules as the regular pre-removal detention procedure. A court order is therefore necessary and the detention can only be carried out in specialised facilities.[17] Between 2018 and 2021, custody pending departure was carried out in 10 out of 16 Federal States.[18]
Detention to enforce cooperation (Mitwirkungshaft)
The amendments introduced in 2019 through the ‘Orderly Return Act’ (Geordnete-Rückkehr-Gesetz) also established a new ground of detention to ‘enforce cooperation’ with the authorities (Mitwirkungshaft, Section 62 (6) Residence Act). This form of detention may only be applied in the following cases:
- Failure to appear in person at the diplomatic mission or at a meeting with authorised officials of the foreigner’s assumed state of origin;
- Failure to appear in person for a medical examination for the purpose to establishing the foreigner’s ability to travel.
The maximum period foreseen for this detention ground is 14 days and is subject to a court order, which means that the authorities may not carry out short-term arrests on the basis of this provision. There is no information or case-law available as to whether this ground for detention has been implemented since it entered into force in August 2019. In January 2020 media reports seemed to suggest that the new ‘detention to enforce cooperation’ had not been used yet,[19] but it was not entirely clear from these reports which type of detention they were referring to.
De facto detention at the airport
Asylum seekers can be apprehended and de facto detained in the transit zone of an international airport. Although they are confined within the premises of a dedicated facility for the duration of the airport procedure, according to the Federal Constitutional Court, being held at the transit zone is not considered as detention in terms of the law.[20]
In practice, the applicant receives a decision of placement in the facility. For example, persons placed in the detention centre of Munich Airport receive a ‘notification of residence in the airport facility’ (Bescheinigung für den Aufenthalt in der Flughafenunterkunft) for the purpose of the airport procedure under Section 18a of the Asylum Act. This notification expressly states that this form of residence is not a freedom-restrictive measure. The fiction of non-entry into the territory is maintained, even if the person has been transferred to a hospital or to court. Police officers have to escort the person wherever they go outside the facility for the fiction to be maintained.[21]
[1] Deutscher Bundestag, ‘Bundestag verschiebt Zensus in das Jahr 2022, 5 November 2020, avilabe in German at https://bit.ly/3H2nY6U.
[2] PRO ASYL, Stellungnahme zum Entwurf eines Gesetzes zur Einführung eines § 62c Aufenthaltsgesetz’, 16 July 2019, available in German at https://bit.ly/3ItbtSy.
[3] Section 14(3) Asylum Act.
[4] Section 62(2) Residence Act.
[5] Unofficial translation by the author, with minor abridgements.
[6] Section 62(1) Residence Act.
[7] Section 62(3) Residence Act.
[8] Section 62(3) Residence Act
[9] Section 62(3) Residence Act.
[10] Unofficial translation by the author, with abridgements.
[11] 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 (45).
[12] Explanatory memorandum to draft bill, Parliamentary document 19/10047, 10 May 2019, 39.
[13] PRO ASYL, Stellungnahme zum Entwurf eines Zweiten Gesetzes zur besseren Durchsetzung der Ausreisepflicht (BT-Drucksache 19/10047), 29 May 2019, available in German at https://bit.ly/2WqrSlt, 16.
[14] Ibid., 5.
[15] PRO ASYL, Stellungnahme zum Entwurf eines Zweiten Gesetzes zur besseren Durchsetzung der Ausreisepflicht (BT-Drucksache 19/10047), 29 May 2019, available in German at https://bit.ly/2WqrSlt, 5.
[16] Section 62b(2) Residence Act.
[17] Section 62b(3) Residence Act.
[18] Federal Government, Reply to parliamentary question by The Left, 19/31669, 4 August 2021.
[19] br.de,Bericht: ‚Kein Bundesland nutzt ‘Geordnete-Rückkehr-Gesetz’‘, 3. January 2020.
[20] Federal Constitutional Court, Decision of 14 May 1996, 2 BvR 1516/93. See also Federal Supreme Court, Decision V ZB 170/16, 16 March 2017, available in German at: http://bit.ly/2oRx9B4.
[21] See also: ECRE, Airport procedures in Germany: Gaps in quality and compliance with guarantees, May 2019, available at: https://bit.ly/2ZgTn2H.