Changes following the Act on the Improvement of Removals 2024:
- The new law foresees a possibility for authorities to file a complaint against the refusal by courts to order detention[1]
Under German law, only a judge is competent for the order and the prolongation of detention. The responsible courts are the District Courts (Amtsgericht) and their decision can be challenged at a Regional Court (Landgericht), in another instance at High Regional Courts (Oberlandesgericht) and under certain conditions before the Federal Supreme Court (Bundesgerichtshof) as final instance.
The authorities therefore must apply to the court for a detention order. The application has to lay out the detailed reasons for the necessity of detention and the authorities’ entire file should be presented to the court. The foreigners should be heard by the court and shall be able to call witnesses. In cases of detention pending removal, this may be particularly relevant if the detention order is based on an alleged risk of absconding and the foreigners have to prove that they have an address at which they can be reached by the authorities. Before the hearing at the court, the foreigner has to receive a copy of the request for detention (Haftantrag) which the authorities have filed. This copy has to be orally translated if necessary.[2] Case law also states that the foreigner shall have sufficient time to prepare an answer to the content of the authorities’ request. This means that it can be sufficient to hand out the request immediately before the hearing if the content is simple and easily understandable. In other cases, if the content is more complicated, it can be necessary that the foreigner is handed out the authorities’ request in advance of the hearing.[3] The court has to inform the foreigner of all possible legal remedies against the detention order and this information has to be translated if necessary.
Detention pending removal can only be ordered or prolonged if there is a possibility for the removal to be carried out in the near future. The maximum duration of detention therefore has to be expressly stated in the detention order. The immigration authority has the responsibility to monitor whether the grounds for detention continue to apply and, according to administrative guidelines of the Federal Ministry of the Interior and Community, ‘shall immediately suspend the execution of detention for up to one week and immediately apply for the revocation of the order if the grounds on which it was based no longer exist (62.3.3 of the General Administrative Regulation to the Residence Act)’.[4] Once the requested period of detention has expired, the detained person either has to be released or an automatic judicial review of detention takes place.[5]
In spite of the safeguards outlined above, the system of ordering detention pending removal has been severely criticised by lawyers for alleged violations of the standards applicable to detention. In particular, it has been noted that judges frequently issue orders for detention pending removal even if authorities’ applications for detention orders do not lay out sufficient reasons as to why detention is necessary.[6] A monitoring project on removals in North Rhine Westphalia reports that persons are frequently arrested and taken into detention when they come to the immigration authorities for appointments.[7] The Convention of Legal Advisors (Rechtsberaterkonferenz), a group of lawyers cooperating with German welfare organisations on asylum matters, notes that detention pending removal is again ordered ‘too often and too easily’. According to them, this development began with a political ‘change of climate’ in 2016 and public debate based on ‘misleading, partly wrong information’ on the number of persons who were obliged to leave the country.[8]
There are no encompassing statistics regarding judicial review of detention.[9] Available information is thus based on testimonies and data collected by activists, lawyers and NGOs.
In December 2019, a local activist from North Rhine-Westphalia claimed in an interview that both the local authorities (which apply for a detention order), and the local courts (which decide upon these applications), often ‘have no idea of what they are doing’. Both institutions therefore would often ignore the most basic standards and procedural guarantees.[10] Common mistakes included:
- Court decisions are based on outdated laws;
- The application for a detention order is not handed out to the person concerned and is not translated;
- An interpreter has to be present at the court hearing and they must have sufficient language skills both in the language of the person concerned and in German. This is not always taken care of in practice.
Because these standards were often ignored, an estimated 50% of complaints to higher courts were successful and the detention orders issued by the local courts were found to be unlawful, according to the activist (see also below). Other sources seem to confirm that local courts often do not sufficiently examine whether the detention order is necessary and proportionate and it has been further reported that basic procedural standards are sometimes violated.[11] The Federal Supreme Court has therefore frequently ruled such detention orders as unlawful. According to the lawyer Peter Fahlbusch, this occurred in around two thirds of all cases brought before the Federal Supreme Court in 2021.[12] Recent decisions of the Federal Supreme Court in which a detention order was ruled unlawful include cases where:
- The detention order was not given by a judge but by an executive authority without due justification of not awaiting a court order; [13]
- A lawyer was not given the opportunity to attend a hearing;[14]
- Authorities had not given sufficient reasons to justify the duration of detention. The authorities have to explain which organisational steps justify the period of detention they have applied for.[15] Simply stating that a Dublin transfer to Italy ‘might take place in between 6 and 8 weeks’[16] was not deemed sufficient. Similarly, the fact that a person has been booked on a charter flight is not sufficient if the authorities do not lay out why an earlier removal is not possible.[17]
- The authorities were not able to justify the necessity and the proportionality of a 21 days pre-removal detention period;[18]
- The court had wrongfully assumed that a delay in presenting identity documents was in itself constituting a ‘risk of absconding’;[19]
- The detainee had filed a secondary application for asylum that was accepted as admissible by the BAMF,[20]
- The Court had not examined the person’s casefile before ordering detention;[21]
- The Court failed to adequately assess the risk of absconding by taking into account all available evidence[22] or has assumed the risk solely based on a previous evasion of removal by the detainee;[23]
- The detention resulted in an unjustified separation of a mother and her minor children;[24]
- The Court had not sufficiently examined whether the detainee was a minor;[25]
- The authorities did not adequately speed up the removal procedure;[26]
- The authorities did not give an estimation of the time required to procure the necessary travel documents and whether this can occur in parallel to the organisation of security escort during the removal.[27]
Many other court decisions collected in the case law database of asyl.net also demonstrate that court orders issued by local courts are frequently overturned by higher courts.[28] However, in many cases this does not result in a release since the court procedures take much longer than the average duration of detention – often, persons have been removed by the time their detention is declared unlawful.[29]
Lawyer Peter Fahlbusch (from Hannover) regularly publishes statistics on the cases that were represented by his law firm. According to these numbers, half of the detention orders that have been issued by local courts since 2002 were overturned in further proceedings. According to Peter Fahlbusch, the firm represented 2,458 clients who were in detention pending removal between 2001 and October 2023. In 1,283 of these cases (52.2%), courts found detention orders to be unlawful. For the clients affected, this had resulted in about four weeks of detention on average (25.8 days). Peter Fahlbusch reports that these figures have remained almost the same over the years.[30]
Support groups who work with detainees in specific detention centres report lower shares of unlawful detention orders compared to the total number of persons detained.[31] This is related to the fact that detainees often do not have access to legal representation or other types of support from the start, and that in many cases filing a legal challenge would take longer than the actual duration of detention and does not hinder removal (see above). Furthermore, court orders that are issued after detention has ended are not systematically entered into statistics.[32]
[1] Federal Government, Draft Bill of the Act to Improve Removals (Entwurf eines Gesetzes zur Verbesserung der Rückführung (Rückführungsverbesserungsgesetz)), available in German at: https://bit.ly/49CaKMs, 18; Section 62 Act on Proceedings in Family Matters and in Matters of Non-contentious Jurisdiction.
[2] Federal Supreme Court, Decision V ZB 67/12, 18 April 2013, available in German at: https://bit.ly/3NDf9pD.
[3] Federal Supreme Court, Decision V ZB 141/11, 1 July 2011, available in German at: https://bit.ly/3TxzccY.
[4] 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, available at: https://bit.ly/3fRwsln, 37.
[5] 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, available at: https://bit.ly/3fRwsln, 37.
[6] This is a recurrent concern. See Peter Fahlbusch, Haft in Verfahren nach der Dublin II-Verordnung, Asylmagazin 9/2010, 289-295, Die Rechtsberaterkonferenz, 50 Forderungen zum Flüchtlings-, Aufenthalts, Staatsangehörigkeits- und Sozialrecht, November 2017, available in German at: https://bit.ly/48kVKSN, 32-34. See also Positionspaper Pflichtbeiordnung von Anwält:innen in der Abschiebungshaft, available in German at: http://bit.ly/3knqnTl, preliminary remark of parliamentary group of The Left in Federal Government, Reply to parliamentary question by The Left, 19/5817, 16 November 2018, available in German at: https://bit.ly/485NINs, 2.
[7] Abschiebungsreporting NRW, Ausländerbehörden als Orte der Angst, 19 December 2022, availbale in German at: http://bit.ly/3X2KCU3.
[8] Die Rechtsberaterkonferenz, 50 Forderungen zum Flüchtlings-, Aufenthalts, Staatsangehörigkeits- und Sozialrecht, November 2017, available in German at: https://bit.ly/48kVKSN, 32-34. See also PRO ASYL, »Es ist skandalös, welche Fehler in Abschiebungshaft passieren«, 29 July 2022, available in German at: http://bit.ly/3JH3FQF.
[9] Individual Federal States have provided some numbers on court proceedings or on revocation of detention orders by courts, but they do not allow to assess their overall number or rate of success, see Federal Government, Reply to parliamentary question by The Left, 19/31669, 4 August 2021, available in German at: https://bit.ly/4awfTGM, 25 et seq. The only Federal States which report both the number of detention orders and the number of such orders revoked again by courts are Saxony (5 out of 50 revoked in 2021, 4 out of 109 in 2020), Saxony Anhalt (for 2020 only, 3 out of 31) and Schleswig Holstein (1 out of 9 in 2021, 1 out of 16 in 2020).
[10] ze.tt, Eingesperrt ohne Straftat: So sind die Bedingungen in einem Abschiebegefängnis, 14 December 2019, available at: https://bit.ly/2T0KZ3g.
[11] Stefan Keßler, Abschiebungshaft, socialnet.de, 14 January 2019, available in German at: https://bit.ly/2TiNCji.
[12] PRO ASYL, »Es ist skandalös, welche Fehler in Abschiebungshaft passieren«, 29 July 2022, available in German at: http://bit.ly/3JH3FQF.
[13] Federal Constitutional Court (BVerfG), Decision 2 BvR 2247/19, 10 February 2022, ayyl.net: M30479, available in German at: https://bit.ly/3tnBDnL.
[14] Federal Supreme Court, Decision XIII ZB 49/20, 12 September 2023, asyl.net: M31947; Federal Supreme Court, Decision XIII ZB 74/20, 22 February 2022, asy.net: M30748; Decision XIII ZB 158/20, 31 August 2021, Federal Supreme Court, Decision XIII ZB 34/19, 12 November 2019, asyl.net: M27939, available in German at: https://bit.ly/2Z96SBc; and Federal Supreme Court, Decision V ZB 79/18, 6 December 2018, available in German at: https://bit.ly/2EQAPeO.
[15] Federal Supreme Court, Decision XIII ZB 68/20 – 12 September 2023, asyl.net: M31909; Federal Supreme Court, Decision XIII ZB 40/20, 20 December 2022, asyl.net: M31336; Federal Supreme Court, Decision V ZB 62/18 – 24 January 2019, asyl.net: M27471, available in German at: https://bit.ly/2YXsIrw. See also Federal Supreme Court, Decision XIII ZB 12/20 of 31 August 2021, available in German at: https://bit.ly/3uAymOo and Federal Supreme Court, Decision XIII ZB 30/19 of 20 May 2020, available in German at: https://bit.ly/3Nw8n3o.
[16] Federal Supreme Court, Decision V ZB 62/18 – 24 January 2019, asyl.net: M27471.
[17] Federal Supreme Court, Decision XIII ZB 68/20 – 12 September 2023, asyl.net: M31909
[18] Federal Supreme Court, Decision V ZB 54/18, 22 November 2018, available in German at: https://bit.ly/2IWq4vP. See also Federal Supreme Court, Decision XIII ZB 125/19 of 25 August 2020, available in German at: https://bit.ly/35s758s.
[19] Federal Supreme Court, Decision V ZB 151/17, 13 September 2018, available in German at: https://bit.ly/2SL9wqg.
[20] Federal Supreme Court, Decision XIII ZB 10/21, 20 July 2021, available in German at: https://bit.ly/3NIoBXk.
[21] Federal Constitutional Court, Decision 2 BvR 2345/16 of of 14 May 2020, available in German at: https://bit.ly/36VlPwP.
[22] Federal Supreme Court, Decision XIII ZB 29/20, 18 July 2023, asyl.net: M31835.
[23] Federal Supreme Court, Decision XIII ZB 47/20 of 20 April 2021, available in German at: https://bit.ly/38h83pb.
[24] Federal Supreme Court, Decision XIII ZB 95/19, 23 March 2021, available in German at: https://bit.ly/3LnImRZ.
[25] Federal Supreme Court, Decision XIII ZB 101/19, 25 August 2020, available in German at: https://bit.ly/3wKJQ4E.
[26] Federal Supreme Court, Decision XIII ZB 9/19, 24 June 2020, available in German at: https://bit.ly/3uGHfG6.
[27] Federal Supreme Court, Decision XIII ZB 17/19, 19 May 2020, available in German at: https://bit.ly/3DnrMPi.
[28] A collection of the most important court decisions in that regard can be found in German at: https://bit.ly/2HieAjB.
[29] Community for all, 4 Jahre Abschiebeknast Hessen, July 2023, available in German at: https://bit.ly/3RLsmxS, 39; Information provided by by the Caritasverband Karlsruhe e. V. who offers counselling in the detention centre together with the Diakonie Rastatt (see http://bit.ly/404RnXC for more information).
[30] Law Firm Lerche | Schröder | Fahlbusch | Wischmann, Statistiken | Peter Fahlbusch, available in German at: https://bit.ly/3HY9x66. See also PRO ASYL, »Es ist skandalös, welche Fehler in Abschiebungshaft passieren«, 29 July 2022, available in German at: http://bit.ly/3JH3FQF.
[31] Community for all, 4 Jahre Abschiebeknast Hessen, July 2023, available in German at: https://bit.ly/3RLsmxS, 39-40, and Information provided by the Caritasverband Karlsruhe e. V. who offers counselling in the detention centre together with the Diakonie Rastatt (see http://bit.ly/404RnXC for more information).
[32] Community for all, 4 Jahre Abschiebeknast Hessen, July 2023, available in German at: https://bit.ly/3RLsmxS, 39.