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.[1] 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.[2] 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, ‘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)’.[3] 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.[4]
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.[5] 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.[6] The Convention of Legal Advisors (Rechtsberaterkonferenz), a group of lawyers cooperating with German welfare organisations on asylum matters, notes that currently detention pending removal is again ordered ‘too often and too easily’. According to them, this development began with a political ‘climate change’ in 2016 and public debate based on ‘misleading, partly wrong information’ on the number of persons who were obliged to leave the country.[7]
There are no encompassing statistics regarding judicial review of detention.[8] 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.[9] 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.
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.[10] 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.[11] 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; [12]
- A lawyer was not given the opportunity to attend a hearing;[13]
- Authorities had not given sufficient reasons to justify the duration of detention by simply stating that a Dublin transfer to Italy ‘might take place in between 6 and 8 weeks’. The authorities have to explain which organisational steps justify the period of detention they have applied for.[14]
- The authorities were not able to justify the necessity and the proportionality of a 21 days pre-removal detention period;[15]
- The court had wrongfully assumed that a delay in presenting identity documents was in itself constituting a ‘risk of absconding’;[16]
- The detainee had filed a secondary application for asylum that was accepted as admissible by the BAMF,[17]
- The Court had not examined the person’s casefile before ordering detention;[18]
- The Court failed to adequately assess the risk of absconding based on a previous evasion of removal by the detainee;[19]
- The detention resulted in an unjustified separation of a mother and her minor children;[20]
- The Court had not sufficiently examined whether the detainee was a minor;[21]
- The authorities did not adequately speed up the removal procedure;[22]
- 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.[23]
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.[24]
Lawyer Peter Fahlbusch (from Hannover) has published statistics on the cases that were represented by his law firm. According to these numbers, half of the detention orders that had been issued by local courts were overturned in further proceedings from 2011 to April 2020. According to information submitted by Peter Fahlbusch, the firm represented 1,982 clients who were in detention pending removal during this period. In 982 of these cases (49.5%), higher courts found detention orders to be unlawful. For the clients affected, this had resulted in about four weeks of detention on average (26.6 days). Peter Fahlbusch reports that these figures have remained almost the same over the years.[25]
The Refugee Council of Lower Saxony also recorded a high number of unlawful detentions for the period between August 2016 and November 2019. During this time the organisation assisted 282 detainees in proceedings at Regional courts with the aim of examining the legality of detention orders issued by local courts. In 179 of these cases (63%) the higher courts decided that detention had been unlawful.[26] In relation to the overall numbers of persons who had been in detention pending removal in the period outlined above (588) the ratio of unlawful detentions was 30%.
[1] Federal Supreme Court, Decision V ZB 67/12, 18 April 2013.
[2] Federal Supreme Court, Decision V ZB 141/11, 1 July 2011.
[3] 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, 37, available at https://bit.ly/3fRwsln
[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, 37, available at https://bit.ly/3fRwsln
[5] This is a recurrent concern. See Peter Fahlbusch, Haft in Verfahren nach der Dublin II-Verordnung, Asylmagazin 9/2010, 289-295.
[6] Abschiebungsreporting NRW, Ausländerbehörden als Orte der Angst, 19 December 2022, availbale in German at http://bit.ly/3X2KCU3.
[7] Die Rechtsberaterkonferenz, 50 Forderungen zum Flüchtlings-, Aufenthalts, Staatsangehörigkeits- und Sozialrecht, November 2017, available in German at: http://bit.ly/2HOWd2J, 32-34.
[8] 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, 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).
[9] ze.tt, Eingesperrt ohne Straftat: So sind die Bedingungen in einem Abschiebegefängnis, 14 December 2019, available at https://bit.ly/2T0KZ3g.
[10] Stefan Keßler, Abschiebungshaft, socialnet.de, 14 January 2019, available in German at: https://bit.ly/2TiNCji.
[11] PRO ASYL, »Es ist skandalös, welche Fehler in Abschiebungshaft passieren«, 29 July 2022, available in German at http://bit.ly/3JH3FQF.
[12] Federal Constitutional Court (BVerfG), Decision 2 BvR 2247/19, 10 February 2022, ayyl.net: M30479.
[13] 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.
[14] 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.
[15] 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.
[16] Federal Supreme Court, Decision V ZB 151/17, 13 September 2018, available in German at: https://bit.ly/2SL9wqg.
[17] Federal Supreme Court, Decision XIII ZB 10/21, 20 July 2021, available in German at: https://bit.ly/3NIoBXk.
[18] Federal Constitutional Court, Decision 2 BvR 2345/16 of of 14 May 2020, available in German at https://bit.ly/36VlPwP.
[19] Federal Supreme Court, Decision XIII ZB 47/20 of 20 April 2021, available in German at: https://bit.ly/38h83pb.
[20] Federal Supreme Court, Decision XIII ZB 95/19, 23 March 2021, available in German at: https://bit.ly/3LnImRZ.
[21] Federal Supreme Court, Decision XIII ZB 101/19, 25 August 2020, available in German at https://bit.ly/3wKJQ4E.
[22] Federal Supreme Court, Decision XIII ZB 9/19, 24 June 2020, available in German at https://bit.ly/3uGHfG6
[23] Federal Supreme Court, Decision XIII ZB 17/19, 19 May 2020, available in German at https://bit.ly/3DnrMPi
[24] A collection of the most important court decisions in that regard can be found in German at: https://bit.ly/2HieAjB.
[25] Peter Fahlbusch, Attorney, Information provided on 9 May 2020. See also PRO ASYL, »Es ist skandalös, welche Fehler in Abschiebungshaft passieren«, 29 July 2022, available in German at http://bit.ly/3JH3FQF.
[26] Flüchtlingsrat Niedersachsen, ‚Rechtswidrige Abschiebungshaft in Niedersachsen: Kein Ende in Sicht‘, Press release of 13 November 2019, available in German at: https://bit.ly/2Lo4E9b.