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 have to apply to the court for a detention order. The application has to lay out the detailed reasons for the necessity of detention and the complete authorities' file should be presented to the court. The foreigners should be heard by the court and they shall be able to call witnesses. In cases of detention pending deportation, 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. 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. The court has to inform the foreigner on all possible legal remedies against the detention order and this information has to be translated if necessary.
Detention pending deportation can only be ordered or prolonged if there is a possibility for the deportation to be carried out in the near future. The maximum duration of detention therefore has to be expressly stated in the detention order. Once this date has expired, the detained person either has to be released or an automatic judicial review of detention takes place.
In spite of the safeguards outlined above, the system of ordering detention pending deportation 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 deportation even if authorities’ applications for detention orders do not lay out sufficient reasons as to why detention is necessary. The Convention of Legal Advisors (Rechtsberaterkonferenz), a group of lawyers cooperating with German welfare organisations on asylum matters, notes that currently detention pending deportation 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.
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. 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 he/she 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 were sometimes violated. The Federal Supreme Court has therefore frequently ruled such detention orders as unlawful. Recent decisions of the Federal Supreme Court in which a detention order was ruled unlawful include cases where:
- A lawyer was not given the opportunity to attend a hearing;
- 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.
- The authorities were not able to justify the necessity and the proportionality of a 21 days pre-removal detention period;
- The court had wrongfully assumed that a delay in presenting identity documents was in itself constituting a “risk of absconding”.
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.
The 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 had been 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 deportation 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.
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. In relation to the overall numbers of persons who had been in detention pending deportation in the period outlined above (588) the ratio of unlawful detentions was 30%.
 Federal Supreme Court, Decision V ZB 67/12, 18 April 2013.
 Federal Supreme Court, Decision V ZB 141/11, 1 July 2011.
 This is a recurrent concern. See Peter Fahlbusch, Haft in Verfahren nach der Dublin II-Verordnung, Asylmagazin 9/2010, 289-295.
 Stefan Keßler, Abschiebungshaft, socialnet.de, 14 January 2019, available in German at: https://bit.ly/2TiNCji.
 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.
 Federal Supreme Court, Decision V ZB 54/18, 22 November 2018, available in German at: https://bit.ly/2IWq4vP.
 Federal Supreme Court, Decision V ZB 151/17, 13 September 2018, available in German at: https://bit.ly/2SL9wqg.
 A collection of the most important court decisions in that regard can be found in German at: https://bit.ly/2HieAjB.
 Peter Fahlbusch,Aattorney, Information provided on 9 May 2020.