If asylum applications are lodged by persons in detention, applicants shall immediately be given an opportunity to contact a lawyer of their choice, unless they have already secured legal counsel.[1]
In general, persons in detention pending removal have the right to contact legal representatives, family members, the competent consular representation and relevant aid and support organisations.[2] In a case concerning detention pending removal, the Constitutional Court ruled in May 2018 that barriers to a lawyer’s access to the Eichstätt facility were not in line with the constitution. In this case, the management of the facility had advised the lawyer that the next available opportunity to contact her client was on the day of the removal.[3] Moreover, in many detention facilities no contact information of available lawyers is provided by the detention administration or social services.
In October 2022, a coalition of over 50 NGOs, including PRO ASYL, Amnesty International, welfare associations and lawyer associations, published a position paper to demand free legal representation of all persons subject to detention, pointing to the frequent errors in detention orders as well as the high number of detention cases fond to be unlawful by courts.[4] While legal amendments adopted in late 2022 did not address this issue, a change introduced by the Act on the Improvement of Return, which entered into force in February 2024, established the right to be appointed legal representation in detention proceedings. According to the amended Section 62d of the Residence Act (AufenthG), persons who are not yet represented by a lawyer are to be assigned a court-appointed lawyer.
However, concerns have been raised regarding the implementation and effectiveness of this provision. As of April 2024, the appointed legal assistance is limited to the detention procedure itself, with some unsolved questions of scope remaining,[5] and does not extend to matters of asylum or residence law. The option to request a change of assigned lawyer remains legally unclear. Another gap in the legal provision is the exclusion of Zurückweisungshaft (detention for refusal of entry) from the scope of mandatory legal representation.[6]
Moreover, the future of Section 62d remains uncertain: the coalition agreement of the newly elected government in 2025 indicates that the provision may soon be repealed. If so, individuals in detention would again be required to apply for legal aid (Verfahrenskostenhilfe), which is frequently rejected by courts, or rely once more on civil society actors and NGOs, such as the Jesuit Refugee Service, for independent legal support. Some NGOs or support groups provide access to funds to pay for legal representation but cannot do so systematically.[7] These concerns have led several organisations to emphasise that complementary legal counselling remains essential, regardless of the existence of court-appointed representation.
[1] Section 14(3) Asylum Act.
[2] Section 62a II of the Residence Act.
[3] Federal Constitutional Court, Decision 2 BvQ 45/18, 22 May 2018, available in German at: https://bit.ly/3RNxQJE.
[4] Flüchtlingsrat Brandenburg, Gesetzeslücke endlich schließen: Menschen in Abschiebehaft brauchen einen Pflichtanwalt!, 12 October 2022, available in German at: http://bit.ly/3RdsRjw.
[5] Rolf Stahmann, ‘Pflichtanwalt/Pflichtanwältin in Abschiebungshaftsachen nach § 62d AufenthG’ (Asylmagazin, 7–8/2024), available here, 272–277.
[6] Rolf Stahmann, ‘Pflichtanwalt/Pflichtanwältin in Abschiebungshaftsachen nach § 62d AufenthG’ (Asylmagazin, 7–8/2024), available here, 273.
[7] Caritasverband Karlsruhe e. V., ‘Counselling in the detention centre’, available in German here.