Legal grounds for detention

Legal grounds for detention pending deportation are to be found in Sect. 62 of the Residence Law (“Aufenthaltsgesetz”). According to this, there are two types of detention: Detention for preparation of expulsion/deportation (“Vorbereitungshaft”) or Detention for enforcement of deportation (“Sicherungshaft”).

“Sicherungshaft” according to Sect. 62 par.3 Residence Law can be ordered to secure a person’s deportation. Requirements are:

• Deportation must be feasible (e. g. necessary documents must be at hand or achievable within reasonable time),

• One of six reasons for imprisonment defined in the law must exist (e. g. illegal entry to Germany, reasonable fear that the person will abscond),

• Imprisonment must be in accordance to the principle of proportionality, i.e. pursue a legitimate goal, and be necessary and adequate (especially of interest with persons that belong to vulnerable groups and those who have already been held in detention for a longer period). An amendment to Sect. 62 par. 1 Residence Law in 2011 underlined that detention may only be used as last resort and may only last for the shortest period possible.

As an exception, up to two weeks of detention are possible even without one of the reasons for imprisonment, if all requirements for a deportation within this period are fulfilled.

“Vorbereitungshaft" according to Sect. 62 par. 2 Residence Law can be ordered to secure a person’s expulsion and deportation. Requirements are:

• The decision to expulse or deport the person cannot yet be made;

• Deportation would be made impossible or severely hindered if the person wasn’t detained (e. g. because he/she might abscond).

As this type of detention barely has a practical effect, the following remarks will concentrate on detention for enforcement of deportation.

Legal grounds for the detention order and for a judicial review

Legal grounds for the detention order are to be found in the constitution and in the Domestic Relations and Voluntary Jurisdiction Procedure Act (Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit , FamFG).

Art. 2 par. 2 s. 2 of the German constitution (“Grundgesetz”) calls personal freedom inviolable. Restrictions are only permitted on the basis of a formal law. Art. 104 par. 2 GG adds that the decision to deprive someone of his freedom may only be taken by a judge.

Consequently, detention may only be ordered by a judge. Responsible are the Local Courts. The aliens’ department – or in some instances the Federal Police – may apply for it. There is only one case in which the aliens’ department itself is entitled to take someone in custody: when a judicial decision cannot be made beforehand and there is reason to believe that the foreigner will obviate deportation.

The FamFG then contains detailed requirements for the procedure to order detention. The person concerned must be heard before the decision. Other persons that may be heard (and regularly should in the interest of the person concerned, if they exist and are available) are his spouse, parents, children and a person of trust.

Only in cases where the alien has absconded or for other reasons the details of the case can’t be resolved immediately, the court may make a preliminary decision without a hearing.

The aliens’ department has to show credibly that the requirements of Sect. 62 Residence Law are fulfilled. It is also supposed to provide its file about the person concerned in order to give the judge a possibility to gather as good information as possible.

The alien has the right to be represented by a lawyer. However, often he will have to pay for the lawyer himself. While there is a possibility to receive financial support from the state (“Verfahrenskostenhilfe”), this is linked to a prospect of success, which is frequently denied by the courts.

As every detention order has to state the date up to which the person may be kept in detention at maximum, and detention may only be extended beyond this date on a new judge’s decision, there is an automatic judicial review of the decision to detain.

The legal provisions for a detention order, then, are quite detailed and made to secure the rights of the person to be detained. It should be noted, however, that there is a lot of criticism by lawyers, NGOs and churches concerning the practice of detention orders. The quality of decisions by the local courts frequently falls behind the intention of the law, and standards for detention procedures which the constitutional court has set up in a series of decisions are not met in all cases.

Right of appeal against the detention order, and to challenge detention

The detainee has the right to appeal against the detention order. The appeal will be decided by the regional Court of Appeal, which has to hear the detainee (and other persons involved) again unless it is firmly convinced that this will lead to no new findings. If the Court of Appeal holds that detention shall be continued, the detainee has a further right of appeal to the Federal High Court, which will only judge the legal aspects of the case without hearing the detainee. Since 2009, the Federal High Court has issued a large number of decisions stating clearly the limited provisions under which detention is admissible, and revoking many decisions from lower instances. The Court thus prolonged a remarkable series of decisions from the Federal Constitutional Court pointing out the constitutional requirements for ordering detention.

The detainee also has the right to challenge detention at any time. The local court will decide upon the respective application; if the decision is negative, there is a right of appeal against this similar to the appeal against detention orders.

The right of appeal even continues when the detainee has been released (or deported). In these cases, he has the right to apply for the court to hold that the decision to detain him (and the subsequent execution of detention) has been illegal. If this application is successful, it may be the grounds to seek compensation from the state.

The right of information about the detention order and/or the reasons for detention

The detention order has to give the reasons why detention has been ordered. As the person concerned has a right to an interpreter in the court hearing if he doesn’t understand German, the reasons will generally be translated for him. In practice, however, this often proves insufficient, as the reasons in detention orders are frequently short and formulaic. In addition to this, there is neither an obligation to take detailed notes of what is not said during the hearing, nor is the detainee entitled to get a written translation of the detention order and the protocol. Thus, many detainees complain that they received little or no information about why they were detained. 

Minimum age

There is no provision in federal law providing a minimum age for detention. Still, a certain age limit can be derived from a conflict between residence and youth welfare law. According to youth welfare law, the youth welfare offices are responsible for any minor under 18 years who cannot be taken care of by his parents or other persons in charge. On the other hand, the Residence Law contains a clause stating that a foreigner who is 16 years or older must lead his own case without help of a legal guardian before authorities and courts. Notwithstanding that this clause is seen as a breach of the Convention on the Rights of the Child, arguably, 16 years should be the absolute minimum age for detention. Consequently, some of the federal states have introduced clauses in their own law that make detention of minors below 16 years illegal.

Still, in an answer to a parliamentary request (BT-Drs. 16/11384), the federal government revealed that between 2005 and 2007, at least 377 unaccompanied minors had been detained all over Germany, almost half of them (155) in Berlin. The youngest children detained in Berlin were only 12 and 14 years old (although they spent only one day each in detention). More recently, the number of minor detainees has fallen significantly, as has the number of detainees in general.

Some of the federal states have regulations concerning a minimum age of 16. The regulations about minimum age do not, however, mean that these states would abstain from detaining children under 16. For example, the state Brandenburg keeps children younger than 16 in a youth welfare facility in Fürstenwalde. As another example, Schleswig-Holstein abstains from detaining unaccompanied minors under 16, but finds it appropriate to keep children from the age of 10 in detention as long as they are together with their mothers.

The topic gets more complicated as frequently, arriving refugees who claim to be less than 18 or less than 16 are not accepted as such. By estimation of staff members of either the youth welfare offices or the aliens’ departments, sometimes accompanied by medical estimate, X-ray of the hand bones, denture examination and visual inspection of the genitals, their age is set to a fictitious date, frequently one that makes them over 18 or at least over 16, the latter allowing for detention in all federal states.

Maximum duration

The maximum duration for detention in Germany is 18 months. There are limits, however, that have to be taken into account before that maximum.

Detention is illegal if it is clear that for reasons for which the detainee is not accountable, the deportation will not be possible within the next three months (Sect. 62 par. 2 s. 4 Residence Law). The Federal High Court (Bundesgerichtshof) has held in a number of decisions that this 3-month-limit must be taken into account in any court decision ordering or extending detention, and not only forward-, but also backward-looking. I. e., if initially the aliens’ department claimed it would finish the necessary preparations for deportation of the person concerned within three months, and now two and a half months are over, but the aliens’ department announces that they will need at least another month, the detainee would have to be released unless the delay is his or her own fault.

The next limit to be considered is at six months in detention. Detention may be extended beyond that date only in cases where the detainee works against his deportation (Sect. 62 par. 3 s. 2 Residence Law).

Executing detention

In Germany, detention is executed by the federal states. National law provides a basic regulation for accommodation in detention centres, based on the provisions of the EU Returns Directive, and additional rules for those federal states that keep migrants in detention in normal prisons. Those federal states that run specialised detention centres either as an exclusive means to execute detention or in addition to detaining foreigners in correctional facilities then additionally need own regulations. However, some federal states that execute detention in normal prisons also have additional regulations. As a result, living conditions differ very much throughout the country.

Health care

The legal grounds for healthcare for detainees are set out in the Asylum Seeker Benefit Act (“Asylbewerberleistungsgesetz”). This law states in Sect. 4 that “in case of acute diseases or pain, necessary medical or dental treatment is to be provided including medication, bandages and other benefits necessary for convalescence, recovery, or to ease diseases or their consequences.” Further, according to Sect. 6, “other benefits may particularly be granted if they are essential in particular cases to secure subsistence or health”. In other words: unless a disease urgently demands care, it can be difficult to obtain the necessary treatment. For people with psychological problems or chronic diseases, it can be very difficult to actually get treatment. It is a familiar situation, too, that refugees who suffer from serious diseases are only given painkillers – sometimes due to language barriers that inhibit them from describing their problems in detail.

The Penal Law Act (“Strafvollzugsgesetz”) contains further clauses dealing with the right to medical care for inmates who do not have a health insurance. However, this will generally step back behind the Asylum Seeker Benefit Act.

Execution of detention in correctional facilities

Federal law takes into account that detainment is carried out in correctional facilities in some federal states. In these cases, several clauses of the Penal Law Act are applicable. In combination with the house rules of the correctional facility, this generally leads to similarly restrictive rules for detention like for inmates who serve a sentence. This especially applies to contact to the outside world, which is regulated strictly for criminal offenders. Here, only minimum standards are granted: at least one hour of visiting time per month (Sect. 24 Penal Law Act); correspondence with friends and relatives is generally granted, but can be inhibited by the correctional facility by discretion, and it is also in the discretionary power of the facility staff whether phone calls are admitted.

On the other hand, the particular situation of detainees – considering inter-cultural differences, the particular problem that the ending point of detention is usually unknown to the detainee, or the specific problems of especially vulnerable groups – is not mirrored in the Penal Law Act at all.

The EU Returns Directive allows detention in correctional facilities only if no special detention facilities are available in a member state, and imposes the obligation on member states to strictly separate detainees from convicted criminals. Both obligations are breached in some federal states. The Federal High Court is to decide about these practices, but has not yet.

State law

Since under the German constitution, a person can only be deprived of personal freedom according to a law, the federal states had to make additional laws wherever they detain foreigners outside correctional facilities, be it exclusively or in addition to also accommodating detainees in prisons.

Some of these laws consist of only one article referring to the federal Penal Law Act. Others contain general rules on police custody and are applied on detention, too. Only a relatively small number of federal states have made special laws and administrative regulations as legal grounds for the execution of detention.

Contact with the outside world

State law, like federal law, often provides regulations for visits, letters, presents etc. from the outside world. However, as these regulations concern security matters, and is too detailed to be cited here in full.

Contact with pastoral workers is granted both under federal and state law.

Some of the state laws explicitly mention visits by refugee NGOs (e. g., sect. 7 Berlin Deportation Custody Law; sect. 2.8.1 Berlin Deportation Custody Order), consulate/embassy staff (sect. 2.8.1 Berlin Deportation Custody Order) , members of the Committee for the Prevention of Torture (sect. 25 par. 2 Hessen Police Custody Order) or correspondence with members of parliament, the European Court for Human Rights and the Committee for the Prevention of Torture (sect. 7 par. 4 Brandenburg Law on the Execution of Detention outside Correctional Facilities) in addition to rules for visits by family members, friends or lawyers. Generally speaking, state laws tend to be more liberal about visits and correspondence, with even less restrictions for contact with lawyers, MPs, or NGOs.

Protection of persons with special needs

Some of the federal states have made special regulations for the protection of persons with special needs. However, most have not. The protection of special needs of persons belonging to vulnerable groups then is mostly a matter of case law, as even where there are no specific regulations, still, any detention order or detention condition has to comply with a basic rule, the principle of proportionality, and violations of this principle can be challenged in court. Unfortunately, this approach leaves the protection of vulnerable detainees mostly on their own hands, as many of them lack supporters or lawyers who could help them file claims etc.

Good practice examples include Berlin, Brandenburg, Hessen, Nordrhein-Westfalen and Schleswig-Holstein, where we find detailed laws and administrative regulations providing e. g. for the special needs of minors, disabled people, elderly people, pregnant women, single parents with minor children, victims of torture or violence, traumatized persons, families, persons with suicidal tendencies, and long-term detainees who are detained six months or longer (although not every of the abovementioned states provides regulations for all of the aforementioned groups).

Social Services

Those federal states that have more detailed regulations, taking into account the protection of persons with special needs, generally also provide social services to detainees. There are differences concerning the details, however. While some states prefer to establish a system where social workers and psychologists are employed by the state (e. g., Berlin), others delegate these tasks to non-governmental agencies or volunteers (e. g. Schleswig-Holstein).

Alternatives to detention

Alternatives to detention are not regulated in the law. However, in application of the principle of proportionality, detention is not always ordered. The longer the person concerned already lives in Germany, and the more social relations he or she has, in other words, the less likely it is that he or she might abscond, the more often the aliens’ departments will resort to other means. Sometimes residence documents are limited to very short periods, e. g. one week or a few days, and persons are requested to call in at the aliens’ department or the local police station in order to ensure close contact to the authorities. For minors, accommodation in a youth centre or borstal can be an alternative.

Source: JRS Germany, national report written for Becoming Vulnerable in Detention (p.186)

JRS Germany provides legal, social and pastoral support in detention centres in Berlin, Eisenhüttenstadt and Munich. JRS Germany is a member of the Berlin Commission.

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