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Interior Minister Faeser has proposed stricter deportation regulations. What criticism is there of your plans, how is detention pending deportation currently regulated and what does a toleration mean? An overview.
What is Nancy Faesers about deportation plans?
When it comes to the topic of deportations, there is often talk in politics of a “repatriation offensive”. Federal Interior Minister Nancy Faeser has now proposed stricter deportation regulations. According to their plans, those who are obliged to leave the country should not only be detained for ten, but for up to 28 days. This should give the authorities more time to prepare for a deportation.
In addition, the police should be allowed to enter more rooms in refugee accommodation in the future – not just the room of the person who is to be deported. Some of the proposals contain significant tightening. Members of a criminal organization should also be able to be expelled if they have not yet committed any crimes. In addition, people should be able to be detained pending deportation, even if their asylum procedure is still ongoing and they are therefore actually allowed to stay in Germany.
According to the Central Register of Foreigners, a total of 304,000 people were required to leave the country in 2022. However, 248,000 of them were tolerated.
What is a toleration?
A toleration is when someone does not have a residence permit but cannot be deported for factual or legal reasons. For example, because the person who is obliged to leave the country is ill.
However, the legal regulations on illness during deportation are strict. It is assumed by law that health reasons do not prevent deportation. An illness must therefore be specifically proven by a qualified medical certificate. In addition, deportation is also excluded if the person who is obliged to leave the country is threatened with danger to life, limb or freedom in the country of destination of the deportation.
Who is responsible for deportations?
The Federal Office for Migration and Refugees (BAMF) decides on asylum applications as an independent higher federal authority. The Federal Office first checks whether another EU member state is responsible for the asylum application. The BAMF must also check whether there is a ban on deportation because a refugee is in danger of being deported in the country of destination. The BAMF is not responsible for the question of whether a person who is obliged to leave the country receives a “Duldung” because he is ill, for example. This is checked by the immigration authorities of the federal states.
If the BAMF does not grant protection, it rejects the application and also writes a threat or order of deportation in its decision. The deportation is then carried out by the federal states, i.e. the immigration authorities and the police. In some cases of deportation at the borders also by the federal police.
how does it work detention pending deportation?
In the political debate, the term “custody pending deportation” is often used in general, but the term “custody pending deportation” is used in law. In terms of content, a distinction must be made between different detention measures. First there is the preventive detention, which serves to secure the deportation. A person can be arrested if there is a risk of absconding, if the reason for the obligation to leave the country is unauthorized entry or if the deportation is intended to avert a terrorist threat, for example. Preventive detention can last up to 18 months and must be ordered by a judge.
Another detention measure is the detention. Faeser wants to extend the maximum duration to 28 days for him. Previously it was ten days. The special thing about deportation custody: He does not have to have any of the usual reasons for detention as with preventive detention, so there is expressly no risk of escaping. It is sufficient if the departure deadline for the person who is obliged to leave the country has expired and “the foreigner has behaved in such a way that it can be expected that he will make the deportation more difficult or thwart it”.
This includes, for example, that the person obliged to leave the country has deceived about his identity or his nationality. However, it is also sufficient that the obligation to leave the country has been exceeded for 30 days. Even then, detention is possible. People in detention are being held in the transit area of an airport or in accommodation close to the border. However, preventive detention is also possible in normal prisons – but then separately from prisoners who are serving a prison sentence.
What’s the problem with the detention pending deportation?
The basic legal problem of detention pending deportation is that people are not in detention because they have committed a crime, but only because they have to leave Germany. Basically, in a constitutional state, criminal proceedings are the prerequisite for imprisonment. The legislature was also aware of this problem. The paragraph on detention pending deportation therefore points out that detention should be the last resort.
It literally says: “Detention pending deportation is inadmissible if the purpose of detention can be achieved by a milder means. Detention must be limited to the shortest possible period. Minors and families with minors may only be detained in detention pending deportation in exceptional cases and only for this length of time be taken as is appropriate having regard to the best interests of the child.”
What criticism is there of Faeser’s plans?
The practice of taking families with children into custody pending deportation is no longer the big problem, explains attorney Peter Fahlbusch, who specializes in cases pending deportation. However, it now happens that the parents are arrested and their children come to youth welfare facilities, so families are separated.
The lawyer also criticizes the new plans for up to 28 days of detention. He considers this to be “unconstitutional”. According to Fahlbusch, four weeks of imprisonment for people who are not in danger of escaping and whose whereabouts is not proportionate. Even in the current practice, it happens that people are wrongly imprisoned.
Fahlbusch has represented more than 2,400 people in detention pending deportation since 2001. According to his personal statistics, the courts decided that around 52 percent of his clients had been illegally imprisoned. The federal states would not provide official figures on illegal detentions. According to the lawyer, there is an illegality rate of 60 percent in the cases that the Federal Court of Justice, as the highest instance, had to decide on.
Can clan members soon be expelled without criminal proceedings?
There was another point in the paper by Interior Minister Faeser. According to this, members of a criminal organization should be able to be expelled, even if they have not made themselves punishable. The criticism of this: There is a kind of “family liability” for members of criminal clans. Could the surname already be enough to be deported?
What is important, however, is that the proposal refers to expulsion, not deportation. When someone is expelled, their existing right of residence is withdrawn. Deportation means taking someone out of the country. The difference: if someone is deported, there may still be obstacles to deportation. And the expulsion is a case-by-case assessment between the right of residence and Germany’s security interests.
Therefore, as a rule, only those who have committed criminal offenses in this country or who endanger the free democratic basic order or significant interests of the Federal Republic of Germany are expelled. If there is a suspicion of terrorism, someone can already be expelled without prior criminal prosecution.
Faeser’s proposal would extend expulsion without a sentence to members of organized crime. Clan membership would therefore not automatically lead to deportation. But there would be significantly more opportunities to expel someone who has not committed a crime.
Can you move to Germany despite the ongoing asylum procedure? detention pending deportation come?
Faeser’s discussion paper stipulates that someone can be detained pending deportation even though they have previously applied for asylum. Attorney Fahlbusch points this out.
Normally, residence in Germany is permitted if an application for asylum has been made. The permit is valid for the duration of the asylum procedure. With the ongoing proceedings, the requirement for detention is no longer applicable.
Now the asylum procedure should generally no longer protect against imprisonment. Even someone who has submitted an application for asylum that needs to be examined can still be detained.
Lawyer Fahlbusch criticizes this. The detention could affect anyone who makes an initial application for asylum. For example, people from Syria who come to Germany via the Balkan route and Austria. It is questionable in terms of the rule of law if these people have to go through the asylum procedure from prison.