Recent law changes in Germany make it easier to hold rejected asylum seekers in detention. But what exactly is deportation detention, how is it different from departure custody, and what's behind the separation precept?
Germany’s Interior Minister Horst Seehofer has been calling to up the number of deportations. The federal government recently introduced a bundle of policy measures which will make it easier to send rejected asylum seekers back home. One of the measures is the lifting of a rule that mandates that those in deportation detention must not be accommodated together with regular prisoners. This rule, known as "Trennungsgebot", or separation precept, is no longer valid. Federal states can now accommodate those in deportation detention in the same facilities as regular prisoners.
InfoMigrants answers the most important question about deportation detention and the separation precept.
Who can be taken into deportation detention?
- Foreigners obliged to leave Germany can be taken into detention (“Haft”) or into custody (“Gewahrsam”) if they a) don’t leave the country voluntarily, b) eluded deportation, or c) there is a risk of absconding
- According to paragraph 62 of the German residence law (“Aufenthaltsgesetz”), a judge may order a so-called preparation detention (“Vorbereitungshaft”) of no more than six weeks to ensure deportation.
- The actual deportation detention can be ordered for up to six months; under conditions, it can be extended by another 12 months
What is 'departure custody?'
If the date of your deportation is fixed and the Immigration Office has successfully concluded the necessary preparations, you might be taken into so-called departure custody (“Ausreisegewahrsam”), which may last no longer than ten days. People in departure custody are held in the transit area of an airport or a special accommodation center (deportation detention center, repatriation center) until the day of deportation. It is to guarantee that people don’t, for instance, go into hiding, so that planned deportations can actually be carried out.
The German government wants to apply deportation detention and departure custody more often. The ‘Orderly Return Law’ ("Geordnete-Rückkehr-Gesetz"), which Germany’s Parliament approved in early June, contains measures to lower the respective administrative hurdles.
The law further provides for the introduction of an up to 14-day so-called assistance detention (“Mitwirkungshaft”). This comes into effect if appointments at the embassy to procure papers are canceled. This kind of detention, however, is not necessarily associated with a deportation.
What is the meaning of the separation precept between deportation detention and regular detention?
According to EU law, shared housing of those in deportation detention together with regular prisoners is not allowed. The European Court of Justice (ECJ) had affirmed this in a ruling from 2014, which mandated that those in deportation detention must be accommodated in special facilities, separate from other prisoners. Before the ruling, the majority of German states did not have such special facilities.
German states can now double the number of deportation detention spots to 1,000 by accommodating those concerned in the same facilities (“Justizvollzugsanstalten”) as regular prisoners but separate from them within the prisons.
Why was the separation precept lifted?At present, there are some 500 spots reserved for people in deportation detention in Germany in special facilities. Even though the federal states were told in 2014 to create more spots, the number is still seen as insufficient by the Interior Ministry. That's why the government lifted the separation precept, which is limited to three years, referring to an impending capacity overload in light of increased immigration numbers.