Place of detention

Pre-removal detention centres

Detention pending removal is usually carried out in specialised detention facilities. Since July 2014, when the CJEU ruled that detention for the purpose of removal of illegally staying third-country nationals has to be carried out in specialised detention facilities in all Federal States of Germany,[1] most Federal States which did not have specialised facilities before announced that the necessary institutions would be established; deportees were sent to facilities in other Federal States in the meantime. As of January 2023, not all Federal States have dedicated detention centres, since some Federal States use facilities jointly (see below).

Between August 2019 and June 2022, due to a temporary change in the law, detention pending removal could also be carried out in regular prisons. The relevant provision of Section 62a (1) of the Residence Act was amended as part of the so-called ‘Orderly Return Act[2] and read:

Persons in detention pending removal have to be accommodated separately from prisoners [Strafgefangene, i.e. persons detained in the penal system].

Since 1 July 2022 the wording of the provision has changed back to: ‘As a rule, detention pending removal is to be carried out in specialised detention facilities.’[3]

In the Explanatory Memorandum to the Orderly Return Act, the government stated that the new provision shall enable the Federal States to create up to 500 additional places for the purpose of detention pending removal. The stated reason was an alleged acute shortage of such places in light of a high number of third-country-nationals who are obliged to leave the country. In light of this situation, the government also claimed that the new provision is in line with European legislation, namely Article 18(1) of the Return Directive which allows for a derogation from the standards for conditions of detention in emergency situations.[4] However, available statistics suggest that Federal States hardly used regular prisons for detention pending removal. Only 10 cases (3 in Mecklenburg-Vorpommern and 7 in Saxony Anhalt) had been recorded by the Federal States as of March 2021.[5] This suggests that the existence of an ‘emergency situation’ was hardly based on an objective lack of detention capacity.[6]

The provision was challenged before the CJEU, as critics and serious doubts were raised as to whether Germany was facing such an emergency situation when the provision entered into force in 2019. Even if a rising number of persons in detention pending removal were to be recorded or expected, Federal States would still have enough time and opportunity to raise capacities of specialised institutions accordingly. Thus, the mere inaction of authorities to that end should not justify a breach of European law.[7] The CJEU issued its decision on 10 March 2022.[8] The Court did not adjudicate on the existence of an emergency situation, but ruled that national courts would have to examine the question when asked to issue a detention order. However, the CJEU argued that an emergency situation cannot be based solely on a high number of persons who are obliged to leave, and that a failure on the side of the state to provide for sufficient specialised detention facilities cannot justify an emergency situation. Furthermore, the court ruled that conditions in detention facilities must not be prison-like if they are to qualify as specialised detention facilities in the sense of the EU Return Directive. According to the lawyer filing the original case, this puts in question some of the existing specialised detention facilities such as Glückstadt in Schlewsig-Holstein or Hof in Bavaria that are surrounded by high walls and barbed wire.[9] In Bavaria, the appeals court of Coburg found on 24 November 2022 that conditions in the detention centre in Eichstätt are not in line with the CJEU’s ruling (see Conditions in detention facilities).

Plans for a combined facility, which nevertheless takes into account the separation of prisoners and pre-removal detainees, were announced in Bavaria during the summer of 2018. According to media reports, both detention facilities are to be built on the same site in the town of Passau. However, the facility for detention pending removal will be separated from the other buildings by a wall and it will be separately accessible from the outside.[10] The facility was still under construction as of January 2023.[11] To this day, several pre-removal detention centres are former prisons turned into specialised facilities e.g. Büren in North Rhine-Westphalia, Eichstätt and Erding in Bavariaand Darmstadt-Eberstadt in Hesse.

In 2022, a new detention centre was opened at Munich airport (Bavaria) in January 2022 which replaced the more provisional detention facility ‘Hangar 3’.[12] In 2021, two new detention facilities had opened: one in Glückstadt, Schleswig-Holstein, which is used by the Federal States Schleswig-Holstein, Hamburg, Mecklenburg-Vorpommern and has the capacity to accommodate up to 60 people,[13] and one in Hof, Bavaria. The detention centre in Hof can accommodate a total of 150 people, making it the second largest detention centre in Germany.

The Federal State of Saxony-Anhalt had been planning to convert a former prison in Dessau-Roßlau into a detention facility, but this was abandoned in January 2021 as the necessary renovation works turned out to be too expensive.[14] According to press reports, the government of North Rhine-Westphalia is planning a second detention facility near Düsseldorf airport that should be used mainly for custody pending departure, with a capacity of around 25 places.[15] The Federal States of Thuringia and Berlin do not intend to build facilities of their own and make use of detention facilities in other Federal States.[16]

As of 2022, facilities for detention pending removal existed in ten Federal States. The reported capacities are based on an information request to the Federal Government published in August 2021.

Source: Source. Federal Government, Reply to parliamentary question by The Left, 19/31669, 4 August 2021, 23.

Other types of detention facilities

The Federal State of Berlin has established a specialised facility for ‘persons posing a risk’ only (‘Gefährder’, i.e. terrorist suspects) with a capacity of 8 to 10 places.

Persons in custody pending removal under Section 62b of the Residence Act (Ausreisegewahrsam) are usually detained in general detention facilities. However, not all Federal States differentiate between pre-removal detention and custody in available statistics.[17] The Federal States of Berlin and Brandenburg run a facility for custody with 10 places at the Berlin Brandenburg Airport, according to press reports (BER).[18] As of December 2022, planning for the new ‘arrival and departure centre’ at the Berlin airport includes 48 places for custody pending departure (see Airport detention facilities). A similar facility with 25 places of custody pending departure is planned at the airport of Düsseldorf (North Rhine Westphalia), but as of March 2023 it was unclear whether the new State government – in power since June 2022 and including the Greens, who had positioned themselves against the facility during the election campaign – will continue the planning process.[19]

Airport detention facilities

As mentioned in Grounds for detention, asylum seekers subject to the airport procedure are de facto detained in facilities near the airport, as their stay is not legally considered to be deprivation of liberty. Since such facilities are managed by the different Federal States, they can differ in typology and even in name.[20]

For example, the airport detention facility at Frankfurt Airport, located in the the ‘Cargo City Süd’, a large complex of buildings in a restricted area near the airport, is entitled ‘initial reception centre’ (Erstaufnahmeeinrichtung). The centre has a maximum capacity of 105 places. On the other hand, the facility at Munich Airport is located in the ‘visitors’ park’ (Besucherpark) of the airport and its denomination is ‘combined transit and detention facility’ (Kombinierte Transit- und Abschiebungshafteinrichtung).[21] The new facility opened in January 2022 hosts both pre-removal detention (22 places) and the ‘transit centre’ for persons subject to the airport procedure (29 places).[22] At the new airport of Berlin and Brandenburg (BER), the opening of a new ‘arrival and departure centre’ is foreseen for 2026. The centre is to include facilities to carry out the airport procedure (60 places are planned as of December 2022) but also facilities and personnel from other authorities which are involved in the return procedure such as the Federal Police, local courts, the public prosecutor’s office and the municipal authority.[23] The plans also include facilities for custody pending removal. Original plans foresaw a total of 64 such places, but this was reduced to 48 after controversies within the Brandenburg government, with the Greens criticising that the facility was oversized compared to actual needs.[24]

Detention facilities used for the airport procedure are not to be confused with pre-removal detention centres or facilities for custody pending departure, which may be located close to the airport e.g. the Munich Airport detention centre, the detention centre in Hamburg, or the facility for custody pending departure at the airport of Berlin-Schönefeld (see Pre-removal detention centres).

[1] CJEU, Joined Cases C-473/13 and C-514/13 Bero v Regierungspraesidium Kassel & Bouzalmane v Kreisverwaltung Kleve, Judgment of 17 July 2014.

[2] Full title: „Second Act for an improved enforcement of the obligation to leave the country’/Zweites Gesetz zur besseren Durchsetzung der Ausreisepflicht, also known as the ‘Orderly Return Act’/Geordnete-Rückkehr-Gesetz.

[3]  Article 6 of the ‘Second Act for an improved enforcement of the obligation to leave the country’.

[4] Federal Government, Explanatory memorandum to the Second Act for an improved enforcement of the obligation to leave the country, Parliamenty document no. 19/10047, 42-43.

[5] Federal Government, Reply to parliamentary question by The Left, 19/31669, 4 August 2021, 6,8, 20-21.

[6] Informationsverbund Asyl & Migration, Gesetzesänderung ab dem 1. Juli 2022: Abschiebungshaft und Strafvollzug sind wieder zu trennen, 07 July 2022, available in German at http://bit.ly/3wCLuUQ.

[7] Stefan Keßler, Freiheitsentzug ad libitum? Die Auswirkungen des „Hau-Ab-Gesetzes II’ auf die Abschiebungshaft, in: Das Migrationspaket, Beilage zum Asylmagazin 8-9/2019, available in German at: https://bit.ly/3boa7HM, 44-54 (53).

[8] CJEU, Case C‑519/20, 10 March 2022, available in German at: https://bit.ly/3NtZt6u.

[9] PRO ASYL, ‘Abschiebehaft: Der EuGH schiebt Deutschland einen Riegel vor’, 16 March 2022, available in German at: https://bit.ly/3wIGz5S.

[10] Passauer Neue Presse, ‚JVA Passau wird mit Neubau eigenständig‘, 3 August 2018, available in German at: https://bit.ly/3cG3bH6.

[11] Staatliches Bauamt Passau, Moderne “Kombi-Anstalt” für Strafvollzug und Abschiebehaft, available in German at http://bit.ly/3D271JR.

[12] Süddeutsche Zeitung, ‘Hafteinrichtung am Airport: ‘Überteuertes Symbol bayerischer Abschreckung’’, 12 January 2022, available in German at https://bit.ly/33XJcEG

[13] NDR, ‘Abschiebehaft in Glückstadt fertig, Insassen sollen bald kommen’, 5 August 2021, available in German at https://bit.ly/33L1toG.

[14] Mdr.de, ‘Abschiebegefängnis in Dessau kommt nicht’, 29 January 2021, Available in German at https://bit.ly/3GW47GO

[15] 100-jahre-aschiebehaft.de, ‘Land NRW will neue Haftplätze schaffen’, Press statement of ‘Hilfe für Menschen in Abschiebehaft Büren’, 9 September 2021, available in German at: https://bit.ly/3NrZyaT.

[16] welt.de, „Die Kapazität genügt nicht dem tatsächlichen Bedarf’, 7 October 2019, available in German atzhttps://bit.ly/2Z2nPNQ.

[17] Federal Government, Reply to parliamentary question by The Left, 19/31669, 4 August 2021.

[18] Rbb.de, BER-Ausreisegewahrsam bekommt ein Viertel weniger Plätze, 22 December 2022, available in German at http://bit.ly/3HrlJwJ.

[19] See Kein Abschiebegefängnis in Düsseldorf oder anderswo – Bleiberecht statt Abschiebung, Pressemitteilung: Bündnis fordert Aufklärung zum Planungsstand zum Abschiebeknast in Düsseldorf. Landesregierung bleibt intransparent, 15 December 2022, available in German at http://bit.ly/3kITRet.

[20] ECRE, Airport procedures in Germany Gaps in quality and compliance with guarantees, April 2019, available at: https://bit.ly/2QgOmAH.

[21] Bayerisches Landesamt für Asyl und Rückführungen, Kombinierte Transit- und Abschiebungshafteinrichtung, available in German at http://bit.ly/3wrzdCf.

[22] Bayerisches Landesamt für Asyl und Rückführungen, Kombinierte Transit- und Abschiebungshafteinrichtung, available in German at http://bit.ly/3wrzdCf.

[23] Der Tagesspiegel, Planung für Behördenzentrum am BER: Brandenburgs Innenminister streicht Plätze im Ausreisegewahrsam zusammen, 22 December 2022, available in German at http://bit.ly/3WwMwMl; Information provided by the BAMF, 10 March 2022.

[24] Der Tagesspiegel, Planung für Behördenzentrum am BER: Brandenburgs Innenminister streicht Plätze im Ausreisegewahrsam zusammen, 22 December 2022, available in German at http://bit.ly/3WwMwMl.