The section on pre-removal detention in the Residence Act opens with a general clause on the principle of proportionality:
‘Detention pending removal is not permissible if the purpose of the detention can be achieved by other, less severe but equally sufficient means. The detention shall be limited to the shortest possible duration. Minors and families with minors may be taken into detention awaiting removal only in exceptional cases and only for as long as it is adequate considering the well-being of the child.’[1]
In spite of this provision, lawyers and NGOs have frequently criticised that detention pending removal is imposed by the responsible local courts ‘too often and too easily’ and a high number of detention orders were overturned by higher courts upon appeal.[2] In court decisions, alternatives to detention are rarely discussed.[3] The practice in resorting to detention also differs widely between Federal States: by way of example, in 2020 in Berlin detention was only ordered in 18 cases compared to 968 forced removals (2%), whereas in Bavaria, 851 persons were detained for a total of 1,558 forced removals (i.e. 54%).[4]
In terms of available alternatives, the ‘geographical restriction’ which normally applies to asylum seekers for a period of 3 months can be re-imposed if ‘concrete measures to end the foreigner’s stay are imminent’ (see Freedom of Movement).[5] The law also contains a general provision according to which ‘further conditions and sanctions’ may be imposed on foreigners who are obliged to leave the country.[6] In particular, these sanctions may consist of reporting duties, but also of an obligation to consult a counselling service for returnees.[7] Passports of foreigners obliged to leave the country can be confiscated.[8] The authorities may also ask foreigners who are obliged to leave the country to deposit a security to cover the costs of a possible removal.[9] However, the law does not allow for security deposits which may be used as bail and confiscated in cases of ‘absconding’.[10]
Responsibility for carrying out removal procedures lies with local or regional authorities or, when the person reaches the airport, with the Federal Police. Therefore, no common approach to the use of alternatives to detention could be adequately ascertained.[11]
Obligations resulting from the ‘tolerated stay for persons with undetermined identity’
A whole range of obligations can be imposed on foreigners in connection with the newly established ‘tolerated stay for persons with undetermined identity’ (Duldung für Personen mit ungeklärter Identität, also known as ‘Duldung light/toleration light’). This new document was introduced in August 2019 as part of the Second Act for an improved enforcement of the obligation to leave the country. Persons who are issued this document must fulfil several obligations which are summarised in section 60b of the Residence Act and which include inter alia:
- Obligation to cooperate with German authorities and with the authorities from the country of origin in measures aimed at obtaining a passport;
- Obligation to make a declaration according to which the foreigner is prepared to leave Germany voluntarily, if the issuing of a travel document is dependent on such a declaration;
- Obligation to make a declaration according to which the foreigner is prepared to perform military service in the country of origin, if the issuing of a travel document is dependent on such a declaration;
- Obligation to pay fees for the issuing of travel documents.
Persons affected by this provision shall only be issued the ‘tolerated stay for persons with undetermined identity’ until they adhere with the obligations referred to above. In general, the main legal consequences of this new kind of tolerated stay are:
- Reduced social benefits (benefits according to Section 1a of the Asylum Seekers‘ Benefits Act);
- Obligation to reside in a place assigned by the authorities (Wohnsitzauflage according to Section 61 (1d) of the Residence Act);
- No right to work;
- No possibility to consolidate the stay, i.e. obtain a residence permit.
As of March 2021, 7.5% of all persons with a tolerated status were granted this ‘Duldung light’ (17,988 out of approx. 240,000 persons with a tolerated status), with large differences between Federal States.[12]
The new provision of Section 60b of the Residence Act generally does not apply to asylum seekers as long as the (regular) asylum procedure is pending, because they are not subject to the obligation to obtain a passport during this period. It may apply, however, to persons whose asylum application has been rejected as ‘manifestly unfounded’ or as ‘inadmissible’, even if their appeal is still pending.[13] The latter category may also include Dublin cases, but these are less significant in this context than in the context of removal to countries of origin, since the existence of passports or other travel documents is usually no obstacle to Dublin transfers. As a result, the new provision is mainly relevant for rejected asylum-seekers or persons who have never applied for asylum.
[1] Section 62(1) Residence Act.
[2] Die Rechtsberaterkonferenz, 50 Forderungen zum Flüchtlings-, Aufenthalts, Staatsangehörigkeits- und Sozialrecht, November 2017, available in German at: http://bit.ly/2HOWd2J, 32-34. See also Positionspaper Pflichtbeiordnung von Anwält:innen in der Abschiebungshaft, available in German at http://bit.ly/3knqnTl, preliminary remark of parliamentary group of The Left in Federal Government, Reply to parliamentary question by The Left, 19/5817, 16 November 2018, 2; See also the statistics of the pilot project of the Refugee Council of Lower Saxony at Judicial Review of the Detention Order.
[3] Stefan Keßler, Abschiebungshaft, socialnet.de, 14 January 2019, available in German at: https://bit.ly/2TiNCji.
[4] Federal Government, Reply to parliamentary questions by The Left, 19/31669, 4 August 2021, 9-12, 19/18201, 19 March 2020, 19.
[5] Section 61(1)(c) Residence Act.
[6] Section 61(1)(e) Residence Act.
[7] Section 46(1) General Administrative Regulations relating to the Residence Act.
[8] Section 50(5) Residence Act.
[9] Section 66(5) Residence Act.
[10] Ministry of the Interior of the Federal State of Schleswig-Holstein, Interministerielle Arbeitsgruppe (IMAG) ‘Alternative Abschiebungshaft’ (Report of a working group ‘alternative detention pending removal’), 25 March 2014, 5.
[11] Janne Grote, The use of detention and alternatives to detention in Germany. Study by the German National Contact Point for the European Migration Network (EMN), Working paper 59, July 2014.
[12] By way of example, Bavaria hosts around 12% of all persons with a tolerated status but 23.6% of all cases where a ‘tolerated status light’ was issued were in Bavaria. See Letter of State Secretary Dr. Helmut Teichmann in reply to Ulla Jelpke (The Left), available in German at https://bit.ly/3nP3ZRF.
[13] Kirsten Eichler, Das Sanktionsregime der „Duldung light’, in: Das Migrationspaket, Beilage zum Asylmagazin 8-9/2019, available in German at: https://bit.ly/3boa7HM, 64-72,