What is § 62 AufenthG?
§ Section 62 of the Residence Act (AufenthG) regulates the requirements and framework conditions for detention pending deportation in Germany. This provision is crucial for people who are required to leave the country and can be detained to ensure their deportation.
There are two main forms of detention pending deportation: preparatory detention, which may last a maximum of six weeks, and preventive detention, which is usually ordered for up to six months and can also be extended in special cases. It is important to know that detention may only be ordered by a judge.
Detention pending deportation is a sensitive topic that raises many uncertainties and questions. We would therefore like to provide you with the most important information on the meaning and purpose of detention pending deportation as well as the groups of people affected in detail.
Meaning and aim of Section 62 AufenthG
The main purpose of Section 62 AufenthG is to minimize the risk of foreigners having to leave Germany. The reasons for detention pending deportation and subsequent departure can vary. From a lack of the aforementioned legal cooperation to establish identity to criminal offenses.
The law aims to ensure that deportations are carried out properly and that legal requirements are met.
Who is affected by § 62 AufenthG?
The case law on Section 62 AufenthG concerns people who are obliged to leave the country and whose deportation must be secured or prepared. However, certain groups are exempt from detention. These groups are set out in Section 62 (1) sentence 1 AufenthG:
Legal text: "Detention pending deportation is inadmissible if the purpose of the detention can be achieved by a milder means. Detention shall be limited to the shortest possible period. Minors and families with minors shall not be detained pending deportation."
Detention pending deportation is also inadmissible if there is a so-called ban on deportation under Section 60 (1) AufenthG and you may not be deported.
Requirements for detention pending deportation in accordance with Section 62 AufenthG
Certain requirements must be met for detention pending deportation to be ordered in accordance with Section 62 AufenthG. These legal requirements are intended to ensure that detention is only used if there are no more lenient means of ensuring departure. Here I explain the general requirements as well as the grounds for exclusion and mitigating circumstances that are taken into consideration.
General requirements
The ordering of detention pending deportation is subject to strict conditions in order to protect the rights of the persons concerned.
Essentially, one of the following conditions must be met in accordance with Section 62 (3) sentence 1 numbers 1, 2, 3 and 4 AufenthG:
- Obligation to leave the country pursuant to Section 50 (1) AufenthG: The person must be obliged to leave the country and must have already received a deportation order.
- Risk of absconding: If there is a risk that the person will evade deportation or abscond, preventive detention may be ordered.
- Difficult deportation without detention: If it would be considerably more difficult or even impossible to carry out the deportation without detention, a detention order may be issued.
- Preparation for deportation in accordance with Section 58 AufenthG: So-called preparatory detention is used when organizational measures are still necessary to enable departure.
- Deportation in accordance with § 57 Para. 1 AufenthG: If you have entered the country without authorization in accordance with Section 15 (1) AufenthG, detention pending deportation and subsequent deportation back in accordance with Section 57 AufenthG will also apply.
Another legal basis is a situation under Section 62 (2) AufenthG. This stipulates that a foreigner must be detained by court order in preparation for an expulsion or deportation order in accordance with Section 58a AufenthG if a decision on deportation cannot be made immediately.
A risk of absconding is rebuttably presumed in accordance with paragraphs 3a and 3b if:
- you as a foreigner have misrepresented your identity to the authorities or destroyed documents for Clarification of identity .
- you as a foreigner have evaded an order under Section 82 (4) sentence 1 AufenthG and have been absent without excuse from a hearing or medical examination.
- Your deadline for leaving the country has expired.
- You have evaded deportation in the past or have an intention to do so.
- you have not complied with the obligation to obtain a replacement passport pursuant to Section 60b (3) sentence 1 numbers 1, 2 and 6 AufenthG and have not complied with your obligation to cooperate. You will then be detained if you fail to comply with the obligation to obtain a replacement passport.
- you have again violated an obligation under Section 61 (1) sentence 1, (1a), (1c) sentence 1 no. 3 or sentence 2 AufenthG or an order under Section 61 (1e) after the expiry of the deadline for departure.
In principle, you are in breach of the penal provisions under Section 95 (1) AufenthG for the above penalties. These are punishable by a prison sentence of up to one year or a fine.
It is important that detention pending deportation is always the last option. This means that mitigating measures - such as reporting requirements or the submission of a travel document - must be considered as a priority.
Reasons for exclusion and mitigating circumstances
Not everyone who is required to leave the country can simply be taken into custody pending deportation. There are important grounds for exclusion and mitigating circumstances that must be taken into account:
- Minors and families with minors: Minors and families with minor children may not be detained pending deportation in order to ensure their special protection.
- Prohibition of deportation according to § 60 paragraph 1 AufenthG: If there is a ban on deportation, there is also no detention pending deportation.
- Health reasons: People with serious health problems or mental stress may be exempt from detention pending deportation.
- No risk of absconding: If the person concerned gives credible assurance that he or she will not evade deportation, detention may be waived.
- No culpability in the event of a delay in deportation: If deportation is not possible within six months due to circumstances for which the person concerned is not responsible, detention pending deportation is inadmissible.
Types of detention pending deportation
§ Section 62 of the Residence Act distinguishes between two types of detention pending deportation: preparatory detention and preventive detention.
Both types of detention are used to facilitate the deportation of persons required to leave the country in accordance with Section 58 (1) AufenthG, but they differ in terms of duration and cases of application. Here you can find out which type of detention is used in which situations and the maximum duration for which it may be ordered.
Pre-trial detention (up to 6 weeks)
Pre-deportation detention in accordance with Section 62 (2) AufenthG is ordered if certain measures for organizing the deportation are still outstanding and a quick departure would not be possible without detention. This form of detention may be ordered for a period of up to six weeks and is specifically designed to prepare for the deportation process.
Examples of applications for pre-trial detention are
- Clarification of identity: If the person's identity still needs to be confirmed, e.g. through consulates or identity documents.
- Procurement of travel documents: In cases where travel documents for departure are missing and still need to be applied for.
- Organization of departure: If the departure has to be prepared logistically, for example by booking flight tickets or coordinating with the authorities in the country of origin.
Pursuant to Section 62 (2) sentence 2 AufenthG, preparatory detention may not exceed six months.
Pre-deportation detention may only be imposed if other measures, such as the surrender of a passport, are not sufficient to ensure deportation.
Preventive detention (up to 6 months)
Preventive detention in accordance with Section 62 (3) AufenthG is ordered if an immediate deportation is planned and the person concerned is considered to be at risk of absconding and it is possible to secure the deportation.
This form of detention is designed to ensure that the person cannot abscond until the actual deportation date. The maximum duration of preventive detention is usually six months, but can be extended under certain conditions.
Preventive detention is used in the following cases:
- Risk of absconding: If the person is classified as a flight risk and it is suspected that they could evade deportation.
- Entry ban: If the person has entered the federal territory contrary to an existing entry and residence ban and is staying there.
- Obstacle to deportation in the country of origin: In exceptional cases, if deportation is postponed at short notice due to an obstacle in the country of origin, preventive detention can be used to bridge the gap.
According to Section 62 (3) sentence 3 AufenthG, preventive detention is also permitted if no deportation order has been issued in accordance with Section 58a AufenthG and deportation cannot be carried out within the next 6 months. The prerequisite is that the lives of third parties (i.e. other people) are in danger. According to § 62 Para. 4 AufenthG, an extension of a maximum of twelve months is possible.
There is an exception to the preventive detention order if the person concerned can credibly demonstrate that they will not evade deportation.
Detention to cooperate in accordance with Section 62 (6) AufenthG
For the purpose of deportation, you may be detained for a maximum period of 14 days in accordance with Section 62 (6) AufenthG by court order. This happens if you have repeatedly failed to appear for appointments to clarify your identity, to establish your fitness to travel or for medical appointments and have been informed of the detention period.
The following point applies to custody to cooperate in accordance with Section 62 (6) (2) sentence 2:
Legal text: "It is not possible to extend detention for cooperation. Detention to cooperate shall count towards the total duration of preventive detention. § Section 62a (1) AufenthG (provisions on the execution of detention pending deportation) shall apply accordingly."
Extensions and maximum detention period
The statutory duration of detention pending deportation may be exceeded in special cases. Normally, the maximum period of detention is
- Pre-trial detention: maximum six weeks.
- Preventive detention: up to six months, with the possibility of an extension for a maximum of twelve months if the deportation cannot be carried out for reasons for which the person concerned is responsible.
However, the total duration of preventive detention may not exceed 18 months. In cases in which detention pending deportation is extended, it should always be checked whether all requirements are still met and no milder measures are possible.
Procedure and legal steps in the event of imminent detention pending deportation
If you are threatened with detention pending deportation, it is important that you know the next steps and your legal options. The process of detention pending deportation follows certain guidelines that can help you to defend yourself against unlawful detention or at least protect your rights in these proceedings. Here I explain what to do if you receive an order for detention pending deportation and how you can take legal action against it.
Receipt of the order and important steps
If you receive an order for detention pending deportation, you need to act quickly and calmly. The following steps can help you to find your way in this situation:
- Read the order carefully: The order for detention pending deportation contains information on the reasons for and duration of the detention. Check whether this information corresponds to your situation and whether you can understand the reasons for detention.
- Seek legal advice: Contact a lawyer or an advice center as soon as possible. A lawyer can help you understand the legal basis of the order and inform you of your options.
- Prepare the necessary documents: If you have papers that are relevant to your stay in Germany (such as passport, residence permit, proof of employment), collect these documents and have them ready to present to your lawyer or the authorities.
Options for contestation and legal protection
In many cases, you have the option of taking legal action against an order for detention pending deportation. Here are some options that can offer you legal protection:
- Lodge an appeal against detention: You have the right to appeal against the court's decision. Your lawyer can help you to take this step and have the order reviewed by the court. You have one month from the date of written notification to do so, or two weeks in the case of an interim order (Sections 63, 64 FamFG)
- Lodge an appeal with the next instance: If you do not agree with the court's decision on the detention complaint, you can lodge an appeal on points of law with the next instance (regional court and, if unsuccessful, the Federal Court of Justice) within one month. The following applies to the Federal Court of Justice (BGH): Always make sure that the lawyer is admitted to the BGH.
- Presentation of mitigating circumstances: If you can prove that there are mitigating circumstances (e.g. family ties or health reasons), this can help to prevent imprisonment or shorten its duration.
- Explanation of the risk of absconding: If you are accused of being a risk of absconding as a reason for detention, you may be able to provide credible assurances that you do not wish to evade deportation. This can influence a detention order.
Rights of those affected in detention pending deportation
Even if detention pending deportation is ordered, the persons concerned retain important rights. These rights protect basic needs and ensure fair procedures during detention. I would like to present the main rights and protective measures to which persons in detention pending deportation are entitled under Section 62 AufenthG.
Right to judicial order and review
The right to a court order and review is a key right for all persons in detention pending deportation:
- Judicial decision: Detention pending deportation may only be imposed by order of a judge. This ensures that an independent body checks whether the legal requirements are actually met.
- Regular review: Detention must be reviewed by a court at regular intervals to ensure that it is still justified. This involves checking whether the period of detention is appropriate and whether more lenient measures would be possible.
- Right to appeal: The person concerned or their legal counsel can appeal against the detention order and apply for a judicial review.
Restrictions and protection of minors and families
Particularly vulnerable persons, such as minors and families with children, enjoy special rights in detention pending deportation:
- Minors and families: As a general rule, minors and families with underage children may not be detained pending deportation. This rule is intended to ensure the special protection of these groups of people.
- Special rules for persons with health or mental health problems: In cases of persons with health or mental health problems, special protective measures are taken and stricter requirements for a detention order apply.
Access to legal assistance and counseling
The right to legal assistance is one of the most important rights during detention pending deportation:
- Access to a lawyer: Every person in detention pending deportation has the right to seek legal advice and representation. An experienced lawyer can check the legality of the detention order and lodge an objection if necessary.
- Counseling services: In addition to lawyers, advice organizations are also available in many cases to provide support and information on rights in detention pending deportation.
- Contact with family members and support networks: Those affected have the right to stay in contact with their family and friends and to receive support from their social environment.
Conclusion on § 62 AufenthG
Finally, we would like to summarize the most important information on detention pending deportation in accordance with Section 62 AufenthG. It is crucial to know your rights and to act quickly if you are affected by possible detention pending deportation. Here you will find the most important points at a glance.
Important points on detention pending deportation at a glance:
- Purpose of detention pending deportation: To ensure departure in the event of a risk of absconding or in preparation for deportation.
- Types of detention:
Preparatory detention: lasting up to 6 weeks, used when measures are required to prepare for departure.
Preventive detention: duration up to 6 months, can be extended if there is a risk of absconding or obstacles to deportation.
- Right to a court order: Detention may only be ordered by a court to ensure legality.
- Protection of special groups of persons: Minors, families and particularly vulnerable persons are generally exempt from detention pending deportation.
- Right to legal assistance: Those affected have the right to a lawyer and to support from counseling centers.
FAQ - The most important Questions on § 62 AufenthG
Detention pending deportation is a measure to ensure the departure of persons who are required to leave the country, especially if there is a risk of absconding.
Detention pending deportation may be ordered if there is a risk of absconding or if deportation would be considerably more difficult or impossible without detention.
Detention pending deportation is inadmissible if the purpose of the detention can be achieved by milder means or in the case of minors and families with minor children.
Pre-trial detention is used to organize departure and lasts up to 6 weeks, while preventive detention can last up to 6 months if there is a risk of absconding.
Those affected have the right to a court order, regular detention reviews, legal assistance and special protection arrangements for minors and families.
The duration is up to 6 weeks for preparatory detention and up to 6 months for preventive detention.
Yes, preventive detention can be extended by a further 12 months in special cases, but it may not exceed a total of 18 months.
