Only in absolutely exceptional cases, for example if there is an immediate risk of absconding, may an arrest take place without a court order. In such cases, however, the judicial decision must be made as soon as possible.
Three migrants take legal action against detention pending deportation
The ruling is based on three cases in which immigration authorities arrested migrants even though no court had yet ruled on detention pending deportation.
The first case involved a Slovakian citizen. The Foreigners' office had already prepared her deportation days in advance and had also submitted an application for detention to the court in good time. Nevertheless, the woman was arrested without a court order. It was only after she was in custody that a judge ordered her to be detained pending deportation. The deportation took place later.
The second case concerned a man from Eritrea who was to be transferred to Italy under the Dublin Regulation. After several failed transfer attempts, he was arrested on a Friday. A judicial decision was not obtained until the following day. The reason given later was that it was no longer possible to obtain a judicial decision on Friday afternoon because the arrest had taken place after the end of working hours.
The third case also involved an Eritrean national. Her deportation had also been planned beforehand. The woman was arrested and then taken directly to court, where the judge subsequently ordered her to be detained pending deportation. The authorities later argued that this was merely a presentation and not an actual deprivation of liberty.
How the court ruled: When is detention before deportation permitted?
The individuals filed a lawsuit against the authorities' actions. The cases eventually ended up before the Federal Constitutional Court in Karlsruhe. There, the judges ruled: In all three cases, there was a deprivation of liberty, which would only have been permissible with a prior judicial decision.
References to organizational reasons - such as the fact that no judge was available due to the weekend - do not apply. Courts do not have fixed opening hours and authorities must prove that they have made every effort to obtain a decision as quickly as possible.
The BVerfG thus makes it clear that the deprivation of liberty is a serious encroachment on fundamental rights and may not be carried out "as a precaution". A judicial decision must be made before an arrest can be carried out. The ruling sends an important signal to immigration authorities and courts
What is detention pending deportation and what rights apply?
Detention pending deportation is a measure under Section 62 of the Residence Act (AufenthG). It is used when people are required to leave the country and the authorities fear that they could evade departure. It is not a punishment, but rather a means of ensuring that a planned deportation can be carried out.
There are two main forms: preparatory detention (max. six weeks, e.g. to clarify identity or for travel preparations) and preventive detention (up to six months, if there is a risk of absconding, an entry ban or if there is a temporary obstacle to deportation in the country of origin ). In exceptional cases, preventive detention can be extended to a maximum of 18 months.
Minors and families with underage children are generally not taken into custody pending deportation. The following also applies: detention may only be ordered if milder measures are not sufficient, such as reporting obligations or the surrender of passports. If there is no deportation objective or no realistic prospect of carrying out the deportation, detention is not permitted.
Affected persons are entitled to, among other things
- Judicial decision and regular review of detention
- Legal assistance, i.e. legal advice and support
- Contact with family and advice centers
- Protection of special groups, such as minors, families or people with serious health problems
Federal government discusses indefinite detention pending deportation
The ruling from Karlsruhe comes at a time when the German government under Chancellor Friedrich Merz (CDU) is tightening its repatriation and deportation policy. Plans include faster procedures, regular deportations for rejected asylum applications and extended options for authorities to order detention pending deportation.
At the same time, there are discussions about extending detention pending deportation for certain groups. This primarily concerns people who are classified as a security risk by the authorities.
Talks on reforming the Common European Asylum System (CEAS) are also currently underway at EU level. The EU Commission is considering extending the current maximum period of detention for deportation of 24 months. In exceptional cases, even indefinite detention periods should be possible. Interior Minister Alexander Dobrindt (CSU) has announced his intention to introduce such regulations in Germany as well.
However, the proposal has been widely criticized. Experts point out that indefinite detention pending deportation without any realistic prospect of actual repatriation is unconstitutional. At present, there is still no concrete draft legislation for these plans.
What does the ruling mean for those affected in Germany?
The ruling is important for people who are affected by deportation. It emphasizes once again:
- Arrests without a prior court order are generally not permitted.
- If an arrest is made, the judicial decision may only be made later in exceptional cases.
- Authorities may not invoke organizational reasons ("judge not available") or must prove that every effort was made to reach a judge.
- Those affected can defend themselves against unlawful arrests and lodge a complaint.
Conclusion
The Federal Constitutional Court strengthens the fundamental rights of migrants in deportation proceedings. Even with a stricter deportation policy, authorities must strictly adhere to the Basic Law. Every deprivation of liberty requires judicial control. If a detention does occur (without a prior court order), there is a good chance of successfully defending oneself against it.
