Custody

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Detention pending deportation or detention pending deportation (in Austria : detention pending deportation , in Switzerland deportation detention ) is a term used in immigration law . It is a deprivation of liberty that can be ordered by a judge in specified situations in connection with a deportation for a certain period of time.

Former detention center, Zweibrücken

Germany

In Germany, the term `` detention pending deportation '' is used in legal language (see Section 62 of the Residence Act ).

Foreigners are only allowed to stay in Germany if they have a right of residence, e.g. B. as an EU citizen with the right to free movement , as the holder of a valid residence permit or if they are exempt from the requirement of a residence permit by law, e. B. in the context of a short-term visa-free stay (see list of countries in Appendix II of the EU Visa Regulation) or on the basis of other concessions (see §§ 15 ff. Residence Ordinance (AufenthV)).

Foreigners who do not have an explicit right to stay are obliged to leave the country even if they are not specifically requested to do so (obligation to leave the country, see Section 50 subsection 2 of the Residence Act). A tolerance is so far no right of residence, but rather ensures a foreigner only a temporary suspension of deportation to.

If the obligation to leave the country is also enforceable (see Section 58, Paragraph 2 of the Residence Act), a set departure deadline has expired and the voluntary fulfillment of the obligation to leave the country has not been ensured, the authorities must deport them, cf. Section 58 subs. 1 of the Residence Act.

Deportation detention in the form of preventive detention is only possible if deportation is legally possible in accordance with the regulations described. The same applies to preparatory detention, which, however, is comparatively rarely ordered.

Under German law, the ordering and execution of detention pending deportation of minors is not generally excluded. However, other forms of accommodation are always preferable and detention is only permitted as a last resort. In the application for detention, the authority making the application must accordingly comprehensively explain which other accommodation options it has considered and why this was viewed as inadequate in the specific case. In practice, ordering deportation detention against minors generally violates the principle of proportionality .

implementation

There are two forms of detention:

  • Preparatory detention:
    • This is used when the foreign nationals to prepare for deportation by court order in detention is taken. This happens when a decision cannot be made immediately about deportation and the (subsequent) deportation without detention would be made significantly more difficult or thwarted.
    • The duration of the preparatory detention should not exceed six weeks. If the decision on deportation is detrimental to the person concerned, detention can be continued without a new judicial order until the end of the ordered detention period.
  • Preventive detention:
    • This is applied when
    1. the foreigner is enforceably obliged to leave the country due to unauthorized entry ( Section 62 subs. 3, sentence 1, no. 1 of the Residence Act),
    2. a deportation has been issued in accordance with Section 58a, but this cannot be carried out immediately ( Section 62 subs. 3 , sentence 1, no.1a of the Residence Act),
    3. the departure deadline has expired and the foreigner has changed his place of residence without giving the immigration authorities an address at which he can be reached ( Section 62 subs. 3, sentence 1 no. 2 AufenthG),
    4. for reasons for which he is responsible, he was not found at a date announced for deportation at the location specified by the immigration authority ( Section 62 subs. 3, sentence 1, no. 3 AufenthG),
    5. he has evaded deportation in any other way ( Section 62 subs. 3, sentence 1, no. 4 of the Residence Act) or
    6. In individual cases there are reasons that are based on the indications laid down in Section 2 subs. 14 of the Residence Act and therefore there is reasonable suspicion that he wants to evade deportation (risk of flight) ( Section 62 subs. 3, sentence 1, no. 5 of the Residence Act) .
    • Preventive detention can be ordered for up to six months. In cases in which the foreigner prevents his or her deportation, it can be extended by a maximum of twelve months.

Detention was partially carried out in prisons for the execution of sentences, in pre-trial detention or in police custody, whereby according to recent case law placement in prisons is fundamentally illegal, even if the prisoners are housed separately from prisoners (cf. ( § 62a AufenthG)). In the meantime, deportation detention is only carried out in pure deportation detention centers.

The largest European deportation prison was the Büren correctional facility near Paderborn . There were up to 530 male deportation prisoners here. After being temporarily closed, it was reopened in May 2015 as a pure deportation detention center (100 places). Further detention centers are in Eichstätt (facility for detention pending deportation of the State of Bavaria ) with 86 places for men, 10 places for women - from June 2017, JVA Erding facility for detention pending deportation (Bavaria, 12 places for men, 12 places for women - from February 2018) Langenhagen ( Lower Saxony , 15 to 30 places), Ingelheim am Rhein ( Rhineland-Palatinate , 70 places), Pforzheim ( Baden-Württemberg , 36 places) and Darmstadt ( Hesse ) with 5 detention places (expansion is planned). The only facility for deportation detention for Bavaria in Mühldorf am Inn to date was reassigned to a regular penal institution when the Eichstätt prison was put into operation on June 1, 2017 . In the past there were detention centers in Berlin-Köpenick and Rendsburg ( Schleswig-Holstein ). Deportation detention was also carried out in the Mannheim JVA (Baden-Württemberg) and the Volkstedt JVA ( Saxony-Anhalt ).

Detention pending deportation is applied for by the immigration authorities or the federal police at the local courts; in the case of removals , the application is made by the federal police. The rules of Book 7 (Procedure in Deprivation of Liberty ) of the Family Procedure Act (FamFG) apply . It is possible to assign a lawyer as part of legal aid (Sections 76ff. FamFG), but in practice a decision on legal aid is often only made together with the decision on the application for detention itself.

If deportation custody is carried out in prisons, the Prison Act applies as a regulation for the placement. Many of the German Länder have created additional regulations in the form of laws and decrees. In 2014, the ECJ ruled that Germany and other EU member states cannot rely on the lack of special detention facilities in part of the country's territory to accommodate deported third-country nationals in ordinary detention facilities. The accommodation of deportation detainees in prison was previously common in ten of the 16 federal states that did not have separate facilities.

Detention is not legally considered a punishment. If the execution of detention pending deportation subsequently proves to be illegal, the person concerned is therefore not entitled to compensation under the law on compensation for criminal prosecution measures . However, as a rule, there is a claim for damages within the framework of official liability or according to Article 5, Paragraph 5 of the ECHR , whereby the judicial administrations and the jurisprudence are often based on the provisions on compensation under the StrEG.

In June 2014, the Federal Court of Justice ruled that refugees who are waiting to be transferred to another EU country may not be taken into deportation detention for any of the reasons for detention specified in Section 62, Paragraph 3 of the Residence Act. Detention on the basis of some of these reasons for detention would, according to the court, not comply with the Dublin III Regulation, which would apply immediately after January 1, 2014 . This is because imprisonment presupposes a "considerable risk of escape" that can be determined in individual cases according to objective, legally defined criteria; However, the current German Residence Act did not meet these requirements in all respects. With the introduction of section 2 subs. 14 and 15 of the Residence Act, such reasons for detention were expressly defined. Since then, detention pending deportation within the scope of the Dublin III Regulation has only been based on this provision in conjunction with Art. 28 Dublin III Regulation itself. Recourse to Section 62 (3) of the Residence Act is therefore not necessary, but also inadmissible. However, the term “detention pending deportation” also includes such an order.

history

The first deportation detention regulation was passed in Bavaria in 1919 during the turmoil after the war . On May 25, 1919, the ministries for the interior and military affairs passed the “Announcements on Residence and Immigration Restrictions”, which tightened the current law on aliens under the stipulation of the prevention of revolution (immediately after the end of the Munich Soviet Republic ). With these changes, the foundation stone for today's deportation detention practice and today's immigration law was laid. The first deportation prison was set up in April 1920 as a collection camp for foreigners in the military fortress Fort Prinz Karl near Ingolstadt .

In the “Aliens Police Ordinance” passed in 1938, the Bavarian regulation was included in Section 7: “The foreigner is (...) to be deported from the Reich territory by applying direct compulsion if he does not leave the Reich territory voluntarily or if the use of direct compulsion appears necessary for other reasons . The foreigner can be taken into custody to secure deportation. ”This regulation of the Aliens Police Ordinance applied unchanged in West Germany until 1965.

From 1965 to 2004, the two foreigner laws governed detention pending deportation: The 1965 Act in Section 16 and the 1990 Act in Section 57. The Residence Act has been in force in the Federal Republic of Germany since 2005 . Section 62 regulates detention pending deportation.

Austria

The imprisonment of foreign nationals is subject to administrative law and has been regulated since January 1, 2006 in the “Federal Law on the Exercise of the Aliens Police, the Issuing of Documents for Foreigners and the Issuing of Entry Permits ( Aliens Police Act 2005 - FPG)” - above all Sections 76 to 81 regulated.

Strangers can be arrested and stopped (detention pending deportation) if this is necessary in order to secure the procedure for issuing a residence ban or expulsion or for deportation, removal or transit. Aliens who are lawfully resident in federal territory may be detained if, on the basis of certain facts, it can be assumed that they would evade the proceedings. In the case of minors, the so-called “milder means” is preferable to reporting requirements.

The detention is ordered by an official from the Federal Office for Immigration and Asylum. This authority is subordinate to the Federal Ministry of the Interior . The maximum duration of detention is ten months.

As a rule, detention is carried out in a police detention center , which is subject to the provisions of the Administrative Penal Act or the detention order. The Federal Ministry of the Interior acts as the competent higher authority. In only a few cases in prisons resorted. The individual prison houses have very different capacities between 7 and approx. 300 prisoners.

The Austrian deportation detention practice is heavily criticized. The Committee for the Prevention of Torture of the Council of Europe (CPT) called this literally “unacceptable” in its last annual report (2005).

Switzerland

In Swiss law, a distinction is made between preparatory detention , deportation detention and enforcement detention . All three types of detention are permitted for adults and minors aged 15 and over. It is administrative detention , which is issued by the competent cantonal authorities - i. d. R. the Aliens Police - is ordered. The detention must be checked for legality by a judge within a certain period of time. The imprisonment of foreign citizens without a residence permit is regulated in the “Federal Act on Foreign Nationals” of January 1, 2008, Art. 73–82. The compulsory measures in the law also include short-term detention (max. 3 days) as well as inclusion or exclusion (prohibition to leave or enter a certain area).

The preparatory detention can be imposed on people without a residence permit in order to carry out a removal proceedings to ensure. Possible reasons for preparatory detention are set out in the law under Art. 75 para. 1 let. ah listed. The maximum length of preparatory detention is 6 months.

The deportation detention can be ordered after the preparatory detention or rearranged. It aims to ensure the execution of a removal or deportation decision or can be ordered due to a lack of cooperation in the procurement of travel documents. The maximum duration of deportation is 60 days.

The coercive detention may be ordered if a person has not left Switzerland within the prescribed time limit and a removal or expulsion can not be executed because of their personal behavior. It can also be ordered if the order of deportation detention is not permissible and a milder measure does not lead to the goal (the departure of the person). Enforcement detention can be ordered for one month and extended by two months with the consent of the cantonal judicial authority.

All three types of detention together may not exceed the maximum duration of six months. With the consent of the cantonal judicial authority, an extension of a maximum of 12 months is possible, for minors between 15 and 18 years of age by six months. For persons over the age of 18 this results in a maximum term of 1.5 years, for minors over 15 years of one year.

Detention is generally carried out in pre-trial and criminal detention buildings. As a rule, those affected are separated from prisoners. There are separate deportation facilities in the cantons of Aargau and Bern. There is also an airport prison in Zurich-Kloten.

European Union

The return directive of 16 December 2008 provides for six months' detention, in exceptional cases up to 18 months (Art. 15 (5) and (6) of the directive). The duration of the entry ban is decided in consideration of the respective circumstances of the individual case; in principle, it may not exceed five years (Art. 11 (2) of the Directive). The member states had previously decided independently on detention (in Estonia , Great Britain , the Netherlands and six other EU countries, detention is unlimited). The regulation has been criticized by human rights organizations as a "guideline of shame".

On July 19, 2013, Regulation (EU) No. 604/2013 (Dublin III) came into force, which uniformly regulates the modalities of detention for the purpose of transfer to the EU. According to Art. 28 of this regulation, the member states may arrest a person if there is a considerable risk of flight and if proportionality is maintained.

UNHCR

The UNHCR issued its detention guidelines in 2012 , which are summarized in ten guidelines. The detention guidelines replaced the UNHCR guidelines on applicable criteria and standards for the detention of asylum seekers from 1999 with ten guidelines. They show narrow limits for the permissibility of detention of asylum seekers.

Schübling

In technical jargon, Schübling describes a person who is in custody for deportation. The word can be traced back to the 18th century and was a term used in legal language in both Austria and Germany. Since it had recently been forgotten, an academic jury from the Karl-Franzens-Universität Graz chose “Schübling” as the “Austrian unword of the year 1999” and in 2004 the supposedly new word was accepted as a neologism by German experts .

literature

  • Heike Herzog, Eva Wilder: They were looking for life ... suicides as a result of German refugee policy . Münster / Hamburg, ISBN 3-89771-810-3
  • Gerda Heck: "Illegal Immigration". A contested construction in Germany and the USA . DISS Edition, Volume 17, Münster 2008, ISBN 978-3-89771-746-6 ( Interview. Telepolis , November 10, 2008)
  • Hubert Heinhold: Law for refugees. A practical guide through asylum and immigration law . Loeper Literaturverlag, 2007.
  • Steffi Holz: Everyday uncertainty. Experiences of women in custody . Münster 2007, ISBN 978-3-89771-468-7 .
  • Julia Kühn: deportation order and detention. An investigation into § 58a and § 62 of the Residence Act in terms of constitutional law . Berlin 2009, ISBN 978-3-428-13091-7

Austria:

  • Helgo Eberwein, Eva Pfleger: Aliens law for studies and practice . LexisNexis, Vienna 2011, ISBN 978-3-7007-5010-9

See also

Web links

Wiktionary: Deportation detention  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. ↑ BGH, decision of March 7, 2012 - V ZB 41/12
  2. ↑ BGH, decision of July 25, 2014 - V ZB 137/14
  3. ↑ Controversial deportation detention center in Eichstätt opened +++ photos . In: Passauer Neue Presse . ( pnp.de [accessed April 29, 2018]).
  4. ↑ JVA Erding becomes a deportation prison . In: merkur.de . February 1, 2018 ( online [accessed April 29, 2018]).
  5. ↑ Katharina Ober: Back to everyday criminal life in the Mühldorf prison . In: Altötting - News - Newspaper - Alt-Neuöttinger Anzeiger . ( Online [accessed April 29, 2018]).
  6. ↑ The deportation prison in Rendsburg finally closed. In: Hamburger Abendblatt. November 3, 2014, accessed June 30, 2015 .
  7. ↑ New institution planned: deportation detention should become more humane. stuttgarter-nachrichten.de, March 24, 2015, accessed June 30, 2015 .
  8. ↑ Judgments in Joined Cases C-473/13 and C-514/13 as well as in Case C-474/13 (PDF) ECJ press release No. 105/14 of July 17, 2014
  9. ↑ Judgment of the European Court of Justice: Prison taboo for deportation prisoners ( memento from July 17, 2014 in the Internet Archive ) Tagesschau.de, July 17, 2014
  10. ↑ Press release No. 117/2014 of the Federal Court of Justice, Az.V ZB 31/14 - decision of June 26, 2014
  11. ↑ BGH, decision of February 25, 2016, Az. V ZB 157/15, juris
  12. ↑ BGH, decision of May 20, 2016 Az. V ZB 24/16, InfAuslR2016,335
  13. ^ Report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) to the Austrian Government on its visit to Austria, page 57
  14. ↑ Swiss Federal Law on Foreign Nationals
  15. ↑ EU adopts controversial deportation rules . FAZ
  16. ↑ European Parliament adopts joint deportation rules . at tagesschau.de, June 18, 2008; Retrieved June 18, 2008
  17. ↑ Detention guidelines. (PDF) (No longer available online.) UNHCR, 2012, archived from the original on March 9, 2017 ; accessed on March 8, 2017 .
  18. ↑ Guidelines on applicable criteria and standards regarding the detention of asylum seekers. UNHCR, 1999, accessed March 8, 2017 .
  19. ^ The UN guidelines on the detention of asylum seekers and Switzerland. humanrights.ch , November 26, 2012, accessed on March 8, 2017 .
  20. ↑ Schübling. In: Jacob Grimm , Wilhelm Grimm (Hrsg.): German dictionary . tape 15 : Schiefeln – Soul - (IX). S. Hirzel, Leipzig 1899 ( woerterbuchnetz.de ).
  21. ↑ Schübling, the. In: Duden Onlin. Retrieved November 14, 2018 .
  22. ↑ Josef Kropatschek: The cause of the abrasion. In: Collection of the laws that appeared under the most glorious government of Emperor Franz II in all of the KK hereditary lands: in a chronological order by Josef Kropatschek. Bayerische Staatsbibliothek digital, 1794, p. 517 , accessed on November 14, 2018 .
  23. ↑ Bavarica | Band | Royal-Bavarian intelligence paper for the Grand Duchy of Würzburg | Royal-Bavarian intelligence paper for the Grand Duchy of Würzburg. S. 2713 , accessed November 15, 2018 .
  24. ↑ a b Stephan Steiner: Return undesirable: Deportations in the Habsburg Monarchy of the Early Modern Age and their European context . Böhlau Verlag, Vienna 2014, ISBN 978-3-205-79499-8 , pp. 299 ( google.de [accessed November 15, 2018]).