Deportation custody (Abschiebehaft)
Being turned away (Zurückweisung) means that entry is refused. Being sent back (Zurückschiebung) is used to describe the situation of an individual who, having just crossed the border and still in its immediate vicinity, is directly returned (redirected) into the neighbouring state. Entry into Germany for the purpose of submitting a petition for asylum is officially only possible if it takes place by air or by sea routes, and then only if so called safe third countries were not transited. (All countries which border onto Germany are so called safe third countries). When being turned away, an endorsement of such is made into the passport stamp. Such an endorsement means that at a later date a visa will not be granted by that state.
An alien is compelled to depart if (s)he does not possess (or no longer possesses) the required residence approval (§ 42 I of the Aliens Act). Those who, for example, enter unlawfully, or who fail to renew their residence approval are compelled to depart.
In order to determine the 'duty to depart', expulsion (Ausweisung) is set down in articles 45 to 48 of the Aliens act. Ausweisung means that the alien has received an order to leave Germany within a specified time period and is not to return (never to return, or not within a specified period).
An alien may even then be expelled even if (s)he legally resides in Germany and his/her residence infringes upon the public safety and order (or other such important interests of the FRG).
Such grounds for expulsion may be for example:
By the above mentioned grounds the aliens authority has the right to take mitigating circumstances into consideration. The duration of residence, for example, may be taken into account, or the consequences for members of the alien's family and grounds for toleration.
In a case of expulsion due to extreme danger, the alien must be expelled. Only then if special protection from deportation (besonderer Ausweisungsschutz) is apparent, may an exception be made.
The authorities are compelled to expel an alien...,
An alien will usually be expelled,
The following are examples in which aliens receive special protection from deportation:
An alien is granted a period within which, before expiry (s)he has to leave the country voluntarily. This is called either 'border-crossing certification' or 'exit papers' according to article 42 of the Aliens Act.
Some aliens' authorities do not always wait for the expiry of this period. They may initiate deportation proceedings within this period (e.g. Bavaria). Where actual obstructions to deportation are present, a 'toleration' is to be provided under § 55 paragraph 4 of the Aliens Act. In such cases it is often the practice however, in aliens authorities, simply to issue border-crossing certification.
An alien may be taken into deportation custody in certain circumstances. If this occurs, it is essential to hire a lawyer.
The aliens authority is legally bound to carry out all measures necessary for the implementation of deportation without resorting to detention. This often means that the aliens authority carries through the deportation in a sudden veiled operation. The aliens concerned are often only able to pack and take with them the bare essentials. This is called direct deportation (Direktabschiebung). Perhaps the social services can be contacted at the airport, so as to call a lawyer.
The following types of deportation custody exist:
The first two of these hardly apply in respect to refugee work, where, usually the third, longer-term form of custody is brought to bear.
'An alien is to be taken into custody in preparation for deportation by order of a judge, if the decision upon the deportation cannot immediately be made and if a deportation without detention is expected to become severely aggravated or complicated (Vorbereitungshaft). Preparation for deportation is deemed to be no longer than six weeks. In the case of expulsion, and in order for the custody to continue, no further judicial rulings may be applied up to the end of the prescribed custodial period.' (§ 57 I of the Aliens Act).
The aliens authority must carry out an expulsion process, and the deportation itself must be particularly imperilled. Since preparation for deportation may be no longer than six weeks, it must be an established certainty at the time of the detaining order that the deportation will take place within the next six weeks. If this is not the case then detention is unlawful.
'The alien may be taken into surety custody for a period of one week, if the prescribed period within which the refugee must depart has expired, and it is established that deportation may be carried out. Concerning the surety custody ruling, under section 1, item 1, an exception to the rule may be granted if the alien can convincingly assure the authorities that (s)he does intend to avoid deportation.'
'An alien is to be taken into detention by order of a judge to ensure deportation (Sicherungshaft),
The alien may be taken into surety custody for a period of no more than one week, if the prescribed period within which the refugee must depart has expired and it has been established that deportation may take place.' (from § 57 II of the Aliens Act)
Surety custody is usually applied initially for a maximum of three months, however a prolongation up to six months is quite possible without any difficulties. In cases in which the alien aggravates deportation, a further prolongation of twelve months is possible, making a total of eighteen months.
A precondition of surety custody is that deportation must be carried out by the aliens authority and the necessity for detention for ensuring deportation is extant.
If deportation custody has been pronounced, it is strongly recommended to seek the advice of a lawyer.
Within a period of two weeks (date of submission to the courts) following notification of the pronouncement of detention, an 'immediate objection' may be submitted to the relevant Amtsgericht. The Beschwerdekammer, a court of appeal, decides after hearing the alien. If the decision is negative, it is possible to submit an 'immediate further objection' (sofortige weitere Beschwerde). In such a case the next-higher court must examine whether the application of the law has been correct, but not however, the individual facts of the case on their own.
If the period of two weeks within which an objection may be submitted, has expired, an application for 'release from detention' may be submitted to the relevant Amtsgericht. In the case of a negative decision, an objection is not possible.
Detention conditions vary quite considerably between the German states. In some cases the deportation custody takes place in special deportation prisons, sometimes in 'normal' prisons. Especially women, due to their limited number, are often placed in 'normal' prisons. In such cases normal prison regulations often apply to aliens in detention as well as to ordinary criminals (e.g. visiting times, exercise periods).
Special deportation prisons exist for example, in Berlin (Abschiebegefängnis Köpenick; with room for 364 detainees), in The Rhineland-Palatinate (Abschiebegefängnis Birkhausen; 71 detainees) and in Hesse (Abschiebegefängnis Offenburg; 70 detainees).
Women and men are, as a matter of course, accommodated in different prisons. Children are usually taken to children's' homes.
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