Ever since humanity has started settling in certain areas of land, territorial tenures existed. Farming and being tied to a certain place demanded protection of the tilled soil.
For that reason, mankind was subdivided into the people who belonged to the settled community on the one hand and foreign intruders who could destroy their land on the other.
With the beginnings of borders and nations territorial claims further increased. By and by the emergence of human rights in politics prevented an undifferentiated defense of borders. This is why today many people can move freely from border to border – for instance in the countries of the European Union (EU).
But what precisely is the difference between an expulsion and a deportation? What is the prevalent procedure of a deportation in Germany? To what kind of laws does the deportation procedure trace back? In this article you can find all relevant information on the topic of deportation, the prevention of it as well as possible consequences.
Expulsion of refugees
The war in Syria led to a so-called “refugee crisis” in Europe, which is still ongoing in 2017. Many people seeking refuge are currently on their way to Europe. Unfortunately, the right to remain cannot be granted to all of them. Usually, a declined application for asylum eventually involves an eviction order. This in turn results in a deportation for many refugees.
Legal regulation for deportations: The Residence Act
§ 50 AfenthG (Residence Act) regulates the obligation to return for foreigners in Germany:
(1) A foreigner is obligated to leave the country, if he is not / not anymore in the possession of a residence permit and a right to remain cannot be granted according to the association agreement between the EEC and Turkey.
As long as the procedure for granting the right of asylum is ongoing, the applicant owns a temporary residence permit, which grants him the possibility to remain legally on German federal territory. The rejection of the application involves a denial of residence and results in the refugee´s obligation to return.
In addition, paragraph two of the article states:
(2)The foreigner has to leave German territory immediately or depart before the determined deadline for departure has expired.
Off to a neighboring country? What does a departure within the EU entail?
In Europe an eviction order seems to be easily fulfilled: simply by traveling to France, the Netherlands or any other neighboring country. § 50 AufenthG, however, puts a hold to this intention:
(3) By entering a different member state of the European Union or the Schengen area, a foreigner meets his obligation to return only if the country in question explicitly permits the entry and consequential residence. If the necessary requirements can be fulfilled, the foreigner has to resort to the sovereign territory of that country immediately.
In consequence, however, a prohibition from residing in Germany equals a residency prohibition in Europe and the Schengen area respectively.
In the course of the asylum proceedings an eviction order is decided by the Federal Agency of Migration and Refugees (BAMF). As a general rule an asylum seeker receives the eviction order together with the refusal of the asylum request as well as a deadline for voluntary departure.
Usually, this time span lasts one month. Only after that deadline has expired, a deportation can be demanded. This procedure, however, falls into the remit of the responsible Aliens Department of the particular federal state.
In some federal states authorities started to withhold information about the specific dates of deportations. This procedure is used only for families without children. In this manner authorities try to prevent people from evading and going into hiding. Human rights specialists condemn this procedure as inhumane.
A separate and accelerated version of the asylum procedure is the so-called “airport procedure.” It can, of course, only be valid for foreigners entering federal territory by air.
Before leaving the transition area of the airport, the passenger has to apply for asylum. This procedure especially applies to foreigners with no or fake documents as well as people, whose country of origin is listed as secure.
In this instance the Federal Border Guard instead of the BAMF has got the final authority. Within two days the Federal Border Guard has to decide whether an application is unsubstantiated or not.
Deportation after a criminal offence
Not only denied residence permits are the reason for deportations. Foreigners, who already own a residence permit, can likewise receive an eviction order. If a foreigner commits a severe crime, a deportation can be authorized according to the aliens law.
Legal foundations responsible for a deportation after criminal offenses
§ 53 AufenthG states:
(1) A foreigner, whose residence threatens public security, as well as the basic democratic order or otherwise threatens the interests of the federal republic of Germany, will be deported, if – after considering all circumstances of the individual case – the evaluation of the public´s and the foreigner´s interests of staying on federal territory shows that the public interest for departure predominates.
In this very case the eviction order will not be authorized by the BAMF but by the responsible aliens department. What happens, however, if an asylum seeker, whose status as a refugee has been acknowledged, commits a serious crime?
In this case, risks and benefits of two different legal assets need to be opposed: The right to asylum and the right of public security and protection of the basic democratic order. Usually the right to asylum is estimated higher than the other – except for cases of extreme hardship:
(3) A person, who has been given political asylum and who possesses the rights of an accepted refugee on federal territory, who is also in the possession of a passport according to the convention of the legal status of refugees from 28th July, 1951 (BGBI. 1953 II S. 559), who else has been granted a residence permit according to the association agreement of the EEC and Turkey, can only be deported when the conduct of the person concerned involves an acute threat for public security and order and when a departure is vital for the protection of public interests.
The final decision here lies within the authority of the aliens department, who can work in close consultation with the BAMF. German legislation demands a deportation when several deliberate crimes or particularly severe crimes have been committed. Owing to current developments, special attention has lately been given to participations in terroristic groups (§ 54 AufenthG).
Before a refugee is sent back to a war region, however, all relevant circumstances of every individual case will be observed by the responsible authorities.
If there is reasonable ground for suspecting that a foreigner, being the subject of removal orders, is about to go into hiding, a so-called deportation detention can be arranged.
It can last up to 18 months and is supposed to guarantee that the person concerned can be expelled at any time and will not start a life as an illegal citizen. Deportation detention was especially established for asylum seekers who have committed severe crimes. In this case, the state has a strong interest in resettling the criminal.
Return to Germany after a deportation?
If an asylum seeker has been deported from German grounds, the state usually issues a re-entry ban. This ban is absolute and needs to be maintained at all times. Even residing in the transit area or visiting one’s family is not permitted anymore.
Foreigners then have to expect rejection at the border and cannot enter the state. The re-entry ban lasts up to 10 years, but can be extended depending on the case.
Can a deportation be prevented?
Although there are currently many foreigners living in Germany who are supposed to be resettled, final deportations are hardly ever arranged. Bureaucratic barriers and overworked authorities lead to residences that last longer than intended.
In the context of the current refugee crisis countries also prefer participation and cooperation rather than removals with the help of police force.
Deportations are arranged differently among the federal states. Some push through radical procedures, some insist on cooperation.
The so-called “voluntary departure” is an alternative option to an impending deportation and assures a certain level of autonomy and dignity.
Voluntary departures in numbers
According to an empirical inquiry of the ZDF, a lot more people depart voluntarily than are being deported. In 2015 56.373 people left the country on their own accord, whereas 22.315 refugees were deported.
Yet, only a fractional amount of the people who are supposed to be expelled, really leave German territory. In total 204.414 refugees were supposed to leave Germany in 2015, yet not all of the remaining 125.000 refugees reside illegally on German grounds.
Exceptional leave to remain as an alternative to deportation
An abandonment of resettlement can be evoked for reasons of the international humanitarian or human rights law as well as political interests of the Federal Republic of Germany (§ 60a AufenthG). Many times, however, urgent personal reasons can stop an impending expulsion. This temporary abandonment of resettlement is then called “exceptional leave to remain.” It does not absolve anyone from the burden of their return, but rather freezes up the process. Yet, this cannot be put on a level with a residence permit.
The asylum law in Germany: Working permit in a time of tolerance?
Under certain circumstances foreigners will be able to work in Germany, even if their residence is only tolerated. However, finding work may prove difficult due to the impending departure.
The exceptional leave to remain must be updated every six months and, if need be, extended. If a foreigner misses these appointments, a deportation can be carried out with full force. For that reason, employees who only have an exceptional leave to remain, constitute a certain risk for their employer.
So far, not every tolerated person is actually allowed to work in Germany. § 60 AufenthG specifies:
(6) A foreigner, who has been granted an exceptional leave to remain, cannot be employed when,
- he entered the country only in order to receive the benefits provided by the Asylum Seekers’ Benefit Act,
- an appointed deportation was prevented for reasons the asylum seeker is to be blamed for or
- he is the citizen of a country listed as secure according to § 29a of the asylum law and his application for asylum, handed in after the 31st of August, 2015, has been rejected.
A foreigner can especially be hold responsible for the reasons as displayed in 1 and 2, when he prevents his deportation by conscious deception in respect to his identity or nationality.”
For these reasons, it is a common fact that most of the people having an exceptional leave to remain will not have an access to the job market. Those who do have a working permission only have limited access to the job market.
Reasons for preventing deportation
How can one explain the fact that, despite the high numbers of foreigners obliged to leave the country, comparatively few deportations and voluntary departures can be recorded?
Missing proof of identity
Many asylum seekers do not have a passport. In most cases authorities cannot determine without doubt, what country a person is from or where he can be sent back to. Before a deportation can be carried out, the nationality of the person inflicted has to be clarified – or else the country of destination approves the admission.
Although substitute papers can be ordered, this will take a great amount of time. Often neither the person obligated to leave the country nor his respective country of origin cooperates well with the authorities. The latter sometimes even refuses repeated admittance of the refugee.
Inability to travel
Frequently, deportations are carried out by air. This procedure holds certain dangers. If a doctor confirms a refugee´s incapacity to travel, the process of deportation needs to pause.
Urgent personal reasons
If a person seeking asylum can produce valid personal reasons (according to § 60a AufenthG), a deportation can be delayed. A justifiable reason might for instance be a surgery that could not be performed in the country of origin.
Also nursing a sick family member or the beginning of an apprenticeship before turning 21 years-old might be valid reasons for preventing a deportation.
Using the help of information centers
If an application for asylum has finally been rejected, asylum seekers can file a lawsuit at the Higher Administrative Court.
The court then examines again, whether the refugee should be granted asylum or whether the decision of the Federal Agency for Migration and Refugees can be justified.
Depending on what grounds an application was rejected, there are different deadlines for filing a lawsuit at the Administrative Court.
In principle, once there has been a negative notification, one should visit an information center or a lawyer. The deadlines are set narrowly, before a deportation is announced.
- If an application is rejected as “obviously unsubstantiated”, the deadline is one week.
- If an application, however, is only rejected as simply “unsubstantiated”, the foreigner has got four weeks to file a suit.
In the former case, a lawyer can – by means of an accelerated procedure – evoke the delay of the deportation till after the court has decided about his case.
At court the lawyer or the asylum seeker himself can present the case. After detailed investigation of the circumstances, the court passes a sentence. It either confirms the decision of the BAMF (then the plaintiff is forced to leave the country) or the court decides that – even if the asylum seeker will not receive a residence permit – he can receive an exceptional leave to remain.
What is more: The Administrative Court can completely revoke the decision of the BAMF and grant a residence permit.
§ 58a AufenthG states:
(4) A foreigner, who has received a deportation order, has to be granted the opportunity to speak to a lawyer of his own choosing. His attention then needs to be called to the legal consequences of the deportation order and possible rights and remedies. An application for legal protection has to be handed in within the first seven days after the notice of deportation has been taken. If the application for legal protection has been done punctually, the deportation cannot be arranged before authorities have decided about a temporary legal protection.
One might appeal against this judgement, yet this appeal is hardly ever successful.