Concept and Legal Foundations of the Foreigners Police
The Foreigners Police refers to state authorities and organizationally distinct units tasked with the monitoring, implementation, and enforcement of immigration law. Their responsibilities include, in particular, the control of residency, investigation and prosecution of violations of immigration law, as well as the enforcement by compulsion of measures terminating residence. The terminology and jurisdiction of the Foreigners Police are anchored in German and Austrian law, while, internationally, the authority and scope of duties may differ.
Etymology and Development
Historically, the term “Ausländerpolizei” (Foreigners Police) was primarily used in German-speaking countries. In the course of immigration law reforms and European integration, the term has increasingly been replaced by more constitutional and neutral terms such as “Ausländerbehörde” (immigration authority) or “Fremdenbehörde” (foreigners authority). Nonetheless, the expression continues to be used in statutory language and in official and legal discourse, especially in the Austrian context (e.g. Fremdenpolizei).
Tasks and Responsibilities
Scope of Duties of the Foreigners Police
The core responsibility of the Foreigners Police is the monitoring and enforcement of residence law provisions. Key tasks include:
- Control of residence status: Verification of whether foreigners comply with the residence law provisions applicable to them
- Establishing identity: Recording and checking personal data, especially in cases of suspected unauthorized stay or upon entry into Germany or Austria
- Prevention of illegal migration: Prevention and detection of unauthorized stays, illegal entry and exit, or violations of residence law
- Enforcement of residence-terminating measures: Execution of deportations, refusal of entry, and expulsions after legally binding decisions
- Support for other authorities: Cooperation with law enforcement agencies, immigration authorities, and security services.
Authority Structure in Germany
In Germany, the term “Ausländerpolizei” (Foreigners Police) is no longer part of the official designation of agencies, but it is still reflected in the responsibilities of specific functions within the police and immigration authorities.
- Police: The enforcement police are involved especially in the monitoring of entry and exit, in detentions to end residence, and in carrying out measures pursuant to §§ 58 ff. AufenthG (Residence Act).
- Immigration authorities (e.g., at the municipal level or with state directorates): handling of residence law applications, granting and denying residence permits, issuing orders related to immigration law, execution of measures by the Foreigners Police.
Authority Structure in Austria
In Austria, there still exists a traditional organizational form of the “Fremdenpolizei” (foreigners police), regulated by the Fremdenpolizeigesetz 2005 (FPG). The Fremdenpolizei is part of the state police directorates and is especially involved in
- refusals of entry,
- residence checks,
- expulsions,
- and deportations.
International Perspective
Depending on the country, the “Foreigners Police” performs different tasks and is known by various terms. In the EU, the border protection agency Frontex coordinates international measures for the protection of the external borders, including tasks analogous to those of the Foreigners Police.
Legal Foundations
Germany
Residence Act (AufenthG)
The Residence Act (AufenthG) forms the central legal basis for activities related to residency law and the execution of measures by the Foreigners Police. In particular, §§ 48 ff. AufenthG set forth the duty of foreigners to cooperate, the authorities’ powers in establishing identity, and the enforcement of measures terminating residence.
Data collection and transmission
The Foreigners Police is authorized to collect and transmit data as required, particularly to protect public safety and order (§§ 82 ff. AufenthG).
Coercive measures
Measures involving direct coercion, especially in cases of deportations (§§ 58 ff. AufenthG), are subject to the principle of proportionality and are under judicial supervision.
Austria
Fremdenpolizeigesetz (FPG)
The Fremdenpolizeigesetz 2005 (FPG) comprehensively regulates the duties, powers, and procedures of the Fremdenpolizei. Key legal focuses include:
- Implementation of return decisions
- Issuance and enforcement of mandatory return decisions
- Securing identity documents
- Detention pending deportation (“Schubhaft”) during the process of residence termination
Security and surveillance measures
The Fremdenpolizei is authorized to carry out identity checks and residence controls, including measures relating to dwellings to determine unauthorized stays. The use of monitoring and communication devices is also subject to statutory limits.
Procedure and Legal Protection
Immigration Law Measures and Their Enforcement
Measures by the Foreigners Police, particularly those terminating residence, deportation, and refusal of re-entry, are based on an administrative procedure and regularly require a written and substantiated order from the competent authority. Enforcement is usually carried out in cooperation with the police authority.
Legal remedies
Affected persons generally have the right to object to administrative measures by the Foreigners Police
- by filing an objection or appeal (Germany: legal remedies, Austria: complaint to the Federal Administrative Court)
- filing applications for interim relief or suspensive effect, particularly to prevent unlawful deportations
The judicial process ensures review of the lawfulness of measures and the protection of fundamental rights.
Data protection and human rights
Measures of the Foreigners Police must always be implemented in accordance with European and national data protection requirements as well as human rights standards, in particular the European Convention on Human Rights (ECHR) and the EU Charter of Fundamental Rights. In particular:
- Prohibition of discrimination based on origin, religion, or ethnicity,
- Principle of proportionality for surveillance and coercive measures,
- Right to respect for private and family life (Art. 8 ECHR),
- Consideration of the best interests of the child in measures taken by the Foreigners Police.
Cooperation and Information Exchange
The Foreigners Police works closely with other authorities, international organizations, and the European Asylum Support Office (EASO). Information is transmitted and processed on a legal basis within the framework of the Schengen Information System (SIS) and other registers.
Criticism and Reform Approaches
The activities of the Foreigners Police are often at the center of social and political debates concerning topics such as migration, integration, human rights protection, and state sovereignty. Criticism is sometimes directed at the execution of deportations, the treatment of vulnerable individuals, and the use of coercive measures.
At the European level, ongoing reforms aim to harmonize standards, strengthen transparency, and ensure constitutional oversight of all actions in the field of immigration law and migration.
This article provides a factual and comprehensive description of the duties, foundations, and legal framework of the Foreigners Police in the German and Austrian legal systems. All information is accurate as of June 2024.
Frequently Asked Questions
What are the responsibilities of the Foreigners Police in Germany?
The Foreigners Police is a specialized authority or functional unit within the police responsible mainly for the monitoring and enforcement of residence law provisions. In the legal context, its responsibilities are divided into several areas: controlling the legal residency status of foreign nationals, monitoring residency restrictions and obligations to leave, as well as enforcing deportation measures. It works closely with immigration authorities and other security agencies. The legal basis for its actions is provided by the Residence Act (AufenthG), the Freedom of Movement Act/EU, the Asylum Act, as well as the corresponding ordinances and administrative regulations. The Foreigners Police is, among other things, authorized to carry out identity checks, verify residence permits, and, if necessary, order detention for the preparation of deportations or refusals of entry.
What legal instruments are available to the Foreigners Police for carrying out deportations?
The Foreigners Police is empowered, on the basis of an enforceable deportation order, to carry out measures to terminate residence by compulsion. These include escorting the person to be deported to the airport or border crossing, the use of direct force through physical means, and the use of technical aids when a voluntary departure does not take place. It is always a requirement that all legal preconditions are met, such as the existence of an enforceable order to leave and the absence of barriers to deportation, such as illness or a pending asylum application. Enforcement takes place in accordance with §§ 58 ff. of the Residence Act and in compliance with constitutional principles such as proportionality and judicial supervision for longer-term deprivations of liberty.
Under what circumstances is the Foreigners Police allowed to take a person into custody?
Detention pending deportation as well as detention to secure deportation are permissible under § 62 AufenthG if there are concrete indications that the person intends to evade deportation, for example, in cases of risk of flight or specific signs of going into hiding. The order for detention must be issued by a judge (judicial detention order), except in limited emergency cases of temporary detention (until the judge’s decision). The duration of detention is limited in time and subject to strict minimum requirements under the rule of law. The affected individuals must be informed of their rights, given access to legal assistance, and accommodated in humane conditions.
To what extent is the Foreigners Police permitted to search the home of a foreign national?
The home may only be entered and searched by the Foreigners Police if it is necessary for executing a deportation and there is a reasonable suspicion that the individual concerned is present there. In accordance with Art. 13 para. 2 of the Basic Law (GG), a judicial order is required, except in cases of imminent danger. The search is also further regulated by § 58 of the Residence Act and by state police laws. The measure must be proportionate and should be as unintrusive as possible; uninvolved parties should not be affected, and only those rooms necessary to fulfill the purpose may be entered.
Can measures taken by the Foreigners Police be legally challenged?
Yes, all measures taken by the Foreigners Police are subject to judicial oversight. Affected persons may appeal against measures terminating residence, such as deportation orders, coercive measures, or deprivation of liberty. This includes, in particular, actions such as filing a legal challenge or an application for interim relief with the competent administrative court. In cases of acute deprivation of liberty, the detention may be reviewed and, if necessary, lifted. Furthermore, the police and immigration authorities are obliged to inform individuals of available legal remedies and the possibility of legal representation.
What cooperation exists between the Foreigners Police and the immigration authority?
The Foreigners Police operates in close coordination with the competent immigration authority. While the latter is responsible for procedures, decisions regarding residence permits, toleration, and requests to leave, the Foreigners Police implements these decisions operationally— for example, by carrying out deportations or coercive measures. The police also provide enforcement support during searches or arrests when requested by the immigration authority. Both authorities exchange information on matters relevant to residency law and work together within the framework of joint strategies for hazard prevention and crime fighting, always observing data protection and proportionality requirements.
