Term and legal definition of departure
Die Departure in the legal context refers to the act of a person leaving the territory of a state, regardless of their nationality or residence status. The process of departure is subject to specific legal provisions in almost all countries, encompassing both individual rights and sovereign control interests. The legal basis can be found especially in passport law, residence law, immigration law, migration law, as well as international treaties.
Legal basis of departure
National law
Passport law provisions
In Germany, the Passport Act (PassG)stipulates that German nationals have the right to leave the scope of the law at any time (§ 1 (1) PassG in conjunction with Art. 11 (2) GG). Restrictions arise from § 7 PassG, particularly if there is a reason to refuse or withdraw the passport, which under certain circumstances can prevent leaving the federal territory.
Residence law provisions
For foreign nationals, the Residence Act (AufenthG) regulates both the conditions of departure and the consequences. According to § 50 AufenthG, a foreigner is obliged to leave the federal territory at the end of their permitted stay (obligation to depart). This obligation may arise, in particular, after expiration of a visa, rejection of an asylum application, revocation or withdrawal of a residence permit, or in the context of an expulsion.
Police law measures
To enforce departure, compulsory measures (e.g. deportation, removal, refusal of entry) in accordance with §§ 58 ff. AufenthG may be ordered if the obligation to depart is not fulfilled voluntarily.
European legal requirements
Within the European Union, the provisions of the Schengen Borders Code (Regulation [EU] 2016/399)apply, which among other things regulate the conditions for crossing internal and external borders. Departure of EU citizens is generally unrestricted, unless security interests conflict (Art. 45 EU Charter of Fundamental Rights). For third-country nationals, special control and verification obligations apply at the external borders (Art. 8 Schengen Borders Code).
International law aspects
The right to leave a country is among the internationally recognized human rights (Art. 12 (2) International Covenant on Civil and Political Rights [ICCPR]). However, there is no general right to enter another state; therefore, departure must be strictly distinguished from entry.
Restrictions and prohibitions on departure
Reasons for a departure ban
Departure can be restricted or prevented, for example by:
- Criminal justice measures, e.g. pre-trial detention, probation requirements, reporting requirements,
- Denial and withdrawal of a passport for reasons of national security or to prevent serious legal violations (§ 7 PassG),
- Administrative departure bans, for example to enforce maintenance claims or due to ongoing tax proceedings,
- Departure bans in the event of suspicion of preparing a criminal offense.
Legal remedies for departure bans
Affected persons typically receive an appealable administrative decision and can challenge departure prohibitions or restrictions by taking legal action before the administrative courts. In urgent cases, interim legal protection can also be sought.
Consequences and significance of departure
Termination of residence status
Departure from the federal territory generally results in the termination of a residence permit (§ 51 AufenthG). Depending on the residence status, the possibility of re-entry may change. This is particularly important for time-limited residence permits and for persons seeking protection.
Effects on social law entitlements
Certain social benefits end upon departure, or may be interrupted in the case of only a short-term departure. This concerns, among other things, unemployment benefit II or benefits under the Asylum Seekers Benefits Act.
Travel documents and visa control
Upon departure, the required travel documents (passport, identity card, if applicable, visa) must be presented at border control. The absence of valid documents may result in refusal at the border or other sanctions.
Special considerations for specific groups of people
Minors and departure
Special duties of care apply when minors depart:
- Minors may generally only leave the country with the consent of all persons entitled to custody.
- In cases of international child abduction, certain legal protection mechanisms are available, such as under the Hague Convention on the Civil Aspects of International Child Abduction.
Persons in need of protection
For asylum seekers and persons entitled to protection, individual assessments are carried out within the Dublin procedure or under the Residence Act. Departure during ongoing proceedings can be legally problematic.
Statistics and practice of departure
The Federal Police documents hundreds of thousands of departures annually across German external borders. The overwhelming majority are voluntary and legal. The forced enforcement of departure (particularly deportations) affects a significantly smaller group of people and is subject to strict legal requirements and controls.
Distinction from entry and related terms
Departure is to be distinguished from the following processes:
- Entry: Entry into the territory of a state.
- Deportation: Compulsory enforcement of departure.
- Refusal of entry: Denial of entry at the border.
- Re-admission: Return based on international agreements.
Literature
- Legal texts: Residence Act, Passport Act, Schengen Borders Code, ICCPR
- Case law: Decisions of the Federal Constitutional Court concerning freedom to leave the country
- Commentaries and monographs on residence and passport law
Web links
- BMI – Federal Ministry of the Interior: Residence Law & Departure
- Federal Police – Border Police Tasks
Last update: June 2024
Frequently Asked Questions
What legal requirements must be met to leave Germany?
In principle, there is freedom of travel for German nationals when departing from Germany, meaning there is no general requirement for a departure permit. However, you are legally required to carry a valid identification document, usually a passport or ID card. Children require their own child’s passport or a biometric passport or ID card. Special legal restrictions on freedom to leave the country may arise from individual court orders (for example, in cases of flight risk in criminal proceedings), for constitutional reasons (such as ongoing investigations), or on the basis of the Passport Act (§ 7 PassG, e.g. if there is a threat to Germany’s internal or external security). People with certain residence statuses (e.g. refugees, asylum seekers) may also be subject to conditions that limit their ability to depart. Furthermore, when leaving the Schengen area, it must be noted that the entry and exit regulations of the destination country apply, such as visa and entry requirements.
Which documents must be carried when leaving the country?
Legal regulations require that a valid passport or ID card must be carried when departing from Germany. To depart to countries outside the European Union, a passport is mandatory, which usually must be valid beyond the intended return date. Some countries require an additional visa, a residence permit, or certain documents such as invitation letters. Special requirements apply to children and adolescents regarding documentation, especially if they are traveling with only one parent or not with those having custody. In some cases, an officially certified declaration of consent from the legal guardians may be required. For third-country nationals, the conditions of their respective residence permits, short-term residence permits, or transit rules apply.
Can departure be refused or prohibited?
The legal basis for refusing departure is primarily found in the Passport Act (§ 7 PassG). Departure may be denied, or a passport withdrawn or not issued, if there are ongoing criminal investigations and a risk of flight exists, if there is a threat to significant German interests, to avert dangers to public security and order, or if the departure is subject to legal prohibitions (e.g., following a family court decision in cases of child abduction). For foreign nationals, immigration law requirements (such as an obligation to depart or a ban on departure during ongoing asylum proceedings) can also be relevant. Authorities may, in particular within court proceedings, in cases of tax debts or maintenance obligations, order so-called security measures (such as lodging a security deposit) to prevent departure. Such measures are, however, subject to strict legal requirements and are applied only in exceptional cases.
What are the reporting obligations for permanent residence abroad?
Anyone who permanently gives up their residence in Germany and moves abroad is required under the Federal Registration Act (§ 17 BMG) to deregister with the relevant registration authority within two weeks after moving out. The new address abroad must be provided. Failure to comply may result in a fine. There is no obligation to register in Germany if no new residence is established. Upon return, re-registration within two weeks is required.
Are there special requirements for minors when departing?
Minor German nationals generally require their own passport or ID card to depart. If they travel alone or with only one parent, additional documentation may be required, such as a written declaration of consent from both legal guardians and/or an officially certified letter of authorization. These serve especially to protect against abduction or child abduction. Border officials in other countries may request to see these documents. For minor foreign nationals, the entry and exit regulations of their country of origin apply. Special rules may apply if custody is held by only one parent or in the case of foster children.
What tax implications can departure have?
Deregistration of residence in Germany is tax-relevant, as unrestricted tax liability in Germany generally ends unless other domestic income or places of residence exist. In the case of permanent residence abroad, limited tax liability often applies. However, there are special rules, such as the exit taxation provision (§ 6 AStG) for certain individuals who hold significant interests in corporations. Scheduling a prior tax consultation is strongly recommended, as the precise legal consequences in each case depend on various factors.
Is departure possible despite outstanding fines or debts?
In principle, there is no general legal impediment to leaving Germany due to existing private debts or outstanding monetary claims. However, departure can be restricted if an enforcement order exists and the public prosecutor’s office or court issues a so-called prohibition to secure enforcement. In the case of public law debts (e.g. tax debts owed to the tax office), if there are extremely high arrears and a risk of flight, measures such as withdrawal of a passport or a departure ban can be ordered. Such measures are, however, subject to strict legal requirements and are applied only in exceptional cases.
