Term and legal definition of deportation
Die Deportation is a sovereign act involving the forced termination of a foreign person’s stay in a country. It takes place when that person no longer possesses a lawful residence status and is therefore unlawfully present within the territory. Deportation is part of immigration and residence law, serving primarily to enforce national expulsion and residence regulations.
In German law, deportation is specifically governed by the Residence Act (AufenthG) and constitutes the forced enforcement of an existing obligation to leave the country through administrative or police measures. The aim is to transfer the person either to their country of origin or to another state willing to receive them.
Legal basis for deportation
National legal sources
The most important provisions on deportation are found in German immigration law, particularly in the following statutes:
- Residence Act (AufenthG): Sections 57-58a AufenthG regulate the prerequisites, execution, and exceptions for deportation.
- Asylum Act (AsylG): Connections especially arise in the context of rejected asylum procedures (Sections 34 et seq. AsylG).
- Basic Law (GG): Relevant especially due to the prohibition of return to countries facing the death penalty, torture, etc. (Art. 16a GG, Art. 1 GG, Art. 2 GG).
International and European regulations
International obligations also significantly shape deportation law, including:
- European Convention on Human Rights (ECHR): Article 3 ECHR prohibits deportations if torture or inhuman treatment is threatened in the destination country.
- Geneva Refugee Convention (GRC): The prohibition of refoulement (Art. 33 GRC) forbids the deportation of refugees to countries where they face danger to life or limb.
- Dublin III Regulation: Regulates the responsibility for conducting asylum procedures within the European Union.
Requirements and procedure of deportation
Emergence of the obligation to leave
An obligation to leave exists when a residence permit has expired, has not been granted, or has been revoked (Section 50 AufenthG). It also applies if an asylum application is rejected and there is no other residence permit for other reasons.
Order of deportation
The order to deport is issued by the competent immigration authority. As a rule, the affected person is given a period to voluntarily exit the country before deportation. If no voluntary departure takes place, deportation may be enforced. A deportation warning pursuant to Section 59 AufenthG is required before the measure is carried out.
Carrying out the deportation
The procedure is organized by the respective competent police or immigration authority. It includes apprehension, possible detention (so-called deportation detention), and the transfer of the affected person across the border.
Deportation detention
Deportation detention may only be ordered under the strict conditions of Sections 62 et seq. AufenthG, such as when there is a risk of flight or a violation of reporting obligations. The detention must be ordered by a judge.
Obligations to cooperate
Affected individuals are required to cooperate in clarifying their identity and in obtaining travel documents (Section 82 AufenthG).
Legal impediments and prohibitions of deportation
Prohibitions of deportation
There are various legally binding prohibitions on deportation:
- Mandatory obstacles to deportation: These arise from national provisions (e.g. Art. 16a GG, Sec. 60 paras. 1-7 AufenthG) or international obligations such as the prohibition of refoulement.
- Toleration (“Duldung”): If a deportation prohibition does not suffice for a residence permit, a toleration (Section 60a AufenthG) may be granted.
Humanitarian and health-related reasons
Deportations may be suspended for humanitarian or urgent health reasons, e.g. in cases of acute medical emergencies (Section 60a (2) AufenthG).
Special protection rights
Pregnant women, minors, and families may, under certain circumstances, enjoy special protection from deportation, for example through the UN Convention on the Rights of the Child or national regulations.
Legal remedies against deportation
Legal remedies
Affected individuals may pursue legal remedies against a deportation warning or deportation order, in particular:
- Objection and lawsuit: Legal remedies are available against administrative acts, e.g. before the administrative court.
- Interim legal protection (Sec. 80 (5) VwGO): In the event of imminent and immediate deportation, an application for interim legal protection may be filed.
Provisional legal protection
Until the final decision on the legal remedy, deportation is usually suspended (Section 71 AsylG in conjunction with Section 80 (5) VwGO).
Consequences of deportation
Re-entry and residence bans
After deportation, a temporary or, in exceptional cases, permanent ban on re-entry and residence in the Federal Republic or the Schengen area may be ordered (Section 11 AufenthG).
Documentation and data transmission
The execution and reasons for deportation are officially documented and, if necessary, transmitted to other member states and international organizations (e.g. Frontex).
Deportation in international legal comparison
Other countries regulate deportations under national law, but similarities can be found, such as with respect to the inadmissibility of returns in the face of risk to life or limb, exceptions for family or child protection law, and the involvement of international organizations.
Criticism and public debate
Deportations are regularly at the center of public and political debate. Issues such as human dignity and rights, the efficiency of procedures, and the treatment of particularly vulnerable groups are discussed. The balance between state sovereignty and international obligations is a recurring theme.
Conclusion: Deportation is a complex, multifaceted legal act shaped by extensive national and international regulations. The legal framework is designed to appropriately balance state interests with individual protection rights. Numerous legal remedies ensure comprehensive legal protection for affected individuals.
Frequently asked questions
Who is subject to deportation?
In principle, deportation affects persons who are present in the territory of the Federal Republic of Germany without secure residence status. This particularly includes foreigners whose asylum application or residence permit has been finally rejected and who do not have a toleration (temporary suspension of deportation) or any other legal residence status. It also includes individuals whose settlement permit or residence permit has been revoked (for example, due to serious criminal offences). Minors and particularly vulnerable groups are subject to increased legal protection. Deportation may not occur if there are legal or factual obstacles to deportation, such as the threat of torture, death penalty, or serious health dangers in the country of origin.
What legal requirements must be met for a deportation?
Deportation can only take place once a final order to leave the country, an enforceable obligation to leave, and the so-called deportation warning have been issued. The authority must examine whether there are prohibitions on deportation under Section 60 of the Residence Act (AufenthG), for example, if the individual concerned is threatened with risk to life, limb, or liberty in their country of origin. Ongoing legal or asylum procedures that may temporarily legalize residence in Germany must also be awaited. Prior to deportation, it must also be verified whether so-called ‘normal travel routes’ to the home country are available and whether the respective embassy or consulate will issue replacement travel documents.
How does a deportation work in practice?
The process of deportation usually begins with a deportation warning and the setting of a departure deadline. If, after this deadline, there is still no legal residence status, the authorities generally carry out the deportation without further notice. The person concerned is taken into custody for this purpose, if necessary using direct force, and taken to an airport or border station. Police forces are often involved in this process. In certain cases, individuals may also be placed in so-called deportation detention prior to deportation, particularly if there is a risk of flight or of evidence being concealed (Section 62 AufenthG). Departure then occurs by train, ship or airplane – usually accompanied by police.
What legal means are available to prevent deportation?
There are various judicial and extrajudicial remedies against an impending deportation. Legal remedies such as an appeal or urgent application (so-called ‘application for preliminary legal protection’) at the administrative court can be filed immediately after receipt of the deportation warning or obligation to leave. During the asylum procedure, a subsequent asylum application or an application for temporary deportation protection may be filed. Additionally, new, previously unknown circumstances may be presented (e.g. new evidence for deportation prohibitions or health risks). Temporary toleration (‘Duldung’) can also be requested if there are actual or legal obstacles such as missing travel documents or inability to travel.
What is deportation detention and when is it imposed?
Deportation detention is an administrative custody measure employed to ensure the enforcement of a deportation when there is a risk that the person concerned may evade deportation. It is imposed by judicial order (Sections 62 et seq. AufenthG) and is fundamentally restricted to the absolutely necessary duration. Detention may not exceed six months, but can be extended up to 18 months in individual cases if deportation cannot be carried out due to lack of cooperation by the person concerned. Deportation detention may also be ordered if the person is unlawfully present in Germany or has previously evaded deportation measures.
Which special protection provisions apply to deportations?
Special protection provisions apply to particularly vulnerable individuals – this especially concerns minors, pregnant women, people with serious illnesses, or disabilities. Their deportation is subject to stricter scrutiny. For minors, the child’s welfare is always paramount (Section 58 AufenthG). Pregnant or ill persons may not be deported if deportation would present a concrete risk to their health or life. In general, the international non-refoulement principle applies, which prohibits deportation to countries where torture, death penalty, or inhuman treatment are threatened.
What impact does deportation have on the possibility of returning to Germany?
After a deportation has been carried out, a re-entry ban (entry and residence ban) is usually imposed, prohibiting the affected person from re-entering and residing in Germany and the Schengen area for a specified period (often between one and ten years). The duration of the ban depends on the circumstances of the individual case and can exceptionally be shortened or lifted, for example if there is an urgent humanitarian reason or voluntary departure can be demonstrated. Applications for lifting the ban on entry must generally be submitted to the competent immigration authority or embassy.
