On 7 June 2019, the German Parliament adopted several amendments which regulate immigration- and asylum-related issues. Amongst them is the very controversial “Orderly Return Law” (Geordnete-Rückkehr-Gesetz) which toughens the rules on deportations. The amendments are not yet enacted but will be passed on to the second chamber, the Bundesrat.
The following section provides a non-exhaustive summary of key amendments introduced, with a focus on the Asylum Act (Asylgesetz, AsylG), the Asylum Seekers’ Benefits Act (Asylbewerberleistungsgesetz, AsylbLG) and the Residence Act (Aufenthaltsgesetz, AufenthG).
I. Amendments to the Asylum Act (Asylgesetz, AsylG)
Counselling and legal assistance
One of the key changes is the transposition of a current pilot project into law, according to which the Federal Office for Migration and Refugees (Bundesamt für Migration und Flüchtlinge, BAMF) provides counselling and legal assistance to asylum seekers. This is regulated in a new provision:
Section 12a: the provision foresees that the Federal Office provides voluntary and independent legal advice on the asylum procedure in a two-step approach: (i) group counselling sessions which provide information on the asylum procedure as well as on return procedures; and (ii) individual counselling sessions, which can be carried out either by the Federal Office or by welfare organisations if necessary.
ECRE has already expressed concerns with regard to the quality of these new counselling arrangements as it raises questions over the independence and potential conflict of interests. Thus, ECRE insists both on the role and the importance of NGO counselling to adequately inform asylum seekers, as it ensures a fair and efficient asylum procedure.
Asylum seekers are now required to reside in reception centres until the decision on the asylum application and, in the case of rejection, until the deportation or the execution of the deportation order, for a period of up to 2 years!
Length of stay in initial reception centres
Another key element of the reform relates to the length of stay in an initial reception centre (Aufnahmeeinrichtung). While the current Section 47 foresees that asylum seekers shall be required to live for a period of up to six weeks, but no longer than six months, in the reception centre responsible for receiving them, and up to 24 months if a federal state so decides, the introduced amendments substantially extend this period.
Section 47(1): Asylum seekers are now required to reside in reception centres until the decision of the Federal Office on the asylum application and, in the case of rejection of the asylum application, until the deportation or the execution of the deportation order, for a maximum period of 18 months. Federal states can continue to prolong this up to 24 months. Minors and their parents or guardians, as well as their unmarried siblings of full age, should reside in reception centres for a maximum period of 6 months.
The provision further extends the length of stay in reception centres to more than 18 months in certain circumstances. This applies to asylum seekers from safe countries of origin as well as to asylum seekers who fail to cooperate, mislead the authorities and provide wrong information on their nationality and identity. They are required to stay for an unlimited period of time. Following amendments have been added to Section 47(1):
Persons are required to reside for more than 18 months in reception centres when:
- they violated their obligations to cooperate under Section 15(2)(4)-(7) without sufficient excuse or did not cooperate without delay after non-cooperation through no fault of one’s own,
- they repeatedly violate their obligations to cooperate under Section 15(2)(1)-(3) without sufficient excuse or did not cooperate without delay after non-cooperation through no fault of one’s own,
- they repeatedly misled or lied about their identity or nationality,
- they repeatedly violated reasonable obligations to reduce hindrances for deportation, especially concerning their identification or the presentation or acquisition of travel documents.
Section 47(1) sentence 3 cannot be applied if minors, their parents or other legal guardians or unmarried siblings of full age are concerned. Sections 48 to 50 remain effective.
Access to employment
Another important change relates to the access to employment of asylum seekers. While the current Section 61(1) regulates that “aliens shall not be allowed to take up paid employment as long as they are required to stay in a reception centre”, the bill foresees that an asylum seeker is entitled to employment when:
- The asylum procedure is not finalised within the 9 months period after the lodging of the asylum application;
- The Federal Employment Agency has approved access to employment or a legal ordinance (“Rechtsverordnung”) provides that such access shall be granted without the prior approval of the Federal Employment Agency;
- The alien is not a national from a safe country of origin and;
- The asylum application is not considered inadmissible or as manifestly unfounded, unless the Administrative Court has granted suspensive effect to the appeal of the decision of the Federal Office.
Persons who have already been granted international protection in another EU Member State are excluded from all social benefits after a transition period of two weeks
II. Amendments of the Asylum Seeker’s Benefits Act (Asylbewerberleistungsgesetzes, AsylbLG)
One of the main amendments to the Asylum Seekers’ Benefits Act is the extension of the waiting period for applicants to access “normal” social benefits. Whereas the current Section 2 foresees that the “Twelfth Book of the Social Code shall apply mutatis mutandis to beneficiaries who have been on the Federal territory for 15 months without significant disruption and without violating the law”, the new amendment extends this period to 18 months, thereby delaying the access to benefits of an additional 3 months. During this time most beneficiaries will presumably live in initial reception centres (see changes in the Asylum Act explained above). Individuals residing in these centres are considered as constituting a “community of destiny” (Schicksalsgemeinschaft) in which it is wrongly presumed that they will conduct common activities (e.g. buying groceries, cooking together etc.) which allow them to save costs.
Another radical change is that persons who have already been granted international protection in another EU Member State, and whose obligation to leave the territory is enforceable (vollziehbar ausreisepflichtig), are excluded from all social benefits after a transition period of two weeks. This can include persons whose appeal against a return decision is pending, when their emergency appeal was rejected.
III. Amendments to the Residence Act (Aufenthaltsgesetz, AufenthG)
The main changes to the Residence Act relate to the enforcement of the obligation to leave the federal territory (Part 2 of the Residence Act). Overall, the introduction of the “Orderly Return Law” substantially facilitates the use of “custody pending departure” (“Ausreisegewahrsam“) under Section 62b with the aim to enforce deportations. Custody pending departure differs from pre-removal detention (Section 62). It is limited to a period of 10 days and shall apply in cases in which a deadline for leaving the country has expired. The grounds for custody pending departure are extended inter alia to cases where asylum seekers fail to cooperate but also to cases in which there is no evidence of a risk of absconding. Similarly, the authorities responsible for carrying out deportations are granted the right to access apartments without a judicial order of a judge in certain circumstances. Some of the key provisions are outlined below:
Search of apartments and other premises for the purpose of deportation
Section 58: A total of 7 sub-paragraphs (subparagraph 4 to subparagraph 10) have been added to Section 58 which regulates the deportation order (“Abschiebung”). They allow the responsible authority responsible for bringing the person to the airport or to the border to resort to detention for a short period of time and only for the purpose of deportation (Section 58(4)).
Sub-paragraphs (5) to (10) provide the conditions for searching the apartment of a person subject to a deportation order. This has to be deemed necessary for the purpose of deportation and is based on evidence indicating that the person is present therein (Section 58(5)). Searches of further premises belonging to other persons are allowed only if there is evidence of the presence of the concerned alien (Section 58(6)), while searches at night are only allowed if there is evidence that the detention of the alien for the purpose of deportation would be hindered otherwise (Section 58(7)).
Of particular importance is Section 58(8), which specifies that searches under paragraph 6 need to be ordered by a judge, though in case of imminent danger the executing authority may issue that order. A warrant is therefore not necessary if the authorities wish to search an apartment under Section 58(5). The fact that the person subject to a deportation has not been found on the premises searched does not constitute an imminent danger.
Extension of grounds for pre-removal detention
The rules on pre-removal detention have also been modified and the risk of absconding (Fluchtgefahr) becomes the focal point allowing the authorities to detain a person for the purpose of deportation. While some criteria lead to a presumed risk of absconding (e.g. misleading the authorities on one’s identity), other non-exhaustive criteria include problematic indicators, such as having paid a large sum of money for the (legal) entry to Germany (Section 62(3)). as they include
The Law establishes a new type of detention, whereby foreigners can be detained when they fail to clarify their identity (which in most cases is not their fault!)
Moreover, the Orderly-Return-Law establishes a new type of detention that can be described as “detention to obtain participation” (“Mitwirkungshaft”), whereby foreigners can be detained when they fail to comply with their obligations to cooperate and to clarify their identity (Section 62 (6)).
Another serious matter of concern, which violates the current Return Directive, is the place of pre-removal detention. The bill provides that, until 2022, pre-removal detention can be in regular prisons instead of specialised institutions, although detainees will be held in premises separate from inmates. (Section 62a(1)).
Extension of grounds for custody pending departure
Section 62b currently regulates the grounds and conditions applicable to custody pending departure. The bill clarifies that, in the context of custody pending departure, the risk of absconding is not a determining criterion. More precisely:
- Section 62b(3) provides that the person is considered as displaying a behaviour which leads one to expect that he or she will make the deportation more difficult or impossible when:
- he or she violated his or her legal obligations to cooperate;
- he or she misled the authorities on his or her identity or nationality;
- he or she has been convicted of an offence on the federal territory and had to pay a fine of at least 50 daily rates or
- he or she has exceeded the period allowed for voluntary departure by more than 30 days.
- A new Section 62b(4) foresees that the authorities responsible for carrying out deportations are entitled to detain a person without a judicial order when:
- there is concrete evidence supporting the suspicion that the conditions regulated in Section 62b(1), 1st sentence, are met,
- the judicial order cannot be obtained beforehand; and
- there is a reasonable suspicion that the person will evade the order of detention pending departure.
The person is immediately to be presented to the judge to decide upon the order of custody pending departure for the purpose of deportation.
Jean-David Ott (ECRE), Wiebke Judith (PRO ASYL)