Germany will probably have to amend its regulations on detention pending deportation for rejected asylum seekers. The fact that asylum seekers who are obliged to leave the country can, if necessary, be held in a normal prison for up to three years is too long and insufficiently justified, a legal expert at the European Court of Justice (ECJ) in Luxembourg declared.
The ECJ is not bound by this in its judgement, but in the vast majority of cases it follows these so-called Opinions. Rejected asylum seekers who are obliged to leave the country may be detained to prevent them from disappearing. According to EU law, however, they may not be housed together with normal prisoners.
This is to prevent them from being treated like criminals and subjected to the corresponding detention conditions. However, exceptions are possible in an urgent emergency. The German Aliens Act allows such exceptions for up to three years. However, the detainees awaiting deportation must then be separated from regular prisoners in the prison.
In this specific case, a Pakistani man is resisting his deportation detention. He is being held in the Langenhagen section of Hanover Prison. This is inadmissible. The so-called Advocate General at the ECJ, Jean Richard de la Tour, has now expressed doubts about the duration of the German exception. An emergency situation requires urgency and thus rapid intervention. This is no longer fulfilled with a period of three years.
In addition, Germany must define more precisely in the Law on Foreigners under which conditions it is permissible to house asylum seekers who are obliged to leave the country in a prison. In Langenhagen, the Pakistani was housed together with other rejected asylum seekers in a building where no prisoners were kept. According to the Advocate General, it was nevertheless not a “special detention facility” – because the asylum seekers were guarded there by prison staff and were subject to the legal regulations of the prison.