voluntary and forced return of third country nationals ... · voluntary and forced return of third...

Axel Kreienbrink

Voluntary and Forced Return of Third Country

Nationals from Germany

Research Study 2006 in the framework of the European Migration Network

German National Contact Point

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Table of contents

Summary ....................................................................................................................................... 4

1 Introduction................................................................................................................... 10

2 Definitions, Categorization of Returnees and available Data..................................... 14

2.1 Definitions ....................................................................................................................... 14

2.2 Categorization of Returnees............................................................................................ 17

2.3 Data on forced and voluntary return ................................................................................ 19

2.3.1 Data on forced return ...................................................................................................... 21

2.3.2 Data on voluntary return.................................................................................................. 25 3 The political and legal framework................................................................................ 28

3.1 The political and legal framework in Germany................................................................. 28

3.2 The influence of European legislation.............................................................................. 36 4 Return measures........................................................................................................... 41

4.1 Overview......................................................................................................................... 41

4.2 Voluntary return .............................................................................................................. 45

4.2.1 Return counselling and return assistance........................................................................ 47

4.2.2 Information campaigns.................................................................................................... 50

4.2.3 Incentives for voluntary return ......................................................................................... 53

4.3 Forced return .................................................................................................................. 58

4.3.1 Termination of illicit residence: expulsion and notification of deportation ......................... 61

4.3.2 Identification and obtaining travel documents.................................................................. 68

4.3.3 Committing foreign nationals to departure centres and detention pending deportation.... 74

4.3.4 Transport and return measures ....................................................................................... 83

4.3.5 Sustainability of forced-return measures ......................................................................... 90 5 Bilateral and multilateral cooperation ......................................................................... 91

6 Conclusions .................................................................................................................. 94

Appendix ..................................................................................................................................... 97

I References...................................................................................................................... 97

II Statistics ....................................................................................................................... 108

III List of agreements on facilitation of return (as of January 2007).................................... 117

IV Institutions and organisations........................................................................................ 119

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List of tables Table 1: Persons under a legal obligation to leave the country in the Central Register of

Foreigners (AZR) (2003-2005).................................................................................... 20

Table 2: Deportations, removals and rejections (2000-2005) .................................................... 21

Table 3: Rejections (2000-2005) ............................................................................................... 22

Table 4: Removals (2000-2005)................................................................................................ 22

Table 5: Deportations (2000-2005) ........................................................................................... 22

Table 6: Transfers as part of the Dublin Regulation (2000-2005) .............................................. 24

Table 7: Persons leaving the country with the assistance of return programmes (1979-2005) .. 26

Table 8: Costs for voluntary return as part of the REAG/GARP Programme (2003-2005) ......... 42

Table 9: GARP Resettlement assistance – List of countries 2006............................................. 54

Table 10: Expulsion statistics stored in Central Register on Foreigners as of 31.12.2005 ........ 108

Table 11: Persons with stored enforceable or unappealable expulsion (2000-2005) ................ 108

Table 12: Deportation by air, top 10 according to nationality (2000-2005) ................................ 109

Table 13: Deportations according to federal states, top 3 according nationality (2000-2005).... 110

Table 14: Persons with executed deportation (2000-2005)....................................................... 112

Table 16: Deportations by air - accompanied (2000-2005) ....................................................... 113

Table 17: Failed returns according reason (2000-2005) ........................................................... 114

Table 18: Transfer requests within the Dublin procedure (2000-2005)...................................... 114

Table 19: REAG/GARP Main departure countries (specified by age and sex) (2003-2005)...... 115

Table 20: REAG/GARP departures by length of stay, travel route, and residence status (2004-

2005) ........................................................................................................................ 116

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Summary

Against the backdrop of increasing significance attached to return policy in Europe, the study ex-amines approaches, results and deficits in implementing measures of voluntary and forced return in Germany. The level of research leaves much to be desired, if it concerns return migration and reintegration of refugees or persons under a legal obligation to leave the country.

Definitions, Categorization of Returnees and available Data

The term “return” is not defined in German law. However, the terms that describe the area of forced return as a whole (e.g. expulsion, obligation to leave the country, removal, deportation etc.) are defined by law or decree. Voluntary is indeed mentioned in the law, but is not defined. In this study, voluntary return is primarily understood as assisted voluntary return. The term voluntariness in this context is not uncontroversial though.

The overarching category of returnees that we look at in this study consists of those individuals who are under a legal obligation to leave the country. The reasons for the obligation to leave the country are manifold, but do not already predetermine as to whether the person in question will finally leave voluntarily or will be deported.

There are a number of data sources that are gathered by authorities concerned with return meas-ures. Like this, numbers on persons under a legal obligation to leave the country, on return opera-tions (deportations, removals, and rejections) and on assisted voluntary return are available. There are deficits regarding information on the scale, e.g. of detention for the purpose of deportation or on persons who leave the country voluntarily without claiming return assistance. The available fig-ures indicate that there has been a significant decrease in returns as well as in voluntary returns during the last years. Regarding deportations as well as voluntary return, persons from Eastern and South Eastern Europe (Yugoslavia and Serbia-Montenegro) as well as from Turkey dominate. Regarding the distribution, almost four-fifth of the deported persons were male between 2000 and 2005, whereas the share of males among voluntary returnees stood at around three-fifth. Voluntary return assistance is primarily claimed by rejected asylum seekers.

The political and legal framework

The Federal Republic of Germany regards return policy as a necessary part of asylum policy, due to the link existing between being recognised as entitled to asylum and being granted a legal resi-dence title, or vice versa, the binding obligation to leave the Federal Republic of Germany if one’s petition for asylum has been rejected. Otherwise, asylum procedure would become pointless. What is more, in the perspective of regulated migration, a lack of consistency and determination in return and repatriation policy would weaken political options for channelling and regulating migration in-flows. German state and federal authorities have responded to existing deficiencies in implement-ing return and repatriation policies, e.g. by pooling and centralising responsibilities. If obstacles to return measures continue to exist, these problems cannot be attributed to the legal regulations, but to the implementation of the law. As far as voluntary return is concerned, the official position em-phasises that this form of re-migration constitutes a humane and cost-effective alternative to forced return measures, the main reasons being that there is no need to use physical force and that the financial cost of deportations is significantly higher than that of voluntary returns.

Return policy has met with criticism among several NGOs and church-based support groups. Most of their criticism focuses on the forced-return measures, arguing that it is irresponsible to force mi-

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grants to return to troubled regions. Assisted voluntary return measures have also been criticised because they are regarded as a complementation of return policy. With subsequent evidence, however, showing that these additional incentives have contributed to a greater success of return and re-integration programmes, some critics, especially the major charities, have given up their initial opposition.

The legal framework for non-voluntary return measures can be found, above all, in Section 5 of the Residence Act (AufenthG), which took effect in 2005. In comparison to the previous Foreigners Act, which remained in force until 2004, the new legislation only includes relatively few changes. Voluntary return measures, on the other hand, depend on programmes which are developed in cooperation between federal and state authorities.

EU Directives and Council Decisions concerning return policy have been transferred into national regulations and implemented. Council Directive 2003/110/EC of November 25, 2003 on assistance in cases of transit for the purposes of removal by air will probably be implemented in German law in 2007. Possibilities created by RETURN , the EU funding programme for preparatory actions in the area of return management, as well as funds provided by the European Refugee Fund for vol-untary-return measures, have also been used.

Return measures

In the area of voluntary return, the responsible authorities are the Federal Ministry of the Interior and the state ministries of the interior, IOM, BAMF and the authorities that are eligible for applica-tions (social security office, foreign-resident authority), welfare organisations, special counselling offices, Central Return Counselling Offices, UNHCR etc. Regarding forced return, the main re-sponsibility rests with the foreign-resident authority. Depending on the case, the central foreign-resident authorities, BAMF, the Federal Government’s Coordination Office for Matters of Return at the Federal Police Central Bureau, the state police, the states’ interior and justice administrations in cases of detention pending deportation, as well as the Federal Police in case of accompanied returns are involved.

The costs for forced return are higher than those for voluntary return. Some line items in the budget can be estimated, a comprehensive overview of all costs incurred does not exist though. An extensive evaluation of return measures according to scientific standards has also not been carried out yet. However, there are internal evaluations of various projects in order to optimize the meas-ures.

Voluntary return

Regarding the motives of voluntary return, there is a range of theoretical approaches, which are, however, effectively not applicable to the situation of persons under a legal obligation to leave the country. At the moment there are no empirical studies on this topic in Germany. Obstacles to return are closely connected to migration motives and can, for example, be explained by the fact that the reasons for migration or seeking refuge in flight partly or fully continue to exists, or that the migra-tion objective (prosperity) could not be achieved. If the migrant resides in the host country for a longer period of time, local family ties or alienation from the country of origin might take effect.

A nation-wide responsibility for return counselling does not exist in Germany. It is offered by vari-ous authorities, although during the last years there has been an increasing tendency to central

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return counselling offices as those serve as constant contact points and can draw from accumu-lated experience. Providers can also be federal states, local governments or welfare organisations.

There is no regulation as to when counselling regarding voluntary return should be employed. There is widespread agreement, however, that it should be brought to the returnees’ attention as early as possible. Like this, the services can be extensively used and the return can be prepared.

The main target group of counselling services consists of asylum seekers whose applications have been rejected or are still pending. Usually the counselling is individually tailored, based on the po-tential options offered by the REAG/GARP Programme, in some cases supplemented by further aspects. Among the providers of counselling services a specialization regarding target countries and target groups of persons have developed, with a trend to a need-based variety of offers. The offers can be categorized as integrated counselling which is part of migration counselling with open results, as well as targeted return counselling which aims at specific support for the return process. Some providers use concepts that also include counselling and the provision of services in the country of origin, after the return is completed.

Improving the flow of information on voluntary return is consistently further developed. To facilitate this, the BAMF established the Centre for the Provision of Information on Assisted Return (ZIRF). Via this database a wide range of information on measures, countries of origins, contact persons and counselling centres is provided. Through the project ZIRF Counselling, the range of options has been further expanded, as it allows responses to individual requests by persons interested in return, beside the country-specific fact sheets. Furthermore, the classic dissemination channels are used, such as mailing of information material, brochures, flyers etc. as well as information road shows.

Incentives for voluntary return are mainly created by the REAG/GARP Programme. It subsidizes travel costs via the REAG return support and pays GARP resettlement assistance for persons from so-called “migration-politically significant countries of origin”. The latter depends on the country of origin and is differently staggered. In addition, some federal states, districts and municipalities pro-vide additional financial support. Furthermore, some providers of return counselling convey infor-mation on additional financial assistance or training and qualification courses. The experts mostly agree that the amount of the financial assistance is only a secondary aspect, compared to other factors (personal, family-related and social aspects, perspectives in the country of origin).

In view of very few existing studies, it is barely possible to assess the actual sustainability of volun-tary return. Counselling services that consider the specific situation in the country of origin are more likely to result in sustainability. Various projects target the situation in the country of origin and promote the returnees’ social environment to improve integration, or try to empower responsi-bility, own initiatives and sustainability by providing micro credits.

Forced return

In order to terminate the residence of a foreign national, foreign-resident authorities issue an ex-pulsion order. In the process, the authorities have to review if there are grounds for granting spe-cial protection against expulsion. Expulsions do not constitute a sanction for a previous violation of legal regulations, but a preventive measure. Generally, expulsion orders are issued together with a notification of deportation. Obstacles to deportation arising from conditions in destination countries are reviewed by BAMF in the context of asylum procedure. Other deportation bans as well as ob-stacles to implementation arising in Germany are reviewed by foreign-resident authorities.

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Expulsion orders have to be issued in written form. When issuing expulsion orders, the authorities can set a time limit for leaving the county. If a notification of deportation is issued, setting a time limit is mandatory. Expulsion orders have to set forth the underlying grounds and also include in-structions on legal recourse. Notifications of deportation have to state the country to which a for-eign national is to be deported, whereas other countries, which could also be potential destina-tions, do not have to be specified. Legal recourse against expulsion measures does have a delay-ing effect on further proceedings. It is possible to lodge objections against expulsion orders and, if these objections are rejected, administrative decisions can be contested by taking the case to an administrative court of law.

Before return measures can be carried out, the identity of a person has to be established, and it has be ensured that the necessary travel documents are available. In many cases, identifying for-eign nationals, and obtaining travel documents from foreign representations, has proved to be a severe problem. According to legal regulations, foreign nationals are obliged to cooperate with the authorities in order to establish their identity. In addition, they also have to take part in identification measures in embassies or consulates for the purpose of obtaining travel documents. If the identity of a foreign national can not be established and the necessary documents can not be obtained, the responsibility for this state of affairs can lie with the foreign national concerned. However, problems in obtaining such documents can also arise from a lack of cooperation on the side of foreign em-bassies or consulates: In order to reduce problems in this area, state governments have central-ised proceedings in the form of clearing centres for obtaining travel documents. The Federal Police Central Bureau has set up a federal coordination centre for return measures, which has adopted central responsibilities for obtaining passports or passport replacement documents from several “problem states”. Other options include regular interrogations or committing foreign nationals to departure centres, among others.

In 2005, the possibility of setting up departure centres was included in the new Residence Act, but some federal states had already established such institutions before. The main aim of departure centres is to provide counselling and support in order to convince foreign nationals to take part in voluntary return measures. In addition, these centres ensure that foreign nationals are within easy reach of the authorities and courts, and that return measures can be implemented without delay. The fact that the restricted conditions in the departure centres (guarded access checkpoints, regu-lar interviews, searches, residency restrictions, non-cash benefits, ban of gainful employment) lead to frustrations among residents is intended inasmuch as the frustration is to be transferred, by means of intensive return counselling, into a more positive attitude towards returning to their home countries. Critics of the departure centres, which can mainly be found among human rights organi-sations, churches, trade unions as well as some opposition parties, have objected to these condi-tions, and the fact that no legal limit for the maximum duration of stays in departure centres exists. According to representatives of the state governments, however, the departure centres have proved to be effective.

Detention pending deportation can be imposed in two forms: preparatory detention or security de-tention, if there is evidence that returnees are planning to obstruct deportation measures. In each case, the administrative request for detention requires judicial authorisation. It is the responsibility of the local courts to review whether the detention is admissible, but local courts only have to re-view the detention grounds as such, not all the proceedings that have been carried out under for-eign-resident law. It is mandatory that the foreign nationals concerned receive fair hearing by the local court. It is also possible to lodge a complaint against the court’s decision. The state govern-ments are responsible for the institutions of detention pending deportation. The detention is carried out either in separate institutions for deportation detainees or in regular penal institutions. The du-

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ration of preparatory detention may not exceed six weeks. Security detention can be extended up to a maximum period of 18 months, provided that the principle of proportionality is observed. With regard to the practice of detention pending deportation, NGOs, churches and other organisations have criticised that detention is imposed too rapidly, too frequently and for periods of time that are too long. According to the data available, however, in most cases foreign nationals have to remain in detention pending deportation for a few days or weeks only.

In order to implement return measures, foreign-resident authorities send the passport or travel documents of returnees to state police authorities, which assist the foreign-resident authorities in implementing return measures and transport returnees to the national border or to the airport, where returnees are transferred to federal police authorities. The authorities do not have to an-nounce the date on which a deportation is to be implemented. Most deportations are conducted via air, either with or without accompanying security personnel. Usually, the accompanying personnel are provided by federal police authorities, but it is also possible that security personnel are pro-vided by airlines. If the authorities assume that deportees will put up resistance, deportees can be restrained. This measure has to be employed in accordance with the principle of proportionality. Police officers accompanying forced-return measures receive special training, with training courses having been extended significantly since the year 2000.

In Germany, illnesses or medical conditions posing obstacles to deportation have been a conten-tious issue as they can have the effect of obstructing forced-return measures. The debate between state authorities and medical associations mainly focuses on the question if, in the view of the fed-eral states, the authorities only have to review whether the deportation process itself poses a health risk, but not whether the living conditions in home countries could have an impact on the medical condition of deportees. Representatives of the medical profession, on the other hand, have emphasised that this would be insufficient, pointing out that reviews have to comprehensive and the situation in the home countries of deportees has to be taken into consideration, too. A pre-liminary list of criteria, which was compiled by representatives of the federal states and the German Medical Association, has so far only been implemented by some states.

For return measures that are conducted via scheduled flights, the Federal Police Central Bureau has reached bilateral agreements with several airline companies, which regulate the modalities concerning accompanying security personnel or medical support, for example. Seats for these flights are either booked by centralised state authorities or via the coordination centre of the Fed-eral Police Central Bureau. In addition, accompanied return measures are conducted by chartered aircraft, partly in the form of collective fights in cooperation with other countries.

The expulsion, removal or deportation of foreign nationals automatically leads to a permanent ban on re-entering the country. However, this ban may by request be limited to a certain period of time, which is usually the case. The exact time period of the ban is not defined. Violations of the re-entry ban constitute a criminal offence, but according to the data available, the number of violations of the re-entry ban is relatively low.

Bilateral and multilateral cooperation

Pursuant to international common law, every state has the duty to readmit its own citizens – even against their will – if the receiving country asks for it. The readmission of third country nationals, however, can only be clarified on the basis of international agreements. Readmission agreements regulate the modalities of the readmission process. Except for some examples, the German read-mission agreements are mutual. In addition, Germany has closed transit agreements which facili-tate the transfer of foreign nationals through the signatory state without obtaining transit visa. It can

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also be regulated if the persons to be returned are accompanied by security personnel of the ac-cepting state or the transit state. The emphasis of the German agreements lies on Eastern and South Eastern European countries. All and all, Germany has created a relatively extensive system of readmission agreements, which is consistently expanded. In addition, there are technical agreements or procedural arrangements (Memoranda of Understanding) to abolish individual prob-lems in the return process in the cooperation with transit states and countries of origin.

Conclusions

The scope of available data could be extended, regarding the returnees themselves as well as the costs for return measures. Preferably, an extensive scientific evaluation of return measures should be carried out. This would need clarification of potential evaluation criteria and to what extent do-mestic aspects and also those in the countries of origin might play a role. In any case, the research should include questions on the sustainability of voluntary and forced return and on the impacts of return on the countries of origin, which has been covered insufficiently so far. Another focus could be on remigration movements beyond assisted voluntary return and return operations, in order to identify potential links and possible synergies in the counselling practice.

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1 Introduction

Since the Treaty of Amsterdam went into effect, an increasing significance has been attached to the issue of return within the European Union’s migration policy. The European Commission and the Council of the European Union have promoted progress in this policy area, the emphasis being on questions of EU-internal co-ordination of operational procedures, defining common European standards, and launching joint measures. To that end, the European Commission in 2002 pub-lished a Green Book and an announcement (Europäische Kommission 2002a; 2002b), which re-sulted in the adoption of an action plan by the Council1 in late 2002. At the end of the year 2004, the Council also reached a conclusion on “best practices” concerning the return of illegally resident third-country nationals.2 First steps towards an improved European co-operation had already been taken in 2001, with the Directive on the mutual Recognition of Decisions on the Expulsion of Third Country Nationals, and in 2003, with the Directive on Assistance in Cases of Transit for the Pur-poses of Removal.3 Subsequent to the decision of the Council to integrate the Hague Programme on Strengthening the Area of Freedom, Security and Justice into its return and removal policies,4 the Commission in 2005 presented its Proposal for a Directive of the European Parliament and of the Council on Common Standards and Procedures in Member States for Returning Illegally Stay-ing Third-Country Nationals (Europäische Kommission 2005a). In addition, additional funds are to be allocated to this policy area, the aim being to launch a return fund (Europäische Kommission 2005b: 157-196). Concerning the co-operation with third countries, the Council (until March 2007) has authorised the Commission to negotiate bilateral readmission agreements with 16 third coun-tries5 (BAMF 2006c: 44-48; Cassarino 2006, Hailbronner 2005b).

In view of the increasing significance of return policy for Europe, this study aims at providing an overview of the specific circumstances and the current situation at the national level in order to improve mutual understanding of the various approaches, results and deficits concerning meas-ures of voluntary return and forced return (deportation, removal) in Germany. Furthermore, the study also aims at providing an overview of the available data as well as at identifying specific ar-eas that have so far been marked by a lack of research. The study is part of a comprehensive

* We thank Andreas Ohnemüller for his contribution to the part of the study focussing on voluntary return

measures.

1 Council of the European Union, Return Action Programme, Doc. 14673/02 LIMITE MIGR 125 FRONT 135

VISA 172, Brussels, November 25, 2002.

2 Council of the European Union, Council Conclusion on best practices on return with regard to specific

countries of third-country nationals illegally staying on the territory of Member States, Doc. 15122/04 LIMITE

MIGR 107 COMIX 713, Brussels, November 23, 2004.

3 Council Directive 2001/40/EC on the Directive on the mutual Recognition of Decisions on the Expulsion of

Third Country Nationals (OJEU No. L 149 of June 2nd 2001, p. 34).

Council Directive 2003/110/EC (November 25, 2004) on Assistance in Cases of Transit for the Purpose of

Removal by Air (OJEU No. L 321 of December 6th 2003, p. 26).

4 Hague Programme on Strengthening the Area of Freedom, Security and Justice - paragraph 1.6.4, (OJEU

No. C. 53, p. 1).

5 Negotiations have been authorised for the following countries: Morocco, Sri Lanka, Russian Federation,

Pakistan, Hong Kong, Macao, Ukraine, Albania, Algeria, China and Turkey. The new mandates refer to Ma-

cedonia (FYROM), Serbia, Montenegro, Bosnia-Herzegovina and Moldova.

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study commissioned by the European Migration Network, with 11 member states participating. The respective national results and a comparison of these results with those of other member states can provide an important stimulus for initiating amendments and further development of German as well as European return policy.

Return and return policy: an overview

Return migration is an integral part of migration flows. Nevertheless, the political debate concern-ing the return of refugees did for a long time only play a rather subordinate role in the debate of the international community. During the Cold War, when the majority of refugees had escaped from the Communist bloc, the emphasis was placed on integrating refugees into the societies of receiving countries or, alternatively, onward migration. During the time of recruitment programmes for so-called “guest workers”, refugees were also regarded as a welcome addition to the national labour force.

After the East-West conflict of political and economic systems had come to an end, the scope and origin of migration inflows of refugees and asylum seekers changed considerably, which also af-fected their perception by political actors. Subsequently, return policy became part of migration management policies. Efforts to repatriate refugees thus became a constituent element of these policies, especially after the wars in the former Yugoslavia in the 1990s (Black/Gent 2006: 16; Koser 2000: 57; Ghosh 2000: 215). The concept of temporary protection, which was introduced as a new element in migration policy, implied that the return of refugees, as soon as the conflicts in their respective home countries had been settled, was an integral element of the protection pro-vided. Parallel to that, another new perception developed, according to which the return of refu-gees is part of peace-keeping measures in post-conflict areas. According to that view, this form of return migration is supposed to provide legitimacy to newly established democratic governments as well as to the international coalitions and actors that have contributed to these political changes (Black/Gent 2006: 17; Amore 2002: 168). For instance, international peace agreements regularly contain provisions aimed at facilitating the return of population groups that have fled or been dis-placed6

Especially Germany, which had admitted the great majority of refugees from the former Yugosla-via, took a keen interest in the return of these refugees and thus led the way towards a new em-phasis on return policy in Europe (Widgren 1999: 37f.). Germany’s active return policy had several priorities: The return of illegally-resident foreign nationals was regarded as a key element of an migration management policy aimed at imposing limits on migration inflows (Lehnguth et al. 1998: 36). Simultaneously, a new instrument of migration policy was developed, i.e. voluntary return pro-grammes. It is true, such programmes had already been developed in Germany in the 1980s, ini-tially with a focus on developmental aid, but these initial programmes only achieved little success (Mahnig/Giger 2000: 23).7 The focus on voluntary return policy was also fuelled by cost analyses,

6 However, this form of return migration may not be unproblematic, as some refugees return to areas that

have undergone significant changes (Barkan 2004: 65f.; Meier 1999: 341). For instance, it might well be that

returning migrants are regarded as detrimental to the social and economic stability in their countries of origin,

especially during periods of reconstruction, so that governments in these countries possibly favour a gradual

return (Noll 2000: 109f.).

7 Motte (2000) has objected to the view that the (“guest worker”) return programmes of the early 1980s

achieved little success, emphasising that the results were positive, especially if one takes into consideration

the structural changes in the industrial sector which occurred at that time.

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according to which the one-time expenses incurred by the return of migrants would be lower than the long-term expenses that would be incurred if respective persons remained in the country (Noll 2000: 105). The significance of return policy in Germany becomes obvious in view of the following statistical figures: between 2000 and 2005, a total of 121,424 persons returned voluntarily form Germany to their countries of origin in the context of the REAG/GARP Programme, with a further 472,021 persons being deported or removed during the same period.

Return as research topic

Even though the political significance of return processes has been increasingly acknowledged, the level of international research on return migration, voluntary as well as forced return, leaves much to be desired. Currently, no systematic research is being undertaken (Laaser 2006: 2). Existing research literature on the topic is either purely descriptive or based on empirical studies. On the other hand, international comparisons or efforts to achieve a theoretical synthesis do hardly exist (King 2000: 40).8 Correspondingly, literature and research are both marked by a divergent use of terms, which are neither clearly delineated from each other nor defined unambiguously (return, voluntary return, remigration, return migration, re-integration, repatriation etc.). From a research perspective, it also remains unclear frequently when a return process begins or ends. Black et al. (2006: 10), for example, have pointed out that recent research has shown that return cannot be regarded as a “straight-forward, once-and-for-all event“, but rather as a long-term process with different preliminary stages and, at least partly, with a considerable number of migration flows to and fro. The level of research at the national level in Germany, on the other hand, can be regarded as satisfactory, especially as far as the return of labour and, at least partly, educational migrants are concerned. A large number of studies has been conducted in this area, beginning in the 1960s and 1970s, but especially in the 1980s and the early 1990s, often focussing on return motives and problems of re-integration (occupational, social, educational). However, there are hardly any stud-ies on the return and re-integration of refugees or third-country nationals who are under a legal obligation to leave the country (Schmidt-Fink 2006: 1f.).

Sources and materials used for this study

This study has been compiled on the basis of the research literature that is currently available. On the whole, the current status of research literature, especially as far as the topic of voluntary return is concerned, has to be considered unsatisfactory, as a survey of databases of research literature and relevant websites on legal issues, as well as websites of NGOs and support networks, has shown. The number of research papers on forced return, on the other hand, is considerably higher, most of them focussing on legal issues. In order to gather additional information, we have also conducted a survey of so-called “grey” literature, such as newsletters, conference papers, press statements as well as reports and materials provided by organisations participating in or opposing return measures. In addition, further information could be gained from the records of several par-liamentary interpellations in the Bundestag (lower house of the federal parliament) and state legis-latures (Jäger 2004, Hatz 2005, Schneider 2006). Useful information could also be obtained from the report evaluating the Immigration Act, which was published in summer 2006, and contains re-sponses and comments by the Federal Ministry of the Interior, all state governments and a large number of organisations (BMI 2006a, b, c). Other useful sources providing background information

8 For further details on voluntary return, cf. Chapter 4.2.

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have been the records of the “Working Group Removal” (AG Rück), a commission set up by the German Conference of Interior Ministers, and records of several meetings of representatives of state governments and the Federal Office for Migration and Refugees (BAMF).

Valuable insights could also be gained from an expert meeting entitled “Exchanging experiences on voluntary return”, which was hosted by the Federal Office for Migration and Refugees (BAMF) in Nuremberg from June 27 – 29, 2006. The participants of this panel included representatives of the relevant federal (Federal Ministry of the Interior, Federal Office for Migration and Refugees) and state authorities as well as experts from welfare organisations, private providers of social services and non-governmental organisations. In addition, several interviews have been conducted with experts from the Federal Police Central Bureau in Koblenz, the IOM Mission Germany in Nurem-berg and the regional UNHCR representation in Nuremberg as well as BAMF staff. Subsequently, unresolved questions have been discussed with representatives of state governments. In addition, several researchers working within the EMN network have been commissioned to compile expert reports in order to gain further insights into the theoretical framework, the historical foundation, the interrelatedness with issues of development policy, and the current practice of return counselling (Currle 2006, Schmidt-Fink 2006, Laaser 2006, Westphal/Behrensen 2006).

Main focus and structure of this study

In accordance with the political priorities set by the European Commission (Cassarino 2006: 2), the primary, if not exclusive, focus of this study lies on the return of third-country nationals who are under a legal obligation to leave the country. This study provides an overview and analysis of re-turn policy and return measures for the years 2000 to 2005, the main emphasis being on proce-dural and administrative aspects. An additional analysis of the social and economic conditions concerning returning migrants and their countries of origin would have gone beyond the scope of such a study within the EMN network. Similarly, it has been impossible to provide an in-depth analysis of remigration processes involving former “guest workers” and other labour migrants, non-German university students and scientists etc. within the scope of this study, also due to the limita-tions of the available data and research literature. A comparative study of return processes of third-country nationals, which also promises to provide valuable insights into return processes involving persons who are under a legal obligation to leave the country, will have to be deferred to a subse-quent study conducted by BAMF. However, some fundamental information can already be ob-tained from a study on the historical development of return policy in the Federal Republic of Ger-many, which has been commissioned by BAMF and has been enclosed in the appendix of the German version of this study (Schmidt-Fink 2006).

This study follows the structure that has been chosen for all national studies with the EMN network (European Commission 2006). However, the delineation between voluntary and forced return poses particular problems as there is no clear boundary allowing the categorisation of respective procedures right from the start.9 Consequently, it has been impossible to simply divide this study into these two parts. Rather, it has been necessary in several chapters to focus on questions that are equally relevant for both types of return. What is more, it has become obvious during the com-pilation of this study that the complexity of administrative procedures in Germany makes it impos-sible to fit all aspects into the structure that has been agreed upon within the EMN. It has therefore

9 In addition, the debate has so far failed to reach a consensus on the term “voluntary“. For further details, cf.

Chapter 2.1.

14

become necessary to make some alterations and modifications in order to be able to provide a logical structure that follows administrative procedures.

The structure of this study can be summarised as follows: the introductory chapter (Chapter 2) fo-cuses on providing definitions and presenting available data. The following chapter (Chapter 3) summarises the political and legal background at the German national level and clarifies the impact of European law on national policies and legislation. Chapter 4, which constitutes the main part of the study, starts with an overview of responsibilities and costs of return measures (Chapter 4.1). This is followed by an in-depth analysis of voluntary return (Chapter 4.2) and forced return meas-ures (Chapter 4.3). Chapter 5 focuses on bi- and multilateral cooperation in the field of return. The conclusion of the study is provided by Chapter 6. Finally, an appendix has been added comprising references, a list of institutions working in the field of return policy, a list of agreements that facili-tate the return of foreigners under a legal obligation to leave the country, and additional statistical data.

2 Definitions, Categorization of Returnees and available Data

2.1 Definitions

Return is a broad term which includes voluntary as well as forced return. In international law, such as in the Universal Declaration of Human Rights, return is used as a term that entitles every person to return to his or her country (Art. 13 Par. 2). In German law, however, the term as such is not defined. The European Commission has presented a suggestion for a definition of “return” which is not binding though. According to that, return comprises “the preparation or implementation aiming at the way back to the country of origin or transit, irrespective of the question whether the return takes place voluntarily or forced.” (Europäische Kommission 2002b: 28). Although the umbrella concept “return” is not defined in German law, the terms that describe the area of forced return, are relatively easy to define as they are usually regulated by law or decree.

The obligation to leave the country (Ausreisepflicht) (§ 50 Residence Act) results from the non-possession or the subsequent discontinuation of the required residence title. This does not require an administrative act. The obligation to leave the territory of the Federal Republic of Germany rather derives in virtue of law, without an expulsion being enacted. Usually the authorities make the person aware of the obligation to leave the country by issuing an order to leave the country (Ausreiseaufforderung) to make sure that the foreigner is acquainted with this duty (Storr et al. 2005: § 50 Margin no. 3). As a rule, a deadline to leave the country is stated.

Expulsion (Ausweisung) (§ 53, 54, 55 Residence Act) is a form of an administrative act by the foreign-resident authority which nullifies a foreigners’ residence permit, whereby the possession of a residence title does not constitute a precondition for the expulsion. It is also a regulatory legal measure which aims at preventing the disturbance of the public safety and order by a residing for-eigner in Germany. It results in a residence ban and a re-entry refusal (Storr et al. 2005: § 53 Mar-gin no. 2).

The term forced return (Rückführung) comprises various forms of “forced return in the country of origin, transit or another third country on the basis of an administrative act or a court decision” (Eu-ropäische Kommission 2002b: 28), namely deportation, removal and rejection as well as transit for

15

the purpose of removal. It includes the escorted transport of a foreigner to the country of destina-tion and finishes with the entry there.10

A rejection (Zurückweisung) is a (usually verbally) administrative act by the (border) police with regard to refusal of entry, which is immediately executed. A foreigner who intends to enter the country illegally is refused entry. A rejection can, for example, be executed if there is a reason for expulsion, if there is a well-founded suspicion that the residence is not in compliance with the de-clared purpose or if the requirements for entry according to art. 5 Schengen Agreement are not fulfilled (§ 15 Residence Act). This measure is usually combined with its immediate execution, in terms of physical denial of entry or the return across the border (Storr et al. 2005: § 15 Margin no. 3).

The removal (Zurückschiebung) (§ 57 Residence Act) is a measure terminating the residence of a foreigner who has already entered the country. It can and should be executed to bring the for-eigner to the country from which the foreigner entered the German territory (Storr et al. 2005: § 57 Margin no. 3). Finally, deportation (Abschiebung) (§ 58 Par. 1 Residence Act) means forcibly carrying out the obligation to leave the country, if the voluntary compliance with this obligation is not guaranteed or if the supervision of the departure is necessary due to reasons of public safety and order. Return as part of deportation includes the actual transport of the foreigner out of Ger-many.

Related to this, there is the notification of deportation and the deportation order. The notification

of deportation is an administrative act that is usually combined with the request to leave the coun-try. In case the foreigner does not leave the country within the stated deadline voluntarily, he is threatened to be deported (§ 59 Residence Act; § 34 Asylum Procedure Code). The threat of de-portation has to be distinguished from the deportation order. It is issued in those cases in which the asylum seeker has entered Germany from a secure third country (§ 34a Asylum Procedure Code). In addition, a deportation order can be issued against a foreigner by the highest authority in the federal state, on account of a prognosis based on facts to defend the Federal Republic of Ger-many against a particular danger or a terrorist risk. This kind of deportation order can be issued without prior expulsion (§ 58a Residence Act).

The transit for the purpose of removal (Durchbeförderung) or transfer is the escorted transport of a foreigner from one country through the Federal Republic of Germany to a third country. This includes the escorted transport via German airports as well as transits carried out by the German authorities via transit countries (Bundesministerium des Innern 2005: 7).

Readmission (Rückübernahme) is the decision by a state on the re-entry of individuals, on the request of a third country, who have entered that third country illegally or who have resided there illegally, whereby a distinction needs to be made between own citizens, third country nationals and stateless individuals (Lehnguth et al. 1998: 59).

In contrast to the legally definable terms regarding forced return, the term voluntary return can be less distinctly defined, even if it is treated with priority over forced return. There is no explicit legal regulation for voluntary return, but it is mentioned in the Residence Act (§ 61 Par. 2 Residence Act and as a task of the BAMF in § 75 no. 7 Residence Act). In that sense, this also refers to the “re-turn programmes” stated in the Asylum Seekers Benefits Act (§ 11 Par. 1 Asylum Seekers Benefits

10 The suggestion by the European Commission for a guideline on common standards and procedures in the

Member States for returning illegally staying third-country nationals defines, in contrast to the paper of 2002,

return as voluntary and forced return (Europäische Kommission 2005: 15).

16

Act). Both cases are based on the expectation by the legislator that individuals will voluntarily leave the country once they are subject to a legal obligation to leave the country (§ 50 Residence Act). However, it is controversially discussed as to whether one can really talk about voluntariness in this case. The range of arguments stretches from the position that one can only talk about volun-tariness, if there is a real option to stay, the position that the foreigner can actually leave voluntarily and will be supported when faced with the alternative of forced repatriation, up to the idea that vol-untariness only means the lack of physical violence in the process of deportation (Black/Gent 2006: 19).

UNHCR defines voluntary return as a result of the “execution of the own free and unrestricted will in a sensible choice between returning or not returning to the country of origin against the back-ground of the existing conditions” [own translation] in the country of origin and in the country of asylum (UNHCR 1993: 52). No measures, such as physical, psychological or material pressure, that force the refugee to return to his home should be exerted. This includes that refugees are le-gally accepted und are entitled to a right of residence (UNHCR 1996: chapter 2.3). The definition of voluntary return presented by IOM follows this rather broad definition by UNHCR to a large extent and contains the element of the free and informed decision. In addition, there is the assisted volun-tary return in which the returnee is granted organisational and financial assistance. Furthermore, IOM differentiates between voluntarily without compulsion and voluntarily under compulsion, whereby the first alternative would correspond with the voluntariness concept of UNHCR and the second wouldn’t. In this case, the voluntary decision to return is rather linked to the impossibility of continued residence in the destination country (IOM 2004: 10). The latter variant which only offers the alternative to stay in the country illegally or to be forcibly repatriated is used by the European Council on Refugees and Exiles (ECRE) as mandatory return, deliberately avoiding the term volun-tariness (ECRE 2003: 4). This term is also preferred by various representatives of German non-governmental organisations that actively deal with questions of return assistance.11

Representatives of private providers of social services and welfare organisations, who work in refugee counselling, as well as representatives of support organisations for refugees reject the term voluntariness with regard to assisted return. They argue in the sense of the broad UNHCR definition that one can only talk about voluntariness if a foreigner actively renounces his or her se-cure residence status for family, job or other reasons and if he or she decides to leave Germany after the purpose of residence has expired (e.g. university studies, vocational training) or during a pending asylum decision. Individuals who are under a legal obligation to leave the country are in a situation in which they are faced with deadlines for departure, re-entry bans, reduction of social benefits, cancellation of the work permit, pending deportation, institutionalization in departure cen-tres etc. These factors, combined with simultaneous return counselling, exert considerable pres-sure and do not make the return a voluntary process (Düvell 2005: 63).12 This type of voluntary return is then only a euphemism for a deportation policy with other means (Berthold 2005: 57). If the debate sometimes goes even further and questions the humanitarianism and dignity of this kind of return (Düvell 2005: 66), this discussion is no longer about the definition of voluntary return. It is rather the case that not only the type of return, but also the reasonableness of forced return,

11 See for example statements by Klaus Dünnhaupt (AGEF) on the occasion of the expert meeting “Ex-

changing experiences on voluntary return”, June 27-29, 2006 at BAMF.

12 The former Commissioner of the Federal Government for Migration, Refugees and Integration has a simi-

lar, hesitant view (Beauftragte 2005: 482).

17

deportation and ultimately the current asylum and foreigners’ policies in principle are questioned here13.

As this study within the European Network serves the purpose to deal with the current situation in the area of return with a special focus on the operational and administrative proceedings, the common operational terms are used. Insofar voluntary return will be largely understood as assisted voluntary return.

2.2 Categorization of Returnees

The overarching category of returnees that we look at in this study consists of those individuals who are under a legal obligation to leave the country. The reasons for the obligation to leave the country are manifold, whereby a large part is summarized in the elements that constitute expulsion. Like this, a coercive expulsion is executed under various conditions after leally binding convictions (§ 53 Residence Act; Schwidden/Wollenschläger 2000). Some convictions also entail a regular expulsion, such as violations of the Narcotics Act, cases of disturbance of the public peace, sup-port of terrorism, the endangerment of the Free Democratic Basic Order, irregularity in an oral se-curity check as well as being in charge of a banned association (§ 54 Residence Act). The expul-sion is subject to a discretionary decision by the foreign-resident authority, if the individual consti-tutes a threat to public policy or public security or if other significant interests of the Federal Repub-lic of Germany are impaired (§ 55 Par. 1 Residence Act). In particular, this refers to the provision of false information in the visa application, repeated violations against legal regulations, court deci-sions or administrative orders, drug abuse, endangerment of the public health, homelessness, re-ceipt of social benefits, approval of crimes against peace or humanity that disturb the public secu-rity and order or approval of terrorism as well as incitement to hate and violence against certain groups of the population (§ 55 Par. 2 Residence Act). The receipt of social benefits in accordance with the Social Security Statute Book II, which serves the basic needs for individuals looking for jobs, does in principle not result in expulsion though (Beauftragte 2005: 432; Administrative regula-tion Residence Act No. 55.2.6).

Another category of individuals under a legal obligation to leave the country are asylum seekers whose asylum application has been conclusively legally rejected by the BAMF. The same can ap-ply to foreigners whose asylum application has originally been granted. In case of persons entitled to asylum, repeal court proceedings are to be initiated if the reasons for recognition of asylum are no longer existent or if the legal basis has changed. This also applies to individuals who qualified for the requirements according to § 60 Par. 1 Residence Act or another deportation ban, which has then been discontinued (§ 73 Par. 1 and 3 Asylum Procedure Code). A repeal of the original deci-sion is also possible if it was brought about by false or concealed information provided by the asy-lum applicant or if it was incorrect (§ 73 Par. 2 and 3 Asylum Procedure Code). The repeal or the revocation, however, do not always automatically result in the revocation of the residence title by the foreign-resident authority, as the length of stay, the consequences for family members and other matters of concern to be protected have to be taken into consideration (Beauftragte 2005:

13 Paul/Sebastian (2005: 19) point out that the strict rejection of assisted voluntary return is partly cultivated

by a “robust concept of friend/enemy” which “assumes that authorities are in principle only capable of doing

bad things.” [own translation].

18

467, 469; Heinhold 2005: 153).14 Refugees who have only been entitled to temporary protection, such as refugees from Kosovo, also belong to the returnees. Entitlement to the right of permanent residence has been ruled out by the German Conference of Interior Ministers (IMK), although some federal states have called for the right of permanent residence since 2005, under the im-pression of the security situation in the countries of origin, if the persons in question are economi-cally and socially integrated.15 Illegally resident foreigners in Germany are by definition in principle under the legal obligation to leave the country (Sinn et al. 2006: 23-27). A cross-cutting group to all those categories are tolerated foreigners, meaning those whose deportation has been temporarily suspended because of effective or legal deportation obstacles (§ 60a Residence Act).

The obligation to leave the country, its reason or the status of the toleration do not already prede-termine as to whether the person in question will finally leave voluntarily or will be deported. There is the option, on the contrary, to leave the country voluntarily while the legal proceedings on the deportation are ongoing. Albeit the voluntary return in practice is mostly used by individuals that are under the legal obligation to leave the country, others can also benefit from it. An application for assistance within the REAG/GARP Programme16 that is carried out by IOM Germany can be filed by foreigners, who, for example, have a leave of residence during the asylum procedure, who have a residence permit for reasons of temporary protection or for humanitarian reasons in accor-dance with §§ 23 Par. 1, 24 Par. 1 and 25 Par. 4 No. 1 or Par. 5 Residence Act, who have a tolera-tion certificate, who are under the enforceable legal obligation to leave the country, or who have submitted a second or follow-up application in the asylum procedure. Equally spouses, partners or children under age are entitled to benefits, even if they do not meet the respective requirements. In addition, accepted refugees, other foreigners who have been granted a residence title due to rea-sons under international law, humanitarian or political reasons, as well as victims of forced prostitu-tion and human trafficking are entitled to apply for assistance (IOM 2006: 6).

An additional category of (forced) returnees results from the Dublin procedure. These are asylum seekers and illegally resident persons staying in Germany (so-called apprehended cases) for whom it could by demonstrated by comparing fingerprints in the EURODAC system that they have applied for asylum in another EU member state. These persons are transferred to the respective member state, in accordance with the Dublin II Regulation and the Dublin Agreement, if this mem-ber state is responsible and has agreed to Germany’s transfer request.

14 According to the jurisdiction by the Federal Administrative Court the right to residence cannot be revoked if

the foreigner in question is entitled to the right to residence on a different legal basis, e.g. marriage to a

German national (Beauftragte 2005: 469).

15 See for example the decision by the IMK No. 7 of June 6, 2002; Margin note in the minutes on the IMK

decision No. 11 of 08/07/2004. A limited regulation of the right to permanent residence for actually and eco-

nomically integrated foreigners was decided by the German Conference of Interior Ministers in November

2006. IMK decision No. 8 of 17/11/2006.

16 The “Reintegration and Emigration Programme for Asylum-Seekers in Germany“ (REAG) covers travel

expenses, whereas the “Government Assisted Repatriation Programme“ (GARP) covers settlement assis-

tance.

19

2.3 Data on forced and voluntary return

It is a fundamental problem to gather data on questions of return as up to now neither destination countries nor countries of origins around the globe have considered it a top priority to register this phenomenon (Koser 2000: 59). This also applies to Germany where persons, who attend to their duty to leave the country without further ado, are not separately registered in the official statistics. Accordingly, the whereabouts of, for example, rejected asylum seekers cannot be conclusively determined.

As far as data on forced and voluntary return is available, it is collected by the responsible authori-ties dealing with remigration measures. The numbers on forced return are, for one thing, collected by the Federal Police Central Bureau and partly published in the annual reports as well as in the yearly Schengen Progress Reports. For another thing, this data is also reported to the Central Register of Foreigners (AZR) by the foreigners` registration offices or the Federal Police, in accor-dance with the Law on the Central Register of Foreigners (AZRG). However, the numbers on exe-cuted forced returns in the Central Register of Foreigners (AZR) do also not reflect the full scope of the phenomenon. They are not congruent with those collected by the Federal Police Central Bu-reau which might be attributed to the differing registration and data administration routine17 of the authorities. In the beginning of the researched time period (in 2000) the number of the AZR consti-tuted about three quarters of those collected by the Federal Police Central Bureau, whereas in 2005 it amounted to 95%.

Data on detention for the purpose of deportation can be collected via the federal states as far as they have been published, for example as part of parliamentary interpellations. Numbers on per-sons in departure centres are also provided by the federal states. Information on voluntary return can be gathered from the source and dispositions statements by IOM which are submitted to the BAMF as administrator of REAG/GARP funds. In some cases data on voluntary return is also col-lected by welfare organisations, but those collected numbers usually only constitute a subset of the total numbers by IOM.18

The potential numbers of those persons who qualify for voluntary return or who might be finally affected by forced return measures are determined by the numbers of individuals who are under a legal obligation to leave the country. According to AZR, this number has significantly dropped dur-ing the last years and amounted to 296,727 at the end of 2005, which means a decrease by about 35% between 2003 and 2005 (see table 1). These numbers include the group of individuals with a toleration certificate, meaning that the deportation has been temporarily suspended (2005: 192,155), and the group of persons under a legal obligation to leave the country who do not have a toleration certificate (2005: 104.574). The number of both sub-groups has decreased to a different degree, with the number of those persons under a legal obligation to leave the country and not having a toleration certificate dropping by almost 54% between 2003 and 2005 and those who have a toleration certificate dropping by 15%.19 Among others, the reasons for this decrease can be traced back to the fact that the numbers of asylum applications in Germany have also signifi-

17 There has been improvement in increasing the congruence of registered figures as a result of consistently

improving/ simplifying the registration in the AZR during the last years.

18 For detailed tables see the appendix.

19 As of 01/11/2004 a revision of the figures in the Register of Foreigners (AZR) was completed. As a conse-

quence the number of registrations in the AZR dropped by 618,000 persons in total. This decrease affected

all status groups. This has to be considered in the decrease 2003/2004.

20

cantly decreased during the past years. Whereas 78,564 asylum applications were submitted in 2000, and in the following year even 88,287, the number has dropped continuously since and amounted to only 28,914 in 2005. This means a decrease of slightly more than 67% compared to 2001. However, this cannot be the only explanation as, within the group of persons under a legal obligation to leave the country and those with a toleration certificate, individuals with an asylum background constitute less than two thirds on average, according to the figures by the AZR (2005: 61.6% and 59.8%).

Table 1: Persons under a legal obligation to leave the country in the Central Register of

Foreigners (AZR) (2003-2005)

Source: AZR

In addition, for the year 2005 as of December 31, the AZR states a total stock of 30,558 persons who have received an expulsion order (cf. table 10 in the appendix). However, only some of these persons, precisely 22,508, have received an enforceable or unappealable expulsion order. This number constitutes 73.7%. The number of those who have been registered in the AZR with the category of enforceable or unappealable expulsion order has remained largely stable between 2000 and 2003, amounting to slightly less than 15,000. Since 2004 until the end of 2005, however, it significantly dropped by almost 40% (cf. table 11 in the appendix). Looking at the individual fed-eral states, the developments vary. Following the trend of decreasing numbers, the drop in Hesse and Hamburg is particularly striking, whereas the numbers clearly increased in North Rhine-Westphalia and Baden-Wuerttemberg until 2003.

The total number of illegally resident persons in Germany cannot be specifically determined. By the end of the 1990s, various experts had agreed on a number of about one million. However, this in-formation can be hardly validated. In view of a more restricted asylum law and the drop of new arrivals of asylum seekers many experts assume that the phenomenon illegality is probably de-creasing on a high level (Lederer 2004; Schönwälder et al. 2004; Sinn et al. 2006: 59), which seems to be confirmed when looking at various indicators20 (Kreienbrink/Sinn 2007).

In order to enforce the obligation to leave the country, foreign-resident authorities can utilize man searching systems by the police (INPOL, cf. § 11 BKAG). They can feed data on foreigners into the system who have not voluntarily met their obligation to leave the country and whose whereabouts

20 Indicators are, among others, apprehensions of foreigners who entered Germany illegally, apprehensions

of smugglers and smuggled persons, results from the Police Criminal Statistics and the asylum statistics of

the BAMF.

with asylum

background

with asylum

background

2003 453.306 273.330 226.569 132.203

2004 371.074 249.073 202.929 133.156

2005 296.727 182.754 192.155 114.936

Persons under the obligation to leave the country

with toleration certificate

21

on the territory of the Federal Republic of Germany are unclear (§ 50 Par. 7 Residence Act, § 66 Asylum Procedure Code) (Welte 2002: 57).

2.3.1 Data on forced return

The downward trend in the numbers of persons under a legal obligation to leave the country can also be seen in the numbers on forced return. Adding the number of all returns, including deporta-tions, removals and rejections (cf. table 2), the sum dropped between 2000 (108,070) and 2005 (38,740) by 64%. Whereas the number of deportations decreased by 50% in this time period (2005: 17,773), the number of removals (2005: 5,924) and rejections (2005: 15,043) dropped by 71% respectively. Particularly regarding the rejections the impact of the EU enlargement 2004 be-comes apparent, as the decrease occurred primarily at the borders to Poland and the Czech Re-public, with more than 90% and 80% respectively.

Table 2: Deportations, removals and rejections (2000-2005)

Rejections (cf. Table 3) have primarily occurred at the borders to the neighbouring countries (Po-land, Czech Republic and Switzerland) and included to a large extent citizens of EU neighbouring states or other countries from the European Economic Area (Bundesministerium des Innern 2003: 19). Since the EU enlargement, rejections at the Swiss border alone amounted to more than half of all rejections (2005: 8,078), followed by those at airports, which comprise one fifth.

2000 2001 2002 2003 2004 2005

Airports Deportations 32.443 25.223 26.286 23.944 21.970 16.865Removals 2.622 1.828 593 526 876 940Rejections 4.982 3.982 3.610 3.951 3.773 3.083In total 40.047 31.033 30.489 28.421 26.619 20.888

Seaports Deportations 12 49 30 16 14 2Removals 13 51 221 173 107 71Rejections 908 310 341 235 214 99In total 933 410 592 424 335 172

Deportations 366 346 461 440 626 447Removals 5.195 6.395 6.296 4.913 4.239 3.244Rejections 3.290 408 55 21 81 25In total 8.851 7.149 6.812 5.374 4.946 3.716

Switzerland Deportations 93 55 38 21 26 21Removals 645 469 370 292 202 114Rejections 15.180 20.287 17.841 16.674 18.246 8.078In total 15.918 20.811 18.249 16.987 18.474 8.213

Poland Deportations 2.065 1.887 1.922 1.803 593 331Removals 2.858 2.507 1.704 2.047 1.843 946Rejections 15.199 15.293 16.283 17.012 5.800 1.344In total 20.122 19.687 19.909 20.862 8.236 2.621

Deportations 465 342 299 263 105 107Removals 9.036 4.798 1.954 1.778 1.188 609Rejections 12.698 10.774 9.156 6.064 2.671 2.414In total 22.199 15.914 11.409 8.105 3.964 3.130

In total Deportations 35.444 27.902 29.036 26.487 23.334 17.773Removals 20.369 16.048 11.138 9.729 8.455 5.924

In total 55.813 43.950 40.174 36.216 31.789 23.697

Rejections 52.257 51.054 47.286 43.957 30.785 15.043

In total 108.070 95.004 87.460 80.173 62.574 38.740

Source: Federal Police

Year

Internal Schengen

borders

Czech Republic

22

Table 3: Rejections (2000-2005)

Regarding removals, a similar trend can be seen regarding the development of the numbers at the borders to the new EU members Poland and Czech Republic between 2000 and 2005 (cf. Table 4), whereby the drop in numbers from the Czech Republic clearly set in before the EU enlarge-ment. For the present, mostly removals via internal Schengen borders are affected by slightly more than half of all removals (2005: 3,244).

Table 4: Removals (2000-2005)

After decreasing slowly in the past years, the number of deportations has dropped sharply only in 2005 (cf. table 5). Regarding deportations that are carried out by air (90% to 95%), this drop can only be seen more clearly in 2005. The remaining deportations are mainly spread over the internal Schengen borders and the eastern neighbouring countries, whereas the latter show a clear de-crease, for example to about one sixth in the case of Poland.

Table 5: Deportations (2000-2005)

Regarding the nationality of those deported (by air), 135 countries on average were registered be-tween 2000 and 2005. Among the ten most frequent nationalities (cf. table 12 in the appendix), Turkey and Yugoslavia range among the most stable ones in all years, as well as Serbia and Mon-tenegro as from 2003. Bulgaria, Romania, Ukraine and Vietnam follow, by a clear distance. Among the top ten, the Russian Federation and Bosnia-Herzegovina are also mostly included, whereby Poland and Lithuania disappeared from this group following their EU accession in 2004. In ex-change for them, Algeria, among others, moved up the list. The list of destination countries that

Rejection via

2000 2001 2002 2003 2004 2005

Airports 4.982 3.982 3.610 3.951 3.773 3.083 Seaports 908 310 341 235 214 99 Internal Schengen borders 3.290 408 55 21 81 25 Switzerland 15.180 20.287 17.841 16.674 18.246 8.078 Poland 15.199 15.293 16.283 17.012 5.800 1.344 Czech Republic 12.698 10.774 9.156 6.064 2.671 2.414 In total 52.257 51.054 47.286 43.957 30.785 15.043

Source: Federal Police Central Bureau

Year

Removal via

2000 2001 2002 2003 2004 2005

Airports 2.622 1.828 593 526 876 940 Seaports 13 51 221 173 107 71 Internal Schengen borders 5.195 6.395 6.296 4.913 4.239 3.244 Switzerland 645 469 370 292 202 114 Poland 2.858 2.507 1.704 2.047 1.843 946 Czech Republic 9.036 4.798 1.954 1.778 1.188 609 In total 20.369 16.048 11.138 9.729 8.455 5.924

Year


Deportations via

2000 2001 2002 2003 2004 2005

Airports 32.443 25.223 26.286 23.944 21.970 16.865 Seaports 12 49 30 16 14 2 Internal Schengen borders 366 346 461 440 626 447 Switzerland 93 55 38 21 26 21 Poland 2.065 1.887 1.922 1.803 593 331 Czech Republic 465 342 299 263 105 107 In total 35.444 27.902 29.036 26.487 23.334 17.773

Year


23

received the deported persons largely corresponds with this distribution, even if Italy or Austria appear among the top ten destination countries in exceptional cases (2000, 2004). In those cases one can assume that deported individuals were transferred to the local authorities there.

On the basis of the data registered in the AZR, further insights can be gained about the group of deported persons. As an example, the distribution of nationalities of the deported persons in the individual federal states largely corresponds with the total distribution (cf. table 13 in the appendix). It is striking that in the East German federal states nationals from Vietnam play a much stronger role, whereas they hardly rank among the top three in West German federal states. This distribu-tion is closely linked to the historical distribution of the foreign population in Germany. The case of Hesse stands out as Columbian ranked among the first three nationalities in 2000/2001. Here, the international airport at Frankfurt might play a role as a main gateway. The fact that this nationality is then no longer so visible in Hesse might be in connection with the introduction of visa require-ments for Columbia across Europe.

In the total numbers of deportations per federal state, the quantitative proportions of the foreign population are reflected (cf. table 14 in the appendix). Between 2000 and 2005 the by far highest numbers of deportation have been registered in North Rhine-Westphalia, followed by Baden-Wuerttemberg and Bavaria. In the medium range, territorial states like Hesse, Lower Saxony as well as the city state of Berlin are located. As opposed to the general trend of decreasing numbers for the total time period, the numbers for North Rhine-Westphalia, Hesse, Schleswig-Holstein, Hamburg and Bremen show an upward tendency for the years 2001 to 2004.

The number of executed deportations registered in the AZR also provides information on gender and age (cf. table 15 in the appendix). Among the deported persons in the researched time period, a consistent share of almost 80% is male and 20% therefore female. Regarding the age groups, about 86% of the deported males are between 20 and 49 years, whereas this age group is repre-sented among females with a share of about 69%. At the same time, there is a trend that the de-ported persons are getting younger between 2000 and 2005: within this group, the share in the age group 20 to 29 years increased from about 20% respectively to some 35% among males and some 28% among females. Among children and youths (0-18 years), the share consistently ranges around 6% among male and around 20% among female deported persons.

In the specific area of transfers as part of the Dublin procedure (according to the Dublin Agreement and the Dublin II Regulation, the latter applicable for asylum applications as from September 1, 2003), an average of about 5,000 transfer requests were issued by Germany to the member states, and about 7,500 from the member states to Germany between 2000 and 2005 (cf. table 18 in the appendix). There is a tendency of a slight increase of requests to the member states throughout the years. Although the requests have dropped in 2005, they were still higher than in 2003. The number of requests to Germany ranged between about 7,000 and about 8,600 during the last years; however, it dropped to 6,255 in 2005. On average, 74.3% of the transfer requests by Germany were accepted by the member states. Of the German answers to transfer requests by member states, 80.8% of the cases were accepted. The average number of transfers to the mem-ber states per year amounted to 2,219 in that time period; vice versa, Germany received 3,042 transfers. Austria (2,788), followed by Italy (2,470) and France (1,624) received most of the trans-fers during those years. Germany accepted transfers primarily from Sweden (4,126), the Nether-lands (2,682) and the United Kingdom (2,558) (cf. table 6).

24

Table 6: Transfers as part of the Dublin Regulation (2000-2005)

2000 2001 2002 2003 2004 2005

Austria 303 260 438 430 1.021 336 Belgium 193 194 272 153 305 202 Cyprus

Czech

Republic15 51

Denmark 30 39 58 40 77 32 Estonia

Spain 64 64 63 26 49 73 Finland 4 5 14 17 31 23 France 311 270 260 205 286 292 Greece 49 49 93 96 152 102 Hungary 17 47 Ireland 3 2 3 Iceland

Italy 1.035 488 373 174 246 154 Latvia

Lithuania 1 2 Luxembourg 7 9 4 3 16 16 Malta 3 Netherlands 131 183 342 226 390 211 Norway 2 32 66 150 155 Poland 90 334 Portugal 7 4 12 3 3 3 Sweden 2 61 83 118 350 295 Slovenia 3 36 Slovac

Republic102 161

United

Kingdom3 10 14 5 24 52

In total 2.142 1.640 2.058 1.562 3.328 2.583

2000 2001 2002 2003 2004 2005

Austria 59 64 51 42 165 185 Belgium 231 271 209 213 365 422 Cyprus

Czech

Republic5 20

Denmark 353 644 272 148 156 102 Estonia

Spain 4 6 16 13 4 5 Finland 13 31 90 115 212 197 France 130 154 122 98 343 351 Greece 8 14 2 13 3 1 Hungary 1 Ireland 2 6 4 1 5 Iceland 3 1 3 9 Italy 24 8 2 14 3 6 Latvia

Lithuania 1 Luxembourg 10 20 58 36 106 72 Malta

Netherlands 693 743 524 188 254 280 Norway 93 608 715 765 359 Poland 2 11 Portugal 4 3 1 2 Sweden 236 391 807 790 1.196 706 Slovenia 1 1 Slovac

Republic1

United

Kingdom243 298 539 522 564 392

In total 2.008 2.739 3.312 2.913 4.150 3.127

Source: BAMF

Transfers to Germany

Transfers to member states

25

Data on detention for the purpose of deportation is not registered in a standardised way across Germany. The federal states register the individual categories differently. As in some federal states the administration of justice is responsible for the detention awaiting deportation, the respective data is deleted at regular intervals after dismissal of the detainee or the executed deportation (Schneider 2006: 46). As a consequence, there are no numbers that can be conclusively deter-mined. Indicators can be found in the responses of the governments of the federal states to large and small parliamentary interpellations (Hatz 2005; Jäger 2004) as well as in the expert literature (Heinhold 2004a). Insofar as data is available for 2000 to 2004, a slight downward trend can be seen in the numbers of deportation detainees, in parallel to the decreasing numbers of deporta-tions. In accordance with the gender structure in deportations, the majority of deportation detainees are also male. Heinhold (2004a: 49) states that the share of females only stands at about 6%, ac-cording to information by the governments of the federal states Rhineland Palatinate and Thuringia rather around 10% (Hatz 2005: 5, 9). As reason for the small share of women Heinhold states that the majority of asylum seekers in Germany are males. In addition, occasionally only the father is detained if families are to be deported. Another piece of information that can be gathered from the sporadic details in the responses to the parliamentary interpellations is the fact that about a third of the deportation detainees has not been in the official asylum proceedings, but has been taken into custody as a consequence of illegal residence, subsequent to a criminal offence, as a victim of forced prostitution or as a recipient of social welfare benefits et cetera. Regarding the age struc-ture, the largest group is said to be between 20 and 40 years old, mostly in the early 20s (Heinhold 2004a: 49); however, this information does not fully coincide with data on executed deportations in the AZR (see above). Minors from the age of 15 or 16 up to the age of 18 constitute a very small share of the deportation detainees (Jäger 2004, passim).

2.3.2 Data on voluntary return

As it is the case for the numbers of persons under a legal obligation to leave the country as well as deported persons, the numbers of voluntary return have decreased in the past years in Germany. The return programme REAG/GARP which is implemented by IOM on behalf of the Federal Minis-try of the Interior and the responsible ministries in the federal states (Hemingway/Beckers 2003), has been established in Germany in 1979. Until 2005, 519,224 persons have returned to their home countries with the assistance of this programme (cf. table 7), making this programme one of the most successful ones of its kind in Europe (IOM 2004: 154). In the researched time period, the number of persons leaving the country dropped from 67,953 (2000) to 7,448 (2005), which means a decrease by 89%. This drop can be explained by the end of the Yugoslavian crises which was one of the most important target regions in this programme between 1999 and 2001. Already in 2001, a level of 12,851 persons leaving the country voluntarily had been reached, resulting in a less dramatic decrease from that year on.

26

Table 7: Persons leaving the country with the assistance of return programmes (1979-

2005)

Only since 2003, a specific breakdown of people who have departed has been registered (cf. table 19 in the appendix). Among the ten most important nationalities of those who have left, Serbia and Montenegro are still leading, with a clear distance, albeit with a shrinking share (2003: 43.7% and 2005: 26.4%). Among the top ten, seven other states can be found throughout the three consecu-tive years, albeit with alternating shares (Turkey, Russian Federation, Iran, Iraq, Bulgaria, Bosnia-Herzegovina and Vietnam). This means a clear congruency with the nationalities that were affected by deportation. This distribution also corresponds with the countries of destination of people who left, with slight variations (e.g. 2005: 98.1%). In total, voluntary return or departure has been as-sisted to 123 countries between 2002 and 2005. A minor share of those departures must have been transit migration as the destination countries were OECD or EU member states (primarily the United States, Canada, Australia).

The share of males amounts to an average of 61% in 2003 to 2005, with a slight upward tendency. The gender distribution shows a stronger dominance of males for a number of nationalities from Islamic countries as well as from Vietnam. In the cases of Iraq or Vietnam, more than three quar-ters of the persons who have left the country were male. Regarding age, the age groups 19-30 years as well as 31-45 years constituted more than a quarter of the persons who have left the country in the researched time period. Almost another quarter are children between 0 and 12 years old. This distribution indicates a large share of single men and men of medium age as well as fami-

REAG other programmes

Number

of

persons

Year Globally Bosnia FRY/Kosovo In total USRP SMAP LARAP In total

1979 137 137 137 1980 2.316 2.316 2.316 1981 4.291 4.291 4.291 1982 6.962 6.962 6.962 1983 7.698 7.698 7.698 1984 6.383 6.383 6.383 1985 5.404 5.404 5.404 1986 9.492 9.492 9.492 1987 9.473 9.473 9.473 1988 9.266 9.266 9.266 1989 10.915 10.915 242 11.157 1990 10.442 10.442 220 10.662 1991 10.636 10.636 235 10.871 1992 13.856 13.856 256 14.112 1993 17.313 17.313 214 17.527 1994 17.488 17.488 13 138 17.639 1995 11.501 11.501 100 132 11.733 1996 14.527 3.555 18.082 148 115 18.345 1997 10.890 65.197 76.087 6.098 555 48 82.788 1998 10.815 91.544 102.359 13.607 685 152 116.803 1999 8.475 20.956 18.268 47.699 12.271 876 72 60.918 2000 4.914 6.490 56.549 67.953 6.572 517 7 75.049 2001 4.103 485 8.263 12.851 1.310 551 14.712 2002 5.545 6.146 11.691 37 514 12.242 2003 6.526 5.062 11.588 27 1.000 12.615 2004 6.727 3.166 9.893 10 920 10.823 2005 5.485 1.963 7.448 3 1.206 8.657

In total 231.580 188.227 99.417 519.224 39.935 7.085 1.831 568.075

Source: BAMF

27

lies with small children. The share of youths (13-18 years), however, only amounts to 9.2% and 7.5%.

Looking at the category of persons that have claimed voluntary return, it becomes clear that with 79.8% rejected asylum seekers constituted the largest group in 2005 (cf. table 20 in the appendix). Adding the asylum seekers in pending asylum procedures it becomes obvious that the group that benefits most from the REAG/GARP Programme are asylum seekers. Other groups - some of them with permanent residence status - such as accepted refugees, foreigners with residence for political or humanitarian reasons or in accordance with international law, illegally resident foreign-ers21 or victims of forced prostitution or human trafficking only play a minor role.

As far as statistics collected by individual organisations that can carry out projects as part of volun-tary return programmes are available, they can deliver supplementary information. This is not rep-resentative though. The statistics on the support programme “Coming Home” by the city of Munich, for example, separately report on the persons who left the country according to residence titles. Among those 251 who left the country between November 1, 2004 and October 31, 2005, 45% had a departure certificate, 26% had a toleration certificate, 18% had a permission to reside in Ger-many, 6% a residence title for exceptional circumstances and 4% of the persons had a residence permit (Landeshauptstadt München 2005: 33).

The reasons for the drop in the numbers of voluntary return are diverse. The sharp fall in the num-bers of initial asylum applications (see above) cannot be the only reason, for the number of those persons that are entitled continues to be much higher than that of the actual returnees. Even though the chances to obtain a long-term or secure residence title are slim for persons under a legal obligation to leave the country, many of them cherish the hope for success, for example via follow-up applications for asylum. According to the former Chief of Mission of IOM Germany22 many foreigners with a toleration certificate have misjudged their chances of right to permanent residence after the Immigration Act 2005 came into force. The pending discussion on a grandfather clause in the German Conference of Interior Ministers (IMK) might have encouraged persons with a toleration certificate, deliberately or unknowingly, to delay their return as long as possible23. In addition, one cannot eliminate the possibility that re-structuring processes in the responsible au-thorities in some federal states as well as shortages of staff in some cities and districts in the course of the Hartz-IV reforms have resulted in delays in processing the applications.

21 The REAG-/GARP-Programme was opened for illegally resident foreigners (who have illegally entered

Germany and who are residing without residence permit) and victims of forced prostitution or human traffick-

ing (Sinn et al. 2006: 94).

22 See statements by Bernd Hemingway (IOM) at the expert meeting “Exchanging experiences on voluntary

return”, June 27-29, 2006 at the BAMF. In general, on the connection with the length of asylum procedures

see Hailbronner (2005b: 350).

23 A limited regulation of the residence status for factually and economically integrated foreigners was de-

cided by the German Conference of Interior Ministers in November 2006. IMK Decision No. 8 of November

17, 2006.

28

3 The political and legal framework

3.1 The political and legal framework in Germany

The political debate

The official position on repatriation and return policy was summarised in 2001 in the expert opinion by the Independent Commission on Immigration (UKZU). This document focussed, firstly, on an evaluation of asylum procedures and, secondly, it discussed approaches towards regulating and channelling migration inflows. In the perspective of asylum policy, a fixed link exists between being recognised as entitled to asylum and being granted a legal residence title, or vice versa, a binding obligation to leave the Federal Republic of Germany if one’s petition for asylum has been rejected. In this perspective, asylum procedures would be pointless, and the legal procedures implemented by the authorities and courts of law would become absurd if foreign nationals did not return once their petitions have been rejected legally binding, even by means of forced return, if necessary. Strategies employed by the applicants concerned in order to extend their residence or to make their repatriation impossible (see below) would, in the eyes of the general public, create the im-pression that the right to asylum would be abused for economic or other purposes. This debate would, in turn, undermine the general willingness of the population to admit refugees and would also, eventually, exacerbate xenophobic attitudes.

In the perspective of regulated migration, a lack of consistency and determination in return and repatriation policy would weaken political options for channelling and regulating migration inflows. In this perspective, foreign nationals refusing to leave the country, even though they are under a legal obligation to do so, would lead to unplanned migration inflows and thus limit the scope of im-migration for demographic or labour-market purposes. Moreover, if rejected asylum seekers were to continue to stay in Germany, this would trigger “copy-cat effects” among foreign nationals that have already agreed to return voluntarily (UKZU 2001: 150). After all, if the authorities refrained from interfering with all means legally possibly, this would also amount to capitulating to illegal hu-man smuggling and trafficking organisations, as it is in their interest to extend the stay of persons that have been smuggled into the country as long as possible, or even indefinitely (UKZU 2001: 151).

In its expert opinion, however, the UKZU has also drawn the conclusion that deficiencies in imple-menting return and repatriation policies could not only be ascribed to migrants themselves, but also to the political and administrative level, due to diverging interests and aims of government minis-tries (especially concerning domestic and foreign policy). The Commission has therefore called on the Federal Government to reach a consensus among all government ministries on defining the priority that should be assigned to the return or repatriation of foreign nationals who are under a legal obligation to leave the country. In order to achieve this goal, diverging aims would have to be harmonised and reconciled. In addition, procedures at the federal and state level would also have to be further harmonised and coordinated (UKZU 2001: 152). As a concrete proposal, the UKZU has called on decision-makers to concentrate various possibilities either at the federal or at the state level, in order to clearly separate responsibilities and establish central points of contact for local authorities, NGO and private persons, if applicable. In addition, decision-makers should de-liberate on proposals to set up specialised foreign-resident authorities, following the example of other large territorial states. Another proposal called for setting up central repatriation centres combining the responsibilities of several federal states (UKZU 2001: 153f.)

29

Several of these proposals presented by the UKZU have in recent years been implemented at the federal and state level. However, the proposals for transferring responsibilities from the state to the federal level have proved to be rather unpopular among state governments (Hailbronner 2005a: 417). In some cases, the proposals have been criticised as demands for further centralisation, but most of the criticism did not focus on the effectiveness of return measures but on the outcome of these decisions, arguing that decisions supposedly tend to be fairer and more acceptable if taken by authorities at the local level (Grimm 2004b: 40).

In its evaluation of the Immigration Act, published by the Federal Ministry of the Interior in mid-year 2006, the ministry states that in its view existing regulations (see below) are sufficient. It only lists a few minor areas where legal amendments would be desirable. The ministry further states that per-sistent problems in this area have to be attributed, first and foremost, to the practical implementa-tion of the law. In addition, obstacles to the return of migrants could only to a small extent be abol-ished by means of federal legislation. Consequently, the ministry calls for entering into further re-admission agreements with other countries and supporting voluntary return programmes (BMI 2006a: 7).

Return and repatriation policy has met with widespread criticism among several NGOs, for exam-ple refugee councils in several federal states, Pro Asyl and church-based support groups. Most of the criticism focuses on the forced return of migrants to troubled regions, arguing that it is irrespon-sible to force migrants to return to these areas (e.g. Afghanistan, Kosovo, Togo, but also Turkey). On the whole, the critics claim that forced return measures are too expensive, interfere with devel-opmental aid in troubled regions and further contribute to destabilising weak states (Detloff 2006: 144). But the criticism also focuses on the conditions of return procedures and the concept of vol-untary return.24 Several (smaller) opposition parties at both the federal and state level have also repeatedly levelled criticism at current return and repatriation procedures, for example in the form of published statements or of parliamentary inquiries that have called on the Federal Government or state governments to provide clarification on certain aspects of government policy.

In political science, the literature or migration control has drawn the conclusion that, as far as the general public is concerned, public opinion is characterised by a general support for return and repatriation measures. However, these attitudes can change in view of individual cases where forced-return measures are imminent. The interpretation provided in the literature for these atti-tudes indicates that political debate accompanying the introduction or reform of return measures brings certain aspects to the foreground, such as crime, illegal residence, unjustified asylum peti-tions or the impact on the German system of social security. If public attention turns, however, to individual measures at the local level, however, there are occasional cases where it becomes ob-vious that the persons concerned do not match these generalised patterns (e.g. people that are fully integrated into society, families with children). In these cases, forced return measures seem to contradict people’s subjective sense of justice, which leads to criticism of individual return meas-ures and opposition to for humanitarian reasons (Ellermann 2006: 295-297).

As far as voluntary return is concerned, the official positions point out that this form of re-migration constitutes a humane and cost-effective alternative to forced returns; it is therefore treated with priority. The main reasons are that there is no need to use physical force and that the financial cost of deportations is significantly higher than that of voluntary returns. At the same time, it empha-sises the fact that voluntary return can not be regarded as the sole option because the abolition of the legal obligation to leave the country and of forced return measures would definitely have a

24 cf. definition on voluntary return, Chapter 2.2.

30

negative impact on people’s motivation to leave the country voluntarily. In addition, the Independ-ent Commission on Immigration therefore pointed out in its 2001 report that the cooperation with migrants’ countries of origin would also improve Germany’s standing in negotiations with these countries concerning force-return measures that would be necessary in addition to voluntary return programmes. Consequently, it also regarded it as a key aspect of return policy to foster voluntary returns and onward migration (UKZU 2001: 157; cf. Sachverständigenrat 2004: 159; Schneider 2006: 33).

The main target group of voluntary return policies are refugees not entitled to obtain a permanent settlement permit. In addition, programmes creating incentives for voluntary returns can also be regarded as an instrument to reduce the number of illegal residents (Sachverständigenrat 2004: 356). Initially, this aim of voluntary return programmes encountered widespread opposition, the critics arguing that these programmes would amount to no more than supporting existing repatria-tion measures of foreign-resident authorities (cf. Chapter 2.1). With subsequent evidence, however showing that these additional incentives have contributed to a greater success of return and re-integration programmes, some critics, especially the major welfare organisations, have given up their initial opposition. These changes of opinion are also, at least party, due to the fact that volun-tary return programmes offer welfare organisations new fields of activity in migration work at a time when asylum application figures are decreasing (Schneider 2006: 102f.; Paul/Sebastian 2005: 93)25. Most refugee organisations, however, are still extremely critical of the return programmes.

A few years ago, voluntary return programmes were still called “underdeveloped” by the Independ-ent Commission on Immigration (UKZU 2001: 157). In the meantime, however, efforts have been made to improve the situation. Since 2005, in view of decreasing figures, policy-makers have shown a renewed interest in this policy area. In the autumn of the year 2005, for example, federal and state governments decided to extend the group of people that are eligible to apply for return assistance (cf. Chapter 2.1). In view of the decreasing figures, the Federal Office for Migration and Refugees invited migration experts in June 2006 in order to consult on further coordination of vol-untary return measures. A further reason for the co-ordinated effort were cuts in the federal budget that have reduced the funds available, which has also led to considerations about a re-orientation and reform of respective programmes. The main conclusions that have been drawn are the follow-ing:

- shifting the focus towards the quality of return programmes, in view of the fact that a signifi-cant increase in the number of voluntary returns is highly unlikely, due to the decreasing number of foreign residents that are under a legal obligation to leave the country;

- providing clear information on residence entitlements and return obligations; - providing individual counselling which focuses on the specific needs of migrants, including

re-integration in their country of origin; - improving cross-linkage with developmental aid and re-integration programmes that have

been developed in this policy area; - creating structures for an integrated return management, based on a constant dialogue be-

tween federal and state authorities, NGOs and experts in the field; - creating return programmes which last several years and use EU funding;

25 Paul/Sebastian (2004: 67) also consider the support for well-founded projects by the European Refugee

Fund an important incentive which has changed the attitudes of various associations.

31

- and, possibly, commissioning the Federal Office on Migration and Refugees (BAMF), to-gether with the Centre for the Provision of Information on Assisted Return (ZIRF), to co-ordinate different voluntary programmes and activities (BAMF 2006a: 5).

Legal framework for voluntary return and return measures

The legal framework for forced return measures can be found in Section 5 (“Termination of Resi-dence”) of the Residence Act (AufenthG), which took effect in 2005. This section contains regula-tions on the obligation to leave the country (order to leave the country, expulsion, surveillance of expelled non-Germans for reasons of national security, protection against expulsion) as well as enforcement regulations (removal, deportation, notification of deportation and deportation order, obstacles to deportation, subsidiary protection, repatriation centres, detention for the purpose of deportation). In comparison with the previous Foreigners Act, which remained in force until 2004, the new legislation only includes relatively few changes, as far as the underlying reasons for the obligation to leave the country are concerned26, whereas several new regulations have been added in the area of implementation.

§ 50 Residence Act contains the regulations on the obligation to leave the country. According to these regulations, foreigners are obliged to leave the country if they do not or no longer have the required residence permit or an equivalent residence entitlement in accordance with the EC/Turkey association agreement. In these cases, non-Germans are obliged to leave the territory of the Fed-eral Republic of Germany immediately, or, if a time limit has been set, by the end of this period.

§§ 53 to 56 Residence Act contain regulations concerning expulsion (cf. chapter 2.1). In this area, the new legislation comprises several new regulations, compared to the previous Foreigners Act. As part of the tightened regulations against illegal migration, non-Germans that have been con-victed of human smuggling and received a non-suspended sentence face mandatory expulsion, whereas the Foreigners Act stipulated that these persons regularly face expulsion (§ 53 No. 3 Residence Act). Other regulations have been tightened in order to intensify countermeasures against terrorism. § 54 No. 4 Residence Act mandates that persons supporting terrorism or terrorist organisations should be expelled, extending these regulations from “international” terrorism to all forms of terrorist activity. Persons who incite hate and violence (so-called “preachers of hate”) can now also be expelled, under new regulations terminating the residence of these persons (Beauf-tragte 2005: 428).

§ 58 Residence Act contains regulations on deportation. Foreign nationals are to be deported (i.e. forcibly removed from the country) only if they have been officially ordered to leave the country, have exhausted all appeals and cannot be relied on to leave the country voluntarily, or if it appears necessary for reasons of public security (§ 58 Par. 1 Residence Act). The obligation to leave the country becomes enforceable after an illegal entry if foreign nationals have not applied for a legal residence title or if they have not applied for the extension of a legal residence title that has ex-pired. In addition, it also becomes enforceable if a return or expulsion order has been issued by another EU member state on the basis of EC Directive 2001/40, provided that the German authori-ties have recognised the decision taken in another EU member state. The obligation to leave the country also becomes enforceable if an application for a legal residence title has been rejected and the underlying administrative act has become enforceable (§ 58 Par. 2 Residence Act). In the fol-lowing cases, the authorities also have to monitor if the persons in question actually fulfil their obli-

26 The main aim of the amendments was to improve clarity.

32

gation to leave the country: if the foreign national is currently serving a prison sentence, has failed to leave the country within the time limit that has been set by the authorities, is subject to a manda-tory or regular expulsion in accordance with §§ 53 or 54 Residence Act, has no financial means or identification documents, has made false statements about his or her identity, or if there are indica-tions that he or she is unwilling to fulfil his or her obligation to leave the country (§ 58 Abs. 3 Resi-dence Act).

As part of anti-terrorism legislation, the Residence Act now also includes regulations on deporta-tions for reasons of national security. As a rule, local foreign-resident authorities of the states issue expulsion orders. In order to prevent a particular threat to national security or a terrorist threat, the supreme authority at state level may now also issue a deportation order against a foreign national without issuing an expulsion order first. The deportation order is immediately enforceable (§ 58a Par. 1 Residence Act). In effect, these regulations shorten the duration of such procedures, with the Federal Administrative Court acting as the only judicial authority for appeal proceedings. Even though responsibilities remain with the federal states, the federal government, i.e. the Federal Min-istry of the Interior, can in special cases also step in and take over particular cases (Beauftragte 2005: 428).

One important amendment in the new legislation, which has led to a long and controversial debate, concerns the legal recognition of non-governmental and gender-related persecution (§ 60 Par. 1 Residence Act). Another amendment, which introduced a completely new element into the law, comprises regulations which allow federal states to set up repatriation centres for foreign nationals who have been issued an enforceable order to leave the country, the aim being to provide counsel-ling, support and supervision in order to increase motivation to leave the country voluntarily (§ 60a Par. 2 Residence Act).

Under no circumstances, however, do obligations to leave the country entail an infringement of human rights; correspondingly, the foreign nationals concerned retain their social entitlements in accordance with the Asylum Seekers Benefits Act or the Federal Social Welfare Act (Hailbron-ner/Häußler 2001: 241-243).

The federal states are responsible for the implementation of measures concerning the termination of residence, detention for the purpose of deportation and return measures. The implementation of these measures is governed by state legislation on detention centres, state police laws and state decrees for the implementation of legal provisions. Consequently, differences in implementation might occur between different federal states. However, there have so far been no nation-wide sur-veys investigating the extent or significance of these differences.

In contrast to forced return measures, there are no legal provisions for voluntary returns. Neither does German law contain provisions on whether migrants who leave the country voluntarily are entitled to receiving support or assistance for their return. However, § 75 No. 7 Residence Act commissions the Federal Office for Migration and Refugees (BAMF) with “authorising payments that have been granted in the context of voluntary return programmes”. In addition, the regulations introducing the possibility of setting up repatriation centres contain provisions stating that counsel-ling and assistance should be offered in these centres in order to increase migrants’ motivation to leave the country voluntarily (§ 61 Par. 2 Residence Act). Similarly, the authorities responsible for implementing the Asylum Seekers Benefits Act are under a legal obligation to inform the foreign nationals concerned about the possibilities of voluntary return (§ 11 Par. 1 AsylbLG).

Other regulations concerning the counselling migrants on voluntary return have been in force since the 1980s. In § 7 of the so-called Return Assistance Act of 1983 (Rückkehrhilfegesetz), which originally aimed at persuading labour migrants to return to their home countries (Schmidt-Fink

33

2006: 15), is still in force and guarantees that foreign nationals are legally entitled to receiving comprehensive information and counselling on return migration to their country of origin. Under these regulations, the counselling has to include information on the general conditions of the return migration, re-integration into the job market and the possibilities of setting up business in migrants’ home countries. However, it does not seem to be generally known that these regulations can also be applied to foreign nationals who are under a legal obligation to leave the country.

Apart from legal regulations, voluntary return programmes are conducted in accordance with the respective REAG/GARP Programme that applies to the cases concerned. These programmes are co-ordinated between federal and state governments and adapted to changing circumstances. In the so-called Project Groups Refugees or Return (AG Flü / AG Rück), which have been set up by the Conference of German Interior Ministers (IMK), the programmes are discussed and further developed. Furthermore, co-operating NGOs are also included in the process (Heming-way/Beckers 2003: 152).

Experiences with protest and solidarity movements

In Germany, criticism against forced as well as voluntary return measures has been levelled for a quite a long time. The criticism has been upheld by refugee organisations and networks (e.g. Pro Asyl, Karawane für die Rechte der Flüchtlinge und MigrantInnen – Caravan for the Rights of Refu-gees and Migrants27, “Kein Mensch ist illegal“ “No Human Being Is Illegal”28, Noborder Network29) as well as welfare organisations and churches (cf. Chapter 2.1.).

Over the last years, highly publicised protests have mainly focussed on deportation measures and repatriation centres. For example, support groups have tried, by different means, to prevent the implementation of deportation orders. Campaigners have used information networks, for example, in order to publish the dates which have been set for return measures and, subsequently, organ-ised protests. Demonstrations at airports in particular have attracted considerable public attention (2003/2004). In these cases, campaigners have tried to engage airline staff or passengers at check-in counters of respective airlines in conversation in order to persuade them not to participate in deportation measures or assist them in preventing them. FRAPORT Inc., the company operating Frankfurt Airport, has responded to these protests by banning the organiser from entering its prem-ises. In the subsequent lawsuit, the claimant appealed against this ban, focussing on the question of whether the airport should be regarded as a public space. The claimant’s side argued that, even though airports legally constitute privately owned premises, they are still characterised by the activ-ity of state authorities (federal police), which, in consequence, should also make protests admissi-ble. It also argued that, if the ban to enter the premises were to be upheld, citizens would no longer be able to exercise their civil rights (of demonstrating) in cases where state activities have been transferred to privately owned premises (Deppe/Sonnenfeld 2006: 98f.). In 2006, the German Fed-eral Court of Justice has rejected the appeal and upheld the respective ban to enter airport prem-ises.30 The Campaign against Deportations Rhine-Main (“Aktionsbündnis gegen Abschiebungen

27 The campaigns of the Caravan Network (http://thecaravan.org/uberuns) currently focus on the repatriation

centre in Bramsche-Hesepe and against deportations to Togo.

28 The network was founded in 1997 and has a regional organisation; cf. e.g. the website of the network in

Cologne: http://www.kmii-koeln.de/index.php?special=Ueber+uns.

29 The network has been active from 1999 until 2004; cf. http://www.noborder.org/about.php.

30 Ruling by the German Federal Court of Justice (BGH), Jan. 20, 2006, Ref. 134/05.

34

Rhein-Main“) responded in March 2006 by submitting a constitutional complaint to the Federal Constitutional Court, with the ruling on this issue still pending.

Several trade unions have also displayed a critical attitude towards deportations. For example the public-service union ÖTV and Cockpit, the association of airline pilots, have advised their members to only participate in respective flights if the foreign nationals concerned agree to take the flight voluntarily (Heinhold 2004a: 64). According to federal police statistics, between 2001 and 2005 a total of 655 return measures could not be carried out due to security concerns of airlines (in the run-up or on the day of the flight) or aircraft captains (on the day of the flight). However, it is impos-sible to determine whether these cancellations were due to external protest or, for example, due to resistance by deportees.31 Airlines that have transported non-German deportees of their aircraft have also been the target of protests, as protesters have tried to put pressure on them not to take part such transports. For example, members of the network “No Human Being is Illegal” tried to disturb shareholder meetings of the Lufthansa corporation in the years 2000 to 2002.32 In the same vein, protesters in 2001 announced attempts to bring Lufthansa’s online booking service to a tem-porary standstill by overwhelming it with online requests (Schneider 2000).33

In the late 1990s, several NGOs (e.g. Amnesty International) claimed that cases of maltreatment had occurred during forced return measures. The Federal Government, in its 2002 statement to the UN Committee against Torture, emphasised that it takes these accusations very seriously indeed. It also stated that investigations had been launched in all cases that had been criticised. The gov-ernment also pointed out that the accusations were only directed at very few deportations, com-pared to the total number of return measures. Accelerated airport procedures have been another target of criticism, with critics claiming that rejected asylum applicants awaiting return measures had to remain too long in facilities that were not sufficiently equipped for longer stays. The legal regulations require that the foreign nationals concerned can be accommodated in these facilities for a maximum period of 19 days, but critics pointed at cases where foreign nationals had been forced to remain there for significantly longer periods. In a highly publicised case, an Algerian woman, who had to remain in Frankfurt airport facilities for a total period of eight months, commit-ted suicide by hanging herself. In response, authorities opened new facilities in 2002 with suffi-ciently equipped premises and also ensured that detainees can have regular access to social ser-vices (United Nations – Committee against Torture 2003: 14f.).

In another response to alleged maltreatments, the position of a “repatriation monitor” was created at Düsseldorf airport in North-Rhine Westphalia. This position has been filled by a social worker whose position is funded by the “Forum of Airports in North-Rhine Westphalia”, a cooperation pro-ject between churches, state authorities, welfare and refugee organisations. Even though this ob-

31 These figures equal 16% of failed return measures (not taking into account return measures that could not

be implemented “for other reasons“, or cases where the transfer of foreign nationals failed (own calculations

based on data provided by the Federal Police Central Bureau; cf. Table 17 in the Appendix).

32 The network “No Human Being is Illegal” organised these protests as part of their campaign “Deportation

Class“; cf. website http://www.deportationclass.com/lh/.

33 In 2001, the organisers of these protests, an initiative called “Libertad!“ and the network “No Human Being

is Illegal”, were included in the annual report of the Federal Office for the Protection of the Constitution in the

category of left-wing extremism (Federal Ministry of the Interior 2002: 184f., 190). The person operating the

respective website was convicted by a Frankfurt local court of inciting coercion, but subsequently acquitted

by the Higher Regional Court in Frankfurt in appeal proceedings in the year 2006 (Ruling of OLG Frankfurt /

Main, Ref: 1 Ss 319/05).

35

server does not actively participate in return procedures, his mere presence has apparently re-duced the number of cases of complaints. In 2006, a similar position was created at Frankfurt/Main international airport (Schneider 2006: 51; Interview with Federal Police Central Bureau).

Another form of solidarity movement is the “church asylum” movement, where religious congrega-tions (especially Protestant, but also Catholic and free churches) temporarily accommodate re-jected asylum seekers whose deportation is imminent. Together with lawyers and support groups, congregations then try to provide proof to the effect that decisions taken by the authorities need to be reviewed and to achieve that administrative procedures are re-instated. As a general rule, these “church asylums” are public affairs, with congregations organising events, writing open letters and collecting signatures in order to grant protection to the persons concerned both by means of creat-ing publicity and by trying to exert pressure on (local) authorities (Melter 2000: 165). However, there also some cases of “non-public” church asylum. But in both cases congregations notify the authorities of cases of “church asylum”. Legally, religious congregations do not constitute a sepa-rate legal sphere (Babo 2001b), and the churches involved do not make claims to that effect either, but in most cases public authorities, for reasons of proportionality, do still refrain from using force in order to gain access to church premises. Nevertheless, the authorities open preliminary proceed-ings against the persons involved, and in a few cases these proceedings have also resulted in fines.

According to the Federal Association Asylum in the Church (BAG)34, approximately 5,000 persons have sought protection and taken refuge in church congregations since the 1980s. A survey for the years 1996 to 2001, which was conducted by the BAG (Vogelskamp/Just 1996; Just/Sträter 2001), has come to the conclusion that in 70% of cases, “church asylum” was able to prevent deporta-tions, either by achieving administrative reviews of cases in which obstacles to deportation were eventually acknowledged, or by means of new administrative procedures which resulted in resi-dence entitlements granted for humanitarian reasons. For the years 2004 and 2005, the BAG pegged the number of public “church asylums” at 48 and 39, respectively. As for the cases where cases of “church asylum” were concluded, the majority of cases ended with a residence title or a suspension of deportation being granted (2004: 19 out of 22; 2005: 21 out of 24).35 Proposals call-ing for allocating “asylum quotas“ to religious congregations, which were discussed in the context of the first draft for the new Immigration Act, have not been followed up upon since (Babo 2001a).

In some cases, migrant associations have criticised the involvement of charitable and refugee or-ganisations. Apparently, there have been some reproaches to the effect that some charitable and refugee organisations express attitudes that could be regarded as paternalistic. Due to their pro-fessionalized experiences, these NGOs possibly do not sufficiently discuss their activities and campaigns with the migrant groups concerned or neglect to sufficiently integrate them into their activities. Melter, in the conclusion of his study, also refers to this context as a kind of “politics by proxy” on the side of some charities and refugee organisations (Melter 2000: 78, 169-172).

34 cf. http://www.kirchenasyl.de/3_kirchenasyl/3_3_hintergrund/hintergrundtexte/text2.html.

35 According to the information provided, the great majority of cases involved Kurdish Turks. Cf.

http://www.kirchenasyl.de/3_kirchenasyl/3_1_zahlen/zahlen_inhalt.html.

36

3.2 The influence of European legislation

Current status of implementation of European legislation

The number of EU directives addressing the issue of return and repatriation is relatively small. Council Directive 2001/40/EC of 28 May 2001 on the mutual recognition of decisions on the expul-sion of third country nationals36 has already been implemented as part of the new Immigration Act of 2004. This directive regulates that third-country nationals who are under a legal obligation to leave the country, based on a decision that is immediately enforceable and does not allow any further appeal, and are currently staying in another EU member state, can directly be deported from the latter to their country of origin. The regulations also determine that the member state in which the underlying decision has been taken has to compensate other member states that are involved for expenses that have been incurred because of the deportation. These regulations have been implemented in § 58 Par. 2 S. 1 No. 3 Residence Act (AufenthG). In 2004, the EU Council has taken a further decision in order to regulate the practical modalities of the implementation.37 This decision contains detailed regulations on the type of expenses that are refundable (transport, administration, official trips, accommodation of deportees and accompanying personnel, medical treatment in case of emergency) and also provides for setting up an official contact point responsi-ble for the implementation and data transfer to other member states. This contact point was set up in the Federal Office for Migration and Refugees (BAMF) in 2006.

Council Directive 2003/110/EC of 25 November 2003 on assistance in cases of transit for the pur-poses of removal by air38 will probably be implemented in German law in 2007, as part of the legis-lation on the implementation of EU Directives on residence and asylum law. For one thing, an amendment will be added to the Residence Act to the effect that foreign nationals who are subject to repatriation have to tolerate ensuing measures. For another, the amendment also determines the legal consequences in cases where repatriation measures fail and the Federal Republic of Germany is obliged to re-admit foreign nationals that were to be repatriated.

Council Decision 2004/573/EC on organising joint flights for group removals39 is observed by the Federal Police Central Bureau and state authorities in respective procedures for joint European flights. But the instrument of joint flights for group removals has already been employed by federal police authorities before the respective Council decision. In 2005, for example, a total of ten such flights were conducted in cooperation with other EU member states (Netherlands, Belgium, France, Malta, UK and Poland), as well as with Switzerland. The countries of destination of these flights were Turkey, Kosovo, Kenya, Western African states, Cameroon, Guinea (Conakry).40 In the ap-pendix of the Council Decision, the Council has also agreed on joint guidelines for safety stan-dards. These guidelines, however, are of a non-binding character. But, as a general rule, they are

36 OJEU No. L 149 of June 2, 2001, p. 34.

37 Council Decision of February 23, 2004, on the criteria and practical modalities of the compensation for

financial imbalances arising due to the implementation of Directive 2001/40/EC on the mutual recognition of

decisions on the repatriation of third-country nationals, OJEU No. L 60 of February 27, 2004, p. 55.

38 OJEU No. L 321 of December 6, 2003, p. 26.

39 Council Decision of April 29, 2004, on the organisation of joint flights for group removals of third-country

nationals who are subject to individual return measures, from the territories of two or more EU member

states, OJEU No. L 261 of August 6, 2004, p. 28.

40 Statement by the Federal Police Central Bureau, Koblenz.

37

observed by all EU member states or, if German authorities participate in joint flights for group re-movals, are required as minimum standards. But in Germany the underlying safety standards have already been implemented since the year 2000 as part of the official instructions for federal police authorities (“Instructions for Removal by Air”). On the whole, the Council Decision has received a positive evaluation by federal police authorities (Interview with Federal Police Central Bureau).

As a further measure supporting the successful implementation of these regulations, a secure web-based information and co-ordination network has been set up for participating authorities in EU member states (ICONet). This network allows national authorities to determine quickly if member states currently have demand for return measures to a certain country of origin for foreign nationals who are under a legal obligation to leave the country. The network has thus created the possibility of planning joint removals as national authorities are able to exchange information on the demand for and the capacity of joint flights for group removals (Schneider 2006: 125; European Commis-sion 2006: No. 46, 50).

Further impact of European legal framework

The so-called Dublin Procedure based on the treaties of Schengen and Dublin also contains rele-vant regulations concerning return and removal procedures. Article 28 et seq. of the Schengen Implementing Agreement have since 1997 been replaced by the Dublin Agreement. The so-called Dublin-II Regulation has been in effect since March 2003, which is applicable for asylum applica-tions from September 1, 2003.41 It mandates that if national authorities, on examining asylum ap-plications or apprehending illegally resident third-country nationals, come to the conclusion that this person has applied for asylum in another member state, they can submit a request for transfer to the other member state. If the other state agrees, the third-country national concerned can be transferred after transfer modalities have been negotiated between the two member states in ac-cordance with the Dublin-II Regulation. The regulation itself is immediately applicable law. The Federal Office for Migration and Refugees (BAMF) is responsible for conducting respective admin-istrative procedures, whereas border authorities are responsible for so-called border procedures. The Dublin-II Regulation is regarded as essential for an effective enforcement of the legal obliga-tion to leave the country for persons without a legal residence title (Lang 2006: 3).42

The Council Regulation on establishing a European Agency for the Management of Operational Cooperation at External Borders of Member States of the European Union or, in short, FRONTEX has also had an impact.43 Article 9 of the Regulation mandates that this Agency, among other things, supports return measures of EU member states by networking, collecting and exchanging information on successful practices employed in member states for obtaining travel documents or for removing illegally resident third-country nationals. FRONTEX is also to take part in joint training measures for officials, in order to harmonise training levels within Europe. However, as FRONTEX

41 Council regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for

determining the member state responsible for examining an asylum application lodged in one of the member

states by a third-country national (OJEU No. L 50 of February 25, 2003).

42 Criticism of the Dublin Procedure has focussed on various aspects of accompanying administrative proce-

dures (Kalkmann 2006: 4).

43 Council Regulation (EC) No. 2007/2004, of October 26, 2004, establishing a European Agency for the

Management of Operational Cooperation at the External Borders of the Member States of the European

Union (OJEU No. L 349 of November 25, 2004).

38

has not been set up until well into the year 2005, we are currently unable to provide information from a German point of view on concrete assistance.

Other European programmes or funds have also been used for financing various activities in the context of return measures (Schröder 2006). For example, financial resources provided by the European Refugee Fund (ERF) can also be used to support voluntary return projects. In Germany, the administration of respective funds is conducted by the Federal Office for Migration and Refu-gees (BAMF). Projects that have been supported financially comprise information services on home countries, information and counselling services on return programmes of respective project initiatives, (further) vocational training and other economic, social and legal support measures for improving re-integration in home countries.44

One indirect consequence of these funding possibilities has been an increased co-operation be-tween various actors involved in return measures. This co-operation fosters the exchange of infor-mation and experiences between participating organisations and authorities, which, according to Schneider, has not been the case at the federal level, at least to that extent, before (Schneider 2006: 102).

Due to the EU enlargement in 2004, Germany does no longer, with the exception of Switzerland, have an EU external border to third countries. The borders to Poland and the Czech Republic, however, will continue to be Schengen-external borders, until the Schengen regulations have been implemented completely and permanently there. Another consequence of the EU enlargement, which, however, is also due to other factors, has been a significant decrease in the number of ap-prehensions of third-country nationals that are trying to enter, or have already entered, the country illegally. This decrease also has an impact on the number of foreign nationals who are under a legal obligation to leave the country and, consequently, are possibly subject to return measures. But this development does not influence the principles of the policy on voluntary and forced return.

In the context of ARGO, an action programme aimed at improving administrative cooperation at European Union level in the fields of asylum, visas, immigration and external borders, which thus also touches on the areas of removal and voluntary return, the Federal Office for Migration and Refugees (BAMF) has organised several international conferences focussing on examples of “Best practice” in the field of voluntary return. A further conference on this topic is scheduled for the year 2007.

Implementation of RETURN programme for preparatory actions in the area of return management

RETURN is the European Union (EU) funding programme for preparatory actions in the area of return management, aimed at improving all aspects of return management (forced and voluntary return) for illegally resident third-country nationals. The specific goal of the RETURN programme is to collect and exchange information as well as to support and further develop the cooperation be-tween EU member states and countries of origin. For example, federal police authorities in Ger-many have carried out a project with partners from several EU member states in order to discuss practical aspects of joint flights for group removals to Western African countries. The project aims at evaluating, for instance, different approaches to deportation notifications, the involvement of human-rights observers or the question whether the common guidelines for return measures have

44 For a survey of re-integration projects that have been supported financially, cf. the BAMF website:

http://www.bamf.de/nn_565248/DE/Integration/EFF/Projekte/__Function/Reintegration/eff-projekte-

reintegration-node.html__nnn=true.

39

proved to be successful. Another project focussed on the question of obtaining passports, e.g. the question whether expert commissions from third-country nationals’ countries of origin cannot only take part in identification measures in one member state, but in a joint mission in several member states (Interview with Federal Police Central Bureau).

In response to a RETURN request for proposals, the Federal Office for Migration and Refugees (BAMF) in 2005 submitted proposals for two projects that have been approved and will be realised in 2007. One project focuses on the Kosovo and includes co-operation and exchange of informa-tion on return migration and fostering voluntary return measures, but without abandoning the option of forced return measures, The project includes training measures for social workers and psy-chologists as well as setting up a contact point for returning migrants in Prizren, which can provide support to returning migrants as far as house hunting, social affairs etc. are concerned. The dura-tion of the project, which will be conducted in co-operation with the federal states of Hamburg and North-Rhine Westphalia, will be eighteen months, and its total budget will amount to € 2.5 million.45 The second project focuses on Armenia and aims at identifying undocumented migrants who are assumed to be of Armenian nationality and who are to be returned to their country of origin. This project is supported by the federal states of North-Rhine Westphalia and Bavaria, the latter also being responsible for its practical implementation. Other partners include the Czech Republic, which has agreed to conduct return measures via Prague airport, which will help to reduce the cost of removal flights for the German federal states. The project can be regarded as a preparatory measure for a re-admission agreement that has yet to be ratified and was signed in November 2006. The duration of the project will be twelve months, and its total budget will amount to € 600,000.

Experiences with the implementation of Art. 3 ECHR

According to Article 3 of the European Convention on Human Rights (ECHR), no one shall be sub-jected to torture or to inhuman or degrading treatment or punishment. This article has an impact on return measures in two different respects: For one, it can substantiate obstacles to deportation. For another, it requires certain standards concerning the conditions in detention centres for deportees. The second aspect has, to our knowledge, not been discussed in any depth in Germany so far. Up to now, deliberations have focused on issues of imprisonment for criminal offenders (solitary con-finement, conditions of detention, health care, treatment of mentally ill inmates and, especially, security measures (Gräfenstein 2003; Schlüter 2004).

The situation has been different concerning obstacles to deportation, which were the focus of a controversial debate in the 1990s, with two opposing sides. The debate was sparked by rulings of the European Court for Human Rights (ECHR) concerning obstacles to deportation. The rulings extended the area which is protected by the Convention by including non-governmental risks, by expanding the definition of inhuman or degrading treatment, and by emphasising the comprehen-siveness of protection in view of threats to public security and order (Hailbronner 1999: 618). In

45 Project partners include the IOM, AWO Nuremberg, AGEF, the Munich Institute for Trauma Treatment

(MIT), which provides training for trauma therapy specialists, and the country of Slovenia. The project also

includes the co-operation with several federal states (e.g. North-Rhine Westphalia). AGEF provides support

for returning migrants who want to set up their own business and have been chosen for the project. IOM is

responsible for coordinating the work of different organisations on site in Kosovo, whereas AWO will be re-

sponsible for operating the project. A long-term BAMF advisor will co-ordinate project measures on site for

the entire duration of the project.

40

1997, the Federal Administrative Court criticised this far-reaching jurisdiction in several of its own decisions and rejected the extension of the protection to non-governmental violence (Lehnguth et al. 1998: 44-46).

However, the extension did also meet with widespread approval in the literature (Kälin 1999, Zimmer 1998). Subsequently, these divergent interpretations of Art. 3 ECHR led to differing inter-pretations in the jurisdiction of German administrative courts (Hailbronner 1999: 620). An analysis of the jurisdiction of German administrative courts between the years 1988 and 200246 has comes to the conclusion that German courts have tended to base their decisions concerning protection on German regulations contained in the Foreigners Act (which was still in force then) and the Basic Law, rather than on Art. 3 ECHR (Unkel 2004: 277-284).47

When the new Immigration Act entered into force in 2005, this debate has, at least partly, lost its foundation, as § 60 Par. 1 Residence Act stipulates that non-governmental persecution, as long as its constitutes political persecution in the definition of the Geneva Convention on Refugees, sub-stantiates a deportation ban. This regulation also constitutes a partial implementation of European Union Council Directive 2004/83/EC on minimum standards for the qualification and status of third country nationals or stateless persons as refugees.48 In 2007, the legislation implementing the di-rective will extend the protection against non-governmental persecution to the area of subsidiary protection (Hailbronner 2006: A1 § 60 Residence Act No. 111).

Proposals for a Council Directive on removals COM (2005) 391

On September 1, 2005, the European Commission has presented proposals for a Directive on re-movals, aiming at common norms and procedures that are to be adopted by member states for removals of illegally resident third-country nationals (European Commission 2005a). The proposals have so far not sparked a specific public debate in Germany. Organisations like the UNHCR or Amnesty International have issued public statements on the matter, via their headquarters or their EU representations, respectively. The general tenor of these statements has been that regulations on the detention of deportees should be more specific and that procedural guarantees should be expanded (Amnesty International 2006; UNHCR 2005; in a similar vein: Marx 2006). The Confer-ence of German Interior Ministers and the Bundesrat (upper house of the German parliament) have expressed the view that they do not regard the proposals as conducive to fighting illegal mi-

46 The study analysed court decisions on deportations to civil-war regions, decisions concerning women or

girls threatened by genital mutilation, and cases of ill persons who were faced with insufficient medical

treatment in their countries of origin. In total, the study analysed 143 court decisions (Unkel 2004: 10, 110).

47 Analogous discussions concerning the impact of international law on return measures (especially protec-

tion against deportation) could be conducted concerning Art. 8 ECHR (Right to respect for private and family

life ), Art. 4 of the ECHR Protocol No. 4, which prohibits collective removals, and ECHR Protocol No. 7 Art. 1,

which grants certain procedural rights to foreign nationals that are under a legal obligation to leave the coun-

try. Other regulations that have to be taken into consideration include the refoulement ban under Art. 33 Par.

1 of the Geneva Convention for the Protection of Refugees, Art. 3 of the UN Convention against Torture, or

Art. 7 Par. 1 of the International Pact on Civil and Political rights, whose content is equivalent to Art. 3 ECHR

(Lehnguth et al. 1998: 41, 47).

48 Council Directive 2004/83/EC on minimum standards for the qualification and status of third country na-

tionals or stateless persons as refugees or as persons who otherwise need international protection and the

content of the protection granted. (Official Journal L 304 of September 30, 2004).

41

gration. On the contrary, an over-emphasis of protection rights would impede and complicate re-turn measures, or even make them impossible (Bundesrat 2005; IMK 2005: 18f.). Hailbronner (2005b: 353-360) has mainly critically questioned the suggestion’s regulations on the proceedings, beside other aspects. The consultations in the Council and the European Parliament, which is in-volved in the decision-making process, will probably go on for some time.

4 Return measures

4.1 Overview

Return measures relate to voluntary as well as forced return. They are carried out by the federal ministries, state governments, local governments and other institutions.

Responsibility for the implementation of return measures

The responsibilities for return measures rest with various institutions in Germany. As far as volun-tary return is concerned, the Federal Ministry of the Interior as well as the state interior ministries are responsible, as they are making the decisions on the political principles and contents. IOM is responsible for the implementation of the REAG/GARP Programme. Among the main tasks of IOM is the provision of information for the return, the processing of the application documents of the voluntary returnees, the administration of the formal requirements, taking care of the question of transportation (e.g. booking of flights) and the payment of settlement assistance. Since 2003, the BAMF has taken over the administration of the assigned budget and directly cooperates with IOM. With the new Immigration Act, the legal basis for this task of the Federal Office for Migration and Refugees was created in 2004 (§ 75 No. 7 Residence Act). Regarding the processing, the authori-ties49 entitled to applications need to be additionally considered. Applications can only be submit-ted via local authorities and state authorities (e.g. social security office, foreign-resident authority), welfare organisations, special counselling offices, Central Return Counselling Offices or via UNHCR. The participating organisations are cooperating more and more intensively and are regu-larly staying in touch – in case of small local organisations – with larger organisations that operate nation-wide. By means of these networking activities deficits of individual organisations, e.g. re-garding the provision of information of the returnees’ destination countries, can be compensated for. A body that coordinates their activities in the area of voluntary return, at least to some extent, does not exist yet. Various participants of the “Exchanging experiences on voluntary return” in June 2006 raised the question though, if, in the medium term, the Centre for the Provision of In-formation on Assisted Return (ZIRF), which is organised by the BAMF, might potentially take over this role.

Regarding forced return, responsibilities are spread across various levels of administration. Gener-ally, the head of the procedure is the foreign-resident authority of the local government or the dis-trict administration. It executes the termination of stay and decrees the expulsion and the deporta-tion order. It is also in charge of the required provision of travel documents, if applicable. In some federal states this is carried out by one or several central foreign-resident authorities. For a number of states this task has been additionally transferred to the Federal Government’s Coordination Of-

49 Foreign-resident authorities and social security offices of the municipalities and district, non-governmental

organisations (welfare organisations, special counselling offices), foreigners’ commissioners and UNHCR.

42

fice for Matters of Return [own translation] at the Federal Police Central Bureau in Koblenz. If re-turnees are in detention for the purpose of deportation, the federal states’ administrations of justice or internal affairs are the responsible authorities. The transfer of persons to be deported to the bor-der or to the airport is usually carried out by the respective police forces of the federal states. The transfer across the border itself (accompanied, unaccompanied) is generally executed by the Fed-eral Police.

The costs of voluntary return and return measures

The expenses for return assistance spent by the BAMF stood at € 6.8 million in 2005. These funds also included the German membership contribution to IOM of about € 2.2 million though. For 2006, € 5.2 million were budgeted, resulting in about € 3 million net for the support of return measures. As the number of applications in 2006 will probably be similar to those in 2005, less money is available. For that reason, the utilization of assistance funds by EU Programmes is being consid-ered (Praschma 2006: 19; Schröder 2006: 9).

The spent expenses (here for the REAG/GARP Programme only) are divided between operational costs and administrative costs at a ratio of about 2.5:1. Due to the decreasing numbers of return-ees, the average costs per returnee have increased (table 8).

Table 8: Costs for voluntary return as part of the REAG/GARP Programme (2003-2005)

However, these numbers reflect only one part of the total expenses as half of the assistance of voluntary return is paid for by the federal states. Accordingly, the average costs for one returnee stood at € 968 in 2005, for example. Adding to the annual amount of € 6.8 million for financing REAG/GARP-support in 2005 out of the federal budget, at least another € 3.6 million are to be added from the federal states. To this amount other expenses need to be added though, that are paid for by federal states and local governments to complement the REAG/GARP assistance. Re-

Programme 2003 * Programme 2004 * Programme 2005 *

11.835 9.893 7.448

4.060.945,42 € 3.979.201,35 € 3.605.538,60 €

of which operational

costs2.923.889,41 € 2.891.140,15 € 2.531.250,57 €

of which

administrative costs1.137.056,01 € 1.088.061,20 € 1.048.895,93 €

343,00 € 402,00 € 484,00 €

of which operational

costs247,00 € 292,00 € 343,00 €

of which

administrative costs96,00 € 110,00 € 141,00 €

686,00 € 804,00 € 968,00 €

* according to source and dispositions statements by IOM Source: BAMF 2006b: 15-18

Federal contributions

average (federal) expenses per

returnee

Returnees

average costs (federal/ federal

states) per returnee

43

garding these funds, no estimation of the total amount is available. Finally, other contributions for financial and material support for voluntary return are made by private donors. The Bavarian state capital Munich, for example, regularly calls for financial donations and donations in kind (Lande-shauptstadt München 2004: 26).

In the debate of voluntary and forced return it is regularly referred to that the costs for voluntary return amount to less than those for deportation. This is indeed not questioned even by critics of voluntary return (Berthold 2005: 58). However, the expenses for return, which, among others, in-clude the costs for the foreign-resident authorities for the provision of travel documents, for custody pending deportation, if applicable, for the transport to the airport, for the returnees’ and the accom-panying police officers’ flight tickets or for the airline’s security staff or the charter costs for the plane, are not registered in a reliable nation-wide survey.

In accordance with § 66 Residence Act, the deported foreigner has to cover the costs incurred for the return measure50. This also applies to the cases in which the authorities could not carry out the return successfully (BMI 2006a: 152). The notification on expenses is issued by the foreign-resident authority which, in accordance with a verdict by the Federal Administrative Court of June 2005, is under the obligation to charge the total costs for the deportation, including the expenses of other involved authorities (e.g. the Federal Police). 51 However, in most of the cases the expendi-tures cannot be covered by the returnee due to poverty.

Although the number of return operations has decreased during the last years, the total costs have increased, particularly as a consequence of higher prices. The costs for the return operations vary, depending on whether the return is accompanied or unaccompanied and whether it is carried out on regular airline flights or with a specially chartered carrier. If the return is carried out in a regular flight, additional security staff needs to be hired, for example. The expenses for a private charter flight, for example for a small plane to West Africa with two returnees and accompanying person-nel, can amount to estimated € 40,000 to € 60,000. If the return operation is carried out with a large charter plane (Airbus) carrying 30 to 40 returnees, the flight costs might amount to up to € 160,000, including accompanying personnel (about 100 to 120 people, paramedics, and interpreters etc.). In cases of joint European collective flights, a distribution of costs according to passenger seats is tested. Further expenses might incur if planned or booked flights have to be cancelled, for exam-ple, or because the travel documents are still missing at the time of departure (Interview at the Federal Police Central Bureau). It is not possible to provide an average amount for the costs of a return operation.52

Evaluation of return measures

A comprehensive evaluation of return measures on the basis of scientific standards has not been carried out in Germany yet. This includes voluntary return, return counselling or the implementation and efficiency of re-integration measures (Westphal/Behrensen 2006: 18). For this purpose the

50 The scope of the costs that have to be accounted for is stated in § 67 Residence Act.

51 Verdict by the first Senate of the Federal Administrative Court of June 14, 2005, file no. BVerwG 1 C

11.04. Please see also the verdict of March 14, 2006, file no. BVerwG 1 C 5.05.

52 The cited verdict by the Federal Administrative Court of June 14, 2006 (annot. 52) dealt with a notification

on expenses of more than € 10,000, the verdict of March 14, 2006 with a notification on DM 2,441. Heinhold

(2004a: 34) quotes an exemplary calculation of 1995 with more than DM 4,650.

44

background that led to the return decision, structural aspects (conditions in the country of origin and destination), individual factors (personal characteristics and social relations), political meas-ures and the sustainability of the return process would have to be investigated.53 However, there is no internationally valid standard return model which could serve as a basis for this evaluation (Dahinden 2006: 18). Internal evaluation measures are carried out in selected projects though, in order to be able to optimize the measures locally and in the destination countries. For that purpose returnees are visited in their destination countries as part of project trips, for example (Landes-hauptstadt München 2004: 17). In individual cases, small-scale evaluations are carried out as part of university theses (Keskin 2006). In addition, the projects funded by the ERF are evaluated, in accordance with the regulations by the European Commission54. The evaluation criteria are de-signed to research as to whether the projects correspond with the ERF programme, whether the objectives have been reached, whether the inputs have been translated into results, whether they are tailored to the target group’s needs and whether they result in sustainable and positive changes. According to these criteria, the ERF projects 2000 to 2003 have been positively evalu-ated (Paul/Sebastian 2005: 4; 2004: 4; Hardwig 2003: 4)55.

On the other hand, there is no comprehensive evaluation of forced return either. One of the rea-sons is, among others, the lack of sufficient numbers and data for all aspects. Regarding the in-strument of expulsion, Hailbronner and Häußler (2001: 228) point out, for example, that there is no available information on how many deportation orders have been contested and dismissed and how many of the persons to be deported are leaving voluntarily. Hence statements on the effi-ciency of this instrument are not possible.

What is deemed positive with regard to return?

The arguments that are produced in the discussion (cf. chapter 3.1) affirm that voluntary return is the more humane alternative to forced return. It offers the individual who is under a legal obligation to leave the country the possibility to return in dignity and opens the opportunity for returnees to contribute to their countries’ development. Moreover, it avoids potential controversies and costs which are incurred in forced return operations. The cost argument is sometimes being specified, for example when Bavaria states that every deported person under a legal obligation to leave the country would save an average of € 6,000 in social costs (Bayerisches Staatsministerium des In-nern 2003). Based on a review by chartered accountants, a return project for Serbian Roma in Es-sen potentially yielded medium-term savings of € 1.6 million for the municipality.56

53 See the modelling in Black et al. 2004 and Black/Gent 2004.

54 Decision 2000/596/EG by the Council of September 28, 2000 on the establishment of a European Refu-

gee Fund, art. 20 (ABl. L 252 of 06.10.2000, p. 12).

55 The evaluation is carried out by the Sociological Research Institute Göttingen. Researched are project

applications and reports. Further information is collected by interviewing project staff. After being released by

the European Commission, the reports are published on the website of the BAMF

(http://www.bamf.de/cln_042/nn_565196/DE/Integration/EFF/Evaluierung/evaluierung-

node.html__nnn=true).

56 Statements by Rudi Löffelsend (Caritas Essen) at the expert meeting “Exchanging experiences on volun-

tary return“, June 27-29, 2006 at the BAMF, see also BAMF 2006a: 29.

45

4.2 Voluntary return

For German policymaking, voluntary return is an important element of a refugee policy that re-spects human rights and that offers the opportunity of not having to remain in forced exile. Finan-cial assistance is hereby considered an important way of support in order to minimize the hardship in the return process (Beauftragte 2005: 481f.). In the expert literature it is also pointed out though that voluntary return serves the additional purpose of avoiding conflicts on forced return. Adminis-trative costs are reduced and other aspects are given priority, such as potential gains for the coun-tries of origin in the form of reconstruction opportunities (Ellermann 2006: 305f.; Black/Gent 2006: 19).

Motives for voluntary return

The question of motives for voluntary return has to be considered in a differentiated way. In the theoretical approaches that try to explain migration57 there is a variety of patterns of explanations. According to the neoclassical approach, the migrant acts solely according to cost-benefit calcula-tions and decides to return if he or she could not realize the original migration objectives, namely higher income, increase of human capital or a permanent residence title. As a consequence, the decision to return would be the result of a failed migration project. According to the approach of the “New Economics of Labour Migration“, however, the migrant decides to return if he or she has suc-cessfully realized the migration project, namely a higher income, saving money and sending remit-tances. The problem with both of these approaches to explain migration is that they reduce the motivation to economic factors.

Structural approaches, which are primarily supported by social scientists, assume that migrants relate their initial situation in their country of origin to the prospects in their country of destination and then decide, depending on the result, for or against migrating or re-migrating. In addition, power structures, traditions and values are considered determinants for the decision to return. Mi-grants might return, for example, because they have failed with their plans in the destination coun-try or because they don’t want to change their social context and prefer to lead a “better” life with the money saved in the country of origin. Another possibility might be the desire to spend one’s remaining years in the country of origin or to innovatively invest the accumulated capital and com-petences there (Currle 2006: 11f.). All structural approaches have in common that a whole pack-age of factors is relevant for the decision.

Newer sociological approaches, such as transnationalism, focus more intensely on the link be-tween country of origin and destination. According to them, there are dynamics between migration processes to and fro with the consequence that return is not the ultimate destination, but rather a part of a circular system of social and economic relationships. According to this approach, return is systematically prepared, for example by visits in the country of origin and by remittances. The de-cision to return is made at a point of time when sufficient resources in the destination country have been accumulated as well as the situation in the country of origin is positively assessed (Cassarino 2004: 261-263). In a similar manner, network theories combine the contexts of countries of origins and destinations, whereby the social networks do not need to be based on ethnic links. Cassarino (2004: 272-275) points out that the preparedness has a considerable impact on the decision to return. Sufficient time needs to be available in order to mobilize the resources and to assess the

57 See the comprehensive paper by Currle (2006) for further literature. In accordance with available litera-

ture, the points in this paragraph mainly refer to situations without the obligation to leave the country.

46

situation in the country of origin. In addition, the “preparedness“ is determined by the existence of the principle „willingness“ to return, as well as by the factual and current “readiness“. Cassarino differentiates three types depending on degree and scope of preparations. For being well pre-pared, there has been sufficient time to organize the return, which the author states with a mini-mum of four years. In a second category he clusters migrants who didn’t have enough time (six months up to three years), but who estimate the costs for a continued stay higher than those of return. Persons, who would have to depart because of an obligation to leave the country and would have no motivation to do so, wouldn’t be prepared at all though.

Extensive and up-to-date empirical research on return motivations of migrants in Germany, particu-larly on persons under the obligation to leave the country, is not available.

Obstacles to voluntary return

The obstacles to voluntary return are closely linked to the motives for the return decision and are to be found in the host country as well as in the country of origin. Limiting the focus on the group of persons under a legal obligation to leave the country, who are of special concern here, many of them have left their countries of origin for various reasons. If one supposes that the majority of them have indeed the wish to return, the continued relevance of the causes of their migration or flight is a central obstacle. In general, those causes are manifold and only the combination of vari-ous factors results in the final decision to migrate. Among the potential causes are military conflicts or civil wars, politically or religiously motivated persecution, lacking security, insufficient medical supply, lack of food, unemployment, no perspectives and limited educational opportunities. Only if the respective decisive factors out of this cluster of causes are abolished or at least reduced, the obstacles for the decision to return voluntarily cease to exist.

In addition, there might be further obstacles in the shape of “expectation barriers” which are cre-ated by relatives or the local community. If migration took place for reasons of poverty, the return is very much linked to social prestige as the returnees are expected to have accumulated visible wealth, which might also serve the benefit of the local community. This social pressure might be so strong that despite disappointment and lack of perspectives in Germany return is not an option (AWO Bremerhaven/Heimatgarten 2005: 9).

Another obstacle for return is rooted in the host country, namely the lack of a return option if the return project fails and the migrant does not succeed in establishing his livelihood in the country of origin. The existing foreigners’ law (§ 51 Par.1 Residence Act) decrees that the existing residence title expires if foreigners leave the country for a reason that is not only temporary or if he or she doesn’t return to Germany within six months (Beauftragte 2005: 482). It is true that this is not appli-cable for persons under a legal obligation to leave the country, as they do not have a residence title, but the mechanism is the same because they are refused to return (partly temporarily limited).

If the migrant resides in the host country for a longer period of time, other reasons might take ef-fect, such as local family ties or alienation from the country of origin or weakened social relation-ships thither (Beauftragte 2005: 152).

Organisation of voluntary return

Applications for assistance of voluntary return within the REAG/GARP Programme can be submit-ted via the authorities eligible to process applications, which are the foreign-resident authorities and social services of municipalities and district governments, the non-governmental organisations

47

(welfare organisations, expert counselling offices), the foreigners’ commissioners or the High Commissioner for Refugees of the United Nations (UNHCR) at IOM. The number of authorities eligible to process applications amounts to more than 2,000 in Germany. These authorities also serve as contact points for the persons willing to return in the course of the administrative proceed-ings. IOM usually does not have direct contact with them.

In addition, some state and local governments as well as non-governmental organisations among welfare organisations have created supplementary measures of assistance (Schmidt-Fink 2006: 25) that offer further counselling services, financial incentives, job training and vocational qualifica-tions to prepare the return as well as to assist social re-integration in the country of origin.

4.2.1 Return counselling and return assistance

Responsibility

A nation-wide responsibility for return counselling does not exist in Germany. Apart from the wel-fare organisations, non-governmental organisations and the authorities of municipalities and dis-tricts, Central Acceptance and Foreign-Resident Authorities (ZAAB) as well as repatriation centres offer these services (Westphal/Behrensen 2006: 4). To what extent the federal states and munici-palities get engaged in this often depends on the number and country of origin of the persons un-der a legal obligation to leave the country that live in the region. There is an increasing tendency that people turn to central return counselling offices as those offices serve as constant contact points in the long run and can draw from an ever increasing pool of gathered experience. Ham-burg, for example, has established a refugee centre for counselling and return in 200658. However, counselling centres run by non-governmental organisations are obviously more frequented by per-sons willing to return, as, according to their statements, it is easier for them to establish a trustful relationship with the staff there (Schmidt-Fink 2006: 26).

As a presentation of the whole range of counselling services goes beyond the scope of this study, three different approaches will be exemplarily introduced: one counselling service funded by a fed-eral state, one funded by a municipality as well as one funded by a private provider of social ser-vices.

Since 2003, the federal state Bavaria supports return and reintegration counselling via the Bavar-ian State Ministry for Labour, Social Affairs, Family and Women and finances return and reintegra-tion assistance. In order to provide this assistance in an effective way, Bavaria has set up three Central Return Counselling Offices (ZRB) for Northern, Southern and Western Bavaria which sup-plement the existing support structures for refugees with their services.59 The ZRB are financed by a group of sponsors of the independent social welfare work. The costs for the ZRB are largely cov-ered by monies from the European Refugee Fund (ERF) as well as by the federal state Bavaria. The target group consists mostly of beneficiaries in accordance with the Asylum Seekers Benefits

58 The Workers’ Welfare Association, Caritas and the German Red Cross have merged in form of a non-profit

limited company. Apart from government funds from the budget of the authority for Social Affairs, Family,

Health and Consumer Protection, which is responsible for the support of voluntary return in Hamburg, the

refugee centre also received monies from the European Refugee Fund.

59 The ZRB Northern Bavaria in Nuremberg (http://www.zrb-nordbayern.de), the ZRB Southern Bavaria in

Augsburg (www.zrb-suedbayern.de) and the ZRB Western Bavaria in Würzburg (http://www.zrb-

westbayern.de) .

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Act, namely asylum seekers, war and civil war refugees, foreigners with a toleration certificate and other foreigners under a legal obligation to leave the country. But also ethnic German immigrants, persons entitled to asylum, contingent refugees and other foreign migrants can be supported if they are beneficiaries of social contributions60. The objective of the counselling services is return-ing while preserving the dignity. To achieve this, the ZRB offer tangible assistance, apart from the counselling service, and try to ensure the successful reintegration by setting up support structures in the country of origin.

The Office for Return Assistance that has been operated since 1996 by the Office for Housing and Migration, under the auspices of the social department of the municipality of Munich, has a similar agenda. The office is in charge of the project “Coming Home – Assistance for Return and Recon-struction” which is financed by the ERF, the federal state Bavaria and the municipality. Similar to those mentioned above, the project’s objectives are a humane return and the sustainable reinte-gration of refugees and asylum seekers. In addition, this project particularly focuses on especially vulnerable groups, such as members of minorities, single mothers, unaccompanied refugee chil-dren, traumatized persons as well as elderly, sick or handicapped persons (Landeshauptstadt München 2005: 4).

Within the range of projects that are carried out by non-governmental organisations regarding re-turn counselling and return assistance, “Home Garden” is one of the most ambitious ones61. It was created by an initiative by the district association of the Workers’ Welfare Association (AWO) Bremerhaven and is now operated by the professional association “AWO International e.V.”. The project seeks to achieve the humanitarian reintegration of the migrants in their countries of origin by continuing the support services in the home country, too (see below). For this purpose several representations have been set up abroad, in addition to the counselling offices in Germany62. At the moment, the project focuses on the countries of the Western Balkans, the Commonwealth of Independent States, Northern Iraq and Turkey. “Home Garden” is financed by ERF and partly uses REAG/GARP funds for its projects. In addition, it negotiates with the respective municipalities in order to secure (co)funding for the return (Tegeler 2006: 33).63 The target groups of “Home Gar-den” are elderly, handicapped and traumatized refugees as well as unaccompanied minors.

Timing of the return counselling

There is no regulation as to when counselling regarding voluntary return should be employed. However, there is widespread agreement that it should be brought to the returnees’ attention as early as possible. The earlier a person willing to return learns about these services, the more in-tensively he or she can use these offers and prepare the return (e.g. getting in touch with relatives and/or relief organisations in the country of origin, purchase of required objects to take, clearing the apartment and, if need be, cancellation of banking arrangement and work contract, clarifying po-tential claims from social security or tax, health care) (Landeshauptstadt München 2004: 5). As most applicants are persons whose asylum application has been rejected or is pending, the timing

60 http://www.stmas.bayern.de/fibel/sf_r058.htm.

61 http://www.heimatgarten.de.

62 In Berlin, Bielefeld, Bremerhaven, Cuxhaven, Frankfurt am Main and Sassnitz.

63 Statements by Volker Tegeler (AWO Bremerhaven) at the Expert Meeting “Exchanging experiences on

voluntary return”, June 27-29, 2006 at the BAMF, see also BAMF 2006a: 33.

49

has to be related to the asylum application proceedings. However, there is no standardized way of dealing with this among the stakeholders. Westphal/Behrensen (2006: 16) don’t consider this a differing methodological approach between the providers, but rather a political decision at what point of time they want to get involved.

Procedure of return counselling

As a consequence of the wide range of stakeholders in voluntary return, there is no nation-wide standardized form of counselling. However, some similarities regarding form and content can be identified. The prime target group are asylum applicants whose asylum application has been re-jected, and those whose asylum decision is still pending. Persons seeking advice are usually counselled individually, with some providers particularly emphasizing the special importance of individually tailored counselling. This takes the returnee’s personality as well as the specific situa-tion in the country of origin into consideration.64 As another common feature, the counselling regu-larly results in direct application or at least provision of information about the REAG/GARP Pro-gramme, which is supplemented by other aspects, such as (further) vocational qualification, adult education as well as support for business start-ups or access to micro credits (West-phal/Behrensen 2006: 15).

The procedures differ to that effect as to whether the return counselling is specifically directed or if the counselling is regarded as a longer process through which the persons who seek advice re-ceive a broad counselling on their general perspectives in Germany and their country of origin. In addition, some providers offer specific advice which focuses on certain countries or groups (e.g. traumatized people, sick people or refugees under age). The services vary, but there is a trend to a need-based selection of offers. Moreover, there are differences that result from the living situation of the potential returnee and their respective legal asylum status, for example if the counselling is carried out in a government-funded reception centre or a repatriation centre or outside of both (Westphal/Behrensen 2006: 16). In addition, not all providers appear at the beginning of the coun-selling process. The above-mentioned example “Home Garden” is only activated when the coun-selling is already ongoing, in order to be able to do – according to their self-portrayal – a precisely accurate research on the situation in the country of origin, to negotiate with the respective munici-palities about financial assistance, to logistically organise and carry out the return.65

Categorizing the existing services of return counselling and return assistance with regard to their procedure and target groups, an integrated, a targeted as well as a mixed version of both can be identified. The integrated return counselling is part of a migration counselling with open outcome and can therefore be considered part of classic refugee social work. This type of assistance usually lacks elaborate concepts so that the support is normally limited to the facilitation of funds from REAG/GARP. In most cases, there are no services for support and assistance in the country of origin (Westphal/Behrensen 2006: 5f.). The targeted return counselling, however, features services that are specified according to countries of origin, ethnic groups and particular problematic situa-tions. The support measures are individually tailored for the respective migrant. Apart from finan-cial support for travel and transport expenses as well as financial start-up assistance, the support also includes programmes for economic reintegration, further education, vocational adjustment and

64 For example the project of a country-tutorial partnership with West Africa (AWO Bremerhaven 2005).

65 Statements by Volker Tegeler (AWO Bremerhaven) at the expert meeting “Exchanging experiences on

voluntary return”, June 27-29, 2006 at the BAMF.

50

business start-ups (Westphal/Behrensen 2006: 7).66 Mixed forms of those counselling services can be considered a third category, whereby the degree of how much they are targeted can vary con-siderably. Westphal and Behrensen found in their analysis of German return counselling that there is a trend to more and more targeted return counselling and return assistance. In their judgement, this development should be critically monitored as perhaps the government’s interest in enforcing the obligation to leave the country and to save money might replace the humanitarian aspirations of the cooperating welfare organisations (Westphal/Behrensen 2006: 18).

Counselling and assistance after the return has taken place

Regarding the services that are offered locally after the return has taken place, no general struc-tures can be identified (Westphal/Behrensen 2006: 16). They depend on the design of the overall project. The project “Home Garden”, for example, is very strongly represented in the counselled returnees’ countries of origin and operates representations in Bosnia, Croatia, Serbia, the Kosovo, Romania, Bulgaria, Poland, Ukraine, Russia, Georgia, Azerbaijan, Armenia, Nigeria, Iran, Sri Lanka and Vietnam. Depending on the local implementation of the projects there, the foreign rep-resentations provide, among others, two years of counselling following the return and accompany the reintegration process of the returnee. For “Home Garden”, the presence on the ground is deci-sive for the success of this reintegration. In order to be able to implement the on-site counselling in accordance with the local conditions, local staff is employed. Another aspect of this type of coun-selling is the administration of the granted funds in consultation with the returnees. By gradually paying out the money in several instalments, malpractice shall be prevented and a sustainable investment of the funds shall be promoted (BAMF 2006a: 33).67 A number of projects of “Home Garden” and other providers show clear links to the development aid context as they do not focus on the individual returnee (micro level), but consider the meso or macro level. Apart from increased sustainability for the returnee (cf. chapter 4.2.3. below), such a strategy also results in positive consequences for the returnee’s immediate and broader social environment. The projects for the reintegration of school children in Afghanistan which are funded by the BAMF (and carried out by IOM) or the establishment of a transition centre in Kosovo (cf. chapter 3.2) also belong to this con-text. Following a similar strategy, the Caritas of the diocese Essen has carried out a “Social Envi-ronment Programme” for returning Roma in Macedonia, which was funded by the federal state North Rhine-Westphalia (Löffelsend 2006).

4.2.2 Information campaigns

Being informed is a decisive factor in the decision to return. The potentially interested persons need to be directly addressed, which partly happens via word-of-mouth recommendation (Keskin 2006: 61). In order to improve the information flow on return programmes, the BAMF established the Centre for the Provision of Information on Assisted Return (ZIRF) in 2003. It is ZIRF’s task to

66 Opponents of assisted voluntary return criticize such a strategy, as it does not include counselling on per-

spectives to stay (Berthold 2005: 59).

67 Opponents of this form of return counselling also criticize the limitation of counselling after the return to

only two years with the argument that elderly and sick persons who are also target groups of „Home Gar-

den“, are often not able to live on their own after this time has elapsed. Allegedly, this strategy is based on a

pure cost-benefit calculation which is only aimed at saving costs for social benefits for the participating mu-

nicipalities (Berthold 2005: 60).

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process and disseminate data and information that has been collected through contacts and coop-eration or provided by partners in return support. Among others, this concerns information on indi-vidual support schemes, return possibilities as well as information on the situation in the countries of origin (e.g. health care, labour market, housing market). In order to provide access to this infor-mation, an online database is under construction which will contain, once it is completed, informa-tion on return measures on the German, European and international level, information on the coun-tries of origin, as well as contact information on point persons and counselling offices, among other things (Moritz 2003)68.

In 2006 the BAMF carried out the project ZIRF Counselling which should facilitate an even more targeted and individually tailored counselling on return assistance. The preceding project to ZIRF Counselling was AVRIC (Assisted Voluntary Return through Intensive Counselling) operated by IOM in Bavaria from August 2004 until July 2005. This project was carried out in close cooperation with the Central Return Counselling Offices (ZRB) and was financed by the European Refugee Fund and the federal state Bavaria69. ZIRF Counselling offers, on the one hand, country-specific information (Country Fact Sheets) that contain information on the labour market, health care, the housing market, social concerns and similar issues. On the other hand, individual requests by per-sons who are interested in returning can be processed via ZIRF Counselling. The information is freely accessible via the ZIRF database. The costs for the Country Fact Sheets are covered by the federal government, whereas the expenses for individual requests are to the account of the federal states. In 2006, a total number of 250 individual requests were submitted as part of the project. These requests mainly referred to the Kosovo, Serbia, Afghanistan, Iraq and Turkey, with the main emphasis on the areas health care and labour market. The actual demand fell short of the expecta-tions which might be connected to the fact that the project was not very widely known among the authorities for return support that are entitled to applications, and a potential misjudgement of al-leged costs for the providers. The potential impact that the existence of ZIRF Counselling has on interested persons’ willingness to return is planned to be evaluated by IOM.

To increase the level of awareness of the programme REAG/GARP as well as the platform ZIRF, BAMF and IOM have carried out information campaigns in the last years. All authorities entitled to applications to REAG/GARP were the target groups of these campaigns. Apart from mailing infor-mation material, brochures, flyers, posters and application forms, road shows were organised. In 2005, for example, 16 road shows with almost 500 participants in total were carried out in eight federal states. 70 The number of participants ranged between 14 and 60 persons respectively. The costs for this campaign stood at €167,000. In 2006 no road show could be carried out as a conse-quence of budget cuts. Complementing the general events, the BAMF, in cooperation with individ-ual federal states, carried out special events on Afghanistan in 2004 and 2006.

In view of decreasing numbers of voluntary return, alternative approaches are also applied. In case of negative decisions in the asylum procedure, information sheets on potential return support and return assistance in several language are enclosed to the rejection letter (Praschma 2006: 20). It has not been evaluated yet if these sheets achieve their purpose. Representatives of IOM are ex-pressing their concern that asylum seekers might not perceive this information or perhaps might even ignore it as it reaches them in the emotionally charged moment of receiving the rejection let-

68 http://zirf.bamf.de.

69 http://www.iom.int/germany/_GER/i_avric.htm.

70 The events took place in Mainz, Trier, Lüneburg, Oldenburg, Hamburg, Neumünster, Güstrow, Potsdam,

Dresden, Kassel, Frankfurt, Nuremberg, Ludwigsburg, Karlsruhe, Freiburg and Sigmaringen.

52

ter (Interview IOM 2006). This leads to the question at what point in the process an early and use-ful counselling should actually set in.

Information in the mother tongue

The provided information is usually available in the various languages of the returnees’ main coun-tries of origin. This is complemented by counsellors that are fluent in the respective mother tongue who are employed by various providers. Already in 2001 the Independent Commission on Immigra-tion has pointed out that not only in-depth knowledge on the countries of origin is a necessary re-quirement of return counselling. To a greater degree, a cultural and mental familiarity with those countries is needed, as “nuances” might be decisive in individual cases (UKZU 2001: 157). For that reason counsellors who are fluent in the respective mother tongue are employed by providers in Germany as well as on site in the countries of origin. 71

Differences in services for legally and illegally resident migrants

The former REAG/GARP Programme with its special focus on Yugoslavia and the Kosovo has expired at the end of 2001. To replace it, a new programme was launched which was extended and standardized together with a number of special programmes72. It was operated in this form until 2005 and included as “categories of persons entitled for application of support” for REAG/GARP funds recognized refugees without means, foreigners with residence for political and humanitarian reasons or in accordance with international law, former Vietnamese contract workers, victims of forced prostitution and human trafficking, persons in ongoing asylum procedures, inde-pendently of the stage of the asylum procedure, rejected asylum applicants, persons from Serbia and Montenegro as well as from Kosovo, if the latter had entered Germany before December 12, 2002. The reform of the programme also included illegally resident persons, provided that they disclosed their status to the authorities and obtained a border crossing certificate from the foreign-resident authority (Sachverständigenrat 2004: 356). In those cases, it was at the foreign-resident authorities’ discretion whether they issued this border crossing certificate or decreed an expulsion order and had the foreigner expelled. If the persons in question obtained a border crossing certifi-cate, they were only entitled to a travel cost allowance in accordance with REAG, but not to reset-tlement funds from GARP (IOM 2003: 4; 2005: 4).

Following a decision by the Federal Minister of the Interior together with the state ministers of the interior, the categories of persons entitled to application of support within the REAG/GARP Pro-gramme were extended for 2006. Now, those who are entitled to apply include foreigners who only have a toleration certificate, but have not applied for asylum, and those who want to enter Ger-many via an airport and the permit is still pending or has been rejected. The regulations for illegally resident persons have not been adopted in the former wording, but this category of persons can be found under the persons who are enforceably under a legal obligation to leave the country, but for

71 For example with “Coming Home“ in Munich (Landeshauptstadt München 2005: 4) or with “Home Garden“.

72 Support programmes for sick and elderly persons, potential financial and medical assistance in the country

of origin, vocational reintegration training and further education schemes that might also include the local

population in the country of origin (IOM 2004: 154).

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whom the notification of deportation cannot be executed or cannot be executed anymore. 73 The lack of means that had to be proved in the previous programme has now been redefined to an enti-tlement to benefits in accordance with § 1 Par. 1 AsylbLG (IOM 2006: 6). However, the applicant’s lack of means remains unaffected and continues to be a mandatory precondition to obtain assis-tance. It is taken as granted if benefits in accordance with AsylbLG, the Social Security Statutes (SGB II and XII) or the Child and Youth Services Act (SGB VIII) are obtained. Vietnamese contract workers are no longer mentioned and the deadline regulation for the mentioned countries of origin has been nullified. Persons are excluded from GARP resettlement funds if the applicant has been expelled, as a rule or compulsory in accordance with § 53 (forced expulsion) or § 54 AufenthG (ex-pulsion as a rule), or if it can be assumed that the entry of German territory had the purpose of obtaining return assistance (IOM 2006: 7).

Persons who are not supported by REAG/GARP might still be supported for voluntary return. In those cases, SMAP (Special Migrants Assistance Programme) by IOM is available. This service primarily includes the provision of information on low-priced one-way airline tickets and also ap-plies to emigrants, foreign workers, students as well as accompanying persons of REAG and GARP-entitled returnees. The expenses for the flight ticket have to be covered either by the re-turnee himself – before the return – or by “another provider that absorbs the costs (e.g. Social Se-curity Office, welfare organisation)” (IOM/BAMF 2005: 11; Hemingway/Beckers 2003: 152).74

4.2.3 Incentives for voluntary return

For the promotion of voluntary return, the receiving countries are regularly creating financial incen-tives. The respective amounts of these financial incentives are not totally uncontroversial, as they should, on the one hand, form the basis for an independent life in the country of origin, but should not, on the other hand, result in fraudulent use and incentives for further migration inflows (Lande-shauptstadt München 2005: 11).

The basis for this kind of assistance is the REAG/GARP Programme. The REAG return support includes, for one thing, absorption of travel costs. In case that means of public transportation (rail-way, coach, and airplane) are used, the travel expenses are fully covered (50% by the federal gov-ernment and 50% by the federal state in which the returnee resided). If the private car is used, a flat rate for petrol is paid which stands at € 205 per vehicle. In addition, there is a travel allowance in accordance with REAG. In this travel allowance, the formerly separate payments (travel allow-ance, luggage costs, pocket money) are pooled. Each adult and youth receives € 100, each child under the age of twelve receives € 50.

73 With this a situation should be prevented in which the foreigner to be deported waits until the very last

minute to submit the application in order to delay the deportation procedures.

74 Other persons, such as German employees or students who want to get work experience abroad, can also

use this service. Between 2000 and 2005, a total number of 4,708 persons have left the country with the

assistance of this service.

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Table 9: GARP Resettlement assistance – List of countries 2006

Quelle: IOM 2006: 5

Only persons from so-called “migration-politically significant countries of origin” can benefit from GARP resettlement assistance (IOM 2006: 4). The exact amount of assistance depends on the returnee’s country of origin and is annually determined in a list of countries compiled by the Fed-eral Ministry of the Interior and the federal states, depending on the current political developments (Schröder 2006: 9). The list includes a ranking of three groups which is illustrated in the following example for the year 2006. This also shows, by way of example, a shift of the focus regarding the Kosovo (table 9).

Apart from assistance out of the REAG/GARP Programme, some federal states, districts and mu-nicipalities provide additional financial support, for example Berlin and Hamburg (IOM 2004: 154-158; Entenmann 2002: 18). The Free Hanseatic City of Hamburg, for example, was the first federal

Group

Amount of support

(50% financed by

national and federal level

respectively)

* until 30.06.2006: all minorities from Kosovo from 01.07.2006: members of the minorities Serbs and Roma** until 30.06.2006: except all minorities from Kosovo from 01.07.2006: except from members of the minorities of the Serbs and Roma from Kosovo

ArmeniaAzerbaijanGeorgiaIranMacedoniaRussian FederationSerbia and Montenegro**Sri LankaSyriaTurkeyUkraineBelarus

250,00 €

per adult and youth

125,00 €

per child up to 12 years old

750,00 € maximum per family

200,00 €

per adult and youth

100,00 €


600,00 € maximum per family

EgyptEthiopiaAngolaAlgeriaBangladeshBurkina FasoChinaCôte D'IvoireGuineaDR CongoEritreaGhana

Group 3

Group 2

IndiaJordanCameroonLebanonLiberiaMoroccoNigeriaPakistanSierra LeoneSomaliaTogoVietnam

Supported nationalities

Group 1 500,00 €

per adult and youth

250,00 €


1.500,00 € maximum per family

AfghanistanIraqMinorities from Kosovo*

55

state that started with the repatriation of Afghans in 2005 and pays € 1,000 per person (€ 4,000 per family maximum) additional support in case they return voluntarily. The federal state Rhineland Palatinate provided € 5 million for municipalities to support the return of mostly minorities from Kosovo. The funds can also be used to overcome deportation barriers or to establish return coun-selling services (by the Maltese). There is no fixed maximum amount for individual financial sup-port which resulted in considerable media coverage of one exceptional case in early 2006, where € 5,000 had been paid. On average, € 1,000 per person is paid out of this programme in Rhineland Palatinate. The federal state considers these expenses as covered by multiple savings of social benefits (BMI 2006b: 408f.).

This system of creating additional incentives is also supported by other providers of return counsel-ling. Beside the REAG/GARP funds, they provide further financial assistance to secure a living and in individual emergency situations. In addition, they also offer adult education and vocational train-ing schemes in Germany or in the country of origin as an incentive for return.

However, the question is frequently raised as to whether the existing system of incentives is suffi-cient and results in the intended consequences. In addition, it is addressed if in view of decreasing numbers of voluntary returnees the paid amounts in REAG/GARP should be increased or differ-ently staggered. However, the financial assistance can only be a small incentive anyway. Com-pared to the investments that many of the migrants have shouldered to reach Europe, these are not – and definitely shouldn’t be – in any relation to financial assistance to return. On the opposite, experts clearly agree that the amount of the financial assistance is only a secondary aspect75. In addition to questions regarding the motivation for a decision to return (see chapter 4.2 above), per-sonal, family-related and social aspects play a role (Dahinden 2006: 19f.). Accordingly, the ques-tion is raised as to whether the objective of the incentive instruments is the right one if it is primarily designed to meet standards of domestic policy concerns (e.g. budget situation, public debate). Migration causes and the development situation in the country of origin are hardly or insufficiently taken into consideration.76 Like this, according to Dahinden’s assumption (2006: 20), the policy fails to encourage the will to return as primarily those will use the offer of fast and efficient return who intended to return anyway. Assuming though that a considerable number of refugees indeed has the wish to return to their country of origin (BAMF 2006a: 71)77, additional incentives need to be created which are adapted to the local situation. Such solutions, which should be individually tailored as much as possible, could consist, for example, of local support for the education system

75 A non-representative survey of returnees as part of the evaluation of ERF projects in 2003 also concluded

that the material incentives for the decision to return were playing a minor role (Paul/Sebastian 2005: 109).

76 For example, statements by Klaus Dünnhaupt (AGEF) at the expert meeting “Exchanging experiences on

voluntary return“, June 27-29, 2006 at the BAMF.

77 Müller (1995: 597f.) reports results of a survey on Bosnian refugees that was commissioned by the Aus-

trian Ministry of the Interior, in which 88.1% of the interviewees agreed that they are, in principle, willing to

return, despite the traumatic experience of war, and only 5.6% disagreed. Breaking the results down accord-

ing to age groups, those persons from the age of 45 and older stated the strongest will to return, whereas

those persons between 25 and 35 years showed the weakest will to return. In the analysis of the will to re-

turn, the distance to the conflict as well as the legal situation of the residence has to be considered though.

In view of the German situation, the former Commissioner of the German Federal Government for Migration,

Integration and Refugees has pointed out cases where obtaining the right of residence and the feeling of

security connected with that has psychologically put the refugees in a position to seriously consider a return

to Bosnia and Herzegovina (Beauftragte 2005: 482).

56

or for medical care, or even for infrastructure. As a result of the exchange of experiences on volun-tary return carried out by the BAMF in June 2006 it was therefore concluded that the utilization of funds rather than the actual amount should be a decisive aspect in future (BAMF 2006a: 77).

Sustainability of return

In the context of a discussion of the sustainability of return, the first question that needs to be asked is what sustainability generally means. Black et al. (2006: 11) point out that the refugees’ answer to this question might be different from that of providers of projects and that of policymak-ers. Whereas sustainability, simply put, primarily means that the returnee remains in his country of origin after returning there and doesn’t leave again, Black at al. (2004: 39) include the situation in the country of origin in their suggested definition. According to that, the return is sustainable for the individual returnee if his socio-economic status and his fear of violence and persecution has not become worse one year after returning, compared to the situation at the time of the return itself. Regarding the country of origin as a whole, return migration is considered sustainable if one year after the return process has been concluded the socio-economic conditions and the level of vio-lence and persecution have not increased. However, this might generally only be achieved if, apart from sufficient security, the conditions in the countries of origin offer the respective opportunities such as jobs, housing, public infrastructure, education and security (Ghosh 2000: 207; Volckens 2005: 79)78. If those opportunities don’t exist, the presented return options might appear not very realistic, with the consequence that the offer is either fully declined or that probably the country of origin will be left again at a later point.

Consequently, the question of how sustainability of return can be supported is closely linked to the aspects of counselling and incentives. On the one hand, the information provided in the counselling has to be reliable, extensive and credible (Ghosh 2000: 211). However, regarding information pro-vided by government authorities, one needs to consider that refugees think it less credible than information provided by NGOs (Ghosh 2000: 212; BAMF 2006a: 77). In addition, the counselling should be individually tailored to the actual circumstances in the countries of origin. To do that, counsellors should be trained, if need be, locally in the returnees’ countries of origin.79 Another possibility would be “look & see” trips by returnees to their country of origin, in order to gain first-hand impressions and convey those to their fellow countrymen in Germany. This option is only carried out as part of individual projects (Landeshauptstadt München 2005: 26f.). Regarding per-sons under a legal obligation to leave the country, this option is not applicable.

There are hardly any studies on the sustainability of return. But even the existing findings show clearly that the situations differ according to the context of origin. In addition, it can apparently not be assumed that the reintegration process in the country of origin takes place immediately after the return or at least fairly quickly. In practice, this process is in some cases more difficult than the in-tegration processes in the former receiving country (Rogge 1994: 34). In the expert literature, doubts are raised, for example, concerning the sustainability of the return to Bosnia during the years 2000 to 2003. In those cases, the returnees came back to communities that had not been ethnically reintegrated. As a consequence and due to conflicts, they sold their property shortly after

78 A survey of returnees in Bosnia-Herzegovina showed that work played the decisive role for the sustainabil-

ity of reintegration (Keskin 2006: 83).

79 For example, statements by Klaus Dünnhaupt (AGEF) at the expert meeting “Exchanging experiences on

voluntary return“, June 27-29, 2006 at the BAMF.

57

returning and moved on (Barkan 2004: 64, 75). For Croatia, there is also evidence for cases in which returnees revived ethnic conflicts (Blitz 2005). Apart from problems of this kind, returning migrants who have been well equipped with financial assistance might also arouse the local popu-lation’s envy (Schneider 2006: 19).

Various projects that are carried out in Germany tie on these considerations. Together with the state government North Rhine-Westphalia, the Caritas of the diocese Essen, for example, carried out a reintegration project during the 1990s that included, apart from the return of 600 Roma to Skopje, a “Social Environment Programme” which aimed at about 30,000 inhabitants of the Roma district there. Among other things, the programme consisted of the following components: setting up an office for family counselling, opening of a children and youth centre, support for an evening school, school book programmes, vocational training courses, foundation of an outpatient clinic for medical care for people without insurance, cooperation agreements with local hospitals for medical care for people without insurance, sport programmes, courses for women who are pregnant for the first time for pregnancy and prenatal classes, and construction of a children’s playground. To im-plement the project, local Macedonian expert personnel was recruited and trained. These experts were equipped with specific knowledge of the local conditions that is needed for a successful rein-tegration. The objective of this and other follow-up programmes was the integration of the Roma in the local community and the establishment of a long-term perspective of staying in the country. Follow-up projects by the Caritas were geared to work with children and youth, vocational training, foundation and development of self-organisations and interethnic dialogue. Another feature of these projects is their long-term perspective which is in contrast to a number of other projects with a short-term perspective only. An annual counting by the Caritas showed that 80% of the Roma that returned at that time are still living there (Löffelsend 2006).

A similar approach exists for the projects carried out by “Home Garden” (cf. chapter 4.2.1). They also include the provision of information – and in exceptional cases of funds – for micro credits in cooperation with the foundation Support for Citizens, “Solidarity”, and the Bank für Sozialwirtschaft. As part of these projects, small credits are granted which are subsidized by the European Refugee Fund and which are, in some cases, issued without the securities that are usually required by banks. By this, responsibility, individual initiative and sustainability are to be strengthened. The background is to foster the development of a business idea, and to promote the acquisition of en-trepreneurial qualifications and managerial knowledge before the return. This project is comple-mented by counselling and assisting after the return (Stiftung Bürgerhilfe 2005). A survey of re-turnees to Bosnia from this project resulted in a primarily positive evaluation of this concept (Paul/Sebastian 2005: 111f.).

Apart from these extensive projects, there are a number of smaller initiatives with a specific focus, such as the project for the reintegration of Afghan school children which is funded by the BAMF and carried out by IOM. Beside the reintegration of children from various EU countries, the main focus is on the further vocational training of local teachers, in order to equip them with psycho-social and psychological expertise which is needed for teaching returnee children. By this, perma-nent and qualified structures are to be established which can be continued after the project has expired and continue to be available for returning children.

58

4.3 Forced return

Main obstacles to implementing forced return measures

Similar to other countries, there is a discrepancy in Germany between the number of foreign na-tionals who are to be returned to their home countries, on the one hand, and the number of per-sons who are actually removed by means of forced return measures, on the other. This “deporta-tion gap” (Ellermann 2006: 294) is not due to a lack of legal instruments, but to difficulties in actu-ally implementing them. These obstacles can be grouped into several problem areas (Hailbronner 2005a: 408f.).

For one thing, some of the migrants who are under a legal obligation to leave the country are un-willing to do so and refuse to cooperate with the authorities. This refusal to cooperate can entail the following types of behaviour:

- destroying and/or concealing travel and identification documents, - taking refuge in churches offering “church asylum”, - going underground, - making false statements about one’s nationality, - refusing to cooperate with the authorities for the purpose of determining nationality, - resisting identification or obstructing efforts to obtain documents from embassies or

consulates, - asserting facts and circumstances which cast doubt on the legitimacy of return

measures, immediately before the implementation of respective measures, - inflicting injuries on oneself or threatening suicide, - active resistance during return measures, e.g. on the way to or aboard an airplane,

in order to prompt pilots to refuse transport.

For another thing, cooperation has proved to be difficult with some of the embassies or consulates representing the home countries of third-country nationals who are under a legal obligation to leave the country. The difficulties encountered here comprise:

- slow processing of requests for issuing travel documents, - administrative proceedings for determining nationality can take several years, - insisting that persons who are presumed to have nationality of a certain country are

recognised by one or several compatriots in home country, - demanding further documents, even though nationality has already been estab-

lished (e.g. declaration that return to home country is voluntary), - refusing recognition as fellow citizen, - charging high fees, - refusing to issue travel documents, even though the person concerned has agreed

to leave country voluntarily, - refusing to recognise replacement documents that have already been issued, - refusal of immigration authorities in countries of origin to cooperate with federal au-

thorities.

Furthermore, difficulties can also arise from a negative public perception of return measures, espe-cially in cases where respective measures encounter opposition or criticism at the local level (Ellermann 2006; cf. Chapter 3.1).

These obstacles to return measures are regularly discussed in the “Working Group Removal” (AG Rück), which was set up by the Conference of Interior Ministers (IMK) in 1993 for the cooperation

59

between federal and state authorities.80 Within the working group and its subcommittees, experts can exchange experiences, develop solutions and proposals for improving administrative proceed-ings, as well as monitor decisions taken by the IMK and coordinate the cooperation with other au-thorities (Martini-Emden 2000).

Responsible authorities

The main responsibility for forced return measures rests with local and regional foreign-resident authorities. However, there are some organisational differences between the various state execu-tives. In some German states, local foreign-resident authorities are responsible for conducting re-turn procedures in their entirety. In other federal states, however, administrative proceedings are conducted by centralised foreign-resident authorities (ZAB). For example, the state of Baden-Württemberg, already in the year 1989, transferred responsibilities for return measures from 120 local foreign-resident authorities (municipalities and districts) to four central foreign-resident au-thorities (ZAB). This centralisation aims at achieving an increase in return numbers by transferring responsibilities to specialised authorities. A side effect of this measure has been that, in compari-son to local authorities, the centralised ZAB authorities encounter far less opposition and political pressure at the local level (e.g. by local politicians, church representatives, local newspapers) dur-ing the implementation of return measures. In the view of Ellermann, this organisational structure enables these centralised authorities to implement return measures even against public opposition (Ellemann 2006: 303-305; Ellermann 2005: 1231f.). In a similar vein, the state of North-Rhine Westphalia in 2005 also transferred responsibilities for obtaining replacement travel documents and implementing deportation measures to central foreign-resident authorities.81 The state of Bava-ria has pooled respective responsibilities in two centralised repatriation authorities only (for North-ern and Southern Bavaria).82 Some other federal states have set up separate clearing centres with centralised responsibilities for obtaining replacement travel documents, these centres being lo-cated at specialised foreign-resident authorities.83

80 The State Ministry of the Interior of North-Rhine Westphalia functions as the administrative centre of the

working group.

81 They are located in Bielefeld, Dortmund, Duesseldorf and Cologne.

82 Within the state executive, they are located at the level of administrative regions, i.e. the medium level of

administrative structure. The regional government of Middle Franconia is responsible for the administrative

regions of Upper, Lower and Middle Franconia as well as Upper Palatinate, whereas the regional govern-

ment of Upper Bavaria is responsible for the administrative regions of Upper and Lower Bavaria as well as

Swabia. In the state of Hesse, one central ZAB authority each has been set up for the administrative regions

of Kassel, Darmstadt and Giessen. In the state of Saxony Anhalt, the foreign-resident authorities in Halber-

stadt hold centralised responsibilities for return measures. In the state of Brandenburg, this responsibility lies

with the central ZAB authority in Eisenhüttenstadt. The city state of Berlin, on the other hand, has not set up

separate foreign-resident authorities at all, but has transferred respective responsibilities to public order of-

fices in individual municipal districts. For further details on administrative structures in federal states, cf.

Grimm 2004b.

83 The clearing centre of the municipality of Trier (for obtaining replacement travel documents and imple-

menting deportation by air) also functions as the administrative centre of the national conference of clearing

centres for “Replacement Documents”.

60

An exception is formed by proceedings in accordance with § 58a Residence Act, which have been introduced as part of the new Residence Act. These regulations have transferred responsibilities for deportations to the supreme state authorities and also allow the participation of the Federal Ministry of the Interior (BMI).

The implementation of return measures is regulated by respective state police legislation, with the exception of regulations contained in the federal Residence Act.84 State police authorities are re-sponsible for the transport of persons who are subject to return measures up to the transfer point where federal police authorities take over responsibilities for transferring foreign residents across national borders. As for the delineation of responsibilities between state police and local foreign-resident authorities, there seem to be occasional differences of opinion. Taking the state of Thurin-gia as an example, Seel (2001) points out that return procedures continue to be, at least in part, divergent, as not all details of respective proceedings have been harmonised. In addition, the Fed-eral Office for Migration and Refugees (BAMF) is involved in return measures and transfers that are part of Dublin-II procedures.

Implementing forced return measures: options and limitations

In order to prevent people from obstructing return measures, current legal regulations include the possibility of, for example, issuing deportation notifications without a fixed date, not issuing any notification before deportations, or using the instrument of detention for the purpose of deportation (cf. Chapter 4.3.3).

Whereas the former Foreigners Act differentiated between deportation bans (§ 51 Foreigners Act) and obstacles to deportation (§ 53 Foreigners Act), the new Residence Act has summarised re-spective regulations under the heading “deportation bans”. If an expulsion order is issued, authori-ties are obliged to review if deportation bans (pursuant to § 60 Residence Act) apply in this particu-lar case. Mandatory deportation bans resulting from the Convention relating to the Status of Refu-gees (Geneva Convention) are then reviewed by BAMF (§ 60 Par. 1 Residence Act), which is also responsible for determining in asylum procedure if other obstacles to deportation apply for certain countries of destination. For cases outside asylum procedure, these responsibilities are carried out by foreign-resident authorities which, however, have to include BAMF in administrative proceed-ings (§ 72 Par. 2 Residence Act).

Mandatory deportation bans result from persecution because of race, religion, nationality, mem-bership of a particular social group (which also applies to gender-specific persecution), as well as political persecution.

Deportation bans also apply if a person is in danger of being subjected to torture, or in concrete danger of being executed85, as well as in cases where deportation bans apply in accordance with

84 If the BMI takes over responsibilities in accordance with § 58a Residence Act, federal police authorities

implement deportation orders without any participation of state police authorities (§ 58a Par. 2 S. 3 Resi-

dence Act).

85 According to Lehnguth et al. (1998: 53f.), there has to be an individual and concrete danger in cases of

torture or execution, whereas no general deportation ban exists for countries who have the death penalty.

Furthermore, victims of torture who are not refugees in the legal sense can be subject to deportation if tor-

ture is not used by the state, torture is punishable or ,at least formally, liable to prosecution in the respective

country of origin (Hruschka 2005: 156).

61

the European Convention on Human Rights (ECHR). Other obstacles to deportation can occur if it impossible to carry out a deportation for factual or legal reasons (§ 60a Par. 2 Residence Act). Fi-nally, deportations can also be suspended altogether if it can be assumed that existing factual or legal obstacles to a deportation will continue to apply in the foreseeable future. In these cases, respective persons can be granted a residence title for humanitarian reasons (§ 25 Par. 5 Resi-dence Act). If the deportation has been suspended for more than 18 months, due to the reasons mentioned above, such residence titles even are to be granted. However, there is in principle also the possibility of deporting a person to a third country (Lehnguth et al. 1998: 57).

Even in cases where no deportation bans apply, removal or deportation can still be impossible for several other reasons. For example, there are cases where the foreign national concerned submits an asylum or follow-up asylum application, where circumstances or states of fact change so that a deportation obstacle arises, where it has been impossible to determine the identity of a person or obtain replacement travel documents, or if a person is transferred to another federal state or goes underground (Heinhold 2004a: 58f.).

Combining expulsion and deportation measures with bans on re-entry and residence

According to § 11 Par. 1 S.1 Residence Act, the expulsion, removal or deportation of a foreign na-tional automatically leads to a permanent ban on re-entering the country or residing in the country. However, this ban may by request be limited to a certain period of time, which is usually the case (§ 11 Par. 1 No. 3 Residence Act). In most cases, respective decisions are governed by state law and are also subject to administrative discretion (Storr et al. 2005: § 11 No. 7). However, if an ex-pulsion order has been issued in accordance with § 58a Residence Act, a time limitation can only be granted for each individual case if the supreme state authorities agree.

4.3.1 Termination of illicit residence: expulsion and notification of deportation

Procedural steps

Expulsions, which are regulated by §§ 53 to 55 Residence Act, terminate the legal residence status of a person and constitute the legal obligation to leave the country (cf. chapter 2.1). Foreign na-tionals who are under a legal obligation to leave the country can also be expelled if such a meas-ure is considered necessary in order to prevent them from re-entering federal territory at some later point in time (provisional implementation guidelines for the Residence Act No. 53.0.2). In this case, the expulsion does not constitute a sanction for a previous violation of legal regulations, but a pre-ventive measure aimed at an individual foreign national (special prevention), or at achieving a de-terrent effect on other foreign nationals (general prevention). Such decisions have to take the prin-ciple of proportionality into consideration.

According to the provisional implementation guidelines for the Residence Act (provisional imple-mentation guidelines for the Residence Act No. 53.0.6), expulsion procedures are as follows: The decision to expel a foreign national is taken by local foreign-resident authorities (ABH), which are under the obligation to take respective measures as soon as they receive information about grounds for expulsion or other information indicating that such grounds exist. Authorities then have to assess which expulsion grounds are relevant for a particular case or, if circumstances rule out mandatory or discretionary expulsion, which other measures have to be taken. In cases of manda-tory or discretionary expulsion, authorities also have to assess if protected personal interests of a foreign national possibly outweigh the public interest in the expulsion (§ 55 Par. 3 Residence Act). For this decision, the following aspects have to be taken into consideration: the duration of legal

62

residence in Germany, personal circumstances that constitute grounds for protection (personal relationships, gainful employment, educational and vocational achievements), the protection of marriage and life partnerships, as well as other circumstances that would constitute grounds for suspending a deportation (pursuant to § 60a Par. 2 Residence Act). The results of this review de-termine whether the residence of a foreign national can be actually terminated after an expulsion order has been issued.

Furthermore, it has also to be reviewed if special protection against deportation, pursuant to § 56 Residence Act, has to be granted in this particular case. This special status protects foreign na-tionals who

- have been granted a settlement permit and have been legal residents of the Federal Re-public of Germany for at least five years,

- have been granted a residence permit and were born within federal territory, or entered Germany as minors, having been legal residents of the Federal Republic of Germany for at least five years,

- have been granted a residence permit, have been legal residents of the Federal Republic of Germany for at least five years and have been living in marriage or a life partnership with a foreign national who fulfils the requirements mentioned above,

- live in marriage or a life partnership together with a German family member or partner, - are entitled to asylum or have been granted the legal status as a recognised refugee in ac-

cordance with the Geneva Convention.

The protection also includes adolescents and minors who have grown up within federal territory. Asylum applicants only receive special protection against deportation for the duration of asylum procedures, in accordance with § 56 Par. 4 Residence Act. Under these regulations, an expulsion order can be issued if asylum procedures have been concluded unappealably and without the rec-ognition of a foreign national as entitled to asylum. In cases where an asylum applicant has com-mitted severe offences against public order and security, expulsion procedures do not have to be postponed until asylum procedures have been finally concluded. If such an expulsion is sought, BAMF is obliged to reach a decision on the respective asylum decision as soon as possible, in order to enable local foreign-resident authorities to speed up administrative procedures concerning the termination of residence (Lehnguth et al. 1998: 52).

As for the expulsion of Turkish nationals, the European Court of Justice has ruled that the same requirements apply as for the termination of residence of EU citizens, provided that the Turkish nationals concerned are protected by the relevant association decision of the Council (ARB 1/80). In its ruling of August 3, 200486, the Federal Constitutional Court has confirmed the jurisdiction of the European Court of Justice. Consequently, in cases where Turkish nationals are protected by association law, they can only be subjected to discretionary expulsion (Beauftragte 2005: 463).87

If an expulsion order has been issued, the foreign national concerned has to be granted a period of time during which he or she has the opportunity to make statements about the facts and circum-

86 Ruling by Federal Constitutional Court of August 3, 2004 (Ref. 1 C 29.02).

87 The jurisdiction of the European Court of Justice has further developed EU law and thus influenced the

implementation of expulsion regulations, especially as far as grounds for expulsion are concerned. This is

particularly true for Association Decision ARB 1/80, which, pursuant to Art. 300 and 310 EC Treaty, consti-

tutes an integral part of EU law. Consequently, it takes precedence over national law (BMI 2006a: 140, 145-

149).

63

stances that form the basis of the expulsion order. The authorities can, however, refrain from hear-ings if the special circumstances of a particular case render them inadvisable, or in cases of urgent need for action. If the responsible authorities have established that there are sufficient grounds for an expulsion, they have to take the ensuing expulsion decision without delay. Conversely, subse-quent applications for granting or renewing a legal residence title have to be rejected. Both decrees are to be issued together with a notification of deportation (provisional implementation guidelines for the Residence Act No. 53.0.6). In addition, the passport, replacement passport or other re-placement documents of the person concerned are stamped “expelled”. The authorities can refrain from stamping these documents if this would make leaving the country more difficult for the person concerned (provisional implementation guidelines for the Residence Act No. 53.0.8). The fact that there are obstacles to deportation in a particular case does not conflict with issuing a deportation notification (§ 59 Par. 3 S.1 Residence Act). These obstacles to deportation are reviewed by BAMF in cases involving the recognition of persons as refugees (§ 60 Par. 1 Residence Act), or the re-view of other possible grounds for deportation bans or obstacles88 that have to be assessed in the context of asylum procedure. Correspondingly, BAMF issues the notification of deportation in cases that have to reviewed in the context of asylum procedures (§ 34 ff. Asylum Procedure Act). Local foreign-resident authorities (ABH) are only responsible for reviewing obstacles in cases where no asylum petition has been submitted. They are also responsible for reviewing obstacles to deportation occurring within German territory. This division of responsibilities also applies to sub-sequent decisions such as modifications, withdrawals or re-openings of proceedings (Renner 2005: § 60 Residence Act, Margin No. 59-60).89 Despite this division of responsibilities, it is not always easy to decide in individual cases whether BAMF or state authorities are responsible for certain parts of proceedings (Hailbronner 2005a: 421 f.).

If there are no deportation bans or obstacles, local foreign-resident authorities are obliged to im-plement deportation proceedings without delay. Local authorities thus have no discretionary power to postpone deportation proceedings. The only grounds for such postponements are cases where suspensions of proceedings or suspensions of deportation have been granted (Renner 2005: § 58, Margin No. 2). As deportation constitutes an act of law enforcement, there is no need for a sepa-rate administrative order prior to the deportation. However, such an order is admissible in cases where no notification of deportation has been issued or if the respective notification does not con-tain any information about the country to which a foreign national is to be deported (Renner 2005: § 58, Margin No. 16).

By defining deportation orders pursuant to § 58a Residence Act as an administrative order termi-nating residence with a double function (expulsion order and law enforcement are combined in one administrative decision), legislators have broken new legal ground. Deportation orders are immedi-ately enforceable and do not require a prior notification of deportation. Moreover, issuing a depor-tation order also comprises a decree for imposing detention pending deportation in cases where deportations cannot be implemented immediately (§ 62 Par. 2 S.1 No. 1a. Residence Act). In prac-tice, however, these fast-track procedures can only be applied in a few cases.

88 These comprise risk of torture, risk of capital punishment, extradition requests, inhumane or degrading

punishment or treatment, risk of criminal prosecution or punishment in another country, or concrete dangers

to life and limb or liberty (§ 60 Par. 2-3, 5 and 7 Residence Act).

89 The fact that BAMF decisions are binding for local foreign-resident authorities in all subsequent proceed-

ings has occasionally met with criticism, but it has been confirmed repeatedly in court rulings and is also

justified by the experience and expert knowledge of BAMF in these issues (Hailbronner 2005: 423).

64

In principle, proceedings conducted by foreign-resident authorities follow the general rules for ad-ministrative proceedings. In contrast to the sequence of procedural steps that has been outlined here, it is not unusual in practice that foreign-resident authorities have to process a large number of administrative and judicial proceedings simultaneously. For instance, if an initial asylum petition has been rejected by BAMF, the persons concerned can submit subsequent asylum petitions, resi-dence applications for humanitarian reasons, or applications for suspending deportations for family reasons (pursuant to Art. 6 Basic Law or Art. 8 ECHR), or because of illness or inability to travel. Correspondingly, it is quite common that administrative and judicial proceedings have to be con-ducted simultaneously. As all the proceedings involved do also include different procedural rules and appeal options, it is impossible to draw a simple diagram outlining all the steps involved in termination-of-residence proceedings.

Proceedings in cases of illicit residence

Foreign nationals whose current place of residence is unknown can still be expelled. In such cases, the expulsion order is delivered publicly, after the responsible authorities have tried all other possibilities to determine a person’s current place of residence (provisional implementation guide-lines for the Residence Act No. 53.0.2). The respective search is published in a police database called INPOL in order to establish the place of residence and arrest the person in question (§ 50 Par. 7 Residence Act).

Proceedings in Dublin-II cases

Firstly, these cases involve third-country nationals who have been arrested as illegally resident and who, according to a fingerprint match with the EURODAC Central Unit in Luxembourg, have al-ready submitted an asylum application in another Dublin member state. Such a EURODAC match is reported to the authorities that have made the arrest and to BAMF (Art. 11 EURODAC Regula-tion). The authorities that have arrested the foreign national do then forward the following docu-ments to BAMF in Nuremberg: the arrest report / interrogation record and, if applicable, other documents that have been obtained, the EURODAC result, a photo of the person concerned and his or her fingerprints. The person in question will then be transferred by local foreign-resident au-thorities to a reception centre for new arrivals or, if applicable, be taken into detention pending de-portation.

Secondly, these proceedings also involve cases of asylum applicants from third countries (non-EU citizens) where a fingerprint match with the EURODAC Central Unit (Art. 4 EURODAC Regulation), which is carried out by BAMF subsidiaries in the context of asylum proceedings, has shown that the person in question has already submitted an asylum application in another Dublin member state or has transited illegally from this country to another country within the Dublin zone. In these cases, documents are also transferred to BAMF in Nuremberg. It is standard procedure that the person in question remains in a reception centre for new arrivals. In both cases, BAMF reviews the case in order to establish if another member state is responsible for processing the case, in accor-dance with the Dublin II Regulation. If respective requirements are fulfilled, BAMF will submit a transfer request.

But requests for transfer to another member state will also be submitted if other clues (apart from a EURODAC match) or pieces of evidence have been found which indicate that another member state is responsible for processing an asylum application. The proportion of requests that have been submitted by Germany, in relation to all requests for transfer (without EURODAC matches,

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which can be obtained since the beginning of the year 2003, when the system became opera-tional), amounted to 55% in 2003, 49% in 2004, and 41.8% in 2005.

Mandatory information in expulsion orders and notifications of deportations

Expulsion orders have to be issued in written form (§ 77 Par. 1 S.1 Residence Act). They have to set forth the underlying grounds and also include instructions on legal recourse. Setting forth the grounds is especially important in cases of discretionary expulsions. In addition, expulsion orders have to include the following mandatory information: legal consequences of expulsion (ban of re-entering the country) and entry ban for Schengen area, which is also posted on SIS (provisional implementation guidelines for the Residence Act No. 53.0.6.4.1). The instructions on legal re-course can be given in the German language; it is not mandatory to provide a translation into a foreign language that is comprehensible for the foreign national concerned (Renner 2005: § 55 Residence Act, Margin No. 91).90

Even if a legal residence title has been withdrawn or declared invalid, which obliges foreign nation-als to leave the country, authorities can still grant them a certain period of time for leaving the country, so that the obligation to leave the country has to be fulfilled by the date on which this pe-riod of time expires. In other words, the authorities can in expulsion cases set a time limit for leav-ing the county. If a notification of deportation is issued in accordance with § 59 Par. 1 Residence Act, setting a time limit is mandatory. Respective regulations in the Residence Act do not include details concerning the criteria or the exact duration of such time limits, the regulations only man-date a maximum duration, which is defined as a maximum period of six months beginning with the date on which the obligation to leave the country takes effect (§ 50 Par. 2 No. 2 Residence Act). But indications as to the appropriate duration of such time limits result from respective time limits for deportation notifications, which are defined in the Asylum Procedure Act for cases where asy-lum petitions are obviously unfounded (time limit of one week, § 36 Par. 1 Asylum Procedure Act) or, respectively, in cases where asylum petitions are unfounded or have been withdrawn (time limit of one month, § 38 Par. 1 Asylum Procedure Act). It has also to be taken into consideration that foreign nationals whose deportation has been suspended for a longer period of time have to be notified of their deportation one month in advance (§ 60a Par. 5 No. 4 Residence Act). Corre-spondingly, Renner regards a time limit for leaving the country of at least one month as necessary and sufficient. If, however, the foreign national concerned has already been granted a legal resi-dence title for several years, Renner regards a time limit of more than one month as appropriate (Renner 2005: § 50 Residence Act, Margin No. 7-10).

Setting a time limit allows the foreign nationals concerned to make preparations for their return (such as terminating rental agreements or employment contracts, making preparations for the home journey, obtaining travel documents, looking for accommodation or employment in home country). This time granted does not limit the duration of possible legal recourse. If a notification of deportation is issued, authorities can refrain from setting a time limit under special circumstances, especially if it impossible to grant the foreign national more time. If the foreign national concerned

90 Subsequent to the act implementing Council Directive 2005/85/EC, which was passed in 2007, asylum

applicants who are not assisted by an authorised representative are to be informed about the outcome of

their asylum petition and about possibilities of legal recourse in a language of which it can be reasonably

expected that it is understood by the person in question; cf. Council Directive 2005/85/EC of December 1,

2005, on minimum standards on procedures in Member States for granting and withdrawing refugee status

(Official Journal L 326 of December 13, 2005, p. 13).

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has not left the country by the time the deadline expires, the notification of deportation does not become invalid. Local foreign-resident authorities can also set time limits in cases where foreign nationals are in detention or custody, as the persons concerned are still able to organise their re-turn (in written form, by telephone, with the help of social workers, family members, friends, or dur-ing periods of day release) (Renner 2005: § 59, Margin No. 11, 12, 15).

In the context of the evaluation of the new Immigration Act, which was conducted in the year 2006, experts working in the field and the responsible authorities have criticised as problematic the prac-tice that foreign nationals whose deportation has been suspended for more than one year have to be notified of their deportation more than one month in advance. Experts have criticised that this period of time is too long, firstly because replacement travel documents issued by other states are often not valid for such a long period of time and, secondly, because respective persons have re-peatedly gone underground for short periods in order to prevent their repatriation. For these rea-sons, there have been calls for abolishing the obligation to issue advance notifications (BMI 2006a: 150f.).

Legal regulations require that the country to which a foreign national is to be deported to is men-tioned explicitly, even in cases where the country of destination is not his or her home country. Other countries which could also be potential destinations do not have to be specified, in order to allow authorities to switch over immediately to another country of destination in cases where the deportation to a person’s home country has proved to be impossible. Apart from the respective home country, deportations can be carried out to other countries which are legally required to ad-mit a deportee, or countries that have expressed their willingness to do so (§ 59 Par. 2 Residence Act). In Renner’s view, these regulations have made work easier for the authorities but have also led to deterioration of the situation of the foreign nationals concerned, as they, in the case of legal recourse, have to raise objections against all possible destination countries. Notifications that do not mention at least one destination country are unlawful (Renner 2005: § 59, Margin No. 16, 17).

An exception is formed by deportation orders in accordance with § 58a Residence Act, which do neither require hearing the foreign national concerned, nor issuing a written order or setting forth the grounds for the deportation. In these cases, the foreign nationals concerned can confer with their legal counsel as soon as they have been informed of the deportation order. They are also informed about the legal consequences and entitled to apply for provisional legal protection.91

Effects of legal recourse

Legal recourse against expulsion measures does have a delaying effect on further proceedings (§ 84 Par. 2 No. 1 Residence Act). Objections against expulsion orders can be lodged within a period of one month. If these objections are rejected, the underlying administrative decision can be con-tested by taking the case to an administrative court of law, also within a period of one month. Apart from the foreign national concerned, his German spouses or parents can also institute legal pro-ceedings, provided that their appeal is based on a claim that their basic rights, as guaranteed by Art. 6 Basic Law (Protection of marriage and family), have been violated. However, these legal

91 In contrast to the provisional implementation guidelines for the Residence Act, which refer to respective

proceedings in accordance with § 18a Asylum Procedure Act, Renner, in his legal commentary, has criticised

the fact that authorities can refrain from issuing a written order or from giving reasons as questionable be-

cause it, in his view, raises doubts as to whether proceedings can still be considered as fair (Renner 2005: §

58a m.n. 18f.).

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proceedings do not affect the validity of the expulsion order, which terminates the legal residence status. Is special cases where public interests have to be protected, expulsion orders can be im-plemented immediately, i.e. before the responsible administrative court has announced its ruling concerning the principal proceedings (provisional implementation guidelines for the Residence Act No. 53.0.7.1). For each individual case, grounds have to be provided in the written form. The deci-sive date for the judicial review of the legitimacy of the expulsion is the situation which existed at the moment when the last administrative decision has been taken. As for Turkish nationals who are protected by EU association law, however, the review has to be based on the current situation and prognosis, as these persons have the same procedural rights as EU citizens. When the administra-tive court in question has announced its ruling, the person concerned can lodge an appeal which, however, does not have a delaying effect (Renner 2005: § 55 Residence Act, Margin No. 97, 99).

As far as legal enforcement measures are concerned, the expulsion itself cannot be legally con-tested, according to German law, as it is only admissible to contest the notification of deportation and institute respective legal proceedings. If an administrative order takes effect non-appealably, i.e. after the respective appeal has been rejected, authorities are instructed to ignore further objec-tions concerning deportation obstacles that are raised subsequently by the migrant in question. Nevertheless, as further legal obstacles can not be excluded, regulations in the Residence Act do still allow other legal proceedings, apart from the appeal against the notification of deportation: The person concerned can seek an injunction against an imminent deportation in order to be granted provisional legal protection (Hailbronner 2005a: 418f.). The regular sequence of judicial authority has to be observed in these proceedings. For example, the state of Baden-Wuerttemberg decided in 1999 that the district authorities should have sole responsibility for expulsion proceedings against criminal offenders, a decision which, in effect, no longer allowed the persons concerned to lodge legal proceedings with higher-level authorities. Consequently, the Federal Administrative Court objected to these regulations in 2005.92

In the case of a notification of deportation pursuant to § 58a Residence Act, proceedings only allow for one instance of appeal, namely the Federal Administrative Court (§ 50 No. 3 VwGO). Even though notifications of deportation are enforceable immediately, the foreign residents concerned can still apply for provisional legal protection for a seven-day period until the court of law has reached its decision in fast-track proceedings. The underlying appeal, which can be lodged within a period of one month, does not have a delaying effect however (Renner 2005: § 58a Residence Act, Margin No. 21).93

Reasons for refraining from expulsion measures

In cases of discretionary expulsion, the responsible authorities can come to the conclusion that a review of discretionary grounds (long-term residence, personal relationships within federal territory, protection of marriage and family, grounds for suspending deportation) has led to the assessment that an expulsion is not appropriate, mandatory, suitable or proportionate. If applicable, authorities can also impose other less severe sanctions in response to infringements, such as issuing a cau-tion, limiting the person’s residence title subsequently, not extending an existing residence title,

92 Federal Administrative Court ruling of October 6, 2005 (Ref. 1 C 5.04).

93 In the view of Renner (2005: § 58a Residence Act Margin No. 22), the legal protection provided by these

proceedings are “hardly in line with the requirements of 19 IV Basic Law“, as the proceedings do not include

a written order, which prevents foreign nationals to defend their interests adequately.

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declaring a residence title invalid or repealing it. In view of the legal consequences of an expulsion, this measure can under certain circumstances be considered as a sanction which is too harsh, especially in cases where the residence of a foreign national can be terminated in some other way as well (Renner 2005: § 55 Residence Act, Margin No. 60).

4.3.2 Identification and obtaining travel documents

Before return measures can be carried out, the identity of a person has to be established, and it has to be ensured that the necessary travel documents are available. In many cases, identifying the foreign nationals concerned, and obtaining travel documents from foreign representations, has proved to be a severe problem.94 However, experts in the field have pointed out that the great ma-jority of countries fulfil their obligations, as far as readmitting nationals of their country is concerned (Lindemann 2006: 218).

Legal basis for identifying foreign nationals

According to § 49 Par. 1 Residence Act, all foreign nationals are obliged to provide to the authori-ties the necessary information concerning their age, identity and nationality. In addition, they are also obliged to make such statements to embassies or consulates representing their home country for the purpose of obtaining travel documents for their return to the country of which they are na-tionals, or are supposed to be nationals, provided that the data required by these foreign represen-tations is in accordance with German law. The legal regulations also define the cases in which identification proceedings are mandatory. These cases comprise rejections, removals and deporta-tions. Furthermore, the law describes the measures that can be taken if the identification of foreign nationals (who are at least fourteen years old) can not be achieved by other means. These meas-ures include taking photographs and fingerprints as well as taking their measurements or related measures. It is also possible to conduct a linguistic analysis (§ 49 Par. 4 and 5 Residence Act). The regulations of § 82 Residence Act also mandate that foreign nationals have to cooperate in identification proceedings and are obliged to participate in obtaining the necessary documents. As far as it is necessary for preparing or implementing measures in accordance with foreign-resident law, the foreign nationals concerned can also be ordered to call in person on the foreign represen-tation of the country whose nationality they are supposed to have. If a foreign national refuses to fulfil these obligations, these measures can also be implemented by force (§ 82 Par. 4 Residence Act). Refusing to cooperate or attempting to obstruct these measures is punishable, pursuant to § 95 Par. 1 No. 5 and 6 as well as Par. 2 No. 2 Residence Act. In the view of the Federal Ministry of the Interior, the legal regulations described here are sufficient. Consequently, proposals for tighten-ing regulations, which were made by some experts in the context of the evaluation of the Immigra-tion Act in 2006, have been rejected (BMI 2006a: 154).

94 Some of the issues discussed here also apply to persons who have agreed to leave the country voluntarily

and have submitted applications to their respective embassies for being issued travel documents. This

group, however, only makes up a relatively small part of the total number of people concerned.

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Difficulties in identifying foreign nationals and obtaining travel documents

If the identity of a foreign national cannot be established and the necessary documents cannot be obtained, the responsibility for this state of affairs can lie with the foreign national concerned (de-stroying and/or concealing travel and identification documents, making false statements about na-tionality, refusing to cooperate with authorities in establishing nationality, resisting efforts to estab-lish identity or obstructing efforts to obtain documents from foreign embassies or consulates). However, experts have also pointed out that at least some migrants do not possess identification documents because possessing such documents is uncommon in their home countries, the com-mon practice there being that such documents are only issued for the purpose of foreign travel. If, however, the migrants concerned have left their home country as refugees, for whatever reason, they would hardly have the time or opportunity to obtain such documents from the authorities in their home country (Steinke 2004: 125).

However, problems in obtaining such documents can also arise from a lack of cooperation on the side of foreign embassies or consulates of states that are supposed to the home countries of for-eign nationals who are obliged to leave Germany:

- insisting that the persons concerned submit their application for issuing passport re-placement documents personally on the premises of the foreign representation, or insisting that applicants make a formal statement that they are returning to their home country voluntarily,95

- slow processing of requests for issuing travel documents, - administrative proceedings for determining nationality can take several years, - insisting that persons who are presumed to have nationality of a certain country are

recognised by one or several compatriots in their home country, - demanding further documents, even though nationality has already been estab-

lished (e.g. declaration that return to home country is voluntary), - refusing to grant recognitions, - charging high fees, including the practice to raise fees at short notice, - documents issued are valid only for a short period of time, in some case only for the

day for which the return measure has been scheduled, - duration of administrative proceedings for re-issuing original or replacement docu-

ments that have expired, - refusing to recognise former citizens of the country, even if proof exists that the per-

son concerned has been expatriated,96 - refusing to issue travel documents, even though the person concerned has agreed

to leave country voluntarily (Hailbronner 2005a: 408f.; UKZU 2001: 152).

Moreover, a few states have also refused to continue their cooperation with German authorities, claiming that citizens of their country have been treated unfairly. Experts with practical experience in the field have called this kind of behaviour “blackmail” (Martini-Emden 2006: 205). Such a re-fusal to continue cooperation leads to an increased demand for personnel, time and financial ex-penses, continuously raising the question if these considerable efforts are justified.

95 For example, this applies to foreign representations of Iran or CIS states.

96 This practice has been applied by Turkey, which has expatriated citizens who have refused to do military

service in their home country.

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The reasons underlying the fact that some countries of origin are reluctant or even unwilling to re-admit nationals of their own country can be quite diverse. For one, economic considerations can play a role, as remittances by expatriates, i.e. the transfer of hard currency to their home country, can have a positive impact on the financial situation of that country. Moreover, if these expatriates were to return, they could also have a negative impact on domestic labour markets. For another, the domestic political situation can also play a role, especially if the persons concerned have been living abroad for a longer period of time and have expressed a critical attitude towards the govern-ment in their home country, which might be in transformation or ruled by an undemocratic regime. It can also be the case that the re-integration of these migrants into the society of their home coun-tries is regarded as difficult, especially in societies with predominantly traditional values. In addi-tion, the Independent Commission on Immigration has also pointed out that the presence of a large number of fellow nationals in another country can improve the bargaining position of their home country concerning economic and political questions (UKZU 2001: 153).

Organisational approaches to solving these problems

In order to tackle the problems encountered in the cooperation with several other states, the Inde-pendent Commission on Immigration has pointed out that it is necessary to have specific expertise, regular contacts and background knowledge about respective states (mentality, social etiquette, self-image, foreign-policy positions). Consequently, professionalisation and pooling responsibilities are necessary in order to gather this knowledge and expertise and be able to make it usable in the long term (UKZU 2001: 152f.).

In Germany, steps in that direction have already been taken at different levels. For example, the Federal Police Central Bureau in Koblenz has set up a federal coordination centre for return meas-ures, which has adopted central responsibilities for obtaining passports or passport replacement documents from several “problem states” (§ 71 Par. 3 No. 7 Residence Act).97 State governments have also conducted centralisations in the form of clearing centres or specialised departments in centralised foreign-resident authorities etc. (see above), which have specialised in dealing with certain countries of origin. These centralised authorities are thus able to provide administrative assistance to local foreign-resident authorities within their state. In practice, they also provide sup-port to local foreign-resident authorities from other federal states that have not set up such special-ised authorities (UKZU 2001: 153).98 Difficulties occurring in the practical work as well as experi-ences that have been gathered are discussed regularly at the conference of clearing centres99, in the context of the “Working Group Removal” (AG Rück), as well as at meetings of representatives of interior ministries with responsibilities for foreign-resident affairs. Finally, the German Confer-ence of Interior Ministers (IMK) also discusses recurrent problems, for example by requesting the Federal government to summon the ambassadors of countries that fail to cooperate, or by sending

97 At present, the Federal Police Central Bureau has adopted respective responsibilities for the following 14

states: Benin, Burundi, Gambia, Guinea-Bissau, Liberia, Mali, Mauritania, Nigeria, Senegal, Sierra Leone,

Sudan, Togo, Uganda and Vietnam.

98 Problems in centralising these responsibilities can arise from differences of opinion between state gov-

ernments and local authorities, especially concerning the funding of these centralised foreign-resident au-

thorities (UKZU 2001: 154).

99 The clearing centre of the state of Rhineland-Palatinate in Trier for obtaining replacement travel docu-

ments and implementing deportation by air also functions as the administrative centre of the national confer-

ence of clearing centres.

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demarches to the countries concerned. Furthermore, there have also been considerations to es-tablish a link between granting development assistance or other forms of financial support and the willingness to cooperate, in order to be able to exert fiscal pressure on certain countries, but so far these deliberations have not led to any results. 100 In the context of what is called integral approach to foreign policy, consequences of this kind should be possible, provided that they are also coordi-nated with EU policy (Lehnguth et al. 1998: 82). However, proposals of that kind, which are mainly motivated by domestic policy concerns, could be in contradiction to economic and developmental aid deliberations. Consequently, the Foreign Office and the Federal Ministry for Economic Coop-eration and Development have generally rejected such interventions.

Practical solutions to the problems

One has to accept that there are no “one-fits-all” solutions to the problems faced by the authorities in identifying foreign nationals and obtaining travel documents. However, the authorities use all the different possibilities they have at their disposal in order to tackle the problem from as many differ-ent angles as possible (Martini-Emden 2006: 204).

As far as individual foreign nationals are concerned, they can, for example, be regularly summoned to local foreign-resident authorities in order to be interviewed repeatedly about their identity. In fed-eral states that have passed respective regulations, foreign nationals can also be admitted to de-parture centres, which focus intensively on establishing the identity of the persons that have been ordered to live there (cf. below; chapter 4.3.3). In the context of the 2006 evaluation of the Immi-gration Act, some participants have also raised the question as to whether it would be admissible to conduct searches of residential buildings and apartments in order to find clues for establishing the identity of foreign nationals. Up to now, such searches could only be based on state police law, with judicial reviews of these measures leading to inconsistent results. Therefore there have been proposals to ascertain whether it would be possible to create nation-wide regulations that could be applied consistently in all federal states. It remains to be seen how legislative processes assess the question of whether such measures can be implemented on the basis of federal legislation (BMI 2006a: 157f.). The state of Rhineland Palatinate has already initiated a pilot scheme which aims at establishing the identity of foreign nationals as early as possible, in order to speed up sub-sequent proceedings for obtaining passport replacement documents. The scheme mandates that identification starts immediately after a foreign national has entered the country or submitted an asylum application and had his or her first hearing with BAMF personnel (BMI 2006b: 407). The scheme, which has been institutionalised in the meantime, is also applied in similar form by several other states or central foreign-resident authorities, respectively.

The question of whether data that has been stored during visa proceedings could be used for iden-tification purposes has also been discussed repeatedly. The Independent Commission on Immigra-tion has already supported proposals to collect additional data when visa are granted (copies of documents, fingerprints etc.), which could later be used by the authorities in order to facilitate re-turn measures. The Commission expressed the opinion that it was unacceptable that these pro-posals were not implemented (UKZU 2001: 155). In the same vein, there have also been proposals for using biometric data. However, the face recognition systems used in the visa database of the Central Register on Foreigners (AZR) are technically not sophisticated enough yet to match the

100 For example, the Conference of Interior Ministers has requested to evaluate if and to what extent it would

be possible to review financial and technical aid in response to what has been described the uncooperative

behaviour of UNMIK in Kosovo (IMK Decision No. 8, December 9, 2005).

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stored data with photographs in order to conduct identification measures. The legal foundation for using this data is to be created as part of an amendment of the Residence Act in 2007. Currently, it is already possible to match data of foreign nationals that are to be returned with information that has been stored in the visa database of the Central Register on Foreigners, by means of using alpha-numerical data sets and photographs (BMI 2006a: 165).

The database for lost and found documents, which was set up at the Federal Administrative Office on October 1, 2005, also offers the possibility of matching information with the help of biometric data (face recognition). But as this database has been created recently, it currently only contains relative small amounts of data, so that only few successful matches have been achieved up to now. But the state governments have expressed their approval of this new technology and support further developments of the database (BMI 2006a: 164). Linguistic analyses, which are admissible by law, on the other hand, are only conducted rarely because their practical application has raised doubts as to whether they can really produce convincing and successful results. African countries in particular are characterised by great linguistic variety, which makes it quite common that coun-tries of origin comprise various smaller regions that are linguistically diverse (Huber 2002). There-fore federal police authorities do generally not use the instrument of linguistic analysis, apart from a few exceptions. Furthermore, commissioning such an analysis can be rather expensive (interview with Federal Police Central Bureau). Moreover, some countries of origin do not accept the results of linguistic analyses, for example the multi-ethnic state Nigeria.

In cooperation with foreign representations, the authorities also use the instrument of summoning foreign nationals to embassies and consulates. According to § 82 Par. 4 Residence Act, foreign nationals that are to be returned to their home countries (voluntary and forced return) can be or-dered to take part in an interview with the diplomatic representation of the country whose national-ity they are assumed to have. In the view of the Federal Ministry of the Interior, the term foreign representations should in this context not only be understood as the premises of an embassy or consulate, but also as authorised personnel representing a specific country, so that these hearings can also be conducted outside the premises of diplomatic representations. As this view has re-peatedly been the subject of legal objections, the Ministry has been working towards achieving a legal clarification of this issue (BMI 2006a: 159).

The hearings are conducted throughout Germany, depending on where foreign representations are located, i.e. not all hearings can be conducted in Berlin, the capital. As a general rule, the hearings are not conducted by personnel of respective foreign representations (only), but also in the pres-ence of experts (civil servants) from the federal state concerned. In some cases, this is even indis-pensable as some countries, for example Gambia, do not have an embassy in the Federal Repub-lic of Germany. At the hearings, the personnel of foreign representations is asked to confirm or, at least, rule out that the person in question is a citizen of their country. In some special cases, the hearings are conducted simultaneously by diplomatic personnel of several different countries, in order to prevent that a foreign national is mutually rejected by different representations. This measure thus aims at preventing so-called “embassy tourism” (interview with Federal Police Cen-tral Bureau). In some cases, the fact that foreign experts (China, Vietnam) have been invited to these hearings has caused a stir or even led to protests. There have been accusations that some foreign delegations would exert pressure on the migrants concerned. Subsequently, lawyers have raised doubts as to the legitimacy of these proceedings. The hearings are carried out as proceed-ings between the countries concerned and their citizens. (Meanwhile,) the German side is also represented through the participation of officials of federal or state police authorities in these hear-ings; in addition, interpreters can also be included. The Federal Government has emphasised that the physical and psychological integrity of the foreign nationals concerned is preserved completely

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and at all times during these hearings.101 Critics, however, have expressed the view that the hear-ings would not actually be sufficient for identification purposes, as each hearing would only last a few minutes. They have also made allegations that in some cases “per capita bonus payments” have been offered to the foreign representations concerned (Steinke 2004: 125): However, these allegations have not been substantiated.102

Return measures are not implemented on the basis of informal arrangements with representatives of countries of origin. Of course, good personal relationships between representatives of foreign-resident authorities in Germany and officials of foreign countries can be beneficial in order to achieve that foreign nationals who could not be identified conclusively as well as nationals of other countries can still be returned. However, federal police authorities have emphasised that they re-fuse to participate in return measures involving foreign nationals that have not been identified con-clusively or do not possess valid travel documents (interview with Federal Police Central Bureau). In a few special cases, however, return measures involving foreign nationals that have not been identified conclusively have still been conducted, provided that representatives of a country of ori-gin have agreed in advance to carry out identification proceedings at the airport itself (interview with Federal Police Central Bureau).

If difficulties occur in obtaining passports or passport replacement documents, it is sometimes pos-sible to use standard EU travel documents, which are valid for one single trip only (so-called lais-sez-passer documents).103 If a foreign representation does not issue the necessary travel docu-ments within a reasonable period of time (despite the fact that the nationality of the person in ques-tion has already been recognised), German authorities have the possibility to use these standard travel documents. In this case, the nationality of a foreign national is certified by the German au-thorities. If these documents are accepted as sufficient by the authorities in countries of origin, en-suing return measures are unproblematic. According to the Federal police authorities, however, this instrument has in practice proved to be successful only for a rather limited number of return measures, as the EU standard travel documents are not all widely accepted by countries of origin (Interview with Federal Police Central Bureau).

Apart from using standard European travel documents, German authorities also cooperate with other EU member states in order to facilitate return measures. For example, co-operation has been established at the administrative level between German and French authorities in order to solve problems in obtaining travel documents. Details of such co-operations vary from country to country. For example, German authorities also cooperate with their Swiss counterparts in order to organise group hearings for identification purposes (Interview with Federal Police Central Bureau).

101 Concerning proceedings: response of the Federal Government to a parliamentary enquiry submitted by

MP Volker Beck (The Greens) and others, entitled “Summoning of persons who are under a legal obligation

to leave the country”, Bundestag Printed Matter 16/339, January 4, 2006).

102 The statement quoted has been made by the Senate of the Free and Hanseatic City of Hamburg, in re-

sponse to a parliamentary enquiry by MP Uhl and others (Printed Matter 16/3902, March 21, 2000, does not

provide any details on this matter).

103 These documents are based on a Council recommendation of November 30, 1994, concerning the intro-

duction of standard travel documents for the purpose of returning third-country nationals (Official Journal C

274 of September, 19, 1996, p. 18), see also §§ 1 Par. 8, 4 Par. 1 No. 8 Residence Decree: AufenthV).

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4.3.3 Committing foreign nationals to departure centres and detention pending deporta-

tion

If return measures are enforceable, German authorities are obliged to exhaust all other possibilities in order to avoid committing foreign nationals to detention pending deportation (direct deportation). If deportation measures fail, or if other reasons exist that could endanger the implementation of deportation measures, however, it is possible, pursuant to § 62 Residence Act, to impose detention pending deportation (Heinhold 2004: 15).

In principle, the authorities can also use less severe instruments in order to enforce the obligation to leave the country. These measures include residency restrictions, which, in accordance with § 61 Par. 1 Residence Act, restrict the residency of foreign nationals to one federal state only. This measure can be imposed if the obligation to leave the country has become enforceable. Foreign-resident authorities are also entitled to restrict the geographical area of residence further, usually to the district for which respective authorities are responsible. If foreign nationals violate these resi-dency restrictions, they can be fined. In addition, authorities can also impose reporting obligations, which can exceed the obligations defined by the legal regulations for persons who are obliged to leave the country.104 Foreign nationals also have to notify the authorities of their current address. Moreover, the authorities are advised to seize passports until the date of the departure, provided that a passport is available. In cases where minors are to be returned, the authorities are directed to review carefully if less severe measures can be imposed (Renner 2005: § 62 Margin No. 11; Hailbronner 2005a: 415).

Practical experiences with departure centres

For the first time in German foreign-resident law, the Residence Act has introduced the possibility of setting up departure centres. Pursuant to § 61 Par. 2 Residence Act, state governments are entitled to set up such centres, the main aim being to provide counselling and support in order to convince foreign nationals to take part in voluntary return measures. In addition, these centres en-sure that the foreign nationals concerned are within easy reach of the authorities and courts, and that return measures can be implemented without delay. The legal basis for committing foreign nationals to departure centres is formed by § 61 Par. 1 Residence Act (residency restrictions for foreign nationals who are obliged to leave the country), in combination with § 46 Par. 1 Residence Act, according to which foreign-resident authorities can order the foreign national in question to take up a certain place of residence. The provisional implementation guidelines specify that depar-ture centres are open institutions to which foreign nationals are to be allocated who “have provided no or insufficient information concerning their identity and nationality, and/ or who refuse to partici-pate in efforts to obtain travel documents for their return”. The guidelines also state explicitly that departure centres constitute a less severe measure, compared to detention pending deportation. Foreign nationals who are allocated to departure centres are to receive intensive psychological and

104 § 50 Par. 5 Residence Act mandates that foreign nationals who are obliged to leave the country have to

notify the authorities before moving house or leaving the district covered by respective foreign-resident au-

thorities for a period of more than three days. Pursuant to § 54a Residence Act, foreign nationals who have

received an expulsion order on the grounds of posing a danger to national security, or who have received a

notification of deportation, have to report to the police at least once a week. Generally, they are also subject

to residency restrictions, usually to the geographical area covered by respective foreign-resident authorities.

They can also be admitted to departure centres. Furthermore, the authorities can also ban the use of certain

means of communication.

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social counselling in order to change their “outlook on spending their life outside the territory of the Federal Republic of Germany” and to provide information about programmes supporting their vol-untary return to their home countries (provisional implementation guidelines for the Residence Act Residence Act No. 61.2.1).

As soon as 2001, the Independent Commission on Immigration (UKZU) pointed out in its report that centralised counselling and accommodation centres should be considered as a possible op-tion, as they are more suitable for fostering the willingness of individual foreign nationals to return to their home countries. Apart from that, the Commission added that this centralised form of ac-commodation would be more efficient, cost-effective and also allow integrating refugee support organisations more effectively. But the Commission recommended in its report that foreign nation-als should only be accommodated in departure centres voluntarily, which is in contrast to current legal regulations (UKZU 2001: 158).

The first departure centres had been set up in early 1998 by the State of Lower Saxony, in the con-text of a model project, which established two such centres as part of the Central Reception Cen-tres (ZAST) in Oldenburg and Braunschweig. Since the year 2000, these centres have been insti-tutionalised. At about the same time, the state reception centre in Bramsche-Hesepe, a subsidiary of the Central Reception Centre in Oldenburg, also created facilities for return counselling in the form described above.105 The State of North-Rhine Westphalia set up a similar centre in Minden in 1998, which, however, was closed again after 18 months. In Rhineland-Palatinate, a centre which had been set up in Ingelheim in 1999 was relocated to Trier in 2003. The State of Saxony Anhalt set up a departure centre in Halberstadt in 2002, which was further expanded in 2004. Bavaria has one Central Return Centre in Fürth, and the State of Schleswig-Holstein set up a central accom-modation centre as part of its State Office for Foreign-Resident Affairs in 2006 (Heinhold 2004a: 65f.; BMI 2006c: 350). The states of Thuringia, Saxony and Berlin and Mecklenburg Western Pomerania, on the other hand, have so far not set up any departure centres.

The organisational structure of departure centres varies from state to state. For example, the de-parture centre in Ingelheim for foreign nationals who are obliged to leave the country is separated geographically and administratively from the State Accommodation Centre for Asylum Applicants (LufA). If the application of an asylum seeker has been rejected and the person in question is to be relocated to the departure centre, local foreign-resident authorities have to submit a request to the state accommodation centre. This administrative request is then submitted to the clearing centre for obtaining travel documents in Trier, which evaluates the prospects of obtaining passport re-placement documents for the person in question. If the clearing centre makes a positive prediction, the foreign national in question is relocated to the departure centre, based on § 60 Par. 2 Asylum Procedure Act (AsylVfG), which allows the authorities to order the foreign national in question to take up a certain place of residence. The departure centre is organised as an open institution, but the mobility of residents is restricted to the administrative district in which the centre is located. Residence in the centre is not limited temporally and does not require a judicial order (Haßdenteu-fel 2002: 25, 29).

The Central Return Centre (ZRS) in Fürth (Bavaria), which is located on the same premises as the regional accommodation centre for asylum applicants, was set up in the context of the “integrated concept for consistently terminating the residence of foreign nationals in Bavaria who are obliged to leave the country” (INKA). This integrated concept aims at starting identification measures at the

105 This centre has been the focus of critical documentary entitled “Der Lagerkomplex“ (2006), cf.

http://kinoki-now.de/film.html.

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earliest possible time, and does not focus on persons who have been residents of the country for a long period of time. It rather focuses on foreign nationals whose deportation is regarded as en-forceable in the short or medium term. Moreover, the return centre only admits nationals of certain countries (Bayerisches Staatsministerium des Innern 2002).106 The legal basis for committing for-eign nationals to this return centre is not formed by respective regulations in the Asylum Procedure Act, but by a separate Act on admitting and accommodating asylum seekers receiving benefits in accordance with the Asylum Seekers Benefits Act, which was created specifically for this purpose in May 2002.107 Attempts to establish further institutions (e.g. in Nuremberg), which were originally called special accommodation centres, have meanwhile been abandoned, in response to several incidences and a decision by the Bavarian Administrative Court, which has raised doubts about the proceedings used for committing foreign nationals to these centres (Thal 2005: 5).

Living conditions in the departure centres can be described as follows: the centres are enclosed by a fence and only accessible through a guarded access checkpoint. The authorities carry out regu-lar interviews in order to ascertain the identity of residents, aiming at detecting contradictions in the statements made by residents, and at convincing them that they have no realistic perspective of staying in Germany permanently. The authorities also conduct searches in order to find out if the persons concerned do still possess identification documents. Additionally, residents are subject to residency restrictions and only receive non-cash benefits, such as daily food parcels, according to the benefits-in-kind principle108. Other optional measures include calling on residents to do unpaid work, a ban on gainful employment and reduced allowances109 (Bayerisches Staatsministerium des Innern 2002: 12f.; Heinhold 2004a: 66). The fact that these restrictions lead to frustrations or even “certain feelings of hopelessness and disorientation” among residents is intended, according to the responsible authorities, inasmuch as the frustration is to be transferred, by means of intensive re-turn counselling, into a more positive attitude towards returning to their home countries and re-integrating themselves into the society there (Martini-Emden 2000). If the foreign residents con-cerned are cooperative, they can be granted certain benefits, depending on the institution to which they have been committed, In Fürth, for example, these benefits include being permitted the pos-session of financial funds, being granted permission to take up gainful employment or, if applica-ble, start-up funds for returning to home countries or taking part in vocational training courses be-fore leaving Germany (Bayerisches Staatsministerium des Innern 2002: 15).

Critics of the departure centres, which can mainly be found among human rights organisations, churches, trade unions as well as some (opposition) parties, have objected to these conditions, claiming that they would almost amount to detention, or even (inadmissible) coercive detention

106 Meanwhile, the centre only admits nationals from the succession states of the former Soviet Union, as the

cooperation with the consulates and authorities of these countries of origin has proved to be less problem-

atic, compared to African countries (Schneider 2006: 86).

107 Act on admitting and accommodating asylum seekers receiving benefits in accordance with the Asylum

Seekers Benefits Act (Accommodation Act - AufnG) of May 24, 2002 (GVBl 2002, p. 192).

108 Pursuant to § 3 Par. 1 Asylum Seekers Benefits Act, the necessary demand concerning food, accommo-

dation, heating, clothing, health care, personal hygiene and other consumer goods is met in the form of

benefits-in-kind.

109 Allowances are reduced to the absolute possible minimum, pursuant to § 1a No. 2 Asylum Seekers Bene-

fits Act.

77

(Haßdenteufel 2002: 29; Schneider 2006: 89).110 Consequently, evaluations of the success of de-parture centres vary widely. Human rights and refugee support organisations have raised principal doubts as to whether the necessary expenditure is justified at all (Pro Asyl 2006: 517). According to representatives of the state governments, however, the departure centres have proved to be effective, so that the Federal Ministry of the Interior, in its 2006 evaluation of the Immigration Act, has rejected demands for closing the centres. On the contrary, the Ministry has called on state governments to employ the benefits-in-kind principle consistently in order to further raise the effec-tiveness of the centres. (BMI 2006a: 169). In the State of Lower Saxony, for example, 17% of the foreign nationals concerned decided to leave the country voluntarily or could be deported until the year 2001, and it was possible to ascertain the identity of 31% of the residents. In Fürth, more than 33% of the foreign nationals who have been committed to the return centre there left the country voluntarily or were deported, until the beginning of the year 2006. During the same period, about half of the persons concerned have gone underground. As the great majority of foreign nationals who have gone underground remains unapprehended, the authorities assume that these foreign nationals have left Germany (Heinhold 2004: 67f.; BMI 2006c: 57). This can be regarded as a suc-cess due to the fact that these persons are no longer able to receive social benefits (Bayerisches Staatsministerium des Innern 2003).111 Nevertheless, the Expert Panel for Migration and Integra-tion has drawn the conclusion that the success of the departure centres has not been established sufficiently, and Lower Saxony’s state audit court has also recommended that respective proceed-ings should be optimised (Sachverständigenrat 2004: 159; Niedersächsischer Landesrechnung-shof 2004: 65).

Judicial authorisation of detention and legal protection

There are two forms of detention pending deportation. Preparatory detention can be imposed in cases where an expulsion decision cannot be taken immediately and a possible deportation would be seriously impeded if the foreign national concerned were not detained (§ 62 Par. 1 Residence Act). Security detention, on the other hand, can be imposed if the obligation to leave the country has become unappealable and there are indications that the foreign national concerned is planning to thwart the deportation measure (§ 62 Par. 2 Residence Act). As detention pending deportation constitutes a form of imprisonment and thus has an impact on legally protected basic rights, the administrative request for detention requires judicial authorisation (Grimm 2004a: 28f.). A judicial decision is even mandatory in cases where the imprisonment only lasts half a day.112 There are only a few special cases where judicial authorisation can be obtained immediately after a person has been arrested.

The foreign-resident authorities are mainly responsible for deportation proceedings as they have to decide both about the requirement of detention pending deportation and the detention facility. For-eign resident authorities are also authorised, in the course of implementing a deportation measure and transferring deportees from their last place of residence to the national border, to use direct

110 Nevertheless, the conditions in some centres, for example in Fürth, have also met with approval (Babo

2004: 365, FN 56).

111 Schneider (2006 88f.) has raised doubts about this conclusion, pointing out the possibility that foreign

nationals who go underground have already been part of a network before and are thus able to take up ir-

regular work. Consequently, it might also be possible that they have not left the country.

112 Ruling by Federal Constitutional Court of May 15, 2002, Ref. 2 BvR 2292/00.

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force and thus infringe on the personal freedom of the person in question. However, they are not authorised to take anybody into custody or detention (Heinhold 2004a: 22). Nor are police officers authorised to take foreign nationals into detention pending deportation (Beichel-Benedetti/Gutmann 2004: 3016). In fact, it is the responsibility of the local courts of law (i.e. the civil jurisdiction) to re-view whether the detention is admissible and to authorise respective requests. According to the prevailing opinion, the local courts only have to review the detention grounds as such. They are not responsible for reviewing the legal basis of the expulsion or whether the deportation measure is necessary. However, the courts have to review if deportation proceedings have been suspended, if the obligation to leave the country has been revoked by an administrative court, or whether the deportation is inadmissible on the grounds of a deportation ban or obstacle to deportation. Obsta-cles or bans pursuant to asylum law, on the other hand, are not reviewed by the local courts (Renner 2005: § 62 Residence Act Margin No. 6, 7). According to the minority opinion of some critics, these restrictions of judicial review can be regarded as unconstitutional as they could in-fringe on the right of judicial review113, due to the fact that judges do not review whether the admin-istrative proceedings instituted by foreign-resident authorities are legally admissible (Wegner 1996: 80f; Babo 2004 361; Beichel-Benedetti/Gutmann 2004: 3017).

It is mandatory that the foreign nationals concerned receive fair hearing by a judge of the responsi-ble local court. The foreign-resident authorities as well as the foreign national concerned are enti-tled to lodge a complaint against the decision of the local court concerning the authorisation of his or her detention. The complaint is then reviewed by the responsible regional court. At this level, it is also possible to lodge a complaint against the court’s decision. If the foreign-resident authorities want to extend the detention measure, they have to submit another request in order to obtain judi-cial authorisation of the extension (provisional implementation guidelines for the Residence Act No. 62.0.15). The decision of the judge has to be based on facts and must not take into consideration whether the judicial decision simplifies administrative proceedings for foreign-resident authorities (Heinhold 2004a: 18). However, human rights organisations have criticised that the instrument of detention pending deportation has been employed too frequently (Hailbronner 2005a: 428).

In practice, there have been cases where foreign nationals, at the request of foreign-national au-thorities, have been taken into police custody prior to hearings at local courts. This practice has been called “legally precarious” (Beichel-Benedetti/Gutmann 2004: 3020; Heinhold 2004a: 22-25; Babo 2004: 361). In order to achieve a clarification of the regulations, experts working in the field have demanded, in the context of the 2006 evaluation of the Immigration Act, that a legal basis should be created for cases where foreign nationals are attempting to evade judicial proceedings authorising their detention (BMI 2006a: 161). A respective legal amendment, concerning § 62 Residence Act, is planned as part of the 2007 legislation implementing the respective EU Directive (Heinhold 2006: 362).

Proceedings concerning special groups of people

According to the provisional implementation guidelines for the Residence Act, several groups of people are not to be taken into detention pending deportation. These persons include non-German minors under the age of 16, foreign nationals over the age of 65, pregnant women and mothers during the legally stipulated period of maternity leave. But the foreign nationals mentioned are still not protected from detention pending deportation if they have committed a criminal offence. If the parents of a non-German minor under the age of 16 do not reside within federal territory, the for-

113 Art. 104 Par. 2 Basic Law.

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eign-resident authorities have to cooperate with the youth welfare authorities. If an asylum petition submitted by a non-German minor is rejected, he is to remain at his current place of residence (provisional implementation guidelines for the Residence Act No. 62.0.3).114 In practice, however, there haven been cases where persons belonging to the groups mentioned above have been taken into detention pending deportation (Babo 2004: 359; Heinhold 2006: 364f.). But the state governments have issued administrative decrees mandating that minors and pregnant women (whose pregnancy is advanced) should be spared from being taken into detention as far as possi-ble (Heinhold 2004a: 47). During detention pending deportation, male and female detainees are separated and committed to different institutions. As the percentage of female detainees, in rela-tion of all foreign nationals who have been taken into detention pending deportation, is very small (cf. chapter 2.3.1), they are usually committed to regular penal institutions (Heinhold 2004a: 30, 49).

Detention pending deportation in practice

The state governments are responsible for the institutions of detention pending deportation. De-pending on the federal state, the ministries of justice or the interior are the responsible authorities. All in all, three different forms of detention pending deportation occur: detention in separate institu-tions for deportation detainees, detention in regular prisons (JVA), or detention in marked-off areas within regular prisons. Currently, six federal states have set up special detention pending deporta-tion centres.115

The conditions of detention pending deportation are determined by the purpose of this measure. In principle, detention pending deportation does not have the same character as imprisonment in regular penal institutions, where the focus is on imposing sanctions and fostering rehabilitation. In contrast, detention pending deportation has the character of a preventive and securing measure. Due to the securing function of detention pending deportation, privileges that can be granted to inmates in regular penal institutions, such as being granted a pass, leaves of absence, day release or non-confinement, are in contradiction to the purpose of deportation regulations (provisional im-plementation guidelines for the Residence Act No. 62.0.4). Requests for other benefits, such as receiving visitors, using telephones, spare time activities or work possibilities have so far usually been declined, also with reference to the purpose of deportation regulations. In his legal commen-tary, Renner (2005: § 62 Margin No. 2) has called this state of affairs “unsatisfactory” because these regulations entail that the status of deportation detainees is more restricted than that of regu-lar inmates or detainees awaiting trial. Experts working in administration, however, evaluate the situation in a more positive light, pointing out that, apart from the main securing function, the condi-tions in detention pending deportation could also persuade the foreign nationals concerned to co-operate and participate, for example, in efforts to obtain travel documents (Martini-Emden 2000).

114 Heinhold (2004a: 45) has pointed out that, according to the UN Convention on the Rights of the Child,

children are defined as minors up to the age of 18, whereas the Asylum Procedure Act only grants special

protection to minors up to the age of 16.

115 Berlin (in Köpenick), Brandenburg (in Eisenhüttenstadt), Hesse (in Offenbach), North Rhine-Westphalia

(in Büren, Moers and Neuss), Rhineland Palatinate (in Ingelheim and Zweibrücken/Birkhausen), Schleswig-

Holstein (in Rendsburg) ; (Jäger 2004). Separate institutions have also been set up by the states of Bremen,

Saarland and Lower Saxony. In addition, airport facilities at Frankfurt/Main comprise a detention facility for

foreign nationals who are to be removed (Council of Europe 2003b: 24).

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If deportation detainees are committed to regular prisons (JVA), the conditions of the detention can differ, due to the fact that it is often impossible to exclude these detainees from daily routines there, or the fact that prison staff does not have the necessary resources in order to implement separate conditions. The same is true for penal institutions for detainees awaiting trial. Deportation detain-ees are usually excluded form additional options, such as sports activities, vocational training and work opportunities, which are offered to inmates of regular penal institutions. As deportation de-tainees are not obliged to work, penal institutions do not have to offer them any work opportunities. Occasionally, there has also been criticism of the high occupancy rate in detention pending depor-tation centres. In a similar vein, deportation detainees whose status has been transferred from im-prisonment to detention pending deportation have sometimes expressed the opinion that condi-tions for regular inmates are better, on account of the work opportunities and the possibility to earn some money (Heinhold 2004a: 28f.; Babo 2004: 359; Grimm 2004b: 38; Horstkotte 1999: 34).116

Separate detention centres for deportation detainees are able to be more accommodating as far as detention conditions are concerned. The detention pending deportation centres in Berlin, Bremen and Schleswig-Holstein, for example, try to accommodate the interests of inmates concerning their age, sex, religion, ethnic origin, family matters, work opportunities, social contacts and visits, as well as concerning counselling and support by social workers. For instance, legal regulations for detention pending deportation in Berlin allow single occupancy of cells for deportees who have been in detention for more than six months, in contrast to the regular practice of multiple occu-pancy. In addition, the detainees can also be granted work opportunities and further training in or-der to facilitate their repatriation.117 In view of these facts, there have been some demands to sepa-rate detention pending deportation from regular imprisonment, institutionally as well as far as the conditions of the detention are concerned (Babo 2004: 365f.).118

Due to the restricted possibilities in detention pending deportation centres, there have repeatedly been occurrences of protest. Heinhold (2004a: 39), for example, reported that 54 cases of hunger strike occurred in Berlin in the year 2003. There have also been reports of self-injuries and suicides among deportation detainees, but Heinhold (2004a: 50) has pointed out that these occurrences are often mainly due to psychological problems of the persons concerned (mental illnesses, depres-sion). In addition, other personal problems and difficulties also often play a role, so that the deten-tion as such should only be regarded as the third reason underlying these problems.119

116 Horstkotte (1999: 34) has pointed out, however, that these statements could also be influenced by the

fact that in these cases a relationship of mutual trust had developed between prison staff and long-term de-

tainees who were then relocated to a different institution.

117 §§ 3 Par. 2, 3, 5; Berlin state law on detention pending deportation (GVBl. 1995, p. 657).

118 One has to keep in mind, however, that state authorities are responsible for respective regulations. The

federal government supports proposals for separating detention pending deportation from regular imprison-

ment (Council of Europe 2003b: 24).

119 Heinhold’s statements are apparently based on statistics that have been compiled by the Anti-Racism

Campaign in Berlin, which publishes an annual documentation on this matter. This publication reported 393

cases of self-injuries and 49 suicides that occurred in detention pending deportation in the period between

January 1, 1993 and December 31, 2005 (Online: http://www.anti-rar.de/PE_ARI_DOK_13.pdf). As for fig-

ures that have been published by state governments in the context of parliamentary enquiries, cf. Jäger

2004.

81

Detention pending deportation centres in Germany have repeatedly been visited by the Council of Europe’s Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Pun-ishment (CPT).120 In its reports, the committee has criticised some conditions that were witnessed during inspections of detention centres, for example concerning the provision of health care, the selection of staff, security measures as well as the accommodation and facilities in the detention centre at Frankfurt/ Main airport (Council of Europe 2003a: 25-35, 60f.; 1999: 13-17). But the report also points out that there have been no allegations or proof of physical ill-treatment at detention centres at Frankfurt airport or other institutions for deportation detainees that have been visited by the Committee. In its response, the Federal Government has pointed out that the federal states concerned have made an effort to respond to the criticism whenever possible. Furthermore, a new and better equipped building was opened at Frankfurt airport in 2002. In addition, the Federal Gov-ernment repeated the statements which it had already made in response to the report of UN Com-mittee against Torture, pointing out that some federal states (Berlin, Bremen, North Rhine-Westphalia) have set up advisory committees that regularly visit detention centres, talk with de-tainees, observe detention conditions and contribute to improvements (Council of Europe 2003b: 25f., 33f.; United Nations – Committee against Torture 2003: 16).121

Duration of detention pending deportation or stay in departure centres

According to regulations in the Residence Act concerning detention pending deportation, the dura-tion of preparatory detention may not exceed six weeks (§ 62 Par. 1 S. 2 Residence Act). Security detention, on the other hand, can be imposed for a period of up to 18 months (§ 62 Par. 3 Resi-dence Act). Under normal circumstances, the requested duration of security detention should not exceed three months. According to the provisional implementation guidelines for the Residence Act, detention exceeding a period of six months is only proportionate and admissible if the foreign national concerned is personally responsible for the extended duration of deportation measures. If it is certain, however, that the deportation cannot be implemented during the following three months, and if the foreign national concerned is not personally responsible for the delay, further extensions of the detention period are inadmissible. If foreign-resident authorities request detention periods of up to six months, they have to set forth grounds justifying this extended period of deten-tion. If it is obvious that the deportation measure can not be implemented during the next six months, and if the foreign national concerned is not personally responsible for the delay, it is inad-missible to impose detention for a period of six months on the basis of security grounds. Circum-stances in which foreign nationals are regarded as personally responsible for the delay include cases where the persons in question have created an obstacle to deportation through their own actions (e.g. by destroying travel documents). If foreign nationals refuse to cooperate in deporta-tion measures, e.g. by refusing to cooperate in efforts to obtain new travel documents, or by refus-ing to take part in identification proceedings at embassies of their supposed home countries, it is

120 Inspections by the Committee took place in the years 1991, 1996, 1998 (Frankfurt/Main airport only),

2000 and 2005 (cf. http://www.cpt.coe.int/en/states/deu.htm).

121 According to press reports, the latest report by the CPT comes to the conclusion that none of the deten-

tion centres for deportation detainees visited by the Committee has sufficient staff or material resources in

order to guarantee adequate detention conditions that would be in accordance with the status of the detain-

ees concerned (cf. e.g. Hamburger Abendblatt, February 28, 2006, Online:

http://www.abendblatt.de/daten/2006/02/28/538201.html). At the time when this study was compiled, the

latest CPT report had not been published yet.

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admissible to extend security detention by 12 months, up to a maximum period of 18 months. Dur-ing this period, foreign-resident authorities have to review regularly if the grounds for detention still exist. The authorities also have to include notes concerning these reviews in the files of the per-sons concerned. If the grounds for the detention do no longer exist, the implementation of deten-tion pending deportation has to be suspended immediately, and authorities have to submit a re-quest for terminating the detention (provisional implementation guidelines for the Residence Act No. 62.3).122

With regard to the practice of detention pending deportation, NGOs, churches and other organisa-tions have criticised that detention is imposed too rapidly, too frequently and for periods of time that are too long (Babo 2004: 364 Fn. 52; Deutscher Caritasverband 2006: 413; Heinhold 2006: 366). Consequently, there have been several demands for reducing the maximum period of detention as well as extensions of detention periods (Beauftragte 2005: 385; Renner 2004: 8; Babo 2004: 365; Horstkotte 1999: 33).123 The Federal Government has expressed the view that long detention peri-ods are rather infrequent and are only imposed in cases where foreign nationals refuse to cooper-ate. It is nevertheless essential that the principle of proportionality is observed in these cases, too, a point which has also been emphasised in rulings of the highest courts124 (United Nations – Committee against Torture 2003: 16).

Data on the duration of detention pending deportation is not compiled consistently throughout Germany. But the information provided by some state governments confirms the view that in many cases foreign nationals have to remain in detention pending deportation for a few days or weeks only (Jäger 2004; Hatz 2005).125 There have also been cases where detainees were released even though deportation measures could not be implemented, which can be due to the following rea-sons: decisions by local courts to terminate detention, detainees cannot be kept in detention be-cause of illness, unsuccessful identification measures or failed attempts to obtain passport re-placement documents, as well as considerations of proportionality. Furthermore, it is also possible that foreign nationals submit an asylum petition or follow-up petition, that the circumstances under-lying the case have changed, that factual obstacles to deportation have arisen, or that the persons concerned are relocated to other federal states (Lindemann 2006: 215). There is also no reliable data on the number and proportion of cases where foreign nationals have been released from de-tention pending deportation. This is due to the fact that in most cases there are no separate statis-tics on releases. On the basis of data provided by some federal states over several years, it can be estimated that the proportion of detainees that have been released amounts to roughly 20%. Ex-perts working in the field, however, estimate that the actual proportion amounts to as much as 40% (Jäger 2004; Heinhold 2004a: 58f.).

122 These regulations also apply in cases of rejection and removal of foreign nationals.

123 Renner (2004: 8) has expressed the opinion that a period of six months should be the maximum, due to

the fact that longer periods of detention could have the character of coercive detention, which is not legally

admissible.

124 Ruling of Federal Constitutional Court, of December 15, 2000 (Ref. 2 BvR 347/00).

125 In some cases where the duration of detention was longer, there have been reports about protests which

were started by detainees in an effort to force authorities to release them (protests, hunger strikes, handing

over lists of demands, demonstrations, occupation of roofs, setting fire to cells, noise protests, self-injuries

etc.). In most cases, these protests have not been noticed by the public. In part, authorities have reacted in a

flexible manner to these protests, for example by suspending the detention in cases of long-term hunger

strikes in order to prevent casualties (Melter 2000: 71-76; Steinke 2002: 37).

83

In contrast to detention pending deportation, stays in departure centres are not limited temporarily. There have been reports that in some cases foreign nationals had to stay in departure centres for several years. Jurisdiction on this matter has not been consistent. Some administrative and upper administrative courts have repealed orders committing foreign nationals to departure centres, criti-cising the long duration of stays and ruling that they would be in contradiction to the principle of proportionality. The Administrative Court in Braunschweig, for example, has ruled that legal regula-tions do not authorise a “permanent break-up of accustomed living conditions for the purpose of exerting pressure”.126 In a different ruling, however, the same court has also pointed out that “ex-tended stays [can] be […] proportionate in cases where further identification measures are possible and foreign nationals are not subjected to restrictions of their personal freedom that exceed restric-tions that are imposed on foreign nationals who have been placed in other forms of accommoda-tion”127, for example in accommodation centres for asylum seekers. Other courts of law have also pointed out that placements in departure centres are inadmissible if they amount to victimisation or have only been imposed for the purpose of breaking the will of the foreign nationals concerned.128 The previous Federal Government Commissioner for Foreign Resident Affairs and Integration has also presented proposals for limiting the duration of stay in departure centres (Beauftragte 2005: 386). Currently, however, the implementation of these proposals seems unlikely.

4.3.4 Transport and return measures

After an expulsion order terminating the residency of foreign nationals has been issued, the subse-quent deportation legally constitutes a measure implementing the obligation to leave the country by force, by means of transporting the foreign national concerned “in person” to the national borders. Formal proceedings are as follows: foreign-resident authorities send the implementation request, passport, passport replacement or other travel documents to state police authorities, which assist the foreign-resident authorities in implementing the expulsion order. The state authorities will then notify federal border authorities (i.e. usually the Federal Police) of the planned deportation and discuss necessary organisational measures. Subsequently, border authorities send a response to state police authorities, confirming that they will take over the foreign national concerned and in-forming foreign-resident authorities about the date of the transfer (provisional implementation guidelines for the Residence Act No. 58.0.3).

According to legal regulations, authorities do not have to announce the date on which a deportation is to be implemented (cf. §§ 59, 60a Par. 5 No. 3 and 4 Residence Act). In order to prevent that the foreign national concerned goes underground shortly before the planned deportation, the authori-ties have thus the possibility not to announce the scheduled date in advance. In some cases, de-portees are also picked up by the authorities at night, which is usually explained by the fact that the transfer to a specific airport has to begin well in advance in order to be able to reach a specific in-ternational flight connection. These proceedings are regarded as a less severe infringement of the personal rights of deportees, in comparison to committing them to a detention centre overnight. In addition, the detention would require judicial authorisation (Schneider 2006: 53; cf. chapter 4.3.3).

126 Decision by Administrative Court Braunschweig of August 29, 2002 (Ref. 3 A 110/02).

127 Decision by Administrative Court Braunschweig of January 15, 2004 (Ref. 3 A 241/03).

128 Decision by Upper Administrative Court of Rhineland Palatinate, of October 17. 2001 (Ref. 7 B

11319/01.OVG); decision by Administrative Court Trier of March 19, 2003 (Ref. 5 K 1318/02.TR). See also

Heek (2004: 21f.), Thal (2005: 8) und Mesovic (2003).

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Some states have also experimented with other approaches. Berlin, for example, offers the possi-bility of what is called “turning oneself in”, i.e. foreign nationals are not taken into detention pending deportation if they show probable cause that they will report to the police at a fixed date; in addi-tion, it is required that a third party (e.g. a church congregation) vouches for the person concerned (Steinke 2002: 38).

As for Dublin cases, the Federal Office for Migration and Refugees (BAMF) is responsible for coor-dinating transfer measures. When the EU member state concerned has agreed to the transfer, the transport is planned in cooperation with authorities in the fellow member state, German border and police authorities, as well as local foreign-resident authorities. The date and other modalities of the transfer are agreed upon in direct talks with the European counterparts. The foreign nationals con-cerned are issued so-called Laissez-Passer documents for crossing national borders. Under nor-mal circumstances, there is a six-month time limit for the transfer, which begins at the time when German authorities receive the approval of a fellow EU member state. This period of time can be extended up to one year, if the foreign nationals concerned are taken into detention, and up to 18 months, if they have gone underground.

Return measures can be conducted via air, land or sea, the latter two options being the least fre-quent ways of transport. Return measures by sea comprise, above all, rejections of migrants arriv-ing via Scandinavia or the Baltic states. The great majority of return measures, however, are con-ducted by air. These return measures are in most cases organised by federal police authorities, which also allocate accompanying personnel in order to guarantee security and order during the flights. But some federal states (e.g. Baden-Wuerttemberg, North Rhine-Westphalia and Hamburg) also conduct their own return measures via air. Other states have commissioned centralised au-thorities to coordinate return measures, with the assistance of the Federal Police Central Bureau.

Return measures by air can be conducted with or without accompanying security personnel. In cases of unaccompanied repatriations, return measures are organised by foreign-resident authori-ties in direct cooperation with airlines and, if necessary, federal police authorities at the airport. In cases of accompanied repatriations, local foreign-resident authorities have to provide grounds jus-tifying the need for accompanying security personnel. The federal coordination centre for return measures in Koblenz, which is part of the Federal Police Central Bureau, organises the details of these return measures in cooperation with foreign-resident authorities and federal police authorities at the airport. When the foreign nationals who are to be returned are transferred to the airport, they are transported to the airplane after passing through police checks. In some cases, security per-sonnel only accompany the foreign nationals concerned on board the aircraft129, but in other cases returnees are accompanied until German authorities are able to transfer them directly to the au-thorities in the country of destination. Usually, the accompanying personnel are provided by federal police authorities, but it is also possible that security personnel are provided by airlines or other countries. In a few cases, state police officers accompany returnees, for example when state au-thorities want to ensure that serial offenders are deported without delay and no federal police offi-cers are available at short notice (Interview with Federal Police Central Bureau; cf. also Pütter 2000).

If the authorities assume that deportees will put up resistance, deportees can be restrained. This measure has to be employed in accordance with the principle of proportionality, federal police au-thorities working on the general assumption that this measure is not necessary, the exception be-

129 The majority of deportations via air are conducted without accompanying security personnel (Schneider

2006: 55).

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ing cases where foreign-resident authorities or state police authorities have sent information be-forehand indicating that this measure would be necessary. If deportees are already restrained when they are transferred by state police to federal police authorities, the latter do generally keep deportees restrained. However, federal police authorities do not implement deportations at any cost in cases where deportees put up great resistance (Interview with Federal Police Central Bu-reau).130 According to the Regulations Concerning the Return of Foreign Nationals via Air (Best.-Rück Luft), the following main forms of restraining are admissible: steel cuffs (handcuffs), body restraints (Body Cuff) with helmet for head protection and in order to prevent biting. Since the 1990s, the gagging of deportees has been strictly banned and has thus no longer been used since that time (Heinhold 2004a: 60). The Body Cuff, as well as head protection and bite protection sets, which legally constitute measures of physical force, are generally only employed if the return measure is conducted by chartered airplane, as several airlines refuse to accept deportees without such restraints. Using chartered airplanes is regarded as the appropriate measure for returning refractory deportees. It also avoids protests by other passengers, which can occur on scheduled flights, against the use of (necessary) physical force against returnees. Chartered airplanes have been used since 1993, and the more expensive collective flights by small chartered aircraft have been used since 2002 for return measures where the authorities assume that returnees will put up fierce resistance (Ellermann 2006: 301-303).131

We have received no reports about group resistance by returnees trying to obstruct collective char-tered flights. On these flights, two to three police officers on average accompany each returnee. If problems arise, there is also the possibility of allocating additional police officers. On scheduled flights, on the other hand, most airlines demand that only one person is returned per flight. On these flights, the accompanying security personnel do not wear uniforms. In part, airlines also send security personnel of their own on these flights, if requested by the Federal Police Central Bureau or state authorities (Interview with Federal Police Central Bureau).

Training for accompanying security personnel

Since 1986, special training courses have been organised for police officers accompanying return operations. Originally, the training course lasted only one week. However, after a foreign national died during a forced return measure in 1999,132 it was concluded that the methods of physical force used, as well as procedural steps and responsibilities, were not appropriate. As a consequence, an extended three-week training course was introduced, with one week focussing on enforcement methods (e.g. restraining techniques, handling the Body Cuff, head protection and bite prevention), followed by a two-week course focussing on intercultural competences, psychology, first aid, legal matters, the English language and, above all, the Regulations Concerning the Return of Foreign Nationals via Air (Best.-Rück Luft). The training course is accompanied by several tests. Success-ful participants can thus acquire an additional qualification certifying that they have been trained for

130 As for deportation measures that had to be abandoned, cf. table 17 in the appendix.

131 Such collective chartered flights, which are coordinated by the Federal Police Central Bureau or state

authorities, have for several years also been conducted in cooperation with several other European states

(cf. chapter 3.2). The evaluation of these cooperative measures has been partly funded by the ARGO pro-

gramme.

132 For more information on the death of Amir Ageeb, a national of Sudan, and the ensuing legal proceed-

ings, cf. Mesovic 2005.

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participating in accompanied return measures. Federal police personnel that have been participat-ing in return measures over a period of three years will then take part in an additional training measure, which is followed by regular follow-up training courses every two years. The participation of police officers in the training courses for accompanied return measures is voluntary, in order to ensure that police officers are not allocated to these return measures against their will (Interview with Federal Police Central Bureau).

These training courses, together with the Regulations Concerning the Return of Foreign Nationals via Air (Best.-Rück Luft), have apparently improved the situation concerning the use of physical force during return measures. This evaluation has also been confirmed by the fact that since the year 2000 the annual reports by Amnesty International have not included any reports on alleged physical mistreatment by police officers during return measures (Amnesty International 2000-2006).

Since 2006, there have also been joint training courses with security personnel from other EU member states, which have been organised in the context of FRONTEX. Similarly, mutual ex-change visits have been organised between security personnel in different countries. According to the Federal Police Central Bureau, these exchanges have shown that, since the introduction of Regulations Concerning the Return of Foreign Nationals via Air (Best.-Rück Luft), the standards in Germany are usually higher than in other countries (Interview with Federal Police Central Bureau).

Consideration of medical aspects in return measures

In Germany, illnesses or medical conditions posing obstacles to deportation have been a conten-tious issue as they can have the effect of obstructing forced-return measures.133 Statements alleg-ing such medical obstacles to deportation are mainly based on severe illnesses, suicidal tenden-cies or post-traumatic stress disorder (PTSD).134 The number of diagnosed cases of post-traumatic stress disorder in particular has been increasing, prompting some experts to refer to PTSD as the “fashionable diagnosis“ (Middeke 2004: 150).135 Statements to the effect that returnees are suffer-ing from these medical conditions are usually based on medical certificates issued by medical ex-perts or specialised institutions for victims of torture. These certificates have repeatedly met with criticism on the side of foreign-resident authorities and the Federal Office for Migration and Refu-

133 The following chapter is based on an overview which was published in Beauftragte (2005: 479f.).

134 Post-traumatic stress disorder (PTSD) is a term for severe “delayed or chronicial psychological

consequences of exposure to, or confrontation with, stressful events that the person experiences as highly

traumatic, or situations of extraordinary threat or catastrophic impact, generally leading to deep-seated

confusion and helplessness” (Middeke 2004: 150f.).

135 Statistics for such cases have only been available since the year 2005. During that year, 440 asylum ap-

plicants (155 men, 285 women) who had submitted medical certificates diagnosing PTSD were granted pro-

tection against deportation in accordance with § 60 Par. 7 Residence Act. Statement of Federal Government

in response to a parliamentary enquiry by MP Ulla Jelpke et al. (DIE LINKE): “Legal and administrative pro-

ceedings concerning traumatised refugees in Germany, against the backdrop of a ruling by the Federal Ad-

ministrative Court“ (1 B 188.05), (Bundestag Printed Matter 16/3746 of December 6, 2006, p. 3).

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gees, which have expressed concern that such certificates may have been written with the express purpose of protecting the foreign national concerned from return measures.136

One has to distinguish between obstacles to deportation which arise from conditions in destination countries, on the one hand, and obstacles to enforcement measures occurring in Germany, on the other. For example, an obstacle to deportation which is due to conditions in the country of destina-tion is posed by circumstances which would with a high probability lead to a severe deterioration in the health of the asylum seeker concerned.137 Respective decisions have to be taken by the Fed-eral Office for Migration and Refugees (BAMF) in the course of asylum proceedings (§ 24 Par. 2 Asylum Procedure Act). If statements alleging such obstacles to deportation are made after the completion of asylum procedures, they are reviewed in the context of follow-up asylum applications or requests to resume administrative proceedings. If the foreign national concerned has never submitted an asylum petition, his or her request for protection has to be reviewed by foreign-resident authorities, which, however, have to include BAMF in administrative proceedings (§ 72 Par. 2 Residence Act).138

Obstacles to enforcement measures arising in Germany, on the other hand, are reviewed by for-eign-resident authorities. In this context, the authorities have to review if health risks occurring be-fore the completion of deportation procedures pose an obstacle to the implementation of forced-return measures. The foreign nationals concerned are obliged to cooperate in respective adminis-trative proceedings (§ 15 Par. 1 S.1 Asylum Procedure Act; § 82 Residence Act). But the responsi-ble authorities also have the option, in accordance with § 82 Par. 4 Residence Act, of using force in order to implement these administrative proceedings. However, there have been divergent views about some of the proceedings, especially the question of which medical examinations can be or-dered, who is allowed to carry out these examinations or, respectively, who is able to conduct the examinations in a competent manner (Middeke 2004: 158f.; Wolff 2002: 12; Lucas et al. 2000: 403f.). In addition, there have also been differing views between the authorities and the medical profession as to the extent which medical examinations have or should have. After observing an increase in medical certificates issued shortly before the planned implementation of return meas-ures, the Conference of Interior Ministers (IMK) decided in 2002 to create a pool of medical doctors who would be chosen for the purpose of carrying out these examinations. However, these plans had to be abandoned, due to opposition of medical associations. The medical profession also criti-cised the list of criteria for medical evaluations of the fitness for flying, which was developed by a joint working group of federal and state authorities. Representatives of several federal states have expressed the view that the authorities only have to review whether returnees are currently fit for flying, or whether fitness for flying can be achieved by means of accompanying medical personnel and/or medication. The state of Lower Saxony, for example, has pointed out that the authorities

136 The Diakonische Werk in Hessen and Nassau, a charity affiliated with the Protestant church, has pointed

out that such accommodating medical certificates are inadmissible, according to general law as well as to

internal regulations of medical associations (Diakonisches Werk 2005: 20).

137 In the case of Bosnia-Herzegovina, for example, the Conference of Interior Ministers (IMK) has, since

2000, been of the opinion that sufficient capacities for treating traumatised patients are available there

(Volckens 2005: 67). For differing views, cf. e.g. Gierlichs 2006.

138 Proceedings by BAMF staff are conducted in accordance with official internal instructions on deportation

bans due to illness, which ensure that decisions are appropriate. Statement of Federal Government in re-

sponse to parliamentary enquiry by MP Josef Philipp Winkler et al. (GREENS): “Deportations via air in 2005“,

(Bundestag Printed Matter 16/1055 of March 27, 2006, p. 4).

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only have to review whether the deportation process itself poses a health risk, but not whether the living conditions in home countries could have an impact on the medical condition of deportees.139 Representatives of the medical profession, on the other hand, have emphasised that this would be insufficient, pointing out that, for reasons of medical ethics, reviews have to comprehensive and the situation in the home countries of deportees has, for example in the case of PTSD, to be taken into consideration, too. The debate about these questions has still not been resolved. A preliminary list of criteria, which was compiled by representatives of the federal states and the German Medical Association, was implemented by the state of North Rhine-Westphalia in late 2004 and by Schleswig-Holstein in early 2005 by administrative decree.

If there are facts indicating that impairments to health or health risks exist that could have an im-pact on the implementation of return measures, federal police authorities expect that the foreign-resident authorities who organise return measures have to conduct a current medical examination before returnees are transferred to federal authorities, in order to ensure that returnees are fit for flying. Statements by foreign-resident authorities to the effect that a returnee is fit for flying are suf-ficient for that purpose. Should such statements not be available, or if doubts arise on the day of the flight as to whether returnees are fit for flying, federal police authorities can contact public health officers at the large airports (Frankfurt). If returnees are not medically fit for flying, federal police authorities have to refuse participating in return measures, and will thus not act as accom-panying security personnel (Interview with Federal Police Central Bureau). According to state-ments of federal police authorities, there are only a few cases where the implementation of return measures had been abandoned for health reasons (Hitz 2006: 226).140

Cooperation with airlines and aviation regulations

Return measures that are conducted via scheduled flights offered by commercial airlines are, at last partly, based on bilateral agreements with these companies. Currently, the Federal Police Central Bureau has entered into such agreements with thirteen airlines141. These binding agree-ments regulate the modalities concerning accompanying security personnel allocated by the air-lines, for example. Some federal states, for example North Rhine-Westphalia, which organise their own deportation flights, have also centralised proceedings for booking flights, but they also have the possibility of using the agreements the Federal Police Central Bureau has entered into (Inter-view with Federal Police Central Bureau).142

139 Response of State Government to a parliamentary enquiry by MP Fililz Polat (GREENS): “Participation of

medical doctors in return measures” (State Parliament of Lower Saxony, Printed Matter 15/2139 of Septem-

ber 2, 2005).

140 Some federal states, however, have expressed the opinion that the insistence of federal police authorities

on documents certifying returnees’ fitness for flying could pose an obstacle to return measures, as doctors in

these cases often refuse to restrict their medical evaluations to the question of medical fitness for flying (BMI

2006b: 413f.).

141 Agreements have been reached with the following airlines: Adria Airways, Aeroflot, Ariana Afghan Air-

lines, Bulgaria Airlines, Macedonian Airlines, Middle East Airlines, Pakistan International Airlines, Tarom,

Transaero and Ukraine International Airlines, Airzena Georgian Airlines, JAT Airways, Montenegro Airlines.

142 North Rhine-Westphalia has allocated centralised responsibilities for this matter to the regional govern-

ment in Düsseldorf. As North Rhine-Westphalia also functions as the administrative centre of the “Working

Group Removal” (AG Rück), it has also been commissioned by all federal states to conduct additional

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When the responsible authorities book seats on commercial flights for returnees, the airlines only receive very general information about the reasons for the return measure. Seats for returnees are booked as DEPA or DEPU (deportation accompanied or deportation unaccompanied, respec-tively), accompanying police officers are booked as “escort“. Subsequently, the airline security de-partments review the bookings and, in some cases, express reservations. Renowned airlines, for example, will only accept “unproblematic cases”, fearing that disturbances at the airport or during the flight could discredit the company (Interview with Federal Police Central Bureau).143

In 1999, the International Air Transport Association (IATA) has issued “Guidelines on Deportation and Escort“, which have been incorporated into the Regulations Concerning the Return of Foreign Nationals via Air (Best.-Rück Luft). In addition, the regulations are also based on relevant interna-tional agreements, above all the Conventions on International Civil Aviation (Chicago Convention, Tokyo Convention). The International Civil Aviation Organization (ICAO) has agreed on several Annexes to the Chicago Convention, with Annex No. 9a being especially relevant for return meas-ures. As a general rule, these regulations have been incorporated into re-admission agreements which have been concluded in recent years (Noll 1997: 439). According to the literature, however, the question of using physical force on board an aircraft, in cases where returnees put up resis-tance, have not been resolved yet. As soon as the outer doors of an airplane have been closed, the accompanying security personnel are under the command of the aircraft captain. In the view of the Federal Ministry of the Interior, accompanying police officers can act in response to a request by the captain of the aircraft (delegation model). Baumann (2000), however, has raised doubts as to whether the authority of aircraft captains is sufficient to authorise the use of physical force against returnees for the purpose of implementing deportation measures for the entire duration of the flight. In his view, this question still has to be resolved at the international level. Hailbronner (2002), on the other hand, has expressed the view that federal police officers can also take action without authorisation by the aircraft captain. However, the commands of aircraft captains still take precedence as far as the safety of the aircraft and maintaining order on board the aircraft are con-cerned.

Support after return measures

As for accompanied return measures, the responsibilities of federal police authorities end as soon as returnees have been transferred to the authorities in the destination country. If subsequent sup-port measures should be necessary, e.g. after the deportation of a blind person, it is the responsi-bility of respective federal states or foreign-resident authorities to organise additional support (In-terview with Federal Police Central Bureau).

In order to prevent that returnees possibly have to return to their destination country without any ready cash, which – by the way - could also be a reason for their refusal to board a flight because the foreign nationals concerned would then be unable to pay for their onward journey from the air-port to their final destination, foreign-resident or federal police authorities can pay returnees a cash allowance, if necessary. If federal police authorities make this payment, they afterwards reclaim the expenditure from the responsible foreign-resident authorities. Some federal states, such as North

agreements with airlines, based on the bilateral agreements which have been negotiated by the Federal

Police Central Bureau.

143 Cf. chapter 3.1 above.

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Rhine-Westphalia and Rhineland-Palatinate, created a separate item in their state budgets for this purpose in 2004.144

Otherwise, German authorities are not responsible for enquiring about the whereabouts of foreign nationals in their home countries. However, if there are tangible allegations that the human rights of returnees have been violated after their deportation, the Foreign Office will make enquiries.145

4.3.5 Sustainability of forced-return measures

As mentioned above (cf. chapter 4.3), the expulsion, removal or deportation of foreign nationals automatically leads to a permanent ban on re-entering the country However, this ban may by re-quest be limited to a certain period of time, which is usually the case (§ 11 Par. 1 Residence Act). However, the return measure itself leads to a separate re-entry ban, which is independent of the expulsion order. Implemented return measures are registered, together with the period for which a re-entry ban has been imposed, in the Central Register on Foreigners, the police information sys-tem INPOL and the Schengen Information System (SIS), which results in a re-entry ban for the entire Schengen area. The request for limiting the duration of the re-entry ban can also be submit-ted after leaving the country. However, as return measures only take effect after their implementa-tion, all requests for limiting the re-entry ban can in principle only be reviewed subsequently, i.e. after returnees have left the country (Renner 2005: § 11 Residence Act, Margin No. 5).

Limiting the duration of re-entry bans can contribute to alleviating the consequences of the return measure for the personal circumstances of the foreign national concerned. It can also prevent that the consequences of re-entry bans which have been imposed on account of general prevention considerations are disproportional. However, the behaviour of the foreign national in question be-fore and after leaving the country has a significant impact on the evaluation of his or her request (provisional implementation guidelines for the Residence Act No. 11.1.4.3; 11.1.4.4.2). The legal regulations do not determine the duration of the re-entry ban. The duration depends on the follow-ing considerations: the question whether the goal of keeping the foreign national out of German territory has been achieved, new factual developments which have occurred in the meantime, the risk prognosis, and the question of whether the expenditure incurred by the deportation has been settled. A short duration of the re-entry ban can be justified under certain circumstances, e.g. when the foreign national concerned wishes to marry a German partner or a foreign national who is a legal resident of Germany (Renner 2005: § 11 Residence Act, Margin No. 12).

Pursuant to § 95 Par. 2 No. 1a and Par. 3 Residence Act, violations of the re-entry ban – as well as attempted violations - constitute a criminal offence. Data on the number of these violations can be gathered from the number of re-entry bans registered in SIS and the number of successful traces according to Art. 96 Schengen Implementation Agreement. In comparison to annual return figures, the number of violations of the re-entry ban is relatively low: 2,094 in 2003, 1,083 in 2004, 506 in 2005, and 503 in 2006.

144 Administrative regulations for paying these cash allowances require that the recipients are indigent. The

payments constitute a voluntary contribution by the federal states. Hamburg pays allowances in individual

cases after reviewing the specific circumstances.

145 Statement of Federal Government in response to a parliamentary enquiry by MP Ulla Jelpke (DIE LINKE):

“Deportation of migrants that have grown up in Germany” (Bundestag Printed Matter 14/2221 of November

29, 1999, p. 2).

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5 Bilateral and multilateral cooperation

The major precondition for the return of a foreigner in his or her country of origin is the admission and re-acceptance there. According to international common law, every country is under the obli-gation to accept its own citizens – also against their own will – if the host country demands this. This also includes that the countries of origin issue the necessary travel documents without delay, if those are required.146 However, the acceptance of citizens of third countries can only be deter-mined in accordance with international agreements. Readmission agreements are the correspond-ing legal instruments which regulate the modalities of the readmission process, for instance how the citizenship has to be proved (Hailbronner 1996; Lehnguth et al. 1998: 60-62.).

Readmission agreements are necessary for an “effective return management”. This should, as much as possible, be regulated in a standardized way across Europe, so that the individual mem-ber states are not played off against each other. Should it not be possible to close full agreements though, arrangements on procedures or purely technical arrangements are also possible (Memo-randa of Understanding) (BMI 2006a: 167).

Some authors voice their concern that the extension of a system of agreements could convey the impression that the basic principle of readmission of citizens, in accordance with international law, might actually be too weak and only becomes effective after this sort of readmission agreements has been negotiated. This basic principle might also be eroded by the fact that readmission agreements are regularly linked to reward systems, e.g. economic or social assistance. For that reason, Germany does not negotiate with countries of origin step by step, matching payments with delivery. 147 Potential assistance for the signatory countries, which might in some cases be relevant from a development and migration perspective, are not directly linked to the readmission agree-ments (Schneider 2006: 73f., 81).

Overview on readmission agreements

Readmission agreements do not create obligations for return. It is only agreed that the contractual partners accept certain groups of persons on request. Lehnguth et al. (1998: 64f.) differentiate the agreements according to the respective groups that are re-admitted:

- own citizens; - the contractual partners’ own citizens and persons that have become stateless; - the contractual partners’ own citizens, persons that have become stateless and foreign citi-

zens who reside illegally on the other contractual partner’s territory; - foreign citizens who can be brought through the territory of one contractual partner for the

purpose of transit to the country of origin.

In addition, there is a variety of international agreements which include readmission stipulations, related to the respective subject matter of the contract.148 Agreements that concern the contractual

146 This also includes that a state cannot evade its obligation by expatriating the person in question, or turn-

ing him or her stateless (Lehnguth et al. 1996: 63).

147 The competence for closing readmission agreements has been transferred to the EU in 1997 with the

Treaty of Amsterdam. Until the EU has not closed agreements with the respective countries though, the

member states enter these agreements of their own accord (Art. 63 Par. 3b EGV i.V.m. Art. 24 EUV).

148 This also includes agreements on commuter border traffic or large-scale multilateral agreements such as

the ACP-EG-partnership agreement Art. 13 Par. 5 c (Official Journal L 209 of 11.8.2005).

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partners’ citizens shall confirm the existing duties in accordance with international law. They gain political significance as in many cases an agreement could be reached after the countries had fully rejected readmission or had only accepted it subject to adverse conditions. For that reason, it makes sense from the receiving country’s perspective to exert influence on those “problem states” and to enter the respective agreements. Normally they consist of the following components:

- acceptance of the duty to readmit in accordance with international law; - regulations on produced evidence and credibility of the citizenship; - regulations on the readmission procedure; - the obligation to accept the readmitted person, even if, by mistake, he or she does not have

the contractual partner’s citizenship; - a “non-affection clause” which does not limit the “non-refoulement” obligation of the Ge-

neva Convention; - regulations on cost absorption; - data protection regulations (in more recent agreements) (Lehnguth et al. 1998: 65-67).

Usually the German bilateral agreements are mutual. Exceptions are the agreements with Mo-rocco, Algeria and Vietnam. The agreement with Vietnam also differs in some respects from other agreements as it includes provisions on voluntary return, in addition to the readmission, if the Viet-namese in question are not in possession of the required travel documents (Lehnguth et al. 1998: 69).

Agreements that also include foreign nationals have already been concluded by Germany with almost all Western European countries in the 1950s and 1960s. Apart from the above-mentioned components, they usually include additional provisions on readmission deadlines and regulations on the provision of evidence on illegal entry to the contractual partner’s territory (Lehnguth et al. 1998: 71f). Such agreements also have the implicit agenda that the contractual partners improve their border controls in order to prevent illegal entries from their territory (Noll 1997: 419).

Agreements on the regulation of transit allow the transport of foreign nationals through the contrac-tual country without a transit visa. It can also be stipulated as to whether the readmitted persons are accompanied by security forces of the receiving country or the transit country. These kinds of agreements are justified if the transit states are reluctant to readmit foreign nationals themselves. Germany has used this instrument, for example, for returns to Bosnia-Herzegovina. At the same time, Germany urges the transit states to better attend to migrants that are crossing their territory (Lehnguth et al. 1998: 72f.; Schneider 2006: 73).

Categorizing the German agreements149 according to regional aspects, one can see a focus on Eastern and South-eastern European countries as of today. These agreements were concluded at the beginning of the 1990s. At first, they primarily applied to the respective own citizens, but they have been modified over the time when it became apparent that those countries were also used as transit states. These agreements were amended150 by additional financial protocols, partly in view of the imminent EU enlargement. These amendments served the purpose of covering the financial and administrative challenges through increased numbers of returns and in order to establish a sustainable asylum system. In the meantime, most of the agreements have been extended and include foreign nationals (Schneider 2006: 75-77).

149 Please see the list of German agreements in appendix IV.

150 In the mid 1990s with Poland and the Czech Republic, for example.

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Another group consists of agreements with the Northern and Western European countries originat-ing from the 1950s and 1960s, which are successively modernized. Other agreements were closed with countries in Africa and Asia, including the non-reciprocal agreements with Vietnam, Algeria and Morocco. Finally, transit agreements for the return to Bosnia-Herzegovina have been closed with a number of states during the 1990s (Volckens 2005: 63).

This overview shows that Germany has established a relatively extensive system of readmission agreements, which is continuously being expanded. Between 2000 until mid-2006 alone, twelve agreements have been closed. In addition, there are ongoing negotiations with the Lebanon, Georgia, Ethiopia and Nigeria. Adding to those are the readmission agreements closed by the European Commission (Schieffer 2003; Kruse 2004). Regarding the evaluation of the agreements, Hailbronner/Häußler (2001: 230f.) point out that it is not so easy to measure their efficiency as, as the respective regulations, for example for affirming the person’s identity, even if defined by the respective countries, can be blocked by a strict interpretation. In the authors’ judgement a final evaluation of the efficiency of those agreements will only become possible if it is included in the contracts that the countries of origin are under the obligation to provide evidence (see also Koser 2000: 72).

Cooperation with transit / return countries and international organisations

The cooperation with transit and return countries works in different ways. Regarding questions of transit, for example, technical agreements are closed which make the return easier. In 2005, the inspector of the Federal Police, for example, has reached an arrangement with his Russian coun-terpart on Russian support for the transit to Vietnam via the airport Domodedowo (Interview Fed-eral Police). Regarding issues of return, various countries of origin attach conditions, such as the limitation of the numbers of returnees per flight or the link of returns to financial commitments. In some cases, the procedure of the return is aggravated, if accompanying officials don’t get a visa, or if multiple visa are rejected and therefore the accompanying officials have to apply for (expen-sive) one-travel visa again and again (Interview Federal Police).

When countries agree in principle to conclude readmission agreements, the negotiations might drag on for some time if certain provisions are not desired, for example the readmission of third country nationals. In some cases there might be disagreement on the return procedure fixed by the contract. These disagreements exist, for example, with the UN provisional administration in Kos-ovo, UNMIK. The federal states that return persons to the Kosovo report that UNMIK disregards the arrangements151 that have been agreed with the Federal Ministry of the Interior, independently adjudge the returnees’ health conditions, separately decide matters of family separation and be-longing to an ethnic group, and, in some cases, reject returnees or send them back (IMK 2005; Dethloff 2006: 143).

However, cooperation with UNMIK is extensive as a German liaison official is based in their local Office for Communities Returns and Minority Affairs (OCRM). Apart from the cooperation with IOM (cf. chapter 4.2), the Federal Republic of Germany also cooperates with UNHCR. The regional representation for Germany, Austria and the Czech Republic provides, for example, information on the countries of origin which is fed into ZIRF at the Federal Office (cf. chapter 4.2.2). Together with BAMF and IOM, UNHCR participated in information events on voluntary return to Afghanistan in

151 Memorandum of Understanding between BMI and UNMIK on the deportation of ethnic minorities to the

Kosovo of March 31, 2003.

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2005. The German representation is also in close contact with the nationally operating associa-tions, in order to carry out individual checks regarding the possibility of “sustainable solutions”, if need be (Interview UNHCR).152

6 Conclusions

The study at hand deals with both voluntary and forced return of primarily third country nationals who are under a legal obligation to leave the country. In view of the limited number of available publications with a focus on this rather specific issue, this study is apparently the first one that pro-vides an overview on a broader spectrum.

There is no legal definition of the term return in Germany. There is a variety of terms referring to the individual stages of the proceedings (e.g. expulsion, notification of deportation, security deten-tion, and deportation) which are clearly defined in the Residence Act. Voluntary return, however, is indeed mentioned in law texts, but neither the total process nor individual stages are specified. There is disagreement in the public discourse about the definition and what voluntariness means in assisted voluntary return.

The categories of returnees are manifold, even if only persons under a legal obligation to leave the country are considered. Usually the categories depend on the other legal status and the options to enforce the obligation to leave the country. Equally, all the persons who use (assisted) voluntary return can be differently categorized according to their legal status.

Looking at the data on all returns, decreasing numbers of persons who have been returned or who returned voluntarily can be identified since 2000. Altogether, the availability of data is not entirely satisfactory. On the one hand, there is indeed a range of data available on forced as well as on voluntary return. On the other hand, many questions cannot be answered on the basis of the exist-ing data material. This includes information on persons who, immediately and without assistance, comply with their obligation to leave the country, who return or are returned individually or together with their family, or who are assisted by other programmes than REAG/GARP. In addition, it can-not be conclusively reconstructed to what extent executed expulsions result in forced or voluntary return respectively. Moreover, there is a lack of valid data on the number of persons in detention pending deportation in Germany.

The political debate in Germany focuses on the question in what way the existing regulations should be, where necessary, extended or - in the case of voluntary return – reformed. With regard to forced return the emphasis lies on the consistent continuation of the policy which essentially happens in accordance with the European strategy of harmonization in the area of combating ille-gal migration. Promoting voluntary return shall be further intensified, with the emphasis on improv-ing the quality. The increasing numbers seem to be promising. In the public debate, NGOs as well as welfare organizations and churches voice public criticism against forced and voluntary return. Many aspects of forced return are in principle criticised (deportations, detention pending deporta-tion, repatriation centres and others). (Assisted) voluntary return is partly criticised as complement-ing the policy of forced return. At the same time, it is more and more accepted by a number of

152 Sustainable solutions for UNHCR are the return to the country of origin, the integration in the receiving

country or the onward migration to a third country. Two members of staff in the Berlin representation are

responsible for the Kosovo as well as for Iraq and Afghanistan (Interview UNHCR). See also BMZ 2006.

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stakeholders of refugee counselling as a humanitarian alternative and has been integrated in the counselling schemes.

From a legal perspective, forced return is based on a profound system which is, on the basis of cases, further developed in detail by lawmakers, including domestic regulations as well as from an international perspective (readmission agreements etc.). This also includes the European guide-lines and decisions in the field of return which have been implemented and are now executed. The federal government primarily provides a legal framework through the Residence Act which is im-plemented by the federal states, as those are responsible for the enforcement of forced return. The voluntary return, however, is enforced via programmes.

In principle it can be stated that there is a variety of stakeholders in government and administration as well as in civil society who work on return issues. The individual stages in the proceedings are manifold, are partly chronological or parallel. The costs for return cannot be readily determined as it is not clear which costs are included in the respective calculations. It is true that there is a num-ber of data available on this, but there is no all-inclusive registration of the costs on the national and state level. Furthermore, no scientific evaluation of return measures has been carried out yet. To do that it would need clarification of potential evaluation criteria and to what extent factors in the host country or also in the countries of origin should play a role.

The analysis of voluntary return showed that there are indeed a number of approaches to explain return motivations, but that empirically verified findings for the group of persons under a legal obli-gation to leave the country, who have been the focus of this study, are missing. This mainly affects the role of the context of the country of origin for the decision to return. Return counselling is car-ried out in various forms which can be roughly differentiated according to the question whether return is the main focus or only one partial aspect. There seems to be broad agreement though that the return counselling needs to set in as early as possible if it is supposed to result in actual return.

The majority of return assistance is made by financial support for travel expenses via the REAG/GARP Programme. However, there are also initiatives which are committed in a longer-term perspective in the returnees’ countries of origin. These kinds of projects have a significant impact for the sustainability of return and intertwine with projects of development cooperation. This con-nection goes beyond the scope of this study, but urgently calls for further examination.153

The analysis of forced return showed that despite extensive regulations the major problems in exe-cuting the duty to leave the country are identification and procurement of passports or replacement documents. The reasons for this are lacking cooperation of persons under a legal obligation to leave the country and/or problems in procuring these documents at foreign diplomatic missions. As a potential strategy to solve this problem increased specialization and centralisation for the proc-essing of passport procurement and return was selected (e.g. clearing houses / centralised foreign-resident authorities / central return offices). Measures to identify persons under a legal obligation to leave the country are manifold and range from regular interviews to institutionalization in departure centres. Conditions for detention pending deportation, which can last to up to eighteen months maximum, can differ in the responsible federal states regarding the organisation of the custody. The actual return measures might be executed via land or sea passage, the majority is carried out via air though. The procedure and the conditions (e.g. deployment of physical force) are regulated to a large extent, as well as the vocational training of the accompanying personnel. However, there is an ongoing discussion as to whether returnees are fit for air travel. The question of sustainability

153 For more information see enclosure of the German version Laaser 2006.

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of forced return can, from a German perspective, only be answered by pointing out that there are relatively few violations of re-entry bans. No statements can be made regarding the sustainability of return in the country of origin though, as there are hardly any studies available.

Potential research that results from the overview presented in this study might be developed from various perspectives. There is the option of extending the overview by including the remigration of foreign labour, educational migrants and other groups (who are not under a legal obligation to leave the country) in order to identify potential links or synergy effects, e.g. for return counselling. Regarding voluntary return, further information should be gathered on motivation structures and the impact of incentives. This leads to questions on the sustainability of voluntary and forced return and its consequences for the countries of origin. These questions have been insufficiently an-swered yet, if at all. In terms of considering return not necessarily as a definite (re)migration proc-ess, research could be also combined with scientific studies on circular migration. Regarding forced return, studies are of course more difficult. But even here one could look into the develop-ment of indicators, for example, in order to be better able to evaluate the efficiency of individual measures (e.g. departure centres).

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108

II Statistics

Table 10: Expulsion statistics stored in Central Register on Foreigners as of 31.12.2005

Table 11: Persons with stored enforceable or unappealable expulsion (2000-2005)

Expulsion order, with time limit, not enforceable yet 141

Expulsion order, without time limit, not enforceable yet 7.864

Expulsion order issued, with time limit, immediately enforceable 256

Expulsion order issued, without time limit, immediately enforceable 7.804

Expulsion order issued, with time limit, unappealable 197

Expulsion order issued, without time limit, unappealable 14.251

according to § 5 Par. 5 Freedom of Movement Act/ EU(Loss of right to entry and residence) stated, unappealable

0

according to § 6 Par. 1 Freedom of Movement Act/ EU(Loss of right to entry and residence) stated, unappealable

45

Total sum: 30.558

Source: AZR

Expulsions as of 31.12.2005

2000 2001 2002 2003 2004 2005

Baden Wuerttemberg 2.010 1.803 2.118 2.336 2.245 1.922 Bavaria 1.843 1.814 1.840 1.809 1.895 1.421 Berlin 319 531 778 613 332 180 Bremen 87 103 85 181 165 96 Hamburg 1.771 1.969 1.425 1.167 873 536 Hesse 2.856 2.734 2.466 2.675 2.073 1.310 Lower Saxony 969 912 959 1.008 782 512

North Rhine-Westphalia 2.300 2.681 2.884 3.281 2.750 1.903

Rhineland Palatinate 418 407 426 432 296 194 Saarland 44 47 72 63 42 19 Schleswig-Holstein 192 199 274 189 146 68 Brandenburg 224 204 223 147 165 82 Mecklenburg Western

Pomerania70 59 61 41 40 19

Saxony 1.257 1.121 804 523 455 338 Saxony Anhalt 168 181 155 155 108 96 Thuringia 197 184 158 149 100 61 Germany 14.725 14.949 14.728 14.769 12.467 8.757

Total stock as of 30.11.2006 Source: AZR

Calendar year

109

Table 12: Deportation by air, top 10 according to nationality (2000-2005)

Yugoslavia 7.089 Turkey 4.097 Yugoslavia 4.916 Serbia and Montenegro 4.437 Serbia and Montenegro 4.421 Serbia and Montenegro 2.930

Turkey 4.982 Yugoslavia 3.576 Turkey 4.531 Turkey 4.182 Turkey 3.666 Turkey 2.849

Romania 1.966 Ukraine 2.158 Bulgaria 1.608 Bulgaria 1.518 Bulgaria 1.208 Vietnam 934

Ukraine 1.951 Romania 1.685 Ukraine 1.556 Romania 1.445 Vietnam 1.036 Bulgaria 879

Bulgaria 1.282 Bulgaria 1.244 Romania 1.343 Ukraine 1.189 Romania 1.013 Romania 862

Bosnia-Herzegovina 1.124 Poland 902 Vietnam 952 Vietnam 992 Ukraine 998 Ukraine 776

Poland 1.062 Lithuania 847 Poland 806 Russian Federation 648 Russian Federation 782 Russian Federation 565

Vietnam 940 Russian Federation 722 Lithuania 755 Lithuania 621 Georgia 575 Algeria 377

Macedonia 881 Vietnam 717 Russian Federation 744 Poland 552 Algeria 531 Albania 372

Moldova 869 Moldova 693 Bosnia-Herzegovina 640 Algeria 540 Bosnia-Herzegovina 463 Bosnia-Herzegovina 336

In total 25.223 In total 25.223 In total 26.286 In total 23.944 In total 21.970 In total 16.865


2004 20052000 2001 2002 2003

110

Table 13: Deportations according to federal states, top 3 according nationality (2000-2005)

Yugoslavia 1817 Yugoslavia 1080 Yugoslavia 1265 Yugoslavia 1070 Yugoslavia 540 Serbia and Montenegro 467

Turkey 631 Turkey 448 Turkey 442 Turkey 469 Turkey 458 Turkey 381

Bosnia and Herzegovina 181 Bosnia and Herzegovina 100 Romania 120 Romania 134 Serbia and Montenegro 268 Yugoslavia 240

Bavaria Yugoslavia 1180 Yugoslavia 652 Yugoslavia 625 Yugoslavia 526 Yugoslavia 360 Serbia and Montenegro 247

360 Turkey 280 Turkey 354 Turkey 318 Turkey 281 Turkey 204

Romania 324 Rumänien 245 Romania 208 Romania 231 Romania 173 Ukraine 194

Berlin Ukraine 495 Ukraine 611 Ukraine 413 Ukraine 203 Yugoslavia 232 Yugoslavia 155

Bulgaria 338 Bulgaria 265 Bulgaria 330 Bulgaria 182 Ukraine 203 Bulgaria 154

Yugoslavia 186 Yugoslavia 199 Yugoslavia 246 Yugoslavia 232 Bulgaria 182 Ukraine 136

Bremen Turkey 65 Turkey 87 Turkey 67 Turkey 34 Bulgaria 63 Bulgaria 31

Russian Federation 26 Bulgaria 24 Bulgaria 26 Bulgaria 34 Turkey 47 Turkey 28

Bulgaria 15 Russian Federation 12 Jugoslawien 16 Russian Federation 26 Russian Federation 30 Romania 16

Hamburg Turkey 171 Turkey 171 Turkey 192 Turkey 222 Serbia and Montenegro 228 Turkey 181

Romania 58 Bulgaria 69 Bulgaria 101 Yugoslavia 129 Turkey 194 Serbia and Montenegro 108

Egypt 38 Armenia 68 Yugoslavia 99 Romania 125 Romania 82 Bulgarien 67

Hesse Turkey 686 Turkey 546 Turkey 549 Turkey 722 Turkey 734 Turkey 467


Columbia 253 Columbia 136 Ukraine 121 Bulgaria 143 Serbia and Montenegro 167 Yugoslavia 151

Lower Saxony Turkey 424 Turkey 368 Turkey 378 Turkey 290 Turkey 253 Turkey 234


Romania 99 Romania 102 Russian Federation 87 Romania 77 Serbia and Montenegro 130 Russian Federation 82

Yugoslavia 1100 Yugoslavia 915 Yugoslavia 1439 Yugoslavia 1368 Yugoslavia 1261 Turkey 606

Turkey 772 Turkey 693 Turkey 847 Turkey 853 Turkey 763 Yugoslavia 566

Russian Federation 193 Ukraine 260 Ukraine 214 Romania 202 Serbia and Montenegro 312 Serbia and Montenegro 465

Yugoslavia 315 Yugoslavia 301 Yugoslavia 223 Yugoslavia 177 Yugoslavia 190 Turkey 99

Turkey 187 Turkey 120 Turkey 141 Turkey 163 Turkey 116 Yugoslavia 87

Vietnam 48 Algeria 40 Algeria 31 Vietnam 53 Russian Federation 50 Serbia and Montenegro 52

Saarland Yugoslavia 102 Turkey 98 Turkey 72 Turkey 109 Turkey 89 Turkey 51

Turkey 91 Yugoslavia 35 Yugoslavia 60 Yugoslavia 61 Serbia and Montenegro 36 Vietnam 22

Pakistan 19 Algeria 15 Algeria 29 Vietnam 17 Russian Federation 27 Serbia and Montenegro 18

Turkey 72 Yugoslavia 88 Turkey 111 Turkey 114 Turkey 110 Turkey 93

Yugoslavia 71 Turkey 83 Yugoslavia 94 Yugoslavia 66 Yugoslavia 48 Yugoslavia 22

Romania 25 Russian Federation 24 Bosnia and Herzegovina 22 Romania 22 Russian Federation 31 Romania 12

Baden-

Wuerttemberg

Rhineland

Palatinate

North Rhine-

Westphalia

2004 20052000 2001 2002 2003

Schleswig-

Holstein

111

Brandenburg Vietnam 229 Vietnam 203 Vietnam 181 Vietnam 235 Vietnam 206 Vietnam 271

Yugoslavia 82 Ukraine 88 Bulgaria 68 Yugoslavia 40 Turkey 64 Russian Federation 45

Ukraine 74 Yugoslavia 49 Turkey 48 Turkey 37 Ukraine 44 Ukraine 41

Turkey 78 Bosnia and Herzegovina 67 Turkey 95 Turkey 74 Turkey 67 Turkey 52

Yugoslavia 76 Turkey 66 Yugoslavia 60 Yugoslavia 74 Yugoslavia 59 Vietnam 32

Armenia 72 Yugoslavia 66 Vietnam 55 Vietnam 52 Armenien 49 Yugoslavia 29

Saxony Ukraine 227 Ukraine 223 Ukraine 175 Ukraine 112 Vietnam 122 Vietnam 136

Romania 220 Romania 205 Yugoslavia 106 Vietnam 105 Ukraine 84 Turkey 82

Yugoslavia 125 Yugoslavia 114 Vietnam 106 Yugoslavia 84 Turkey 74 Yugoslavia 71

Vietnam 182 Vietnam 131 Vietnam 166 Vietnam 119 Vietnam 138 Vietnam 139

Yugoslavia 128 Yugoslavia 66 Yugoslavia 116 Yugoslavia 98 Yugoslavia 93 Yugoslavia 58

Turkey 118 Turkey 58 Turkey 114 Turkey 98 Turkey 69 Turkey 48

Thuringia Yugoslavia 121 Yugoslavia 137 Yugoslavia 80 Yugoslavia 74 Yugoslavia 42 Turkey 38

Moldova 72 Turkey 44 Turkey 58 Turkey 36 Turkey 29 Vietnam 25

Vietnam 51 Vietnam 42 Vietnam 43 Vietnam 31 Vietnam 27 Yugoslavia 22

Saxony Anhalt

Mecklenburg

Western

Pomerania

Source: AZR

112

Table 14: Persons with executed deportation (2000-2005)

Federal state 2000 2001 2002 2003 2004 2005

Baden-Wuerttemberg 3.988 2.792 2.962 2.820 2.583 2.261 Bavaria 3.725 2.867 2.868 2.820 2.800 2.280 Berlin 2.186 1.971 1.908 1.564 1.362 1.117 Bremen 200 215 197 167 238 147 Hamburg 700 790 863 1.006 1.001 743 Hesse 2.645 2.378 2.521 2.641 2.724 1.976 Lower Saxony 1.801 1.515 1.651 1.497 1.552 1.209 Westphalia 4.682 4.252 4.993 5.039 5.035 3.794 Rhineland Palatinate 1.050 851 796 840 882 618 Saarland 362 270 320 327 294 184 Schleswig-Holstein 355 380 431 377 442 271 Brandenburg 784 687 641 558 615 552 Mecklenburg Western

Pomerania

424 429 365 380 395 254

Saxony 1.277 1.109 1.014 781 788 782 Saxony Anhalt 615 470 589 477 505 425 Thuringia 624 495 404 354 319 250 In total 25.418 21.471 22.523 21.648 21.535 16.863

Total stock as of 30.11.2006 Source: AZR

Calendar year

113

Table 15: Persons with executed deportation according age and sex (2000-2005)

Table 16: Deportations by air - accompanied (2000-2005)

Age male female not known in total male female not known in totalless than 18 years old 1.066 987 3 2.056 867 812 1 1.680 18 until less than 20 151 139 290 110 95 205 20 until less than 30 4.168 1.009 1 5.178 3.905 901 5 4.811 30 until less than 40 8.837 1.608 2 10.447 7.323 1.376 7 8.706 40 until less than 50 4.423 962 1 5.386 3.581 719 1 4.301 50 until less than 60 1.301 337 1.638 1.114 307 1 1.422 from 60 years old 272 138 2 412 226 98 324 In total 20.218 5.180 9 25.407 17.126 4.308 15 21.449

Age male female not known in total male female not known in totalless than 18 years old 1.004 984 1 1.989 1.078 936 2 2.016 18 until less than 20 129 105 234 211 107 318 20 until less than 30 4.320 1.128 5 5.453 4.843 1.231 9 6.083 30 until less than 40 7.203 1.413 6 8.622 6.376 1.266 8 7.650 40 until less than 50 3.678 845 2 4.525 3.215 804 3 4.022 50 until less than 60 1.064 326 1 1.391 949 324 3 1.276 from 60 years old 213 82 295 182 90 1 273 In total 17.611 4.883 15 22.509 16.854 4.758 26 21.638

Age male female not known in total male female not known in totalless than 18 years old 1.204 1.067 2 2.273 809 724 1 1.534 18 until less than 20 344 135 479 286 108 1 395 20 until less than 30 5.319 1.280 6 6.605 4.714 1.018 7 5.739 30 until less than 40 5.841 1.231 8 7.080 4.570 853 7 5.430 40 until less than 50 2.909 785 2 3.696 2.142 595 1 2.738 50 until less than 60 850 301 1.151 609 231 3 843 from 60 years old 159 91 250 121 61 182 In total 16.626 4.890 18 21.534 13.251 3.590 20 16.861

Total stock as of 30.11.2006

2002

Source: AZR

2000 2001

2003

2004 2005

2000 32.443 22.481 9.962 3.458 6.504 4.889 91 3.9762001 25.223 19.598 5.625 2.648 2.977 4.168 177 2.5562002 26.286 18.527 7.759 3.434 4.325 4.455 261 2.6162003 22.516 14.474 8.024 3.263 4.779 4.447 202 3.0872004 21.970 14.221 7.749 4.338 3.411 5.389 305 3.4252005 16.865 10.657 6.208 3.660 2.548 4.991 197 3.068

Accompanied by

unaccompanied accompanied

of which

federal police/

federal stateTotal number

Accompanying personnel of


private

Officer of

Federal

Police

Federal

statesPrivate

114

Table 17: Failed returns according reason (2000-2005)

Table 18: Transfer requests within the Dublin procedure (2000-2005)

Source: BAMF

2000 2001 2002 2003 2004 2005

Security concerns LVG 144 124 138 154 95 passive resistance 473 306 198 251 244 222 active resistance 128 62 87 59 76 fear of flying 8 3 6 4 7 0 medical reasons 89 108 127 119 94 no valid documents 88 108 109 97 90 61 self-inflicted injuries 14 13 11 expedited applications 144 147 91 others 34 86 127 145

In total 603 778 607 948 960 795

without other reasons (among others, belated or non-executed lead, prior cancellation)

Year


issued rejected approved transfers

2000 3.917 1.315 3.651 2.1422001 4.255 1.108 2.641 1.6402002 4.729 1.449 3.387 2.0582003 4.883 889 2.967 1.5622004 6.939 1.326 5.591 3.3282005 5.527 1.561 4.358 2.583

issued rejected approved transfers

2000 7.247 1.485 5.662 2.0082001 6.838 1.147 5.437 2.7392002 8.649 1.472 7.005 3.3122003 7.475 1.195 6.229 2.9132004 8.581 1.651 7.080 4.1502005 6.255 1.626 4.632 3.127

YearTransfer requests addressed to the member states

YearTransfer requests addressed to Germany

115

Table 19: REAG/GARP Main departure countries (specified by age and sex) (2003-2005)

Quelle: IOM

Number

of

persons

M W 0-12 13-18 19-30 31-45 46-60older

than 60Serbia-Montenegro 5.065 2.818 2.247 1.527 539 1.295 1.225 383 96 Turkey 765 521 244 146 93 200 236 68 22 Russia 627 328 299 158 69 162 173 55 10 Iran 513 376 137 72 29 139 197 61 15 Bosnia-Herzegovina 443 236 207 117 28 120 99 31 48 Bulgaria 415 217 198 125 34 127 93 32 4 Slovakia 375 208 167 172 49 81 59 14 0 Iraq 316 246 70 49 9 82 130 32 14 Vietnam 280 220 60 23 6 48 169 30 4 Armenia 250 137 113 60 23 48 66 43 10 In total 11.588 6.866 4.722 2.945 1.069 3.066 3.198 986 324

Number

of

persons

M W 0-12 13-18 19-30 31-45 46-60older

than 60Serbia-Montenegro 3.224 1.760 1.464 981 376 787 764 244 72 Turkey 923 604 319 215 98 270 245 74 21 Iraq 824 641 183 115 56 254 289 87 23 Russia 553 294 259 144 49 148 148 57 7 Iran 464 338 126 51 36 145 164 47 21 Bulgaria 461 249 212 101 46 172 108 30 4 Vietnam 378 297 81 22 2 77 226 42 9 Bosnia- 311 175 136 74 21 66 89 34 27 Armenia 224 121 103 58 18 43 55 35 15 Afghanistan 209 159 50 25 17 68 58 18 23 In total 9.961 6.133 3.828 2.266 890 2.772 2.859 872 302

Number

of

persons

M W 0-12 13-18 19-30 31-45 46-60older

than 60

Serbia-Montenegro 1.970 1.111 859 577 206 534 439 165 49 Turkey 743 468 275 191 93 196 191 66 6 Iraq 688 522 166 107 50 202 260 57 12 Iran 410 295 115 55 15 118 161 45 16 Russia 399 214 185 118 24 121 106 24 6 Afghanistan 316 254 62 35 19 124 88 33 17 Vietnam 312 241 71 17 3 71 181 32 8 Bulgaria 272 129 143 69 25 91 61 22 4 Azerbaijan 249 155 94 60 20 78 70 21 0 Bosnia- 177 95 82 41 16 36 44 26 14 In total 7.465 4.684 2.781 1.645 561 2.151 2.236 677 195

Sex2005

Age groups

Sex2003

Age groups

Sex2004

Age groups

116

Table 20: REAG/GARP departures by length of stay, travel route, and residence status (2004-2005)

Quelle: IOM

O to 6

months

more than 6

up to 12

months

more than

12 months

up to 3

more than 3

years up to

5 years

more than

5 yearsair land 1 2 3 4 5 6 7 8

2004 1.673 857 2.436 1.740 3.255 7.336 2.625 234 602 1.720 6.960 311 117 3 14 2005 920 637 1.594 1.603 2.711 6.194 1.271 170 188 660 5.956 176 106 0 209

2004 (*) Category of persons:

1 - accepted refugee2 - foreigner with residence for political or humanitarian reasons or in accordance with international law3 - asylum seekers during asylum procedures4 - rejected asylum seekers5 - persons residing in Germany illegally6 - victims of forced prostitution or human trafficking7 - former Vietnamese contract workers8 - unknown

2005 (*) Category of persons:

1 - accepted refugee2 - foreigner with residence for political or humanitarian reasons or in accordance with international law3 - asylum seekers during asylum procedures4 - rejected asylum seekers5 - persons residing in Germany illegally6 - victims of forced prostitution or human trafficking7 - former Vietnamese contract workers8 - persons from Serbia-Montenegro, Afghanistan or Iraq with entry date in accordance with article 2.1.6. of the REAG instructions

Category of persons (*)Travel routeLenth of stay in Germany

Note: These statistics contain persons who left the country as well as approved cases.

117

III List of agreements on facilitation of return (as of January 2007)

Countries Signing

Taking effect

(preliminary

application)

Reference

Albania 18.11.2002 01.08.2003 BGBI. II 2003 No. 7, p. 194

Algeria 14.02.1997 12.05.2006(01.11.1999)

BGBI. II 2004 No. 1, p. 16

Armenia 16.11.2006 BGBI. II 2006 No. 33, p. 1405

Benelux 17.05.1966 01.07.1966 BAnz. 1966 No. 131

Bosnia and Herzegovina 20.11.1996 14.01.1997 BGBI. II 1997 No. 12, p. 742

Bulgaria 01.02.2006 01.05.2006 BGBI. II 2006 No. 8, p. 259Denmark 15.05.1954 01.06.1954 BAnz. 1954 No. 120Estonia 16.12.1998 01.03.1999 BGBI. II 2000 No. 12, p. 570France 10.02.2003 01.07.2005 BGBI. II 2006 No. 4, p. 99 ff.Hong Kong 17.11.2000 17.02.2001Croatia 25.04.1994 22.10.1997 BGBI. II 1998 No. 1, p. 9Latvia 16.12.1998 01.02.1999 BGBI. II 2000 No. 12, p. 579Lithuania 16.12.1998 01.02.2000 BGBI. II 2000 No. 12, p. 588Morocco 22.04.1998 01.06.1998 BGBI. II 1998 No. 23, p. 1148Macedonia 24.06.2002 01.05.2004 BGBI. II 2002 No. 38, p. 2526Norway 18.03.1955 18.03.1955 BAnz. 1955 No. 84Austria 16.12.1997 15.01.1998 BGBI. II 1998 No. 3, p. 80

Poland (Agreement with the Schengen countries)

29.03.1991 01.05.1991 BGBI. II 1993 No. 23, p. 1099

Poland (Warsaw Protocol on determination of technical conditions)

29.09.1994 29.09.1994 BGBI. II 1994 No. 60, p. 3775

Romania 24.09.1992 01.11.1992 BGBI. II 1993 No. 8, p. 220

Romania (readmission of stateless persons)

09.06.1998 01.02.1999 BGBI. II 1999 No. 7, p. 172

Sweden 15.05.1954 01.06.1954 BAnz. 1954 No. 120

Switzerland 20.12.1993

taking effect on 01.02.1994

application since

01.02.1996

BGBI. II 1996 No. 26, p. 945

Serbia (Agreement used for Montenegro also)

16.09.2002 01.04.2003 BGBI. II 2002 No. 41, p. 2762

Slovakia 19.02.2003 20.05.2003 BGBI. II 2003 No. 12, p. 446South Korea 10.12.2004 22.03.2005 BGBI. II 2005 No. 6, p. 193

Czech Republic 03.11.1994 01.01.1995 BGBI. II 1995 No. 5, p. 133

Hungary 01.12.1997 01.01.1999 BGBI. II 1999 No. 5, p. 90

Vietnam 21.07.1995 21.09.1995 BGBI. II 1995 No. 27, p. 743

118

Countries Signing

Taking effect

(preliminary

application)

References

Albania 18.12.2004 01.05.2006Official Journal of the European Union 2005 No. L 124/21

Hong Kong 27.11.2002 01.03.2004Official Journal of the European Union 2004 No. L 17/25

Macao 13.10.2003 01.06.2004Official Journal of the European Union 2004 No. L 143/99

Russian Federation 25.05.2006Council doc. 8859/06 of 17.05.2006

Sri Lanka 04.06.2004 01.05.2006Official Journal of the European Union 2005 No. L 124/43

Countries Signing

Taking effect

(preliminary

application)

References

Albania (transit of Yugoslavian nationals to Kosovo)

27.01.2000 (01.04.2000)

Macedonia (transit of Yugoslavian nationals to Kosovo)

11.10.1999 (11.10.1999)

Poland (transit of third country nationals)

23.03.2006 01.08.2006

Countries Signing

Taking effect

(preliminary

application)

References

Macedonia (transit of Yugoslavian nationals to Kosovo)

11.10.1999 (11.10.1999)

Albania (transit of Yugoslavian nationals to Kosovo)

27.01.2000 (01.04.2000)

Croatia, Austria,

Switzerland, Slovenia (transit and transfer to Bosnia and Herzegovina)

29.05.1996 01.07.1996 BGBI. II 1996 No. 49, p. 2656

Albania, Bosnia and

Herzegovina, Italy,

Croatia, Austria,

Switzerland, Slovenia,

Hungary, the

Netherlands,

Luxembourg (transit to Yugoslavia)

21.03.2000

20.04.2000

11.08.2001accession the Netherlands, Luxembourg

BGBI. II 2001 No. 15, p. 536

Readmission agreements of the European Union (EU)

Transit agreements (forced return)

Transit and transfer agreements (voluntary return)

119

IV Institutions and organisations

The list contains ministries, authorities, institutions, associations, non-governmental organisations and networks that (also) deal with questions of voluntary and forced return in their work.154

154 The list does not claim to be complete.

Federal ministries and federal au-thorities Bundesministerium des Innern Dienstsitz Berlin Alt-Moabit 101 D 10559 Berlin Tel.: 030-18681-0 Fax: 030-18681-2926 E-Mail: [email protected] Internet: www.bmi.bund.de Bundesministerium für wirtschaftliche Zusammenarbeit und Entwicklung Adenauerallee 139 - 141 53113 Bonn Tel.: (Zentrale): 01888-535-0 Fax: 01888-535-3500 E-Mail: [email protected] Internet: www.bmz.de Bundesbeauftragte der Bundesregierung für Migration, Flüchtlinge und Integration Bundeskanzleramt Willy-Brandt-Straße 1 10557 Berlin Tel.: 030-4000-1640 oder 01888-400-1640 Fax: 030-4000-1606 oder 01888-400-1606 E-Mail: [email protected] Internet: www.integrationsbeauftragte.de Bundesamt für Migration und Flüchtlinge 90343 Nürnberg Tel.: 0911-943-0 Fax: 0911-943-1000 E-Mail: [email protected] Internet: www.bamf.de Bundespolizeidirektion Koordinierungsstelle des Bundes für Rück-führungsangelegenheiten

Roonstraße 13 56068 Koblenz Tel.: 0261-399–0 Fax: 0261-399-218 E-Mail: [email protected] Internet: www.bundespolizei.de Bundesverwaltungsamt 50728 Köln Deutschland Tel.: 01888-358-0 Fax: 01888-358-2823 E-Mail: [email protected] Internet: www.bundesverwaltungsamt.de Authorities in the federal states Baden-Wuerttemberg Innenministerium des Landes Baden-Württemberg Dorotheenstraße 6 70173 Stuttgart Tel.: 0711-231-4 (Zentrale) E-Mail: [email protected] Internet: www.innenministerium.baden-wuerttemberg.de Regierungspräsidium Karlsruhe Landesaufnahmestelle f. Flüchtlinge Durlacher Allee 100 76137 Karlsruhe Tel.: 0721-926-7105 Fax: 0721-694755 E-Mail: [email protected] Bavaria Bayerisches Staatsministerium des Innern Odeonsplatz 3 80539 München Tel. (zentral): 089-2192-01 Fax (zentral): 089-2192-12225 E-Mail: [email protected] Internet: www.stmi.bayern.de

120

Regierung von Mittelfranken Zentrale Rückführungsstelle Nordbayern Wilhelm-Busch-Str. 2 95447 Bayreuth Tel.: 0921-75754-36 Fax: 0921 75754-32 Regierung von Oberbayern in München Zentrale Rückführungsstelle Südbayern Postanschrift Boschetsrieder Str. 41 81379 München Tel.: 089-6240-40 Fax: 089-6240-4710 E-Mail: [email protected] Landeshauptstadt München - Sozialreferat Amt für Wohnen und Migration - Büro für Rückkehr- und Integrationshilfen Coming Home Franziskanerstr. 8 81669 München Tel.: 089-233-40636 E-Mail: [email protected] Internet: www.muenchen.de/reintegration Berlin Senatsverwaltung für Inneres des Landes Berlin Klosterstraße 47 10179 Berlin Tel.: 030-9027-0 Fax: 030-9027-2880 E-Mail: [email protected] Internet: www.berlin.de/sen/inneres/index.html Landeseinwohneramt Berlin Nöldnerstr. 34-36 10317 Berlin Tel.: 030-90269-0 Fax: 030-90259-0 Zentrale Aufnahmeeinrichtung des Landes Berlin für Asylbewerber Freidrich-Krause-Ufer 24 13353 Berlin Tel.: 030-90269-4500 Fax: 030-90269-4601 E-Mail: [email protected] Brandenburg Ministerium des Innern des Landes Branden-burg Henning-von-Tresckow-Str. 9-13

14467 Potsdam Tel.: 0331-866-0 E-Mail: [email protected] Internet: www.mi.brandenburg.de/cms/list.php/mi Zentrale Ausländerbehörde des Landes Brandenburg Poststr. 72 15890 Eisenhüttenstadt Tel.: 03364-4270 Fax: 03364-44318 E-Mail: [email protected] Bremen Der Senator für Inneres und Sport der Freie Hansestadt Bremen Contrescarpe 22/24 28203 Bremen Tel.: 0421-361-9011 Fax: 0421-361-9009 E-Mail: [email protected] Internet: www.inneres.bremen.de Hamburg Behörde für Inneres der Freie und Hanse Stadt Hamburg Johanniswall 4 20095 Hamburg Tel.: 040-42839-0 Fax: 040-42839-1908 E-Mail: [email protected] Internet: www.innenbehoerde.hamburg.de Einwohner-Zentralamt Hamburg Ausländerbehörde Amsinckstr. 28 20097 Hamburg Tel.: 040-42839-2298 Fax: 040-42839-3510 E-Mail: [email protected] Hesse Hessisches Ministerium des Innern und für Sport Friedrich-Ebert-Allee 12 65185 Wiesbaden Tel.: 0611-353-0 Fax: 0611-353-1766 E-Mail: [email protected] Internet: www.hmdi.hessen.de Regierungspräsidium Darmstadt Zentrale Ausländerbehörde Wilhelminenstraße 1-3 64283 Darmstadt Tel.: 06151-12-0 Fax: 06151-12-8975

121

E-Mail: [email protected] Regierungspräsidium Gießen Zentrale Ausländerbehörde Landgraf- Philipp-Platz 1-7 35390 Gießen Tel.: 0641-9232-150-156 Fax: 0641-9232-175 E-Mail: [email protected] Regierungspräsidium Kassel Zentrale Ausländerbehörde Kurt-Schumacher-Strasse 31 34117 Kassel Tel.: 0561-106-01446 Fax: 0561-106-1639 E-Mail: [email protected] Mecklenburg Western Pomerania Innenministerium des Landes Mecklenburg-Vorpommern Arsenal am Pfaffenteich Alexandrinenstraße 1 19055 Schwerin Tel.: 0385-588-0 Fax: 0385-588-2972 0385-588-2974 E-Mail: [email protected] Internet: www.mv-regierung.de/im/ LAFL Mecklenburg-Vorpommern Nostorfer Straße 1 19258 Nostorf-Horst Lower Saxony Niedersächsisches Ministerium für Inneres und Sport Lavesallee 6 30169 Hannover Tel.: 0511-120-0 Fax: 0511-120-6550 E-Mail: [email protected] Internet: www.mi.niedersachsen.de ZAAB Oldenburg Zentrale Aufnahme- u. Ausländerbehörde Klostermark 70-80 26135 Oldenburg Tel.: 0441-9202-0 Fax: 0441-9202-129 Zentrale Aufnahme- und Ausländerbehörde (ZAAB) Braunschweig Boeselagerstr. 4 38108 Braunschweig Tel.: 0531-3547-0 Fax: 0531-3547-200

North Rhine-Westphalia Innenministerium des Landes Nordrhein-Westfalen Haroldstraße 5 40213 Düsseldorf Tel.: 0211-871-01 Fax: 0211-871-3355 E-Mail [email protected] Internet: www.im.nrw.de Zentrale Ausländerbehörde Bielefeld Am Stadtholz 24/26 33609 Bielefeld Tel.: 0521-51-8711 Fax: 0521-51-8788 E-Mail: [email protected] Zentrale Ausländerbehörde für Asylbewerber in Dortmund Kaiserstr. 129 44143 Dortmund Tel.: 0231-5184-0 Fax: 0231-51843-54 E-Mail: [email protected] Zentrale Ausländerbehörde Köln ZAB Köln Blaubach 13 50676 Köln Tel.: 0221-221-25620 Fax: 0221-22125675 E-Mail: [email protected] Internet: www.stadt-koeln.de Stadtverwaltung Düsseldorf -ZAB- Erkrather Str. 349 40231 Düsseldorf Tel.: 0211-89-260 Fax: 0211-89-26203 E-Mail: [email protected] Rhineland Palatinate Ministerium des Innern und für Sport des Landes Rheinland-Pfalz Schillerplatz 3-5 55116 Mainz Tel.: 06131-16 0 Fax: 06131-163595 E-Mail: [email protected] Internet: www.ism.rlp.de AE Trier Aufnahmeeinrichtung Trier Dasbachstr. 19 54292 Trier

122

Saarland Ministerium für Inneres, Familie, Frauen und Sport des Landes Saarland Franz-Josef- Röder-Straße 21 66119 Saarbrücken Tel.: 0681-501-00 Fax: 0681-501-2234 E-Mail: [email protected] Internet: www.inneren.saarland.de ZAST Saarbrücken Talstraße 2-10 66119 Saarbrücken Saxony Sächsisches Staatsministerium des Innern Wilhelm-Buck-Straße 2-4 01097 Dresden Tel.: 0351-564-0 Fax: 0351-564-3199 E-Mail: [email protected] Internet: www.smi.sachsen.d Regierungspräsidium Chemnitz Zentrale Ausländerbehörde Adalbert-Stifter-Weg 25 09131 Chemnitz Tel.: 0371-4599-0 Fax: 0371-4599-240/210 E-Mail: [email protected] Saxony Anhalt Ministerium des Innern des Landes Sachsen-Anhalt Halberstädter Straße 2/ am "Platz des 17. Juni" 39112 Magdeburg Tel.: 0391-56701 Fax: 0391-5675290 E-mail: [email protected] Internet: www.mi.sachsen-anhalt.de Landkreis Halberstadt Zentrale Abschiebungsstelle Friedrich-List-Str. 1 a 38820 Halberstadt Tel.: 03941-664-261/-268 Fax: 03941-664260 E-Mail: [email protected] Schleswig-Holstein Innenministerium des Landes Schleswig-Holstein Düsternbrooker Weg 92 24105 Kiel Tel.: 0431-988-3000 Fax: 0431-988-3003 E-Mail: [email protected]

Internet: www.im.schleswig-holstein.de LFA Schleswig-Holstein Landesamt für Ausländerangelegenheiten Haart 148 24539 Neumünster Thuringia Thüringer Innenministerium Steigerstraße 24 99096 Erfurt Tel.: 036137-900 (Behördenzentrale) Fax: 0361-37-93111 E-Mail: [email protected] Internet: www.thueringen.de/de/tim/ Zentrale Abschiebestelle Innenministerium Erfurt Weimarplatz 4 99423 Erfurt Tel.: 0361-37934-17-o-31 Fax: 0361-37934-45 E-Mail: [email protected] Church-related organisations Deutsche Bischofskonferenz Sekretariat der Deutschen Bischofskonferenz Pater Dr. Hans Langendörfer SJ Kaiserstrasse 161 53113 Bonn Tel.: 0228-103-0 Fax: 0228-103-299 E-Mail: [email protected] Internet: www.dbk.de Deutscher Caritasverband e.V., Berliner Büro Reinhardtstraße 13 10117 Berlin Tel.: 030-284447-42 Fax: 030-284447-55 E-Mail: [email protected] Internet: www.caritas.de (weitere Landesverbände) Evangelische Kirche in Deutschland Herrenhäuser Str. 12 30419 Hannover Tel.: 0511-27 96-0 Fax: 0511-27 96-707 E-Mail: [email protected] Internet: www.ekd.de Diakonisches Werk der Evangelischen Kirche in Deutschland e. V. Stafflenbergstraße 76

123

70184 Stuttgart Tel.: 0711-2159-0 Fax: 0711-2159-288 E-Mail: [email protected] Internet: www.diakonie.de (weitere Landesverbände) Bundesarbeitsgemeinschaft Asyl in der Kirche e. V. Lindenstr. 85 10969 Berlin Tel.: 030-2589-8891 Fax: 030-2589-8964 E-Mail: [email protected] Internet: www.kirchenasyl.de International organisations amnesty international Sekretariat der deutschen Sektion Büro Bonn Heerstr. 178 53111 Bonn Tel.: 0228-98373-0 Fax: 0228-630036 E-Mail: [email protected] Internet: www.amnesty.de IOM Berlin Inselstr. 12 10179 Berlin Tel.: 030-278778-0 Fax: 030-278778-99 E-mail: [email protected] Internet: www.iom.int/germany IOM Nürnberg Frankenstr. 210 90461 Nürnberg Tel.: 0911-4300-0 Fax: 0911-4300-260 E-mail: [email protected] Internet: www.iom.int/germany UNHCR Deutschland Wallstr. 9-13 D-10179 Berlin Tel. 030-202202-0 Fax 030-202202-20 E-mail: [email protected] Internet: www.unhcr.de Nation-wide associations, unions, networks

AGEF g GmbH Postfach 660123 D-10267 Berlin Tel.: 030-501-0850 Fax: 030-509-7804 E-mail [email protected] Internet: www.agef.net agisra e.V., Arbeitsgemeinschaft gegen inter-nationale sexistische und rassistische Aus-beutung Ludolfusstr. 2-4 60487 Frankfurt/M. Tel.: 069-777752 Fax: 069-777757 E-Mail: [email protected] Internet: www.agisra.de AWO Arbeiterwohlfahrt Bundesverband e.V. Marie-Juchacz-Haus Oppelner Straße 130, 53119 Bonn Tel.: 0228-6685-0 Fax: 0228-6685-209 E-Mail: [email protected] Internet: www.awo.org Centrum für Internationale Migration und Entwicklung (CIM) Mendelssohnstr. 75-77 60325 Frankfurt am Main Tel.: 069-719121-0 Fax: 069-719121-19 E-mail: [email protected] Internet: www.cimonline.de DEG - Deutsche Investions- und Entwicklungsgesellschaft Postfach 45 03 40 50878 Köln Tel.: 0221-4986-15 83 Fax: 0221-4986-14 72 Internet: www.deginvest.de Deutscher Paritätischer Wohlfahrtsverband Gesamtverband Oranienburger Str. 13-14 10178 Berlin Telefon 0)30-24636-0 Telefax 030–24636-110 E-Mail: [email protected] Internet: www.paritaet.org DRK-Generalsekretariat, Team 44 - Migration und Integration Carstennstraße 58 12205 Berlin Tel.: 030-85404-0 (Zentrale) Fax: 030-85404-451 (Team 44)

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Internet: www.drk.de/migrationsarbeit Forschungsgesellschaft Flucht und Migration e.V. Mehring-Hof Gneisenaustr. 2a 10961 Berlin Fax: 030-69582973 E-Mail: [email protected] Internet: www.ffm-berlin.de Gesellschaft für bedrohte Völker Stumpfebiel 11-13 37073 Göttingen Tel.: 0551-499060 Fax: 0551-58028 E-Mail: [email protected] Internet: www.gfbv.de Informationsverbund Asyl e.V. Greifswalder Straße 4 10405 Berlin Fax: 030-46793329 E-Mail: [email protected] Internet: www.asyl.net Interkultureller Rat in Deutschland Geschäftsstelle Göbelstraße 21 64293 Darmstadt Tel.: 06151-339971 Fax: 06151-3919740 E-Mail: [email protected] Internet: www.interkultureller-rat.de isoplan CONSULT - Sozioökonomische For-schung und Beratung, Zwick und Schmidt-Fink GbR Martin-Luther-Str. 20, 66111 Saarbrücken Tel.: 0681-93646-0 Fax: 0681-93646-11 E-Mail: [email protected] Internet: www.isoplan.de Komitee für Grundrechte und Demokratie Elke Steven Aquinostr 7-11 50670 Köln Telefon 0221-97269-20 und -30 Telefax 0221-97269-31 Email: [email protected] Internet: www.grundrechtekomitee.de PRO ASYL Postfach 160 624 60069 Frankfurt/M. Tel.: 069-230688

Mo-Fr: 10.00-12.00 und 14.00-16.00 Fax: 069-230650 E-Mail: [email protected] Internet: www.proasyl.de UNO-Flüchtlingshilfe e.V. Wilhelmstr. 42 53111 Bonn Tel.: 0228-62986-0 Fax: 0228-62986-11 E-Mail: [email protected] Internet: www.uno-fluechtlingshilfe.de/ Zentralstelle für Arbeitsvermittlung (ZAV) Kundenreaktionsmanagement Villemombler Str. 76 53123 Bonn E-Mail: [email protected] Internet: www.zav-reintegration.de Refugee councils Baden-Wuerttemberg Flüchtlingsrat Baden-Württemberg e.V. Urbanstr. 44 70182 Stuttgart Tel.: 0711-5532834 Fax: 0711-5532835 E-Mail: [email protected] Internet: www.fluechtlingsrat-bw.de Bavaria Flüchtlingsrat Bayern Augsburger Str. 13 80337 München Tel.: 089-762234 Fax: 089-762236 E-Mail: [email protected] Internet: www.bayerischer-fluechtlingsrat.de Berlin Flüchtlingsrat Berlin Georgenkirchstr 69-70 10249 Berlin Tel.: 030-24344-5762 Fax: 030-24344-5763 E-Mail: [email protected] Internet: www.fluechtlingsrat-berlin.de Brandenburg Flüchtlingsrat Brandenburg Eisenhartstr. 13 14469 Potsdam Tel. / Fax: 0331-716499 E-Mail: [email protected] Internet: www.fluechtlingsrat-brandenburg.de

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Bremen Verein Ökumenischer Ausländerarbeit im Lande Bremen e.V. Berckstr. 27 28359 Bremen Tel. / Fax: 0421-8007004 E-Mail: [email protected] Hamburg Flüchtlingsrat Hamburg c/o Werkstatt 3 Nernstweg 32 – 34 22765 Hamburg Tel.: 040-431587 Fax: 040-4304490 E-Mail: [email protected] Internet: www.fluechtlingsrat-hamburg.de Hesse Flüchtlingsrat Hessen Frankfurter Str 46 35037 Marburg Tel.: 06421-166902 Fax: 06421-166903 E-Mail: [email protected] Internet: www.fr-hessen.de Mecklenburg Western Pomerania Flüchtlingsrat Mecklenburg-Vorpommern e.V. Postfach 11 02 29 19002 Schwerin Tel.: 0385-5815790 Fax: 0385-5815791 E-Mail: [email protected] Internet: www.fluechtlingsrat-mv.de Lower Saxony Niedersächsischer Flüchtlingsrat Langer Garten 23 B 31137 Hildesheim Tel.: 05121-15605 Fax: 05121-31609 E-Mail: [email protected] Internet: www.nds-fluerat.org North Rhine-Westphalia Flüchtlingsrat NRW Bullmannaue 11 45327 Essen Tel.: 0201-89908-0 Fax: 0201-89908-15 E-Mail: [email protected] Internet: www.fluechtlingsrat-nrw.de Rhineland Palatinate Arbeitskreis Asyl Rheinland-Pfalz

c/o Pfarramt für Ausländerarbeit Kurhausstr. 8 55543 Bad Kreuznach Tel.: 0671-8459-152, -153 Fax: 0671-8459-154 E-Mail: [email protected] Internet: www.asyl-rlp.org Saarland Saarländischer Flüchtlingsrat e.V. Kaiser Friedrich Ring 46 66740 Saarlouis Tel.: 06831-4877938 Fax: 06831-4877939 E-Mail: [email protected] Internet: www.asyl-saar.de Saxony Flüchtlingsrat Sachsen Kreischaer Straße 3 01219 Dresden Tel.: 0351-4714039, 4692607 Fax: 0351-4692508 E-Mail: [email protected] Internet: www.saechsischer-fluechtlingsrat.de Saxony Anhalt Flüchtlingsrat Sachsen-Anhalt Schellingstr. 3-4 39104 Magdeburg Tel.: 0391-5371279 Fax: 0391-5371280 E-Mail: [email protected] , [email protected] Internet: www.fr-sa.de Schleswig-Holstein Flüchtlingsrat Schleswig-Holstein Oldenburger Str. 25 24143 Kiel Tel.: 0431-735000 Fax: 0431-736077 E-Mail: [email protected] Internet: www.frsh.de Thuringia Flüchtlingsrat Thüringen Warsbergstr 1 99092 Erfurt Tel.: 0361-21727-20, -11 Fax: 0361-21727-27 E-Mail: [email protected] Internet: www.fluechtlingsrat-thr.de

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Editor:

Bundesamt für Migration und Flüchtlinge Frankenstraße 210 90461 Nürnberg Tel. (0911) 943 - 4401 Fax: (0911) 943 – 4007 email: [email protected] Internet: www.bamf.de Overall responsibility: Antje Kiss Dr. Axel Kreienbrink Author: Dr. Axel Kreienbrink Layout: Gertraude Wichtrey Date: April 2007 Bundesamt für Migration und Flüchtlinge, Nürnberg 2007 For non-commercial purposes copies and cost-free distribution, also in parts, is al-lowed with indication of sources. The distri-bution, also in parts, via electronic systems or data carriers needs the prior approval by the Federal Office. All other rights remain reserved.