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Return Migration: Policies and Practices
Judicial Order of Expulsion
Courts for criminal affairs have no power to enact expulsion orders. All administrative law
matters have to be decided by the administrative authorities. Yet most criminal charges permit
expulsion or banishing of the convicted criminal non-national.
Deportation
Deportation is the fulfilment of a residence ban or expulsion order. According to Article 56 (1)
of the Aliens Act a deportation is justified if:
Supervising the departure is considered necessary to ensure public law, order and/or security;
The rejected person has not departed voluntarily and within the prescribed time;
The authorities deem it possible that the migrant will abscond;
The foreigner has returned to federal territory in contravention of a residence ban.
This shows that nearly every departure can be enforced, although in principle a foreigner should
leave voluntarily on expiry of his/her residence permit and receipt of an expulsion order. The
deportation may be marked in the deportee’s passport, according to Article 56 (4).
Under the currently still effective legislation, deportations are not enforced during the asylum
procedure (Article 21 (2) of the Asylum Act). Under the new legislation coming into force on
1 May 2004, deportation of asylum seekers awaiting the outcome of their appeal will be possible.
The Security Police Law (Sicherheitspolizeigesetz) of 1991, as amended in 2002, prohibits gagging
and forced medication, and stipulates under Article 29 strict adherence to proportionality.
Any measures, for example, to calm down a deportee on a standard commercial flight must be in
proportion with his/her resistance.
If physical resistance cannot be overcome while respecting standards of proportionality, enforcement
of the deportation has to be postponed, and the deportee has to be escorted on a chartered
flight by a physician, an independent human rights observer and three escorting officers.
Detention
According to the Aliens Act, section 53 (1) and (2), persons subject to rejection may be ordered
to stay in a designated area such as a holding room at a border control building, or in a means of
transport in order to ensure enforcement of the rejection. Rejections and deportations are acts of
immediate command or compulsion undertaken by the administrative authorities (verfahrensfreie
Akte) without requiring an individual administrative order, as is the case with expulsions and
residence banishment orders.
Asylum seekers applying at the airport may be detained in the airport’s transit zone while awaiting
the decision of the Federal Asylum Office. Those persons whose application has been rejected
on grounds of inadmissibility or manifestly unfounded claims are detained at the transit
zone up to the moment of enforcement of their deportation.
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