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Article Germany: Act to Improve Return of Foreigners Enters into Force

On February 27, 2024, the Act to Improve the Return of Foreigners (Return Improvement Act) (Gesetz zur Verbesserung der Rückführung, Rückführungsverbesserungsgesetz) entered into force in Germany. The act amends several laws, in particular the Residence Act (Aufenthaltsgesetz, AufenthG), the Asylum Act (Asylgesetz, AsylG), and the Criminal Code (Strafgesetzbuch, StGB), among others. The Return Improvement Act expands entry or residence bans to foreigners who have been refused entry at the border, grants the police extended powers to search people and accommodations, extends the length of detention for people subject to deportation, and expedites deportations of criminals.

Entry or Residence Bans

Until the amendment, an entry or residence ban could be imposed only on foreigners who had been expelled, removed, or deported. The Return Improvement Act amends the Residence Act to allow the authorities to issue entry or residence bans for foreigners who have been refused entry at the border, in particular because they were using a forged or falsified passport or passport substitute. (AufenthG, § 11, para. 1, sentences 1, 2.)

Predeportation Detention

Predeportation detention is extended from a maximum of 10 days to a maximum of 28 days to more effectively prevent the disappearance of the foreigner. (§ 62b, para. 1; Explanatory Memorandum, at 22.) However, minors and families with minors may generally not be detained before deportation. (AufenthG, § 62, para. 1.) Foreigners subject to predeportation detention proceedings must be provided with a public defender. (§ 62d.)

Expansion of Police Powers and Safeguards

The Return Improvement Act also expands police search powers. In addition to searching foreigners and objects in their possession, the police are authorized to search their apartments for documents or data carriers establishing their identity and citizenship and to determine and enforce possible return options to a different country. Searching an apartment for identifying documents used to be authorized only for foreigners subject to deportation. Searches of the apartment require a search warrant issued by a judge; however, in cases of imminent danger, the competent local foreigner’s office may authorize it. Foreigners must acquiesce in such a search. (AufenthG, § 48, para. 3.) In addition, communal accommodations as well as apartments shared with other people may be entered to enforce a deportation. (§ 58, para. 6, sentence 3.)

The amendment adds a clarification that data carriers include data stored on mobile devices and in the cloud. The foreigner must provide the relevant login details. (§ 48, para. 3a.) Evaluating the retrieved data is allowed only if it is necessary to determine the identity and nationality of the foreigner and to determine and enforce a return option to a different country and there is no less serious measure with the same effectiveness. It is prohibited if there are actual indications that it would reveal only knowledge from the core area of a person’s private life. If such knowledge is obtained, it must be excluded. Any records must be destroyed. (§ 48, para. 3b.)

Retrieved data must be destroyed immediately once it is no longer needed to determine the identity and nationality of the foreigner and to determine and enforce a return option to a different country. Retrieval, evaluation, and erasure of data must be documented. It must be ensured by using appropriate technical and organizational measures in accordance with the EU GDPR that the retrieved data cannot be accessed without authorization. (§ 48, para. 3c.)

Lastly, the police are authorized to establish the identity of foreigners by entering their information into the police database or the EU Schengen Information System. (§ 50, para. 6.)

Simplified Deportation of Criminals

Furthermore, additional serious reasons to deport a foreigner are added to the Residence Act, such as when the security interests of Germany are endangered by foreigners who belong to organized crime organizations. No conviction is necessary for deportation. Furthermore, the deportation of human smugglers is facilitated. A serious public interest in expelling a person is presumed when they have smuggled or attempted to smuggle foreigners into Germany. An especially serious public interest in expelling a person is presumed when the smuggler has been convicted and sentenced to prison for at least one year. (§ 54, paras. 1, 2.)

Background to the Amendments

According to the Explanatory Memorandum to the Return Improvement Act, Germany received increasing numbers of migrants in 2022 due to the war in Ukraine but also from other parts of the world. The number of people looking for international protection rose by 50% in comparison to the previous year. This situation put a strain on the federal as well as the state governments. At their meeting in May 2023, the German chancellor and the state-level heads of government therefore agreed that in addition to other measures to deal with the influx, the return of people with no right to stay must be enforced effectively, in particular with regard to criminal offenders. (Explanatory Memorandum, at 1.)

Jenny Gesley, Foreign Law Specialist
April 15, 2024

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Chicago citation style:

Gesley, Jenny. Germany: Act to Improve Return of Foreigners Enters into Force. 2024. Web Page. https://www.loc.gov/item/global-legal-monitor/2024-04-14/germany-act-to-improve-return-of-foreigners-enters-into-force/.

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Gesley, J. (2024) Germany: Act to Improve Return of Foreigners Enters into Force. [Web Page] Retrieved from the Library of Congress, https://www.loc.gov/item/global-legal-monitor/2024-04-14/germany-act-to-improve-return-of-foreigners-enters-into-force/.

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Gesley, Jenny. Germany: Act to Improve Return of Foreigners Enters into Force. 2024. Web Page. Retrieved from the Library of Congress, <www.loc.gov/item/global-legal-monitor/2024-04-14/germany-act-to-improve-return-of-foreigners-enters-into-force/>.