Several types of action to oblige a foreigner to leave the country are provided for in German law, depending on the situation.
Zurückweisung (rejection: the person is sent back): an alien who wants to entry Germany to submit a petition for asylum, has just crossed the border and still in its immediate vicinity, is directly returned (redirected) into the neighboring state. Entry in Germany is refused unless aliens come by plane or sea routes, and only if they didn’t transit a so-called safe third country.
Ausreisepflicht / Ausweisung (compulsory departure / expulsion): an alien who does not possess (or no longer possesses) a residence authorisation is obliged to depart within a specified time period and is not to return (never, or not within a specified period) (§ 42 I of the Aliens Act). Article 45 states the rules of the expulsion. The foreigner may be expelled if his/her residence infringes upon the public safety and order. Exceptions may be made in case of special protection from deportation (besonderer Ausweisungsschutz), if the alien holds a right of residence (Aufenthaltsberechtigung) or an unlimited residence permit (Aufenthaltserlaubnis) and was born in Germany or entered Germany as a minor; s/he is married to a German; s/he is married to an alien who holds a right of residence (Aufenthaltsberechtigung) or a residence permit (Aufenthaltserlaubnis) and was born in Germany or entered Germany as a minor; s/he is recognized as having rights to asylum (asylberechtigt); s/he is in possession of an authorization of residence (Aufenthaltsbefugnis) as a war or civil war refugee.According to article 42, an alien is granted a period within which, s/he has to leave the country voluntarily, but some, in some Laender (e.g. Bavaria), authorities may initiate deportation proceedings within this period. Where objective impediments to deportation are present, a ‘toleration’ is to be provided under § 55 IV of the Aliens Act.
An alien may be taken into deportation custody in certain circumstances. If this occurs, it is essential to hire a lawyer. There are three types of deportation custody: Preliminary custody (§ 57 I of the Aliens Act), short-term surety custody (§ 57 II) and surety custody (§ 57 II, III. The first two of these hardly apply in respect to refugee work, where, usually the third, longer-term form of custody is brought to bear.
The relevant authority is legally bound to carry out all measures necessary for the implementation of deportation without resorting to detention. This can mean that the authority carries through the deportation in a sudden veiled operation, and people are only allowed to take with them the bare essentials. This is called direct deportation (Direktabschiebung). Social services can be contacted at the airport, so as to call a lawyer. Custody usually lasts for a maximum of three months, a prolongation up to six months is possible. In cases in which the alien aggravates deportation, a further prolongation of twelve months is possible, making a total of eighteen months. A precondition of custody is that deportation must be carried out by the competent authority and the necessity for detention for ensuring deportation is apparent.
Within a period of two weeks (date of submission to the courts) following notification of the pronouncement of detention, an 'immediate objection' may be submitted to the relevant Verwaltunsgericht. The Beschwerdekammer, a court of appeal, decides after hearing the alien. If the decision is negative, it is possible to submit an 'immediate further objection' (sofortige weitere Beschwerde). In such a case the next-higher court must examine whether the application of the law has been correct, but not however, the individual facts of the case on their own. If the period of two weeks within which an objection may be submitted, has expired, an application for 'release from detention' may be submitted to the relevant Verwaltunsgericht. In the case of a negative decision, an objection is not possible.
Detention conditions vary quite considerably between the German states. In some cases the deportation custody takes place in special deportation prisons, sometimes in 'ordinary' prisons. Especially women, due to their limited number, are often placed in 'ordinary' prisons. In such cases ordinary penitentiary regulations often apply to aliens in detention as well as to ordinary criminals (e.g. visiting times, exercise periods). Women and men are accommodated in different prisons. Children are usually taken to children’s homes.
Germany, a crossroad between Eastern and Western Europe, is one of the main markets for trafficking in women. The relevant penal provisions about trafficking and related violations are § 180b and § 181 of the Criminal Code. Under these provisions, trafficking in human beings means conduct aimed, usually in pursuit of profit, at bringing another person, through trickery, threats or force or by exploiting a difficult personal situation, to engage in sexual acts, and particularly to take up or continue prostitution in a foreign. These penal provisions do not cover other forms of trafficking in women under the United Nations definition, cases in which the application of other paragraphs of the Criminal Code may be possible - for example, the provisions on coercion (§ 240 of the Code), wrongful deprivation of freedom (§ 239), rape (§ 177), etc.
The identification of victims of trafficking proves difficult in the context of police raids, for example. The result is that women are often immediately deported, although they are victims of trafficking, because they are in Germany illegally. Under the General Administrative Regulation pertaining to the Aliens Law, victims of trafficking are given a grace period of four weeks before deportation; during this period they can prepare for their departure or consider whether they wish to give evidence in court. When a woman has decided to make herself available for the giving of evidence, she may, if she is at risk, be covered by a program of police protection. The German legal system provides for the possibility for victims of trafficking in human beings and serious trafficking in human beings to bring concurrent actions against the defendants in criminal proceedings. If the witness decides to give evidence against the defendant, s/he can bring a concurrent action in which s/he participates in the hearing merely as a passive witness but has rights of her/his own. S/He can engage her/his own lawyer. The lawyer sees to it that the victim’s rights as a witness are safeguarded. The costs of the legal assistance are borne by the State.
Victims of trafficking who do not make themselves available as witnesses for court proceedings in Germany are given the possibility to organize their return to their country within four weeks. German NGOs help them in this task. Financing of travel costs is possible from the resources of the Reintegration and Emigration Program for Asylum-Seekers in Germany (REAG program). The Federal Ministry for Technical Co-operation and Development supports a repatriation project of the NGO Solidarity with Women in Distress (SOLWODI), under which women returning to their home countries receive help with travel and removal costs and bridging funds for the first three months, and measures are financed for assisting them in finding jobs and starting a new life.
With regard to international contacts in the area of police co-operation, the Federal Office for Criminal Investigation has liaison officers in many of the countries from which victims of trafficking come. The Federal Republic of Germany has concluded agreements on extradition and mutual legal assistance with a large number of countries. There are bilateral agreements with many countries covering police co-operation, extending also to the area of procuring and trafficking in persons. Several additional agreements of this kind are about to be ratified.
Analysis provided by: Antonella C. Attardo PhD (History of Law), Italy.
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