Refugee denied payout in deportation detention case
April 18, 2019
An Afghan refugee who was imprisoned by the state of Bavaria pending his deportation was denied compensation on Thursday, after a the Federal Court of Justice (BGH) overturned an earlier ruling that found his detention was illegal.
The new ruling allows for different interpretations in how necessary pre-deportation detention is.
Details of the case
- The man and his family came to Germany in 2013, having already applied for asylum in Slovakia.
- State authorities ruled they be deported to Slovakia and to ensure this, the man was detained in prison. His wife and baby daughter were housed in shared accommodation.
- A different state court later ruled the 27 days detention in the Munich-Stadelheim prison was disproportionate.
- He was awarded €810 compensation from the state of Bavaria, but denied federal compensation. He and the state both appealed.
- On Thursday, the BGH found his detention was actually justifiable and therefore compensation was unnecessary.
- It also found that even if the jailing were unlawful, he still had no claim to federal compensation despite being arrested by federal police.
- Meanwhile, he was granted German refugee status after evading deportation through church asylum.
Read more: German Cabinet agrees tougher rules for deporting migrants
Why was his detention initially ruled illegal? A high level state court overruled his detention in prison, ruling that it was sufficient to accommodate him in shared accommodation with his family and with strict reporting conditions. Furthermore, it ruled that his detention in prison was illegal because he had displayed no intention to flee. German law states that detention for deportation is illegal if the purpose of the detention can be achieved through less severe means. Foreigners can be detained for a maximum of six weeks if their deportation would otherwise be substantially impeded or frustrated. However, on Thursday the BGH found he had displayed signs he would evade deportation and furthermore, "it is not acceptable for the judge in the compensation process to simply substitute his own prognosis for that of the detention judge."
Read more: Bavaria to build deportation center in former Air Berlin hangar at Munich Airport: report
Why would he be entitled to compensation? The European Convention on Human Rights stipulates that people who have been illegally detained are entitled to financial compensation, not only for pecuniary damage but also for any distress, anxiety and frustration caused. The laws do not stipulate an amount, however payouts that are negligible or "wholly disproportionate to the seriousness of the violation" would not comply with the law. In this case, the defendant was claiming €100 compensation for each day of detention. The BGH found since he was not illegally detained, he was not entitled to compensation under the act.
Can refugees be detained? EU member states can deport refugees back to the member state where they first applied for asylum and to facilitate this they can hold them in detention. However, in 2014 the European Court of Justice ruled that deportation candidates cannot be held in general prisons. They must be held in specialized facilities. In this case, the refugee argued he was entitled to compensation because he was held in a normal prison, however the BGH found the the European Convention on Human Rights act being examined in the case did not cover compensation in such cases.
Tricky process: Deporting refugees has been a fraught process in Germany. Under current laws, just 10% of eligible deportees are successfully sent out of the country.
Read more: Deportation laws in Germany — what you need to know
aw/rt (dpa, AFP)