Germany: Persons to be deported cannot be arrested in the night – Court rules

Foreigners who are to be deported may not be visited at night, according to the Düsseldorf Administrative Court (Verwaltungsgericht Düsseldorf) in a new ruling announced on Tuesday (17 November).

The court was of the opinion that persons to be deported have the right to night rest and as such should not be woken up in the middle of night like it’s often done when they’re to be forcibly deported.

Foreigners who are to be deported may not, as a rule, be visited by the authorities at night, the court ruled, thus prohibiting the action of the Duisburg Foreigners’ Office, which wanted to search a flat at 4.30 am in the course of a planned deportation. The Residence Act allows such enforcement measures at night time only as an exception, the Court explained.

According to current living habits, at least the time between 9 pm and 6 am should be considered night time all year round, the court said. Moreover, the search of a flat was not justified only because the deadline for departure set for the foreigner had expired. Additional circumstances were required – for example, the foreigner’s declaration that he or she did not want to leave the country voluntarily. Furthermore, the authorities have to explain to the person why he or she was obliged to leave the country and why there were no compelling reasons for toleration.

The requested search of the Duisburg flat at night was also not exceptionally admissible because there were no facts from which it could be concluded that the deportation would otherwise be thwarted, the court stressed. The aliens’ registration office had to base its planning of deportation  means on the law.

(Case file of the court decision is AZ: 7 I 32/20)

Felix Dappah

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