A. The removal operation: preparations and conduct; (Read full CPT report)
8. A main destination for refugees, asylum seekers and migrants, Germany has over the past decade received the highest number of asylum seekers in the European Union (EU).8 Since 2015, the country has pursued several initiatives and restrictive measures to reduce the number of foreign nationals arriving and staying in the Federal Republic without the appropriate documentation and to increase the number of removals. Today, Germany is among the countries which carry out the highest number of forced removals of foreign nationals in Europe. According to data provided by the German authorities by letter of 10 October 2023, 137 charter flights were carried out by Germany in 2022 and the country forcibly removed from its territory a total of 10 917 foreign nationals (including 5 047 by charter flight).9 During the first eight months of 2023, 129 charter flights10 were organised and 8 704 persons (including 3 790 by charter flight) were subject to forced removals from Germany.
9. Moreover, in recent years, Frontex has enhanced its assistance to support EU member states in removing foreign nationals to their countries of origin, both by means of forced return operations and support for voluntary return. According to the Agency, over 15 000 persons were forcibly removed with Frontex support in 2022 (including some 9 200 by charter flight).11 More specifically, Frontex supported 287 return operations by charter flight, including 38 JROs, 178 NROs, and 71 Collecting Return Operations (CROs).
10. Removals from Germany to Pakistan are carried out in accordance with the multilateral readmission agreement concluded between the EU and Pakistan, which entered into force on 1 December 2010.13 Between 2020 and 2022, the German authorities removed 1 094 Pakistani nationals to their country; 117 were removed to Pakistan between January and August 2023. 11. The overall legal framework for the removal from Germany of foreign nationals has not changed since the CPT’s visit in 2018, and is regulated by the relevant provisions of the federal Residence Act.14 It is recalled that the immigration authorities (Ausländerbehörden) of the different federal states are responsible for issuing a so-called “deportation warning” – a written notice of intention to deport a foreign national – if the person concerned must leave the federal territory, as well as for carrying out the person’s deportation if the requirement to leave the federal territory can be enforced (vollziehbar ausreisepflichtig). Depending on the arrangements in the federal states, the respective police and/or immigration
authorities are responsible for enforcing the requirement to leave the federal territory, in cooperation
with the Federal Police, which is responsible for carrying out most deportations of foreign nationals
by way of return flights.16
12. However, in recent years, some federal states have decided to increasingly conduct forced
removal operations by air on their own. In this context, it is noteworthy that in Baden-Wurttemberg
and Bavaria, escort duties during the flight phase have been delegated to private security staff of the
company “Air Bulgaria”, which was awarded this task following a competitive bidding process.17
The CPT would like to be informed how the German authorities carry out oversight of personnel of private security companies during forced removal operations by air conducted by federal state authorities alone, and how effective monitoring of these flights is ensured. The Committee would also like to receive detailed information about the training that is provided to private security staff members carrying out return flights.
13. The September 2023 visit did not provide an opportunity to further examine the issue of immigration detention,18 and specifically custody awaiting deportation (Abschiebungshaft) as well as custody to secure departure (Ausreisegewahrsam).19 Depending on the policies applied by the respective federal state authorities, custody awaiting deportation or to secure departure can be applied in Germany. The CPT takes note that several federal states have decided not to resort to detention in the context of removal proceedings which is positive.
The rules on immigration detention have been subject to some changes since the CPT’s 2018 visit.20
Most importantly, the short-term detention (kurzzeitiges Festhalten) of persons to be removed by the competent state authorities enforcing the requirement to leave the federal territory is now expressly regulated in the Residence Act. The new provision therefore creates a legal basis for the practice of holding persons in short-term detention without a specific court order in the context of their deportation, as opposed to custody awaiting deportation or to secure departure which require an individual detention order by a court.21
14. As to applicable EU regulations, Germany is bound by the EU Return Directive.22 Further, as
specified in the internal instructions (Dienstanweisung) concerning the provisions on the return of
foreign nationals by air (Best Rück Luft),23 and the Frontex Implementation Plan for this JRO, the
removal operation is implemented in accordance with the respective national legislation and the
applicable EU and international law; relevant standards and guidelines shall also be considered. In addition to their legal obligations under German law, all Federal Police officers participating in a
JRO supported by Frontex are also subject to the revised Frontex Code of Conduct for return
operations and return interventions coordinated or organised by Frontex.25 Reference is also made
to the Common Guidelines on security provisions for joint removals by air annexed to Council
Decision 2004/573/EC,26 Council Directive 2003/110/EC,27 the Frontex Guide for joint return
operations by air coordinated by Frontex, and the “Return Handbook” annexed to Commission
Recommendation (EU) 2017/2338.28 Moreover, during the in-flight phase of the removal operation, the Tokyo Convention29 governs all actions related to security and safety on board the aircraft.
15. The CPT delegation monitored the following phases of the removal operation: the gathering
of Pakistani nationals to be returned at the collecting centre of Brandenburg (organising federal state)
and at the central gathering point at Berlin/Brandenburg Airport; the handover process of returnees
to the Federal Police authorities; the pre-departure phase at the airport facilities; the boarding of
returnees from Germany as well as from Austria and Italy; the flight phase to Pakistan, including the
stopover in Cyprus, where additional returnees and escort officers boarded; and the physical
handover of all returnees to the Pakistani authorities in Islamabad.
16. Based on information communicated to the CPT by Frontex in July 2023, the EU member
states participating in the JRO had indicated a concrete interest in removing 73 Pakistani nationals
(including 50 from Germany, 10 from Austria, 10 from Cyprus and three from Italy). On the day of
the JRO, 51 persons were effectively removed to Pakistan (including 38 from Germany, two from
Austria, 10 from Cyprus and one from Italy). All returnees deported from Germany were single men,
and all had a requirement to leave the territory that could be enforced. The list of persons to be removed from Germany initially contained 100 persons. Most of these
persons were not deprived of their liberty and it was planned that the competent police and/or
immigration authorities apprehend and collect them on the morning of 5 September 2023. In the end,
only 38 persons were removed from Germany, 25 of whom had been deprived of their liberty prior
to the operation.30
17. These 51 persons were escorted by a total of 131 police escorts from the four countries
participating in the JRO, including 93 escort officers from Germany and three Forced Return Escort
and Support Officers (FRESOs) from the Frontex Standing Corps (one participating on behalf of
Austria and two on behalf of Cyprus). Three representatives of the German Federal Police
Headquarters, a representative of the Austrian Federal Agency for Reception and Support Services,
a Frontex representative, a medical doctor, a paramedic and an interpreter also boarded the aircraft. In addition to the CPT delegation, other monitors on board the flight included two forced return
monitors from the Frontex pool of forced return monitors (requested by Germany to monitor the
removal operation on behalf of Germany) and a human rights monitor
(Menschenrechtsbeobachterin) from Austria. Further, one forced return monitor of the “Forum forced
return monitoring at Berlin/Brandenburg Airport” observed the pre-departure phase of the JRO in
Germany.
18. From the outset, the CPT wishes to emphasise that its delegation did not receive any
allegations of ill-treatment from persons removed from Germany to Pakistan by either police or
immigration officials from the different federal states or escort officers of the Federal Police. On the
contrary, the JRO of 5 September 2023, organised by Brandenburg with the assistance of the
German Federal Police, was well prepared and carried out professionally and in a calm manner.
Overall, the Committee gained a positive impression of the conduct of the removal operation, and
persons removed from Germany to Pakistan were treated with respect and dignity.