Solingen attack sparks debate on Germany’s deportation laws

The case of the suspect in the Solingen attack, 26-year-old Syrian Issa Al H.*, who had pledged allegiance to the "Islamic State" (IS) terror group, has highlighted how despite four major reforms in deportation law since 2015, many rejected asylum seekers are still able to fall through the cracks.

In January, the German government agreed to a raft of new measures first proposed by Interior Minister Nancy Faeser in 2023. This included extended detention periods for those slated for deportation, extended search and seizure rights for police who suspect a pending deportee to be hiding in a shared accommodation or not in possession of identification, and not informing rejected asylum seekers of their deportation date in an effort to hinder absconding. (There is an exception to the latter for minors or families with children.)

The Deportation Improvement Act also included a new rule stating that membership of a criminal organization, even if you haven't been convicted of a crime, is grounds for deportation.

The provisions of the new law regarding detention and deportation dates came into effect in February of this year, and the search and seizure provisions at the beginning of August.

In light of the changes, the Neue Osnabrücker Zeitung reported in May that the official number of deportations in the first quarter of the year had risen dramatically. Some 3,566 people were deported in the first three months of 2023. In 2024, that number had climbed to 4,791, an increase of 34%.

Despite that, according to government records seen by the paper, some 7,048 planned deportations did not take place. In some cases, this is because pilots can refuse to fly deportation flights on technical grounds or because those scheduled for deportation may have serious health issues. However, in the vast majority of cases it is either because the rejected asylum seeker has disappeared or because their country of origin has not agreed to receive them.

Protection of Syrian nationals

If people do not qualify as a refugees under the Geneva Refugee Convention, in Germany they are allowed to apply for something called "subsidiary protection" if they would be in serious danger if returned to their homeland.

Syria was removed from Germany's list of countries to which no one can deported in 2020. And in July, a court ruling on the deportation of a convicted human smuggler said that some parts of Syria are safe to return to. However, most Syrian refugees in Germany are still being granted subsidiary protection or allowed to remain under other circumstances.

Rejected asylum seekers are usually held in detention pending their deportation only if they are deemed a risk to public safety or if it is strongly suspected that they will try to flee. According to German media reports, Issa Al H. had not been flagged as either dangerous or a flight risk.

Further complicating matters in the case of the Solingen suspect were the sometimes complex and overlapping EU asylum laws. Before coming to the German city of Bielefeld and applying for asylum in 2022, Al H. had first arrived in the European Union via Bulgaria. Therefore, he should have been sent back to Bulgaria to have his asylum application processed.

However, if a person is in a second country for more than six months, the responsibility then transfers to their new location.

That deadline is extended to 18 months in the cases of people who cannot be found, during which time the authorities in their last known location are expected to carry out a search. It is not yet clear how extensive a manhunt was carried out for Al H. after it was determined that he had vanished. In any case, when authorities arrived at his accommodation in the city of Paderborn in June 2023 to send him to Bulgaria, he was nowhere to be found.

Some months later he reemerged in Germany, when he was put in the refugee home in Solingen. Due to the time elapsed, he was able to apply for asylum in Germany and was granted subsidiary protection.

Legal limbo

As of December 2023, there were 242,600 people in Germany slated for deportation. Sixty percent of them are rejected asylum seekers.

Further complicating deportation procedures in Germany is something known as the Duldung, or "tolerance" visa. People who have a Duldung live in a legal limbo where they are not immediately facing deportation because of, for example, a medical issue or because they are attending school in Germany.

People with a Duldung are usually not allowed to work and are restricted as to where they can travel. Local authorities are given the right to issue these visas on an individual basis according to need and how overwhelmed the responsible offices are. This can result in some people staying in Germany without a real residency permit for years.

As of October 2022, people who have been in Germany for five years with a Duldung and have not broken the law are now allowed to apply for an "opportunity visa" and are given 18 months to find a way of sustaining themselves. According to the authorities, pending applications for these visas are also part of the reason why some deportation orders are not carried out.

*Full name is withheld in compliance with German privacy laws

Edited by: Rina Goldenberg

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