The applicant, an Iranian national, of Azerbaijani origin and Christian, entered Germany on 23 January 2016. On 11 May 2016, the person applied for international protection with the Federal Office for Migration and Refugees (BAMF). BAMF rejected the application by decision of 30 January 2017 and did not provide any prohibition to deportation. The applicant filed an appeal on 13 February 2017 before the Bavarian Administrative Court in Bayreuth which was rejected with the judgment of 7 November 2019. The applicant filed for a second appeal on 16 September 2020 which was rejected so that the removal was enforceable from 17 October 2020. The applicant did not leave after 10 months and indicated on 29 October 2020 on the phone and in writing that he does not want to leave.
His removal was scheduled for 26 August 2021, which was cancelled as the person self-harmed and was taken to the hospital. A new request for removal was made since the applicant had also several criminal convictions. The local Court of Coburg sentenced him to imprisonment of 1 year and 9 months but the execution was suspended on a probation period of 3 years. The local court ordered detention on 26 August 2021 until the removal could be executed, which would be no later than 25 November 2021. The applicant challenged the detention measure and indicated that he would commit suicide if deported.
He was subsequently placed in detention in a former prison used for the execution of deportation orders but because of the suicide risk, he was accommodated in a special place in the detention centre until 6 September 2021. In Bavaria (unlike in other Federal States of Germany), there is no separate law on detention pending deportation. The local court referred the case to the district court for decision since the applicant challenged the detention measure, indicating that the detention pending deportation ordered by order of the Coburg Local Court of 26 August 2021 to secure the execution of the deportation until 25 November 2021 had violated his rights.
On 23 September 2021, the immediate release of the person was ordered following a consultation with the Bavarian State Office for Asylum and Return which indicated that executing the return of the person by 25 November 2021 was unlikely.
In a written submission dated 29 March 2022, the person's legal representative finally objected that the execution of the detention pending deportation at the detention centre of Eichstätt was contrary to European law, as Eichstätt was not a special detention facility within the meaning of Article 16 of the Return Directive. Additionally, following the cancellation of the deportation on 26 August 2021, there was no other application for return filed as expected, which would be necessary for the Bavarian State Office for Asylum and Repatriation to take action. According to the legal representative, the detention conditions would contradict the most recent requirements of the CJEU judgment in C-519/20 of 10 March 2022. In the case of a different view of the chamber, the legal representative requested a suspension of the proceedings and to refer the matter to the CJEU for a preliminary ruling.
On second appeal, the Regional Court of Coburg noted that the lower court correctly justified its decision on the basis that the conditions for ordering detention to secure deportation were provided. It noted that the person wished to evade deportation and even if a specific deportation date was not yet known at the time of the decision, the necessary forecast was done as to whether the deportation could take place realistically within that time and the detention period was also appropriate in this regard. The court also noted that no alternative measures to detention appeared applicable in this case given that the applicant showed a serious will to avoid deportation and was willing to injure himself to avoid deportation. The court further noted that the detention order was also not unlawful due to an existing imprisonment or travel incapacity of the person concerned, and that it was lawful to place the person in a specially secured detention area, as persons subject to deportation are to be held separately from convicted persons.
Lastly, with regard to the authorities’ obligation to respect the principle of proportionality and speed up the deportation to keep the period of deprivation of liberty as short as possible, the court noted that the foreigners´ authority remained inactive for weeks and that it is not understandable why no further application for removal was submitted until the release of the applicant.