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Deportation to Afghanistan – is that possible?


Because of the knife attack in Mannheim in which a police officer lost his life, politicians are discussing making deportations to Afghanistan easier. What legal considerations need to be taken into account here?

Kolya Schwartz

Where is the legal limit when it comes to deportations?

The Residence Act clearly states: Foreigners are “deported” if their stay endangers public safety and order, the free democratic basic order or other significant interests of the Federal Republic of Germany. This is the case, for example, if they have been sentenced to certain prison terms for criminal offenses.

However, expulsion and deportation are two different things. Expulsion is the basis for subsequent deportation. Despite the above requirements, a foreigner may not be deported if he or she is threatened with torture, death or other inhumane treatment in his or her home country.

This ban is not only in the Residence Act, it also arises from the Basic Law and the Geneva Refugee Conventions. That is why it cannot simply be changed or abolished. Despite all the demands in the current political debate, this is the mandatory legal limit that cannot be ignored.

Is there a threat of torture and death in all regions of Afghanistan?

This is the crucial question that must be continually reassessed. As early as December 2023, the Conference of Interior Ministers asked the Federal Ministry of the Interior to examine how convicted serious criminals and dangerous individuals could be deported to their countries of origin, including Afghanistan and Syria. The result is to be presented at the next Conference of Interior Ministers on June 19, 2024.

If the deportees were not threatened by any of the dangers listed in certain regions of a country, they could legally be deported there. However, this question is then examined by the courts in specific cases. To do this, they look very closely at the specific situation on site.

What practical hurdles prevent deportations from failing?

In addition to the legal hurdle, there is a practical one: deportation always requires a country that will accept the deportee. This usually requires agreements with the countries of origin. In Afghanistan, however, the Taliban are in power, and Germany – like many other countries – does not recognize them and does not cooperate with them.

What about an agreement with Afghanistan's neighbouring countries?

Some politicians point out that they obviously don't want to make deals with the Taliban, but rather agreements with neighboring countries, such as Pakistan. From there, the people would then be deported to Afghanistan. Such a solution could possibly solve the factual problem, but the legal problem would remain.

Germany should only be allowed to send people to Pakistan if it is certain that they will be deported from there to an area of ​​Afghanistan where they will not face torture or inhumane treatment. This constitutional principle remains.

How does the discussion affect the accused in Mannheim?

In some parts of the discussion, the impression is created that the crime could possibly have been prevented if Germany had deported criminals and dangerous individuals in the past.

According to everything we know so far, this is wrong because the accused in Mannheim was not known to the security authorities. He was not considered a threat and had not committed any crimes.

Even if there were no legal and factual obstacles to deportation to Afghanistan, this act would not have been prevented.

But now he could be deported?

The accused in Mannheim committed a serious crime here, injured several people and killed a police officer. The first step is to bring him before a court, to examine the crime and the motives in a criminal trial. And it is about punishing him for it here in Germany. Because this is where he committed the crime. If he were deported immediately, he could possibly get away with it unpunished.

Such criminal prosecution and punishment of an offender is not only important from a constitutional point of view, it is also often very significant for the victims and their relatives.

If individual perpetrators of other crimes in the past had fled to their home country or another country after committing the crime, the discussion was different: the question was then how to bring them back to face trial here.

Can he be deported after his prison sentence?

If a foreign offender has served all or most of his prison sentence, deportation to his country of origin is possible under the law. However, it must then be checked at this point whether this is actually and legally possible for the respective country of origin.

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