BGH: No detention pending deportation if there is a mere suspicion that there is a risk of absconding due to behavior

According to a decision by the Federal Court of Justice (BGH), foreigners threatened with deportation may not be taken into custody if a risk of flight is suspected solely due to their behavior. The situation is different if, for example, they have expressly declared that they want to avoid deportation. A statement from the 13th Civil Senate in Karlsruhe states that a statement is required “from which the intention to confiscate is clearly apparent given the overall circumstances.” (Ref. XIII ZB 33/23)

In principle, the Residence Act provides for many reasons for detention pending deportation, the risk of absconding is just one of them. And there are also different requirements for being able to assume a risk of absconding within the meaning of the law - for example if you have already avoided deportation.

The court based the risk of flight solely on the behavior

In this specific case, according to the BGH, a stateless Palestinian went to a police station in April 2023 and stated that he was seeking asylum. The Austrian authorities have already made a decision to return. The Duisburg district court decided that the man should be in custody to secure the return process.

It also rejected a request from a confidant to have the detention lifted. The Duisburg Regional Court (LG) rejected a complaint against this, as can be seen from the BGH decision of September 1, 2026.

The LG therefore suspected there was a risk of escape. The person concerned did not expressly declare that he wanted to avoid deportation. However, he has been living in Austria since 2020, where two asylum applications were rejected. He also applied for asylum in Belgium, the outcome of which is not known, and in Germany. “Through his behavior he made it clear that he was not willing to follow a decision to return,” it continues.

Legal complaint in Karlsruhe successful

The BGH has now overturned these decisions. The decisions of the Duisburg courts violated the rights of those affected in the period from May 7th to June 6th, 2023, the highest civil court in Germany decided.

Taking the overall circumstances into account, a statement could also be understood as an express declaration of the intention to avoid transfer. “But this must be clear and unequivocal without any further questions.” The appeal court did not find such a declaration, but merely derived an intention to withdraw from the person concerned's behavior. “However, according to the principles mentioned, that is not enough.”

The city of Duisburg must now cover the costs of legal prosecution.