Debate: Legality of Deportation Police in Germany

What the state may and may not delegate to specialist units or private groups

Reports of the controversial conduct of the US deportation agency ICE against people in the United States continue unabated. In Germany, the idea of setting up something similar has found traction above all among AfD politicians. In January, the Bavarian AfD parliamentary group resolved at its party conference to establish an "Asylum, Investigation and Deportation Group" (AFA). The AfD in Saxony-Anhalt, for its part, has included plans for a "Deportation Task Force" with wide-ranging powers in its election manifesto.

Sarah Katharina Stein is a constitutional law expert and researcher at the Max Planck Institute for the Study of Crime, Security and Law in Freiburg, where she focuses on the question of when and to what extent the state may transfer its monopoly on the use of force. Much is regulated differently in Germany than in the United States. In this FAQ, she explains the rules that apply to the Federal Police and other security authorities.

What is ICE?

US Immigration and Customs Enforcement (ICE) is a federal law enforcement agency within the Department of Homeland Security (DHS), the American counterpart to Germany's Federal Ministry of the Interior. Both ICE and the DHS were established in response to the September 11 attacks. Their powers to intervene and enforce do not rest on any "special status" but on the relevant federal statutes - in particular the Immigration and Nationality Act (Title 8 U.S.C.) - and on the authority of the Secretary of Homeland Security to direct and delegate the enforcement of immigration law. Under US law, ICE agents are therefore employees of a federal enforcement agency within the Department of Homeland Security, acting in that capacity.

ICE has two primary components:

• Homeland Security Investigations (HSI)
• Enforcement and Removal Operations (ERO)

ERO is principally responsible for the arrest, detention and deportation (removal) of undocumented migrants; HSI carries out both overt and covert criminal law investigations.

Detention and Deportation Officers are recruited through public job portals. As a result, unlike in Germany - where a professional civil service system selects candidates on the basis of strict requirements as to suitability, qualifications and professional performance - ICE agents are only required to complete a basic training programme upon taking up their post - usually at the Federal Law Enforcement Training Center (FLETC) in Glynco, Georgia.

Would an ICE-style agency be legally possible at the federal level in Germany?

Hardly. German law has no equivalent of an "ICE-style" federal agency with blanket police powers of investigation and enforcement. Police powers are, in Germany, a matter for the individual states (Länder). The Basic Law (Grundgesetz) does allow the federal government to establish certain "central agencies" by federal statute (Art. 87(1)(2) GG), but the Federal Constitutional Court has made clear that the Federal Border Guard - the precursor to today's Federal Police - may not be expanded into a general federal police force competing with the state police. The Federal Border Guard was conceived solely as a specialised police force for securing the federal border and responding to specific threats extending beyond the territory or capabilities of a single state, such as in a "state of defence" (cf. Arts. 35(2) and (3), 91, 115f(1)(1) GG).

In addition, ICE in the United States performs functions that in Germany must always be split between two separate authorities. This follows from the separation principle, which is derived from the rule-of-law principle (Rechtsstaatsprinzip) and prohibits intelligence and police functions from being combined within a single authority.

What is legally "possible", therefore, is only a federal agency with a specifically defined remit in one of the areas the Basic Law expressly provides for - such as the Federal Intelligence Service (BND), the foreign service or witness protection. An ICE-style federal police for immigration enforcement is not possible without a corresponding new jurisdictional basis in the Basic Law. In short: the Basic Law would need to be amended in three separate respects - to remove the separation principle from the rule-of-law guarantee, to add enforcement powers to Art. 87 GG governing the establishment of central agencies, and to transfer general responsibility for public order from the states to the federal level. Each of those changes would require a two-thirds majority in the Bundestag.

Could ICE be introduced at the federal level by way of a state of emergency?

Drawing on the lessons of the National Socialist emergency legislation, the Basic Law recognises only two scenarios in which the distribution of the monopoly on the use of force between the federal government and the states may be altered:

• An external state of emergency under Art. 115f GG, which presupposes a military attack on Germany and triggers a "state of defence".
• An internal state of emergency under Art. 91 GG. In that case, states may request assistance from the police of other states and/or the Federal Police if the exceptional situation demands it. The federal government may also place a state's police force under its own direction. Stricter rules apply to the deployment of the armed forces (Bundeswehr): they may only be deployed in an emergency if the combined police resources of the states and the federal government are insufficient to manage the situation. Art. 87a(4) GG speaks of "warding off an imminent danger to the existence or the free democratic basic order of the Federation or a state".

These exceptional provisions are, in addition to the stringent substantive requirements they impose, strictly time limited. A permanent agency cannot be created on the basis of these norms.

Importantly, a directive from the Federal Chancellor alone would not suffice to bring a unit like ICE into being. Emergency decrees of the kind that existed under the Weimar Constitution (Art. 48) were deliberately excluded from the Basic Law. Any such decision must be taken by the federal cabinet as a collective body, subject to oversight by the Bundestag and Bundesrat, either of which may demand that the measures be discontinued.

Could individual states introduce a "deportation police"?

The enforcement of deportations is organised as a matter for the states under the Residence Act (§ 71 AufenthG). A state's immigration authority carries out decisions to terminate residence and, for practical enforcement, generally relies on the state police, whose officers are in turn bound by the state police act. Powers of the kind executed in the United States - such as the use of firearms without imminent danger, entry into private homes, surveillance and detention without a judicial order, or the detention of minors - are generally not provided for in any of the 16 state police acts. That said, if a person subject to deportation were themselves to attack the officers - thereby creating a specific and immediate danger - the officers would of course have access to the general powers of self-protection and protection of third parties.

At present, a state may only establish a specialised police deportation unit if its parliament enacts new powers through amendment of the state constitution and/or the relevant state police act. This is because the police and any sub-units may only exercise functions that have already been lawfully assigned to the state and its police. For an ordinary statutory assignment, the state constitutions require a simple majority; amendments to the state constitution itself require a two-thirds majority (and in some states, even a referendum in addition).

Could a federal government delegate the functions of a "deportation police" to a militant group or militia?

A militia that seeks out, detains and interrogates people with a migration background in a targeted manner is not permitted under German law. Under international law, militias form part of a state's armed forces, and so their deployment is governed by the rules applicable to the Bundeswehr. The Bundeswehr may only be deployed domestically where the Basic Law expressly provides for it - for example, in administrative assistance or an internal state of emergency (see above). Even then, the Bundeswehr acquires no new enforcement powers, and its deployment must remain below the so-called engagement threshold: no threat or intimidation may be exercised.

The Bundeswehr may also be deployed in the event of a disaster, but only in truly exceptional circumstances - such as a nationwide terrorist attack (not just isolated attacks, an almost unimaginable scenario). Any such deployment requires a decision by the full cabinet; the head of government acting alone does not suffice. In the event of a state of defence following an armed attack, the Bundeswehr may also operate domestically.

Five German states permit a "community safety watch", in which committed citizens support the police in maintaining public order. What powers do private individuals have when acting in support of the police?

Under the public security legislation of the individual states, the police may deploy selected and trained citizens to carry out certain policing tasks. In Hesse and Baden-Württemberg this service is called the "Voluntary Police Service" (Freiwilliger Polizeidienst); in Saxony and Bavaria it is the "Community Safety Watch" (Sicherheitswacht); in Brandenburg, the volunteers are known as "Security Partners" (Sicherheitspartner). Their members are appointed in cooperation with the police and assist officers on the ground primarily through observation and reporting in the event of a threat. Where they witness a criminal offence, they may stop and hold a suspect until the police arrive, question that person and establish their identity, if this is necessary to avert the danger (identity verification). They may additionally issue exclusion orders where the law so provides.

Any form of violence or direct coercion is expressly prohibited. All coercive measures must be exercised by sworn police officers. Arrests or the use of firearms - as seen recently with ICE agents in the United States - are in Germany reserved exclusively for the police. Vigilante groups or citizen patrols set up without police authorisation - for instance, to patrol streets or stop people without cause - are incompatible with the state's monopoly on the use of force under Art. 20(3) GG, are unconstitutional, and those involved may face criminal liability.

In March 2026, ICE officers were also deployed at security checkpoints in US airports to fill staffing gaps left by TSA officers, who had stopped being paid because of the ongoing budget freeze affecting the Department of Homeland Security. Could a "special police force" of this kind "step in" at security screening here in Germany?

For a "special police force" to step in at airport security in Germany in the way ICE did in the United States, a clear statutory basis in the Aviation Security Act (Luftsicherheitsgesetz) or the Federal Police Act would first be required. A mere executive order of the kind used in the United States would not suffice under the German legal system: the principle of parliamentary reservation (Parlamentsvorbehalt) applies, and new legislation would be needed. The new specialist agency would then have to be designated as an aviation security authority and the question of competence resolved: since the Federal Police already holds responsibility for airport security, any other authority stepping in could only do so by way of administrative assistance under Art. 35 GG - which in itself confers no power to intervene but presupposes that such power already exists. Administrative assistance under Art. 35 GG consists of cooperation between federal and state authorities.

Moreover, any arrangement that deploys officers without specific training in security screening would infringe Art. 33(4) GG and § 5 of the Aviation Security Act (Luftsicherheitsgesetz). The functional reservation principle enshrined in these provisions requires that sovereign powers be exercised "as a rule" by members of the public service - and those personnel must be certified specialists (§ 5 LuftSiG in conjunction with Commission Implementing Regulation (EU) 2015/1998). This qualification requirement cannot be circumvented by an executive directive or simply by relabelling an existing agency.

An agency that simply has a budget and a uniform but has not been trained in aviation security would therefore not be permitted to take on this function. What would be needed are three separate pieces of legislation - one to assign the task, one to create the powers for the agency stepping in, and one to establish a training basis - three independent legislative acts that in the United States can be replaced by a single presidential directive, but not in Germany.

In the United States, ICE officers use extensive software systems that give them access to personal profiles and real-time facial recognition. Here in Germany, the police are not permitted to analyse social media profiles - but journalists are. How can this difference be explained?

The core distinction is this: police analysis is state action and therefore requires a clear statutory basis, whereas journalistic research is private action conducted within the framework of general law and additionally protected by press freedom. Journalists do not act in the exercise of public authority; they cannot take coercive action. In principle, they can only observe, ask questions, analyse and publish - and even that only within legal limits. They cannot summon people, conduct searches, seize property or compel the disclosure of data.

For the police, the collection and processing of data forms part of the exercise of executive authority - or of criminal law enforcement - and must therefore rest on a sufficiently precise statutory basis. The technical capability to do something is simply not enough.

Systematic social media monitoring can constitute a highly intrusive form of data processing. Even where individual posts are publicly accessible, it becomes constitutionally problematic the moment the state collects, links, profiles or permanently stores data systematically, en masse or in an automated fashion - think pattern analysis, network and relationship mapping, risk scoring or facial recognition. The police can also attach follow-up measures to the intelligence gathered. The interference with fundamental rights arises less from any individual act of observation than from the state's aggregation of information: out of what was "scattered" and disparate, an official intelligence file emerges with potentially significant consequences. Police measures are therefore bounded in their purpose, trigger and intensity by the principle of proportionality.

This explains the apparent asymmetry: what matters is not access to information, but the stricter constraints placed on state information processing by law, oversight and legal redress. Press freedom, moreover, protects the gathering and publication of information as a precondition of public scrutiny - while the state is precisely the actor that is subject to that scrutiny.

Edited by Michaela Hutterer