Police operations at the initial reception centre Ellwangen and in Berlin

DEPORTATION FROM THE BEDROOM CONSTITUTES A HOUSE SEARCH

If the police enter a bedroom in a refugee shelter to deport a resident, this constitutes a search and requires a court order. In its ruling of September 30 (published on November 20, 2025), the Federal Constitutional Court confirmed that, in order for it to be classified as a search, it is crucial that the police enter the apartment with the purpose of locating and taking a person away. As long as they do not know for certain beforehand that the person is in the room and where they are, it constitutes a search. The police must first obtain a court order in accordance with Article 13(2) of the Basic Law (GG).

The Federal Constitutional Court confirms: It is irrelevant whether the person to be apprehended is visible at a glance or is in an area separated by a screen. If, as the Federal Administrative Court did previously, one focuses on the situation the police find in the room and whether the person is hiding there, this undermines the preventive protection of the requirement for a court order. This would lead to difficulties in drawing boundaries and to random results. The Federal Constitutional Court thus makes it clear that the protection of fundamental rights does not depend on coincidences such as the size and layout of an apartment.

WITH A RAM INTO THE BEDROOM

In February 2025, together with lawyer Christoph Tometten, we filed a constitutional complaint against a room search in Berlin for the purpose of deportation. In 2019, the police had broken into the complainant's room in a temporary shelter in Berlin with a ram in the morning. They did not have a court order when they entered the room to apprehend and deport him. The police based their actions on the provision introduced in 2019 in Section 58 (5) of the Residence Act (AufenthG), which stipulates that it is merely a case of “entering” if the authorities enter an apartment to apprehend a person for the purpose of deportation and there is evidence that the person is in the apartment. This legitimized and consolidated the practice of conducting room searches without a search warrant, which is contrary to fundamental rights throughout Germany.

The Higher Administrative Court of Berlin-Brandenburg upheld the police practice and ruled that it constituted "entering" within the meaning of Section 58(5) of the Residence Act. The Federal Administrative Court did not allow an appeal. In a ruling dated September 30, the Federal Constitutional Court overturned the decision of the Higher Administrative Court of Berlin-Brandenburg and referred the case back to the court for a new decision. The Federal Constitutional Court clarified that forcibly breaking into an apartment with a battering ram to apprehend a person constitutes not merely entering, but a search. Article 13(2) of the Basic Law hence requires a court order.

§ 58 (5) RESIDENCE ACT NO LONGER APPLICABLE

With the provision introduced in 2019 in Section 58 (5) of the Residence Act, the federal government at the time attempted to undermine the fundamental rights requirements for the protection of the home. The provision stipulates that the police may enter rooms to deport a person if there are facts to suggest that the person is currently in the home. A search warrant is hence not necessary. The Federal Constitutional Court has now clarified that a search warrant is required as long as the police do not have reliable knowledge before the start of the measure that the person is actually in the room and where they are located. This leaves § 58 (5) AufenthG with virtually no scope of application.

INITIAL RECEPTION CENTRE ELLWANGEN

On June 15, 2023, the Federal Administrative Court ruled on our lawsuit against a deportation from the initial reception centre Ellwangen in 2018. The court did not consider the police entering the room for the purpose of deportation to be a search. The reasoning: since the police could see at a glance that the plaintiff was not in the room and no search was necessary, it did not constitute a search. Our constitutional complaint was not accepted in Karlsruhe for formal reasons.

Nevertheless, the decision of the Federal Administrative Court is now obsolete: In our second constitutional complaint in the Berlin proceedings, the Federal Constitutional Court clarified in its decision published in November 2025 that a search is generally deemed to have taken place if the person concerned is visited in their room in shared accommodation for the purpose of deportation. Special search measures are not necessary. This would lead to random results and undermine the preventive purpose of the requirement of prior judicial authorization.

Landmark judgment against the unlawful deportation practice

The inviolability of the home is one of the fundamental rights enshrined in the constitution. The Federal Constitutional Court has clarified that a room in accommodation is subject to special protection under fundamental rights as it is the only and fundamental place of retreat. If the police want to enter it in order to deport a refugee, they need a search warrant. This is not a mere formality, but a preventive measure. The court must examine whether a search is necessary at all to deport the person or whether there are less severe measures. It must also examine whether there are concrete indications that deportation would fail without a room search.