Germany’s center-right bloc led by the Christian Democrats (CDU) is calling for stricter immigration law following a knife attack in the city of Aschaffenburg that left two people dead.
After it came to light that the assailant was an Afghan national who was slated for deportation, CDU leader Friedrich Merz has presented a five-point plan to curb irregular migration.
Merz has said that should the CDU bloc emerge victorious in Germany’s federal election on February 23, he will work to implement his plan as quickly as possible. However, questions remain about whether his proposals are legal under German and European Union law.
‘Last resort’
Germany is part of the Schengen free movement area, and thus, border checks are only allowed “in the event of a serious threat to public order or internal security.” Border checks within Schengen have been put in place before, for example, during the Covid-19 pandemic and following terrorist attacks.
For the latter reason, border controls have been in place in Germany since a knife attack in the city of Solingen in August. There, too, the suspected perpetrator was a rejected asylum seeker who had been scheduled for deportation.
Border controls are considered a “last resort” in EU law, and are only permissible for a limited period. With open borders at the heart of the EU’s principles, constant patrols of Germany’s 3,800-kilometer (2,630-mile) border are simply not allowed.
‘Entry ban’ could lead to conflict with neighbours
Another part of Merz’s plan is a “de facto entry ban for all people who do not have valid documents,” even for asylum seekers who may have had to flee conflict in a hurry.
EU law requires that asylum seekers must first have their cases processed in the first member country they arrive in. This law, the Dublin III Regulation, thus means that people coming as refugees who enter Germany by way of another EU country should, by law, be sent back to their port of entry.
However, “European law stipulates that people must first be allowed to enter the country,” migration law expert Daniel Thym told German broadcaster ARD. Only after an initial intake is completed can it be determined if an asylum seeker needs to be sent back to another EU country.
Even then, there are cases in which refugees are allowed to stay in Germany. If, for example, a close relative is already in the process of applying for asylum there, they may be allowed to remain.
Trying to circumvent these standards would not only flout EU law but would inevitably lead to conflicts with neighbouring countries. Austria has already declared that it would not “take back” any asylum seekers rejected by Germany.
Bar is high for possible ‘national emergency’
Germany could use a legal statute to declare a national emergency and thus be allowed to close its borders. Article 72 of the EU Treaty on the Functioning of the European Union (TFEU) was already mentioned by Merz following the Solingen attack as potential grounds for long-lasting border checks.
This, too, however, would face a significant legal hurdle. The government would first have to prove that the country was experiencing a national emergency, which would be difficult considering current border controls have significantly curbed irregular migration in recent years.
The current center-left Social Democrat (SPD)-led government has been quick to point this other, as well as the fact that most irregular migration could be ended by continuing to send refugees back to the first EU country they entered.
CDU plan could accelerate reform
Should Merz become chancellor — his bloc is leading in the polls — his proposals will run into most of these hurdles. His government would have to prove its claim that Germany is facing an overwhelming level of asylum applications or a wave of crime. Even then, allowing exceptions to open border rules is regulated by the European Court of Justice (ECJ). So far, every attempt by a member state to be granted an exception has failed.
There is one way it could work out for Merz, Daniel Thym told ARD, which is that Germany trying to forge ahead despite EU rules could spur other countries to do the same. This could accelerate an overhaul of the EU asylum system, which many member countries have criticized as highly inefficient.
“And then we will have to sit down in Brussels very quickly and ask ourselves how we can fundamentally reorganize European asylum law,” he said.