After Court Ruling: Asylum Seeker Repatriation Remains Uncertain
The Case of Refusal Illuminates Ambiguities in Migration Legislation
Berlin - There's a question mark hanging over the federal government's ability to permanently enforce the repatriation of asylum seekers found to be illegal by the Berlin Administrative Court, according to migration law expert Winfried Kluth. With Chancellor Friedrich Merz (CDU) already stating weeks ago that the current administration has a different view on border repatriations than its predecessors, the situation remains uncertain.
Border Control Intensification and Repatriation
On May 7, Interior Minister Alexander Dobrindt (CSU) announced an intensification of border controls, including the repatriation of asylum seekers at the border, with exceptions made for children and pregnant women. However, the Berlin Administrative Court, in an urgent ruling on Monday, declared the repatriation of asylum seekers during border controls on German territory as unlawful. Asylum seekers may not be turned away without clarification of which EU country is responsible for their asylum application.
Jurist Kluth stated, "This decision aligns squarely with the prevailing opinion in migration law and the previous case law of the European Court of Justice (ECJ)."
Somali Asylum Seekers and Court Ruling
Three Somali asylum seekers were sent back from Frankfurt (Oder) to Poland under the new policy.
Dobrindt Seeks Main Proceedings
Following the court ruling, Interior Minister Dobrindt said he does not intend to change the border practice and is seeking main proceedings. He expressed confidence that they will "clearly gain the law" there.
Kluth stated, "The new federal government wants to change the legal interpretation." Their ultimate goal is to secure ECJ decisions that provide greater flexibility.
Additionally, they are attempting to establish a new argument for interpreting the maintenance of public order and internal security under Article 72 of the Treaty on the Functioning of the European Union, citing overburdened municipalities as a reference. This so-called emergency clause allows exceptions.
However, Professor of Public Law at Martin Luther University Halle-Wittenberg noted, "Whether one can deduce the situation in individual municipalities to the whole of Germany is very questionable."
Who Determines Exceptional Circumstances?
While it is possible to pursue a new interpretation of a norm that has not yet been established, the current case raises the question of who can determine that exceptional circumstances within the meaning of Article 72 exist. "This is a crucial decision due to its potential partial suspension of the primacy of Union law," said the jurist.
According to Kluth, such a decision should be made by the entire federal government or even the Bundestag - similarly to the decision on the epidemic situation of national significance during the corona pandemic. This decision would then also need to be communicated formally to the neighboring states and the EU Commission.
- The repatriation of asylum seekers, even during border controls, has been deemed unlawful by the Berlin Administrative Court, aligning with the prevailing migration law and the European Court of Justice's (ECJ) case law, posing a challenge for the current federal government's policy-and-legislation towards border repatriations.
- With the Berlin Administrative Court's ruling, the question arises as to who can determine exceptional circumstances within the meaning of Article 72 of the Treaty on the Functioning of the European Union, as the federal government seeks to establish a new argument for interpreting the maintenance of public order and internal security, potentially suspending Union law, a decision that could necessitate formal communication with neighboring states and the EU Commission.
