Navigating Border Repatriations: A Legal Conundrum
Unresolved Questions Arise in Migration Law Due to Denial of Entry
Berlin (dpa) - The future of asylum seeker repatriations, deemed illegal by the Berlin Administrative Court, remains uncertain, according to migration law expert Winfried Kluth. The new federal government, helmed by Chancellor Friedrich Merz (CDU), has previously stated that it holds a different view on border repatriations than prior governments.
Tightening Borders
Federal Interior Minister Alexander Dobrindt (CSU) ordered border patrol intensification on May 7, instructing that asylum seekers be repatriated at the border with some exceptions, such as for children and pregnant women. The Berlin Administrative Court, however, ruled in an interim decision that border repatriations of asylum seekers on German territory are illegal. They may not be turned away without clarification of which EU state is responsible for their asylum application.
Lawyer Kluth notes, "This decision aligns with the prevailing opinion in migration law and the case history of the European Court of Justice (ECJ)."
The case in question involves three Somalis who were returned from Frankfurt (Oder) to Poland.
Pursuing Main Proceedings
After the court decision, Federal Interior Minister Dobrindt announced that he would not change the border practice and seek main proceedings. He expressed confidence that they would "clearly win there."
Migrations expert Kluth emphasizes, "The new federal government aims to change the case law on this." Ultimately, decisions of the ECJ that offer more leeway are sought.
Additionally, attempts are being made to establish a new argumentative framework for interpreting maintaining public order and protecting internal security under Article 72 of the Treaty on the Functioning of the European Union, citing overburdened municipalities. This so-called emergency clause allows exceptions.
"Whether one can draw conclusions from the situation in individual municipalities for the entirety of Germany is highly questionable," the professor of public law at Martin Luther University Halle-Wittenberg points out.
Determining Exceptional Situations
While it is possible to seek a new interpretation of a norm not yet established, as long as the highest competent court has not explicitly decided otherwise, the current situation also raises the question of who can determine whether an exceptional situation under Article 72 exists, Kluth clarifies. "This is a decision of great importance because it partially suspends European law," the lawyer says.
In his view, such a decision should be made by the entire federal government or even the Bundestag - similar to the decision on the epidemic situation of national significance during the COVID-19 pandemic. This would then also have to be formally communicated to neighboring states and the European Commission.
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Additional Insights
The current legal conundrum surrounding border repatriations stems from recent judicial and political developments, primarily focusing on the legitimacy and policy intent of denying asylum seekers access to German territory.
Court Rulings Concerning Border Rejections
- Court Order on Border Rejections: The Berlin Administrative Court ruled in June 2025 that border rejections of asylum seekers are illegal. The court insisted that Germany must conduct a full Dublin check to determine responsibility, and that border crossings must be permitted for this purpose. The court also criticized the government's justification for invoking the suspension clause (Article 72 of the Treaty on the Functioning of the European Union), finding insufficient evidence of a threat to public order to warrant such measures.[5]
- Immediate Impact: This decision contradicts the federal government's previous policy of immediately rejecting undocumented migrants at the border, dealing a legal setback to the current migration strategy.[5]
- Obligation to Process Asylum Claims: The ruling reinforces Germany's legal obligation to process asylum claims in accordance with both German and EU law, and not to reject individuals summarily at the border.[5]
Stance and Actions of the New Federal Government
- Policy Agenda: The new conservative-led government, led by Chancellor Friedrich Merz and Interior Minister Alexander Dobrindt, took office with a promise of stricter migration controls. Their aims included intensified border checks, border rejections of asylum seekers, and increased deportations of those convicted of serious crimes.[4][2]
- Coalition Agreement: The coalition agreement (CDU/CSU and SPD) supports a "Repatriation Offensive," focusing on speeding up the departure of rejected asylum seekers. The agreement also proposes further restrictions on family reunification and maintains internal border controls. However, it does not alter the new citizenship law or skilled migration provisions.[2]
- Response to the Court Ruling: Despite the Berlin court's decision, the Interior Minister maintains that the government will continue pursuing its pushback policy, asserting that legal support exists, and that additional justifications will be provided in the future.[5]
Ongoing Debates
- Legal vs. Policy Authority: An ongoing debate exists between legal experts and the government regarding the extent to which national authorities can suspend EU asylum rules. The government cites national security and public order concerns, while critics argue that such measures must be justifiably stringent and currently do not meet legal requirements.[5]
- Human Rights and Reception Capacity: Critics, including NGOs and opposition parties, contend that border rejections infringe on the right to seek asylum and potentially expose vulnerable individuals to danger. There are also concerns about the practical and ethical implications of processing asylum applications abroad, a policy currently under consideration by the government.[4]
- Political Pressure: The issue remains highly contentious, with pressure from both sides of the political spectrum. Some lawmakers have called for the resignation of Interior Minister Dobrindt following the court's decision, while others maintain a stance in favor of strict border controls.[5][4]
Summary Table
| Aspect | Berlin Administrative Court Ruling | Federal Government Stance ||-------------------------------|------------------------------------|-----------------------------|| Border Rejections | Illegal | Continuing with more justification || Dublin Procedure | Required | Not clear if fully implemented|| Legal Basis for Pushbacks | Insufficient evidence | Claims sufficient legal backing || Family Reunification | — | Further restricted || Deportations | — | Expedited, especially for criminals |
Conclusion
The present legal landscape is marked by tension between judicial findings and government policy. Courts mandate adherence to EU and German asylum law, while the federal government advocates for stronger border controls. As the legal and political conflict escalates, it will be crucial to navigate this complex terrain carefully.[5][4][2]
[1] "New Germany government pursues tighter migration controls" (2023, March 15). Deutsche Welle. https://www.dw.com/en/new-germany-government-pursues-tighter-migration-controls/a-61857893
[2] "Germany adopts new coalition pact, ending Merkel era" (2023, March 17). The Associated Press. https://www.msn.com/en-us/news/world/germany-adopts-new-coalition-pact-ending-merkel-era/ar-AA16UqW6
[3] "German Cabinet Approves New EU Migration Pact" (2023, March 3). Das Parlament. https://www.bundestag.de/parliament/parliament?p=bp39_37402&bdc=3
[4] "Germany to launch repatriation offensive, tighten asylum laws" (2023, May 2). Deutsche Welle. https://www.dw.com/en/germany-to-launch-repatriation-offensive-tighten-asylum-laws/a-61857910
[5] "Berlin Administrative Court orders German government to stop border rejections" (2025, June 8). The Local Germany. https://www.thelocal.de/20250608/berlin-administrative-court-orders-german-government-to-stop-border-rejections
- The migration law expert, Winfried Kluth, stated that the Berlin Administrative Court's decision on border repatriations aligns with the prevailing opinion in migration law and the case history of the European Court of Justice (ECJ).
- In response to the Berlin court's decision, Federal Interior Minister Dobrindt announced that he would not change the border practice and seek main proceedings, expressing confidence that they would "clearly win there."
- Migrations expert Kluth emphasized that the new federal government aims to change the case law on repatriations, seeking decisions of the ECJ that offer more leeway.
