CDU leader Merz will present new asylum and migration proposals in the Bundestag, emphasizing permanent border controls, rejections, and deportation detention. These measures are requests to the federal government, not binding laws. The legality of permanent border checks under Schengen rules is debated, and changes to asylum law face EU legal complexities. The CDU argues for prioritizing national law amid perceived EU failures, but substantial justification is required to bypass EU regulations.
CDU’s Upcoming Proposals on Asylum and Migration
On Wednesday, CDU leader Merz is set to unveil new proposals regarding asylum and migration during a session in the Bundestag. What specific demands is the Union making, and what is permissible under current law?
Understanding the CDU’s Proposal Submissions
The CDU/CSU parliamentary group’s proposal outlines that ‘the German Bundestag calls on the federal government to immediately implement the following measures.’ This includes five key points: ‘permanent border controls,’ ‘rejection,’ and ‘deportation detention.’ It’s important to note that these suggestions do not constitute concrete laws that the Bundestag must enact. If a majority exists, it serves as a request to the federal government, leaving their response to interpretation.
Additionally, the Union plans to propose changes to specific phrases within the asylum and residence laws. For instance, they want to modify the asylum law to specify that ‘the foreigner is to be denied entry’ through ‘rejection at the border.’ If a majority supports these adjustments, they could be implemented without further government action.
A decision on whether these proposals will make it onto the legislative agenda is expected soon.
Legal Challenges of Permanent Border Controls
The question of whether permanent border controls are permissible is complex. Germany has long adhered to the Schengen Border Code, which establishes that there should be no border controls between Schengen member states. This framework is vital for facilitating economic and tourism activities within the EU.
While there are exceptions to this rule, such as in cases of significant danger, these measures can only be temporary, with a maximum extension of two years. Current border controls enforced by Federal Interior Minister Faeser, expanded due to the Solingen incident, may be in conflict with this Code, as the Union’s proposals could make exceptions the norm instead of the exception.
For over a year, federal police have maintained control over the border with Poland.
Complications Surrounding Asylum Law
The legal complexities surrounding border issues stem from EU law, which often takes precedence over national legislation. The Dublin III Regulation outlines how to process asylum seekers arriving at German borders. Member states cannot simply turn them away but must determine which country is responsible for their asylum claims.
As a general rule, the responsibility falls on EU member states located at the external borders, meaning neighboring countries cannot be expected to accept rejected asylum seekers. Despite differing opinions among legal experts, changes to national asylum or residence laws would not alter the overarching EU regulations.
The CDU’s hardline stance on asylum matters is further complicated by a recent ruling from the European Court of Human Rights (ECtHR).
Can a ‘State of Emergency’ be Justified?
In the CDU’s proposals, there is a call for prioritizing national law due to perceived failures in EU regulations. This argument stems from Article 72 of the Treaty on the Functioning of the European Union (TFEU), which allows member states to bypass EU law in exceptional situations where ‘public order’ and ‘internal security’ are at risk.
However, Germany would need to provide substantial justification, as the European Court of Justice (ECJ) has historically been skeptical of such claims. Experts express doubt that the recent rise in crime will convince judges, particularly as the number of refugees has been declining. To disregard EU law, Germany must demonstrate that it has exhausted all other solutions.
Additionally, the European Council can implement measures to assist states facing sudden influxes of refugees, but Germany has not yet pursued this route.
Potential Consequences of Rejecting Asylum Seekers
If Germany opts to reject asylum seekers citing an emergency, the pivotal issue will be how German and European courts interpret and rule on these cases. Asylum seekers could appeal in administrative courts near the border and subsequently escalate their cases to the Federal Constitutional Court if necessary.
The European Court of Justice in Luxembourg plays a crucial role in interpreting EU law, but asylum seekers cannot approach the ECJ directly. Instead, national courts may refer significant questions to the ECJ for guidance.
Other EU member states also have the option to bring a case against Germany for potential EU law violations, and the EU Commission could raise legal concerns leading to litigation before the ECJ.
Can EU Law Be Altered?
While it is possible to amend EU law, such as the Dublin III Regulation, it requires consensus among member states. Until such changes are made, Germany must comply with existing EU regulations to avoid penalties from the ECJ.
Germany’s implementation of the Dublin procedure has been ineffective lately, largely due to its own decisions.
Expanding Deportation Detention: Is It Feasible?
The CDU’s proposal suggests that individuals with enforceable deportation orders should be placed in custody immediately. The regulations for ‘deportation detention’ are outlined in the Residence Act (§ 62) and state that such detention is only permissible if no less severe means are available, and for the shortest duration possible. Generally, minors and families with children are exempt from deportation detention according to the law.
Authorities are bound by the principle of proportionality, which is a fundamental right under the German Basic Law. Additionally, if a deportation fails due to issues at the receiving state rather than the individual being deported, limitations remain on deportation detention. If the proposed measures are applied too broadly, there’s a heightened risk that courts could rule them inadmissible.
This discussion around migration and asylum laws continues to evolve, with implications for Germany’s legal obligations and humanitarian responsibilities.