Dublin III, European Law, Federal Constitutional Court, Immigration and Asylum, Policy

Was Merkel’s Decision to Open Borders in 2015 Illegal?

The refugee influx of 2015 is a fait accompli, and the numbers of people applying for asylum in Germany is now back to more normal levels — in September and October 2015, ten thousand people per day were arriving at the borders, now the numbers are more like ten thousand per month.

So is the motivation for Chancellor Merkel to suspend border controls in 2015 still relevant? Yes, say the authors of a new book, Die Zauberlehrlinge — In English, The Sorcerer’s Apprentice. The title is based on a poem by Goethe which is a metaphor for things taking on a life of their own and getting out of control. The book, by Maximilian Steinbeis and Stephan Detjen (both lawyers), is subtitled The Dispute over Refugee Policy and the Myth of Unlawfulness. Steinbeis and Detjen make three main arguments. First, the decision of Chancellor Merkel and her top advisers to essentially open Germany’s borders in 2015 was lawful. Second, a “myth” has grown up around this decision claiming that Merkel acted unlawfully (committed a Rechtsbruch) in opening the borders. And third, that this myth of unlawfulness has acquired a life of its own in right-wing circles, fueling conspiracy theories and undermining confidence in the rule of law. Because the lingering after-effects of the “myth of unlawfulness” continue to affect German politics to this day, they argue, it’s worth addressing the issue head-on.

I haven’t read the book and don’t intend to — it’s probably interesting, I just don’t have the time. What I find interesting is the question of whether Merkel’s decision was, in fact, legal — and exactly what “legal” means in this context. I’ll explain why the decision to suspend border controls seems clearly illegal at first glance, but then turns out to be more complex.

I. German Law on the Issue

The basic point of departure for all critics of the legality of the decision is Art. 16a of the German constitution, the Grundgesetz or Basic Law:

1) Persons persecuted on political grounds shall have the right of asylum.

2) Paragraph (1) of this Article may not be invoked by a person who enters the federal territory from a member state of the European Communities or from another third state in which application of the Convention Relating to the Status of Refugees and of the Convention for the Protection of Human Rights and Fundamental Freedoms is assured.

There are five subsections to Art. 16a in all, which was adopted in 1993. Background: The collapse of the former Yugoslavia had induced hundreds of thousands of people to seek asylum in Germany, causing a major political crisis. The crisis was resolved by the “asylum compromise” (g) of 1993, which created Art. 16a in its present form, which limits and conditions the right of asylum.

Section 18 of the federal Asylum Law for Germany, also changed many times over the years, now states:

1) Any foreigner requesting asylum with an authority charged with police supervision of cross-border traffic (border authority) …  shall be refused entry if:

1.  he enters from a safe third country (Section 26a);

Section 26a defines all “Member States of the European Union” as safe third countries. So the answer to the illegality question would appear, at first glance, to be simple: The decision was illegal. Any person entering Germany over land must necessarily be entering from either an EU country or Switzerland, a safe third country (g). Therefore, none of these persons has a right to claim asylum in Germany. The decision to allow them to enter and claim asylum violated the clear language of the German Basic Law.

II. European Law and the Immigration Crisis

These German laws were intended to harmonize with the then-existing law of the European Union on asylum requests. However, that law has changed many times since Art. 16a was adopted. Now, the relevant EU law is the extremely complex Dublin III Regulation (named after the city in which the original regulation was negotiated) on asylum, which entered into force in 2013. Wikipedia provides a summary of what Dublin III was supposed to accomplish:

One of the principal aims of the Dublin Regulation is to prevent an applicant from submitting applications in multiple Member States. Another aim is to reduce the number of “orbiting” asylum seekers, who are shuttled from member state to member state. The country in which the asylum seeker first applies for asylum is responsible for either accepting or rejecting the claim, and the seeker may not restart the process in another jurisdiction.

So if an asylum-seeker enters EU territory by stepping onto Greek soil, as most of them did in 2015, and applies for asylum in Greece, then Greece must decide the claim. The problem, though, is many 2015 asylum-seekers did not apply for asylum in Greece. Nor did they do so in Macedonia, Bulgaria, Hungary, or any of the other EU countries they crossed on their way to Germany. They wanted to reach rich countries in Northwest Europe who have a reputation for liberal asylum laws and benefits for asylum-seekers. Also, Greece and Bulgaria did not want these asylum-seekers to apply for asylum there. They had nowhere near the manpower and resources to decide hundreds of thousands of asylum claims. Nor were their populations interested in hosting these persons.

So all the countries along the route from Greece to Germany “waved through” the majority of asylum-seekers. The trek became known as the “Balkan Route”:

Bildergebnis für balkan route refugees

The “transit countries” would accept an asylum application if a person wanted to file one, but did not insist that asylum-seekers file a claim — even though European law required this (at least in EU countries like Greece). Since the asylum-seekers hadn’t filed for asylum in, say, Greece, they weren’t entitled to a residency permit there. So Greece just sent them along to the next country, which sent them along to the next country, etc. — until they reached Germany. Once they reached Germany, they were permitted to enter, and filed asylum applications there. Some had already filed asylum applications in other EU countries (perhaps unsure whether they would be allowed to travel farther), but didn’t mention this to the German authorities, since that would have given Germany a reason to deport them back to wherever they had first filed their claim.

III. Why it was Illegal to Open Germany’s Borders

The issue is whether it was lawful for Chancellor Merkel to suspend border controls and let these people into Germany to file asylum claims. The most prominent critics of the legality of that decision are two former judges of the German Federal Constitutional Court, Udo di Fabio and Hans-Jürgen Papier. Di Fabio was commissioned by the Bavarian State Government to create an expert report (g) on the legality of the border opening.

Di Fabio’s report is 125 pages long, with detailed discussions of German federalism and European law. The main argument is that if the European system of border controls fails, and large numbers of people appear at the German border, the German federal government is obliged to institute effective border controls to restore order and protect Germany’s sovereign territory. Part of those border controls is Section 16a of the Constitution, which reflects a democratic compromise between protecting the right to asylum and maintaining order. European and international law may justify a brief, temporary relaxation of border controls in an acute situation, but cannot justify an decision to eliminate border controls for an unlimited time, as was done in 2015. EU law may trump German law in some circumstances, but cannot be allowed to erode the “identity” of Germany as a sovereign nation. Thus, EU law cannot and should not be interpreted as forcing Germany to yield control of its borders, one of the hallmarks of sovereignty.

Papier composed a 14-page expert opinion for the FDP party group in the Bundestag. He also critiqued the decision to open the borders. He stressed that it is a “fundamental regulatory principle of EU asylum law” that an asylum-seeker is not permitted to choose the country in which he seeks asylum. However, “this would often happen in practice, if asylum applicants were able, based on the act of filing an asylum application in their country of choice, would be able to oblige that country to allow them to enter, decide their asylum claim, and provide them with a (temporary) residence permit during the decision process”. This is exactly what Merkel’s decision allowed them to do. Therefore, it ran contrary to the overall purpose of Dublin III.

So, to sum up, (1) German law explicitly states that people entering from Austria shall not be allowed to file an asylum claim; (2) European law is also designed to prevent large masses of people streaming across EU territory to reach their preferred country, then file their asylum claim only there; and (3) any humanitarian exceptions permit only brief suspensions, not indefinite ones. It’s worth noting that Germany is still allowing people entering Germany from EU countries to file asylum claims. Germany has received almost 40,000 (g) initial asylum applications so far in 2019.

IV. Why it was Legal to Open Germany’s Borders

The simplest case for the legality of Merkel’s decision was the moral argument Merkel and her defenders made during political talk-shows: “It was a humanitarian crisis.” If Merkel hadn’t acted, thousands of people would have been stranded at the German-Austrian border, with uncertain but likely unpleasant consequences. According to the definitive account of the crisis, this was essentially Merkel’s reasoning: she didn’t want to be responsible for forcing tens of thousands of people into camps. The refugees would suffer, and the images would have been unflattering for Germany’s self-conception, particularly given its history. She essentially made a political decision, then hoped officials and bureaucrats could find a legal justification for it (they did, in internal documents).

Nevertheless, there is a more sophisticated argument. The best legal defense of the decision available on the web probably comes from Daniel Thym, a professor at the University of Konstanz. Notably, he is politically moderate, and has critiqued aspects of Merkel’s liberal immigration policy — that is, he is not an open-borders activist, as are many people quoted on this subject. He outlined his argument in an essay for the Tagesspiegel (g) and in a longer piece with more citations and more legal argument in Verfassungsblog (g).

The argument is as follows. First, German law — including the German Constitution — is not the last word on this issue. Although the first two paragraphs of Section 16a provide that asylum-seekers must be turned back at the border, Section 5 of that same provision reads:

Paragraphs (1) to (4) of this Article shall not preclude the conclusion of international agreements of member states of the European Communities with each other or with those third states which…adopt rules conferring jurisdiction to decide on applications for asylum, including the reciprocal recognition of asylum decisions.

And in fact, the EU did conclude such an “international agreement” — namely, the Dublin III regulations. These regulations thus now supersede the restrictive elements of §16a. The Federal Constitutional Court recognized this as early as 1996, when it said of (g) that Art. 16a(2) of the Constitution (which says that people who enter from safe third countries shall not be allowed to apply for asylum): “This provision can, under certain circumstances, be superseded by international agreements within the meaning of Art. 16a(5).”

So now the governing law is not the German Constitution, but rather Dublin III. Thym comments:

Even back in 1996, [the FCC] determined that German law would “be superseded by” European regulations and “would no longer be applicable”. After three years of intensive debate, in which both refugee groups and the closed-borders faction cited the Basic Law to support their respective arguments, this conclusion may strike some readers as bizarre. Yet it is in fact that case that even as of 1996, European rules took precedence. The Constitution is publicly visible, but, in legal practice, largely irrelevant. (emphasis added)

In fact, Thym adds, EU treaties like the Schengen Agreement and the Dublin III regulation are “directly enforceable” and valid within Germany and, in case of conflict, trump German law — including the German constitution. Thym admits that this state of affairs is “not easy to fathom for non-lawyers (and some law students).”

And under Dublin III, it was legal for Germany to permit people to cross into its territory. Not mandatory, but legal. Dublin III is an incredibly long and complex document, containing dozens of detailed regulations on which EU members states are responsible for determining whether a person can claim asylum. Simplified, the basic rules run like this: The default rule is that the EU country in which the asylum-seeker first entered EU territory must process their asylum application. If someone flies to Frankfurt, then Germany must process the claim. But if they come overland, the first EU country they set foot on must process it. Meaning, in practice, Greece or Italy. Simply shoving asylum applicants back into Austria wouldn’t comply with Dublin III, because all of the asylum-seekers there entered the EU in other countries, not Austria. Therefore, Austria is not responsible for processing their asylum claims — Greece (usually) is.

Another key provision is Article 29, on “Transfers”. It allows Germany to “transfer” an asylum applicant in Germany back to Greece (let’s say), if it determines that the applicant first entered EU territory in Greece, which makes Greece responsible for determining their asylum claim. But the asylum-seeker is entitled to a fair process to make this determination — i.e. to answer the question of which country is responsible for deciding whether he gets asylum. If the who-decides question cannot be answered within 6 months, then Germany must decide his asylum claim on the merits — Greece is off the hook. Thus, Dublin III presupposes that there will be some sort of hearing on who’s responsible for the person’s asylum claim before they’re sent back. And it requires a quick determination.

So the German federal government was entitled — possibly required — to choose to enforce Dublin III over the German Constitution. And Dublin III seems to require Germany to provide a hearing on which country is responsible for the asylum claim, not to simply turn people back at the border. Given the mass numbers of migrants, it was very likely that Germany would be unable to comply with the six-month deadline for providing that hearing. So German leaders were within their rights to set aside border enforcement, allow everyone to enter and claim asylum, and then only later determine where they should apply for asylum. They weren’t obliged to follow this policy, but it was not illegal for them to do so.

V. Conclusion and My Analysis

The authors of the new book apparently wish senior administration officials had aggressively made the legal case (g) to the public during the crisis, to prevent the “illegality” myth from taking hold. Yet those leaders instead generally recited moral platitudes about a “humanitarian crisis”. This is hardly a satisfactory argument; it should be obvious that the government cannot simply declare parts of the Constitution invalid merely by claiming some sort of “crisis” or Schmittian “state of exception” — there goes the rule of law. Instead, the pro-legality side argues, government officials should have gone onto the talk shows and editorial pages to make some form of the legal case I set out in Part IV.

I think this argument betrays more than a bit of myopia about political realities. It seems to be clear why the officials charged with defending Merkel’s policy avoided the legal arguments. For one thing, they’re complex and boring. Few Germans understand or care about the precise nature of the relationship between German national laws and EU regulations. A few sentences into the argument, the viewers’ eyes would have glazed over. But there’s a deeper reason here. As Thym himself admits, the notion that the German Constitution can be trumped by a mere EU Regulation will strike many people as bizarre and startling. The German constitution can only be changed by a two-thirds majority of both houses of the Bundestag. That’s a ferocious amount of democratic legitimation. Yet it turns out that this decision can easily be overturned by EU bureaucrats, so long as Germany signs on to the result of their efforts.

The idea that their constitution could be “visible” but “irrelevant in practice” will startle most Germans. What’s more likely to undermine faith in the law and public institutions — the argument that opening the borders was illegal, or the argument that it was legal because an EU regulation trumped the Constitution of the Federal Republic of Germany? The legal argument also requires politicians to basically come out and admit that the entire Dublin III scheme is an over-complicated, unworkable mess. The refugees were waved along through the transit countries because everyone knew Greece could not possibly fulfill its binding obligations under Dublin III. Greece was supposed to receive the asylum claims of everyone landing on its territory, issue them a temporary residence permit, timely decide their claim to asylum, and deport them if they had none. This was impossible, yet it was what the law clearly demanded. Of course, Dublin III and other regulations contain some vaguely-worded escape clauses for emergencies, but the migrant streams were hardly a surprise — Merkel was warned of them months in advance.

So to make the best legal case for the legality of Merkel’s decision, defenders would have had to present the German public with the argument that (1) EU law trumped the German constitution; and that (2) that EU law was totally unworkable, and therefore it was mostly being ignored. Germany should be required to open its borders because EU law required this, yet Greece should be allowed to ship people out of the country without an asylum hearing even though EU law prohibited this. Again, how likely is this argument to build confidence in the law — especially EU law?

There’s an old English saying: “Not only must Justice be done; it must also be seen to be done.” The fact that a verdict may be technically acceptable under the law is not enough; it must also be comprehensible to the people in whose name it is spoken. Perhaps they won’t agree with it, but it must at least be reached in a transparent way, and basically in accord with logic and common sense. The arguments in favor of legality fail this test. It’s perilous for a country to have laws on its books which don’t mean what they say, or which are unenforced or unenforceable, and this goes double for constitutions. Any argument for the legality of Merkel’s 2015 decision should be coupled with a frank and humble admission that the current state of asylum law in Germany and the EU is a disaster, and proposals for specific reforms. Anything else smacks of arrogance.

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