Asylum policy | Rejections: "Intentional breach of the law"

In the coming days and weeks, more asylum seekers are expected to file lawsuits against their rejections at the German border. Asylum law experts largely agree that they will win. The Berlin Administrative Court made many fundamental points in its ruling on the lawsuit brought by three Somalis. According to the ruling, the rejections violate European law and that refugees have the right to a proper Dublin procedure, which clarifies in which country they will submit their asylum application.

Once further lawsuits are decided in favor, Chancellor Friedrich Merz and Interior Minister Alexander Dobrindt will find it difficult to argue that only individual cases have been decided. Legal experts are already criticizing the federal government for persisting with the rejections. Bijan Moini, Legal Director at the Society for Civil Rights (GFF) , told nd that the Berlin Administrative Court's decision "clearly goes beyond the specific case." If Dobrindt and others were to "downplay" it as an individual case, they would be "effectively setting hardly achievable conditions for their own willingness to abide by the law." With clear consequences, as Moini says: "This calls into question the separation of powers and sets a dangerous precedent in a particularly sensitive area of ​​the law."

Maximilian Pichl , Professor of Social Law and Social Work at RheinMain University of Applied Sciences and Chairman of the Association of Democratic Jurists (VDJ) , is even more explicit. Regarding the Berlin proceedings, Pichl says they have shown that the federal government "doesn't have a single legal argument on its side." Regarding the continued rejections, Pichl has a clear assessment: "The Interior Minister is clearly committing a deliberate breach of the law."

The failure of state representatives to implement court rulings is nothing new in Germany. In 2018, the city of Wetzlar denied the NPD the use of its town hall – despite a ruling by the Federal Constitutional Court. In the same year , the Islamist Sami A. was deported in North Rhine-Westphalia, even though a court had previously ruled that he could not be deported. North Rhine-Westphalia's Interior Minister Herbert Reul reacted to the court decision with criticism. Courts must also take the "public's sense of justice" into account, and the decision against deportation was incomprehensible. After massive public criticism, Reul finally apologized for his statements. He admitted that his statement "could have been misunderstood" and emphasized that he regretted this. Finally, in Bavaria, the state government refused to impose driving bans, as the administrative court had ordered, in a dispute over clean air plans for Munich. Fines ordered by the court had no effect. The administrative court then asked the European Court of Justice whether it could place officials or the Bavarian Minister-President in custody. The court replied that German law was decisive.

Are cases like the ones above comparable to the continuation of rejections? Bijan Moini of the GFF believes it is only indirectly. The federal government is not refusing to implement a specific decision, as was the case with the air pollution control plans. Instead, it denies that the decision is transferable. "In fact, however, the impact is much greater because the government is thereby continuing a central practice of rejecting asylum seekers, a practice that all reputable experts have considered unlawful from the outset," explains Moini.

Maximilian Pichl responds to the question of comparability: "Researchers and lawyers have long been talking about executive disobedience, that is, governments ignoring or circumventing the law. This is now taking on more systematic traits and endangering the legal system as a whole."

The term "executive disobedience" was coined by Philipp Koepsell, who analyzed cases like the one above for his doctoral thesis. Officials in Germany have no fear of consequences, and the imposed fines often flow from one household budget to another. Koepsell also examined how other countries deal with the problem. In the United States, authorities can be prosecuted with fines running into the millions. Personal liability of officials is also possible. In one high-profile case, a registrar who refused to perform marriages for same-sex couples was imprisoned.

Italy has chosen a different approach. Here, courts can appoint and appoint an ad acta commissioner. This commissioner, usually a senior administrative official or former judge, then takes over the relevant administrative area and restores the legal situation.

In Germany, former Justice Minister Marco Buschmann presented a key points paper a year ago that proposed periodic fines. However, it never became law. The issue is not yet on the agenda of the current coalition government. These are good times for lawbreakers in the Interior Ministry.