Border controls | Pushing back at the border: "But we will do it"

Actually, everything could have been very simple. On Monday, the Berlin Administrative Court ruled on the lawsuits of three people from Somalia who had been turned back by federal police at the German-Polish border in Frankfurt (Oder) on May 9. The rejections were illegal. The Federal Republic of Germany is violating European law. The refugees are entitled to a Dublin procedure, which determines which country is responsible for their asylum application. The decision is clear and had been expected by many experts.

Chancellor Merz, who had already announced during the election campaign that he would begin rejecting applications at the beginning of his chancellorship, and Interior Minister Alexander Dobrindt could have now taken note of the court's decision with composure and ended the unlawful practice . Instead, however, both declared that they intend to continue adhering to it. Dobrindt explained on Monday evening that these were decisions being made on a case-by-case basis and that he was awaiting a decision in the main proceedings. Chancellor Merz followed suit on Tuesday. At the local government congress of the German Association of Towns and Municipalities in Berlin, he explained that the decision had indeed limited the scope for maneuver: "But the scope is still there. We know that we can still make rejections." He wanted to do all this in accordance with European law. "But we will do so, also to protect public safety and order in our country and to protect cities and municipalities from being overwhelmed," said the Chancellor.

Although the court had to decide on individual cases, the ruling nevertheless has a fundamental character. The court emphasizes this in its decision and points out that, therefore, the decision was not made by a single judge, but by an entire panel of three professional judges. The main proceedings, which Dobrindt wants to wait for, will also not take place. The cases of the three plaintiffs have been resolved with the interim decision.

The federal government cannot appeal the decision either. There is a special rule in asylum law that precludes appeals. "The legislature's intention is, of course, to achieve enforceable deportation warnings/orders as quickly as possible by making it impossible for applicants to appeal if their urgent applications are rejected," asylum lawyer Marcel Keienborg explains the special rule to the "nd" newspaper. "The reverse also applies to the authorities."

Given this legal situation, how should we assess Dobrindt and Merz's desire to maintain the rejections? Asylum lawyer Keienborg explains that courts generally always decide on a case-by-case basis. With the exception of prominent courts such as the Federal Constitutional Court and the European Court of Justice. Therefore, one can now say, on a "purely formal level," that the decisions of the Berlin Administrative Court only concern the three specific cases and that the decision has "no binding effect on others." But, according to Keienborg, almost all legal experts on the subject agree that the practice of rejections is illegal. It is directly enshrined in the Basic Law that constitutional bodies must abide by the law. If Dobrindt and his colleagues disregard this and claim to have a different legal opinion, it is "already bordering on a deliberate disregard of the legal situation," he believes. However, Dobrindt's actions are not punishable.

Left Party Bundestag member Clara Bünger is calling on Dobrindt to resign. "Now we'll see whether the Union respects the rule of law or tramples on it. Anyone who disregards existing law like this simply doesn't belong in government office," says Bünger. "If we turn a blind eye to Germany's borders, we weaken the rule of law at home. If we defend the rights of refugees at the border, we are therefore defending the rights of all people," says the Left Party politician. Bünger is demanding clarification from SPD Federal Justice Minister Stefanie Hubig: "The rule of law is non-negotiable." Hubig bears responsibility for ensuring that existing law is also enforced at the border. The SPD must decide "whether to continue to cover up this practice or finally stop supporting unconstitutional policies."

Justice Minister Hubig told the dpa news agency on Tuesday afternoon that she had "no doubt that the federal government will comply with the court's rulings." In her view, the administrative court had not conclusively clarified whether the rejection of asylum seekers at the internal borders was compatible with European law. "However, it will not be easy," the minister suspects, "to convince the judiciary that these rejections are lawful."

Meanwhile, controls continue at the German borders. The court ruling does not change the controls and rejections, Manuel Ostermann, deputy federal chairman of the right-wing Federal Police Union (DPolG), told MDR. The German Police Union (GdP), on the other hand, sees its criticism of the measure vindicated. "We have said from the outset that the procedure now introduced—rejecting asylum seekers and those seeking protection—is highly controversial from a legal perspective," Andreas Roßkopf, chairman of the GdP's Federal Police Division, told the Funke Media Group newspapers.