The Berlin Administrative Court on Monday ruled that the government’s new policy of rejecting asylum seekers at the border is incompatible with European Union law.
In the decision, the court found that the forced return to Poland of three Somalian asylum seekers on German territory, two men and one woman, was illegal under the EU Dublin regulation. It went on to rule that the overall policy of rejecting asylum seekers is legally ill-founded.
The court dismissed the legal basis put forward by Interior Minister Alexander Dobrindt, which prescribes that asylum seekers may be returned when coming from a safe third country. Because of the primacy of EU law, the court held that the Dublin III Regulation applies. This regulation states that an EU member state is responsible for processing the asylum claim where the asylum seeker first sets foot, which is hardly ever the case in Germany, as a central state.
However, the Dublin Regulation obliges member states to conduct a case-by-case assessment through a proper hearing to determine the responsible state for the process of the asylum claim. There are a number of exceptions, such as health reasons or a risk to life or limb, which preclude a state from executing a Dublin transfer. One of the plaintiffs, for instance, claimed to be a minor, which would constitute grounds to be assessed in such a procedure.
The court also decided that the German government’s justification brought forward under EU law for their measures is unconvincing. Earlier this year, Chancellor Friedrich Merz had invoked Art. 72 of the Treaty on the Functioning of the European Union (TFEU), which allows member states to suspend EU law in cases of threats to public order. The court explained, based on past decisions of the European Court of Justice, that the threshold for this state is high and the government has yet to deliver on evidence why it is fulfilled, since the number of asylum seekers in Germany and the EU has declined in the past two years.
The first to test the novel policy since its implementation by the conservative CDU-led government. In response, Merz and Interior Minister Alexander Dobrindt stated that they will not advise police and border forces to stop rejecting asylum seekers at the border. However, as Merz explained, they want to stay “within the boundaries of EU law” and guidelines set out by the court, saying they view the ruling as a mere “singular decision,” and await a final resolution of the matter.
Several European countries have recently limited the rights of asylum seekers at their borders, such as Poland and the Netherlands, which had considered an opt-out of European asylum rules. However, Germany is the first country that, without consulting other EU countries, put an effective halt to Dublin transfer hearings.
