A letter from ... Dr. Walther Michl. The Academic Council at the Chair of Public Law and European Law at LMU München has placed the refugee crisis within the current legal framework.
In the public discussion on the refugee problem, the call for a "return to the law" is repeatedly voiced - often combined with the demand for the closure of borders.
And indeed it is seemingly simple: Article 16a of the Basic Law stipulates that only politically persecuted persons enjoy the right of asylum. And even they cannot invoke it if they have come to Germany via an EU member state. Consequently, the Asylum Act actually orders asylum-seeking foreigners to be refused entry at the border if they wish to enter from a safe third country. The fact that, despite these guidelines, almost all people who claim to want protection in Germany on the border with Austria are allowed into the country would therefore be a complete breach of law and a major scandal.
However, the actual legal situation is more complex.
In addition to and in part before German law, there are a number of international and European regulations with their own requirements as to who is entitled to protection and which state must check the relevant requirements.
The Geneva Convention on Refugees, for example, recognises not only political conviction but also fear of persecution on the grounds of race, religion, nationality or membership of a particular social group as grounds for flight.
The aforementioned facts are taken up for the entire European Union in the recognition directive 2011/95 and defined in more detail. Whoever fulfils them is officially called a "refugee". The same Directive also enshrines a further protection status: subsidiary protection. It is given to those who are threatened with "serious harm" when they return home - the death penalty, torture or, think of Syria, "a serious individual threat to their lives or to their integrity ... as a result of indiscriminate violence in the context of an international or domestic armed conflict".
This is in line with Article 3 of the European Convention on Human Rights, which prohibits government action to endanger human life or to expose people to degrading and inhuman treatment.
All these aspects were gradually incorporated into the German Asylum Act. The actual right of asylum under Article 16a of the Basic Law is therefore currently being examined in the same procedure as refugee status and the conditions for subsidiary protection. In addition, rejected asylum seekers often do not have to leave the country, for example because no other state is prepared to accept them. These people then live in Germany with a so-called tolerance.
If the number of migrants is to be significantly reduced, the only really effective means is not to let it get to the asylum procedure in Germany in the first place.
In this respect, too, however, the German regulation is superseded: The Dublin III Regulation stipulates that no EU Member State may simply declare itself incompetent. If every state would do this, there would ultimately be a danger that those seeking protection would not be given a fair asylum procedure anywhere (in technical jargon: "refugees in orbit").
There is therefore a hierarchy of criteria to determine who is responsible. The country in which the applicant first set foot on European soil is most often affected. This is hardly ever Austria or another neighbouring country. Germany cannot therefore reject a person seeking protection without an examination at the border, but has only two options: either to determine the state actually responsible and arrange for the transfer of the asylum seeker there. Or to voluntarily carry out the procedure itself (both are expressly provided for in the Regulation).
Since the humanitarian conditions in Greece and along the Balkan route are devastating, the Federal Republic of Germany currently takes over every asylum procedure if an applicant wants protection here. This is not illegal, but in the long run it is not acceptable. A solution will probably only be found outside the current legal framework. ®