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Horst Seehofer’s Migration Plan for Germany: Another Nail in the Coffin of Europe’s Asylum System?

Commentary
June 2018

Horst Seehofer’s Migration Plan for Germany: Another Nail in the Coffin of Europe’s Asylum System?

BlueMars/Wikicommons

Germany’s Interior Minister Horst Seehofer was set to publish a new “migration master plan” for Germany on June 12, but then delayed its release due to disagreement with Chancellor Angela Merkel. In particular, the proposal reportedly involves turning asylum seekers back at German borders and refusing them entry, prompting widespread confusion over what elements of the migration plan are legally possible, as well as concern about the potential ramifications for the Common European Asylum System (CEAS).

Assessing the feasibility and potential implications of this proposal is no easy task, not least because detailed text has yet to be made available. What can be pieced together from media reports by the German mass-market publication Bild and echoed in statements issued by Seehofer’s Christian Social Union party (CSU), is vague and, on some points, contradictory.

However, if what Mr. Seehofer is proposing is immediate refusal of entry to asylum seekers, that is clearly not permissible under Germany’s current legal framework.

All EU Member States are obliged to provide access to an asylum procedure to any noncitizen present on their territory, regardless of their mode of arrival or legal status. This principle is not only central to the 1951 UN Refugee Convention, to which these countries subscribe, but also to EU legislation in the form of the Asylum Procedures Directive.

Once an individual has made it clear that he or she is seeking international protection, officials can assess which Member State is to process the application and, if approved, grant protection. This is done in accordance with the Dublin III Regulation, which applies to all EU countries as well as Iceland, Norway, and Switzerland.

The most well-known provision of Dublin III is the “first country of entry” rule, which stipulates that the first country in the bloc into which an asylum seeker crosses is responsible for examining the individual’s asylum claim. While Germany is rarely the first country of entry for asylum seekers into Europe, this does not offer a blanket ground for turning away asylum seekers at its national borders. A somewhat less well-known set of Dublin criteria require countries to also consider factors such as the protection of family unity (Articles 9–11) and of unaccompanied or separated children (Article 8). Safeguarding the best interests of the child and the right to family life are at the center here and, hence, the Dublin system places these principles at the top of the hierarchy of criteria for determining which country is responsible for examining an asylum claim.

These critical steps under Dublin of assessing the complete set of factors that determines national responsibility cannot be skipped over. The job of border guards and other migration staff is much more than just simply resolving the question: “Is this person, who wishes to or has claimed asylum, moving on from a first point of entry in another EU Member State?”

Any proposal to refuse entry or turn back asylum seekers at national borders ignores these realities.

Dublin IV: A New Hope for Seehofer?

But, of course, the Dublin procedure could be sped up. The Dublin III Regulation not only lays down limits on the amount of time countries have to shift the responsibility for an asylum case to another state, it also allows states to adopt bilateral agreements to simplify or speed up the process.

Under present procedures, if Germany sends a “take-back request” to Greece, for example, for an asylum seeker who has arrived at the German border, Athens has one month to answer. That period is reduced to two weeks if Germany can show through the EU asylum fingerprint database (EURODAC) that the person entered the European Union in Greece, perhaps even applying for asylum there.

Germany could speed up this procedure by striking a bilateral agreement with Greece on shorter timeframes. In addition, it could remove some of the logistical barriers to a swift transfer. This may include holding these asylum seekers in reception centers close to the border, as some other Member States do for those deemed on preliminary assessment to have a very low chance of receiving international protection.

One recent proposal to update this system by passing a Dublin IV Regulation would go one step further. Central to the proposal, put forward in May 2016, are reductions in the administrative requirements and duration of take-back requests. Under the terms of this proposed regulation, Germany would simply notify Greece that officials there are responsible for the asylum case and that the person will be transferred. But even then, a process would need to be in place for asylum seekers to indicate that they want to claim protection in Germany, and for German authorities to investigate whether another Member State is responsible for their claim.

As a result, even this proposal would almost certainly rule out an immediate or blanket policy of returning or rejecting asylum seekers at the border.

Presaging the End of the System

A critical flaw in the Dublin III Regulation is that it offers no guidance or process for what to do in cases of large-scale arrivals of asylum seekers. This glaring gap left Member States and the EU institutions without a coherent plan for swiftly allocating the thousands of asylum claims filed a month at the height of the 2015–16 crisis. Several Member States took the option to suspend Dublin III when flows increased. Germany did not return asylum seekers who, according to Dublin provisions, were the responsibility of other EU Member States, and Hungary refused to take back those who had entered the European Union at its borders.

In the face of these large inflows, and with no consensus on how to proceed, some individual Member States also mobilized another tool—the reintroduction of internal borders. While the temporary suspension of the Schengen agreement is legally possible, this state of affairs has been quietly maintained by a number of Member States until the present day.

Reintroducing border controls between Member States has been the primary strategy to ensure asylum seekers remain in Greece and in Italy. Such a step may be part of Seehofer’s plan, alongside a revised application of the Dublin III Regulation. If border security forces prevent asylum seekers from crossing the border into another Member State, it circumvents the need to activate the Dublin procedure.

At present, European policymakers are utilizing two broad approaches to cope with the shortcomings of Dublin III. Both come with limitations.

The first option, elements of which are outlined above, involves pursuing change within the Dublin system and the larger CEAS through bilateral agreements. Though the need for reform is clear, such proposals raise the question of whether countries such as Greece and Italy—already under pressure to receive, process, and integrate large numbers of asylum seekers—would accept a “faster and more efficient” Dublin system without any guarantees that those whose claims are accepted will be more fairly distributed across the European Union.

The latest international row over 600 migrants who were denied entry to Italian ports and later rerouted to Spain demonstrates the extreme reluctance of countries on the borders of the European Union to make any further concessions on Dublin without having their concerns about responsibility sharing recognized and addressed. This may limit any efforts on the part of Germany to reach such bilateral agreements.

The second option—reinstating border controls between Member States—would be a significant step towards deviating from or circumventing the Dublin system and the larger agreements that form the basis of the CEAS. Such controls at EU internal borders, which would be necessary to implement Mr. Seehofer’s reported proposal, not only gradually undermine the operability of the CEAS, they also cripple the public perception of these institutions as legitimate and well managed.

Extensive and prolonged use of internal borders controls will eventually pose risks for one of the pillars of the European Union—the Schengen agreement—and ultimately the idea of the free movement itself.