fact finder
Contrary to the announcement by Interior Minister Faeser, the quick “border procedures” are also possible for people from countries with high recognition rates. The EU asylum plans also raise further questions.
There was a long struggle about them, and at the beginning of June the agreement was finally reached: we are talking about the new EU asylum plans. As a “historic success” said Federal Minister of the Interior Nancy Faeser the compromise afterwards, which she had achieved together with the interior ministers of the other EU member states.
The plans focus on so-called “border procedures” directly at the EU’s external border. According to the EU interior ministers, these should ensure that people with little prospect of a right to stay within the EU are identified and, if the outcome is negative, deported directly.
The “border procedures” are not planned as full asylum procedures and should be completed in a maximum of twelve weeks. During this time, asylum seekers should not be allowed to enter EU territory, but should remain in closed “asylum centers” on EU soil – we are talking about the “principle of fictitious non-entry”.
As a basis for the “border procedures”, the protection quotas of the countries of origin of the asylum seekers are to be used – i.e. how many people from this country have received protection status in an EU member state in the past. If the quota is below 20 percent, the asylum seekers have to go through the “border procedure”. The “border procedures” should also be mandatory for those who are at risk and people who have deceived the authorities.
In interviews, Interior Minister Faeser repeatedly emphasized the protection rate. “This only applies to those who are below a protection rate of 20 percent,” said Faeser, for example ARD broadcast Maischberger in addition. “That means it doesn’t affect people who have fled war or terror — for example, no Syrians and Afghans.”
But that is at least significantly shortened. Because in the planned “Asylum Procedure Ordinance” Among other things, it states: “In other cases, e.g. if the applicant comes from a safe country of origin or a safe third country, the application of the ‘border procedure’ should be left to the discretion of the Member States.” This means that people from countries with high protection quotas such as Syria or Afghanistan can also be considered for the “border procedures”.
Much room for manoeuvre for member states
Although the wording is not legally binding, it serves as a basis for EU member states to interpret the law. “This leaves a lot of room for maneuver for the individual member states,” says migration researcher Judith Kohlenberger. “And that gives the lie to these grandiose announcements that a common European system would have been created.”
If a Syrian flees to Greece via Turkey, for example, he could be deported back to Turkey, since Greece regards the country as a safe third country. At the request of ARD fact finder The Federal Ministry of the Interior (BMI) does not contradict this interpretation, but adds: “This corresponds to the legal situation already in force under the Asylum Procedure Directive, so that the agreement that has now been reached does not mean anything new.”
Maximilian Pichl, a legal and political scientist at the University of Kassel, adds: “Border procedures” should also be mandatory for people who are accused, for example, of having given false information about their identity or withholding documents – regardless of their country of origin. Erik Marquardt from the Greens therefore also criticizes the BMI’s communication on the “border procedures”.
Some third countries do not allow returns
In practice, according to Pichl, these regulations could lead to arbitrariness on the part of the authorities, as pilot projects on the Greek islands such as Lesbos, Kos or Samos have shown. There have been accelerated asylum procedures there since March 2016, which will be expanded from 2021. “The Greek authorities treat Turkey as a safe third country for Syrians, Afghans, Pakistanis and Somalis. People arrive at these facilities, do not get a full asylum hearing, are rejected, but cannot be pushed back because Turkey does not accept them. And then the people will remain stuck on the islands.”
Because just because an EU state classifies a transit country as a safe third country does not mean that this country is also willing to take back refugees. The Federal Ministry of the Interior points out that according to the current legal situation, the principle of non-entry is abolished and the person may enter the country if a return is unsuccessful and the deadline for the return border procedure has expired.
Pichl disagrees: “We are experiencing exactly the opposite at the external borders. People are being detained on the Greek islands, for example, and Germany is also refusing to take in family members who are entitled to redistribution, for example.”
In general, Pichl does not consider the recognition rate to be a suitable basis for asylum decisions, since conflicts relevant to flight arise spontaneously. A quota based on past developments is therefore nonsensical.
“Huge rule of law Problem”
According to the experts, there are further criticisms of the planned “border procedures”. According to the Federal Ministry of the Interior, the “border procedures” are also checked according to the principles of the rule of law. For example, if the application is rejected, those seeking protection could file a lawsuit, which could also have the effect of suspending a possible deportation.
However, Kohlenberger does not consider this feasible. “Pilot projects in different camps have shown that this cannot be accomplished – especially not in three months,” she says. For example, there are far too few lawyers for the many refugees.
Kohlenberger sees the result of the “border procedures” as an erosion of the right to asylum. Because in practice, people would hardly have an opportunity to have themselves adequately legally represented in the event of a negative decision: “There are no fair, rule-of-law, regular procedures.” Practice also shows that both NGOs and lawyers are quickly criminalized or denied access to such procedures, for example due to bureaucratic hurdles, says Kohlenberger.
Pichl is also critical of the “border procedures”. “It’s a huge constitutional problem that we don’t even check the content of many people as to whether they have a right to asylum or not,” he says. The accelerated procedures are also extremely error-prone. Whether the planned “asylum centers” are legally tenable is also questionable. In 2020, for example, the European Court of Justice (ECJ) ruled that the Hungarian “transit zones” were inadmissible detention, which led to their closure.
According to Pichl, an asylum seeker cannot be expected to travel to a third country because, on the one hand, crossing the border into the third country itself is illegal and could constitute unauthorized entry. On the other hand, because then the asylum procedure of the person seeking protection will be discontinued. “That’s why we’re dealing with de facto detention, because the asylum seeker can’t actually move forward or back.”
The Federal Ministry of the Interior emphasizes that the planned “asylum centers” do not involve a deprivation of liberty, since people are denied entry into the EU, but not exit to third countries. In addition, the asylum and return border procedures are limited in time.
Stricter rules for “secondary migration”
Another point that, according to Pichl, has hardly played a role in the public debate is the tightening of the rules for so-called secondary migration. This describes the movement of refugees from one EU member state to another, for example from Greece to Germany. In the EU, it is actually intended that people apply for asylum in the country of their first entry – in practice, however, many asylum seekers continue to travel irregularly to other EU member states.
In a EU press release on the new “Asylum and Migration Management Regulation” states that “secondary movements should be prevented”. In order to achieve this, the EU member state of first entry should in future be responsible for the asylum application for two years, and under certain circumstances even longer. In addition, people in secondary migration should no longer receive material benefits.
“That means people are excluded from receiving social benefits without knowing how long they will stay in the country,” says Pichl. In his opinion, a contradiction to the case law of the Federal Constitutional Court: Because that judged in 2012that “political migration considerations” do not justify lowering the performance standard below the physical and socio-cultural subsistence level.
In addition, under the new reform, unaccompanied minors who have made secondary migration should also be returned to the country of first entry, unless it is “not in the best interest of the minor”. Here, too, Pichl sees a violation of current EU law. Because the The ECJ ruled in 2013that the country in which the unaccompanied minor is actually staying must be responsible for the asylum procedure for an unaccompanied minor.