Refugee and asylum policy: Where is Germany heading?

A day after the state elections in Saxony and Thuringia, Christian Lindner, head of the Free Democratic Party (FDP), made a public appearance brimming with frustration. "People are fed up with a state that may have lost control of immigration and asylum in Germany."

He added that no one is interested anymore in assigning blame and explaining what is not legally possible. People "want to see a solution," said Lindner, who is finance minister in the national government.

For the three parties that form the government in Berlin — the Social Democrats, Greens and the liberal Free Democrats — the election results in the east were a disaster.

The far-right Alternative for Germany (AfD) won more than twice as many votes as the parties in the "traffic light" coalition — which is the name given to the three-party coalition at the national level — combined.

More than three million refugees live in Germany

Post-election polls indicate that asylum and migration were the key issues in people's voting decisions. As of the end of 2023, around 3.2 million people living in Germany arrived in the country as refugees, including more than one million Ukrainians. The second-largest group is Syrians.

Around 270,000 new asylum applications are expected in 2024. Most asylum applications are rejected. At the end of 2023, there were only around 44,000 recognized asylum seekers living in Germany. Far more people were granted temporary protection. Just under 745,000 people have been granted status under the Geneva Refugee Convention. A further 326,000 are under subsidiary protection, for example, because of civil war in their home country.

Half a million refugee applications are currently pending. According to the Interior Ministry, almost 227,000 people in Germany have been ordered to leave the country. However, the deportation of 80% of them has been temporarily stayed because of obstacles to their deportation.

Federal government wants to tighten migration laws

The German government announced stricter migration and security policies last week in the wake of a knife attack in the western German city of Solingen. The incident took place a week before state elections in the east.

The suspect is a Syrian man who had been ordered to leave the country. One of the policy changes includes no longer providing financial support to asylum seekers in Germany if another EU country is legally responsible for them under the European Dublin Regulation. There are also plans to increase the number of individuals returned to the EU country responsible for them.

Deportations are also set to be made easier, in part by decreasing the threshold for crimes that could result in deportation or disqualification from asylum or refugee status. In addition, migration treaties with third countries outside the EU on the admission of refugees, including Moldova, Kenya, and the Philippines, are to be concluded.

However, for the Christian Democratic Union (CDU) and the Christian Social Union (CSU), which together form the largest opposition group in the Bundestag, this is not enough. Even before the elections, the CDU/CSU was calling for the abolition of the right of asylum in Germany and for refugees to be turned away at the border.

After the recent state elections, CDU leader Friedrich Merz stressed that the party would "not budge one millimeter" on this demand. "For every five deportations, there are 100 new arrivals," Merz said. "The traffic light coalition must make fundamental corrections to its policies, especially on immigration."

The Social Democratic Party (SPD) and the Greens have rejected this. Such proposals are "not compatible with our Constitution," said SPD chairwoman Saskia Esken. "We will not break our international and European legal obligations," she said.

New sources of conflict for the government

The FDP sees things differently. Party leader Lindner said the day after the state elections that he is willing to discuss changes to European laws or even the Constitution, openly siding with the opposition CDU/CSU.

If "the parties of the democratic center," namely the CDU, CSU, SPD, Greens, and FDP, are not able to deliver, "then the citizens will, in the true sense of the word, look for an alternative," he said, alluding to the AfD, the Alternative for Germany party.

It was a warning to the bipartisan working group of federal and state governments convened by Chancellor Olaf Scholz (SPD) after the attack in Solingen. Under the leadership of SPD Interior Minister Nancy Faeser and FDP Justice Minister Marco Buschmann, the working group held its first meeting on Tuesday, September 3.

The federal government's plans to introduce stricter migration and security policies are already under discussion. However, the Interior Ministry said that the group was also open to proposals from the CDU/CSU and the various states so that they can be discussed together.

A key debate is whether it is even legally possible to turn refugees away at the border. CDU leader and lawyer Merz is convinced that it is possible; he refers to Article 72 of the European Union Treaty. According to the CDU leader, this is allowed if "the security and order of our country can no longer be guaranteed."

"At the moment," said Merz, "we are quite simply witnessing dysfunction in key government functions. We see it in schools, we see it in hospitals, we see it in doctors' offices, we see it in the accommodations on the housing market. We can't allow it to continue on this scale."

Suspend EU law?

Constitutional law expert Daniel Thym from Constance believes that Merz's proposal is "legally tenable." He told the Frankfurter Allgemeine Zeitung that such an approach violates neither the German Constitution nor the Geneva Refugee Convention but could end up before the European Court of Justice. However, he does believe it is quite possible that Germany could win its case there.

Austrian migration researcher Gerald Knaus, on the other hand, warned of the possible consequences of Germany turning migrants away at its borders. 

"Suspending EU law would be a nuclear bomb, it would lead to many others in the EU following suit," Knaus told public broadcaster ZDF. He added, however, that it was still important to do something about unauthorized migration. "The way to do that is not to try to push people back and forth between EU countries, but to reduce unauthorized migration into the EU." For example, by relocating asylum procedures to safe third countries outside the European Union.

This article was originally written in German.

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