Germany
and refugees
Is
the welcome culture legal?
Under pressure to
reverse her refugee policy, Angela Merkel faces a court case
Feb 13th 2016 |
BERLIN | From the print edition
Timekeeper
Tying her hands
OF ALL the people
stoking the pressure on Germany’s chancellor these days, the most
relentless is Horst Seehofer, Bavaria’s premier and leader of its
governing party, the Christian Social Union (CSU). Angela Merkel’s
refugee policy, he said this week, amounts to a “reign of
injustice”—or “illegality”, depending on the translation.
This month he will decide whether Bavaria will sue the federal
government in the constitutional court in Karlsruhe.
The argument that
Mrs Merkel’s “welcome culture” is not only naive but downright
illegal is popular among German conservatives. Proponents include
eminent jurists such as Hans-Jürgen Papier, a former president of
the constitutional court (and a member of the CSU). Claiming asylum
in Germany is technically impossible for anybody arriving on a land
route, he points out. Under the German constitution, since an
amendment in 1993, protection is not available to people entering
from “safe” states, a description that fits all nine of Germany’s
neighbours.
European Union law
brings him to the same conclusion. The EU’s so-called Dublin
agreement stipulates that refugees must claim asylum in the first
member state they reach. Geographically, this cannot be Germany,
unless refugees take an aeroplane or ship. Mr Papier concedes that
Dublin has broken down. But while it allows Germany to process asylum
claims voluntarily, it does not oblige it to. Given the magnitude of
the crisis—with 1.1m refugees arriving in Germany last year—such
a decision would have to be made by parliament rather than Mrs
Merkel. Since the Bundestag has never yet voted on her overall
policy, Mr Papier calls it “quasi-legal”.
Another former judge
on the constitutional court, Udo di Fabio, goes a step further.
Approached by Bavaria for a legal opinion on the suit, he concluded
that it could win. His argument—which will sound more familiar to
Americans than to citizens of more centralised states—is based on
German federalism.
How do Angela
Merkel's 10 years in office compare to other European heads of state?
In the Federal
Republic of Germany, the nation, its 16 states and its municipalities
all have their own forms of “statehood”, as well as obligations
to one another. In the refugee crisis, these divisions and
responsibilities have become muddled. Federal agencies control the
external borders and decide on asylum claims. But the states provide
accommodation and social services, as well as deporting rejected
applicants. If the federal government neglects its role by allowing
chaos on the borders and an uncontrolled inflow of people, this could
undermine the statehood of Bavaria, say, by compromising its ability
to provide public safety and other functions.
Germany’s
constitutional court, unlike America’s, does not make a habit of
resolving political disputes, and may not take such a hot-potato case
even if Bavaria files it. But spelling out the legal logic exerts
great political force. Mrs Merkel governs in a partnership between
her Christian Democrats, the centre-left Social Democrats and the
CSU. Mr Seehofer’s legal threat amounts to “a declaration of
breaking the coalition”, says a top Social Democrat. At a pinch,
Mrs Merkel could govern without the CSU. But given her waning
popularity (see chart), she may not wish to. In fact, she has already
been tightening asylum law piecemeal. Should she decide to close
Germany’s borders to refugees for political reasons, her critics’
legal argument might serve as a handy excuse.
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