Since the Solingen knife attack by a Syrian member of the Islamic State group last week, calls for a stop to admissions of people from Syria and Afghanistan have come, not only from the anti-immigration AfD party as anticipated, but also from the Christian Democrats' (CDU) Friedrich Merz.

The German opposition leader has also been pushing for other urgent changes on migration, such as deporting people convicted of serious crimes to Syria and Afghanistan – so far blocked by legal and practical obstacles including an absence of diplomatic relations with the Syrian or Afghan governments, and a prohibition against sending anyone to a country where they may be subject to torture or the death penalty.

Also read: Solingen attack puts spotlight on Germany’s deportation laws

After meeting with Friedrich Merz on Tuesday (August 27), the Chancellor, Olaf Scholz, said his government was working hard to make the goal of deporting serious offenders to Syria and Afghanistan a reality.

He also said it was important to reduce irregular migration, in part by keeping "controls" in place at Germany's borders. "Long-term border controls (...) have (...) proven to be efficient. And I will maintain [them] for as long as possible," Scholz told the public television station ZDF.

At the same time the chancellor stressed that this did not mean closing the border to asylum seekers or stepping away from the legal obligation to allow individuals from Syria and Afghanistan the right to seek asylum.

The question of whether it would be realistic or lawful for Germany to close its borders to Syrian and Afghan nationals has been hotly debated since the Solingen attack, with experts expressing differing opinions.

Rupert Scholz, a constitutional lawyer and former Federal Defence Minister, said it is possible to restrict the right to seek asylum and to freeze admissions without breaching Article 16a of Germany’s Basic Law, which states that persons persecuted on political grounds have the right of asylum. 

The lawyer reportedly told the newspaper Bild: "Our right to asylum is subject to internal security. If the people or the state are under threat, Germany can suspend admissions generally, or for certain countries of origin."

Also read: Experts warn of inhumane and populist demands following deadly knife attack in Germany

Most say freeze unconstitutional

The government’s view, however, has consistently been that a general freeze on admissions for asylum seekers from Syria and Afghanistan would be unconstitutional.

Steffen Hebestreit, a government spokesperson, said the individual right to asylum is "one of the key achievements of the German constitution," and any proposed changes to the law must be consistent with it, as well as European and international law.

Federal Justice Minister Marco Buschmann also ruled out a freeze on the grounds that it would violate the constitutional right to asylum, while Thomas Oberhäuser, an expert on asylum and migration law and chair of the migration law working group at the German Bar Association, described the proposal as "simply nonsense".

"One cannot exclude people from protection claims from the outset just because they might commit some kind of crime out of delusion at some point," Oberhäuser told the public broadcaster SWR.

People who come from Syria to Germany are "by no means predominantly Islamists or crazy people, but people who are often seeking protection from Islamists here," he added.

Dublin Regulation would need fundamental change

According to Winfried Kluth, professor of public law at the University of Halle-Wittenberg and a member of the Expert Council on Integration and Migration, the focus should not be on whether such a proposal would mean a violation of the German constitution or a denial of the right to seek protection. Instead, the question for debate – and what Merz was proposing – is how to stop asylum seekers from entering Germany so that it is not responsible for their asylum procedure.

"This is an old discussion which we already had in 2016, when many people wanted to close the borders and argued that under the Dublin III Regulation other countries like Greece or Italy should be responsible," Kluth told InfoMigrants.

The European Court of Justice has since ruled that simply closing a country’s border to asylum seekers is unlawful, Kluth explains. "It said they have the right to enter, and then we need to use the Dublin procedure to send them back to the country that is responsible."

The law professor says a fundamental change to the Dublin Regulation would be needed to allow a freeze on admissions. There have been major reforms to the Common European Asylum System which were finally given the green light this year, but they won’t come into force until 2026. It will also take time for tough reforms in Germany, particularly those aimed at deporting foreign nationals, to take effect, says Kluth.

National emergency proposal

Merz declared after meeting with the chancellor on Tuesday that if European law does not currently allow people to be turned away at internal borders, that needs to change quickly. There is little chance of seeing reform soon, however, as it would need the support of EU member states like Greece, Italy and Spain, which stand to lose if the gates to northern Europe are shut.

In that event, the opposition leader proposed invoking a provision in the Treaty on the Functioning of the EU which allows for special measures to be taken when there is a "national emergency".

But this, too, seems unlikely. Kluth is clear that a single crime, like that which occurred in Solingen last Friday, is far from constituting a national emergency. "There is control in the country," he said. "The number of refugees coming has not increased very much, and the structures are more or less working."