The new German interior minister announced a shift in Germany’s asylum policy last week, when he instructed the federal police to reject asylum seekers at the border unless they are considered vulnerable. 

We interviewed two legal experts with key questions about the policy. Matthias Lehnert is an asylum lawyer who works in Leipzig, eastern Germany. Engin Sanli is a lawyer specialized in asylum and migration law working in Stuttgart, southern Germany.  

InfoMigrants: Who do you expect to be most affected by this new policy? 

Matthias Lehnert: Everyone who wants to enter Germany with the purpose of asking for asylum can be affected by this. Vulnerable people are supposed to be exempt from the rejections at the border, but it is not clear yet how exactly people will be classified or recognized as vulnerable by police at the border. This includes not just people with passports from countries that Germany considers ‘safe’, but also people from other countries. And the government has already admitted that asylum seekers have been rejected at the border. 

Engin Sanli: I think that  asylum seekers from countries that the German parliament has deemed safe will be primarily affected. [Editor’s note: Germany has deemed the following countries ‘safe’: EU member states, Albania, Bosnia and Herzegovina, Georgia, Ghana, Kosovo, Macedonia, Montenegro, Moldova, Senegal, Serbia.] The new policy is largely based on an existing paragraph in German asylum law, paragraph 18. It says that asylum seekers can be turned back at the border if they are from a safe country, or if another country is responsible for their asylum claim. In practice, checking whether another European country is responsible for someone’s asylum claim – measures like running their fingerprints through an EU database – can usually not be done at the border, so people will likely still be taken to reception centers and not pushed back at the border.

Does this policy affect asylum seekers who are already in Germany? 

E.L.: No. Only people who are crossing the border to ask for asylum are affected by this, not people who are already in the country.  

M.L.: Once someone has entered Germany, once they are past the border points, they are still allowed to ask for asylum.  

Will everyone now be stopped at the border?  

E.S.: No. The new policy can theoretically be applied everywhere along the German border, but in practice, the police will most likely focus on the crossing points most frequented by migrants. The German government wants to increase the number of police officers doing border checks from 10,000 to 14,000 – that’s not enough to control every point along the border.  

The German interior minister has said that vulnerable asylum seekers are supposed to be exempt from this policy. He listed pregnant women and children. Are there any legally binding criteria for who is considered vulnerable?  

M.L.: There’s an EU asylum directive that lists different types of vulnerable groups, like single and pregnant women, minors, certain families with small children, and people who are medically or psychologically ill. In my opinion, federal police at the border are not able or qualified to really recognize whether someone is vulnerable; they have not been trained for that, they do not have any qualifications for that. Sometimes, it’s evident that someone is vulnerable – like when someone is very pregnant or it’s a single woman with three children. But often, for example with trauma victims, it’s very hard to recognize these criteria for people without training and proper assessments.  

There are a lot of questions about the legality of the policy. In your opinion, is it legal for Germany to reject asylum seekers at the border?  

E.S.: Under German law, this is allowed – asylum seekers can be refused entry if they are coming from another EU state or another safe country, under paragraph 18 of the asylum law and paragraph 16a of the constitution. But under European law, specifically the Dublin III regulation, every asylum seeker’s case has to be examined, including whether another country is responsible, before they are sent to another country.  

And then there’s the question of whether Germany is allowed to carry out border checks long-term under the Schengen zone’s free travel agreement; continuously extending border checks may also violate the Schengen agreement.  

M.L.: I think the policy is not lawful. The German government has evoked an article of EU law that allows for the Dublin regulation to be suspended in emergencies. But we are not in an emergency situation – if you look at asylum numbers, they have gone down, there is not a mass influx of migrants. It’s important to note here that EU law outranks German law – so European law is more important than German law here.  

There’s also a decision from the European Court of Human Rights that says that every asylum seeker has the right to a proper asylum procedure, which I believe the policy of sending people back at the border violates. 

Are there avenues for asylum seekers to challenge a rejection at the border? 

E.S.: If someone is refused entry at the German border, they can legally object and file a lawsuit against the decision. German courts will then usually hand the case to the European Court of Justice.   

Do you expect court challenges by pro-refugee organizations regarding the rejections of asylum seekers at the German border? 

E.S.: There’s two ways of challenging the policy for these organizations. The first one is for them to file a lawsuit against the policy, saying that it’s unconstitutional. I think that’s unlikely to happen, because the German constitution does allow for border rejections, like I mentioned.  

The second option would be for organizations to legally and financially support people who were rejected at the border to challenge the rejection in courts. I think this will probably happen, some organizations like Amnesty International and ProAsyl have said they intend to challenge the policy this way.  

M.L.: I expect this policy to be challenged in courts.

How long would you expect these court challenges to take? 

M.L.: I would expect the first decisions in two or three months, but it’s difficult to say for sure. But I think the first decision will be soon. 

Editorial note: We conducted the two interviews separately on Friday (May 9) and later merged them.