In the context of a turbulent and unsatisfying three years in office, the incredibly awful September in progress might rank as the three-party German government’s grimmest month yet. After elections in the east that issued record results for the far-right Alternative for Germany (AfD) party—another vote, in Brandenburg, looms on Sept. 22—the government is also reeling from the fallout of two Islamist terrorist attacks that left three dead and eight wounded. One of those attacks involved a Syrian asylum-seeker whose petition for protection in Germany had been denied; he had links to the fundamentalist Islamic State, which claimed responsibility for the attack.
Now the government has announced its response: starting on Sept. 16, Germany will unilaterally impose border closures, for six months, on all nine of its borders with other European countries. Incoming foreign nationals will be screened according to arbitrary criteria, and rejected applicants will be forced onto Germany’s next-door neighbors.
Although some details remain unclear, Germany’s plan amounts to an unprecedented step. Eight of the neighboring countries are EU members, and all of them are part of the Schengen regime that guarantees freedom of movement across borders within the bloc and recognizes the right to political asylum. Meanwhile, Germany’s mainstream opposition party is demanding an even more severe policy—one that would essentially prevent the country from accepting any new asylum applicants onto its territory at all.
“Until we achieve strong protection of the EU’s external borders with the new common European asylum system, we must strengthen controls at our national borders,” said Germany’s interior minister, Nancy Faeser. Her proposal involves expedited procedures at the German frontiers to determine whether each person who arrives may enter and apply for political asylum.
According to Faeser, the planned border screenings will limit illegal migration and “protect against the acute dangers posed by Islamist terrorism and serious crime.” There will be more deportations during this period, she said, but they will conform to EU law. But some experts disagree. European law expert Alberto Alemanno, a professor of European law at HEC Paris, told the Guardian that the German controls “represent a manifestly disproportionate breach of the principle of free movement within the Schengen area.”
And Sergio Carrera, a research fellow at the Centre for European Policy Studies (CEPS), a Brussels-based think tank, told Foreign Policy that the border closures will most probably have a knock-on effect across the continent: “There’s the risk of these measures triggering a race to the bottom. Where’s the end point? We’re talking about rights that go to the very heart of what the EU is all about.”
The new measures at the German borders ratchet up pressure on European Union norms that are already strained. According to EU law, free movement within the bloc is guaranteed within the Schengen area, which encompasses most EU member countries (except Cyprus and Ireland) as well as Switzerland and Norway. Foreign nationals claiming political persecution have the right to apply for political protection in the country through which they enter the EU. But the bloc’s member countries may suspend Schengen’s guarantees in the case of “internal security concerns” as long as those concerns are proportional and legitimate and the suspensions temporary. Brussels must be briefed in advance.
Germany has had periodic border checks in place along the Austrian border since 2015—a response to the refugee crisis of 2015-16. Last year, in response to heightened migration flows, Germany established checks on its borders shared with Poland, the Czech Republic, and Switzerland. In fact, across the European Union, member states have temporarily restricted internal border crossings 404 times since 2015, according to German daily Die Tageszeitung.
Germany’s move would take another step toward turning the exception policy of internal EU border checks into the rule, argued Christian Jacob of Die Tageszeitung. A European Parliament study issued last year claimed that this was already happening and that a “systematic lack of compliance with EU law” could undermine rule of law guarantees.
One result would almost certainly be a chain reaction across the bloc. Walter Turnowsky, a migration expert at Denmark’s Der Nordschleswiger, a German-language newspaper, fears exactly this. “Officially, the announced German border controls are also temporary, but ultimately the announcement means the end of free travel across the EU,” he said. “From now on, governments will claim: ‘Well, Germany controls its borders too,’” so they will do the same.
The new German measures aim to stop non-EU citizens who have already applied for asylum elsewhere in the bloc from entering Germany by bus, train, or car from Schengen zone neighbors. (Currently, only third-country nationals who have invalid papers or don’t intend to file for political asylum are refused entry.) Under the new measures, the migrants would be returned to the country where they entered the Schengen area and originally applied for asylum, which are usually one of the EU’s southern external border countries, such as Bulgaria, Greece, Italy, or Spain.
German border guards would detain the foreign nationals at the border—perhaps even in a kind of jail, apparently for no longer than five weeks—until their status can be verified. Foreign nationals who had not previously applied for asylum but who claim political persecution could then enter Germany and apply for protection, which German courts would rule on at a later date.
One of the looming questions is what criteria German police would invoke to screen those parties interested in entering the country. Since not every person traveling into Germany can be stopped, “it will be people who look different, regardless of citizenship,” said Carrera, of CEPS. “A certain racial appearance will make some people suspect. This is racial profiling, and it is illegal.”
Against the background of its fierce battle in eastern Germany with the AfD, Germany’s conservative opposition, the Christian Democratic Union (CDU), has opted to steal the other party’s thunder by endorsing measures very much like those of the far right—and until recently entirely taboo. Claiming that the government’s measures do not go nearly far enough, the CDU argues that no people—none at all—should be permitted to enter Germany in the absence of a visa or European passport.
This would de facto end the country’s commitment to offering asylum. In order to make this flagrant violation of international law at least appear to conform to EU regulations, under the CDU plan, Germany would declare a state of emergency as a result of internal security threats. This, the CDU believes, would legalize the across-the-board rejection of unwanted third-country nationals.
The proposal also goes a gigantic step beyond the limitation of movement in the EU, effectively eviscerating the right to political asylum.
“This kind of measure, and those the government are taking, will be investigated and could come before the EU court of justice,” Carrera said. “The EU will determine whether the security concerns really justify such a breach of EU law.” Other experts have said that Germany will not be able to prove that the recent attacks or the numbers of asylum-seekers—which have fallen this year—actually threaten the state’s internal security and thus justify (or indeed, are really aided by) these measures.
One of the many problems with the new German modus operandi: Neighboring states will have to accept people refused by Germany back onto their territory—and Austria, for one, which has general elections on Sept. 29 (and where polls indicate the situation for migrants is getting even worse, with a very strong showing of the far-right Freedom Party likely) said forget it, it won’t take them.
Poland is also up arms at the prospect of traffic jams at the borders that would obstruct commercial and private transportation. Polish Prime Minister Donald Tusk called the German move a “de facto suspension of the Schengen Agreement on a large scale.”
The Belgian daily Le Soir seems to hit the nail on the head: “With governments like this, there’s no need for the far right to be in power. The pressure of elections and the fear of extremes are causing those in power to run around like headless chickens, with migrants as the only means for decompression.”
EU expert Thu Nguyen, the deputy director of the Berlin-based Jacques Delors Centre, told Foreign Policy that unilateral decisions taken by Germany—the EU’s most populous state—are entirely unproductive. She noted that the EU’s Pact on Migration and Asylum, a set of new rules passed this year for managing migration and establishing a common asylum system at a bloc-wide level, addresses some of the concerns about immigration raised by Germany and other EU states, including by facilitating faster procedures for asylum applicants at the continent’s external borders.
After all, Germany—including the CDU’s parliamentary group in the EU, the European People’s Party (EPP)—was essential in drafting the pact, together with the 25 other EU member states. When the pact came in front of the European Parliament earlier this year, EPP parliamentarian Tomas Tobé said that “the absolute best way to help support a European migration policy is to be loyal to the whole migration pact.”
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