Court overturns German government’s policy on turning back asylum seekers

An administrative court in Germany has ruled that asylum seekers at the border cannot be turned back without the proper application of EU migration procedures.

This ruling effectively overturns the controversial policy announced earlier this month by the coalition government of conservatives and social democrats to turn back all asylum seekers at the border, except for vulnerable individuals.

The Berlin court made its decision after evaluating an urgent appeal from three Somali citizens—two men and a woman, one of whom was a minor—who arrived by train from Poland and were turned back at the Frankfurt (Oder) station after applying for asylum on May 9.

The judges found the rejection unlawful, not primarily because at least one applicant was vulnerable, but more broadly by questioning the overall legal justification presented by the German government for its policy.

The court emphasized that under the Dublin system, the EU’s asylum procedure, Berlin is obliged to conduct a comprehensive procedure to determine which member state is responsible for assessing an asylum claim when such a request is made on its territory.

The government had legally justified its decision to reject applications by citing the German Asylum Act, bilateral agreements with neighboring countries, and Article 72 of the Treaty on the Functioning of the European Union. This article grants member states the right to suspend provisions of European law if public order is threatened.

However, the court rejected this interpretation, citing insufficient evidence to justify applying the public security exception under Article 72.

Although the applicants do not possess an unconditional right of entry into Germany, the court clarified that the Dublin procedure must still be conducted at or near the border.

According to the EU’s Dublin rules, asylum seekers should be processed by the member state in which they first arrive. However, first-entry countries such as Italy or Greece often do not consistently apply the Dublin rules, allowing asylum seekers to travel to other countries where they have family or friends. In such situations, returning asylum seekers to their initial countries of entry is practically challenging.

Nevertheless, the court also stated that asylum seekers do not have an unrestricted right to enter German territory.

The ruling is not appealable and could pave the way for lawsuits against other rejections and the prevailing practice.

Karl Kopp, managing director of Pro Asyl, a German NGO advocating for migrants that provided support in the three cases, told Euractiv, “The decisions are groundbreaking. This is a clear message to Interior Minister Alexander Dobrindt: his approach is illegal, it violates European law, his argument regarding Article 72 is not valid.”

Dobrindt stated on Monday evening that, despite the ruling concerning the three Somalis, the government would continue its “policy of rejection” at the borders, asserting that this decision pertained only to specific cases.