Border Controls: The Complexities of Refugee Rejections

Wed 29th Jan, 2025
The legal implications of border rejections for asylum seekers are far from straightforward. In the event of a political shift, leaders may suggest prioritizing national law, seemingly disregarding the European and human rights obligations that Germany has committed to uphold. The primary obstacle to this so-called solution lies within the Dublin III Regulation, an EU framework that governs refugee protection processes. Critics, including political figures, have pointed to its inefficacy, yet it remains a binding legal framework. Article 3 of this regulation stipulates that every application for international protection made by a non-EU citizen or stateless person within a member state, including at borders or transit zones, must be assessed. The core argument from skeptics is that, due to the Dublin rules, Germany, as a landlocked EU country, is rarely responsible for processing asylum claims since refugees typically arrive via another EU nation. While this is accurate, it doesn't authorize border officials to outright deny asylum requests. Refugee protection necessitates a determination of which country is responsible for processing an application and whether the applicant can be transferred there. This procedural requirement, while bureaucratic, is crucial for the individuals at the border, as it prevents them from being caught in a cycle of rejections. There is potential for a more expedited process at the borders, particularly for those already registered in another EU country. This would involve a swift determination of jurisdiction for asylum applications rather than mere rejection. However, the success of such a system hinges on the willingness of other countries to cooperate. For instance, Italy has been known to refuse the readmission of asylum seekers. Recently, influential voices have emerged advocating for the feasibility of actual rejections at the EU's internal borders. One notable commentator, a former constitutional judge, argued that the temporary reinstatement of border controls in the Schengen Area, as mandated by the German Interior Minister in September, permits refusal of entry at the border under certain conditions, as outlined in the Schengen Border Code. This approach was recognized by the European Court of Justice (ECJ) in a ruling from September 2023, provided it does not undermine the guarantees established by the EU's return directive. However, the ECJ has consistently blocked proposals aimed at enforcing stringent immigration policies through Article 72 of the Treaty on the Functioning of the European Union. In past instances, when countries like Poland, Hungary, and the Czech Republic attempted to circumvent European resettlement decisions aimed at alleviating the situation in Greece and Italy during the 2015 refugee crisis, they faced rejection from Luxembourg. The same applies to Hungary's transit zones along its border with Serbia, a system that effectively prevented individuals from filing asylum applications. The ECJ has emphasized that the provisions of this article must be interpreted narrowly. It is insufficient for a member state to merely cite national interests in security and order; states must demonstrate that invoking these exceptions is essential for maintaining their responsibilities in these areas. This ruling, established in 2020, addressed measures taken at EU external borders following the refugee crisis of 2015 and 2016. Given the current decrease in asylum applications, it seems implausible for Germany to invoke this provision. Is there, then, no viable alternative? A migration law expert suggests that there may be some leeway for rejections in landlocked nations like Germany, although this remains largely theoretical. The fundamental principle of refugee law prohibits refoulement, or the forced return of individuals to countries where they may face persecution. However, this prohibition may not be violated if a rejection by Germany does not alter the applicant's fundamental safety, such as if they are sent back to Austria, which possesses a competent asylum system. The European Court of Human Rights has ruled that a detailed assessment may not be necessary when the neighboring country is clearly safe, implying that rejections could be implemented preemptively without awaiting judicial approval. This raises the question: would Austria accept such individuals? The Austrian Interior Minister has stated unequivocally that the country will not accept individuals returned from Germany. Consequently, a refusal at Germany's borders could trigger a chain reaction, potentially leading refugees back to their countries of origin. While this approach may be politically motivated to deter migration to Europe, it could also violate the principle against refoulement, endangering those genuinely at risk of persecution.

More Quick Read Articles »