The View from Germany: CEAS Reform and the Spectre of “Merkel’s Refugee Policy”

The German migration policy debate still widely assumes that Angela Merkel’s insistence on the primacy of European regulations over national laws is a position which strengthens migrants’ rights. But judging from the current state of the CEAS reform, this may no longer be the case. 

Therese Herrmann, University of Duisburg-Essen

One of the striking aspects of the ongoing German debate on migration policy three years from its crisis moment in 2015 is that the terms of the debate and the facts to which they refer have come so far apart that the debate can seem to chase ghosts. This month, Angela Merkel stepped down, after 18 years, as CDU party leader over her party’s slumping approval rates that many associate with a public dissatisfaction of her government’s handling of migration issues. But the ongoing political prominence of the migration policy debate not only ignores that the number of incoming asylum seekers in Germany is down below 2014 levels, it also seems to overlook that this is due to the ever stricter policies  Angela Merkel‘s coalition government introduced both at home and as part of a European executive.

But not just its right-wing contestants, Merkel‘s coalition government itself seems to regularly fail to capitalize on the effectiveness of its own stricter migration policies and the EU‘s executive policies Germany played a key part in devising. Instead of pointing to her government’s recent policies as examples of migrant deterrence, Merkel’s government has continuously emphasized both the need to regulate migration within a European framework of responsibility sharing and humanitarian duties towards refugees. But this is no longer in line with strengthening migrants’ rights, as many still assume. In the following, I want to share a few thoughts on (I) how the harmonization of European migration policy does no longer mean that migrants’ rights are strengthened, and (II) why the German public discourse still tends to assume it does.

(I) Let me start by looking back at Germany’s most prominent political debate on migration this year. Last June, Merkel withstood a prominent challenge by her right-wing conservative interior minister, Horst Seehofer, who argued that Germany had the right to unilaterally re-introduce border controls, so that asylum seekers already registered in another EU country could be pushed back before setting foot on German territory. Much of Seehofer’s argument drew on legal norms introduced into German migration law in the early 1990s, when the German legislator added an externalization clause to the right to asylum guaranteed by German Basic Law. The externalization clause held that only those asylum seekers could invoke the constitutional right to asylum who had not before passed a European Union member state or another third country which ratified the Geneva Convention and the 1967 New York Protocol. Merkel, by contrast, along with a sizeable number of German migration lawyers, pointed to the supremacy of EU law in migration matters, including when it comes to determining the member state responsible for processing an asylum request. She insisted that the Dublin regulations forbid push backs at inner-European borders, because they stipulate that no member state can unilaterally reject an asylum seeker at its border without establishing in each individual case – within a procedural framework guaranteeing the possibility of legal appeal – which other member state is positively responsible for her asylum petition.

As German public discourse erupted in a heated legal debate on the procedural requirements of the Dublin regulations and the relationship between national and EU law, it is worthwhile to note that the German chancellor did not simply dismiss her interior minister’s plan on the grounds of legality. Merkel’s bargain with the right-wing faction of her own party was to prove that a European solution would also be more effective in achieving Seehofer’s overall aim, reducing the number of asylum seekers crossing German borders. Merkel asked Seehofer to hold off an escalation to their conflict until she had discussed the matter at a European Council meeting at the end of June.

The “European solution” Merkel came home and, for the moment, managed to appease the right wing of her party with, had nearly nothing to say on Seehofer’s original problem, the procedural requirements of handling secondary migration inside the EU. It fully concentrated on declaring member states’ intention to cooperate in following the path laid out by the EU-Turkey statement of March 2016 and externalize both the reception of asylum seekers and the processing of their asylum requests to third countries. If Merkel’s European strategy did answer to Seehofer’s push-back test, it has only done so by re-interpreting Seehofer’s question in fully functional terms. As long as the absolute number of incoming asylum seekers is reduced, so it seems to claim, procedural questions will not be pressing. One reason why this strategy is questionable is that it implicitly risks further exaggerating the idea that undocumented migrants still exert significant pressure at German borders. In reality, the number of undocumented migrants registered at the South German border has been steeply declining.

Ironically, Merkel’s functional European approach also means that the European Commission is encouraged to further lower the standards at its external borders and will, as negotiations stand, take them below the levels Seehofer would have been able to point to in insisting on the applicability of Germany’s national laws. While the idea of setting up so-called transit centres at the Southern German border met with a relatively large opposition in the German public, notably from Merkel’s SPD coalition partner, the European Council’s plans to set up “controlled centres” and “disembarkation platforms” at Europe’s external borders have not been as widely criticized.

The irony lies in the implicit shift of normative perspective that has taken place. When Seehofer met with widespread criticism for justifying his push-back strategy on the basis of German legal norms that have been superseded by European law, many implicitly assumed that the European regulations were also more respecting of asylum seekers’ rights. But this no longer holds true. As part of the reform of the Common European Asylum System (CEAS), the European Council is currently working towards lowering standards in the Asylum Procedures Directive with the aim of enabling the externalization of asylum procedures to third countries, including states which, like Libya, only partially control their own territory, or, like both Turkey and Libya, have not ratified the Geneva Convention with regard to the refugees in question. If the reforms go through, then the requirements for externalizing asylum procedures to third countries outside of the EU will be lower than anything Seehofer could have implemented by pointing to the possibilities of externalization German law provides for. The externalization clause in German Basic Law, at the time of its introduction in 1993 a conservative political project aimed at deterring refugees fleeing from the civil wars in Ex-Yugoslavia, explicitly holds that asylum seekers can only be referred to those third countries that have ratified both the Geneva Convention and the 1967 New York Protocol. The EU’s new Asylum Procedures Directive will likely undercut it.

(II.) If what we see is indeed the German government pursuing an increasingly restrictive migration policy, why is it, then, that Merkel is still understood, and politically contested as, the pro-migrant chancellor? We might want to say it’s for a lack of alternatives. The political discourse has shifted so far to the right in recent years that the Merkel government’s emphasis on both European cooperation and humanitarian duties still represents the more liberal of the political options available. But, looking back at the Merkel-Seehofer controversy and its European solution, it is no longer clear whether the Europeanization of migrant policy is necessarily good news for migrant rights. And yet, we seem to have difficulties in grasping this. Public debate in Germany often assumes that European solidarity in migration policy also implies, at some point, the exercise of solidarity towards migrants.

Why would we make this assumption? Does it tell us something about the intransparency of EU level politics that Germany’s political public has hardly ever scrutinized CEAS reform? Perhaps. Have we been too complacent about European integration and its inclusive tendencies, ignoring that European integration is not an automatism, but whatever the sum of member states’ interests have made of it? In some areas, yes. Have we not been able to see that European cooperation in migration matters has, as legal scholars James Hathaway and Thomas Gammeltoft-Hansen call it, for most been “cooperative deterrence”, without an agenda to strengthen migrants’ rights?

All of the above apply. And still, looking at the way European legal integration has played out in the area of migration in the past decade, human rights advocates have had reason to be optimistic: European legal integration in migration matters seemed, on the whole, to be rights-generating for migrants. Take the Dublin Regulation as an example. Much like the third country partnerships the European Commission is currently negotiating, the Dublin Regulation had been conceived as a mechanism to inhibit secondary migration, allocating member states’ responsibility to process asylum petitions almost exclusively along the idea of first transit – and not, say, migrants’ preferences or a member state’s relative capacity to receive asylum seekers as measured by its economic performance. And yet, the fact that the Dublin Regulation established legally binding rules of responsibility sharing in processing asylum petitions meant that, for the first time, an EU member state could not unilaterally reject an asylum petition made at its borders without establishing which other member state is positively responsible for processing it.

Although not originally intended that way, the Dublin Regulation turned out to generate rights for migrants as it went through a number of legal contestations and specifications at the European Courts. By stipulating the procedures and time limits within which a member state must take charge of an asylum petition, they positivize within Europe what Hannah Arendt famously called the “right to have rights”, because they ensure that an asylum seeker on European territory will be able to exert her right to file an asylum petition somewhere. On top of that, they have also shown a potential to generate rights for asylum seekers with regard to the material conditions of their reception. From 2011 onwards, both the European Court of Human Rights and the European Court of Justice have ruled that member states must ensure in each individual case that proceeding according to the Dublin Regulation will not violate a migrant’s fundamental right to be free from torture and degrading treatment. The ruling led to a halt in Dublin deportations to Greece and, under specific conditions, a number of other Southern European countries – a circumstance that came to be a factor in the European migration crisis of 2015 – and encouraged expectations that the legal integration of European migration policy would lead permanently to an upwards harmonization of standards.

While the proceduralization of migrants’ rights in Europe has long been contrasted by EU level executive measures to step up border security in order to prevent migrants from reaching the jurisdiction of European courts, we now seem to see a different type of externalization strategy. European legal standards regarding third country partnerships are being harmonized downwards and may well come into conflict with higher standards set by national laws. If we, as a political public, are set on opposing right-wing nationalism by pointing to the normative benefits of European integration, we should pay attention to this process.

Therese Herrmann is a research fellow in Political and Legal Philosophy at the University of Duisburg-Essen. She can be contacted at therese.herrmann@uni-due.de.