Germany’s major opposition party, the Christian Democratic Union (CDU), has now taken the position that the right to asylum has been too broadly defined by the courts and needs to be “stripped back to its original postwar core if countries were to regain control over immigration”, according to an interview in the UK Times by one of the party’s leading members, Thorsten Frei, a lawyer.
This is potentially a significant change in the party’s stance on German policy on immigration – especially in light of the very different approach advocated and adopted by former CDU chancellor Angela Merkel, who famously opened Germany to an inward movement of up to one million Syrians in the wake of that country’s the terrible civil war.
Frei explained that the only way to rescue Europe’s Schengen visa-free travel zone is a temporary closure of German borders to asylum claimants, a move that would result in other member states following suit as a prelude to fundamental change.
In guaranteeing freedom of movement for economic purposes to citizens of its member states, the European Union took a huge step in terms of mutual trust and opening of borders. Abolition of interstate border controls for those permitted to enter the EU is undoubtedly an advantage in terms of mobility and a commonly shared sense of solidarity among EU member states and their citizens. But when it comes to the external borders of the union and the capacity of member states to regulate inward migration from non-EU states, the theory that asylum-seeking trumps all measures put in place to manage and control migration is problematic.
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Repatriation of failed asylum and international protection applicants is demanding in terms of administrative and physical resources. Deportation is easily evaded and very difficult to organise. An economic migrant who invokes asylum and international protection rights is given tactical and legal advantages over the capacity of a state to effectively and efficiently draw a real distinction as to entitlements.
All of this is compounded by the provisions of Articles 18 and 19 of the Charter of Fundamental Rights of the European Union, which binds all member states when dealing with matters of union law. It has, in Ireland’s case, the equivalent of constitutional status as a matter of Irish domestic law in that role. Those articles enshrine rights and duties in respect of asylum seeking and international protection.
The EU has over two decades assumed competence in relation to asylum rights, procedures, recognition and protection. Put bluntly, this means that in the area of asylum seeking and international protection Ireland is bound by the decisions and jurisprudence of the Court of Justice of the European Union. By a series of EU legislative enactments, Ireland has largely lost the right to unilaterally refuse asylum to anyone travelling here through other states that would be obliged to afford them asylum. The original popular understanding of the Dublin Regulation has been replaced with diluted and cumbersome procedures that fail to avoid asylum- and protection forum-shopping by those choosing their preferred destination.
There is growing realisation in Europe that international economic migration is becoming conflated with asylum-seeking in practical terms. This is not simply a matter of political reaction in states such as Italy and Hungary. It is increasingly understood in places such as Denmark (which wisely opted out of the EU jurisdiction in these areas), the Netherlands, Austria and now Germany.
Politicians sense that failure to re-establish effective member state competence in asylum seeking, international protection and migration law is not merely politically unsustainable but potentially a profound danger for the entire EU project, in terms of cohesion and popular support.
The CDU in Germany cannot be airily dismissed as the far right in the way that the German AFD is rightly regarded in Brussels and most EU capitals. Migration is a polarising issue politically if it is left unaddressed and uncontrolled in any state. Centre-ground politicians across the EU need to address the issue in a realistic way. It cannot be left to judges in Luxembourg or even to members of the EU parliament in Brussels and Strasbourg.
EU member states must adopt EU treaty-level measures to address the reality that mass migration invoking elaborate legal protections for asylum seekers is simply not something that the authors of the 1951 Geneva Convention on Asylum and its 1967 Protocol envisaged or provided for.
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The recently adopted EU asylum and migration pact simply will not address the issue. If the CDU in Germany now recognises that reality, there is hope for treaty-level reform of EU asylum and migration law. The Irish Government should support such reforms and encourage their development.
Failure to do so at an EU level is bound to damage the union severely; Ireland’s interests are engaged here and require political courage.