At the start of May, CSU Interior Minister Alexander Dobrindt effectively abolished asylum as a path into Germany, empowering federal police to push back all illegal migrants at our national borders.
There ensued a period of messaging chaos, in which Chancellor Friedrich Merz assured our neighbours and the EU that nothing much was happening, while Dobrindt quietly insisted that yes, indeed, he was serious. He gave police orders to step up border checks and to send back all illegal migrants regardless of asylum claims – save for pregnant women, the underage and the sick.
These new borders policies have yet to exercise any significant influence on asylum statistics. It is relatively easy to cross into Germany despite the police spot checks, and we don’t yet know how many asylees are managing to evade them.
The deeper legal issues are much more significant right now. We want to know whether Dobrindt’s intervention is workable in theory, and whether our judges will swallow it. Unfortunately, he is already under siege from asylum advocates on the Left and the broader migration industry, who have set and sprung a very telling trap, with the aim of getting courts to overturn even these preliminary and quite meagre interventions.
To understand the issues here, we need a brief legal primer. According to German law (the so-called Asylgesetz), foreigners who enter Germany from ‘secure’ states do not get to claim asylum. They are to be sent straight back to wherever it is they came from. Because Germany is surrounded entirely by secure states, that should really be the end of this insane problem. Alas, this sensible law has been superseded since 1997 first by the Dublin Convention, and later by the Dublin II and now the Dublin III Regulation. The latter forbids the Federal Republic from using her own laws, holding that foreigners entering Germany from secure third states must be welcomed pending a procedure to establish which EU member state is actually responsible for them. Effectively, this means that almost all of these aspiring asylees remain in Germany indefinitely, because deporting people who do not belong here is beyond the meagre capacities of our enormous bureaucracy.
Dobrindt sought to get around Dublin by appealing to Article 72 of the Treaty on the Functioning of the European Union (TFEU), which allows member states to set aside EU regulations when this is necessary to maintain order and security.
Many have eyed this Article 72 strategy for a long time, but nothing is easy, particularly not in countries unduly enamoured of ‘the rule of law’, which is a lofty euphemism for ‘the rule of obscure crazy people in robes for whom nobody ever voted and who enjoy lifetime appointments’. These days the Government cannot do anything at all except what it was already doing (and sometimes not even that), or unless it is obviously stupid, expensive and inadvisable, because lurking around every corner is a clinically insane judge eager to explain why sensible things are not allowed. In recent years, our extremely learned and far-sighted judiciary has explained why combating climate change is anchored in the German constitution and why basically everybody is entitled to exorbitant social welfare. All that remains for it is to explain why everybody on earth is also entitled to live in Germany and draw benefits from the state, and it will have completed its suicidal triad.
On Monday June 2nd, the Berlin Administrative Court struck the first blow in this direction. Effectively, it called the whole basis for Dobrindt’s new border policy into question, issuing what amounts to a preliminary injunction in the case of three Somalis (two men and one woman) who had crossed from Poland into Germany on May 9th. Federal police intercepted the trio at the train station in Frankfurt an der Oder; they claimed asylum and the police, in line with Dobrindt’s order, sent them back to Poland anyway. Lawyers from the advocacy organisation Pro Asyl then helped them bring suit in Berlin, and the court intervened in their favour. They get to be professional asylees in Germany now.
Contrary to much reporting and to the jubilation of many insane Leftoids, this does not mean that Merz’s new border policy has been overturned. The decision applies only to these three Somalis and it sets no precedent. Unfortunately, because section 80 of our ‘Asylum law’ also makes the decision unchallengeable (this in the interests of accelerating and simplifying asylum proceedings), there can be no appeal. Secure in this knowledge, the court issued an amazingly wide-ranging judgment, casting into question Dobrindt’s entire reliance on Article 72 of the TFEU to suspend EU-mandated asylum procedures. The ruling holds that the Government cannot just appeal vaguely to an emergency, but rather must demonstrate that the migrant influx is acutely undermining the functionality of state systems and institutions – and all of this to the satisfaction of judges.
As NiUS reports, this entire case, culminating with the Berlin judgment, seems to have been engineered by the asylum advocacy NGO Pro Asyl just days after Dobrindt suspended the Dublin Regulation in May.
The Somalis in question had already attempted to enter Germany from Poland via the bridge between Słubice and Frankfurt an der Oder twice, on May 2nd and 3rd. This was in the last days of the Scholz government, under then-interior minister Nancy Faeser. They were turned back both times, because none of them knew they could claim asylum. After their second pushback, they came into contact with a Polish NGO, which put them up in a hotel and bought them new clothes and mobile phones. They waited until two days after Dobrindt suspended Dublin and then they tried to cross into Germany again, this time via the strictly patrolled train route, which all but guaranteed an interception by German police:
According to NiUS information, immediately after their arrest, a German lawyer contacted the federal police and presented a pre-prepared power of attorney for the three Somali citizens. The lawyer then submitted a written asylum application on their behalf to the Federal Office for Migration and Refugees. This means that either the three Somalis were accompanied and observed by activists during their entry, or they sent a prearranged signal to their contacts. The lawyer’s power of attorney must therefore have been prepared in advance, because the Somalis had no opportunity to seek legal assistance after their arrest. According to information from NIUS, they also do not speak German.
During their two earlier crossing attempts, all three Somalis had claimed to be adults, but in their third effort – the one transparently advised and orchestrated by Pro Asyl – the woman had suddenly become a 16 year-old, and now she even had a forged birth certificate to prove her reduced age. Minors naturally enjoy special protections when it comes to seeking asylum in Germany.
The case went to the Berlin Administrative Court because the officers who apprehended the Somalis were from the Berlin division of the federal police. It looks a lot like Pro Asyl knew this and selected the crossing point deliberately so that the case would land in that court. This is because they had an inside man there. Although it was not strictly speaking in his area, a judge named Florian von Alemann took responsibility for adjudicating the Somalis’ asylum claim. Von Alemann is well-connected to the Green Party and spent his younger years in Marxist activist circles. As NiUS writes, he “follows mainly asylum lawyers and Green accounts on X”, or at least he did until this story broke and he deleted his account.
As if all of that were not enough, there is this smug Syrian migrant named Tareq Alaows, who also functions as the spokesman of Pro Asyl. In advance of the Somalis’ arrest in May, Alaows recorded an Instagram video hinting that his organisation was on the verge of bringing an asylum case to challenge Dobrindt’s new policy. He even filmed the piece in front of police headquarters in Frankfurt an der Oder. This has all been planned for weeks if not months in coordination with Polish migration advocates, who helped Pro Asyl select the perfect complainants.
Despite all of this, Dobrindt and Merz have insisted that Dublin remains suspended and that pushbacks will continue. This is merely the first blow in a much larger legal battle, one that will probably take years.
This article originally appeared on Eugyppius’s Substack newsletter. You can subscribe here.
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