What Are the Key Legal Questions?
1. Do returns at the border violate EU Law?
The Dublin III Regulation[1] is the core instrument of the Common European Asylum System (CEAS). It determines responsibility for asylum procedures within the EU and applies as soon as an arriving person expresses any intention to seek asylum[2]. National responsibility is not automatic but must follow a formal procedure—the so-called responsibility determination procedure or Dublin procedure.[3] If a return occurs without this procedure, it is illegal.
The issue of returns was already a major political debate in Germany in 2018. At that time, Horst Seehofer made deals with countries like Greece—known as the “Seehofer Deal”—which allowed for returns to Greece within 48 hours. The Munich Administrative Court ruled this to be unlawful because no Dublin procedure was carried out. [4]
Under the new CEAS, the Dublin III Regulation will be replaced by the Asylum and Migration Management Regulation. [5] However, this new regulation will also continue to require a formal procedure, [6] meaning the legal situation will not change.
The illegality of returns is also evident under the EU Charter of Fundamental Rights (CFR), which applies whenever EU law is implemented[7], including in asylum procedures governed by CEAS. The CFR prohibits both collective and individual expulsions—nobody can be deported without an individual assessment of the risks they face. [8] Additionally, the right to asylum cannot be abolished, as it is guaranteed within the EU. [9]
Furthermore, the CFR aligns with the European Convention on Human Rights (ECHR), which is an instrument of the Council of Europe rather than the EU. [10] If an action violates the ECHR, it automatically violates the CFR as well. Returns at the border also violate human rights—more on this below.
Finally, the EU is also bound by its founding treaties to comply with the Geneva Refugee Convention,[11] which prohibits the return of protection seekers without due process (the principle of non-refoulement). [12]
2. Do returns at the Border Violate the European Convention on Human Rights?
Returns at the Border also violate the ECHR. The obligations deriving from the ECHR not only prohibit states from directly harming individuals (e.g., physically assaulting them) but also impose positive duties of protection. States must assess whether their actions could lead to human rights violations against an individual—for example, by exposing them to the risk of the death penalty or inhumane treatment in another country.
The European Court of Human Rights (ECtHR) first established this principle in the case of a German citizen, Jens Soering, who was to be deported from the UK to the USA, where he faced the death penalty. [13] His story has since been turned into a Netflix documentary. [14]
Because human rights—especially the absolute prohibition of inhumane and degrading treatment under Article 3 ECHR—apply universally, they also protect asylum seekers. According to the ECtHR, violating Article 3 is a breach of one of “the most fundamental values of democratic societies,” [15] and no exceptions can be made—even in wartime. [16]
In October 2024, the ECtHR ruled that the return of a Syrian asylum seeker by German federal police to Greece without due process was unlawful. The court found that Germany had failed to assess the risks the individual faced in Greece. [17]
To reiterate: since returns violate the ECHR, they also violate the EU Charter of Fundamental Rights, which prohibits inhumane and degrading treatment under Article 4.
3. Do Returns at the Border Violate the German Constitution?
The debate often raises the question of whether returns violate the German Grundgesetz (Basic Law). The short answer: in practice, the Basic Law has little relevance for asylum seekers, as it is superseded by EU law. Moreover, violating EU law automatically means violating the Grundgesetz, as EU law takes precedence under the principle of supremacy of EU law.
A detailed discussion of this question will be covered in another briefing—stay tuned!
4. Why Is an Asylum Application Key? When Is an Asylum Application Considered Filed?
The political debate, including during the “Chancellor Debate,” often distinguishes between returns for those who have not applied for asylum and those who have. This distinction is significant because returns of people who have not formally applied for asylum already happen on a large scale. [18]
EU asylum regulations—including the Dublin III Regulation—apply only once an “application for international protection” has been made. In practice, authorities often claim that no application was made. However, under EU law, an asylum application is defined as “a request for protection from a Member State, in which it is assumed that the person seeks refugee status or subsidiary protection.” [19] This is an intentionally broad definition.
For people from Syria, Afghanistan, or Iraq, assuming they don’t intend to seek asylum is absurd—yet the majority of the returned come from these countries.[20] Moreover, formal asylum applications are not necessary to trigger human rights obligations, which require no specific wording.
5. Are Returns at the Border Unlawful Because Border Controls Are Unlawful?
Returns at the Border are, in the German context, essentially a denial of entry, which must occur before a person enters a country. Once a person has entered, they cannot be denied entry. The legality of border controls themselves is questionable, particularly within the Schengen Area.[21]
It is clear that without border controls, returns cannot occur—because border controls enable returns. However, border controls themselves are frequently illegal—especially when prolonged. Even during an alleged emergency, permanent border controls are never lawful. More on this in an upcoming briefing.
In Brief:
- Returns at the Border of asylum seekers at German borders violate both EU law and human rights. The Munich Administrative Court and the ECtHR have both ruled against Germany’s illegal returns.
- Returns without an individualized procedure violate human rights. This is because a procedure and an examination are necessary to determine whether a violation has occurred. This is also the case in every other state procedure. Imagine if the State were to demolish a house and only afterwards would it be examined whether the demolition was lawful. That would be absurd. The fair examination procedure is therefore protected by fundamental and human rights.
- Laws cannot simply be changed. Who says that law must follow politics alone, abandons democratic achievements and would have to withdraw from the EU and the Council of Europe. Furthermore, Germany cannot unilaterally change the requirements of EU law or simply disregard them - they are binding for all member states.
- Whoever claims that only people do not want apply for asylum would be returned at the border is concealing the fact that asylum applications are often simply ignored.
What Needs to Be Done?
- Discussions about the illegality of returns at the border are sham discussions. Anyone who has dealt with the matter knows that these are illegal. If you would like to have a detailed discussion, please refer to our briefing.
- Debunk pretextual ‘arguments’. Ask your counterpart how returns at the border are actually imagined: What is involved? Which people are affected? What is the “procedure”? Explain to the person that this always involves a violation of human rights and that people are denied their right to an individualized assessment.
- Draw attention to the rule of law dimension. Ask the other person what it would mean for them if rejections were unlawful. Would that be okay? Then the person has a problem with the rule of law.
Further resources
- Constantin Hruschka, Dublin ist kein 5-Minuten-Verfahren, Verfassungsblog vom 23. Juni 2018, available here: https://bitl.to/3zQZ.
- Anne Pertsch and Robert Nestler, Grenzenloses Europa?, Grundrechtereport 2024.
- Catharina Ziebritzki and Robert Nestler, Unionsrecht statt „Deals“ in der Europäischen Asylpolitik, Neue Zeitschrift für Verwaltungsrecht, 2020, Seite 129 fortfolgende, available here: https://bitl.to/3zRO (€).
Further Questions?
Our briefings are a participative format - you ask, we answer! So please get in touch at any time with questions and suggestions at briefings@equal-rights.org.
[1] Regulation (EU) No. 604/2013, here available: https://bitl.to/3zQR.
[2] See Article 3(1) of the Dublin III Regulation.
[3] More on the obligation to carry out a Dublin procedure: Hruschka, Verfassungsblog vom 23.06.2018 here available: https://bitl.to/3zQZ.
[4] Munich Administrative Court, decision of 04.05.2021, file number M 22 E 21.30294.
[5] Regulation (EU) 2024/1351, available here:https://bitl.to/3zQd.
[6] See Article 16(1) of the Asylum and Migration Management Regulation.
[7] Article 51 CFR.
[8] Article 19 CFR.
[9] Article 18 CFR.
[10] Article 52(3) CFR.
[11] Article 78(1) of the Treaty on the Functioning of the European Union.
[12] Article 33(1) of the Geneva Refugee Convention.
[13] European Court of Human Rights (ECtHR), judgment of July 7, 1989, file no. 14038/88 - Soering v. United Kingdom.
[14] Till Murder Do Us Part: Soering vs. Haysom.
[15] For example, in the Guide to Article 3 ECHR, which is compiled by the ECtHR, on page 3, available here: https://bitl.to/3zng.
[16] Article 3 ECHR is “emergency-proof”, this follows from Article 15 ECHR.
[17] ECtHR, Judgment of October 15, 2024, No. 13337/19 – H.T. gegen Deutschland und Griechenland.
[18] Pertsch/Nestler, Grenzenloses Europa, in Grundrechtereport 2024.
[19] Article 2(b) Directive 2013/32/EU (Asylum Procedures Directive).
[20] Pertsch/Nestler, Grenzenloses Europa, in Grundrechtereport 2024.
[21] Nestler/Vogt, § 13 Residence Act, in Huber/Mantel, Commentary on the Asylum Act and Residence Act, 2024.