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Does the ‘Basic Law’ recognize an individual right to asylum

Summary

Recently, historian Winkler claimed that the “founding parents” of the Basic Law did not intend to establish an individual right to asylum at all. He is not the first one doing this—reference to the Basic Law is often made to argue that the right to asylum is not applicable and that, in principle, no one should be granted political asylum in Germany. Lately this ‘argument’ was made also by Friedrich Merz, Andreas Dobrindt, or Christian Lindner. With our briefing, we aim to provide background information and arguments for the debate. Our communication recommendations below summarize the key points concisely.

What Are the Key Legal Questions?

1. Article 16a of the Basic Law Plays No Practical Role

Only about 0.7 percent[1] of people seeking protection are granted political asylum under Article 16a of the Basic Law. This is because the constitutional right to asylum was almost entirely hollowed out in 1993 as part of the “Asylum Compromise” and was moved from Article 16 to Article 16a.

Article 16a paragraph 2, now stipulates that only those who have not entered Germany from a “safe third country”—which includes all countries surrounding Germany—can apply for asylum. This is frequently cited in talk shows, most recently in the debate between Friedrich Merz and Olaf Scholz.

However, if one does not stop at paragraph 2 but reads through to paragraph 5, it quickly becomes clear that paragraphs 1 to 4 of Article 16a “do not preclude international treaties between Member States of the European Communities or with third states”. In other words, a European regulation of asylum is possible—and has already been fully implemented through the Common European Asylum System (CEAS).

This system governs “international protection,”[2] which includes both refugee protection and subsidiary protection.

2. Violating EU Law Means Violating the Basic Law

Nevertheless, the argument that returns at the border violate the Basic Law is correct. Anyone who breaches EU Law also violates the Basic Law, as Article 23 paragraph 1 sentence 2 grants primacy to EU Law. According to the case law of the German Federal Constitutional Court[3], the Basic Law contains a legal application mandate, meaning that, under national constitutional law, directly applicable EU Law takes precedence over German law. In other words, the Basic Law itself establishes that EU law is directly applicable and takes precedence over national law.

3. Article 16a of the Basic Law Does Contain an Individual Right to Asylum

Regardless of the above, historian Winkler[4] is also wrong—or at the very least, his argument is irrelevant. He recently reiterated—at length on Deutschlandfunk[5]—that the “founding parents” of the Basic Law did not intend to establish an individual right to asylum, but rather only sought to enshrine the core principle of (then-existing) refugee law: the prohibition of refoulement (non-refoulement).

On one hand, Winkler’s historical claims may already be questionable[6]—but that is not even the main issue. First, the principle of non-refoulement also requires an individual assessment of whether deportation would pose a risk to a person’s life or freedom for specific reasons[7]. In the debate on the legality of returns at the border, this means that Winkler’s argument does not refute the claim that such actions are unlawful but rather reinforces it—even though, as demonstrated above, Article 16a of the Basic Law is rarely applied.

Second, legal interpretation is not limited to historical analysis—the constitution is a living instrument that evolves over time. In addition to historical interpretation, textual, systematic, and teleological (purpose-based) interpretations are equally relevant. [8] Nearly all legal experts[9], including the Federal Constitutional Court (which first ruled on this in 1959 and has reaffirmed it ever since[10]), as well as the Federal Office for Migration and Refugees (BAMF), hold a fundamentally different view from Winkler: an individual right to asylum does indeed exist under Article 16a of the Basic Law. The wording of the article is unambiguous in this regard. [11]  Thus, Winkler’s argument is irrelevant in light of binding EU law and misleading due to its one-sided historical focus—it plays no role in the legal reality.

In Brief:      

1. In the context of asylum, discussions about the Basic Law are almost always a distraction. Anyone pointing to Article 16a paragraph 2 and claiming that Germany is surrounded by safe third countries must be reminded of paragraph 5: EU law takes precedence, making Article 16a statistically irrelevant.
2. Violating EU law means violating the Basic Law, as the latter grants EU law primacy.
3. Article 16a contains an individual right to asylum. Despite claims to the contrary, legal practice and the Federal Constitutional Court have consistently derived an individual right to asylum from Article 16a of the Basic Law.

What Needs to Be Done?

  • Be vigilant when it comes to issues relating to Article 16a of the Basic Law. Article 16a of the Basic Law does not matter.
  • Refute this misleading argument by reading the Basic Law together.
  • Question so-called experts who take a stance in heated debates—no matter how renowned and respected they may be, asylum law is rarely their area of expertise.

Further Resources

  • It is recommendable to read Article 16a of the Basic Law from beginning to end.
  • Constantin Hruschka, Die Mär vom Deutschen Asylsonderweg, Der Spiegel dated February 15, 2025, available here: https://bitl.to/40vs (€).
  • A decision by the Federal Constitutional Court on asylum law is also worth reading: judgment of May 14, 1996, 2 BvR 1938/93, 2 BvR 2315/93 (airport proceedings), available here: https://bitl.to/40w0.

[1] Federal Office for Migration and Refugees (BAMF), Key figures for asylum 2024, available here: https://bitl.to/3wV7.

[2] The term is defined, for example, in Article 2 letter i of the so-called Asylum Procedures Directive (Directive 2013/32/EU) and the protection statuses also result from Sections 3 and 4 of the German Asylum Act.

[3] Decision of October 22, 1986, 2 BvR 197/83 = BVerfGE 73, 339 (Solange II decision) - nor on Article 24 of the Basic Law, because Article 23 was only introduced later on the basis of this case law.

[4] Heinrich August Winkler, The German asylum legend, Der Spiegel from February 8, 2025, available here:https://bitl.to/40vi.    

[5]  Dirk-Oliver Heckmann, Individual right to asylum just a legend? Interview with historian H. A. Winkler, Deutschlandfunk from February 12, 2025, available here: https://bitl.to/40w8

[6]  Constantin Hruschka, Die Mär vom Deutschen Asylsonderweg, Der Spiegel from February 15, 2025, available here: https://bitl.to/40vs.

[7] Article 33 of the Geneva Refugee Convention, see Nula Frei/Kevin Fredy Hinterberger/Constantin Hruschka, Commentary on the Geneva Refugee Convention, Article 33, 2022, paragraphs 1-4, available here: https://bitl.to/40wK. The principle of non-refoulement is also based on human rights, as we explained in the briefing on refoulement: Why refoulement is unlawful, available here: https://bitl.to/42ii.

[8] Cf. only Möllers, Juristische Methodenlehre, 2024, p. 137 et seq.

[9] Cf. only Will, in Sachs, Kommentar zum Grundgesetz, 2024, Article 16a, paragraph 13

[10] Judgment of May 14, 1996, 2 BvR 1938/93, 2 BvR 2315/93 (airport proceedings), paragraph 157, in which the Federal Ministry of the Interior also assumes an individual fundamental right (paragraph 115).

[11]  See also Constantin Hruschka, Die Mär vom Deutschen Asylsonderweg, Der Spiegel from February 15, 2025, available here: https://bitl.to/40vs.

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    Does the ‘Basic Law’ recognize an individual right to asylum

    Recently, historian Winkler claimed that the “founding parents” of the Basic Law did not intend to establish an individual right to asylum at all. He is not the first one doing this—reference to the Basic Law is often made to argue that the right to asylum is not applicable and that, in principle, no one should be granted political asylum in Germany. Lately this ‘argument’ was made also by Friedrich Merz, Andreas Dobrindt, or Christian Lindner. With our briefing, we aim to provide background information and arguments for the debate. Our communication recommendations below summarize the key points concisely.

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