Daniel Thym is a professor for German and European migration law at the University of Konstanz and a member of the Expert Council for Integration and Migration SVR.
Reinhard Marx has been representing refugees as a lawyer in Frankfurt am Main for many years. He is a specialist in residence and nationality law and the author of a commentary on asylum law.
For more than forty years, since 1949, the sentence was succinct in the Basic Law: “People persecuted politically enjoy the right to asylum.” For the mothers and fathers of the constitution, Article 16 was a consequence of the expulsion of Germans by the Nazi regime, opposition Jews, not acceptable artists. Many had sought protection abroad in vain.
But since the 1980s, attacks on Article 16 had increased, particularly from within the Union. The SPD blocked itself for a long time. They were needed for the two-thirds majority required for amendments to the Basic Law.
But in 1992 she buckled. The number of asylum applications had risen to 440,000, most from people fleeing the crumbling civil war country of Yugoslavia to newly united Germany.
The addition that meant the end of the asylum guarantee
In Rostock-Lichtenhagen, Solingen and Mölln, apartments for immigrants and asylum seekers were attacked, and people died not only there. In the spring of 1992, the right-wing extremist DVU and the “Republican” party achieved good results in state elections.
In response, the government and the main opposition party gave way. At midnight before St. Nicholas Day 1992, the then Union faction leader Wolfgang Schäuble announced that the right to asylum was to be “supplemented” to the Basic Law. The sentence “The politically persecuted enjoy the right to asylum” remains. But this should be followed by the restriction:
The asylum compromise laid the basis for a Europeanization of asylum law in the medium term.
Daniel ThymProfessor of Migration Law
“Anyone who enters the country from a member state of the European Community or another third country in which the application of the Geneva Refugee Convention and the European Convention on Human Rights is guaranteed should not enjoy the right of asylum.”
Mockers commented at the time: “People persecuted politically enjoy the right to asylum. Except in Germany.” Germany constructed a number of safe third countries around itself, through which it saw itself released from its own responsibility for refugees.
Yugoslavia then, Ukraine today – the debate remains irrational
“I can still remember well how shocked everyone who was involved with refugee protection was, the initiatives, the NGOs, even for years,” Reinhard Marx remembers. The Frankfurt lawyer has been representing clients in asylum cases for many years and has also served as an expert in Bundestag hearings several times.
There was talk of an emergency because a little more than 400,000 people were looking for protection here. “Now we have around a million war refugees here, and at the same time they are trying to keep around 2,000 Afghan refugees out. From this you can see the irrational patterns of the debate at the time and also of the following asylum debates.”
After that, he himself no longer referred to the changed asylum article in his pleadings in asylum procedures. “I no longer referred to him, otherwise the court would have had to clarify the travel route of my clients, which would only have held up the proceedings. Article 16 was dead after 1992, it was stolen from us.”
What did the asylum compromise achieve in terms of its inventors?
“Nothing at all,” says Marx. “It is covered by Union law, which does not know anything like the construction of safe third countries, i.e. eliminates the individual assessment. This right is binding on the Member States. Deviating national regulations may not be applied.”
In 1996, the Federal Constitutional Court gave its blessing to the St. Nicholas Day asylum compromise, “but this judgment was also wasted shortly thereafter. Three years later we had EU law on these issues, which introduced directly applicable law for the member states with the Lisbon Treaty: We could go to the European Court of Justice with these issues.”
This is where Daniel Thym sees the real success of the compromise: “If you now say that the asylum article in the Basic Law is no longer important today, then that is correct, but in the sense that it has been replaced by European laws.” But that is exactly what makes sense of the constitutional amendment. “Of course, the asylum compromise was initially a domestically motivated undertaking.
But in the medium term he also laid the basis for a Europeanization of asylum law. At that time it had long been clear that nation states alone could not regulate migration movements properly.” Because the vast majority of migrants came to Germany, some to Austria, Denmark and the Netherlands, “a European solution was in Germany’s interest”.
Europe has rules, but they don’t work
Even the isolation from the suffering of the world has not worked, as the large flight from Syria and Libya seven years ago showed at the latest. At that time, according to Thym, the European asylum system collapsed “that Germany had built up and from which it benefited for a long time”.
The idea of sharing the burden didn’t work. “Anyone who wants to go to Germany comes there, and those who want to go to France – there are quite a few of them – come there,” says Thym. “We do have rules of jurisdiction in Europe, but they don’t apply, and returns are rarely possible.”
The asylum compromise is a disaster, the robbery of a fundamental right.
Reinhard Marxasylum law expert and lawyer
Therefore, the EU makes it very difficult for them to come in the first place, “with restrictive visas, with requirements for airlines”. It was “like in the 1990s. And with the fugitives, self-selection has remained the same. The strongest come more often than the neediest.”
“International regulations are clearer than the Basic Law”
Like Marx, Thym also sees legal protection as being strengthened by the Europeanization of asylum law. Marx points out that in 2021 the Federal Constitutional Court even ruled that Union law takes precedence over German law.
“This means that we can now turn to Karlsruhe if we believe that fundamental rights enshrined in the European Union’s charter of fundamental rights have been violated” – for asylum procedures, these are Articles 18 and 19 of the charter. “And a number of international regulations are much clearer than the asylum guarantee in the Basic Law was, for example the absolute ban on torture and the ban on deportation if it threatens.
Although these absolute guarantees also apply in Germany, they are not expressly mentioned in the constitution, but are tacitly part of the guarantee of human dignity.
Do we still need a right of asylum, wouldn’t immigration law be better?
“No, you have to separate that,” says Reinhard Marx. “Anyone who is being persecuted, possibly threatened with death, needs effective protection and a legally secure situation. He also has to be cared for by the state. I’m definitely in favor of labor migration, but: The status of a skilled worker is of no use to the persecuted. A migrant worker is not so vulnerable.”
You can read more about migration at Tagesspiegel Plus
Thym counters: “Maybe it’s time to be honest. Individual asylum law with complicated and lengthy procedures no longer works. We can replace it or at least supplement it. Through generous access routes for refugees and also people who want to come to work.”
It is “much better if people come by plane or bus, speak some German and work and earn money right from the start”. Berlin and Brussels have often promised that. “Unfortunately, practically nothing happens in that direction.”
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