Verfassungsfragen der Flüchtlingskrise 2015/16

The refugee crisis 2015/16 led to a temporary breakdown of the European border regime (Schengen) and asylum system (Dublin). Hundreds of thousands of refugees were irregularly »waved through« to Germany which – under normal Dublin rules – would not have been responsible for most of those refugees. The German government tolerated this situation and left provisions contained in its domestic law unapplied according to which asylum seekers who have come through safe third countries must be denied entry at its borders (Art. 16a Abs. 2 GG, §18 Abs. 2 Nr. 1 AsylG). The Bavarian government asked the federal government to change this practice and even threatened legal proceedings before the constitutional court. Later it dropped that threat after the number of refugees had considerably gone down as a result of the closure of the »West Balkan route« and the EU-Turkey agreement. This article examines the constitutional duties of the federal government in situations like the one which arose during the refugee crisis 2015/16. It develops the following theses: 1. The federal government has a general constitutional duty to provide for effective border and immigration control which – in our case – is underlined and specified by Art. 16a Abs. 2 GG (no right of asylum for refugees who have come through safe third countries). Laws which serve to fulfil this duty, like §18 Abs. 2 Nr. 1 AsylG (denial of entry for asylum seekers who have come through safe third countries), must, as a matter of principle, not be left unapplied in a structural and enduring manner. 2. In a situation in which the functioning of the European border regime and asylum system is severely impaired, the Member State has, under European law (Art. 72 TFEU, Art. 4 [2] TEU), a right and, under constitutional law, a duty to fulfil its obligations as outlined in (1), in particular by temporarily applying the necessary measures at its own borders (including the enforcement of denials of entry), until a sufficient degree of functioning of the European border regime and asylum system has been reestablished. 3. The duty of the federal government to provide for effective border and immigration control is a duty which also serves to protect the interests of the German Länder, which, under German constitutional law, are states that, as far as the fulfillment of necessary state functions at their borders is concerned, have no competences of their own, but rely entirely on the federal state. Severe neglect of this duty by the federal government can, as a result, violate constitutional rights of a Land.