Country Report: Access to the territory and push backs
Last updated: 30/11/20
The law states that asylum seekers shall apply for asylum at the border. However, entry to the territory has to be refused if a migrant reports at the border without the necessary documents for legal entry and if an immediate removal to the neighbouring country (as Safe Third Country) is possible.Section 18(2) Asylum Act and Sections 14 and 15 Residence Act.
Since 2013, asylum seekers should not be sent back to neighbouring countries without their applications having been registered. It is not clear, though, whether this practice is actually applied in all cases: even if migrants have crossed the border, which is defined as a 30 km strip, on the basis of a legal fiction laid down in the Residence Act, they have not necessarily entered the territory,Section 13(2) Residence Act. and it is possible that a removal to the neighbouring state (Zurückweisung) is still carried out at this point.
In practice, difficulties with registration have been reported in connection with the refusal of entry at the borders. In previous years, it was reported that asylum seekers were arrested by Federal Police in the immediate vicinity of a branch of the BAMF before they could apply for asylum. Furthermore, it is also possible that asylum applications are not referred to the BAMF if entry to the territory is denied in “cases of apprehension” at the border.Refugee Council Brandenburg, ‘Das Recht auf ein Asylverfahren endet in Eisenhüttenstadt’, 17 July 2013, available in German at: http://bit.ly/1PBzQzm.
Media reports from 2016 suggest that this might have been the case at the Austrian-German border in 2016, after border controls had been reintroduced in September 2015. According to reports, people were immediately sent back to Austria, although it had not been clarified whether they intended to apply for asylum in Germany.See e.g. ZDF, ‘Ein Jahr Grenzkontrollen in Deutschland’, 13 September 2016, available in German at: http://bit.ly/2nG9y3u.https://www.zdf.de/nachrichten/zdf-morgenmagazin/ein-jahr-grenzkontrollen-in-deutschland-102.html In response to an information request, the Federal Police (Federal Police) stated that persons who had asked for asylum had not been returned on the basis of national law or on the basis of the readmission agreement with Austria. However, in the same statement the Federal Police mentioned that there had been returns of people who had asked for asylum in Germany but were returned to other Member States of the Dublin Regulation. The Federal Police did not provide information on the number of such cases. It claimed that the BAMF had not been carrying out Dublin procedures in these cases, but had been involved in these returns by determining the responsible Member State under the Dublin Regulation. The Federal Police also claimed that procedural guarantees, in particular access to an effective remedy as regulated in the Dublin Regulation, were adhered to in these return procedures.Information provided by the Federal Police Head Office, 23 February 2017. The government clarified in 2017 that Dublin procedures at the borders are conducted by the BAMF (see Dublin: Procedure).
In 2018 a new procedure was introduced which enables the Federal Police to refuse entry at the border. This procedure is based on administrative regulations only; no legislative changes were implemented. It is only applied to the Austrian-German border, as it is the only border where there are currently controls. The aim of the new approach is to facilitate the immediate removal of persons who have already applied for asylum in a southern European country with which Germany had concluded an agreement; this includes Spain and Greece at the moment. According to the Federal Ministry of the Interior, refusals of entry are possible if it can be immediately established with the help of a Eurodac “hit” that the person trying to cross the border and seeking protection in Germany has already applied for asylum elsewhere. An immediate return then has to take place within 48 hours.Federal Ministry of the Interior, ‚Zurückweisung an der Grenze‘, 9 August 2018, available in German at: https://bit.ly/2T5vHHL. These returns are therefore not based on the Dublin Regulation, but on a refusal of entry under the (national) notion of “safe third countries” in combination with administrative arrangements concluded with other EU Member States. At the beginning of 2019, only two of these readmission agreements had been concluded with Spain and Greece and only 11 forced returns had taken place on the basis of the new approach, 9 to Greece and 2 to Spain.Migazin, ‘Elf Zurückweisungen an der Grenze seit August 2018’, 11 March 2019, available in German at: https://bit.ly/2XY4PgD.
At the time of writing, no further details could be ascertained as to how this new procedure is carried out in practice. The legality of the new procedure has been questioned by legal experts,A collection of statements by various experts and institutions can be found at: https://bit.ly/2zwUPTs. See also Constantin Hruschka, ‘Kontrolle oder Chaos? Zur Rechtswidrigkeit der Zurückweisung von Schutzsuchenden an den europäischen Binnengrenzen’, 18 June 2018, available in German at: https://bit.ly/2B56Iyq; ECRE, Bilateral Agreements: Implementing or Bypassing the Dublin Regulation?, December 2018; available at: https://bit.ly/2GgVoEf. and it has been reported that some deportations to Greece, which took place on the basis of the new readmission agreements, were challenged in domestic courts and the European Court of Human Rights (ECtHR),AIDA, Country Report Greece, 2018 Update, March 2019, available at: https://bit.ly/2I3P95L, 69 but no court decisions concerning this issue have been published at the beginning of 2019.