Why Germany's border gambit threatens the EU's asylum rule book

Times

17 hours ago

At the hamlet of Lubieszyn, next to the red and white-striped pillars that mark the Polish side of the frontier with Germany, volunteers in high-vis jackets stop passing cars and check for migrants.
At another border crossing near by, a gazebo displays the slogan: 'This is our Polish home, our rules.'
Approximately 160 miles to the south, on the Pope John Paul II Bridge across the river Neisse where the Polish town of Zgorzelec meets the chocolate-box German city of Görlitz, a group of women in yellow vests staff a tent that bears the words: 'Stop immigration.'
This is the Border Defence Movement, a vigilante organisation that has been mounting 'citizens' patrols' along the German frontier in protest against Berlin's decision to start routinely turning back irregular migrants into Poland.
With a political storm brewing in Warsaw, the Polish government has been stung into imposing its own temporary checkpoints on the border from Monday, as well as similar measures on its northeastern frontier with Lithuania. On Friday the army announced that it would send 5,000 Polish servicemen to support the border guards along the frontiers with Germany and Lithuania.
Adam Szlapka, Poland's Europe minister, said: 'The situation is asymmetrical. Germany is causing incidents by sending migrants back to Poland without making sure that they will be picked up by Polish border guards, and they have their own statistics, we don't.
'We need to have control over migration. We need to know who is entering Poland and whether they are persons returned in accordance with due procedures or not.'
He later warned the vigilantes patrolling the border to stand down. Speaking after a hastily convened security meeting in Warsaw, he said: 'Only the border guard has the right to control our borders. Anyone impersonating officers or hindering their work will face consequences.'
• Merz: Strict asylum policy needed to stop Germany becoming overloaded
This is not how the free-travel Schengen zone was supposed to look. Yet these ructions are the result of what allies of Friedrich Merz, Germany's conservative chancellor, characterise as a paradoxical gamble to save Europe's freedom of movement by restricting it.
Merz took power two months ago after a Bundestag election where the hard-right Alternative for Germany (AfD) party came within two percentage points of beating his Christian Democratic Union. Days later, the AfD pulled ahead of the CDU and its Bavarian affiliate in the polls.
Under intense pressure to curb irregular immigration, Merz's government has been churning out policies.
It has suspended most refugees' rights to bring their relatives to Germany. It has also proposed negotiations with the Taliban over a deal to send Afghan criminals back to their country of origin.
Merz's confidants have even signalled that they would like to clip the wings of the European Court of Human Rights in Strasbourg so that its judges have to define certain asylum rights more narrowly.
Yet the centrepiece of its strategy is an order for border police to turn back virtually all asylum seekers across Germany's 2,300-mile land frontier.
Aside from 'vulnerable' groups such as pregnant women or unaccompanied children, migrants who cannot prove that they have a right to enter the country are told to retrace their steps.
The basic idea is that EU rules oblige asylum seekers to lodge an application with the first member state they set foot in.
Since Germany is surrounded by other EU states, that means virtually all of the asylum seekers that come to the country should theoretically be processed somewhere else.
Usually this is a laborious and time-consuming process that often fails because of missing documents. Merz's administration argues that it can dispense with the process entirely since the volume of irregular immigration is a 'national emergency'.
Heiko Teggatz, the chairman of the federal police branch of the German Police Union, which is responsible for border security, said that the turnbacks at the frontier were a straightforward procedure in practice. 'The foreigner is simply not permitted to enter,' he said. 'You could also call it a 'dismissal' at the border.'
The migrants are photographed and have their fingerprints taken and logged in a national database, so that if they do cross the border and apply for asylum at a later date their application can be automatically rejected.
This measure, introduced two days after Merz took office, has been immensely controversial within Germany itself.
Judges have been chipping away at its legal foundation. Last month the administrative court in Berlin ruled that the rejection of three Somali asylum seekers at the Frankfurt an der Oder border crossing with Poland had broken EU law and there was no evidence of a national emergency that would justify suspending the normal processes.
While the interior ministry insists that the verdicts apply only to the individual cases in question, the president of the federal administrative court — effectively the top judge in the German asylum system — has suggested that the whole policy may be unlawful.
Andreas Rosskopf, head of the border police division of the Gewerkschaft der Polizei, the main German police union, said he was concerned that officers could be prosecuted for carrying out unlawful orders from their superiors on the frontier.
This week the policy has also come under fire from Angela Merkel, Merz's predecessor as chancellor, and from his Social Democratic party coalition partner.
Yet the criticism in Germany is mild in comparison with the furore in Poland. MPs from the right-wing Law and Justice (PiS) opposition party have accused the Germans of dumping thousands of 'illegal immigrants' on Polish soil every day.
President Duda and his incoming successor Karol Nawrocki, both of whom are aligned with PiS, have endorsed the Border Defence Movement patrols.
Agnieszka Kasinska-Metryka, professor of political science at Kielce University in Poland, said many voters were left with the impression that the Polish government had lost control of the border and 'citizens had to take matters into their own hands'.
In response, Donald Tusk, Poland's beleaguered centre-right prime minister, said that his patience with Berlin was 'becoming exhausted' and it was time to tackle the 'uncontrolled flows of migrants across the Polish-German border'.
German officials feel that the issue has been blown up out of all proportion to the reality of the policy. A Times analysis of German and Polish government data suggests they have a point.
Provisional figures from the German interior ministry show that only 28 would-be asylum seekers were turned away at the Polish border under the 'national emergency' mechanism over the first fortnight after it came into force.
Approximately 1,350 people have been turned back on the Polish-German border since May 8, but only 128 of them under the new rule.
Across all of Germany's borders, the number of migrants denied entry last month was in fact at its lowest level for any June since 2021, possibly because migration flows into Europe as a whole have ebbed over the past few years.
Polish statistics also show that since the start of May the German border guards have turned back an average of 724 migrants into Poland each month, compared with 782 a month over the same period in 2024.
Rosskopf said the Polish and German border forces tended to coordinate fairly well in practice, although handing over responsibility for the rejected asylum seekers was often a 'lengthy and complicated' job.
However, Rosskopf is worried that after the Polish border controls kick in next week, migrants may find themselves in a 'ping-pong' situation where neither side will let them pass.
'On Monday we might see that we as the German federal police are turning people back at the German-Polish border and our Polish colleagues won't take them in at all, or will turn them back after a short delay,' he said.
'In our view this situation absolutely must be avoided. People cannot be allowed to be turned into footballs by political decisions.'
Both sides of the dispute insist they share the same ultimate aim: to fix the Schengen zone by reshaping the European asylum system.
'We believe that the Schengen area is a monumental achievement,' Szlapka said. 'Our interior ministers are in contact, and inevitably, we must reach a situation in which we are jointly fighting illegal immigration, while within the Schengen area we want the flow of people to remain free.'
Later this month the two countries' interior ministers will join colleagues from similarly hawkish EU states such as Denmark and Austria on the Zugspitze, Germany's highest mountain, to try and forge a joint position. The Germans, who are hosting the meeting, would like to lead a push to facilitate deportations to Rwanda-style 'return hubs' outside the bloc.
Yet there is considerable mutual mistrust. The domestic politics of immigration has reached such a fever pitch in both Poland and Germany that compromise may well remain elusive.