The “existence of western democracies” is in peril without fundamental reforms to the European asylum system, one of Germany’s most eminent legal figures has warned.
Hans-Jürgen Papier was previously the most senior judge in the country, which became a European standard bearer for liberal immigration policy. Papier said the current rules had opened the floodgates to “uncontrolled and unconditional immigration” and needed to be radically revised before the public lost faith in conventional politics.
Papier said it was especially important to rein in the rulings from the European Court of Human Rights (ECHR) and national courts — which had gone far beyond the original postwar definition of the right to asylum, and created an “ossified and rigid” body of law that failed to adapt to the present.
Hans-Jürgen Papier
CHRISTIAN MARQUARDT/GETTY IMAGES
This week marks ten years since Angela Merkel, as German chancellor, decided to leave the country’s borders open to what ultimately became an influx of more than a million asylum seekers in 12 months.
That moment became a turning point in Europe’s handling of migration. As many neighbouring states hardened their border policies, Merkel insisted on Germany’s humanitarian duty to provide a safe haven for refugees, telling the nation: “Wir schaffen das” (We can cope).
Over the next decade the country took in 3.5 million irregular migrants, including about 1.1 million Ukrainian war refugees.
The anniversary of the 2015 migration crisis has prompted a glut of analyses examining how well the country has ultimately coped.
Most of them have been negative. The employment rate for the 2015 cohort of working-age asylum seekers has now reached 64 per cent, only a few points short of the national average.
However, other studies have shown that most German voters are exasperated with the strain on public services and the disproportionate prevalence of first-generation immigrants in violent crime statistics.
The radical right-wing and migration-critical Alternative for Germany (AfD) party, which struggled to reach 5 per cent of the vote in the summer of 2015, is now averaging 25 per cent in the polls and jockeying for first place.
When Friedrich Merz, the conservative chancellor, was recently asked about Merkel’s mantra, he replied: “Today, ten years later, we know that in the area she meant back then we clearly did not cope.”
Influential figures in Merz’s inner circle support an initiative spearheaded by Italy and Denmark to curb the remit of the ECHR and hand greater powers to individual nation states to determine their own asylum policies.
Unlike in the UK, the dividing line in German politics is now between those who regard the expansive modern definition of the right to asylum as sacrosanct, and those who want it stripped back to the core principles of the 1951 Geneva refugee convention and the 1953 European Convention on Human Rights.
Alice Weidel, co-leader of the Alternative for Germany (AfD) party, who has endorsed anti-immigrant rhetoric
SOEREN STACHE/DPA/AP
Papier’s opinions on the issue carry significant weight because he was the president of Germany’s constitutional court from 2002-10, at the start of the Merkel era, and has spent more than half a century working on questions of national sovereignty and the legitimacy of democratic institutions.
He argued that the current batch of planned reforms to the European Union’s asylum rules, which include measures to harden the bloc’s outer borders and to redistribute migrants between the member states, would fall far short of restoring the public’s faith in the state.
Papier, 82, who is now emeritus professor of public law at Ludwig Maximilian University in Munich, said the core of the problem was an “ever deeper reaching and ever more closely meshed agglomeration” of asylum rulings from national courts and the ECHR in Strasbourg.
These now seemed to “settle like mildew over the states’ political power to take action”, he said. In Papier’s view, they have widened the right to asylum into a “de facto right to immigration through the back door”.
An anti-immigration protest in Munich earlier this year
SACHELLE BABBAR/ZUMA
He said: “The prospect that those in positions of political responsibility in Europe could change this system and adapt it to the fundamental changes in our social, political and cultural conditions seems ever more difficult and ever more hopeless to many people.
“The citizens expect those with political responsibility to revise the asylum policies to suit the changed circumstances. But that is in danger of failing because of the ossification of a body of law that is getting increasingly rarefied and ultimately looks irreversible to many politicians.”
• How does the ECHR work and what would reform mean?
Papier said this predicament was “generally destroying the European citizen’s trust in the capacity of their democratic institutions to act, and so at the end of the day endangering the existence of western democracies”.
Particular criticism has focused on judges’ broad interpretations of Articles 3 and 8 of the ECHR, which respectively safeguard the right to freedom from torture or inhuman treatment and the right to family life.
In the case of Germany, the courts have sometimes used the “inhuman treatment” clause to block the extradition of asylum seekers to Italy and other EU member states on the basis that they might be in danger of homelessness or having to find work on the black market.
“That simply goes too far,” said Papier. “Here human dignity is being treated like small change and thereby robbed of its special dignified status.”
The legal scholar said that the ideal response would be to reform the ECHR itself, and “to a certain extent to adapt it to today’s political conditions with regard to asylum policy and migration”.
This, however, would require consensus from all 46 nations in the Council of Europe, the body that oversees the ECHR and its court. “They won’t achieve that so quickly or in the foreseeable future,” said Papier.
His alternative suggestion is that the EU or national parliaments should draw up a “fundamentally new, precisely formulated law of migration, with clear rules that contain no contradictions, which does not leave any great room for interpretation by the judiciary”.
Papier said this law should take the right to asylum back towards the original tenets of the Geneva convention and the ECHR.
One of his ideas is to abandon the principle that migrants can only apply for asylum once they have set foot in a particular state. Papier argued that it could be replaced with electronic asylum visas that would only provide admission to migrants with a reasonable chance of success, and “legally exclude” all others from entry.
Another idea is to give individual states the power to set strict limits on “subsidiary protection” — a weaker category of asylum granted to migrants who do not qualify for refugee status but are deemed to be at risk of violence or inhumane treatment if they are sent back to their native countries.
Subsidiary protection, which was introduced in the 2000s, accounts for the majority of residency permits issued to asylum seekers in Germany and several other EU countries.
Papier suggested that countries could instead be allowed to set “ceilings” for the number of migrants they were prepared to admit on these terms each year.