The times I despair of the pathetic Canadian government, I look to Germany where eugyppius helpfully explains that German judges are even more dedicated to thwarting the will of the voters than Canadian judges are (and that’s a major achievement):
At the start of May, CSU Interior Minister Alexander Dobrindt effectively abolished asylum as a path into Germany, empowering federal police to push back all illegal migrants at our national borders.
There ensued a period of messaging chaos, in which Chancellor Friedrich Merz assured our neighbours and the EU that nothing much was happening, while Dobrindt quietly insisted that yes, indeed, he was serious. He gave police orders to step up border checks and to send back all illegal migrants regardless of asylum claims – save for pregnant women, the underage and the sick.
These new borders policies have yet to exercise any significant influence on asylum statistics. It is relatively easy to cross into Germany despite the police spot checks, and we don’t yet know how many asylees are managing to evade them.
The deeper legal issues are much more significant right now. We want to know whether Dobrindt’s intervention is workable in theory, and whether our judges will swallow it. Unfortunately, he is already under siege from asylum advocates on the left and the broader migration industry, who have set and sprung a very telling trap, with the aim of getting courts to overturn even these preliminary and quite meagre interventions.
To understand the issues here, we need a brief legal primer: According to German law (the so-called Asylgesetz), foreigners who enter Germany from “secure” states do not get to claim asylum. They are to be sent straight back to wherever it is they came from. Because Germany is surrounded entirely by secure states, that should really be the end of this insane problem. Alas, this sensible law has been superseded since 1997 first by the Dublin Convention, and later by the Dublin II and now the Dublin III Regulation. The latter forbids the Federal Republic from using her own laws, holding that foreigners entering Germany from secure third states must be welcomed pending a procedure to establish which EU member state is actually responsible for them. Effectively, this means that almost all of these aspiring asylees remain in Germany indefinitely, because deporting people who do not belong here is beyond the meagre capacities of our enormous bureaucracy.
Dobrindt sought to get around Dublin by appealing to Article 72 of the Treaty on the Functioning of the European Union (TFEU), which allows member states to set aside EU regulations when this is necessary to maintain order and security.
Many have eyed this Article 72 strategy for a long time, but nothing is easy, particularly not in countries unduly enamoured of “the rule of law”, which is a lofty euphemism for “the rule of obscure crazy people in robes for whom nobody ever voted and who enjoy lifetime appointments”. These days the government cannot do anything at all except what it was already doing (and sometimes not even that), or unless it is obviously stupid, expensive and inadvisable, because lurking around every corner is a clinically insane judge eager to explain why sensible things are not allowed. In recent years, our extremely learned and far-sighed judiciary has explained why combating climate change is anchored in the German constitution and why basically everybody is entitled to exorbitant social welfare. All that remains for them is to explain why everybody on earth is also entitled to live in Germany and draw benefits from the state, and they will have completed their suicidal triad.
On Monday, 2 June, the Berlin Administrative Court struck the first blow in this direction. Effectively, they called the whole basis for Dobrindt’s new border policy into question, issuing what amounts to a preliminary injunction in the case of three Somalis (two men and one woman) who had crossed from Poland into Germany on 9 May. Federal police intercepted the trio at the train station in Frankfurt an der Oder; they claimed asylum and the police, in line with Dobrindt’s order, sent them back to Poland anyway. Lawyers from the advocacy organisation Pro Asyl then helped them bring suit in Berlin, and the court intervened in their favour. They get to be professional asylees in Germany now.
