The German Parliament passed the so-called asylum compromise 25 years ago in an amendment to its Basic Law. The novel third-country rule was based on the idea that asylum applications should be handled by the first safe country that refugees enter. In a guest commentary, Mercator Fellow Anna Lübbe writes that the principle of first entry is inappropriate and should be abandoned.
June 29, 2018
In May 1993, after very controversial discussions, the German Parliament extensively restricted its previously unconditional, constitutional guarantee of asylum. Basic Law Article 16a only grants asylum to persons who have not entered Germany from a country that guarantees, among others, the application of the UN Refugee Convention. Because of Germany’s geographic location this practically meant, that all asylum seekers who arrived in Germany overland were denied the right to asylum. Since then the idea that a country may deny refugee responsibility on the grounds that countries the applicant entered earlier would be primarily responsible has spread. However, the first entry principle finds no support in the UN Refugee Convention. Nor has the practice proved to be a sustainable strategy for reducing the number of asylum seekers. Although more sustainable ways to share refugee responsibility within Europe and beyond are debated, none of them is at present likely to gain acceptance in the ongoing process of reforming the Common European Asylum System.
In the early 1990s, in the wake of the collapse of the Soviet Union, a large number of asylum seekers arrived in Germany, which became disproportionately burdened in comparison with other European countries. Germany’s move to amend its Basic Law can thus be understood as a unilateral measure taken in a burden sharing conflict – a measure that went well beyond the burden sharing objective. Around that time, the European asylum allocation that later became the Dublin System was being developed.
The allocation rules of the Dublin Regulation stem from the Schengen System, which foresaw dismantling borders within the EU while better securing the cooperation area’s external borders. The first entry principle was intended to help reduce irregular migration. However, it is not a suitable principle for allocating refugee responsibility: Asylum seekers may not be rejected from any country without individual examination of their requests – no matter where they arrive from. Thus no specific country can be held responsible for their arrival in the Dublin area. And without providing opportunities for regular access at least for migrants in need of protection the objective to fight irregular migration does not seem unreservedly legitimate either. However, holding on to the principle of first entry as a way of distributing asylum seekers within Europe serves the more influential Member States, including Germany, which seek to shirk their refugee responsibility and to push the “frontline” Member States to seal the outer borders.
Germany thus has quite successfully Europeanized the principle of first entry. However, the strategy has not proved to be very successful: The Dublin Regulation suffered from the start from a vast implementation deficit, and even more during the ‘refugee crisis’ of 2015–16. Today, the Dublin System is regarded as a failure. Current reform proposals react to the escalated burden sharing conflict by boosting the logics of shifting refugee responsibility backwards along the flight routes: Increased efforts are underway to shift the responsibility to ‘safe third countries’ outside of Europe.
Back in 1996, when Germany’s Federal Constitutional Court evaluated the asylum compromise, it stated that only countries that have signed and are complying with the UN Refugee Convention, as well as the additional protocol of 1967, can be considered ‘safe third countries’. The Refugee Convention states to which extent refugees in host countries must be granted the rights that other inhabitants - aliens or nationals - enjoy. This standard of inclusion is now in danger of being abandoned.
The reform proposal of the Bulgarian presidency introduces as an alternative to the UN Refugee Convention standard a protection standard that secures mere subsistence of the refugees within the third state, or even just in a zone within the third state. Thus refugees no longer would have to be treated in accordance with the UN Refugee Convention, no matter how long they stay in the host country. This change would make it possible to relegate asylum seekers to permanent exclusion in ‘protected zones’ within – often overburdened - non-European countries. The proposal does not even exempt politically unstable countries as long as they contain one area – of undefined size – that can be brought under control. Aside from whether it will be feasible to allocate a significant number of asylum seekers outside of Europe – a practice that has not even functioned within Europe – such a reform abandons the standard of treatment of refugees that Germany and Europe once felt obliged to honour, and that the UN Refugee Convention implicitly stipulates.
The decades-old burden sharing conflict must be addressed in consideration of the legitimate interests of all people and countries involved. This means abandoning the principle of first entry – not only in Europe but worldwide. To share out refugee responsibility is, in principle, compatible with the UN Refugee Convention, but the objective must be to exercise the collective responsibility for refugees in a humane, efficient and solidary way. Deflecting asylum seekers backwards along their flight routes without regard for the standards of the Refugee Convention is the wrong approach.