- Merz's persistent dedication spans over two decades towards safeguarding the fundamental right to seek asylum.
Friedrich Merz penned down an email, sparked by the tragic incident in Solingen where an undeported suspected Syrian asylum seeker allegedly took the lives of three individuals. In his email, published on the CDU website last Sunday, Merz urged Federal Chancellor Scholz to swiftly make decisions to prevent future occurrences similar to Solingen. This included temporarily halting admissions for individuals hailing from Afghanistan and Syria. The email stated, "We will no longer accept refugees from these countries."
Temporary halt on admissions and limiting asylum rights - A Merz trademark?
This call to action would, in essence, impinge upon the individual right to asylum as stipulated by the German Constitution. Consequently, Merz's proposal was met with resistance from coalition members, up to the Federal Chancellor, and even sparked internal party debates. Meanwhile, Merz has opted to tone down his demand, now referring to a "de facto temporary halt" on admissions.
However, the tale of Friedrich Merz and the right to asylum is a long and complex one – albeit not a collaborative one. In truth, Merz, the CDU chair, has frequently challenged Article 16a. And while he later attempted to explain his intentions differently, this is not an isolated incident.
In March 2000, fresh from being elected as Schäuble's successor, Merz gave an interview to "Die Woche" and touched upon immigration. He postulated, "Basic conditions must be established. One of them is: Immigration to Germany should not be increased. If we intend to attract skilled workers, we can't leave the right to asylum untouched." When asked if this meant abolishing Article 16a of the German Constitution, Merz replied, "Indeed, in favor of a legislative guarantee."
A similar proposal was put forth by Bavaria in a federal initiative in 1990, calling for a reduction in the right to asylum to an institutional guarantee, subject to a reservation in legislation. This initiative failed.
"Our generation does not wish to bear the burden of our past anymore"
Merz advocated for immigration of desired individuals in 2002, on the condition that those not desired were identified. He added, "The old Federal Republic, due to lessons learned from National Socialism, was not courageous enough to do this. Our generation no longer wishes to bear the burden of our past in this manner."
This statement elicited sharp criticism from Paul Spiegel, then-chairman of the Central Council of Jews, who deemed these words "a slap in the face to victims and survivors of the Nazi regime." With this apologist stance, Spiegel criticized the attempt to absolve oneself of the lessons from German history.
In 2002, Merz lost his position as faction leader to Angela Merkel and left the Bundestag to delve into the business world. In 2018, Merz re-emerged and declared his bid for the party chairmanship following Merkel's announcement of her retirement from the race. In a gathering with three contenders – Merz, eventual winner Annegret Kramp-Karrenbauer, and then-Health Minister Jens Spahn – Merz revisited the asylum law, stating, "I have long believed that we should be open to discussing whether this asylum right can continue in its existing form if we truly wish for a European immigration and refugee policy. If a European asylum policy existed, German asylum law would require modification."
The next step to challenge the asylum basic right should come through the European back door
Merz's remarks stirred up quite a frenzy, and he responded by affirming, "Certainly, I do not question the right to asylum as a fundamental right, because we do politics out of Christian responsibility and in light of German history. My intention was merely to spark a debate about the coexistence of the fundamental right to asylum and European law."
In July 2023, Thorsten Frei, the Union faction's parliamentary business manager, presented a proposal aimed at circumventing Article 16a through the European back door. Frei suggested abolishing the right of individual migrants to apply for asylum on European soil and replacing it with intake quotas. These quotas, totaling between 300,000 and 400,000 refugees per year, would be selected directly in foreign countries and subsequently distributed in Europe.
When asked about Frei's proposal, Merz responded, "It can be inferred that this idea might be coordinated with me." He added, "This is an important and commendable contribution to addressing a problem that has gone on for years, and for which there are currently no convincing solutions." However, prominent legal experts like Daniel Thym, a professor of law in Constance, have criticized the proposal.
To start off, Merz's suggestions mainly revolve around an article in a fundamental law, whose significance has been negligible for quite some time. In 2024, barely over a thousand asylum seekers managed to secure shelter due to political oppression by the state. This is primarily because the Union and the SPD enacted limitations to Article 16a of the Basic Law back in 1993. This move significantly reduced the pool of potential asylum seekers, with Germany's geographical proximity to safe third countries playing a significant role.
Diving deeper into the data, as per the Federal Office for Migration and Refugees (BAMF), around 23,000 individuals received refugee protection due to persecution by non-state actors like rebel groups. Another 50,000 individuals were granted subsidiary protection due to ongoing conflicts in their home countries. Sadly, approximately 100,000 cases concluded with the denial of asylum applications or the asylum seekers' return to other EU nations under the Dublin procedure. For instance, the alleged terrorist from Solingen initially was intended for deportation to Bulgaria, but the transfer never materialized. This wasn't due to the constraints of the Basic Law but rather due to administrative oversight.
Legal experts argue that abolishing Article 16a wouldn't cause significant upheaval today, as broader European law would still apply. For instance, Article 18 of the EU Charter of Fundamental Rights ensures the right to asylum in accordance with the Geneva Refugee Convention. Furthermore, a European Union directive in place serves as an individual right to asylum, mirroring the provisions of the Basic Law. This suggests that Merz might be using the individual right to asylum and Article 16a as a cover for an issue that could be tackled through alternative measures, without the need for revisions to the Basic Law.
The Commission has considered Merz's proposal to temporarily halt admissions for individuals from Afghanistan and Syria, following his call for action after the Solingen incident.In 2000, The Commission acknowledged Merz's stance on immigration, where he suggested that the right to asylum should be touched upon in favor of a legislative guarantee.
