Bavarian premier, Horst Seehofer, has been a thorn in Chancellor Angela Merkel’s side ever since the refugee crisis heated up last fall, demanding tighter border controls and an upper limit to the number of refugees coming to Germany.
Ms. Merkel’s response so far has been a resolute “Nein.” She has argued that Germany can’t fence itself in and that the right to asylum is a fundamental part of the country’s constitution — which doesn’t stipulate an upper limit.
She has prevailed so far against Mr. Seehofer, leader of the Christian Social Union, the Bavarian sister party to her Christian Democratic Union.
After all, she’s the chancellor and the leader of the biggest party in the coalition. Her grip on power remains unchallenged, despite growing disquiet in her ranks over the continued influx of refugees and over the public outcry following the sexual assaults on women by gangs of young migrant men in Cologne and other cities on New Year's Eve.
But a new legal assessment by a former judge of the Federal Constitutional Court, Udo di Fabio, looks set to strengthen Mr. Seehofer’s hand.
The report, presented Tuesday by Mr. Seehofer and other ministers to the Bavarian cabinet, concluded that the federal government has an obligation to secure the national borders if the European border-control system is “temporarily or permanently disrupted.”
The report even gave Mr. Seehofer some key ammunition in his battle with Ms. Merkel: If the territorial statehood of a regional state is diminished, that state is entitled to take legal action to force the federal government to secure its borders, the report said.
“The federal government has a responsibility to restore the rule of law,” the cabinet said.
Criminals have to be rigorously held accountable in Germany, and with criminal foreigners, deportation is one of the consequences. Heiko Maas, German Justice Minister
Mr. di Fabio declined to comment on his report. Contacted by Handelsblatt, he said he had taken a “vow of silence” as Mr. Seehofer had commissioned the assessment.
Ms. Merkel should take heed. Mr. Seehofer, whose state bears the immediate brunt of the refugee influx via the so-called “Balkan route” from Greece to Austria and over the border to Bavaria, may now have a stronger argument for his bid to halt the uncontrolled arrival of refugees — 1.1 million in 2015 and continuing so far in 2016 at the rate of some 4,000 people per day.
And Mr. di Fabio is not alone in his assessment. In an interview published Tuesday with Handelsblatt, Hans-Jürgen Papier, president of the Constitutional Court from 2002 to 2010, also voiced legal and constitutional concerns with the government’s refugee policy
“If it is not possible to create a unified European asylum area with mandatory quotas and uniform material standards, then there has to be action at a national level. Courses of action must be developed and implemented,” he told Handelsblatt.
Mr. Papier called for a “change of course” by Ms. Merkel and demanded that she temporarily suspend Europe’s passport-free Schengen zone. “Illegal entry has to be stopped. Of course, the necessary measures are also the most complicated and uncomfortable, but ultimately this is the only possible way,” said Mr. Papier.
The arch-conservative CSU has long been opposed to Ms. Merkel’s open-door policy but resistance is building in her CDU party as well.
The readiness of other E.U. members to share the burden with Germany “hasn’t increased” in the wake of the New Year’s Eve assaults, Michael Grosse-Brömer, a senior CDU lawmaker, pointed out. “The public and some colleagues are very worried.”
Other CDU members said Cologne had shown that the state’s authority was waning, and this was playing into the hands of right-wing populists such as the Alternative for Germany, the AfD.
A recent poll saw AfD attracting 11.5 percent of support, pushing the anti-immigration party into the third place, ahead of the Greens and far-left Left Party. Germany has three key regional elections in March and the AfD is now likely to make it into all three state parliaments.
The government responded Tuesday by announcing a plan to tighten laws on deportations and sexual offenses. Refugees sentenced to jail time for committing offenses that threaten someone’s life, physical integrity, sexual self-determination, as well as attacking police officers or using violence in property crimes can be more easily and swiftly expelled in future, Interior Minister Thomas de Maizière told reporters in Berlin. That applies even if the sentence is suspended, he added.
For other offenses, the bar to deport criminal refugees will be lowered from a jail sentence of three years to one year, Mr. de Maizière added.
“Criminals have to be rigorously held accountable in Germany, and with criminal foreigners, deportation is one of the consequences,” said Heiko Maas, Germany’s justice minister.
The law on sexual offenses will be tightened to also include such cases as rape or sexual abuse where the victim didn’t resist because she feared further violence or because the perpetrator took advantage of an element of surprise.
Mr. Maas stressed that both these situations were the case in Cologne, where scores of women were robbed, molested and assaulted by crowds of men, some of them suspected to be refugees.
For months, policymakers had discussed tightening the law on sexual offenses to close glaring gaps, he added.
Tightening both laws is necessary also to protect “the overwhelming majority of innocent foreigners in Germany,” who “do not deserve to be lumped together with criminal foreigners,” Mr. Maas said.
In addition, the cabinet will next week discuss new rules to speed up asylum processing for people who come from countries regarded as safe, and to only pay benefits if asylum-seekers stay in their designated initial reception centers. The idea is for those coming from "safe" countries to be sent back more quickly.
That may not suffice to placate the CSU, which is adamant that Germany needs to close the barriers.
“The open borders are unlawful,” said Hans-Peter Uhl, a CSU lawmaker. As long as the E.U.’s external borders haven’t been secured, people arriving at the border must be “turned back — and on a large scale.”
Daniel Delhaes reports on politics, transport and airlines from Handelsblatt's Berlin office. Frank Specht is based at Handelsblatt's Berlin bureau, where he focuses on the German labor market and trade unions. To contact the authors: [email protected] and [email protected]