Berlin Court Blocks Deportation Case: How a Somali Asylum Case Challenges Germany’s Migration Policy
On May 9th, 2025, the German Federal Police investigated three Somali nationals at the Railway Station in Frankfurt (Oder) near the Polish border. During this investigation, it was discovered that the three individuals had entered the Federal Republic of Germany illegally through Poland without valid travel visas. Later that same day, the group was deported back to Poland, despite expressing their clear intention to seek asylum in Germany. [1] In response, the Somali nationals brought legal action against the Federal Republic, challenging the circumstances under which their deportation took place.
On June 2nd, the 6th chamber of the Berlin Administrative Court ruled in their favour, arguing that the Federal Republic’s actions constituted an unlawful act of refoulement – the forcible return of refugees or asylum seekers to a country where they may be liable to be subjected to persecution, an act which directly violates EU legislation. [2] While the Court’s decision may not be appealed, it has renewed previous discussions around potential changes to the EU’s legal approach to immigration. Indeed, it raises serious legal questions regarding the legitimacy of German Chancellor Merz’s anti-migrant pushback policy as a whole.
To comprehend the relevance of this particular case to Germany’s migration legal framework, the right of asylum in itself must be considered, under both a German and European scope. The right of asylum, as outlined in Article 14 of the Universal Declaration of Human Rights (UDHR), states that “Everyone has the right to seek and to enjoy in other countries asylum from persecution.” [3] Regarding Germany specifically, to be able to apply for asylum, one must first register as an “asylum seeker” at any relevant government agency; this includes the Federal Office for Migration and Refugees, the Foreign Office, or, crucially, the Federal Police. [4]
First introduced in 1990, the so-called Dublin Regulation of the EU legal framework deals with asylum applications submitted in an EU member state. Specifically, this regulation aims to prevent asylum seekers from submitting different applications in multiple EU member states. Furthermore, it promotes the reduction of the number of “refugees in orbit,” defined as refugees who are denied asylum or unable to find an EU member state willing to examine their request, and are therefore “shuttled from one country to another in a constant search for asylum.” [5] The Dublin-III-Screening, introduced in 2013, determines which EU member state is responsible for the examination and processing of an asylum claim, as submitted by persons seeking the right of asylum under the “Qualification Directive of the EU.” This directive grants refugee status to those that face the fear of being prosecuted or a real risk of suffering serious harm. [6] Without conducting the aforementioned Dublin-III-Screening, an EU member state may not reject an asylum seeker at its border. Only once the screening process has been carried out may the member state deport the asylum seeker to the appropriate country, where the examination and processing of the asylum claim will take place.
If a state wishes to suspend Dublin-III, it must invoke Article 72 of the Treaty of the Functioning of the European Union (TFEU), which allows EU member states to temporarily suspend EU law when facing internal threats. As the Treaty states, “This Title shall not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security.” [7] However, it must be noted that the burden of proof lies with the claimant, and previous cases, such as European Commission v. Republic of Poland and Others have established this burden to be very high. [8] As recently as 2020, Poland posited that “Article 72 is not a provision having regard to which the validity of an act of EU law may be called into question,” thus arguing that a Member state has a wide margin of discretion and must only show the plausibility of a risk for the maintenance of law and order to be able to rely on Article 72 TFEU. [9] However, Poland’s argumentation was ultimately struck down by the European Court of Justice (ECJ).
To understand the legal context of Germany’s current migration pushback policy, it is essential to examine its foundation within the Chancellor’s interpretation of Article 72 of the TFEU. In a recent statement, the Minister of the Interior Alexander Dobrindt clarified that the expansion of refoulement is rooted within Section 18(2) of the German Asylum Act, “in conjunction with Article 72 of the TFEU.” [10] According to this provision, any asylum seeker entering from a “safe third country shall be refused entry.” [11] Since the Asylum Act defines all EU Member States, Norway, and Switzerland as “safe third countries,” Poland falls within this classification.
However, it must be noted that the German Asylum Act will only take precedence if the Dublin Regulation is being ignored in its entirety. Thus, any adherence to the German Asylum Act must inherently be “in conjunction with Article 72,” which permits the temporary suspension of EU law primacy in cases of internal threat. [12] Based on this justification, the Federal Police expelled the Somalis without conducting the aforementioned Dublin-III-Screening, an action grounded in Chancellor Merz’s earlier invocation of Article 72 of the TFEU. [13]
Nevertheless, in its judgement, the Berlin Administrative Court ruled in favour of the Somalis. This decision rested on two key arguments. Firstly, the Court found that the Federal Government’s refusal to conduct the Dublin-III-Screening constituted a clear violation of EU law. Any expulsions of asylum seekers without such a screening are only permissible, if the conditions for a “state of tension” are met, as outlined in previous ECJ decisions. [14] However, this precise notion represents a fundamental limitation of German Basic Law. Article 80a describes the “state of tension” as a state which may arise during a foreign policy conflict, “with a high probability will lead to an armed attack on the Federal Republic.” [15] Thus, since the Basic Law merely provides a vague definition of the “state of tension,” it provides the government with significant legal leeway. [16] Therefore, while political decision-makers are allowed considerable discretion with regards to the different interpretations pertaining to a “state of tension,” the question remains as to what specific event could trigger the constitution of a “state of tension” pertaining to the Basic Law’s Article 80a. [17]
Secondly, and most notably, the Court ruled that this threshold for the “state of tension” with regard to migration, however vague it may be, had not been satisfied. Its primary reasoning was based on Germany’s steadily declining asylum numbers of 2023 and 2024, arguing that a “state of tension” conception was not warranted. In doing so, it aligned with the aforementioned ECJ decision against Poland and Others (2020). [18] Since the Somali individuals had explicitly stated their intent to seek asylum before a relevant government agency, they should have been allowed to cross the border for the purpose of conducting the Dublin-III-Screening. Consequently, the Court ruled in favour of the Somali asylum seekers, lamenting the government’s lack of compliance with the relevant Dublin-III legislation.
Ultimately, the implications of the Somali case judgement on German migration policy are widespread. Even though the Minister of the Interior argued that the ruling was only applicable to the Somali case, the President of the German Federal Administrative Court affirmed the wider applicability of the judgement pertaining to Germany’s government policy in a recent interview. [19] This is largely related to the ruling on the “state of tension” dilemma, whereby the Berlin Administrative Court asserted that the Federal Government’s argumentation was insufficient, citing the declining asylum numbers in the past two years. Hence, if applied broadly, core elements of current German anti-migration policy, including the restriction of entry for asylum seekers, may be determined a breach of EU law. Therefore, the ruling of the Berlin Administrative Court directly jeopardises Germany's migration policy as a whole.
To conclude, the Federal Government may be forced to reconsider its existing migration policy in light of these recent developments. Furthermore, while a series of EU asylum reforms are planned for the next year, past efforts suggest that any meaningful changes are likely to face significant delays or implementation challenges. [20] However, this temporary uncertainty may well be part of Chancellor Merz’s and Interior Minister Dobrindt’s reasoning, who could utilise the comparatively slow pace of judicial proceedings at the ECJ to achieve their agenda as promoted during the election campaign. Moreover, the broader EU judicial landscape remains severely fractured, given that other EU Member States, namely Poland and Italy, have been openly defying Dublin-III as of March 2025. [21] As it stands, no legal action has been taken against Poland or Italy on an international stage, thus underlining the political vulnerability of Dublin-III on the EU stage. Hence, the urgent necessity to revamp the Dublin Regulation is underscored by these recent developments, as well as the establishment of a comprehensive balance between state sovereignty and the inherent rights of immigrants.
Edited by Andrew Puthumana
[1] “Zurückweisungen bei Grenzkontrollen sind rechtswidrig (Nr. 32/2025),” Verwaltungsgericht Berlin, June 2, 2025, https://www.berlin.de/gerichte/verwaltungsgericht/presse/pressemitteilungen/2025/pressemitteilung.1565917.php.
[2] Ibid.
[3] “Universal Declaration of Human Rights,” United Nations, December 10, 1948, https://www.un.org/en/about-us/universal-declaration-of-human-rights.
[4] “Asylum Seeking Process,” UNHCR Germany, https://help.unhcr.org/germany/asylum-in-germany/asylum-seeking-process/.
[5] “Refugee in orbit,” European Commission Migration and Home Affairs, https://home-affairs.ec.europa.eu/networks/european-migration-network-emn/emn-asylum-and-migration-glossary/glossary/refugee-orbit_en.
[6] “Directive 2011/95/EU of the European Parliament and of the Council,” European Parliament and European Council, December 13, 2011, https://eur-lex.europa.eu/eli/dir/2011/95/oj/eng.
[7] “The Treaty of the Functioning of the European Union,” Official Journal of the European Union, October 26, 2012, https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:12012E/TXT:en:PDF.
[8] European Commission v. Republic of Poland, Hungary, and Czech Republic, Joined Cases C‑715/17, C‑718/17, and C‑719/17, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:62017CJ0715
[9] Ibid at https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:62017CJ0715
[10] Kolja Schwartz, “Nationale Notlage für Zurückweisungen an der Grenze?,” Die Tagesschau, May 9, 2025, https://www.tagesschau.de/inland/innenpolitik/migration-grenzkontrollen-notlage-100.html.
[11] “Asylum Act,” Federal Ministry of Justice, September 2, 2008, https://www.gesetze-im-internet.de/englisch_asylvfg/englisch_asylvfg.html#p0219.
[12] Schwartz, “Nationale Notlage?,” Die Tagesschau.
[13] Robin Alexander, “Friedrich Merz ruft nationale Notlage bei Migration aus,” DIE WELT, May 8, 2025, https://www.welt.de/politik/deutschland/article256088982/Friedrich-Merz-ruft-nationale-Notlage-bei-Migration-aus.html.
[14] European Commission v. Republic of Poland, Hungary, and Czech Republic, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:62017CJ0715
[15] “Basic Law for the Federal Republic of Germany,” Federal Ministry of Justice, May 8, 1949, https://www.gesetze-im-internet.de/englisch_gg/englisch_gg.html#p0425.
[16] Lukas Liebscher, “The State of Tension,” American-German Institute, February 27, 2025, https://americangerman.institute/2025/02/the-state-of-tension/.
[17] Liebscher, “The State", AGI.
[18] European Commission v. Republic of Poland, Hungary, and Czech Republic, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:62017CJ0715
[19] Heike Anger and Klaus Stratmann, “Das fällt dem Bundesinnenministerium jetzt auf die Füße,” Handelsblatt, June 28, 2025, https://www.handelsblatt.com/politik/deutschland/grenz-zurueckweisungen-das-faellt-dem-bundesinnenministerium-jetzt-auf-die-fuesse/100134079.html.
[20] Christine Mhundwa, “EU agrees changes to common asylum policy,” Deutsche Welle, March 12, 2025, https://www.dw.com/en/eu-agrees-changes-to-common-asylum-policy/video-71897558.
[21] Redazione Agenzia Nova, “Migrants, “Bild”, Italy ignores Dublin Regulation to Germany’s detriment,” Agenzia Nova, January 13, 2025, https://www.agenzianova.com/en/news/migrants-bild-litalia-ignores-dublin-regulation-to-the-detriment-of-germany/.