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Many federal states would like to host refugees from the Moria refugee camp, but this is not legally possible. Why is that?
By Kolja Schwartz, ARD Legal Editor
Many federal states and municipalities would like to quickly help after the photos of Moria and host refugees from the Greek island of Lesbos. North Rhine-Westphalia Prime Minister Armin Laschet said it could accommodate up to 1,000 people. Berlin Interior Senator Andreas Geisel wants to host 300 refugees, and many other federal states have also offered their help.
Under the Residence Act, federal states can grant a residence permit to certain groups of foreigners if there are, for example, humanitarian reasons. This is what Section 23 of the law says. A sticking point: it is already controversial here when one can speak of “humanitarian reasons”.
Is there a need for protection?
Federal Interior Minister Horst Seehofer believes that the need for humanitarian protection must have existed prior to entering the EU. Simply put, people must have had a recognized reason for running away from home. In many cases of the Lesbos people, it is doubtful that this is the case or at least it has not been established.
It is much clearer that now, after the fire at the latest, there is a need for humanitarian protection in Greece. At least one cannot read in the text of the Residence Law that this is not enough. This is probably how some federal states see it. But the courts have yet to deal with it.
Requires approval of the Ministry of the Interior
However, article 23 of the Residence Law also states that federal states need the consent of the Federal Ministry of the Interior to issue a residence permit. “To preserve national uniformity”, as it is called. And Seehofer rejects this “agreement”.
He presented his arguments to the Senator of the Interior of Berlin in a letter, which the ARD Legal Editor Present. The Minister maintains that such country admission programs would go against the objectives of the Dublin III Regulation and European solutions. According to the Dublin III regulation, simply put, the asylum procedure is always the responsibility of the State where the refugee first enters European soil. So here Greece.
European law takes precedence
However, according to Article 17 of the regulation, other Member States can voluntarily undertake the asylum procedure. If Germany did this in some cases, according to the minister, and the federal states also issued residence permits in accordance with Section 23 of the Residence Act, there would no longer be a uniform federal regulation. Because: some would then have an open asylum procedure in Germany, others a direct issuance of a residence permit. The regulation of European law also has priority in relation to the national regulation of the Residence Law.
No independent asylum policy from the federal states
That is why Horst Seehofer refuses to give approval to the federal states. He does not want the federal states to operate a parallel and independent asylum policy in a certain way.
It is unclear and controversial according to what criteria the Federal Minister of the Interior can refuse your consent. “The courts would presumably give the minister a wide margin of discretion, which is necessary to maintain national uniformity,” says Daniel Thym, a public law professor specializing in European and international law at the University of Konstanz.
The state of Berlin wants to change the law
The interior senator from Berlin has announced that he will launch a Federal Council initiative next week that will abolish the approval requirement of the Federal Interior Ministry in Section 23 of the Residence Act. According to the ideas of the state of Berlin, the Federal Minister of the Interior should only be informed of state admission programs. You can express your opinion about it. Decision-making authority would then lie with the federal states.
However, it is also questionable whether this is constitutionally possible without any problem. According to article 32 of the Basic Law, foreign policy is a federal matter.
