"I've never experienced this before": Dobrindt's tactics could prove fatal for border guards

The Berlin Administrative Court has declared the rejection of asylum seekers incompatible with EU law. Interior Minister Dobrindt is nevertheless maintaining the practice. This raises questions about the rule of law – and could become a personal problem for border officials.

For thousands of federal civil servants, what Alexander Dobrindt is currently doing threatens to become a delicate balancing act. As Federal Minister of the Interior, the CSU politician is the employer of the Federal Police. First and foremost, this means that the police officers carry out Dobrindt's orders. The basics of administrative hierarchy. But what if what the employer orders violates the law or threatens to violate it? Blind obedience is no longer an option after dark times in German administrative history. Instead, the responsibility of the civil servants themselves is growing.

Around 14,000 police officers are stationed at German border checkpoints, with 3,000 more to follow. Their task: to detect and reject people without entry permits at the border. With few exceptions, this now also applies to refugees seeking asylum in Germany. Dobrindt issued this order just one day after taking office, effectively imposing an entry ban on all people without papers.

According to the Interior Minister, officials should immediately adhere to Section 18 of the Asylum Act. This stipulates that foreigners are to be denied entry to Germany if they come from a safe third country such as Poland, Austria, or France. What could hardly sound clearer now comes with a catch: EU law takes precedence over national asylum law. This, for once, is completely undisputed – even within the federal government. Thus, Section 18, touted by Dobrindt, is overshadowed by the Dublin Regulations. And that means: Germany is obligated to accept asylum seekers. At least until it has been clarified through proper procedures who is responsible for them.

"Irritating" reaction to court decision

The Berlin Administrative Court recently reached this conclusion as well. The judges declared the rejection of three Somalis unlawful. The court clearly rejected the government's arguments. The Merz government is insisting on Article 72 of the Treaty on the Functioning of the EU, a kind of exception: According to this, the Dublin Regulations would be overridden if Germany were to find itself in an emergency situation. However, the requirements for such a situation are – as is well known – extremely high. Public order must be seriously threatened, such as in an impending civil war or internal unrest. The European Court of Justice has already clarified this several times. Accordingly, the number of asylum applications cited by the government, totaling 229,751 last year, does not constitute an emergency, the Berlin judges declared. Especially since the numbers had already begun to decline before Dobrindt's instructions.

"Against this backdrop, the decision from Berlin was anything but surprising," says Patrick Heinemann in an interview with ntv.de. The government's reaction to the court's rulings, however, is considerably more irritating. Dobrindt promptly announced that he would uphold the rejections. The order to the federal police remains in place, and Section 18 of the Asylum Act continues to be cited as the legal basis. He assumes that this is within European law, the Interior Minister said. However, Berlin judges have just confirmed the opposite. This, according to Dobrindt, is due to the individual cases involved. Chancellor Friedrich Merz also assumes that he will continue to have a certain amount of "leeway" following the court rulings. What exactly he means by this remains unclear to this day.

Dobrindt's objection is flawed

"I've never seen a federal government so blatantly disregard a court decision, let alone an administrative court," says Heinemann. And for good reason. A constitutional state is unthinkable without the separation of powers. And that means: The executive branch must abide by the law in everything it does – oversight of this lies with the judiciary. The latter, however, includes more than just the highest national or international courts, as Dobrindt recently suggested . "Rather, it is precisely the core task of all German administrative courts to review the legality of the actions of the administration and government," Heinemann clarifies.

Formally speaking, the Berlin decisions are indeed decisions on individual cases. According to Heinemann, this is in the nature of the matter. After all, court decisions generally refer to the parties involved in the proceedings. However, it depends on whether the reasons for the decision are significant beyond the individual case. "And that is clearly the case here." The court ruled that there is no emergency situation in Germany to justify deviating from the Dublin Regulation. The reasons for the decision could hardly be more fundamental. They do not only refer to the three Somalis, but of course also apply if other asylum seekers are at the German border.

Especially since even the single judge originally responsible for the case referred the case to a three-member chamber "due to its fundamental importance," as the "Süddeutsche Zeitung" reported. After all, even the main argument of the police and government in the proceedings was not specifically directed at the Somalis. Dobrindt's recent announcement therefore raises several questions. For example, they intend to "provide sufficient justification" regarding the alleged emergency situation should the European Court of Justice rule on the rejections. However, the presented numbers of asylum applications – which are already declining – already referred to Germany as a whole. And if there were indeed further indications of an emergency situation, why didn't the federal government already present them in the Berlin proceedings to avoid defeat?

Unease among officials grows

"In my opinion, the government's reaction is nothing more than window dressing," Heinemann concludes. "Because the reality is this: The current practice at the border is illegal. This has been legally confirmed and is to continue nonetheless." Since Dobrindt is not personally stationed at the border, this means one thing above all: Day after day, thousands of federal officials are executing an order that—as has been established—is on very thin legal ice. The agency itself is also increasingly concerned about the risky nature of this balancing act.

"I see at first glance that the executive branch is saying something different than the judiciary. I consider this a truly problematic situation that must be resolved as quickly as possible," Federal Police Commissioner Uli Grötsch told the "Rheinische Post." "Our colleagues are now naturally asking themselves: Are we still acting legally, or perhaps even illegally?" Andreas Roßkopf, chairman of the Federal Police in the Police Union, also pointed out in an interview with RTL . Some even feared criminal consequences.

This fear is by no means as "completely absurd" as Dobrindt considers it. While the criminal law hurdles for police officers are high, as Heinemann explains, they fundamentally bear full personal responsibility for the legality of their actions under the Federal Civil Service Act. "The legislature decided to do this in a departure from the civil service law of the Weimar Republic and National Socialism." The claim that personal criminal liability is already excluded because the officers "follow clear instructions," as Dobrindt explains, is therefore incorrect.

Risk of criminal liability increases

Nor can the officers be exonerated from their personal liability in advance. Roßkopf recently demanded a written clarification from the Interior Ministry ruling out legal proceedings against the officers. "That, however, would hardly have the desired effect," says Heinemann. "There is no such free pass."

However, to avoid being caught in a dilemma between being bound by instructions and taking personal responsibility, there is another way: remonstrance. If officers raise their concerns twice, first to their superior, then to the next higher superior, they are generally released from their personal responsibility, as Heinemann explains. In practice, this option isn't used very often. "However, in the case of rejections, they would do well to remonstrate—at least now that the illegality is becoming increasingly obvious."

In addition to disciplinary consequences, criminal liability for coercion in office is a primary consideration. Officers would have to persuade asylum seekers to behave in a certain way by threatening them with violence or serious harm. "This would undoubtedly be the case if they prevented asylum seekers in uniform and armed from crossing the border." However, against this backdrop, police officers would be guilty of coercion in droves. Ultimately, the decisive factor is whether their actions were unlawful—and how obvious this was to the officers.

"This also applies to Dobrindt himself"

"The rough formula is: the more obvious the illegality, the higher the risk of criminal liability," says Heinemann. With the decision of a single administrative court, the risk may currently be manageable. "However, that will change if other administrative courts make similar decisions. And I expect that to happen." Especially since even Federal Justice Minister Stefanie Hubig recently made clear statements along these lines. The government must, of course, adhere to court decisions, she wrote on the ministry's website . "Therefore, it is clear: The emergency decisions of the Berlin Administrative Court must be complied with."

The longer Dobrindt persists with his order for the pushbacks at the border, the greater the predicament for his federal officials becomes. "At a certain point, even protests may no longer help to evade their own responsibility," adds Heinemann. "This also applies to Dobrindt himself." Unlike Donald Trump in the US, government officials here can also be prosecuted for unlawful actions. Ignoring possible further court rulings should therefore not be an option for the minister – both for the sake of the rule of law and his personal interests.