Flexible borders: The fiction of non-entry and asylum seekers in Germany

Border definition is a central component of state externalisation of refugee protection around the world. According to the 1951 UN Refugee Convention, refugees have the right to seek asylum upon crossing an international border into another state. Host states are then required under international law to provide certain protections and services to asylum seekers while their applications are being processed and if their application is successful. In order to avoid the obligation of providing such protections and services, many states take actions to inhibit asylum seekers from crossing into their territory.

While there are many methods states employ to inhibit asylum seeker arrivals, one of the most creative is transit zones.

Usually found in international airports between arrival gates and passport control, transit zones are fluid areas where the traditional rules of state territorial borders do not apply. Although a traveller has physically arrived within a state’s official territory as defined by state borders, she is not considered to have legally entered until her visa has been checked and she has been cleared by border patrol officers at immigration control.

While most states only use transit zones to control immigration at airports, Germany has extended this control to include land crossings. By employing transit zones on land borders, Germany facilitates the externalisation of responsibility for processing asylum seeker claims to its neighbouring European states.

Flexible borders and asylum seeker externalisation in Germany

The 1997 German Aufenthaltsgesetz (Residency Law) paragraph 13, section 2, defines arrival in Germany as only occurring once a migrant has been legally approved to enter the country, regardless of the migrant's physical presence in the territory. This idea of physical arrival, but not legal arrival is known as the “Fiktion der Nichteinreise” (fiction of non-entry).

While originally created to govern transit zones in airports, the Christian Democrats (CDU) and the Christian Social Union (CSU) agreed in their 2018 Three Point Plan to extend the fiction of non-entry to include land crossings.

The expansion of the law came as a direct response to the 1.2 million refugees who crossed into Germany in 2015/2016 and a renewed focus in German refugee policy on upholding the Dublin Regulation and deporting failed asylum seekers to other EU member states or the asylum seeker's country of origin.

According to the Residency Law and the 2018 CDU/CSU interpretation of the law, transit zones are not confined to a set area, but rather are linked to the individual who crossed the border. Essentially, the transit zone could extend as far into Germany as the individual travels and remains valid until the immigration status of the individual is determined by border patrol and immigration authorities. This includes if the migrant is taken to an asylum seeker processing centre (so-called AnKER centers or other "Erstaufnahmeeinrichtung" processing centre) and could last as long as 18 months. If the individual is deemed to have entered Germany illegally, then she would be sent back to the first EU state in which she arrived (in accordance with the Dublin Regulation). If the EU state lies within the Schengen Zone, then the asylum seeker is sent back as if she had never entered the Schengen Zone, therefore ensuring that she must pass through immigration control upon arrival in the EU state. This means that the transit zone, and by extension Germany's border, has not only become flexible enough to extend into Germany, but also across EU member states.

What does this mean for transparency, human rights, and legitimacy?

The existence of the fiction of non-entry and the fact of its use beyond airport arrival terminals indicates the fluidity of Germany’s borders. The German border is no longer defined by traditional territorial boundaries, but rather by individual legal determination. This means that arrival is no longer an objective determination based on physical presence, but rather a subjective legal determination at the discretion of border patrol and immigration officers. The shifted focus from objective to subjective determination decreases the transparency of the asylum application process by obscuring when asylum seekers can lodge an application and access to rights usually afforded to asylum seekers. Furthermore, the shifted focus increases the power of individual border patrol officers to determine arrival and subsequent ability to apply for asylum in Germany.

Additionally, the fact that asylum seekers can be held in AnKER centres for up to 18 months and denied access to legal protections demonstrates that the new interpretation of the Residency Law (Article 2, Paragraph 13) is an "instrument of disenfranchisement" which restricts human rights for those seeking asylum.

On an international level, the use of transit zones to legally justify restricting asylum seeker movements and access to rights challenges the current statist approach to international refugee protection. If borders continue to be the primary delineator of "refugee" versus "internally displaced person", and borders can be defined at the will of the host state, then the integrity of the international refugee regime is threatened. While sovereign states have an obligation to maintain control of their borders, legal fictions such as the "Fiktion der Nichteinreise" ultimately place asylum seekers at risk.

Short biography

Kelly Soderstrom is a PhD Candidate in International Relations at the University of Melbourne. She holds a Bachelor's degree in Political Science/International Relations from Carleton College and a Master's degree (distinction) in International and European Politics form the University of Edinburgh. Her PhD thesis examines responsibility in the context of Germany's response to the 2015 refugee crisis. Her research interests include German and EU asylum policies, European integration, identity, and citizenship. In 2018, she was awarded a postgraduate fellowship at the European University Institute in Florence, Italy.