Friedrich Merz and his long struggle with the fundamental right to asylum

Friedrich Merz wrote an email. It was written in response to the attack in Solingen, in which a Syrian asylum seeker who had not been deported in time allegedly murdered three people. In his letter, which was published on the CDU website last Sunday and attracted a great deal of attention, Merz called on Chancellor Olaf Scholz to make quick decisions to prevent an attack like the one in Solingen in the future. This includes a freeze on the admission of people from Afghanistan and Syria. “We will not accept any more refugees from these countries,” the “MerzMail” said.

Admission freeze and restriction of the right to asylum – just a typical Friedrich Merz?

This demand would be tantamount to a restriction of the individual right to asylum provided for in the Basic Law. The move therefore not only met with resistance from the ranks of the coalition, most recently up to the Chancellor, but also led to questions from within his own ranks. Merz has since relativized his demand, or rather, his party has. On Tuesday evening, the CDU headquarters sent a paper to the federal executive board in which only a “de facto admission freeze” was mentioned. So everything is done, a typical Merz, always a little over the top – and then back again?

Not quite. Friedrich Merz and the basic right to asylum have a long shared history – although the word “shared” is misleading. Strictly speaking, the current CDU chairman has repeatedly protested against Article 16a. And afterwards, he often meant something different.

In March 2000, Merz had just been elected chairman of the Union faction in the Bundestag, succeeding Wolfgang Schäuble, who had resigned because of the donations scandal. The new opposition leader gave an interview to the newspaper “Die Woche”. In the interview, he was also asked about immigration. To achieve this, Merz said, basic conditions had to be formulated. One of them was: “Immigration to Germany must not be increased. That means that if you want to bring in specialists, you cannot leave the right to asylum untouched.” When asked whether this meant the abolition of Article 16a of the Basic Law on asylum, Merz replied: “Yes, in favor of an institutional guarantee.”

The Free State of Bavaria had already put forward a similar proposal in a Federal Council initiative in 1990. According to this, the basic right was to be reduced to an institutional guarantee that was to be subject to a statutory reservation. Legal protection for rejected applicants was also to be restricted. The initiative failed.

“Our generation no longer wants to be held so responsible for our past”

Ten years later, Merz argued with regard to the immigration of skilled workers that Germany needs immigration “from people we want.” But that requires “that we say who we don’t want.” “The old Federal Republic – because of the experiences of National Socialism, which I respect – did not find the courage to do that. Our generation no longer wants to be held so responsible for our past.”

The last sentence in particular brought Merz harsh criticism: These statements were “a slap in the face of the victims and survivors of the Nazi regime,” said the then chairman of the Central Council of Jews, Paul Spiegel. By “shedding responsibility” for the lessons of German history, the “unsuitable attempt is being made to absolve oneself of a specter of guilt that no longer exists.”

In 2002, Merz lost the parliamentary group chairmanship to Angela Merkel. In 2005, he left the Bundestag and went into business. In 2018, Merz returned and, after Merkel announced that he would no longer run for party chairmanship, applied to succeed her. At an event attended by the three candidates, including Merz, the eventual winner Annegret Kramp-Karrenbauer and the then Health Minister Jens Spahn, Merz again spoke about the right to asylum. “I have long been of the opinion that we must be prepared to talk openly about this fundamental right to asylum, whether it can continue in this form, if we seriously want a European immigration and refugee policy.” If there is to be a European asylum policy, German asylum law must be restricted.

The next attack on the fundamental right to asylum should come through the European back door

The comments caused quite a stir – and Merz reacted. “Of course” he was not questioning the basic right to asylum “because we make politics out of Christian responsibility and against the background of German history,” Merz wrote on Twitter. He was only interested in a debate about how the basic right to asylum and European law could work together.

In July 2023, the parliamentary manager of the Union parliamentary group, Thorsten Frei (CDU), presented a proposal that would essentially circumvent Article 16a through the European back door. Frei proposed abolishing the right of individual migrants to apply for asylum on European soil and replacing it with admission quotas. These 300,000 to 400,000 refugees per year should be selected directly abroad and then distributed across Europe.

When Merz was asked about the proposal, he replied that one could assume that the idea had been closely coordinated with him: “This is an important and good contribution to solving a problem that we have seen for years and where there are currently no really good and convincing solutions.” Leading experts such as Konstanz law professor Daniel Thym were critical of the move.

What is remarkable about Merz’s proposals is that they revolve around an article of the Basic Law whose real significance has long since become minimal. In 2024, only just over 1,000 applicants actually received asylum due to political persecution by a state. This was mainly due to the fact that the CDU/CSU and SPD had already agreed in 1993 to restrict Article 16a of the Basic Law, which significantly reduced the circle of possible asylum seekers, among other things because Germany is surrounded by safe third countries.

Even if Article 16a were to be abolished, European law would continue to apply

In addition, according to the Federal Office for Migration and Refugees (BAMF), almost 23,000 people were granted refugee protection because of persecution by non-state actors such as rebel troops. Around 50,000 received so-called subsidiary protection, for example because there was war in their countries of origin. On the other hand, almost 100,000 cases were resolved by the rejection of the asylum application or after being returned to other EU states under the Dublin procedure. The suspected Solingen attacker was originally supposed to have been deported to Bulgaria, which did not happen. However, this was not opposed by the Basic Law, but by obvious failure of the authorities.

The real crux of the matter, however, is that according to legal experts, Article 16a could even be abolished today without much actually changing, because overriding European law would apply anyway. Article 18 of the EU Charter of Fundamental Rights grants the right to asylum in accordance with the Geneva Refugee Convention. And within the European Union, too, there is a directive that effectively guarantees an individual right to asylum, similar to the Basic Law. This raises the suspicion that Merz is using the individual right to asylum and Article 16a as a code for a grievance that would have to be remedied with entirely different measures than amending the Basic Law.