AfD fails in court bid against Merkel’s refugee policy

Germany’s top court has rejected complaints by the anti-immigration Alternative for Germany (AfD) parliamentary group against the government’s refugee policy.

AfD fails in court bid against Merkel's refugee policy
Photo: DPA

The judges of the Second Senate rejected all three complaints put forward by the AfD unanimously as inadmissible, according to a decision published on Tuesday by the Federal Constitutional Court based in Karlsruhe.

The party faction failed to sufficiently demonstrate that the government’s decision to allow asylum seekers/refugees into the country had “violated or directly threatened” its rights, the judges ruled. 

The complaints raised by the AfD are based on the decision by the German government, under Angela Merkel, to allow asylum seekers to enter Germany during the height of the refugee crisis in 2015. At the time there was a huge increase of people travelling along the 'Balkan route' trying to seek protection in Germany.

Merkel said the situation was a humanitarian emergency. The AfD is one of the biggest opponents of this decision.

In its complaints registered in April this year, the AfD parliamentary group had bemoaned that the Bundestag didn't allow other parties to participate in the decision making process when it came to allowing for the entry of refugees. In doing so, stated the AfD, they had violated their so-called participation rights.

At that time, however, the AfD itself was not yet sitting in the Bundestag; the party only entered the government in 2017. 

SEE ALSO: Three crisis that have rocked Merkel since her re-election


The court ruled that the AfD applications filed in so-called Organstreit proceedings (cases relating to disputes between constitutional bodies or institutions) were inadmissible. The court said the AfD group sought “the upholding of general applicable law and the obligation to perform a specific action” – that being the refusal to allow asylum seekers to enter at the borders. 

However, Organstreit proceedings aim for the clarification of conflicts of competence and do not serve to “review the objective constitutionality” of an institution’s specific action, the court said in a statement.

'Migration management act'

The AfD group stated that, by allowing certain asylum seekers to enter Germany, the government violated the participation rights of the Bundestag insofar as these also constituted basic political decisions.

According to the group, all significant issues in connection with migration should be regulated in a “migration management act”. However, in its complaint, the group also stated its unwillingness to participate in the introduction of such an act in the Bundestag.

In its complaints, the AfD parliamentary group sought a declaration to the effect that allowing the migration of foreign nationals from specific states “would only be permissible on the basis of a parliamentary act that was lawfully enacted prior”. 

Lastly, the group sought a declaration by the government that under certain conditions, asylum seekers are to be “refused entry at the borders”.

SEE ALSO: Did welcoming refugees usher in Merkel's final act?

Merkel's decision

Immigration – and specifically Merkel's decision not to close the border to more than one million asylum seekers at the height of the refugee influx in 2015 and 2016 – continues to divide the political landscape, as well as voters. 

Voter anxiety over the policy swelled support for the AfD, which captured nearly 13 percent of the vote in the September 24th, 2017 general election.

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What Germany’s plans for a points-based system mean for foreigners

To tackle its ever-widening skills gap, Germany wants to encourage talent from aboard to move to the country by introducing a points-based immigration system. Here's what foreigners need to know about the changes.

What Germany's plans for a points-based system mean for foreigners

What’s a points-based system?

A points-based system is an immigration model where foreigners have to score above a certain threshold of points in order to obtain a residence or work permit in a country. The exact scoring system is set by the government, but can include factors like language skills, family connections to the country, specific qualifications or work-related skills, or the amount of money in your bank account. 

Points-based systems can also be known as “merit-based systems”, because there tends to be a pretty big emphasis on what you can offer a country in terms of education or skills. 

The model was first introduced in Canada way back in 1967 as the country tried to move past a system based on race and nationality to one that favoured language fluency, youth and educational or vocational background. A similar step was taken in Australia just a few years later in 1972 and, since Brexit, the UK has also introduced its own points-based model. 

How does this relate to Germany?

When the new ‘traffic-light’ coalition of the Social Democrats (SPD), Greens and Free Democrats (FDP) took office last December, the parties pledged to reform Germany’s immigration system and bring a fresh cohort of workers into the country.

“In addition to the existing immigration law, we will establish a second pillar with the introduction of an opportunity card based on a points system to enable workers to gain controlled access to the German labour market in order to find a job,” the coalition agreement read.

This would apply to third-country nationals who don’t otherwise have the right to live and work in the country. 

READ ALSO: EXPLAINED: What Germany’s new government means for citizenship and naturalisation

German language course poster

A sign advertising German courses. Language skills can count towards points in a points-based system. Photo: picture alliance / dpa | Bernd Wüstneck

FDP migration specialist Dr. Ann-Veruschka Jurisch, who is working on these reforms, says the policy is driven by Germany’s desperate need for workers. 

“The Liberal Party (FDP) is convinced that we need more labour migration,” she told The Local. “We do have a lot of options for coming into Germany as a labour migrant – but it’s a bit complicated – and if you want to come to Germany to search for a job and you don’t come from an EU country, it’s much more difficult.”

That’s why the coalition is aiming to offer a second route for people who don’t have job lined up in Germany, but who otherwise have the skills or talent to find one. 

What will this look like?

The plans for the points-based system are still at an early stage, so the exact criteria haven’t been worked out yet.

What’s clear at this stage, however, is that the points-based option would run parallel to the current model, which generally permits people with a concrete job offer in a skilled profession to come and work in the country. 

“It’s about (people having) a good opportunity to come to Germany when they have either a job offer in sight or a direct job offer,” Chancellor Olaf Scholz (SPD) said in response to parliamentary question in January. 

“Next to that, we want to achieve a further possibility for talent – for qualified men and women whose skills we need in Germany, who still don’t have a work contract but, if given access, could use that opportunity. That’s what we’re talking about with this Canadian points-based system. It shouldn’t replace our current system, but rather improve it.”

In short, that means that people with a job lined up won’t be disadvantaged – but there will be alternative routes for those without them. It also won’t affect the EU blue card scheme

READ ALSO: ‘I finally feel at home’: How Germany’s planned changes to citizenship laws affect foreigners

Will people need formal qualifications? 

Probably not – though it will obviously depend on the sector someone works in and their level of experience in their chosen field.

“I personally am convinced that you shouldn’t place too much emphasis on formal qualifications, because it’s very complicated getting your formal qualifications recognised in Germany,” said Jurisch.

“A medical doctor, for example, is one where you can’t say, ‘Okay, you’ve got some experience so we don’t need to see your papers.’ But there are a lot of other jobs which do not have this restriction and they are not formalised but rather based on practical experience.”

Carpenter wood

A carpenter sands down a block of wood in Cologne. Photo: picture alliance/dpa | Federico Gambarini

The issue of recognising qualifications is also a problem that the traffic-light coalition has set their sights on solving during their time in office.

At the moment, the process of getting qualifications officially recognised in Germany is done on a state-by-state basis, so somebody who gets their degree recognised in Brandenburg may have to redo the entire process again in Bavaria, for instance.

According to Jurisch, there have already been conversations between the Ministry for Labour and Social Affairs and the Ministry of Education on the issue, and Labour Minister Hubertus Heil (SPD) has also promised to take steps to solve it.

But, she said, it’s complicated: “I’ve started to dive into this issue, and the more I dive into it, the more complicated it becomes – so there are no silver bullets.” 

How many workers are needed – and where? 

In order to plug its labour shortages, Germany needs around 400,000 new workers every year, according to the Federal Employment Agency. In 2020, Germany’s net migration was just 200,000 and 150,000 people of working age entered retirement – which means the country is currently falling well short of its targets. 

“We have shortages everywhere,” Jurisch said. “We need 400,000 new workers every year, and these people won’t be born in Germany – or if they are, they won’t grow up for another 20 years.

“We haven’t managed to get more women into the labour market, or they work part time, so I don’t think this will make a big difference, and I don’t think we will close the gap by training people.”

In this sense, it seems that immigration is the only option for filling major staff shortages in almost every profession. 

“Whoever I talk to, be it nurses, nannies, IT workers, industrial workers, teachers, lawyers – everywhere we have a shortage,” Jurisch said.

staff shortages Germany

A sign outside a restaurant informs customers of a closure due to staff shortages. Photo: picture alliance/dpa | Stefan Sauer

When will the points-based system be introduced?

Unlike with the plans to reform citizenship, which the SDP-led Interior Ministry wants to achieve by the end of the year, there’s no firm timeline in place for the points-based system.

However, the FDP is fighting for the policy to be given higher priority and would like to introduce the new visa system before the next federal election in 2025. 

“I hope it will be done in this legislative period,” said Jurisch. “I’m pushing to get it a little bit higher up on the agenda.” 

READ ALSO: INTERVIEW: ‘Changing German citizenship laws is a priority’