The German parliament's expert legal advisory service has said that the legal basis for Chancellor Angela Merkel's decision to allow a group of refugees to travel into Germany in September 2015 is yet to be clarified.
The 11-page Bundestag report, published on Friday just two days before Germany's national election, centers on the question of whether the parliament should have been allowed to vote on Merkel's decision, or whether it was within her authority to open the border unilaterally.
The constitutional issue at stake is whether the decision was something that "fundamentally" affected German people's basic rights. If it was, according to the German constitution, the parliament would have had a duty to vote on it.
The Bundestag did not answer this question explicitly, but it did refer to a ruling made by the Constitutional Court on the issue of allowing families of refugees to reunite, which said, "it is dependent on the decision of the legislature whether and to what extent there is a limit on the proportion of non-Germans of the entire population allowed to enter." If that it is the case, then the Bundestag should have been allowed a vote on the matter.
In fact, Merkel's decision to open the borders – in the midst of a developing humanitarian crisis as refugees from Syria and elsewhere began to make their way from Budapest towards Germany and Austria on foot – was taken only after consultation with senior government ministers, specifically Interior Minister Thomas de Maiziere and Vice Chancellor Sigmar Gabriel.
Friday's Bundestag report also said that the German government had yet to offer its own legal justification. It added that the Interior Ministry did have legal powers to make the decision unilaterally, but failed to use them.
This legal fog will be seized on by the Alternative for Germany (AfD), the far-right party likely to enter the Bundestag after Sunday's election, whose leading candidate Alexander Gauland has already declared an intention to start a parliamentary inquiry into the "political background" behind Merkel's refugee policy in 2015.
Constitutional lawyer Uwe Lipinski said the issues raised in the Bundestag were a "significant concern."
"The problem is that Merkel, from all that we know, ordered the opening of the borders herself, without asking the parliament beforehand, and without at least making an application to suspend the legal regulations that would pertain to allowing such people to enter," he said.
Those legal regulations, Lipinski pointed out, are made clear in Germany's asylum laws, which say that asylum seekers are to be refused entry if they are traveling from a third country that is deemed safe. The fact that many of the refugees, including families with children, were forced to sleep rough on the streets and parks around Budapest's Keleti railway station at the time was not legally relevant.
Nor was Lipinski convinced by the argument that Merkel was acting to prevent a humanitarian disaster happening at the country's borders. "There is nothing in Germany's constitutional law about such an emergency law," he said. "And I can't think of an article in asylum law that would cover that either."
The other problem that Lipinski saw was the question of the costs to the state caused by Merkel's decision. "Budget powers is one of the most important powers the parliament has," he said. "And if the government says we're going to let not just 10 or 20,000, but over a million people over the border – then there are gigantic costs, and of course that's a breach of the parliament's budget powers."
If Merkel had only let in a small group of people, then this budgetary question would never have been raised, he added, but then again, there is no legal definition of when exactly a monetary limit has been reached and the parliament's rights have been breached. Some estimates put the cost of helping refugees at 20 billion euros ($24 billion), though that does not factor in benefits from migrants earning money and paying taxes.
Whether or not Friday's report will have legal consequences for Merkel is another question. A party's parliamentary faction could bring a constitutional case against the government – but no party has done that yet, and it remains to be seen whether the anti-immigrant AfD takes such a step once it enters parliament.
As for the question of a parliamentary inquiry into Merkel's refugee policy – that would require the vote of 25 percent of Bundestag members – and current polls suggest the AfD is unlikely to gain that many seats.Ben Knight