Asylum Without Control? Europe must protect people who are genuinely persecuted. But it does not follow that every person seeking protection must be able to decide for themselves in which European country their procedure takes place. This is precisely where a debate begins that has been stuck for far too long between moral catchphrases and political maximalist demands.

Since June 12, 2026, the new rules of the European Migration and Asylum Pact have been in force. They change controls at the external borders, accelerate certain procedures and expand the possibilities for linking protection procedures with safe third countries. Europe is therefore already restructuring its asylum system. The debate about “asylum without control” is thus encountering a system that is already changing. The decisive question is therefore no longer whether change is necessary. The decisive question is what a protection system can look like that remains humanitarian while becoming manageable again.

A Debate Bigger Than a Catchphrase

This fundamental question received renewed attention through a commentary by Marc Felix Serrao in WELT. The headline itself formulates a far-reaching thesis: “Only ending the individual right to asylum can save Europe.” The full article is behind a paywall. The fundamental question behind it is therefore more interesting than a retelling.

Can Europe protect refugees while also deciding for itself where protection procedures take place, who may stay and who must leave the European Union again after a legally final rejection?

In principle, yes. However, this first requires distinguishing between what is surprisingly often thrown into one conceptual pot in the political debate: the German constitutional right to asylum, European asylum law, international refugee protection and the prohibition on returning people to persecution or inhuman treatment.

The German Constitutional Right to Asylum Has Long Been Restricted

Article 16a of the Basic Law begins with the familiar sentence: “Politically persecuted persons enjoy the right to asylum.” But that is not where the provision ends.

Paragraph 2 already stipulates that, as a rule, this fundamental right cannot be invoked by anyone entering from a member state of the European Union or another safe third country. This rule is also expressly set out in Section 26a of the Asylum Act.

The individual German constitutional right to asylum has therefore been substantially narrower for decades than the general term “right to asylum” might suggest.

Even an amendment or repeal of Article 16a would not simply eliminate international refugee protection. The applicable Asylum Act expressly distinguishes between entitlement to asylum under the Basic Law and international protection. The latter includes, in particular, refugee protection and subsidiary protection under European law.

In addition, there is the EU Charter of Fundamental Rights. Article 18 guarantees the right to asylum in accordance with the Geneva Refugee Convention and the European treaties. Article 19 protects against collective expulsions and prohibits deportation, expulsion or extradition to a state where, in particular, there is a serious risk of the death penalty, torture or inhuman or degrading treatment.

The Geneva Refugee Convention also contains a central protection guarantee in the principle of non-refoulement. As a rule, people may not be sent back to a state where dangers to their life or freedom threaten them because of a protected ground of persecution.

ℹ️ Asylum Is Not Always the Same

The German constitutional right to asylum under Article 16a of the Basic Law is only one part of the protection system. Alongside it are international refugee protection, subsidiary protection, European fundamental rights and human-rights-based prohibitions on refoulement. An amendment to the Basic Law alone would therefore not eliminate this network.

Anyone calling for “the abolition of the individual right to asylum” must therefore specify what they mean. A constitutional amendment in Berlin does not make European law or international obligations disappear into thin air.

Europe Has Already Changed Its Asylum System

The political debate sometimes still sounds as though Europe faced a choice between the existing system and a completely new order. In reality, a substantial part of this new order has already been in force since June 12, 2026.

The EU Migration and Asylum Pact consists of ten legal acts and is intended, among other things, to create common procedures for registering and screening irregular entries, faster asylum and return procedures, clearer rules on responsibility and a solidarity mechanism between the member states.

Identity, security concerns, health issues and particular vulnerability are to be assessed more extensively at the external borders. Border procedures apply to certain applicants, for example from certain countries of origin with low recognition rates, in cases involving security concerns or where identity and origin have been misrepresented.

This is a significant change to the system. The decision on an application for protection is to be moved closer to the external border, rather than having a large part of the assessment take place only deep inside the European Union.

In this way, Europe is attempting to separate protection assessments more clearly from de facto entry.

The Safe Third Country Could Become the Decisive Lever

Even more far-reaching is a change that was already adopted in February 2026. With Regulation (EU) 2026/463 the European concept of the safe third country was expanded.

A member state can now apply this concept under various conditions. The regulation names three alternative points of connection: a connection between the applicant and the third country, prior transit through the third country concerned, or an agreement or arrangement between the European Union or member states and that third country. The prescribed protection conditions must also be met.

Politically, this is highly significant: An application for protection need not necessarily mean that the entire substantive procedure must take place within the European destination country sought by the applicant.

This does not mean, however, that any state can simply be declared a “safe third country” and people sent there without further examination.

The EU Asylum Procedures Regulation sets conditions for safety and effective protection. Among other things, there must be no relevant persecution or serious harm there, the principle of non-refoulement must be respected and it must generally be possible to obtain effective protection.

The applicant’s individual situation also remains relevant. They can argue that a third country is not safe for them specifically because of their personal circumstances.

If a transfer to the third country concerned cannot take place, the European framework provides further procedural safeguards. It is therefore not a complete abolition of individual assessment.

Rather, it is an attempt to reorganize the place and responsibility for protection.

Falling Numbers Do Not Solve the Structural Problem

A serious debate must also acknowledge a development that does not fit particularly well with permanent doomsday scenarios.

In 2025, according to Eurostat, around 669,400 first-time applications for international protection were lodged in the European Union. The figure had been 912,400 the year before. The number thus fell by 27 percent.

So in August 2026, Europe is not facing a continuously rising number of new asylum applications. That should be stated clearly.

It would nevertheless be a mistake to conclude that the structural problem has disappeared. The functioning of an asylum system is not determined solely by the number of applications. It is equally decisive how quickly the state can determine who needs protection, who has no entitlement and whether a final negative decision can subsequently actually be implemented.

The last point in particular reveals a clear gap.

In the fourth quarter of 2025, according to Eurostat, 117,545 third-country nationals were ordered to leave an EU state. In the same quarter, 33,860 people were returned to third countries following a corresponding departure decision.

These two figures must not simply be calculated into a supposed deportation rate. They do not necessarily refer to the same people or the same decision period. Nevertheless, they show the scale of the enforcement problem.

An asylum and return system loses some of its steering effect when a legally final rejection has no timely practical consequence in many cases.

Asylum Without Control? The System’s Fundamental Contradiction

European refugee protection is intended to help people who genuinely need protection. The criticism of “asylum without control” begins where access to protection and actual control diverge. In practice, however, access to this protection often also depends on whether a person can reach European territory or an external European border at all.

This creates a problematic mechanism.

It is not necessarily the person in greatest danger who first gains access to a European protection procedure, but rather the person who is geographically, financially and organizationally able to reach Europe in the first place.

Anyone able to cross several countries and pay smugglers has different options from a persecuted person who lacks those means. This is not a moral judgment of the people who set out. It is a weakness of a system that effectively links access to protection closely to successfully reaching the European border.

A protection system should operate as far as possible according to the need for protection. An immigration system must remain controllable according to democratically established rules.

When the two areas increasingly merge, the state loses some of its ability to steer, while geography, money and the services of criminal smugglers gain importance.

Protection and Control Are Not Opposites

For years, political debate has suffered from an artificial dichotomy. On one side are supposedly those who stand for humanity. On the other are those who want to control borders.

This dichotomy is unconvincing.

A constitutional state can protect people from persecution while also controlling who enters its territory and who is allowed to remain permanently after a procedure governed by the rule of law.

It can grant protection to someone who is genuinely persecuted for political reasons while determining that another applicant does not meet the requirements for international protection.

A functioning constitutional state must be capable of doing both.

Because when negative decisions are rarely enforced on a lasting basis, it is not only part of the population that loses trust in the system. The special significance of protection status itself also becomes blurred.

Those who are genuinely persecuted also have an interest in ensuring that a distinction is made between the need for protection and general migration.

What could a new European protection model look like?

Europe does not have to abolish refugee protection. A new model against Asylum Without Control must instead further break the link between irregular entry and de facto access to an often lengthy procedure within a specific country of choice.

A viable model would have to combine several elements.

First: protection assessments as early as possible.
Registration, identity checks, security screening and an initial legal classification should take place as early as possible in the procedure and, insofar as legally and practically possible, at the external border.

Second: swift procedures.
Those who are clearly entitled to protection must not be left in uncertainty for years. Conversely, an unfounded application should not effectively lead to permanent residence through procedures lasting for years.

Third: safe third countries.
If a person can obtain effective protection in a genuinely safe country and the European legal requirements are met, applying the safe-third-country concept must be practically possible. Safety must not exist only on paper.

Fourth: controlled humanitarian admission.
At the same time, Europe can exercise greater control over which particularly vulnerable people are admitted through resettlement and other legal protection routes. This would partly separate humanitarian protection from the ability to first make one’s way irregularly to a European border.

Fifth: final decisions must, as a rule, have consequences.
A functioning asylum procedure needs a beginning and an end. If international protection is finally refused and there are no legal prohibitions on deportation or other grounds for remaining, return must, as a rule, also be practically possible.

None of this works without the rule of law.

Addition of 8 August 2026: Return criminals and persons posing a security threat more consistently

A credible asylum and migration system must also ensure that the state enforces its residence law against persons who pose significant dangers or who do not leave despite having no right to remain. This concerns in particular third-country nationals who are legally obliged to leave, foreigners who have repeatedly or seriously committed criminal offenses, and persons who pose a significant danger to public safety or the free democratic basic order.

My assessment is therefore clear: If, following an individual review in accordance with the rule of law, there is an enforceable obligation to leave and neither prohibitions on deportation nor other compelling legal obstacles apply, the return must be carried out consistently and as swiftly as possible. A state loses credibility when it identifies threats, makes final decisions and then fails to implement them for a long time.

German residence law already provides for corresponding instruments. Under Section 53 of the Residence Act a foreign national may be expelled if their residence endangers public safety and order or other significant interests of the Federal Republic and, after weighing the individual circumstances, the public interest in their departure outweighs it. Section 54 of the Residence Act classifies, among other things, serious and certain repeated criminal offenses as well as conduct endangering security or of a terrorist nature as particularly serious or serious grounds in the public interest for expulsion.

For particular danger situations, the law goes even further: Under Section 58a of the Residence Act an immediately enforceable deportation order may be issued where, based on facts, there is a particular danger to Germany’s security or a terrorist threat. Here too, prohibitions on deportation remain binding.

Return policy was also tightened at the European level in 2026. The European Parliament approved new rules in June that simplify and accelerate return procedures and provide for stricter requirements for persons who pose a security risk. At the same time, fundamental rights, individual assessment, the principle of non-refoulement and the prohibition of collective expulsions remain in force.

Consistent returns and the rule of law are therefore not contradictory. Anyone who genuinely wants to preserve protection for those who are actually persecuted must accept that residence law also has limits and that final decisions must actually be implemented against persons without a right to remain.

The third country must not become a legal dumping ground

The greatest danger is obvious, particularly with third-country models. Europe must not seemingly resolve its responsibility by simply taking people to countries whose actual security and human rights situation no one then seriously monitors anymore.

“Safe third country” must not be a political label. Safety must be verifiable.

This includes effective protection procedures, humane conditions, compliance with the principle of non-refoulement and the possibility of asserting individual risks.

Those who are genuinely persecuted must not end up, after passing through several stations, precisely where they face persecution or serious human rights violations.

That is an indispensable red line.

But the other boundary should also be clear: The claim to protection from persecution does not automatically entail an unlimited right to choose the country of permanent residence oneself.

Europe must establish a functioning order between these two principles.

Not less law, but functioning law

The blanket demand for a complete end to the individual right to asylum therefore falls short. The answer to Asylum Without Control cannot be to generally dismantle protection rights. It must be to clearly distinguish between different forms of protection and to take seriously the interplay between German constitutional law, European law and international refugee law.

Europe does not need less rule of law. Europe needs a protection system that becomes manageable, faster and more enforceable again.

Those in need of protection must receive protection. Rejected applicants must be able to leave Europe, provided that no legal reasons stand in the way. Safe third countries must actually be safe. Decisions must remain subject to review. At the same time, the European states must have greater control over where protection procedures take place and by what route people are admitted for permanent residence.

The EU Migration and Asylum Pact, in force since June 2026, and the expanded rules on safe third countries show that the European Union itself is now attempting to reorder this balance.

The decisive reform does not consist in denying protection to persecuted people. Europe must once again draw a clearer distinction between protection and uncontrolled migration. The need for protection requires a procedure governed by the rule of law. Migration requires political management. And a final decision must ultimately also have practical significance.

A Europe that controls its borders does not betray its values. A Europe that can neither reliably decide who may stay nor enforce its own decisions, on the other hand, ultimately endangers the political acceptance of precisely the protection system it seeks to preserve.

Humanity without control loses acceptance. Control without humanity loses its legitimacy under the rule of law. A viable European protection model needs both.

Addition of 8 August 2026: The article was expanded to include the section on the consistent return of criminals legally obliged to leave and persons who pose a significant danger to public safety. The legal limits imposed by individual assessment and prohibitions on deportation remain expressly taken into account.