Legal Walls, Silent Violations: How Germany and Greece Are Quietly Redefining EU Asylum Norms

Guest post by Ridam Gangwar. Ridam is a student researcher and former UN Millennium Fellow, Dr. Ram Manohar Lohiya National Law University, India  

At Europe’s borders, control is enforced not only through fences and laws but also through quiet decisions that shape who is heard and who is turned away. Border criminologies reminds us that practices of control are normalized through everyday decisions of states under this framework. In July 2025, Greece suspended the registration of asylum claims from nationals of Pakistan, Bangladesh, Egypt, and Syria, citing domestic pressures and resource constraints. At the same time, Germany renewed internal border controls with Poland under the Schengen Borders Code. Though both incidents appear unrelated and context-specific, they are part of a growing pattern of systemic divergence from foundational EU legal norms in migration governance. 

This post examines how national-level derogations, cloaked in procedural legality, represent a deeper erosion of mutual trust and constitutional coherence in the EU asylum system. 

Constitutional Trust in Disrepair 

Mutual trust is a cornerstone of the Common European Asylum System (CEAS), premised on the idea that all Member States uphold shared standards. The Court of Justice of the European Union (CJEU), in NS v United Kingdom (Joined Cases C-411/10 and C-493/10), clarified that trust among Member States is conditional on respect for fundamental rights. 

Yet, Germany’s extension of border checks under Article 25 of the Schengen Borders Code goes beyond temporary necessity. Article 25 which is meant to address a specific and immediate threat, applied for border checks as an emergency provision for up to two years.  The logic is clear: border checks are an emergency brake, not a permanent fixture. And if used beyond that it undermines the very fabric of Schengen cooperation. Germany reinstituted border controls in Poland and the Czech Republic in October 2023, and at the Austrian frontier through November 2024 and its repeated renewals risk institutionalizing internal borders. This is not just a technical breach; it chips away at the political trust that holds the Union together. If one of its core members can normalize exceptional measures, others will follow, and the principle of free movement the EU’s most tangible promise to its citizens will be hollowed out thus shifting EU from a community built on openness into one held together by suspicion and unilateralism. Likewise, Greece’s suspension of asylum registration contradicts Article 6(1) of Directive 2013/32/EU (Asylum Procedures Directive), which mandates that applications for international protection must be registered within six working days. Such blanket denials result in legal invisibility, excluding applicants not only from rights but from recognition itself and, it sets off a domino effect weakening the credibility and uniformity of the entire EU asylum regime, as others find cover to follow suit. 

Unilateral Legalization: Wrapping Violations in Procedure 

Germany and Greece employ a now-familiar technique: what may be substantively unlawful is domestically legalized through decrees, administrative orders, or internal ministerial announcements. This “unilateral legalization” uses formalism to shield policy regression from legal scrutiny. Germany’s rolling “temporary” border checks are a case in point constantly repackaged through fresh ministerial orders to maintain a façade of legality. Greece’s suspension of asylum registration likewise relies on internal administrative acts rather than explicit legislation, insulating measures from parliamentary or judicial debate. In both situations, domestic legality is weaponized not to protect rights, but to fortify their erosion. However, EU constitutional law is not merely concerned with form. As the CJEU held in Scotch Whisky Association (C-333/14), national measures must comply with principles of necessity, proportionality, and consistency with EU law. Procedural legality at the national level does not immunize violations of substantive rights. For example, Hungary’s asylum “transit zones” formally regulated under domestic decrees were struck down in Commission v Hungary (C-808/18) precisely because they violated substantive guarantees under EU asylum law. The lesson is clear: ministerial decrees and administrative orders may cloak policies in legality domestically, but they remain open to challenge when they undermine EU law’s core protections. 

Complicity by Silence 

Perhaps most concerning is the institutional silence of the European Commission. Despite prima facie breaches of EU law, their Infringement proceedings under Articles 258–260 TFEU take years. For instance, the case concerning Hungary’s asylum policies began in 2015 and took over five years to reach a judgment. Delayed infringement procedures under these Articles are inadequate in migration contexts where time-sensitive harm accrues rapidly. In Commission v Hungary (C-808/18), the Court acknowledged systemic denial of access to asylum. Yet enforcement remains tepid. This reluctance to act sends a damaging message: Member States may violate asylum norms with impunity. Whether In Lesbos or on Bavarian Frontier, the mechanism is the same: rights exist in theory, but denial of procedural recognition suspends personhood. Without recognition in the legal system, their personhood is suspended. In Greece, thousands of individuals now exist in a state of legal invisibility: present but uncounted, within jurisdiction but outside justice. Thus, CEAS is not collapsing in one dramatic moment, but fragmenting through a thousand cuts 

Towards Recalibrating Enforcement 

The EU must abandon its passive stance and reclaim legal coherence through timely infringement actions, conditional funding mechanisms, and emergency judicial oversight where constitutional principles are under threat. Where Member States hollow out asylum obligations while claiming legal cover, the Commission must challenge not only the substance of violations but the strategic misuse of procedure itself. Border controls must be time-limited, reviewable, and publicly justified under EU law not domestically declared and indefinitely extended. Asylum registration must be treated not as administrative generosity, but as a core legal gateway to protection, inviolable regardless of political mood. Without such enforcement, “mutual trust” becomes a euphemism for institutional complicity. The proposed New Pact on Migration and Asylum does little to rectify this enforcement gap. Its non-binding solidarity mechanisms risk further incentivizing unilateralism, rather than reinforcing common standards.  

Conclusion: Sovereignty vs. Solidarity 

Restoring coherence in EU asylum law requires constitutional honesty—calling out violations even when politically inconvenient. Mutual trust cannot rest on diplomatic silence but on enforceable guarantees of compliance. The European legal order risks normalizing defensive sovereignty if ministerial discretion is allowed to eclipse asylum as a right. If asylum means anything, it must remain invocable by the vulnerable, not suspended by states in moments of fear. 

Border criminologists remind us that borders are not static lines but instruments of control, producing categories of legality and illegality. EU’s turn to defensive sovereignty is not an anomaly but part of a wider governance pattern. The task, then, is to insist on accountability and to remind legal orders in Europe that solidarity cannot be optional when human dignity is at stake. 

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