The Greens want to ensure that so-called safe countries of origin continue to be determined by law by the Bundestag and Bundesrat. The new regulation, which allows a federal government regulation to suffice, violates the Basic Law. The Green Party faction in the Bundestag therefore filed a lawsuit with the Federal Constitutional Court this week.
The black-red new regulation in the asylum law took place in December and eliminated the Greens’ previous veto position. Thanks to their strong position in the Federal Council, they were often able to prevent new countries of origin from being determined. At times, the Greens sat in so many state governments that no majorities could be achieved in the Federal Council without states co-governed by the Greens.
In its lawsuit, the Green Party’s parliamentary group can now only complain about the elimination of the Bundestag. If the government decides on the “safe countries of origin”, there will no longer be any public debate in the future and the parliamentary opposition will no longer be involved, criticize the Greens. If their lawsuit is ultimately successful, the Federal Council’s veto position would be restored.
So far, in addition to the EU states, the Bundestag has designated ten other states as “safe countries of origin”: Albania, Bosnia and Herzegovina, Georgia, Ghana, Kosovo, Macedonia, Montenegro, Moldova, Senegal and Serbia. Four more countries are expected to follow soon: Algeria, Morocco, Tunisia and India.
The Greens rely on the Basic Law
The classification as a “safe country of origin” has primarily symbolic meaning. Applicants from these countries should be signaled that the recognition rates are very low and that they should not even start their journey. There are also disadvantages in terms of legal protection, accommodation and job opportunities. However, asylum applications are examined individually. Applicants can rebut the presumption that the country of origin is safe for them.
In its lawsuit, the Greens faction relies on Article 16a paragraph 3 of the Basic Law. There it is actually guaranteed that safe countries of origin are determined “by law that requires the approval of the Federal Council”.
However, the black-red government coalition argues that Article 16a only applies to the basic German right to asylum, which was largely abolished in 1993 and only protects refugees who arrive by plane or ship. According to the coalition, the federal government can determine the safe countries of origin for all other refugees to whom EU asylum law applies without violating Article 16a.
How the process will end is unclear. However, what speaks against the Greens’ view is that the regulation on “safe third countries” in Article 16a clearly only applies to German asylum law. Refugees who enter Germany via a safe third country cannot currently receive German asylum, but they can certainly receive asylum under EU law. Only the AfD and parts of the CDU/CSU see it differently.
A new situation will arise in June 2026 anyway. After the reform of the Common European Asylum System (GEAS), the EU can then draw up its own list of “safe countries of origin”. Then it will no longer be important that the entire national territory and all population groups are safe. The Greens still consider their lawsuit to be important because the EU states can designate additional “safe countries of origin” nationally. In addition, it is still uncertain whether the EU can even agree on safe countries of origin.
It is still unclear when the Federal Constitutional Court will decide on the Greens’ lawsuit. It could take years.