No Right to German Asylum for arrivals via EU countries
Safe third country
Refugees who arrive from a safe country can be refused entry and returned immediately at the border. No Asylum proceedings will be initiated. Judicial petitions do not cause a right for stay or delay. All European Union Countries are, by definition, safe countries. Also Switzerland and Norway.
(Article 16a of the German Constitution ("basic law") as amended in 1993 and explicitely confirmed by the constitutional court in 1996. There the constitutional court stated that legislators could, potentially, even totally void the right to asylum, if they chose so)
(Almost) No one has right to German Asylum proceedings, because they arrive through safe countries
There is no legal basis or need for Germany to accept refugees.
According to Art 16a German constitution, confirmed by Constitutional Court (14. May 1996-2 BvR 1938/93), virtually all arrivals have no right to even petition asylum or to enter Germany. Only airplanes or boats directly from Africa could arrive without passing a safe country on the way.
I am not a legal expert. please verify the sources cited here and the original court decisions cited in the German version of this article.
Safe third country15
By definition of the law, all Member States of the European Union are safe third countries. In addition, a list of further safe third countries can be drawn up. In those countries the application of the 1951 Refugee Convention and of the European Convention on Human Rights (ECHR) has to be “ensured”. The list is an addendum to the Asylum Act and has to be adopted by both chambers of the German Parliament. The Federal Government is entitled to remove a country from that list if changes in its legal or political situation “give reason to believe” that the requirements for a safe third country are not met any longer. At present, the list of further safe third countries consists of Norway and Switzerland.
From its wording, the safe third country concept only applies to the German (constitutional) asylum, but the Federal Constitutional Court found in a landmark decision in 1996 that its scope extends to refugee protection and to other forms of protection as well.16 Accordingly, asylum seekers can be sent back to safe third countries with neither an asylum application, nor an application for international or national protection being considered. Today the safe third country concept has its main impact at land borders.17 Border police shall refuse entry if a foreigner, who has entered from a safe third country, requests asylum at the border. Furthermore, border police shall immediately initiate removal to a safe third country if an asylum seeker is apprehended at the border without the necessary documents.18 Asylum applications may not be accepted or referred to the responsible authority by the border police if entry to the territory is denied, unless it turns out that Germany is responsible for processing the asylum procedure based on EU law, e.g. because Germany has issued a visa. [See more at: AIDA]
AIDA started as a project (September 2012 – December 2015) of the European Council on Refugees and Exiles (ECRE),
4. Asylum Cases (Decision of May 14, 1996)
Article 16a was incorporated into the Basic Law by the 39th Amendment on June 28, 1993. The second paragraph of this Article provides that the right to asylum “may not be invoked by anybody who enters the country from a member state of the European Communities or another third country where the application of the Convention relating to the Status of Refugees and the Convention for the Protection of Human Rights and Fundamental Freedoms is assured.” It was argued that this provision is contrary to Article 1, relating to the protection of human dignity, which is an immutable principle pursuant to Article 79(3) of the Basic Law. The German Federal Constitutional Court rejected this argument and held that the right to asylum does not fall under the principle of human dignity (Article 1), and thus, Article 16a does not violate Article 79(3) of the Basic Law.
On the same day, the Federal Constitutional Court issued two other decisions concerning Article 16a. In its decision 2 BvR 1507/93, 2 BvR 1508/93, the Federal Constitutional Court held that the third paragraph of Article 16a providing for the possibility of rejecting an application for asylum by persons who come from a “secure State of origin”, does not violate Article 79(3) of the Basic Law. In its decision 2 BvR 1516/93, the Constitutional Court ruled that the fourth paragraph restricting the possibility of remaining in the Federal Republic of Germany during the proceedings of an asylum case, if the claim is manifestly ill-founded, is constitutional. Source
Analyse: Verfassungswidrige Einwanderung von Flüchtlingen nach Deutschland. Ein Überblick über die Rechtslage. von Prof. Dr. iur. Karl Albrecht Schachtschneider. Detailed Analysis by an ex supreme court judge.