Concept and legal foundations of border protection
Border protection refers to all measures, facilities, and legal norms that serve to protect and monitor a country’s national borders. The aim of border protection is to prevent unlawful border crossings, ensure territorial integrity and public security, and curb cross-border crime. Border protection comprises both statutory provisions and executive authorities, encompassing national, supranational, and international law dimensions.
Legal provisions at the national level
Duties and powers of border protection
In Germany, the legal basis for border protection is primarily derived from the Basic Law (Grundgesetz, GG) and the Federal Police Act (Bundespolizeigesetz, BPolG). According to Article 73 (1) No. 5 GG, the federal government has exclusive legislative power regarding border matters, including border police.
Federal Police Act (BPolG)
The Federal Police Act particularly regulates the duties, organization, and powers of the Federal Police in the field of border protection. The central tasks are:
- Monitoring Germany’s national borders (§ 2 (2) No. 1 BPolG)
- Prevention of dangers arising from unauthorized border crossings (§ 3 BPolG)
- Control and search measures at the internal borders in accordance with the Schengen Implementation Convention (§ 2 (2) No. 4 BPolG)
- Cooperation with other authorities including international institutions (§ 2 BPolG)
The Federal Police are authorized, within the framework of border protection, to carry out identity checks, searches, stop-and-question powers, as well as the use of police coercion.
Criminal and regulatory provisions
Violations of provisions regarding border crossing and residence are regulated in the Criminal Code (StGB) as well as the Residence Act (AufenthG) and Asylum Act (AsylG). Unlawful border crossing can be classified as a regulatory offense or a criminal act (see § 95 (1) Nos. 3 and 4 AufenthG).
Organization and allocation of responsibilities
In Germany, the Federal Police perform the majority of tasks. For certain responsibilities at seaports and airports, other authorities are also responsible, including customs administration and the Federal Office for Migration and Refugees (BAMF), especially in the context of cross-border movement of goods and people.
Border protection in the European and international context
Schengen border regime
With the entry into force of the Schengen Implementation Convention (SDÜ) and the Schengen Borders Code (Regulation [EU] 2016/399), the free movement of persons without controls at internal borders generally applies within the Schengen area. However, border protection at the external borders of the European Union (EU) is subject to strictly regulated entry and exit requirements, as well as security measures.
Schengen Borders Code
The Schengen Borders Code regulates the control of the external borders of all EU and Schengen states. Among other things, it defines:
- Type and scope of border checks
- Rights and obligations of border protection authorities
- Conditions for the reintroduction of border checks in the event of serious threats to public order or internal security
European Border and Coast Guard Agency Frontex
Frontex (the European Border and Coast Guard Agency) supports Member States in the protection of the EU’s external borders. It coordinates joint operations, provides personnel, and collaborates with national border protection authorities. The legal basis is Regulations (EU) 2016/1624 and 2019/1896.
International law foundations of border protection
Sovereignty and state authority
International law recognizes that each state has the right to determine, monitor, and defend its borders. Territorial sovereignty protects the state against unauthorized border crossings and interference by other states.
Refugee law and human rights
Border protection measures are in tension with international obligations under refugee law, particularly the Geneva Refugee Convention and the European Convention on Human Rights (ECHR). Border protection measures must not violate the right to asylum or the principle of non-refoulement.
Measures and instruments of border protection
Technical and personnel resources
Instruments of modern border protection include:
- Border installations and fortifications (physical barriers, fences, checkpoints)
- Technical surveillance (sensors, cameras, drones)
- Control and information systems (EES, SIS, VIS)
- Mobile and stationary deployment of border protection personnel
Cooperation and information exchange
Border protection is increasingly arranged on a cross-border basis. National authorities cooperate closely via Interpol, Europol, and through bilateral and multilateral agreements. The exchange of data and coordination of measures are fundamental for the effectiveness of border protection.
Legal protection and oversight
Border protection measures in Germany and the EU are subject to extensive rule-of-law requirements. Legal recourse is available against border protection measures through administrative courts. Oversight bodies such as the Federal Constitutional Court, the European Court of Justice, and the European Court of Human Rights monitor compliance with fundamental and human rights standards.
Summary
Border protection comprises an extensive regulatory framework from national law, EU law, and international law. The exercise of border protection is carried out by specialized state agencies but is always subject to the principles of the rule of law, human rights protection, and the principles of proportionality and legality. Technical developments and international cooperation fundamentally shape the effectiveness and design of modern border protection.
Frequently Asked Questions
Who is legally responsible for carrying out border protection in Germany?
In Germany, primary responsibility for border protection lies with the Federal Police, whose tasks are regulated in the Federal Police Act (BPolG). According to § 2 (2) No. 1 BPolG, the Federal Police is responsible for protecting the federal borders, which includes, in particular, monitoring border crossings and preventing unlawful border crossings. The state police forces may be called upon for administrative assistance, but they do not have principal responsibility. Additionally, on the basis of international agreements, especially through cooperation within the Schengen area, other authorities such as the European Border and Coast Guard Agency (Frontex) may be involved. In practice, border security measures, especially the establishment of border controls, are always carried out in compliance with European legal requirements, such as those of the Schengen Borders Code Regulation (EU) 2016/399.
What legal bases govern border controls within and outside the Schengen area?
In the European Union, border controls are primarily governed by the Schengen Borders Code (Regulation [EU] 2016/399). Accordingly, person checks are generally not permitted at the internal borders of Schengen Member States, except in exceptional circumstances where a Member State may temporarily reintroduce border controls to maintain public order or internal security (see Art. 25 et seq. Schengen Borders Code). At the EU’s external borders, Article 8 of the Schengen Borders Code requires systematic checks on all persons entering or leaving. In addition to these EU regulations, the Federal Police Act and specific provisions of the Residence Act also apply in Germany. For border controls outside the Schengen area, national law primarily applies, although international agreements and human rights standards must also be considered.
Under what conditions may identity checks be carried out at German borders?
The legal basis for identity checks at German borders is found in § 22 of the Federal Police Act (BPolG). Accordingly, within up to 30 kilometers from the border, the Federal Police may, without specific suspicion, conduct identity checks to prevent or stop unauthorized entries and to combat cross-border crime. At actual border crossing points, checks are carried out on the basis of § 13 of the Residence Act in conjunction with § 2 BPolG as part of so-called border clearance procedures. There is an obligation to carry and show a valid passport or substitute document upon request. In addition, EU requirements, especially from the Schengen Borders Code, must be observed; at internal borders, systematic checks are not permitted except in justified exceptional cases. Procedures for refusal of entry and cases of refusal are governed by §§ 15 et seq. of the Residence Act.
To what extent are border protection measures bound by fundamental rights?
Border protection measures are bound by the constitutional requirements of the Basic Law and prevailing fundamental rights. In particular, personal freedom (Art. 2 (2) GG), the right to informational self-determination (Art. 2 (1) in conjunction with Art. 1 (1) GG), and the prohibition of discrimination (Art. 3 GG) must be respected in every measure. Identity checks, searches, and refusals of entry must always be proportionate and respect the core area of personal rights. In the case of measures against EU citizens, Art. 21 TFEU (freedom of movement within the EU) must also be considered. Controls are only legally permissible under certain conditions, and every official act must be able to withstand an individual legal review. In the area of international refugee law, the principle of non-refoulement (prohibition of refoulement) under Art. 33 GRC (Geneva Refugee Convention) and Art. 3 ECHR is also applicable.
What legal possibilities exist for reintroducing border checks at internal borders?
The reintroduction of border checks at the internal borders of German territory is legally possible in a limited way pursuant to the Schengen Borders Code. According to Art. 25 et seq. of the Regulation, a Member State may, for reasons of public order or internal security and after notifying the European Commission and other Member States, temporarily reintroduce border controls. These checks are generally time-limited and must be proportionate; the period should not normally exceed six months in total but may, in exceptional circumstances under Art. 29 of the Schengen Borders Code, be extended to up to two years. Legal implementation in Germany is carried out by regulation of the Federal Ministry of the Interior (§ 18 (4) No. 1 BPolG) and requires notification to the affected states and agencies. It must also be ensured that EU law requirements and fundamental rights are upheld.
What does the legal framework regulate with regard to refusal or deportation of persons at the border?
Refusal of entry at the border is regulated in §§ 15, 18 of the Residence Act (AufenthG). Accordingly, a foreigner may be refused entry at the border if the entry requirements are not met, particularly if valid travel documents are missing or an entry or residence ban exists. For asylum seekers, Art. 16a GG in conjunction with § 18 of the Asylum Act governs special handling: At the external borders, asylum applications may be rejected if the applicant enters from a safe third country (so-called ‘third country rule’). The non-refoulement principle (Art. 33 GRC) must be strictly observed, meaning that refusal of entry to a state where persecution or inhuman treatment threatens is prohibited. Deportation can be carried out under § 57 (1) of the Residence Act if the person concerned entered unlawfully and is apprehended within one month of crossing the border.
Which international agreements and European legal acts influence German border protection law?
German border protection law is closely interlinked with international and European legal acts. At the European level, the Schengen Borders Code (Regulation [EU] 2016/399) and the Dublin III Regulation (Regulation [EU] No. 604/2013) constitute central legal foundations. In addition, international treaties such as the Geneva Refugee Convention (GRC), the European Convention on Human Rights (ECHR), and the EU Charter of Fundamental Rights (CFR) are decisive. Multilateral agreements, for instance regarding Frontex, also regulate operational cooperation in protecting the EU’s external borders. In bilateral agreements, especially with neighboring countries, the practical implementation of cooperation at land borders is set out. These international provisions are, pursuant to Art. 25 and Art. 59 GG, part of German law and, depending on the norm, have priority over or direct applicability alongside national law.
