Are strict migration proposals by Bavaria's CSU party legal?

The center-right Christian Social Union (CSU) exists as a political party only in Germany's southern state of Bavaria. Its political agenda is more or less the same as that of the Christian Democratic Union (CDU), which is politically active in the other 15 German states.

For this reason, the CSU is often called a "sister party" to the CDU, and the two have been allied in a parliamentary group in the German Bundestag for decades.

At the snap federal election to be held on February 23, this group, known in Germany as "the Union," aims to replace the center-left Social Democratic Party (SPD), which had been leading the country's coalition government until its collapse last month. 

And it has a good chance of success: The respected Deutschlandtrend opinion poll for December showed the Union with 32% voter popularity — double that of the SPD, and with all other parties lagging well behind.

Magdeburg attack fuels migration debate

One prominent election issue is migration, which has been the subject of heated debate in Germany in recent years. The deadly attack on a Christmas market in the eastern city of Magdeburg shortly before Christmas Eve has caused the tone of this debate to take on even sharper contours.

Although he had been in Germany since 2006, had permanent residency and worked as a doctor, the alleged attacker originally came from Saudi Arabia. All of this has led all parties, with the exception of the Left Party, to call for stricter regulation of migration.

In recent days, Bavarian media have reported on some of the CSU's particularly strict ideas when it comes to migration, quoting from a position paper drawn up for a CSU conference to be held January 6 to 8:

"People wanting to live with us long-term must also work long-term and not claim benefits long-term," the paper says.

Legal expert calls proposal unrealistic

This CSU demand goes beyond what the party previously agreed with the CDU in a joint manifesto for the general election. The latter states that "[on] the whole, non-cash benefits should take precedence over cash benefits wherever possible. The debit card should be introduced universally and strictly in all German states."

Law professor Volker Boehme-Nessler, who teaches at Oldenburg University in northern Germany, views this CSU proposal as unrealistic.

"Anyone living here legally as a refugee cannot have their means of existence taken from them," he told the private TV broadcaster, Welt, on Thursday, citing German and European law.

And any potential change, he said, was complicated because a decisive issue was at stake. "Is someone being persecuted? Is someone in need of protection?" he said. 

Focus on deportations

Boehme-Nessler believes another demand from the CSU position paper might have a better chance of success, the one that says that anyone committing a crime or who commits multiple offenses should leave the country. 

This is already possible, and existing laws on this are quite tough. "We could deport more, but deportations don't work," he said. 

If the CSU had its way, there would be more of a focus on deportations. The party has called for migrants who do not leave or cannot be deported to be put into pre-removal custody for indefinite periods.

Boehme-Nessler said such ideas were populist. "This is just about election campaigning," he said, referring to the fact that migration is fairly high on the list of concerns of German voters. "But seen from a legal and humanitarian point of view, it is problematic."

CSU following lead of far-right AfD

Volker Kronenberg, a political science professor at Bonn University, also sees the CSU's position paper as pre-election posturing. The CSU is trying to steal thunder from the far-right Alternative for Germany (AfD) party, which has increased its appeal by taking more extremist positions on migration, asylum policy and domestic security.

Kronenberg doesn't see too many differences between the CSU and the CDU on this issue, though. The basics of policy put forward by the CDU-CSU candidate for chancellor, Friedrich Merz, is already a departure from the migration policy of former CDU leader Angela Merkel, who was chancellor until 2021.

Merkel is perceived as being responsible for the entry of almost a million refugees, mostly from Syria, in 2015, when the former chancellor, confronted with a looming humanitarian crisis on Europe's borders, assured Germans that "we can do this!"

Even back then, the CSU disagreed with the government's approach. Horst Seehofer, the former Bavarian premier and a CSU member, described Merkel's asylum policy as a "reign of injustice."

Seehofer wasn't the only one, though, with Kronenberg highlighting the way other German political parties have acted during the ensuing years.

Speaking to the TV broadcaster Welt, Kronenberg gave the example of Germany's current Chancellor Olaf Scholz, a member of the center-left Social Democrats. In October 2023, Scholz appeared on the front page of news magazine Der Spiegel with a quote from his interview: "We must start deporting on a massive scale!"

Broken promises increase 'frustration and discontent'

But such statements have not come to much, Kronenberg said, citing how few deportations had been carried out since then. Often, deportations fail simply because the countries of origin refuse to take back their citizens or the German government is not officially in contact with them, as was the case with Syria until recently.

According to Kronenberg, there's a lot of talk but very few, real political consequences. "And that increases frustration and discontent," he said, leading anti-immigration voters to turn to parties like the AfD or the far-left Sahra Wagenknecht Alliance (BSW).

The BSW is an offshoot of the Left Party, with which it still has much in common except on the issue of migration. The BSW belongs to the camp calling for harsher regulation, along with the AfD and now the CSU.

The CSU's policy proposals are likely to remain just that — proposals — after February's federal election.

For one thing, there are the legal concerns. But there's also another reason: any government led by the CDU-CSU bloc would still need a further coalition partner, and the SPD or the Greens are the most likely contenders.

Although both of these parties are also in favor of stricter regulation, they believe the CSU's ideas go too far. As SPD politician Dirk Wiese told the daily Rheinische Post recently, "the CSU has once more far overshot the mark and is simply currying favor with the AfD."

This article was originally written in German.

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