When Trust Fails: Challenges to Solidarity in EU Asylum Policy

Ridam Gangwar, Student researcher and former UN Millennium Fellow, Dr. Ram Manohar Lohiya National Law University

Keywords: EU Asylum Policy, National Sovereignty, Internal Borders, Constitutional Decay, Migration Management 

What happens when EU Member States follow the rules on paper but gut them in practice? In the name of national sovereignty, countries like Germany and Greece are reintroducing internal borders and suspending asylum access—shredding the core legal fabric of EU cooperation. This isn’t migration “management.” It's constitutional decay.

Trust as the Cornerstone of EU Integration

Mutual trust is the glue of European law. The EU’s asylum system, the Schengen Borders Code, and the Dublin III Regulation all assume that Member States comply with minimum standards. That’s why the CJEU held in NS v UK (C-411/10 and C-493/10) that mutual trust is conditional—it cannot justify human rights violations.

But when trust is eroded and Member States act alone, the whole structure starts to break.

Greece’s Asylum Freeze: Creating Legal invisibility

In July 2025, Greece suspended the registration of asylum claims for several nationalities, citing “overcapacity.” Yet Article 6(1) of the Asylum Procedures Directive (2013/32/EU) is clear: applications must be registered within six working days, without discrimination.

What Greece has done is not discretion—it’s denial. Thousands of people are left legally invisible, unable to access basic protections. That’s not just illegal. It’s existential erasure.

When Paperwork Erases People and Legal Personhood: A Fieldwork Insight

During my fieldwork with stateless Rohingya communities and unregistered asylum seekers in South Asia, I witnessed how bureaucratic denial produced legal invisibility. People disappeared from protection not through violence, but through silence—excluded because they lacked documents, not rights. That same erasure is now re-emerging in Europe. As a UN Millennium Fellow working on SDG4 and access to justice, I also observed how systemic exclusion often masquerades as administrative delay or capacity constraints. In both education and asylum, rights exist in theory but vanish at the point of access.

When Member States suspend registration or erect procedural hurdles under the guise of law, they replicate the same discretionary logic they claim to stand above.

Germany’s Border Revival and the Fragmentation of Free Movement

Germany’s extension of internal border controls since 2015—initially justified under Article 25 of the Schengen Borders Code (SBC)—has gradually eroded the temporal and proportional safeguards built into EU law. Article 25 permits reintroducing border controls for a maximum of six months, renewable only under tightly defined circumstances of a serious threat to public policy. But Germany has invoked this repeatedly, creating what is now a quasi-permanent border regime, effectively bypassing Article 29 SBC, which applies only in truly exceptional, systemic failure scenarios and requires Council authorization.

The CJEU has not yet ruled directly on these renewals, but legal scholars increasingly argue that these extensions violate the principle of proportionality, and undermine Article 3(2) of the Treaty on European Union (TEU), which enshrines the absence of internal borders as a defining feature of the Union. Germany’s actions not only bend procedural tools—they puncture the constitutional trust Schengen relies on. They treat neighboring states as unreliable partners, and in doing so normalize legal fragmentation. Each time a Member State erects legal walls, it signals a lack of trust in its neighbors. The more these spreads, the more the EU looks less like a union—and more like a club of competing sovereignties.

As legal scholar Dr. Ermioni Xanthopoulou argues, the unchecked extension of internal borders and the misuse of mutual trust principles risk transforming constitutional cooperation into controlled fragmentation. When trust becomes presumed rather than earned, it ceases to function as a legal safeguard and instead enables systemic evasion of EU obligations.

These actions come in constant conflict with the European vision of a Borderless union.

A Race to the Bottom

The EU Commission’s enforcement responses have been weak. Even when the Court of Justice finds violations—as in Commission v Hungary (C-808/18)—there’s little follow-up. No urgent injunctions. No withheld funding. Just silence.

If Greece faces no penalty for denying asylum, why should Bulgaria? If Germany faces no pushback for dismantling Schengen from within, why would Austria hold back?

The absence of enforcement is not neutrality but complicity by omission.

Proceduralism as a Weapon

What makes this even more dangerous is that it's framed in legal language. Greece cites “capacity” and Germany references “emergency” laws. But EU law isn’t just about ticking boxes, it requires necessity, proportionality, and good faith compliance. When countries legalize violations through procedure, they weaponize the very thing they’re meant to uphold.

Legal Accountability: EU Institutional Silence

The European Commission has failed to take urgent enforcement action. Infringement proceedings under Articles 258–260 TFEU take years. Article 7 TEU, which allows sanctions against Member States violating core EU values, remains politically toxic. Yet when procedural denial hardens into systemic practice, inaction becomes complicity. The EU must act not only to defend law but to protect the very premise of legal obligations across borders.

Policy Imperative: Rebuilding Legal Trust Through 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.

Constitutional Honesty: Time to build back Eroding trust

The EU’s asylum framework no longer falters in moments of crisis—it now defaults to fragmentation. “Flexibility” has become an excuse for unilateralism. “Solidarity” is treated as optional. Member States invoke sovereignty to bypass obligation, and institutions look away in silence. If mutual trust is to mean anything, violations must be named—and consequences enforced. The longer legal evasion continues unchecked, the more deeply it embeds itself into practice and precedent. The risk is not only moral decay but institutional unraveling.

The EU must confront a simple truth: trust cannot be legislated, only earned—and defended. That requires political courage, procedural enforcement, and a commitment to constitutional honesty that goes beyond the page and into action.