What happens to transparency and the rights of asylum seekers when a government takes an administrative shortcut? As Constantin Hruschka argued on this blog, Germany is dismantling access to asylum in everyday practice while leaving the law itself formally intact: Asylum remains a symbolic guarantee, yet administrative measures systematically block meaningful access.

One illustration of this is the German government’s recent legislative proposal to designate “safe countries of origin” (SCO) via executive decree (Rechtsverordnung) rather than through Parliament. The SCO concept is based on the presumption that nationals of certain countries are generally not at risk of persecution, torture, inhuman or degrading treatment, or indiscriminate violence, as defined in Article 9 of the Qualification Directive (2004/83/EC). Under the Asylum Procedures Directive (APD), Member States may designate third countries, or parts thereof, as safe, provided the set-out conditions are met. The APD does not prescribe which authority must decide on SCO status, leaving modalities to national discretion, but emphasizes that the designation is a formal, pre-emptive act applied independently of individual asylum cases. Declaring a country “safe” has profound implications for the fundamental rights of affected asylum seekers. For example, it allows authorities to reject applications as “manifestly unfounded” quicker (§29a Asylum Law). This presumption also shortens appeal deadlines and limits legal protections, while also worsening the applicant’s residence status, for example, through mandatory residence in initial reception centres (§ 47(1a) Asylum Law) or restrictions on employment (§ 61(1) Asylum Law).

Under current German law, Article 16a(3) of the Constitution (GG) requires that any designation of a SCO be enacted through legislation with the Upper House’s (Bundesrat) approval, ensuring democratic scrutiny and procedural safeguards. The pending draft law proposes that the federal government could designate SCO via executive decree, bypassing parliamentary debate and consent from the Upper House. Such a shift risks undermining constitutional guarantees, concentrating decision-making power within the administration, reduces transparency, and therewith weakens the legal guarantees for asylum seekers alongside key rule of law principles such as transparency, accountability, democratic legitimacy and verifiability.

In the draft legislation, the government argues that allowing the federal cabinet to designate SCO by executive decree accelerates asylum procedures and signals that applications from these countries are unlikely to succeed. According to the government, faster processing by the Federal Office for Migration and Refugees and quicker implementation of negative decisions will “make Germany less attractive for asylum claims submitted for non-protection-related motives, reflecting past trends of declining applications from designated states”. The compatibility with German constitutional law is disputed and opinions on it are divided (e.g., Daniel Thym, who argues that a list of “small” safe countries for EU law purposes could be adopted without Upper House approval. Others, including Pro Asyl , Thorsten Kingreen, and Valentin Feneberg view it as a dangerous circumvention of parliamentary oversight, or inefficient arguing that it risks undermining constitutional guarantees).

In this post, we focus on an aspect that has received insufficient attention surrounding this proposal: The broader implications of shifting security decision-making from the democratic legislature to the administration for reasons of efficiency. Concentrating such power within the executive undermines transparency, public debate, and democratic principles. We argue for preserving the parliamentary role in declaring SCO, ensuring that these critical determinations are democratically legitimized rather than centralized in bureaucratic discretion.

Efficiency vs. due process: The hidden costs of administrative centralization

The draft law’s primary objective is to accelerate the pace of decision-making in asylum proceedings. It is an efficiency-driven justification, measured by the speed with which the administration can dismiss asylum applications. To address the systematic administrative and financial challenges facing administration and the judiciary regarding asylum application processing with low approval rates, the draft law suggests authorizing the federal government to unilaterally designate SCO. The responsible interior ministry argues that judging from experience, the designation of SCO has led to a significant reduction of asylum claims from these countries and accelerated proceedings and returns (BMI). Fast-tracked proceedings and limited review send a two-fold message: It gives a sense of control and is supposed to discourage potential asylum seekers. However, this efficiency-centered approach raises fundamental questions about constitutional governance. Constitutional frameworks are designed to resolve societal conflicts by balancing efficiency with fairness, participation, and transparency. The Grundgesetz’s value choices reject efficiency as the sole criterion for legitimate governance. By shifting the power to declare countries “safe” to the administration, the draft law transforms political judgments into ostensibly technical decisions, sidelining democratic deliberation and those directly affected. This reflects a broader institutional tendency to prioritize security over other values (as argued by, e.g., Bigo; Sajó and Uitz). Moreover, measuring efficiency purely through throughput metrics, reducing applicant numbers, risks transforming a means into an end, detached from legitimate constitutional goals.

The transparency deficit in safe country decisions: How administrative control obscures political judgment

Another central concern with the draft legislation is transparency. The draft clarifies that designations must be based on multiple information sources, including reports from the German Foreign Office, input from other EU member states, the EU Asylum Agency, the UN High Commissioner for Refugees, the Council of Europe, and other relevant international organizations (see here, p. 8). When it comes to a framework for transparency concerning this kind of information, the recent CJEU ruling of 1 August 2025 is a helpful first yardstick. The CJEU confirmed that EU law allows member states to designate SCO via legislation, provided the designation is subject to effective judicial review. The Court emphasized that the access to information must be “sufficient and adequate” (para. 88) to both applicants and courts. The draft law clarifies in its proposed § 29b(5) Asylum Law-E, that lower-level courts must suspend proceedings and obtain a ruling from the Federal Administrative Court if they consider the underlying executive decree designating a SCO to be unlawful (see here, p.6). While this referral mechanism provides a formal avenue for legality control, it does not mitigate the fundamental transparency deficit created by shifting SCO designations into the realm of executive regulation. The CJEU judgment further makes clear that the underlying information used to justify a “safe country” designation must be sufficiently accessible to the asylum seekers themselves. Adequate access must enable applicants to understand the factual basis of the designation, to defend their rights under the best possible conditions, and to make an informed decision about whether challenging the designation before a competent court is worthwhile. Against this backdrop, the draft law should have been explicit in ensuring full disclosure of the information sources and evaluative criteria underlying each designation.

Transparent disclosure of documents and decision-making processes is crucial for comprehending administrative decisions, particularly given that bureaucratic procedures can often lack clarity and accessibility to external observers. Designating countries as safe is a political choice whose outcome is highly dependent on the circle of decision-makers. For example, security professionals tend to foreground national insecurities over other priorities. Because of their professional socialisation, security experts see the world through lenses of threat and vulnerability. Without competing voices such as parliament or independent experts, this lopsided perspective goes uncontested and unchecked.

This is relevant because the designation relies on a probabilistic decision about the circumstances in the country designated as safe (on governing through risk in a context of incomplete information see e.g. Aradau and van Munster; Amoore). The assessment is necessarily an approximation of the danger. This evaluation is not neutral, but may reflect political priorities, stereotypes and balancing of interests. The priorities might change depending on the actors involved. Thus, the question of who is involved in security decision-making is fundamental, as different actors might come to different conclusions (Bigo). Besides, intelligence does not speak for itself. It needs interpretation. Security knowledge is the product of a bargaining and decision-making process. There is not one obvious choice.  When consequential determinations about constitutional guarantees shift from parliamentary processes to administrative routines, politics does not disappear; it becomes invisible and unaccountable.

The streamlined procedure excludes dissenting voices and those most affected. Bureaucratic decision-making, structured by hierarchy and directive power, risks systematically silencing criticism and withdrawing policy struggles from democratic accountability. By eliminating parliamentary hearings, expert testimony, and justification requirements, the proposal strengthens the relative position of whom Bigo calls “managers of unease”: Security professionals with privileged authority but limited accountability, who monopolize definitions of “safety” without external challenge. This contradicts calls for democratizing security decision-making. If the proposal passes, “sufficient and adequate” reasoning must include detailed evidence, criteria, political priorities, and how interests were balanced.

Shrouded in secrecy: How administrative security decisions evade accountability

It is very difficult to understand, let alone contest administrative security decisions. Security tends to remove a policy issue from the democratic arena (Neal) and administrative security decision-making itself is opaque (De Goede and Sullivan). This includes the procedure with which security decisions are made, the gathered information and the criteria applied to evaluate information. In the name of protecting either sources, decision-makers or the system from being played by its targets, procedures and criteria for intelligence gathering and interpretation are classified. Questioning security professionals’ assessments and decisions is next to impossible.

Another reason why it is difficult to contest security decisions is the system itself. Due to habitus, security is afforded a special place in the constitutional architecture. Administrative security decisions are shielded from judicial review by a deep-seated historical convention and the belief that security is outside the scope of ordinary politics (Huysmans; Buzan et. Al.). Traditionally, the executive is afforded a margin of appreciation in its determination of security policy. Recurring arguments are either judicial self-restraint or technical expertise. The security state’s overall mentality is conducive to shielding the executive from the need to substantiate its reasoning and thus from accountability. Even if courts were to assess the rational, necessity and proportionality of the executive’s decisions, effective review would be seriously hampered by the high level of secrecy that is common in security assessments as argued above.

Effective judicial review depends not only on transparency, but also the standard of review. The legislative proposal is silent on the applicable standard. Under the current system, parliament has a political assessment prerogative (BVerfG, Para 173). This limits judicial review significantly. This limited standard of review is only sensible when the SCO designation reflects a broad societal consensus that is itself the outcome of a parliamentary procedure. If the draft law passes, it would be important to clarify that the administration would not enjoy the same prerogative as the parliamentary decision-maker. It would be equally important to clarify that the administration does not have a margin of appreciation usually afforded to prognostic decisions and risk assessments. The administration would have to argue and, if judicially challenged, defend its decision “adequately and sufficiently”.

Conclusion: Democracy at stake in the name of efficiency

Germany’s draft legislation on designating SCO via executive act highlights a fundamental tension – the choice between parliamentary deliberation and executive discretion. By shifting decisions with profound consequences for asylum seekers from Parliament to the administration, the pending proposal prioritizes “efficiency” over transparency, accountability, and democratic legitimacy. The resulting politics is less visible, harder to contest, and more difficult to account for.

This restriction on transparency and oversight is legally questionable as declaring a country “safe” has severe effects on asylum seekers. Besides that, the draft law centralizes power in a small bureaucratic circle, bypassing parliamentary debate, expert input, and public scrutiny. Even in the UK, making headlines for the escalation of restrictions of asylum seekers rights, safe-country designations are necessarily linked to parliamentary oversight.

As argued throughout this post, efficiency should not be the sole criterion for governance, especially in a field that directly and severely affects fundamental rights. Designating a country “safe” is not a neutral technical act but an inherently political judgment with severe consequences for those least able to make their voices heard. Its legitimacy depends on deliberation, transparency, and democratic oversight. Preserving parliamentary scrutiny is not procedural formalism; it is the constitutional safeguard that ensures such consequential decisions remain contestable and accountable. It also ensures that asylum remains more than a symbolic guarantee by ensuring meaningful access, transparency, and accountability.