Sometimes, the greatest changes are announced very quietly. Each Thursday, representatives of the countries located along the refugee route that crosses the Balkans meet by video conference for a briefing on the current situation. Are there sufficient accommodations in Greece? Are there enough heated tents in Croatia. There are numerous organizational and administrative questions, and the whole affair has an almost routine feel to it.
Participating in the group on Germany's behalf is Uwe Corsepius, Chancellor Angela Merkel's European policy advisor. Last Thursday, he and his colleagues from Austria and Slovenia informed the others first talks were being conducted about, among other things, finding ways to better control Slovenia's borders.
That may not sound like much, but was nothing less than an announcement that Germany was making a strategic shift in its refugee policies. Merkel has been insistent that a European solution needs to be found for the crisis. But asked what this "European solution" might look like, officials are giving a different answer these days than they used to.
Previously, the official German position had been that refugees should be stopped at the European Union's external borders in Greece and Italy. The plan had been to open up large initial reception centers, so-called hotspots, where refugees would be registered and a decision made on their possible redistribution to other European countries. Merkel says she is still pursuing this plan.
The problem is that the opening of the hotspots is moving ahead extremely slowly. Greece in particular, the country through which most refugees are currently traveling to the European Union, isn't adhering to its obligations. It's one of the main reasons the number of refugees has not dropped in Germany to a degree that might reduce political pressure on Merkel.
Instead, the opposite is happening. With its announcement that it wants to cap the number of refugees entering into Austria at 37,500 in 2016, Merkel has been pushed even further onto the defensive. The development "is not helpful," the German chancellor admitted on Wednesday at a meeting CSU state parliamentarians in Bavaria. The CSU is the sister party of Merkel's CDU.
The chancellor continues to reject the setting an upper ceiling on refugees and imposing the strict border controls Seehofer is demanding. Merkel is concerned that doing so would mean the end of the Schengen zone of border-free travel within much of the EU. But there may also be a more elegant solution, one that was first introduced by the Austrian government.
Pushing Schengen North
The idea foresees Slovenia playing a key role -- as the first country after Greece along the West Balkan route that has an external Schengen border. The plan would envision stopping all migrants from Afghanistan, Pakistan and North Africa there. A growing number of migrants from these regions have been using the West Balkan route to get to Germany, despite the fact that they have little prospect of obtaining asylum protection once they get here. The plan would mean that Europe's internal borders to remain open.
Of the 1.83 million refugees that the EU border protection agency Frontex estimates came to Europe in 2015, some 227,000 came from Afghanistan. The number of North Africans who have entered is far lower, but in recent weeks, German authorities have observed a significant uptick in the number of migrants from countries in the Maghreb region like Algeria and Morocco.
Most have no chance of obtaining asylum status. By shifting the Schengen external border to Slovenia, refugees could be prevented from continuing their journey to Germany. The unspoken hope in Berlin is that Slovenia might make less of a fuss about the not uncontroversial legal aspects of the move than would likely be the case in Germany.
Daniel Thym, a European law professor at the University of Konstanz in Germany, says the question of whether officials at the Slovenian border can simply turn asylum-seekers away is an open one. He describes it as a "legal gray area" that surely isn't in the spirit of the original vision of the EU's Dublin Regulation on refugees. But, he added, it might be possible to create legal constructs that would make it permissible.
At first glance, the plan looks like a solid one, but it also contains a number of shortcomings, as officials in Berlin well know. Slovenia would likely have trouble controlling so many refugees on its own. Thus far, Germany has sent around 10 federal police officers to Slovenia to help consult their colleagues there, but they do not have any actual border patrol responsibilities themselves. So far, there haven't been any additional requests for assistance, either.
It's also unclear whether the government in Ljubljana will even be willing to help. The question of what shape this border cooperation could take is also an open one. Officials in the German Interior Ministry say that Austria, which first approached the German government with the idea a few weeks ago, so far hasn't made any concrete proposal.
The reason may be that views in Berlin and Vienna over how the borders are to be controlled have diverged so strongly. The German government and the European Commission don't want to implement measures that could destabilize Greece or the countries bordering Slovenia. Countries like Serbia "must not become a parking lot or 'no man's land' for stranded refugees," EU Expansion Minister Johannes Hahn said last fall. "It's a matter of turning the wave around without chaos breaking out in the Balkans," one source in the European Commission said.
Some members of the Austrian government view things differently. On Wednesday, Vienna announced its intention to cap the number of asylum-seekers the country takes in. Shortly after the announcement, Foreign Minister Sebastian Kurz said he believed a resulting traffic jam of refugees would create "pressure" on Europe to find a common solution for the refugee problem. "If Greece can't better secure its external borders, there's unfortunately a risk that the country may soon have to temporarily leave the Schengen area," says Manfred Weber, the German head of the European People's Party group (the conservative Christian Democrats) in the European Parliament.
The German government wants to proceed more cautiously. "It cannot be in our interest for the situation in the West Balkans and Greece to further deteriorate," says Michael Roth, a senior official with Germany's Foreign Ministry.
Tensions Between Berlin and Vienna
Without a coordinated effort between Berlin and Vienna, it's highly unlikely that this Plan B could be successful. But Austria's introduction of an upper ceiling has done little to improve those prospects. Sources close to Merkel describe the plans as "grotesque." Although the Austrians have stated that they informed Berlin about the details of their refugee cap, no one in Berlin knows what will happen with the refugees who go beyond that limit. Inside the Austrian Foreign Ministry, officials aren't ruling out the possibility that they will simply be waved on to neighboring Germany. Slovenia is already doing that. The government announced on Thursday that in the future it would only allow refugees into the country that planned to submit their applications for asylum in Germany or Austria.
Nevertheless, there is unity between the countries on the issue of being able to deport asylum-seekers from Maghreb countries whose applications have been rejected. To that end, Germany wants to help these countries' embassies in Berlin in identifying the true origins of the refugees in question. Given that they often aren't carrying any legal ID papers, Germany would like to provide them with so-called EU Laissez Passer documents, thus making it easier to repatriate them to their countries of origin. "The current multi-phase return system is too cumbersome," German Foreign Minister Frank-Walter Steinmeier, of the center-left Social Democratic Party, wrote in a joint letter with Interior Minister Thomas de Maizière, of the Christian Democrats, addressed to their colleagues in North Africa. The letter also indicates countries will be rewarded if they cooperate.
And if none of that helps? At the end of the day, it may be the case that Germany has to reject massive numbers of asylum-seekers at its borders. During her visit to CSU representatives of the Bavarian state legislature on Wednesday, Merkel said that step could only be taken as a last resort.
'A Fundamentally New Situation'
Experts are also divided on the question of whether it is even legal for German police to implement such an order. In an internal analysis, officials at the Interior and Justice ministries came to the initial conclusion that, under the Dublin III Regulation, each EU member state has the right to send asylum-seekers trying to enter its borders to a safe third country. But it is unclear whether, in formal terms, another EU member state could also be considered a "safe third country." The internal analysis concludes there would be "inherent legal risks" in doing so. But it appears to be tenable.
Furthermore, the paper states, a "fundamentally new situation" has arisen as a result of the "current systemic failure of the European (external) border protection and asylum system" with the "transmission of thousands of people seeking protection to the German border," which has in turn necessitated measures to ensure public safety. Ultimately, however, any decision will have to be a political one.
"You can attempt to justify such rejection of refugees at an internal EU border," says law professor Thym. However, he argues it is less certain that it would hold up in court. Either way, Thym concludes, Germany "is currently in a political situation in which the law is given only secondary consideration."