And so it goes again: Another law professor files a lawsuit against Schengen border controls

The idea that one can move freely within the Schengen Area without systematic checks is one of Europe's greatest advantages for many international professionals and employers . However, anyone crossing the German border these days often experiences a rude awakening. Despite clear European legal requirements and numerous lost court cases, the Federal Ministry of the Interior under Alexander Dobrindt (CSU) is vehemently clinging to comprehensive internal border controls.

On July 1, 2026, the 23rd Chamber of the Munich Administrative Court will hear the case of European law professor Dr. Werner Schroeder (Case No. M 23 K25.8366) . During a ticket check on a train from Kufstein, the academic refused to show his identification, whereupon federal police officers searched his bag and physically detained him. He filed a declaratory judgment action pursuant to Section 113 Paragraph 1 Sentence 4 of the German Code of Administrative Procedure (VwGO) by analogy. For expats, young professionals, and German HR departments, this high-profile case raises an existential question: How secure is the residency status of highly qualified third-country nationals at the German borders?

Why are German border controls so legally controversial?

The Schengen Area is fundamentally based on the abolition of controls at internal borders. According to Article 25 of the Schengen Borders Code (SBC), Member States may only introduce border controls under exceptional circumstances and in the event of a serious threat to public order or internal security. The legislation stipulates a strict maximum period of six months for such controls (Article 25(4) SBC). According to a landmark ruling by the European Court of Justice (ECJ, judgment of 26 April 2022, Case C-368/20), an extension beyond this period is only permissible if a completely new threat arises that differs from the original situation.

In practice, however, we are witnessing a series of indefinite extensions, which are being declared unlawful by the courts – for example, by the Bavarian Administrative Court for the periods up to May 2023 (Case No. 10 BV 25.901) and most recently by the Koblenz Administrative Court for the year 2025 (Case No. 3 K 650/25.KO). Although the EU Commission accused Germany in June 2026 of violating its duty of sincere cooperation under Article 4(3) of the EU Treaty, the Ministry actually intensified the controls even further in May 2025. The legal problem affects every traveler: An identity check by the Federal Police pursuant to Section 23(1) No. 2 of the Federal Police Act (BPolG) is only lawful at the border if the underlying border control itself is lawful. Since the courts classify the controls as contrary to EU law, the officers, strictly speaking, lack the legal basis for the intervention.

What unforeseen risks do skilled workers from the USA, Canada and the UK face?

While a German law professor can pursue such a legal case as a matter of principle, foreign academics, students, wealthy investors, and their families face entirely different, existential risks during a police check. The situation is particularly critical for visa-privileged nationals from the USA , Canada, or Great Britain , who are permitted to enter Germany visa-free under Section 41 Paragraph 1 of the German Residence Ordinance (AufenthV) to apply for a residence permit for the purpose of employment. In our legal practice, we repeatedly encounter the following highly dangerous scenario: The skilled worker enters the country, dutifully applies for their residence permit for the job at the immigration office within the permitted 90 days , and the application is processed. If, after these 90 days have expired, the skilled worker needs to travel for urgent business reasons—for example, for a meeting in Austria or France—while the work permit has not yet been finalized, absolute chaos threatens at the border. If an employee is caught in one of the unlawful internal border controls, they risk being accused of illegal entry or residence, despite an ongoing application process. For those affected, but also for HR departments that depend on the mobility of their key employees, this leads to massive legal complications, even the threat of entry bans.

How should one behave tactically during a border check on a train or in a car?

When expats or young professionals are asked for identification by the Federal Police on a train or in a car, the psychological stress is high. From a purely legal perspective, it can be stated that at the moment of the check, there is practically no way to prevent the measure physically or through refusal without risking criminal proceedings for resisting arrest. Behavior like that of Professor Schroeder requires in-depth legal knowledge and, as the case shows, nevertheless leads to physical force being used by the officers.

We therefore strongly advise those affected to fully cooperate on-site, remain calm, and present all documents without exception. Should misunderstandings arise regarding residency status or if arrest is imminent, the golden rule is: Do not make any hasty statements and immediately contact a law firm specializing in visa law that can negotiate directly with the police officers conducting the check by telephone. Such a phone call between a lawyer and the Federal Police can usually clarify misunderstandings about legal fictions or transitional rights immediately and prevent an escalation of the document issue. Only after the trip can and should – especially if the route is regularly used for work – legal action be taken analogously to Section 113 Paragraph 1 Sentence 4 of the German Administrative Court Procedure Act (VwGO) to have the illegality of the check determined by a court .

Conclusion

The German government's increasingly stringent approach to Schengen border controls is gradually eroding European freedom of movement and creating significant legal uncertainty. For highly qualified professionals from third countries and their employers, these controls are no longer merely a nuisance, but an unpredictable risk to their residency status. Since a change in policy is not foreseeable in the near future, HR departments and international professionals must exercise extreme caution when planning cross-border travel and their applications are still being processed. As an experienced law firm specializing in visa law, we provide strategic support to you and your employees in preparing for travel, secure residency status, and, if necessary, intervene directly with the authorities on-site to guarantee your mobility and legal certainty.