Court declares Schengen border controls illegal AGAIN

Anyone crossing borders within Europe these days often experiences a sense of déjà vu that clashes sharply with the promise of a borderless continent. Long traffic jams on the motorway, federal police officers on trains, and the inevitable search for one's passport . What many travelers dismiss as a bothersome routine is, in reality, a profound infringement on one of the European Union 's most cherished rights : freedom of movement within the Schengen Area . While politicians tirelessly emphasize the necessity of these measures, the courts are speaking with increasing clarity. It's a legal tug-of-war in which the German government risks losing its footing in the rule of law.

A systematic disregard for the law

The Bavarian Administrative Court (BayVGH) issued another ruling on April 9, 2026, sharply criticizing German border policy (Case No. 10 BV 25.901) . This is not the first time the judges in Munich have found the German government to be violating applicable EU law. At the heart of the matter are the random identity checks at the German-Austrian border. A plaintiff who regularly commuted between Vienna and Munich was repeatedly stopped and checked – without any concrete suspicion, purely as a preventative measure.

As a law firm, we are observing with growing concern that the executive branch seems to regard court decisions merely as non-binding recommendations. The fact that the Bavarian Administrative Court (BayVGH) has now issued the same orders is particularly concerning. The fact that these decisions have been repeatedly declared unlawful points to a structural deficit in the handling of the separation of powers. If the federal government, despite clear rulings, does not change its practice but merely slightly varies the justifications in its decisions, this undermines trust in the rule of law. For highly qualified professionals and EU citizens who depend on mobility, this sends a disastrous signal.

The Schengen Borders Code is not a mere formality.

The legal framework is actually clearly defined. The Schengen Borders Code (SBC) stipulates that internal border controls may only be an absolute exception. They are only permissible in the event of a serious threat to public order or internal security . The European Court of Justice (ECJ) has previously clarified that such controls must be strictly time-limited and an extension is only possible if a new serious threat arises.

The German government based its orders primarily on the "continued high level of secondary migration." The Bavarian Administrative Court (BayVGH) has now unequivocally ruled that this is insufficient. A migration situation that has persisted for years does not constitute a new, sudden threat that would justify suspending fundamental freedoms . The court also rejected the argument regarding the strain on accommodation capacities. In our view, this argument is legally flimsy. Domestic organizational challenges cannot be solved by effectively suspending the Schengen Agreement.

Criticism of symbolic politics at the expense of mobility

Predictability of the law is essential, especially for people with high mobility needs (e.g., business travelers and cross-border commuters ) who live and work in Europe. Engineers, doctors, and scientists working in Germany expect a modern state that respects international agreements. Instead, we are witnessing a migration policy that is lost in symbolism. Border controls often serve more to appease domestic tensions than to provide actual security.

We strongly criticize this practice, as it undermines the European ideal of freedom of movement enshrined in Article 21 TFEU (Treaty on the Functioning of the European Union). It is paradoxical: while Germany desperately seeks talent from abroad, it presents itself at its borders as a fortress that does not even shy away from blatantly illegal methods. The claim that it is protecting national security while simultaneously ignoring rulings from the highest administrative courts is a contradiction in terms. True security arises from adherence to the law, not from arbitrary identity checks on long-distance buses.

The erosion of the separation of powers

When the administration ignores the jurisprudence, it undermines the very foundations of our democracy. According to Article 20, Paragraph 3 of the Basic Law, the executive branch is bound by law and justice. The ruling of the Bavarian Administrative Court demonstrates that the federal government is crossing a dangerous line here . It cannot be that citizens must painstakingly pursue declaratory judgment actions under Section 113, Paragraph 1, Sentence 4 of the Code of Administrative Court Procedure for years to establish that the state has violated its own rules, only for the state to continue its actions the following year with almost identical justification.

This "policy of faits accomplis" must end. The federal government would be well advised to deploy the resources of the Federal Police where they are truly needed – for example, in the fight against organized crime – instead of harassing commuters and travelers at internal borders. Random checks are an instrument that should no longer have a place in a free Europe , unless there is a genuine, new threat, such as a concrete suspicion of terrorism.

Conclusion

The recent ruling by the Bavarian Administrative Court is a victory for civil liberties and a resounding slap in the face for current border policies. It makes clear that simply repeating old arguments does not create a legal basis for restricting freedom. The federal government must recognize that migration is a political issue that must be resolved domestically through political and administrative means – and not through an unlawful relapse into petty, national border controls. Legal certainty is a precious asset; it must not be sacrificed to the expediency of day-to-day politics.

How we at VisaGuard can support you

As experts in visa and immigration law, we at VisaGuard are firmly at your side. If your rights have been violated by unlawful checks or if you need support with complex issues of freedom of movement and labor migration, we offer you sound legal advice. We help highly qualified professionals assert their rights against the authorities – objectively, competently, and with the necessary tenacity against an administration that occasionally oversteps its bounds. Rely on our expertise to ensure your mobility in Europe is legally secure.