International law: passport requirements and personal sovereignty of states

Right to border control for states

International law recognizes the freedom to leave and return to one's home country - but not a right to enter or stay in a foreign state. In principle, each state is therefore free to regulate who may cross its borders. This right to border control also applies within Europe - even if there should no longer be any internal border controls in the Schengen area. However, since the refugee crisis in 2015, the coronavirus pandemic, and the war in Ukraine, many states such as Germany, Austria, and France have regularly reintroduced internal border controls. The European Court of Justice ruled in 2022 that such controls are only permitted in cases of concrete threats to public order. Nevertheless, many states continue to maintain controls - even though they are prohibited under European law .

Passport sovereignty and passport requirement: What does this mean for foreigners in Germany?

In addition to the right to control borders, states also have what is known as "personal sovereignty" over their citizens. States may independently issue passports and thus determine who belongs to their nationality. This so-called "passport sovereignty" is an expression of state sovereignty . In Germany, this sovereignty is strictly respected: immigration authorities only interfere with the passport sovereignty of other states in very rare exceptional cases – for example, by issuing a German passport substitute. In principle, therefore, the country of origin decides on the type, validity, and content of a passport – not Germany. At the same time, German authorities may neither confiscate nor alter a foreign passport. A passport serves not only as an identification document but also as proof of identity and nationality – and generally guarantees consular protection by the home country.

Differences between EU citizens and third-country nationals

European law limits the identity and passport sovereignty of the fundamentally sovereign EU states. A simplified ID requirement applies to EU citizens : a valid identity card is sufficient for legal residence in Germany. This also applies to citizens of EEA states and (depending on an agreement) to nationals of Council of Europe members for short-term stays. Third-country nationals, on the other hand, must generally present a recognized passport or an equivalent travel document. This arises from the Schengen Borders Code and the associated EU regulations. Only if the travel document meets these requirements can a stay of up to three months be granted without a visa or residence permit. In Germany, the passport requirement also arises from Section 3 of the Residence Act – anyone who fails to comply with this requirement may face problems with the immigration authorities.

Conclusion

The right of a state to control its borders and to decide on the entry of foreigners is recognized under international law – even within the EU. While the Schengen rules limit this right in favor of an open Europe, experience since 2015 shows that many member states continue to rely on national border controls in crises – sometimes even contrary to European law. At the same time, passport sovereignty lies with the country of origin, not Germany. Foreigners must therefore always present a valid travel document from their home country – otherwise, they face consequences under their residence law. While EU citizens benefit from simplified rules, the passport requirement for third-country nationals is a central element of entry controls and residence rights in Germany.