Introduction
In April 2025, German authorities issued deportation orders to four foreign nationals residing in Berlin, including 3 EU citizens and one US citizen. The orders were reportedly based on their involvement in pro-Palestinian activism, e.g., participation in a protest held at Berlin’s Free University in October 2024 and alleged – yet unproven – support for groups which are banned in Germany. Amongst them, Kasia Wlaszczyk (a cultural worker and Polish citizen who has not lived in Poland since he was 10 years old), Bert Murray and Shane O’Brien (both workers and Irish nationals who have been living in Germany for a few years) were ordered to leave the country under administrative expulsion measures on the basis of a purported threat to national security and public order. Some of the allegations would correspond to criminal charges in Germany, but almost none of them have been brought before a criminal court.
These actions mark an escalation of the troubling findings by several NGOs and have drawn strong criticism from journalists, academics and civil society organisations, who argue that the deportations reflect a broader political strategy to suppress dissent.
This article focuses specifically on the legal and political implications of the deportations concerning solely EU citizens. It situates the measures within the framework of EU citizenship rights and the principle of non-discrimination, scrutinises Germany’s use of its Staatsräson doctrine as justification, and examines the broader consequences for freedom of expression.
EU Citizenship Rights
One of the foundational principles of the EU is the right of free movement, enshrined in Article 21 of the Treaty on the Functioning of the European Union (TFEU). This right is further elaborated in Directive 2004/38/EC, which outlines the conditions under which EU citizens and their family members may reside in another Member State.
Crucially, Article 27 of the Directive allows for limitations on these rights only on grounds of public policy, public security or public health, and any such measures must comply with the principle of proportionality. Article 27(2) also stipulates that previous criminal convictions cannot automatically justify expulsion; rather, the individual must represent a “genuine, present and sufficiently serious threat affecting one of the fundamental interests of society”.
Moreover, Article 28(1) establishes that, before taking an expulsion decision on grounds of public policy or public security, the host Member State shall take account of considerations such as how long the individual concerned has resided on its territory, his/her age, state of health, family and economic situation, social and cultural integration into the host Member State and the extent of his/her links with the country of origin. As the Court of Justice of the EU has emphasised in cases like Jipa (C-33/07), Tsakouridis (C-145/09) and P.I. (C-348/09), restrictions must be assessed on a case-by-case basis, with due attention to the individual’s integration, conduct and proportionality. Moreover, Member States must interpret and apply expulsion rules in line with fundamental rights (e. g., the right to private and family life under Article 8 of the European Convention on Human Rights and Article 7 of the Charter of Fundamental Rights of the EU).
The principle of proportionality requires that any measure taken be appropriate and necessary to achieve a legitimate objective, and not go beyond what is required. Moreover, procedural guarantees must be upheld: under Article 30 of the Directive, any person against whom a restriction is contemplated must be informed of the decision in writing, notified of its grounds and granted the right to appeal.
In the case at hand, according to reports, the four individuals were involved in lawful protests, including a mass sit-in at the Berlin central train station, a road blockade and the occupation of a building at Berlin’s Free University. None of the protesters are accused of any particular acts of vandalism. Instead, the deportation orders cite the suspicion that they took part in a ‘coordinated group action’. Moreover, all four are accused, without evidence, of supporting Hamas, a group which Germany has designated as a terrorist organisation. Whilst Article 27(2) of Directive 2004/38/EC does not require a prior criminal conviction to justify expulsion, it strictly limits such measures to cases involving the individual’s personal conduct representing a ‘genuine, present and sufficiently serious threat’ to a fundamental interest of society. In the absence of a criminal offence or clearly demonstrated individual threat, expulsion risks becoming arbitrary and contrary to EU law.
Scholars have highlighted the risk that Member States increasingly rely on precautionary logic, displacing criminal law guarantees through administrative immigration procedures. Mitsilegas warns of the rise of the ‘dangerous citizen’ model in EU law, where action is taken based on risk, not guilt. Kochenov and Pirker go further, arguing that the flattening of distinctions between criminal and administrative responses results in a normatively incoherent regime of ‘internal banishment’ for EU citizens. Similarly, Meduna critiques the erosion of legal certainty and warns that reliance on vague security claims undermines the foundational principles of EU citizenship and mutual trust between Member States. In his view, the Court’s post-2004 jurisprudence has too often ceded interpretive control to national authorities in the name of public security, allowing expulsion to function as a precautionary and symbolically punitive tool. These concerns are echoed also in Mancano’s critique of the CJEU’s ‘probationary’ model of citizenship, where expulsion is justified by an abstract appeal to public security. In this light, precautionary expulsions of EU citizens without formal charges or proper trials threaten to normalise a security-based paradigm of citizenship that is legally tenuous and normatively corrosive.
The legal risks are compounded by the precedent this sets: that Member States may rely on administrative immigration powers – rather than initiating criminal proceedings – to address contested forms of conduct. Whilst EU law guarantees the right to an effective remedy, the use of immigration law in politically sensitive contexts may still bypass the evidentiary and procedural rigour required in criminal proceedings.
One may argue, correctly, that deportation orders are subject to judicial review – often with suspensive effect – and that national courts may ultimately overturn unlawful decisions. However, this remedial pathway does not fully mitigate the risks posed by the initial use of administrative expulsions. The very issuance of a deportation order, particularly on politically charged grounds, can generate legal uncertainty and precarity, reputational damage, emotional and financial strain, even where the order is later overturned. Moreover, individuals may sometimes lack the legal support, language skills and/or financial means to mount an effective defence – especially in urgent cases with short deadlines. As such, the procedural availability of appeal does not necessarily shield individuals from the chilling effects of pre-emptive, security-driven state actions. Rather than neutralising the chilling effect, ex post judicial review may in some cases reinforce the perception that political activism carries disproportionate legal risk, particularly for non-nationals.
Staatsräson and the German-Israeli Relationship
In a letter sent to Murray, German authorities cite the concept of Staatsräson (‘Reason of State’) as part of the grounds for the deportation. The letter says: “The right of Israel to exist, its protection, and the integrity of the State of Israel are matters of German state policy” and that this is “especially significant given Germany’s historical responsibility toward Jewish people in its federal territory and in the State of Israel”. It also adds that “at no time – whether domestically or abroad – should there be any doubt that opposing movements within Germany will be tolerated in any way”.
The Merriam-Webster Dictionary defines Reason of State as “a motive for governmental action based on alleged needs or requirements of a political state regardless of possible transgressions of the rights or the moral codes of individual persons”. Chancellor Angela Merkel famously declared in 2008 that “Israel’s security is part of Germany’s reason of state”. This political doctrine has since informed Germany’s foreign and domestic policy, often with far-reaching implications. In June 2024, even the German citizenship law was amended to require individuals applying for naturalisation in Germany to affirm Israel’s right to exist.
However, critics argue that invoking Staatsräson in migration or protest-related contexts represents a dangerous conflation of foreign policy and civil liberties. Germany’s commitment to Israel often manifests as a rigid defense of Israeli state policy, rather than a principled stand against antisemitism.
The deportations of pro-Palestinian activists, particularly those from within the EU, suggest that this doctrine is now being operationalised domestically to suppress dissent. This trend has intensified in the aftermath of 7th October 2023, when Hamas launched a military attack on southern Israel, followed by Israel’s genocidal campaign in Gaza, which triggered widespread protests across Europe and the rest of the world. In Germany, several pro-Palestinian demonstrations were prohibited, academic events cancelled, activists surveilled, arrested or detained, and prominent figures banned from entering the country. Such measures may be interpreted as a form of ideological policing under the banner of Staatsräson. They prompt questions about whether Germany is equating criticism of Israel with threats to public security and, by extension, using its historical guilt as a tool for curtailing democratic freedoms.
This selective treatment of political expression casts doubts also on unequal enforcement and the appearance of discriminatory state practice. Whilst pro-Palestinian protests have been banned, disrupted or criminalised, mass demonstrations in support of Ukraine, denouncing Russia’s war crimes, have been broadly permitted and publicly supported. Both forms of protest involve expressions of solidarity in the context of armed conflict, yet only one is systematically framed as a security threat. Such disparity invites the inference that political expression is not being regulated on neutral grounds of public order, but filtered through ideological lenses linked to Staatsräson. The practice of selectively restricting political expression based on viewpoint – more so when coupled with administrative expulsions – raises serious concerns under Article 21(1) of the Charter of Fundamental Rights of the EU, which prohibits discrimination also on the basis of political opinion.
Beyond the moral and symbolic layers, the legal implications of invoking Staatsräson are murky. The concept is not codified in the German Basic Law (Grundgesetz) and remains largely political. Yet, it is increasingly treated as a quasi-constitutional principle, used to justify restrictions on fundamental rights. The lack of clear legal parameters creates a risk of arbitrary enforcement, especially when national authorities claim wide discretion in interpreting what constitutes a threat to the constitutional order.
From a comparative constitutional perspective, no other EU Member State has embraced such a broad and politically charged doctrine to limit civil liberties in the name of foreign policy allegiances. The German case therefore deserves close scrutiny, not only for its domestic impact but for the precedent it sets within the EU. Whilst German authorities have not explicitly invoked Article 4(2) TEU or the concept of constitutional identity, the reasoning advanced in Murray’s deportation order – including references to Germany’s ‘historical responsibility’ towards Israel and the imperative that ‘opposing movements’ not be tolerated – suggests that Staatsräson is being treated as a foundational principle of the German constitutional order. If such reasoning becomes an accepted basis for derogating from EU fundamental freedoms, it risks legitimising other ideologically driven restrictions across the Union. The misuse of constitutional identityarguments – whether in the name of nationalism, religion or alleged ‘historical duty’ – can become a tool of illiberal governance. The EU must therefore remain vigilant when national political doctrines are elevated in ways that undermine the shared legal framework of rights and liberties that bind the Union together.
The Impact on Freedom of Expression
Germany’s deployment of Staatsräson as a quasi-constitutional doctrine – particularly in cases involving pro-Palestinian activism – illustrates how national ideological commitments can begin to override supranational legal obligations. When dissent is framed not as a democratic exercise but as a threat to public order, the legal boundaries protecting fundamental rights begin to erode.
The German Basic Law enshrines the right to freedom of expression, assembly and association in Articles 5 and 8. At European level, these rights are protected by the Charter of Fundamental Rights of the EU (Articles 11 and 12) and the European Convention on Human Rights (Articles 10 and 11). These legal guarantees are essential for safeguarding pluralism, democratic participation and the rule of law.
The deportations of Bert Murray, Shane O’Brien and Kasia Wlaszczyk appear to challenge these fundamental protections. Both individuals reportedly engaged in peaceful and lawful protest – activities that should be protected, not censored. Whilst German law provides the right to judicially challenge deportation orders, the reliance on opaque administrative assessments in the initial decisions raises concerns about the bypassing of criminal due process standards. Such practices risk undermining legal certainty, as individuals can no longer clearly anticipate the legal boundaries of protected political expression, and shift the burden to prove their innocence onto individuals after politically motivated measures have already been taken. These decisions risk creating a dangerous precedent: that political expression (particularly when it touches on controversial foreign policy issues) may be treated as a security threat.
Moreover, the ambiguity surrounding what constitutes antisemitism in public discourse – especially when criticism of Israeli policy is involved – compounds the risk of overreach. The conflation of anti-Zionism with antisemitism in some official narratives leads to a scenario where legitimate political expression may be misclassified and sanctioned.
The European Court of Human Rights has consistently held that political speech enjoys heightened protection, especially when it addresses matters of public interest (Handyside v. UK, Lingens v. Austria, Steel and Morris v. UK). Germany’s current trajectory, which appears to penalise individuals for their political affiliations and expressions rather than concrete unlawful acts, stands in tension with these principles.
Conclusion
The deportations of Kasia Wlaszczyk, Bert Murray and Shane O’Brien expose the fragility of rights that are presumed to be guaranteed under the European legal order, highlighting the susceptibility of liberal democracies to nationalist and ideological pressures.
At a time when the EU is increasingly challenged by internal and external threats to its rule-of-law framework, cases such as these test its credibility. Will the Union uphold the rights of its citizens against politically motivated state action, or will it allow Member States to weaponise security rhetoric and historical guilt to suppress dissent?
Germany’s historical responsibility cannot be used to justify the erosion of civil liberties or the expulsion of EU citizens for their political beliefs. Doing so not only undermines EU law, but also betrays the very lessons of history that Staatsräson claims to honour.
What is truly at stake is the resilience of a supranational legal order predicated on shared values. If citizens cannot rely on a common standard of rights across borders, the notion of EU citizenship loses its substantive meaning. In protecting the rights of those who challenge state orthodoxy, we protect the essence of democracy itself. Now is the time for EU institutions, courts and civil society to reaffirm their commitment to those values. How the EU responds now will determine whether it can still credibly claim to be a union of rights.
Marzia Genovese is a PhD candidate in European Law at the University of Bologna (Italy). She focuses on the interplay between trade, sustainability and fundamental rights in the EU legal order. She has worked for the main energy company in Italy, as well as NGOs in Latin America and Europe on a wide range of matters, including environmental justice and legal defense of indigenous communities.