PhD Research Essay, 2022
Explaining Pushbacks at Europe’s Borders
Introduction
Pushbacks are an affront to the international refugee protection system because they risk refoulement, or the forced return of an individual to a country they are likely to suffer violence, degrading treatment, and/or persecution of some kind. The principle of non-refoulement is enshrined in Article 33 of the 1951 Convention Relating to the Status of Refugees, Article 3 of the EU Convention on Human Rights, and Article 3 of the Convention Against Torture. In fact, the principle has become so fundamental to international law, many scholars have argued that it has become a jus cogens norm, which means non-refoulement is absolute in nature: There is no argument for overriding its application. Importantly, non-refoulement also applies equally to all refugees, even those whom a state has not yet recognized as such, including asylum seekers.
In legal parlance, pushbacks, generally, refer to “collective expulsion,” which in Čonka v. Belgium (2002), the European Court of Human Rights defined as “any measure compelling aliens, as a group, to leave a country, except where such a measure is taken on the basis of a reasonable and objective examination of the particular case of each individual alien of the group.” Thus, if the state fails to individually assess the protection needs of each applicant, a collective expulsion can be said to have occurred. Pushbacks also violate several Articles of both the European Convention on Human Rights as well as the European Union Charter of Fundamental Right, especially Article 4 of Protocol 4 to the Convention, which explicitly forbids expulsions, and Article 18 of the Charter, which guarantees the right to asylum.
Even though pushbacks clearly violate European human rights law, they have become commonplace both within Europe and on its borders. The Border Violence Monitoring Network, an organization collecting testimonies from people who experience pushbacks in the Balkan region, notes that in December 2021 alone, they took thirty reports of pushbacks in the Balkans, which impacted 250 people. In a June 2020 investigation of pushbacks from Greece to Turkey, Amnesty International uncovered twenty-one pushbacks over a three-month period. And between July 5 and December 31, 2016, close to twenty thousand people were denied access at the Hungarian border and were escorted back into Serbia. Pushbacks have become so widespread in Europe that many have argued they have taken on a systemic character, becoming a national policy rather than isolated incidences. As Amnesty International explains regarding Greek pushbacks: “The use of pushbacks by Greece cannot be considered as a response to exceptional events or the actions of rogue actors. Rather, it is a de facto policy of border
management that relies on the coordinated efforts of multiple authorities in Greece.”
A widening gap has emerged between what European law says about pushbacks and the actions of European states. Despite this extensive case law, pushbacks continue apace. European border zones have transformed into extralegal spaces in which human rights cease to exist. What accounts for this divergence between law and practice in Europe? What explains the increasing confidence of EU states to commit pushbacks? This paper analyzes why pushbacks have become a normalized part of European border management and why border officials can commit violent acts towards asylum seekers with immunity. It argues that two primary reasons can account for this phenomenon: the prioritization of border control over human rights and the lack of consequences for member states who violate the human rights of asylum seekers.
Prioritizing Border Control over Human Rights
In its rulings, the European Court of Human Rights has gone to great lengths to protect the rights of refugees and asylum seekers. Yet European border agencies have put an equally strong emphasis on protecting the integrity of Europe’s borders—actions that have often been championed by the European Commission itself. This tension has produced an untenable situation in which the European Union tries to balance human rights and border security, leading to the “contradictory cohabitation of illegal practices and legal norms.”
The Illegality of Pushbacks
The European Court of Human Rights (hereafter “the Court”) has routinely found states in violation of Article 4 of Protocol 4 and has further widened the scope of what constitutes a pushback. The case Hirsi Jamaa and Others v. Italy (2012) concerned a group of Somali and Eritrean migrants who left Libya for Italy but were intercepted by the Italian coastguard thirty nautical miles south of Lampedusa and then returned to Libya. The Court ascertained that because the harsh treatment of migrants in Libya was well-known, the Italian authorities should have realized that the forced return would have likely resulted in refoulement. Moreover, just because the applicants did not explicitly ask for asylum protection, it did not exempt Italian authorities from their responsibility in ensuring the migrants were not subjected to degrading or inhuman treatment in Libya or to return to their country of origin without proper examination of their individual cases. The case was also significant because it asked the Court to determine whether Article 4 of Protocol 4 applied to a case involving the removal of aliens to a third state and whether in the case under study that removal constituted collective expulsion. The Court argued that nothing in the Convention precluded applying the Article to extraterritorial situations. To read the Article in such a limiting way would leave a significant portion of migratory movement outside its scope, depriving migrants of their right to have their personal circumstances examined. The Court admitted that both “expulsion” and “jurisdiction” were territorial, yet in cases “where a State had had, exceptionally, exercised its jurisdiction outside its national territory, it could accept that the exercise of extraterritorial jurisdiction by that State had taken the form of collective expulsion.” To argue otherwise would leave the sea as an extralegal space where the rights of migrants, asylum seekers, and refugees could be violated with impunity. Importantly, the Court also argued that managing migration, regardless of the inherent difficulties involved, does not justify the use of practices contravening the Convention and its Protocols. As a result of their findings, the Court ruled Italy had violated Article 4 of Protocol 4.
The Court has also expressed the importance of intercepting officials determining the individual accounts of each person under their jurisdiction. In Sharifi and Others v. Italy and Greece (2014), the Court, for example, ruled that Italy had violated Article 4 when it returned thirty-two Afghan nationals, two Sudanese nationals, and one Eritrean national to Greece without hearing their individual accounts. Moreover, since the Italian authorities failed to investigate how the Greek state would apply their asylum legislation in practice, the collective expulsion of these individuals ran the risk of chain refoulement, in which they would be deported from Italy to Greece and then to their country of origin, where they could experience degrading or inhuman treatment. The Court ruled that the Dublin system—the EU’s mechanism for determining which member state is responsible for examining an asylum application—must be administered in a way compatible with the Convention. Collective returns, thus, cannot be justified by simple reference to the system, and the returning state must ensure that the destination country offers asylum protections to ensure that the people concerned are not simply returned to their country of origin without an assessment of their claims.
The Court has also ruled that irregular entry into a country does not justify a pushback. M.H. and Others v. Croatia (2021) concerned the case of Madina Hussiny, a six-year-old girl from Afghanistan, who in November 2017 was hit and killed by a train in Serbia after Croatian border guards had refused her and her family entry. The previous night, the Afghan family of fourteen, had crossed irregularly into Croatia but were soon apprehended by Croatian police. Although the family had indicated to the police they would like to apply for asylum, the family were instead driven to the railway line and ordered to return to Serbia. The train struck Hussiny shortly thereafter. The applicants complained that the Croatian police had subjected them to a collective expulsion after having their request for asylum denied. They argued that crossing the Croatian border irregularly was their only option to access international protection. In their assessment of the case, the Court maintained that irregular entry into a country does not preclude the applicability of Article 4 of Protocol 4, nor does the time the individuals spend therein. Moreover, the Court was not convinced that legal and accessible avenues of seeking international protection existed for the applicants; therefore, the Croatian authorities had violated Article 4 of Protocol 4.
In Shahzad v. Hungary (2021), the Court sought to determine whether Hungary’s forced removal of twelve asylum seekers constituted collective expulsion, in violation of Article 4 of Protocol No. 4. The case specially concerned the “apprehension and escort” measure of the Hungarian State Borders Act, which allows police to remove foreign nationals irregularly staying in Hungarian territory, without a decision pertaining to their application for international protection, to the external side of the Hungarian border fence on the Serbian border. Hungarian border officials built the fence eight kilometres from the actual border, creating a kind of extra-legal no-man’s land in which any migrant apprehended in that strip of land could be deported back to Serbia without having an opportunity to apply for protection.
Displaced persons could only apply for asylum at designated transit zones, and at the time of Shahzad’s crossing, border officials were only admitting fifteen asylum seekers a day to each transit zone. Entry to these zones was based on the person’s place on waiting lists, which are an informal tool used to decrease the number of asylum applicants. These lists force asylum seekers to wait in Serbia, sometimes for months, for their name to be called. Given this system in place, many decide to cross irregularly into Hungary rather than wait months.
In deciding whether Hungary violated Article 4, the Court took the above into consideration as well as past case law on expulsions. The Court defined “expulsion” as
“any forcible removal of an alien from a State’s territory, irrespective of the lawfulness of the person’s stay, the length of time he or she has spent in the territory, the location in which he or she was apprehended, his or her status as a migrant or an asylum-seeker and his or her conduct when crossing the border.” Thus, the Court ruled that irregular nature of Shahzad’s crossing was irrelevant as well the limited time he had spent in Hungary; Article 4 still applied.
The Court determined that the Hungarian police had denied Shahzad the opportunity to apply for asylum. It noted that he had asked the police for protection in both English and Urdu but was refused. After removing him from Hungary, officers provided him no way of reaching the transit zones. And if he had managed to get to one, he would have likely had to wait for months to apply for asylum. In essence, then, Shahzad had no feasible way to apply for asylum. The Court also examined whether the expulsion of Shahzad and his companions was collective in nature, the definition criterion of which being the lack of “a reasonable and objective examination of the particular case of each individual alien of the group.” Based on the above evidence, the Court ruled the Shahzad was removed from Hungary before having his case examined or being subjected to any identification procedure; thus, his expulsion was collective in nature.
The Legality of Pushbacks
Yet despite these rulings, and the evident illegality of pushbacks, they exist in Europe on a large scale. As legal routes to asylum in Europe continue to evaporate and migration control continues to be externalized, pushbacks become another tool of states to police their borders, so much so that some scholars have argued they should be conceptualized as legalized action that is justified by the securitization paradigm and condoned by the state. According to Bužinkic´ and Avon, there is a need to “reframe [the] illegality of this securitization doctrine and its regimes of policing and militarisation actions and regard them as legal and/or becoming legal-ized.” Indeed, pushbacks have become systemized and have metamorphosed from an isolated practice to a regular tool states use to prevent asylum seekers from accessing international protection. For seventy years, refugee law has tried to balance human rights with state rights, and it has become increasingly clear that the latter has gained in prominence. Border control has superseded the rights of refugees, which this statement from the Schengen Borders Code tacitly implies:
Border control comprises not only checks on persons at border crossing points and surveillance between those border crossing points, but also an analysis of the risks for internal security and of the threats that may affect the security of external borders. It is therefore necessary to set out the conditions, criteria and detailed rules governing checks at border crossing points and surveillance at the border.
The discourse of threat has grown more important than the discourse of human rights, and in the border zones of Europe, where the rule of law has become increasingly irrelevant, it is refugee and asylum seekers who suffer the most as a result. Pushbacks not only represent the extralegal activities of individual police officers but also constitute a form of systemic violence against refugees as well as an example of the criminalization of migration: “Police behaviour reveals consistent, planned and systematic measures of deprivation of freedom of movement without a legal basis, the denial of access to international protection and violation of the non-refoulement principles.” The refugee has transformed into a threat, a symbol of illegality, against which the state may justifiably deploy its power to stop its spread.
At times, the European Commission has also supported pushbacks in the name of border control. In early 2020, Turkish President Recep Tayyip Erdoğan opened the Turkish border, allowing thousands of migrants to head towards Greece, because Brussels had failed, according to the president, to honour its part of the 2016 agreement, in which the European Union would pay Turkey billions of dollars to keep Syrian refugees, as well as others, from travelling to Europe. In response, Greece suspended its asylum procedure, and the Greek police, army, and special forces, along with support from FRONTEX, used tear gas and rubber bullets to push the people back into Turkey. On one occasion, the coast guard fired at a rubber dingy approaching the shore by sea. Instead of reprimanding Greece’s reaction, and its flagrant disregard for European law, the Commission lauded the government’s reaction, with the president going so far as calling Greece the “shield” of the European Union. At no time did the Commission emphasize the importance of not using excessive force against asylum seekers, nor did the organization mention that it violates EU law for a member state to unilaterally suspend the reception of asylum applicants.
The European Court of Human Rights has even implicitly supported pushbacks as a mechanism of border control. Even though the Court has often found states in violation of Article 4 of Protocol 4 of the Convention, as illustrated above, its ruling in N.D and N.T. v Spain (2020) has concerned some legal experts in that it may be read as a subtle endorsement of pushbacks in certain situations. The case concerned two applicants who arrived to Morocco in 2014 after fleeing from their home countries, Mali and Côte d’Ivoire. On August 13, 2014, both men, along with around six hundred other migrants, tried to cross the border fence separating Moroccan territory from the Spanish enclave of Melilla. The two applicants succeeded in breaching the fence but were immediately apprehended by Spanish border police and returned to Moroccan authorities. The two men alleged that the Spanish police provided them with no opportunity to explain their individual circumstances before being return and were, thus, victims of a collective expulsion under the meaning of Article 4 of Protocol 4.
The Spanish government argued that the case law the Court was relying upon, namely, Hirsi Jamaa and Others, did not apply to the present case because although the latter extended Article 4’s applicability to extraterritorial situations, the Court drew a distinction between “migrants having taken to the sea, often risking their lives, and not having managed to reach the borders of a State … [and] those travelling by land.” Thus, the Court had to decide whether Article 4 applied to the immediate and forcible return of aliens from a land border—that is, whether the prohibition of expulsion also covers the non-admission of aliens at a state border. Determining whether the non-admission of aliens could be equated to expulsion under Article 4, the Court observed that the prohibition of refoulement includes both non-admission and rejection at the border. Thus, if the non-admission of refugees can be equated to their return, then it remains within the state’s jurisdiction to ensure that their non-admission does not result in refoulement. Non-admission without a proper inspection of each individual’s individual case could be tantamount to expulsion. For the Court, them, no reasons exist “to adopt a different interpretation of the term ‘expulsion’ with regard to forcible removals from a state’s territory in the context of an attempt to cross a national border by land.”
The Court was satisfied that Spanish Guardia Civil had forcibly expelled the group of migrants from Spanish territory to Morocco, but it still had to decide whether the expulsion was collective in nature. Based on previous case law, the Court understood collective expulsion as compelling aliens, as a group, to leave a country “except where such a measure is taken on the basis of a reasonable and objective examination of the particular case of each individual alien of the group.” If the state allows each individual to submit arguments against their expulsion, then a collective expulsion has not occurred, even if a number of aliens are subject to the same decision. Similarly, if an expulsion results from the applicant’s own conduct, then the State has not violated Article 4 of Protocol No 4.
This important caveat played a role in the Court’s ultimate ruling in this case. In situations in which individuals irregularly cross a border by taking advantage of the group’s large number, the Court can consider whether the state provided genuine access to a legal means of entry. In the present case, the Court ruled that Spain had not failed to provide such access, since the applicants could have asked for international protection at the border. Thus, the Spanish authorities did not violate Article 4 of Protocol 4 in their expulsion of the applicants. The ruling, however, did confirm that states must operate their land borders in manner protecting the principle of non-refoulement.
In essence, the Court ruled that Spain’s refusal to admit the applicants did not violate the prohibition on collective expulsions because of the migrants’ own behaviour—a ruling that sets a dangerous precedent. Focusing on the actions of the applicants, and not whether the Spanish authorities complied with the European Convention on Human Rights, seems to predicate the enjoyment of human rights on good individual behaviour. In this logic, human beings do not have rights but only become worthy of them through good conduct. As Carrera writes, “The Grand Chamber’s choice to first assess whether the individual is worthy of human rights contradicts Article 1 of the ECHR and the Strasbourg Court mandate to impartially and independently supervise States parties’ compliance with everyone’s human rights within their jurisdiction.” This ruling sends a message to EU member states that it is not always illegal to pushback people without first individually assessing their status and determining whether they are in need of protection and at risk of refoulement. The Court’s ruling tacitly supports states’ use of force and other deterrent methods when presented with a migration influx, even though the same Court has ruled that the challenges of managing migration never justify the violation of the European Convention on Human Rights and the Charter.
Although much European caselaw has supported the human rights of asylum seekers in their efforts to access international protection, and thus condemning pushbacks, the European Commission’s focus on border security and making international protection that much more difficult to reach has provided implicit, and at times explicit, support to the legally suspect conduct of states in terms of securing their borders, including pushbacks.
A Lack of Consequences
On February 21, 2022, Filippo Grandi, UN High Commissioner for Refugees, denounced the violence occurring at European borders and called on states to do more to prevent it: “Violence, ill-treatment and pushbacks continue to be regularly reported at multiple entry points at land and sea borders, within and beyond the European Union despite repeated calls … to end such practices…. What is happening at European borders is legally and morally unacceptable and must stop. Protecting human life, human rights and dignity must remain our shared priority.” Grandi reminded states that they must uphold their commitment to fundamental human rights, including the right to asylum. “How Europe chooses to protect asylum seekers and refugees matters,” he noted, “and is precedent setting not in the region but also globally”
The European Commission has pointed to the proposals outlined in the New Pact on Migration and Asylum as a possible solution to the problem of pushbacks. The Pact envisions a comprehensive approach to migration management, including asylum procedures and returns,
and aims to implement a uniform system across the EU that quickly identifies people in need of international protection, particularly for mixed migration flows, and those who are ineligible. For this purpose, the Commission has proposed a pre-entry screening test, which would be applicable to all third-country nationals arriving to Europe’s external borders without authorization. The screening will consist of the following checks:
(a) A preliminary health and vulnerability check;
(b) An identity check against information in European databases;
(c) Registration of biometric data (i.e. fingerprint data and facial image data) in the appropriate databases, to the extent it has not occurred yet; and
(d) A security check through a query of relevant national and Union databases, in particular the Schengen Information System (SIS), to verify that the person does not constitute a threat to internal security.
Such a screening should expediate the identification of each third-country national and place them in the appropriate procedure: border, asylum, or return.
To ensure that the screening process respects EU and international law, each member state will create an independent monitoring mechanism to safeguard the human rights of the persons concerned, especially access to the asylum procedure and compliance with the principle of non-refoulement. The mechanism will also ensure that national rules concerning detention and its duration are followed. Each member state will implement safeguards to guarantee the mechanism’s independence, for which the Fundamental Rights Agency will issue general guidance.
Many scholars have already highlighted problems with this proposal, not least of which is the screening’s focus on managing mixed migration flows and not protecting the human rights of third-country nationals. Since border officials should already be complying with EU and international law, this screening does not add any extra layer of protection for asylum seekers. Beyond this issue, NGOs have specifically outlined four concerns about the monitoring mechanism: its scope, independence and financing, member state accountability, and consequences for those found in violation of EU and international law. In terms of scope, some human rights groups have wondered whether the proposed mechanism will monitor the behaviour of border guards who apprehend migrants away from official border crossings. According to the screening regulation, all people apprehended trying to irregularly cross a border, or those living without documentation in the country, will be screened at facilities either at or close to the external border. During the screening process, border guards must not only check the identity of the people but also provide them with information about the asylum process. However, since many pushbacks occur away from the official border crossings, many human rights organizations have wondered whether monitors will be able to observe the behaviour of border guards in the field.
Any monitoring mechanism will only protect the rights of asylum seekers if it is independent and has financial and operational autonomy. It will additionally require the power to conduct unannounced visit as well as have access to all relevant documents, places, and people. The monitoring body must be able to publish reports, make recommendations, and make referrals to the national authorities, and given member states’ present reluctance to effectively monitor pushbacks, it seems unlikely that they will grant this body such unfettered power to interfere in their internal affairs. Human rights organizations have recommended that instead of created a monitoring mechanism, the European Commission use existing national human rights institutions, since they are accredited in line with international standards and must provide evidence of their independence, plurality, and effectiveness. They also have established connections with other monitoring bodies within member states, including both the national ombudsmen and the EU one. Again, it remains to be seen whether states will acquiesce to the participation of such independent and strong institutions in monitoring their screening process.
Accountability for those who violate the screening process is another issue with the monitoring mechanism. Pushbacks often go unpunished in Europe, and recent examples only further concern that the consequences for violating the rights of asylum seekers will not be strong enough to curtail such violations. In November 2018, Croatia’s ombudswoman, Lora Vidović, travelled to the police station of Donji Lapac, in central Croatia near the border with Bosnia Herzegovina, to access police records about the treatment of migrants. The station commander, however, refused her request. Although the Croatian parliament had given Vidović the authority to request information and documents from any public authority suspected of human rights violations, the commander of Donji Lapac only told her that the police are acting in line with the law. Thus, the question as to whether or not a state would follow the recommendations of the monitoring body, or would even allow them access to important documents, is, at best, uncertain.
Uncertainty also exists about the consequences for member states who are found to violate EU law. The European Commission has noted that the proposed independent mechanism could address key shortcomings in the presently operating Schengen evaluation monitoring mechanism, and for those states found in violation of EU and international law, they could have an infringement procedure launched against them, in which the Commission refers a state to the European Court of Justice for failing to follow EU law. Yet the Commission already has the infringement procedure at its disposal, and it has done little to curtail the pushback practices of states. The Commission to date has only referred Hungary to the Court for its failure to comply with EU rules on asylum and return. In a 2020 case, the Court found that Hungary’s rule and practice concerning accessing asylum breached provisions of the Asylum Procedures Directive (Directive 2013/32/EU), the Reception Conditions Directive (Directive 2013/33/EU) and the Return Directive (Directive 2008/115/EC). Hungary did not make any changes based on the Court’s ruling, so the Commission last November referred Hungary back to the Court, asking it to impose financial sanctions on the country in the form of a lump sum or daily payments. As the Court’s 2020 ruling was not enough to persuade Hungary to curtail its pushback practices, it is difficult to see how the infringement procedure will incentivize states not to commit them.
In summary, although the Commission’s proposal recognizes the problem of pushbacks, its recommendations will do little to stop them. The proposal seems much more concerned about controlling mixed migration flows than protecting the human rights of the people comprising them. As it stands, the EU does not have in place effective mechanisms to prevent pushbacks from occurring at its external borders. The EU’s lofty human rights rhetoric has not been matched by systems that actually ensure such rights are respected. The mechanisms in place are rather toothless and easily circumventable by states, which inevitably lead to more pushbacks.
Conclusion
European refugee and asylum law resembles a paradox. Even though an impressive amount of European case law exists explicitly stating the illegality of pushbacks, an even more voluminous body of journalistic and activist work highlights the ubiquity of the practice. Instead of a place where the legal rights of asylum seekers are protected, Europe’s border zones have become an extralegal space where state officials can deny these same rights with impunity. This paper has suggested that two primary reasons account for this divergence between theory and practice, between what the law actually says and how it is administered. Although a strong legal discourse exists identifying pushbacks as illegal, an even stronger discourse about border protection has emerged and superseded the human rights one in importance. The European Commission has placed greater emphasis in supporting the codes and regulations that strengthen border control than in supporting laws that protect asylum seekers against pushbacks. Fighting irregular migration has become a greater priority for Europe than protecting the rights of the displaced.
The European Commission’s shift in prioritization is also evident in the lack of consequences for committing pushbacks. Despite the illegality of pushbacks, the European Commission has done little to punish states that continue to pushback asylum seekers and refugees. Due to date, only Hungary has had an infringement procedure brought against it, which Budapest has largely ignored. Border-monitoring schemes have proven largely ineffective. Croatia, for example, recently implemented such a mechanism after months of discussion with the European Commission, which had insisted on the country finding a solution to the continuing reports of pushbacks from the country. Although this border-monitoring method aims to prevent pushbacks from happening, little evidence suggests that the scheme will actually do that in practice. Human Rights Watch, for example, has highlighted the many flaws of the scheme. Based on early reports, it seems that scheme’s mandate will only extend to police stations around the border, border crossing points, and detention centres. However, since many of the unlawful practices have been recorded outside these official areas, such as deep inside the country’s territory, it seems likely that these violations will continue. And the recommendations laid out in the New Pact on Migration and Asylum only repackage existing policies, which do not increase the consequences for states who commit pushbacks.
Until the European Commission treats pushbacks with the seriousness they deserve—which could involve recommending criminal charges be brought against violating officers—and stops prioritizing border control over the rights of asylum seekers and refugees, pushbacks will continue to occur at Europe’s borders.
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