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The legal battle to stem the EU’s border pushback boom

Illegal expulsions have become commonplace in recent years. Can strategic litigation help rein them in?

The Mavrovouni refugee camp on the Greek island of Lesvos in March 2021. Greek authorities are accused of systematically pushing back migrants and asylum seekers from Lesvos and other arrival points. Elias Marcou/REUTERS
The Mavrovouni refugee camp on the Greek island of Lesvos in March 2021. Greek authorities are accused of systematically pushing back migrants and asylum seekers from Lesvos and other arrival points.

Last year, tens of thousands of asylum seekers and migrants were forced back from EU borders by European security forces. Exact numbers – or even meaningful estimates – are hard to come by because the expulsions, known as pushbacks, are often carried out secretly in remote border areas where watchdogs and rights groups have a hard time keeping track. 

 

Pushbacks are prohibited by EU and international law, and yet European governments have seemingly been able to expand their use with impunity, spurring legal efforts to try to stem the worrisome trend and hold them to account.  

 

For their part, key EU transit states such as Greece and Croatia deny engaging in illegal activity at their borders despite widely documented evidence that pushbacks – often accompanied by violence and abuse – are routinely being carried out.

 

“Greece protects the external borders of the European Union, in total compliance with international law and in full respect of the [EU] Charter of Fundamental Rights,” Greek Migration Minister Notis Mitarachi insisted early last year.

 

However, pushbacks at EU borders have become so widespread that UNHCR, the UN’s refugee agency, has warned that they “risk becoming normalised, and policy based”. 

 

“The law clearly prohibits pushbacks,” Niamh Keady-Tabbal, a PhD researcher at the Irish Centre for Human Rights at the University of Galway, told The New Humanitarian. “But states often try to circumvent this prohibition.”

 

What the law says

 

Depending on how they’re carried out, pushbacks can violate a number of EU and international laws. 

 

Collective expulsions, for example, are prohibited by both the EU Charter of Fundamental Rights and the European Convention on Human Rights, while refoulement – the act of forcibly returning someone to a country where they risk being tortured or could face other serious human rights violations – is prohibited by a number of EU laws and codes as well as the UN’s 1951 Refugee Convention. The EU Charter of Fundamental Rights also guarantees the right to seek asylum according to the criteria established by the Refugee Convention. 

 

European courts have upheld the illegality of pushbacks, specifically in cases involving Italy in 2012 and Hungary in 2020. And members of the European Commission, the EU’s executive branch, have acknowledged this, even when speaking about the need to protect EU borders. “Pushbacks are clearly illegal. People have the right to apply for asylum,” Ylva Johansson, the EU’s commissioner for home affairs, said in January 2022.  

 

The multiple, often overlapping legal frameworks that apply to pushbacks and the governance of borders, however, leave room for states to muddy the legal waters by emphasising their commitment to controlling who enters their territory over their human rights obligations, according to Keady-Tabbal. “When laws regulating border control are read in isolation, human rights obligations appear secondary,” she said. 

EU Home Affairs Commissioner Ylva Johansson and Greek Migration Minister Notis Mitarachi speak at a joint press conference on the Greek island of Lesvos, in March 2021.
Elias Marcou/REUTERS
EU Home Affairs Commissioner Ylva Johansson and Greek Migration Minister Notis Mitarachi speak at a joint press conference on the Greek island of Lesvos, in March 2021.

EU institutions have tried to strike a balance, upholding the right of member states to control their borders while saying that border enforcement must be done in accordance with “obligations deriving from international humanitarian law and international human rights law, including in particular the prohibition of refoulement”, as a 2021 briefing paper put it. 

 

But that messaging hasn’t stopped pushbacks from continuing and even increasing. In 2021, when Belarusian President Alexander Lukashenko opened a migration route from his country to neighbouring EU states in an attempt to put political pressure on the bloc, Poland, Latvia, and Lithuania responded by pushing people back from their borders en masse. They then introduced new legislation or amendments to existing domestic asylum laws that aimed to legalise the practice. 

 

And even as it has condemned pushbacks and attempts to legalise them, the European Commission has proposed a new regulation that would allow countries to reduce legal standards and human rights protections for asylum seekers in cases when migration is “instrumentalised” by other countries for geopolitical purposes. The regulation failed to gain enough support to be adopted late last year, but it could still be recycled in the future. 

 

Accountability at the EU level?

 

When it comes to violations of EU law, the European Commission has the ability to flex its muscles by initiating what are called infringement proceedings. These can result in cases being filed with the EU’s supreme court, the Luxembourg-based Court of Justice, and penalties can be imposed on member states that fail to bring their practices into line with bloc-wide legal standards. 

 

In 2015, the Commission initiated infringement proceedings against Hungary over its asylum policies. Between 2016 and 2020, while the proceedings were ongoing, Hungary pushed an estimated 50,000 asylum seekers back across its border to Serbia. 

 

In December 2020, the Court of Justice concluded that these pushbacks violated EU law. The following month, the EU border agency Frontex announced it would suspend its operations in the country. However, Hungary – which is also facing action from the EU to rein in other rule of law violations – has continued to push people back to Serbia despite the ruling.

 

Other than Hungary, the European Commission hasn’t initiated infringement proceedings against any other member states accused of systematically carrying out pushbacks, such as Greece.

“I think the lack of action by the Commission has created this atmosphere of impunity.” 

“There are enforcement mechanisms, but there are political decisions not to invoke them. Particularly in the case of Greece, there have been, and continue to be, political decisions not to use the tools that are available,” Catherine Woollard, director of the European Council on Refugees and Exiles (ECRE), a network of European NGOs, told the New Humanitarian.

 

“We’ve called upon the Commission many times to use its prerogatives to do something,” Tineke Strik, a member of the European Parliament for the left-wing Greens/EFA party, said at a press conference in Athens in September. “I think the lack of action by the Commission has created this atmosphere of impunity.” 

 

For its part, the Commission has proposed that member states establish independent mechanisms to monitor fundamental rights and EU laws at their borders. "The Commission expects national authorities to investigate any pushbacks and violence allegations, with a view to establishing the facts and properly follow-up any wrongdoing, if identified,” a spokesperson told The New Humanitarian. “We have a close dialogue with all Member States, including Greece on migration and border management."*

 

The Commission has proposed that member states establish independent mechanisms to monitor fundamental rights and EU laws at their borders. But human rights groups have raised concerns that the mechanisms sketched out by the EU are too narrow in scope and will lack true independence from national authorities – as was the case with a monitoring mechanism established in Croatia in 2021. 

 

Strategic litigation 

 

In the absence of stronger action at the EU level, lawyers and human rights organisations have turned to the courts to try to push for accountability – and sometimes to even try to stop pushbacks before they happen. 

 

These cases can end up in international courts because avenues for redress at the national level have either been exhausted or aren’t effective or available to people who have already been expelled from EU territory, according to Delphine Rodrik, a legal adviser at the European Center for Constitutional Human Rights (ECCHR).

 

Between March 2020 and March 2022, the Greek Council for Refugees (GCR), an NGO that offers legal support, filed 19 separate emergency applications – known as interim measures – with the European Court of Human Rights to try to prevent the expulsion of around 500 Syrian and Turkish asylum seekers from Greece. This international court in Strasbourg, France hears cases related to the European Convention on Human Rights.

 

The applications were all filed on behalf of people who had crossed the Greece-Turkey land border. In seven cases, people were brought to a refugee camp and allowed to submit an asylum claim. However, according to the GCR, the Greek authorities said they were unable to find the other asylum seekers or just didn’t respond. Some of the asylum seekers told the GCR they were pushed back even after the interim measures had been granted or when they were pending before the European Court of Human Rights.

 

ECCHR has also helped people who have experienced pushbacks lodge legal cases to try to establish accountability retroactively. The centre currently has cases pending with the European Court of Human Rights, the International Criminal Court, and the UN Human Rights Committee. ECCHR’s docket covers alleged pushbacks in Bulgaria, Croatia, Greece, Slovenia, and Spain.

“Such judgments would require the concerned states to change their practices to avoid similar violations from recurring, hopefully leading to a real end to pushbacks.”

If these cases were decided in favour of those pushed back, it would be a “sorely needed affirmation that pushbacks are unlawful under EU and international law rather than a legitimate tactic by which states can attempt to avoid and absolve themselves of their human rights obligations,” Rodrik said.

 

“Such judgments would require the concerned states to change their practices to avoid similar violations from recurring, hopefully leading to a real end to pushbacks, and signalling to other states that they must do so as well in order to comply with their human rights obligations.”

 

Another legal advocacy organisation, front-LEX, has filed a case at the EU Court of Justice aiming to hold EU border agency Frontex accountable for its alleged complicity in pushbacks in the Aegean Sea carried out by Greece. The goal of the lawsuit is to trigger Article 46 of Frontex’s charter, which requires the agency to suspend or terminate operations and financial support for member states’ border control efforts when fundamental rights violations occur or international protection obligations aren’t being upheld.  

 

Depending on the court’s ruling, “this case… could have an impact on every border where Frontex is operating and there are human rights violations happening,” said Omer Shatz, front-LEX’s legal director. 

 

Several legal advocacy organisations The New Humanitarian spoke to said they were hoping to have rulings in some cases this year but that the timelines in international courts are notoriously long and unpredictable. The outcomes of the cases – and what impact they might have on the proliferation of pushbacks at the EU’s external borders – are also unsure. 

 

After the European Court of Human Rights found that Italy had violated the rights of asylum seekers by pushing them back to Libya in a 2012 case, Italy and the EU developed a new approach of collaborating with the Libyan Coast Guard to curb migration without incurring legal responsibility

 

“It's always important to underline that the situation would be much, much worse if legal challenges weren't taken, because then you have a situation of total impunity, rather than partial impunity,” said ECRE’s Woollard. “[But] there's only so much that can be done through legal routes in the face of a state that is determined to act in a way that's unlawful.”

(*This response from the EU Commission was received shortly after publication. The article has been updated and republished.) 

Edited by Eric Reidy.

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