The unlawful pushback of refugees and asylum seekers at the borders of the European Union

Human rights are fundamental parts of our social and governance systems. These universal rights are inherent to every individual regardless of nationality, ethnicity, race or sex[1]. According to the Universal Declaration of Human Rights (UDHR), every individual has the right to life, liberty and security (Article 3), shall not be subject to torture (Article 5) or arbitrary arrest and detention (Article 9)[2]. In addition, Article 13 and 14 of the UDHR lay down that people have the right to leave any country, including their own to seek asylum in other countries due to fear of persecution in their home country[3]. However, despite all the international norms and legal frameworks in place today, the abovementioned rights of many individuals are violated when they seek refuge in foreign countries. In particular, a recent study found that hundreds of refugees and asylum seekers are being pushed back at the borders of the European Union when they try to escape their home countries in the hope of a better life[4].

The refugee crisis in Europe started in 2015 when a huge influx of third-country nationals arrived at the borders of the European Union. According to the statistics of the United Nations High Commissioner for Refugees (UNHCR), more than five million refugees arrived at the borders of the Union by 2016[5]. Although the biggest wave of the crisis is over, still many refugees arrive to Europe nowadays as there were over half a million asylum applications submitted to the European Union in 2021[6].

However, tens of thousands of refugees are pushed back at the borders to prevent them from entering the European Union[7]. For instance, it has been reported that Spain deports unaccompanied minors to Morocco which puts the vulnerable refugee children at risk of exploitation and violates their human rights[8]. Another example is the case of Syrian refugees who wanted to enter Croatia from Bosnia and Herzegovina but were pushed back by the Croatian police officers, were beaten and unlawfully detained[9]. Additional countries that were found to be unlawfully denying entry for refugees and pushing them back at the borders with the use of force and violence include Greece, Hungary, Italy and Malta. In addition, Bulgaria is also one of the countries that unfairly pushes back refugees without any assessment of individual cases. This is illustrated by the case of a Turkish journalist who fled Turkey because he was suspected to be part of the Gülen movement which is perceived as a terrorist organization, he was fired from his workplace and feared further reprisals[10]. When arriving at the borders, Bulgarian officers failed to assess his case, disregarded his fear of persecution and return in Turkey, and forced him to sign documents he did not understand[11]. In less than 24 hours after his arrival he was handcuffed and handed over to the Turkish authorities, was held in detention and later sentenced to seven years of prison for his alleged support of the Gülen movement[12].

This case perfectly demostrates the core idea of the Refugee Convention of 1951 that was signed by all the member states of the European Union and that lays down that refugees must not be returned to a country where they face threats to their life and human rights. This is the principle of non-refoulement which is an essential component of refugees’ and asylum seekers’ protection and is part of customary international law, which means that it also applies to states that have not ratified the Refugee Convention or its 1967 Protocol. The original Convention had a limited geographical and time scope as it was only applicable to refugees of World War II, but its additional Protocol of 1967 removed this restriction and this extention of the treaty was also ratified by all EU states. In this sense, countries that unlawfully push back refugees, deny their entry and reject their asylum application without assessment not only violate their human right to life, security, movement and not being subject to torture, arbitrary arrest and detention as laid down in the UDHR, but also breach international law and norms since many of these refugees fled their country due to fear of persecution.

What even further exacerbates the problem is the fact that often times the European Union itself is indirectly funding these pushbacks, thereby supporting human right violations and going against the Union’s core values. The pushbacks were found to often be carried out with the help of Europe’s border agency Frontex which uses the Union’s financial resources. The European Ombusdman found that the European Commission has been providing funding for border control since 2018 but only established an independent monitoring mechanism to safeguard human rights at the borders in the middle of 2021[13]. The Ombudsman ruled that while the Commission lacks the authority to investigate the protection of human rights at border activities, it has the authority as well as the obligation to ensure that the Union’s funds are spent in compliance with EU law and human rights law[14]. Therefore it is the Commission’s responsibility to make sure that funds are not allocated to activities that are not in line with the European Union’s values and international law, such as the unlawful pushback of refugees. Furthermore, according to Article 258 of the Treaty on the Functioning of the European Union (TFEU), the Commission can initiate so-called infringement prodecures which are legal procedures to ensure that member states are complying with EU law[15]. This means that the European Commission can fulfil its obligation of overseeing the protection of human rights inside member states by establishing and funding monitoring bodies and in case of a breach it can initiate such an infringement prodecude and bring the case to the Court of Justice of the European Union. In addition, the Commission can also introduce conditionality between human rights protection and funding, which means that it can establish a system to make funds conditional and withhold funds from member states that do not comply with EU laws and values[16].

 

In conclusion, fundamental human rights are violated at the borders of Europe and the EU as refugees and asylum seekers are often pushed back and experience violence. Refugees are threatened, assaulted, abused and detained, left to die on their boats or thrown into the sea, which results in thousands of tragic deaths that could have been easily prevented[17]. This violates their human rights, namely the right to life, security and movement, as well as the right to be free from torture, arbitrary arrest and detention, which poses a severe threat to these innocent people’s physical well-being. Lastly, the European Commission is not only ignoring but also funding these human right violations which contradicts the values of the Union. Refugees are inherently a highly vulnerable group and have less access to national courts to enforce their rights and make their voice heard. Therefore it is the responsibility of the EU and its member states to ensure that refugees’ fundamental rights, and it is the European Commission’s obligation to make sure that the funds allocated to member states for border control and asylum application procedures are spent in compliance with the Union’s values as well as international law and norms.

 

Written by Réka Gyaraki

 

References

 

Bulgaria’s pushback practice censured by ECtHR. (n.d.). European Center for Constitutional and Human Rights. https://www.ecchr.eu/en/case/bulgarias-pushback-practice-condemned-by-ecthr/

European Center for Constitutional and Human Rights. (2020). Dossier Migration. https://www.ecchr.eu/fileadmin/Sondernewsletter_Dossiers/Dossier_Migration_June2020.pdf

European Ombudsman. (2022). Decision concerning how the European Commission monitors and ensures respect for fundamental rights by the Croatian authorities in the context of border management operations supported by EU funds (case 1598/2020/VS). https://www.ombudsman.europa.eu/en/decision/en/152811

European Union. (1957). Treaty on the Functioning of the European Union. https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A12016ME%2FTXT

OHCHR. (n.d.). What are human rights? https://www.ohchr.org/en/what-are-human-rights

Refugee Crisis in Europe: Aid, Statistics and News | USA for UNHCR. (n.d.). https://www.unrefugees.org/emergencies/refugee-crisis-in-europe/

Rijpma, J., & Fotiadis, A. (2022). Addressing the Violation of Fundamental Rights at the External Borders of the European Union. https://www.greens-efa.eu/en/article/study/addressing-the-violation-of-fundamental-rights-at-the-external-borders-of-the-european-union. The Greens/European Free Alliance.

Statistics on migration to Europe. (2020). European Commission. https://ec.europa.eu/info/strategy/priorities-2019-2024/promoting-our-european-way-life/statistics-migration-europe_en

United Nations. (1948). Universal Declaration of Human Rights. https://www.un.org/en/about-us/universal-declaration-of-human-rights

 

[1] OHCHR. (n.d.). What are human rights?

[2] United Nations. (1948). Universal Declaration of Human Rights

[3] Ibid.

[4] Rijpma & Fotiadis. (2022). Addressing the Violation of Fundamental Rights at the External Borders of the European Union

[5] USA for UNHCR. (n.d.). Refugee Crisis in Europe

[6] European Commission. (2020). Statistics on Migration to Europe

[7] Rijpma & Fotiadis. (2022). Addressing the Violation of Fundamental Rights at the External Borders of the European Union

[8] European Center for Constitutional and Human Rights. (2020). Dossier Migration

[9] Ibid.

[10] European Center for Constitutional and Human Rights. (n.d.). Bulgaria’s pushback practice condemned by ECtHR

[11] Ibid.

[12] Ibid.

[13] European Ombudsman. (2022). Decision concerning how the European Commission monitors and ensures respect for fundamental rights by the Croatian authorities in the context of border management operations supported by EU funds (case 1598/2020/VS)

[14] Ibid.

[15] European Union. (1957). Treaty on the Functioning of the European Union

[16] Rijpma & Fotiadis. (2022). Addressing the Violation of Fundamental Rights at the External Borders of the European Union

[17] Rijpma & Fotiadis. (2022). Addressing the Violation of Fundamental Rights at the External Borders of the European Union

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