Pushbacks between illegality and necessity

Pushbacks are in the political discussion. On 7 December 2022, THE LEFT in the European Parliament presented the latest volume of its “Black Book of pushbacks” with some 3,000 pages mapping – what it calls – “systematic violence unfolding at Europe’s borders.” According to a press statement , “the four volumes … filled with testimonies of people on the move who were beaten, kicked, humiliated and arbitrarily detained before being illegally pushed back, both at the EU’s external borders, and from deep within the territory of its member states.”

The international organisation for Migration (IOM), the United Nations High Commissioner for Refugees (UNHCR), the European Parliament, the Council of Europe, the European Union Agency for Asylum (EUAA), Frontex, the European Council on Refugees and Exiles (ECRE) and AMNESTY INTERNATIONAL (AI) condemn Pushbacks at borders. The German Government declared „Push-backs will not be tolerated”.

Justified ASYLUM claims guarantee special privileges and exemptions from immigration regulations It is at discretion of any migrant to proclaim ASYLUM at any time at any place. Unjustified asylum claims fall under “border protection” and “immigration management”. Some confusions arise when press, media and societal discussions mix immigration (control-of-entry) questions with refuge and protection questions, a human-rights issue.

Asylum is a noble principle and must not be discredited by unjustified Asylum requests. In Germany, 190.692 requests for Asylum have been presented in 2022, out of which 18 % have been approved as Asylees or Refugees. 25 % of the applicants got subsidiary protection, 13 % did not meet the requirements of Asylum but cannot be readmitted, 22 % of all applications were rejected, 22 % became administratively obsolete.

The EU Border situation is well known: 330 000 irregular border crossings were detected in 2022, the highest number since 2016. EU and Schengen associated countries faced unprecedented challenges at their external borders.

States are formed by three constitutive elements: (1) Defined state territory, (2) defined population on its territory and (3) sovereign state power that exercises a minimum of accepted ruling power. If international recognition as “state” is a pre-condition or rather a consequence of statehood, is discussed controversially.

EU citizens got used to crossing EU and Schengen Zone borders freely and uncontrolled. Children started to believe that state borders exist for the provision of restrooms, snacks, playgrounds and waste disposals.

Borders however divide state territories according to international law. As consequence of their sovereignty, states can reject a traveler due to lacking legal requirements. A rejection is per se not a Pushback. A rejection turns legally into a Pushback only if a traveler – any traveler – is not given the chance to articulate a request for Asylum or international protection.

A migrant can successfully proclaim Asylum or international protection or refoulement only for the national territory she/he is on. Once such request is articulated, a traveler changes her/his legal status, from “migrant” (with or without required documents) to “Asylum- or Protection-seeker”.

Where and when Pushbacks happen, they happen on one given state’s territory, not on no-man’s-land, not on a “vacant” stateless territory between two states. There is no legal vacuum between two states and their territories – independent from border control stations and border controls or accessibility. Borders can cross hills, river, gorges.

In Pushbacks, migrants cross intentionally a state border and are sent back to the state’s territory they come from. Pushbacks can happen with or without knowledge of the state they come from and go to. Double (reverse) border crossings, if not permitted by authorities, violate the sovereignty rights of two states: the first state’s – due to an un-authorised leaving and re-entering after rejection, and the second state’s – due to an un-authorised entering.

Asylum is a right related to a state’s territory. No national Asylum authority can process Asylum claims for providing Asylum in another state. Asylum must be claimed for the state the migrant is in. A migrant, being on state A’s ground can successfully only claim Asylum in state A and not in any other state. Pushed-back migrants are either in state A or B, never in both and never in none of them. Before leaving state A, they can exclusively claim for Asylum in state A. After crossing into state B’s territory – legally or illegally – migrants can only claim successfully asylum in state B. After officially having applied for Asylum, a migrant becomes a registered, recognised Asylum- or Protection-seeker with all corresponding rights.

No one and no law however can prevent an Asylum- or Protection-seeker from claiming Asylum or Protection in more than one state or more than once. But legally, the Asylum-or Protection-seeker can only be successful with a claim for Asylum in the state she/he is in.

National authorities exercise the power to grant or reject migrants’ applications for Asylum or Protection. No national or international authority can grant asylum for territories outside of their jurisdiction. National authorities can and must only process applications for Asylum in and for their own state territory.

What makes Pushbacks illegal?

The IOM Glossary of Key Migration Terms does not contain “pushbacks”.
Collective expulsions of aliens are forbidden. Article 4 of Protocol No 4 to the European Convention on Human Rights (ECHR) interdicts collective expulsions. In various judgments, the European Court of Human Rights (ECtHR) has condemned Pushback practices. The Court found a violation of Article 4 of Protocol No 4, when the procedure for expulsion did not consider personal circumstances of each individual (Čonka v. Belgium); when “applicants have been prevented from applying for asylum or international protection” (Sharifi and others v. Italy and Greece); or “when applicants were refused entry into a state territory without giving proper regard to their individual situation” (M.K. and others v. Poland).

Refoulement is prohibited. The prohibition of refoulement is enshrined in the 1951 UN Refugee Convention. Article 33(1) regulates that states are prohibited to expel or return a refugee in any manner whatsoever to the frontiers of territories, where his life or freedom would be threatened on account of race, religion, nationality, membership of a particular social group or political opinion’, protecting refugees against being returned to a risk of persecution.

Whereas the 1951 Refugee Convention only applies to refugees, Article 3 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment expanded the scope of its protection to include expulsion, stating that state parties may not ‘expel, return (‘refoul’) or extradite a person [regardless of their legal status] to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture’.

The principle of Non-Refoulement is also laid down in Article 7 of the 1966 International Covenant on Civil and Political Rights, and in Article 3 of the 1984 United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and in Article 3 of the European Convention of Human Rights (ECHR) as interpreted by the European Court of Human Rights.

EU law acknowledges the prohibition of refoulement in Article 78(1) Treaty on the Functioning of the European Union (TFEU) and Articles 18 and 19 of the Charter of Fundamental Rights of the EU, down to secondary EU law, such as Article 21 of the Qualification Directive (2011/95/EU), Articles 9, 35 and 38 of the Asylum Procedures Directive (2013/32/EU) and Articles 4(4) and 5 of the Return Directive (2008/115/EC).

The Court of Justice of the European Union (CJEU) in its judgment of 17 December 2020 (Commission v. Hungary) found that Hungary had failed to fulfil its obligations under the Return Directive. Hungarian police forcibly escorted illegally staying third-country nationals to a strip of land between the border fence and the Serbian-Hungarian border without prior compliance with the substantive and procedural safeguards provided for in that directive.

The Schengen Borders Code Regulation (2016/399/EU) stipulates that third-country nationals who do not fulfil all the entry conditions are to be refused entry to the territories of the Member States (Article 14). In such cases, the authorities must issue a decision stating the precise reasons for the refusal, without prejudice to the special provisions concerning the right to asylum and international protection. The Asylum Procedures Directive (2013/32/EU) sets out rules on common procedures for granting and withdrawing international protection, including at the border, in the territorial waters or in the transit zones of the Member States.

How to turn Pushbacks into legally accepted rejections? Applicants must have their applications examined individually, objectively and impartially, be informed in a language they can understand, and have the right to consult a legal adviser and to an effective appeal before a court of tribunal; there are also specific guarantees for vulnerable people. Relevant are the EU Qualification Directive (2011/95/EU), the Sea Borders Regulation (656/2014/EU) and the Frontex Regulation (Regulation (EU) 2019/1896). The EU New Pact on Migration and Asylum: The European Commission published on 23 September 2020 a new “Pact on Migration and Asylum”, claiming that ‘all necessary guarantees will be put in place to ensure that every person would have an individual assessment and essential guarantees remain in full, with full respect for the principle of non-refoulement and fundamental rights’.

A legally sound Border control mechanism can easier be stablished than Border Control Authorities believe. Taking fingerprints can be combined with handing out leaflets in all necessary languages with signatures having received them and wishing to not apply for Asylum or international protection and not being “refouled”. Those who however opt for Asylum or international protection claims are taken to Reception Centres. All others are rejected. Photos by mobile phones can be used for documentary purposes.

Pushbacks are not only illegal, but also inopportune.

o After being pushed back by just one state at just one state border, rejected migrants do not “disappear” from the region. They are still floating around, trying as many border crossings as necessary to reach their final destinations which is mostly the EU.
o Through Pushbacks, border control authorities miss a great chance to get into contact with migrants, to inform on Asylum and other international protection, on ways to regular migration, on regulations and sanctions.
o Irregular migrants travel frequently – without knowing – through regions with job opportunities. Wine yards in North Macedonia, touristic zones of Albania, fertile soils of Bosnia and Herzegovina, construction sites in Montenegro or the metropolitan area of Belgrade – jobs are everywhere. Pushed back and uninformed migrants pass through safe and prosperous regions without taking notice of opportunities.
o Pushed back migrants cannot disclose special needs, disabilities with the consequence that national authorities cannot offer assistance, cannot identify legitimate demands of vulnerable individuals for protection. Infections and epidemics continue to cross borders without being diagnosed and treated.
o Pushed back migrants cannot report anything tactically valuable, like their intentions and routes, like their victimisations (offences committed towards them by other migrants or by traffickers or by officials), the names and gains of human traffickers, drug offences, terroristic activities, corruption of officials, smugglers, rapists, thieves, forgers of documents.
o Pushbacks ignore and contradict intelligence-led Policing. If data4policy are not available, policy cannot consider them.
o Pushbacks do also not allow Integrated Border Management (IBM).
The securitisation lense and the debate about the legal status of migrants (legal/Illegal, regular/irregular) nebulises the – on the long run – relevant question “How can a migrant – any migrant – become a law- and rightful, productive, loyal and self-sustained member of a guest community?”

  1. https://left.eu/issues/publications/black-book-of-pushbacks-2022/
  2. ‘Migrants talk to migrants’ is a campaign within the ‘WBAware project implemented by the International Organization for Migration (IOM), funded by the European Union (EU) and co-financed by the German Federal Ministry of Interior and Community and the Austrian Federal Ministry of Interior.

by Christoph Freiherr von Harsdorf
Dipl.-Jur.Univ., Assessor Iuris, Sworn and certified Court Expert, presently Principal Advisor to the Intergovernmental Migration, Asylum, Refugees Regional Initiative (MARRI), formerly working at Federal Ministry of Interior of Germany and Ministry of Justice of the German Federal State of Bavaria