Setting the right priorities: is the new Pact on Migration and Asylum addressing the issue of pushbacks at EU external borders?

Forum on the new EU Pact on Migration and Asylum in light of the UN GCR

Contribution by Marco Stefan and Roberto Cortinovis (CEPS)
25 November 2020

1. Introduction

The notion of “pushback” describes practices of refusal of entry at the border as well as expulsions of individuals from a state territory without an assessment of their personal protection needs and with disregard for basic procedural guarantees. The term also encompasses hostile and violent actions by states’ authorities against individuals that are often associated with those practices.

Pushback practices represent a major threat to the fundamental rights and rule of law standards established under EU primary and secondary legislation, most notably the prohibition of refoulement and the right to seek asylum. They also stand at odds with the EU Member States’ obligation to uphold the international legal framework of refugees and migrants’ protection. The commitment to comply with this framework has recently been reaffirmed in both the UN Global Compact on Refugees (GCR) and the Global Compact for Safe, Orderly and Regular Migration (GCM).

While pushbacks are a serious issue in several EU member states, including in the Western Balkans as well in the Western, Central and Eastern Mediterranean, this contribution pays specific attention to the situation at the Greek-Turkish land and sea borders. Greek authorities’ systematic use of violence toward migrants and asylum seekers at the Evros river has been widely documented over many years. However, worrying reports of such practices have drastically multiplied over 2020. Extensive accounts also exist of pushbacks at sea by the Greek Coast Guard.

Increasing evidence of the European Border and Coast Guards (Frontex) active involvement in and connivance with these kind operations have recently induced the European Commission to request the agency to investigate existing allegations of pushbacks and address persisting accountability gaps for fundamental rights violations in the Aegean Sea.

Taking the steps from this backdrop, this contribution interrogates whether and how the Commission’s New EU Pact on Migration and Asylum envisages the adoption of legal, procedural and operational responses that are required to address the increased use of pushback practices at EU external borders.

Special focus is paid to the Pact’s proposal to establish an independent fundamental rights monitoring mechanism in pre-border screening procedures. We evaluate the potential of such a mechanism to prevent deviations from the non-refoulement principle, but also to redress the serious accountability challenges traditionally associated with pushbacks.

2. International, regional and EU fundamental rights standards

A state’s obligation not to expel or return a person to territories where his/her life or freedom would be threatened (non-refoulement) is the cornerstone of the international protection regime. It is set out in Article 33.1 of the 1951 Refugee Convention, as well as in other UN Human Rights Conventions (e.g. in Article 3 of the Convention Against Torture).

The non-refoulement principle is also a key tenet of the system established under the European Convention on Human Rights (ECHR). Article 2 (right to life) and Article 3 (prohibition of torture, inhuman and degrading treatment or punishment) prohibit any return of an individual who would face a risk of a treatment contrary to those provisions. The obligation of non-refoulement under the ECHR is absolute: it does not allow for derogation, exception or limitation, even in situations of mass arrival of migrants at borders or in the context of a health emergency such as the Covid-19 pandemic.

Article 4 of Protocol 4 to the ECHR specifically prohibits the collective expulsion of aliens. Such prohibition constitutes a corollary of the non-refoulement principle as it grants every individual the possibility to assert the existence of a risk of treatment incompatible with the Convention in case of expulsion from a state’s territory. The prohibition of collective expulsions is also a rule of international and regional human rights law stemming from the right to a fair trial: it implies the right to an individualized procedure taking into account the personal situation of any person subject to expulsion, regardless of the legal or administrative status of the latter.

Prohibition of refoulement and summary expulsions are included in EU primary law, specifically in Articles 18 and 19 of the EU Charter of Fundamental Rights. In addition, pushbacks are often associated with excessive use of force that may as well result in violations of the right to integrity and the protection from ill treatment (Articles 3 and 4 of the EU Charter). In extreme circumstances, violent actions might even lead to a breach of the right to life (Article 2).

Non-refoulement obligations are also incorporated in the key legislative instruments of the Union’s asylum and border management acquis. The EU Asylum Procedures directive provides that whenever an application for international protection is made (including at the border) access to an asylum procedure is to be granted (Article 6), and that applicants should have access to an effective remedy with suspensive effect against a decision rejecting their protection claims (Article 46). The Schengen Border Code states that border control should be carried out without prejudice to the rights of refugees and third country nationals requesting international protection (Article 3). The Return Directive requires Member States to take into account the non-refoulement principle throughout all the different stages of the return procedure. Legislation laying down the Frontex mandate imposes respect of the non-refoulement principle in all agency activities, including in the context of border surveillance operations at sea.

3. Fundamental rights monitoring under the new Pact

Allegations of pushbacks at the Greek-Turkish borders over 2020 have been accompanied by strong reactions by the European Parliament LIBE Committee and civil society organizations. Calls for the Commission to investigate allegations of illegal pushbacks by Greek authorities, – and eventually to launch an infringement procedure against Greece – have not been answered.

Proposals allegedly directed at addressing the potential breach of fundamental rights in the treatment of people seeking asylum at Europe’s borders have instead been tabled by the Commission on the occasion of the publication of the New Pact.

The proposal for a Regulation establishing a pre-entry screening aims at introducing uniform rules concerning the identification, registration and fingerprinting of migrants and asylum seekers and for conducting security and health checks at the EU external borders. The proposal also aims at establishing a tool for channeling individuals to the following procedure: return – or in case of application for international protection – normal, accelerated or asylum border procedure.

Article 7 of the proposed regulation envisages the creation of a new “Independent Mechanism for monitoring fundamental rights” which aims at ensuring compliance with EU and international law during the pre-entry screening process. The mechanism should ensure in particular that national rules on detention (including its grounds and duration) are respected during such process. It should also ensure that fundamental rights violations related to access to the asylum procedure and non-compliance with the non-refoulement principle – which indeed might well occur during the pre-entry screening – are dealt with promptly and effectively.

And yet, the proposal limits the monitoring mechanism to the pre-entry screening process only. This implies that the mechanism would not apply to the fundamental rights-sensitive border procedures following the pre-entry screening. Furthermore, and perhaps even more critically, the mechanism would not cover the whole range of border surveillance operations and border management activities that are performed by Member States (and the EU Frontex agency) before the activation of the screening procedures.

This limited scope casts doubt on the effectiveness of the proposed monitoring mechanism in properly addressing the fundamental rights and rule of law challenges linked to pushback practices. As underlined by the Greek case, such practices are characterized by a high level of informality: they are designed to escape public scrutiny and performed in remote areas which are often not accessible to independent monitors.

To effectively prevent abuses and increase accountability of national and EU border and coast guards, the mechanism should ensure that all border surveillance operations and border management activities at the EU external (sea and land) border are actually monitored. Ensuring that independent human rights monitors oversee the work of the authorities responsible for controlling, surveilling, and patrolling the EU external borders is crucial in this respect. These independent monitors should be given the authority (and necessary human and financial resources) to initiate and carry out autonomous and thorough investigations over alleged pushbacks, collective expulsions and related abuses. Similar monitoring mechanisms are already deployed in the field of forced returns.

Another key issue of concern is the potential role of the mechanism in handling complaints and providing access to justice to individuals who have had their fundamental rights (including access to asylum) violated at the border. As underlined by regional and international human rights bodies, a complaint mechanism can only be effective if it is in line with substantial and procedural standards of independence from state authorities. It also needs to be accessible in practice, and secure prompt and thorough follow-up procedures.

The Commission’s proposal for pre-entry screening regulation assigns a specific role to the EU Fundamental Rights Agency (FRA) to provide guidance to member states in ensuring the independence of the mechanism, as well as in providing a monitoring methodology and appropriate training schemes. In the explanatory memorandum to the proposal, the Commission also added that the mechanism should ensure that “complaints are dealt with expeditiously and in an appropriate way”.

The proposed legislation, however, does not specify the degree of independence that the envisaged monitoring mechanism should have from the authorities subject to the monitoring. The large margin of discretion left to Member States becomes especially problematic in contexts such as the Greek one, where institutional representatives (even at the higher level) systematically reject to acknowledge responsibilities of national authorities involved in push backs.

4. Ensuring effective enforcement of fundamental rights at EU external borders: the role of “accountability actors”

The fundamental rights monitoring mechanism proposed in the Pact should enable the work of the accountability actors which, at different levels, are responsible for ensuring respect of fundamental rights and for activating and delivering effective remedies within the EU legal and institutional system. These include judicial authorities, EU institutions and agencies and, crucially, independent NGOs promoting and protecting human rights of migrants and refugees.

a) Accountability gaps at the national level: the role of judicial actors

Within the EU legal framework, EU member states courts and judges can be considered to all effects as ‘EU courts’ which act as rule of law guarantors and implementers of rights under EU law, including in the area of border management, returns and asylum.

Judicial actions over repeated allegations of systematic violence against migrants and refugees have indeed been launched in Greece. So far, however, these procedures have not produced any tangible results, confirming the legal and operational challenges related to the activation of judicial proceedings over pushback cases. This circumstance should be read in conjunction with the lack of effective administrative remedies in the country, which has also been underlined by the UN Committee Against Torture.

In cases where evidence of pushbacks is brought before them, national judicial authorities have an obligation to investigate related fundamental rights violations, identify responsible actors and deliver redress to victims. Recent judicial developments in different EU member states (including for instance, Italy and Slovenia) highlight how judicial actors can and should assess responsibilities and deliver both criminal and civil justice remedies to third country nationals affected by pushbacks.

The establishment of a fundamental monitoring mechanism under the new Screening Regulation should not be considered a substitute for the judicial oversight that must be made available at the domestic level. Instead, if truly independent and endowed with the necessary resources, the new mechanism could support the work of judicial authorities and increase their capacity to investigate pushback allegations. This could facilitate the collection of evidence needed to identify responsible actors, an issue that has so far made it particularly difficult for affected individuals to initiate judicial proceedings before national courts.

b) Frontex’s fundamental rights responsibilities

Along the years, Frontex has acquired an increasingly relevant role in supporting national authorities in the management of EU’s external borders. In Greece, Frontex is currently involved in almost every aspect of border management, as testified by the EU Action Plan to support Greece in managing its external borders with Turkey of March 2020. The agency’s involvement puts border and return operations in Greece under a formal EU “umbrella”. This has important fundamental rights implications: as an EU agency acting within the scope of EU law, Frontex has a positive obligation to prevent abuses and secure respect of EU primary and secondary law acquis.

In spite of the fundamental rights responsibilities established in its recently amended founding regulation, Frontex has repeatedly refused to admit (let alone investigate) occurrence of pushbacks in Greece. The agency claimed instead that Greek authorities should be considered as solely responsible for any violation, because alleged episodes are happening outside the operational area covered by the Agency’s operations. This claim is based on a minimalist interpretation of Frontex human rights responsibilities, which does not reflect the substantial role the agency plays in Greece. Such position has become increasingly untenable considering mounting evidence of the direct involvement of Frontex-coordinated vessels in pushback operations in the Aegean Sea. Evidence of Frontex-deployed officers’ involvement in pushbacks has been collected also in the Evros region.

After requests for clarifications from the European Parliament and, lately, the European Commission, the Management Board of the agency held an extraordinary meeting on 10 November 2020 to discuss the issue of pushbacks. The Meeting Conclusions confirmed the need to take urgent action to investigate ‘all aspects related to the matter’, and called upon the agency’s Executive Director to ensure a ‘solid’ mechanism for internal reporting and prompt follow-up of reported incidents. They also envisaged the establishment of a ‘sub-group’ within the Management board.

The specific mandate of the sub-group is expected to be defined in a following meeting of the Management Board. However, it is already clear that the creation of such a new body will not in itself address the structural shortcomings characterizing Frontex’s accountability framework. There are no indications related to the independence and impartiality of the sub-group, which remains purely internal and member state driven. Furthermore, it appears that rather than focusing on the investigation of pushback allegations and incident reports, the sub-group will be tasked with ‘the interpretation of EU regulations’ provisions related to operational activities at sea’, and will be responsible for addressing ‘the concerns raised by member states about “hybrid threats” affecting their national security at external borders’.

Legislative reforms of the agency over the previous years have not yet resolved the persisting deficiencies of the Frontex complaint mechanism, nor enhanced the role of the Agency’s Fundamental Rights Officer, which still fall short of existing standards of independence, accessibility and thoroughness of follow-up procedures. A generalized lack of transparency concerning the specific roles and responsibilities of different actors involved in Frontex operations (compounded by a lack of public access to key operational documents) add to the structural accountability gaps mentioned above.

Legislative proposals under discussion at the EU level should be directed at addressing the shortcomings characterizing Frontex’s fundamental rights accountability. Provided it is properly designed and entrusted with the task of overseeing the entirety of activities falling under Frontex’s operational and coordination responsibilities, the envisaged independent monitoring mechanism could help address the serious accountability challenges identified above.

c) The role of independent NGOs

While reluctant to investigate responsibilities linked to violent pushbacks, Greek authorities have increasingly criminalized civil society actors supporting migrants and refugees, including NGOs involved in Search and Rescue (SAR) operations at sea. While in itself a violation of regional and EU standards related to freedoms of expression and association, reprisals and retaliation against NGOs involved in SAR and other humanitarian activities also prevent these actors from contributing to independent monitoring of human rights abuses.

Independent NGOs can and should play a key role in the monitoring of fundamental rights at the EU borders. In its 2013 Decision on its own-initiative inquiry concerning Frontex, the European Ombudsman recommended making the Frontex complaint mechanism available to all stakeholders with a legitimate interest in activating the procedure, including independent NGOs. The active involvement of independent NGOs in the monitoring process and the possibility for these organizations to submit public interest complaints would substantially increase the impartiality and effectiveness of the proposed monitoring mechanism.

5. Conclusions
   

Ongoing discussions concerning the scope and functions of the monitoring mechanism envisaged by the Pact should take seriously the alarming reports of fundamental rights violations coming from the Greek-Turkish borders (as well as from other areas of EU external borders).

Pushbacks are simply incompatible with a fundamental rights and rule of law-based approach to migration and asylum in Europe. They also stand at odds with the commitment to uphold the normative foundations of the international refugee protection regime included in the UN Global Compact on Refugees. An express commitment towards safe and dignified return of third county nationals has also been undertaken in the UN Global Compact on Migration, where reference is made to the importance of respecting the prohibition of collective expulsions – in particular by guaranteeing an individual assessment and the exhaustion of legal remedies against return decisions – as well to the need to uphold the independence of monitoring mechanisms to ensure accountability of return operations.

The establishment of a new fundamental rights monitoring mechanism at the EU borders may contribute to address the challenges mentioned in this contribution. To effectively address existing accountability gaps, however, it is crucial to align the proposed instrument with internationally recognized standards of independence and adequate follow-up to identified violations.

The mechanism should complement the role of existing accountability actors and instruments within the EU legal system. Investigations over violent pushbacks need to be conducted systematically by national judicial authorities. This is crucial to secure effective judicial protection and deliver effective remedies, in line with EU law. Preserving the operational space of independent NGOs is also key to ensuring independent monitoring and accountability of border and immigration enforcement authorities.

Finally, the Commission as “Guardian of the Treaty” as well as EU agencies (notably Frontex) should take much more resolute action to address fundamental rights violations associated with pushbacks, in line with the means and procedures that are available under their mandates.