Pushbacks From Europe’s Borders Enter the Mainstream

The Polish reckoning with the illiberal turn of the past years (Transition 2.0, as it was recently branded) seemingly does not apply to the unlawful practice of pushbacks on the Poland-Belarus border. This post frames this realisation as another signal that restrictive, oftentimes unlawful practices related to border management, best exemplified by (but not limited to) pushbacks, have come to be accepted, if not desirable, in the European mainstream. Together with the adoption of the New Pact on Migration and Asylum by MEPs a few days ago, the fact of pushbacks becoming commonplace at Europe’s borders is indicative of a profound erosion of the right to seek asylum across the EU. The post claims that this erosion runs deeper than retreats from safeguards for asylum-seekers, which the Pact will codify at the EU level. The humanitarian crisis on the Poland-Belarus border and its handling by the new government, together with its decision to vote against the Pact, vividly illustrates this point.

Humanitarian crisis on the Poland-Belarus border as a rule of law issue

In 2021, the Belarusian regime instigated an irregular flow of migrants from third states (mainly from West Asia and Africa) through the ‘green borders’ with Poland, Lithuania, and Latvia. Poland responded with summary expulsions of persons apprehended in the vast forests of the border area, later ‘regularised’ by the executive regulation of the Minister of Interior and the amendment of the Statute on foreigners (for the analysis of those acts, see here). Both pieces of legislation create the appearance of legality of expelling persons apprehended in the border area without an adequate procedure which would allow them to state reasons against their return and, where they wish so, lodge an asylum application. As such, both are quite obviously at odds with Poland’s international obligations, EU asylum law, and the Polish Constitution. The novel ‘pushback clauses’ were widely criticised nationally and internationally. Several dozens of interim measures were granted by the ECtHR, barring the authorities from returning individuals apprehended near the border. Respective cases before the Strasbourg Court are still pending. Finally, and crucially, the application of the novel regulations was firmly deemed unlawful by the domestic courts.

While ignoring those rulings could be seen coming from the former government, known for its selectiveness in appreciation of ‘politically sensitive’ judgments, more could be expected from the one which formed late in 2023. The formation of this government was met with excitement across Europe, as it has consistently vowed to reinstate the rule of law in areas where it was previously strained and bring the country again into the European, liberal mainstream. One could hope that this envisaged ‘Transition 2.0’ would encompass all areas where the executive had previously circumvented constitutional constraints, including the law of refugee protection.

Status quo prevails

Careful observers, however, were cautious not to expect too much of the new government in relation to the ongoing humanitarian crisis in the border area. The issue of migration is extremely politicised in Poland and the matter was routinely instrumentalised in the electoral campaign, with the centrist Civic Coalition (now being the dominant fraction forming the new government) adopting some of the generic anti-immigration slogans, likely to neutralise the narrative of the right-wing opponents. Still, many expected, at the very least, repealing of the above-mentioned executive regulation (as it is the most strikingly contrary to the hierarchically higher sources of the law) and amending the Statute on foreigners so as to furnish the ‘pushback clause’ with at least some safeguards and clarify its relationship to provisions relating to asylum procedures.

None of this has happened so far. While the government representatives underscore the establishment of rescue teams within the Border Guard and insist that the ongoing expulsions are ‘ethical’, there does not seem to be much change in the conduct of authorities in the border area. The Deputy Minister of Interior responsible for migration matters has also explicitly admitted that pushbacks will continue ‘until this migration route is closed’. On top of that, the new government has embarked on reinforcing the border wall, previously constructed to curb irregular arrivals (at which it obviously failed). This professes an increase in cases of persons stranded on the eastern side of the wall who, albeit already on the Polish territory (the wall stands up to a few metres away from the borderline), are effectively stuck in a limbo where Poland refuses to exercise jurisdiction – a practice manifestly at odds with the established case-law of the ECtHR (see N.D. & N.T. v. Spain § 104-110; Shahzad v. Hungary § 49-51).

The rapid erosion of European standards of protection of forcibly displaced persons

Recently, Fuad Zarbiyev has eloquently articulated the mounting discomfort that many international lawyers experience, related to the rapidly shrinking legitimacy of international law in relation to Israel’s conduct in Gaza and the attitude of the West towards it. This feeling is what some of us – lawyers specialising in the law of refugee protection – have been experiencing for years now. The example of Poland and its relationship with the European and international law of refugee protection is a case in point.

The conduct of Polish authorities along the border with Belarus would be deemed unlawful by anyone remotely familiar with the principle of non-refoulement and its operationalisation in the EU’s Common European Asylum System (CEAS) and the ECtHR’s jurisprudence. Notably, even the application to this case of the highly controversial ‘own conduct’ standard (developed by the ECtHR’s Grand Chamber to test the legality of summary expulsions in N.D. & N.T. v. Spain § 200-201, 231) would necessarily result in the conclusion that pushbacks from Poland to Belarus remain unlawful. This has been recognised by the domestic courts, which have commendably weighed the impugned expulsions against international standards.

None of this matters in practice at the border, though. The authorities’ disregard for those standards is emboldened by the erosion of safeguards against refoulement, observable at the European level. While about half of the Council of Europe’s member states engage in pushbacks, there continues to be an acquiescence to this practice in Brussels, as clearly displayed by the European Commission. The Commission’s unwillingness to take concerted legal action against prevalent and manifest violations of the principle of non-refoulement at Europe’s borders renders the enforcement of CEAS nearly impossible on the EU level. The proliferation of legally questionable deals with third states which effectively outsource to them the responsibility for people headed for Europe, and the conduct of Frontex on and beyond the EU’s frontiers, completes the picture of the EU being invested in the goal of achieving containment of would-be asylum-seekers from the Global South, in the Global South. Embracement of the practice of pushbacks by the new, deeply pro-EU Polish government, and the fact that the European Commission does not challenge this practice, underscore the new, implicit European consensus on the matter – the consensus that runs strikingly against international and EU law.

What the future holds

The long-delayed comprehensive reform of the CEAS, in the form of the New Pact on Migration and Asylum, is now imminent. The Pact undoubtedly exemplifies a trend toward securitisation of migration through, among others, significantly limiting access to territory for asylum-seekers. The shift toward restrictiveness is also noticeable in Strasbourg, where the ECtHR has embarked on the relaxation of the prohibition of summary expulsions. Noting the critique of these two developments, it must be borne in mind that neither amounts to the blanket green light to pushbacks or unilateral carve-outs of chunks of states’ territories, achieved through the construction of border walls, where states refuse to apply human rights safeguards.

Nevertheless, however one views the viability of CEAS vis-à-vis the current challenges related to migration, one cannot escape the realisation that it overwhelmingly lost its legitimacy by being disregarded across the board. Aligning the law with the prevailing practice was, therefore, to be expected. However, the proposed reform, as restrictive as it is, is not restrictive enough to match the reality of the EU borders. Indeed, the reform, championed by the Commission, does not allow states as much as the Commission itself seems inclined to allow, by refraining from decisively challenging pushbacks from Europe’s frontiers. Thus, the big question, relevant for the EU, is the following: will the Pact be enforced to challenge pushbacks? While largely conceding to the demand to curtail irregular migration through further barring of access to the territory of the EU, increasingly adopted by the European mainstream (on the problematic nature of such an approach to irregular migration, see here), the Pact does not seem to go far enough to legitimise the current status quo. This is the apparent reason why the new Polish government opted for voting against the Pact, claiming that, as things stand, ‘the solutions provided for in the Pact on Migration and Asylum do not sufficiently address the specific situation of countries bordering Belarus and Russia and which are thus under constant and strong pressure within artificially generated migration routes.’ This statement should be understood as nothing less than the expression of the demand for creating a legal basis for pushbacks at the EU level, justified by the notion of ‘instrumentalisation of migration’. Either way, it seems that we should brace for more, rather than less, pushbacks along the EU borders, either in complete defiance of the applicable international and EU law, or with appearances of compliance with the latter.