Pushbacks are the informal cross-border expulsion (without due process) of individuals or groups to another country. This lies in contrast to the term “deportation”, which is conducted in a legal framework, and “readmission” which is a formal procedure rooted in bilateral and multilateral agreements between states. In the past five years, pushbacks have become an important, if unofficial, part of the migration regime of EU countries and elsewhere. The term “pushback” itself is a definition that came to initially describe the unfolding events along the EU borders of Hungary and Croatia with Serbia in 2016, after the closure of the Balkan route. The practice is now a hallmark of border externalisation which reaches from the Greek-Turkish border, all the way to the Slovenian-Italian border.
Asylum and Non-refoulement
Though BVMN advocates for the rights of all people-on-the-move, the laws around asylum are important in understanding how illegal pushbacks occur. Modern asylum law is based on the conviction that every individual has a right to apply for international protection in the case that their life is threatened in their country of origin. Most national and international regulations concerning asylum are based on the 1951 Geneva Convention (Convention Relating to the Status of Refugees). Expanding off of the basic right to apply for asylum, the Geneva Convention includes the principle of non-refoulement (Art. 32, 33) which forbids states from returning anyone declaring the will of applying for asylum to a place in which they would be in likely danger of persecution. While there is no international legal definition of the term pushback, it can be understood as behaviour violating the general rule of non-refoulement. Prohibiting an individual from the right to apply for asylum is generally an infringement of the Geneva Convention and as such should be considered a violation of international law.
The principle of non-refoulement has since been adopted in the legislation regulating asylum procedures on the EU level. Examples can be found in Article 18 and 19 of the Charter of Fundamental Rights of European Union and in Directive 2013/32/EU of the European Parliament and of the Council on common procedures for granting and withdrawing international protection. To this end, the responsibility of EU member states to comply with international standards on refugee protection is double: not only are all EU-member states signatories of the 1951 Geneva Convention but they are also beholden to the EU principles and regulations on its common asylum system.
The collective aspect of pushbacks is also a key element which links them to breaches of international law. The removal (en mass) of transit groups from one state territory too another represents a violation of the prohibitions against Collective Expulsion. Collective expulsions of whole groups, as they are conducted by several EU member states, deny each individual in this group the right to apply for asylum and explain their specific and individual reasons (Prot. 4, Art. 4, European Convention on Human Rights). These protections, ensuring individualised processing of cases relates directly to the principles above of non-refoulement and due procedure under the Common European Asylum System.
Law on Removals
Alongside mandated access to international protection, EU states must also align their domestic legislation with the Directive 2008/115/EC of the European Parliament and of the Council on common standards and procedures in Member States for returning illegally staying third-country nationals. Under this directive, obligations are enshrined, such as making detention a last recourse, mandating the provision of legal assistance and access to appeal, and halting returns to states not considered “third safe countries”. It is the responsibility of all member states, then, to ensure that these common principles are not ignored on the external borders of the European Union, whether dealing with people claiming asylum, or those transiting without this intent.