Global Human Rights Defence

The EU Commission urges an investigation on migrant pushback in Greece and Croatia – an overview of the current situation

Mariatereza Kokaj

Introduction

It all started when the German media outlets Der Spiegel and ARD published a report based on video footage of 11 migrant pushbacks. The report shows Greek officials forcing migrants back into the Aegean sea and Croatian officials forcing migrants into Bosnia.[1] Following that event, the European Union’s executive, the European Commission called on 8 October 2021 for an investigation into these illegal migrant pushbacks.[2] Thousands of migrants are said to have been deported without authorities ever looking into whether they qualified for protection. This is illegal based on the applicable international human rights law. The pushbacks of asylum-seekers who are already in the EU territory, in this case in Greece and Croatia, violate the principle of non-refoulement if an individual’s eligibility for protection has not been assessed.[3] According to human rights organizations, there were more than 16,000 push backs at the Croatian-Bosnian border in 2020 alone. The following section further elaborates on the illegality of such pushbacks. Furthermore, the severity of the Croatian and Greek situation will be discussed.

Applicable Legal Rule

Violent pushbacks of migrants who arrive illegally have been criticized by politicians and human rights organizations for years on end.[4] “Push backs are simply illegal,” said Gillian Triggs, deputy high commissioner for refugees at the United Nations Refugee Agency (UNHCR). However, ‘pushback’ is a political term with no clear legal definition which makes the legal situation at borders complicated.[5] Any state is free to decide whether to allow entry of aliens or not. Each member state of the European Union is free to protect its borders and defend its territorial sovereignty. Therefore, the State can do so and can decide how tough they want to be on immigration issues.

However, border officials and authorities also have to do so in compliance with international law. The states must act appropriately and maintain proportionality, meaning that their decisions and actions cannot violate human rights.[6] Under international law, people have a right to claim asylum and it is forbidden to send potential asylum-seekers back to where their lives or well-being might be in danger. “The moment someone reaches the territory of an EU member state, the person in question has a right to file an asylum application, which must then be reviewed,” says Hamburg-based maritime law expert Alexander Proelss.[7] The UNHCR and leading experts on international law suggest that the principle of non-refoulement (from French refouler, to turn away) takes effect directly at the border – even if the person seeking entry has not yet reached EU territory, whether at sea or land. That is because of a ban on the so-called collective expulsion.[8]

Established at the 1951 Geneva Convention on Refugees, the principle of non-refoulement is a widely recognized principle enshrined in international law. It prohibits states from returning people to countries where they risk facing torture or other serious human rights violations.[9]

Furthermore, the prohibition of ‘collective expulsion of aliens’, covered under Article 4 of Protocol No. 4 of the European Convention on Human Rights, prohibits any measure compelling aliens, as a group, to leave a country except when such a measure is taken on the basis of a reasonable and objective examination of the particular case of each individual alien of the group.[10] But, whether on land or at sea, in practice very few migrants are left with the strength and means to take legal action against their expulsion.

These principles have often been ignored in Europe in recent years amid a significant influx of immigrants, many fleeing conflicts or poverty in the Middle East, Asia, and Africa. Authorities in the frontlines such as on the coasts of Greece and Croatia have struggled to process the large amount of individual asylum requests and have sometimes sought ways to send the migrants back, due to strong domestic opposition against taking in more migrants.[11]

Severity of the Situation

The Der Spiegel and ARD report had video footage of 11 pushbacks by Croatian police into Bosnia and footage of the Greek coast guard forcing migrants back into the Aegean Sea.[12] One of the journalists’ film footage showed armed and masked men in uniform beating people on five different locations at the Croatian-Bosnian border.[13]

The European Center for Constitutional and Human Rights (ECCHR) stated that since Croatia is involved in illegal pushbacks, its procedure to join the Schengen area should be suspended.[14]

A spokesman for the executive European Commission said that an investigation was needed and one has already been initiated. “The Commission strongly opposes any pushback practices, and has repeatedly emphasised that any such practices are illegal, and the national authorities have the responsibility to investigate any allegations, with a view to establishing the facts and to properly follow up on any wrongdoing,” the spokesman said.[15]

“Some of these reports are shocking,” said the EU’s Home Affairs Commissioner Ylva Johansson, adding that she expected a thorough investigation of the issue.[16] Johansson was due later on the 12th of September to meet the Greek and Croatian interior ministers, who are in Brussels for two days of talks with their EU peers, and would urge them to take the matter “very seriously”.[17] Johansson said that the evidence shown in the report is very strong and that migrants on the EU’s borders were being subjected systematically to violence and that EU money was being misused to support forces that commit such “unacceptable” acts.[18]

Conclusion

The migrant and refugee issue continues to bring many difficulties for European Union countries, while up to this point, there has not been any effective solution to such a problem. These recent developments in international politics highlight an urgent and timely need for more systematic research on forced migration that addresses local and micro-level processes, behaviors, and attitudes. 

BIBLIOGRAPHY

  1. Giorgos Christides, Bashar Deeb, Klaas van Dijken, Alexander Epp, Steffen Lüdke, Andrei Popoviciu, Lamia Šabić, Jack Sapoch, Phevos Simeonidis und Nicole Vögele. (2021, October 7). Beatings at the Border, Europe’s Violent Shadow Army Unmasked. Spiegel International. Retrieved October 10, 2021, from https://www.spiegel.de/international/europe/greece-and-croatia-the-shadow-army-that-beats-up-refugees-at-the-eu-border-a-a4409e54-2986-4f9d-934f-02efcebd89a7
  1. Giorgos Christides, Steffen Ludke, Maximilian Popp. (2021, September 13). Videos Show Apparent Illegal Pushback of Migrants. Spiegel International. Retrieved October 10, 2021, from https://www.spiegel.de/international/globalsocieties/greece-videos-show-apparent-illegal-pushback-of-migrants-a-1301228.html.
  1. Gabriela Baczynska. (2021, October 7). EU executive demands probe into alleged migrant pushbacks in Greece, Croatia. Reuters. Retrieved October 10, 2021, from https://www.reuters.com/world/europe/eu-executive-urges-probe-after-report-migrant-pushbacks-greece-croatia-2021-10-07/
  1. Andreas Noll. (2021, October 7). When are pushbacks at the EU’s external borders illegal?Deutsche Welle. Retrieved October 10, 2021, from https://www.dw.com/en/when-are-pushbacks-at-the-eus-external-borders-illegal/a-59442530.
  1. United Nations Refugee Agency, ‘Geneva Convention relating to the status of Refugees’ and its 1967 Protocol (1951).
  1. European Court of Human Rights. (2021, July). Collective expulsions of aliens, Factsheet. https://www.echr.coe.int/Documents/FS_Collective_expulsions_ENG.pdf.
  1. Greece promises investigation into migrant pushback accusations. (2021, October 8). Devdis Course – Discourse on Development. Retrieved October 10, 2021, from https://www.devdiscourse.com/article/law-order/1761181-greece-promises-investigation-into-migrant-pushback-accusations.
  1. Georgi Gotev. (2021, October 7). EU Commission urges probe after report on migrant pushbacks in Greece, Croatia. Euractiv. Retrieved October 10, 2021, from https://www.euractiv.com/section/justice-home-affairs/news/eu-commission-urges-probe-after-report-on-migrant-pushbacks-in-greece-croatia/
  1. Deutsche Welle (www.dw.com). (2021, October 7). When pushbacks at EU periphery become illegal. DW.COM. Retrieved October 10, 2021, from https://www.dw.com/en/when-are-pushbacks-at-the-eus-external-borders-illegal/a-59442530
  1. SchengenVisaInfo. (2021, October 8). EU Executive Urges Investigation on Illegal Migrant Pushbacks in Greece & Croatia. Retrieved October 10, 2021, from https://www.schengenvisainfo.com/news/eu-executive-urges-investigation-on-illegal-migrant-pushbacks-in-greece-croatia/
  2. Gabriela Baczynska. (2021, October 7). EU executive demands probe into alleged migrant pushbacks in Greece, Croatia. Reuters. Retrieved October 10, 2021, from https://www.reuters.com/world/europe/eu-executive-urges-probe-after-report-migrant-pushbacks-greece-croatia-2021-10-07/.

 

[1] Giorgos Christides, Bashar Deeb, Klaas van Dijken, Alexander Epp, Steffen Lüdke, Andrei Popoviciu, Lamia Šabić, Jack Sapoch, Phevos Simeonidis und Nicole Vögele. (2021, October 7). Beatings at the Border, Europe’s Violent Shadow Army Unmasked. Spiegel International. Retrieved October 10, 2021, 

 Giorgos Christides, Steffen Ludke, Maximilian Popp. (2021, September 13). Videos Show Apparent Illegal Pushback of Migrants. Spiegel International. Retrieved October 10, 2021.

[2] Gabriela Baczynska. (2021, October 7). EU executive demands probe into alleged migrant pushbacks in Greece, Croatia. Reuters. Retrieved October 10, 2021.

[3] Andreas Noll. (2021, October 7). When are pushbacks at the EU’s external borders illegal? Deutsche Welle. Retrieved October 10, 2021.

[4] Ibid.

[5] Ibid.

[6] Ibid.

[7] Andreas Noll. (2021, October 7). When are pushbacks at the EU’s external borders illegal? Deutsche Welle. Retrieved October 10, 2021.

[8] Ibid.

[9] United Nations Refugee Agency, ‘Geneva Convention relating to the status of Refugees’ and its 1967 Protocol (1951).

[10] European Court of Human Rights. (2021, July). Collective expulsions of aliens, Factsheet.

[11] Greece promises investigation into migrant pushback accusations. (2021, October 8). Devdis Course – Discourse on Development. Retrieved October 10, 2021.

[12] Georgi Gotev. (2021, October 7). EU Commission urges probe after report on migrant pushbacks in Greece, Croatia. Euractiv. Retrieved October 10, 2021.

[13] Deutsche Welle (www.dw.com). (2021, October 7). When pushbacks at EU periphery become illegal. DW.COM. Retrieved October 10, 2021.

[14] SchengenVisaInfo. (2021, October 8). EU Executive Urges Investigation on Illegal Migrant Pushbacks in Greece & Croatia. Retrieved October 10, 2021.

[15] Georgi Gotev. (2021, October 7). EU Commission urges probe after report on migrant pushbacks in Greece, Croatia. Euractiv. Retrieved October 10, 2021.

[16] Gabriela Baczynska. (2021, October 7). EU executive demands probe into alleged migrant pushbacks in Greece, Croatia. Reuters. Retrieved October 10, 2021.

[17] Ibid.

[18] Ibid.

Jurisdiction of the Court 

The European Court of Human Rights is an international judicial body set up in 1959 in Strasbourg,  France. Its main function is to rule on individual or State applications alleging violations of the civil and  political rights set out in the European Convention on Human Rights (GHRD, 2021). The Court’s  jurisdiction spreads throughout the 47 European States of the Council of Europe, and it can examine  cases involving not only the citizens of these countries but also anyone present in their jurisdiction  (GHRD, 2021). Denmark is a member of the Council of Europe and for this reason, falls within the  jurisdiction of the court (Council of Europe – Denmark, n.d.). 

M.A. decided to lodge an application before the European Court of Human Rights on 30 January 2018  relying on the alleged violation of Articles 8 (right to respect for private and family life) and 14  (prohibition of discrimination). The applicant complained that persons like him, who had been  granted “temporary protection” in Denmark, were subject to a statutory three-year waiting period  before being granted family reunification (unless exceptional reasons existed), under section 7(3) of  the Danish Aliens Act, whereas other persons being granted international protection in Denmark  were not subject to such a restriction (HUDOC – European Court of Human Rights, 2021a).  

The Court noted from the outset that the applicant’s complaint related to his 4 November 2015  application for family reunification with his wife only and therefore to the decision of 16 September  by the Danish immigration authorities to refuse temporarily to grant him family reunification. At that  time, he had had a residence permit under section 7(3) of the Aliens Act for five months (HUDOC –  European Court of Human Rights, 2021a). This case concerned thus the deferral for three years of the  applicant’s right to be granted family reunification. 

Jurisprudence of the ECHR 

For the first time in its history, the European Court of Human Rights faced the novel question of  whether, and to what extent, the imposition of a statutory waiting period for access to family  reunification for persons enjoying subsidiary protection or temporary protection status is  compatible with Article 8 of the Convention (LawEuro, 2021). 

In its prior jurisprudence, the Court has developed the general principles on family reunification in  its case-law relating to other types of situations raising issues on the extent of the State’s obligations  to admit to its territory relatives of persons residing there (LawEuro, 2021). States are entitled, as a  matter of well-established international law and subject to their treaty obligations, to control the  entry of aliens into their territory and their residence there (LawEuro, 2021). The Convention does  not guarantee the right of a foreign national to enter or to reside in a particular country. Article 8  does not impose on a State a general obligation to respect a married couple’s choice of country for  their matrimonial residence or to authorise family reunification on its territory. In a case that  concerns family life as well as immigration, the extent of a State’s obligations to admit to its territory  relatives of persons residing there will vary according to the particular circumstances of the persons  involved such as, for the requesting person, achieving a settled status or having strong ties with the  host country (Strasbourg Observers, 2021).  

The existing case law concerned the more general question of whether a refusal to grant family  reunification in a given case complied with the requirements of Article 8 of the Convention. Rights of  requesting personal beneficiaries of subsidiary protection and the temporary nature of any refusal  due to the existence of a statutory waiting period of a given length were not at issue. 

The Court, in its case-law, has also affirmed certain procedural requirements about the processing  of such requests. In two important decisions the applicants had been granted residence in France  as refugees under the UN Refugee Convention (HUDOC – European Court of Human Rights, 2021a).  Subsequently, they were granted family reunification with their family members who had been  residing abroad. However, the issuing of visas was not automatic. Thus, the applicants had to obtain  the visas themselves. In Tanda-Muzinga it took three years and five months (Case of Tanda-Muzinga  v. France – Application no. 2260/10, 2014), and in Mugenzi, this process lasted for six years (Case of  Mugenzi v. France – Application no. 52701/09, 2014). The Court found a violation because the  national decision-making process did not offer the guarantees of flexibility, promptness and  effectiveness required to secure the right to respect for family life under Article 8 (HUDOC –  European Court of Human Rights, 2021a). 

Similarly, in Senigo Longue and Others v. France, the applicant had lived lawfully in France since  October 2005 as a result of family reunification with her spouse (Case of Senigo Longue and Others  v. France – Application no.19113/09, 2014). In May 2007 she had requested family reunification with  her two children who had remained in Cameroon. In connection with the examination of an  application for family reunification, for more than four years the French authorities had doubted the  applicant’s maternal relationship with the two children (Case of Senigo Longue and Others v. France  – Application no.19113/09, 2014). The Court found such a period too long, particularly considering  the best interests of the children and that the decision-making process did not sufficiently safeguard  the flexibility, speed and efficiency required to observe the applicants’ right to respect for family life  under Article 8 of the Convention (HUDOC – European Court of Human Rights, 2021a). 

The situation in Europe 

In order to better understand the situation in the rest of Europe, it may be useful to analyse how the  family reunification process works in Greece and Hungary, two EU border states that receive a very  high number of migrants, and consequently of family reunification applications, every year. 

In Greece, if you have been granted refugee status (full asylum), you can ask to bring your immediate  family members to Greece from a non-European country (Asylum in Europe, 2021). Only people who  have been granted refugee status (full asylum) can apply to bring their family members to Greece, if  you are under subsidiary protection (partial asylum), you cannot ask for your family to join you in  Greece. The request should be applied no more than 3 months after you get refugee status,  otherwise more documents and certifications are requested. This makes the procedure more  onerous and demanding. If the application for family reunification is rejected, the applicants have 10  days to submit an appeal before the competent administrative authorities. In case the appeal is  rejected, applicants have the right to lodge an application for annulment before the competent  Administrative Court of First Instance. The procedure of family reunification includes, inter alia,  communication and cooperation with the competent Greek Embassies, interviews with both the  refugee and his/her family members, DNA testing where requested, as well as legal representation  before the competent Administrative Court in case of rejection. For all these reasons, family  reunification in Greece is an extremely difficult and long procedure and it can last up to more than  three years (Asylum in Europe, 2021). 

In Hungary, both refugees and beneficiaries of subsidiary protection have the right to family  reunification. Family reunification is possible only in case the family connections had already existed  by the time the refugee or the beneficiary of subsidiary protection reached Hungary(Magyar Helsinki  Bizottstàg , n.d). It is possible to ask for family reunification right after you receive protection in  Hungary. If the family of the refugee starts the family reunification procedure within three months  after the refugee receives the status, then they only need to prove the existence of family connection  or the dependence of family members. Beneficiaries of subsidiary protection and refugees whose  family members could not submit their application for family reunification during the first three  months need to provide proof of accommodation, proof of livelihood and proof of health insurance.  If the application for family reunification is rejected you can appeal within 8 days at the Immigration  and Asylum Office. In case they reject your application again, you can turn to the Court in 30  days(Magyar Helsinki Bizottstàg , n.d). The Court can either agree with the rejection or can squash it  and order the Immigration and Asylum Office to make a new decision (Magyar Helsinki Bizottstàg ,  n.d).  

Judgment 

The crux of the matter was whether the Danish authorities, in September 2016, when refusing the  applicant’s request for family reunification, owing to the three-year waiting period, had struck a fair  balance between the competing interests of the individual and of the community as a whole. The  applicant had had an interest in reunification with his wife as soon as possible, whereas the Danish  State had had an interest in controlling immigration as a means of serving the general interests of the  economic wellbeing of the country, and of ensuring the effective integration of those granted  protection to preserve social cohesion (Strasbourg Observers, 2021).  

It was evident that the applicant and his wife had a longstanding family life since the spouses had  been married for twenty-five years. The applicant had fled Syria owing to the arbitrary violent attacks  and ill-treatment of civilians. He had left his wife behind to spare her from the hardship of travelling,  and in the hope that she would be able to join him in a host country as soon as he had obtained  settled status there. The applicant had been residing in Denmark for five months when he applied for  family reunification in June 2015, and for one year and three months when his request was refused in  September 2016 (LawEuro, 2021). Thus, at the relevant time, he had had limited ties and his wife had  had no ties to the country. 

The Court could not but note that, as amended, the Danish Alien Act did not allow for an  individualised assessment of the interest of family unity in the light of the concrete situation of the  persons concerned beyond very limited exceptions, nor had it provided for a review of the situation  in the country of origin. Thus, the statutory framework and three-year waiting period had operated  as a strict requirement for the applicant to endure a prolonged separation from his wife, irrespective  of considerations of family unity in the light of the likely duration of the obstacles (European Website  on Integration, 2021). It cannot be said that the applicant had been afforded a real possibility under  the applicable law of having an individualised assessment of whether a shorter waiting period than  three years could better meet the required fair balance. For these reasons the Court found there was  a violation of article 8, it was not satisfied that the authorities had done their utmost to ensure a fair  balance between the relevant interests at stake (HUDOC -European Court of Human Rights, 2021). 

The Court also found, unanimously, that there was no need to examine separately the applicant’s  complaint under article 14 read in conjunction with article 8 (HUDOC -European Court of Human  Rights, 2021). 

Conclusion 

Notwithstanding the states’ right to protect themselves from an uncontrolled influx of foreigners, this  new court ruling against Denmark underlines the fact that all refugees have a right to family reunification,  whether they are granted protection status, humanitarian status or convention status. There must be a  balance between the interests of the state and the refugee’s rights, which today is still not ensured in  several EU countries (European Website on Integration, 2021). 

Photo source: Syrian family comes home to a town ravaged by war (by Houssam Hariri):  https://reliefweb.int/report/syrian-arab-republic/syrian-family-comes-home-town-ravaged-war-enar 

Photo source: UNHCR says family reunifications in Italy too slow. (by ANSA): https:// www.infomigrants  .net/en/post/21048/unhcr-says-family-reunifications-in-italy-too-slow 

References: 

Asylum in Europe (2021, June, 10) Family reunification – Greece. https://asylumineurope. org/  reports/country/greece/content-international-protection/family-reunification/ 

(2021, July, 14) Denmark: European Court of Human Rights says three-year rule violates refugees’  right to family life. European Website on Integration. https://ec.europa.eu/migrant-integration  /news/denmark-european-court-of-human-rights-says-three-year-rule-violates-refugees-right-to family-life 

(2021, July, 12) Gammeltoft-Hansen, Thomas, Madsen, Mikael Rask; Palmer Olsen, Henrik. The Limits  of Indirect Deterrence of Asylum Seekers. VerfBlog. https://verfassungsblog.de/the-limits-of indirect-deterrence-of-asylum-seekers/, DOI: 10.17176/20210712-140121-0 

HUDOC – European Court of Human Rights. (2021, July, 9a) Case of M.A. v. Denmark (Application no.  6697/18) https://hudoc.echr.coe.int/fre#{%22itemid%22:[%22001-211178%22]} 

HUDOC – European Court of Human Rights. (2021, July, 9b) Press release – Authorities violated  Convention with mandatory waiting period for family reunification https://hudoc.echr. coe.int/ app/  conversion/pdf/?library=ECHR&id=003-7076299-9566176&filename= Grand%20Chamber  %20judgment%20M.A.%20v.%20Denmark%20-%20Authorities%20 violated %20Convention  %20with%20mandatory%20waiting%20period%20for%20family%20reunification.pdf 

(2021, July, 12) Joao Victor Stuart. Association “Accept” and others v. Romania. GHRD. https://ghrd.org  /association-accept-and-others-v-romania/ 

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Wiktoria Walczyk
Coordinator & Head Researcher (Nepal & Indonesia)

Wiktoria Walczyk has joined GHRD in June 2020 as a legal intern. She is currently coordinator and head researcher of Team Nepal and Indonesia. She has an extensive legal knowledge concerning international human rights and is passionate about children’s and minorities’ rights. Wiktoria has obtained her LL.B. in International & European Law and she specialised in Public International Law & Human Rights at The Hague University of Applied Sciences in the Netherlands. Moreover, she is pursuing her LL.M. in International & European Law and focusing on Modern Human Rights Law specialisation at the University of Wroclaw in Poland. In order to gain an essential legal experience, Wiktoria has also joined Credit Suisse’s 2021 General Counsel Graduate First Program where she is conducting her legal training and discovering the banking world. She would like to make a significant impact when it comes to the protection of fundamental human rights around the world, especially with regard to child labour. 

Fairuz Sewbaks
Coordinator and Head Researcher
(Africa)​

Fairuz Sewbaks holds extensive legal knowledge regarding international human rights, with a specific focus on human rights dealings taking place in continental Africa. She holds a bachelor’s degree from The Hague University in public international law and international human rights and successfully followed advanced human rights courses at the Centre for Human Rights, University of Pretoria. She furthermore participated in the Istanbul Summer School where she was educated about the role of epidemics and pandemics in light of human rights.

 

Fairuz is the coordinator and head researcher for GHRD Africa. Her primary focus is to establish and coordinate long-term research projects regarding the differentiating human rights dealings of vulnerable and marginalized groups in continental Africa, as well as conducting individual research projects.

Priya Lachmansingh
Coordinator and Head Researcher, Political Advisor
(Asia & America)

Priya Lachmansingh is currently pursuing her bachelor’s degree in International & European
Law at the Hague University of Applied Science.
As GHRD’s Asia & America human rights coordinator and GHRD Political Advisor, Priya’s
prominent focus is to highlight human rights violations targeted against minority and
marginalized groups in Asia and America and to broaden GHRD reach within Dutch political
parties and as well seek domestic funding.

Jasmann Chatwal
Team Coordinator & Head Coordinator: North America

Jasmann is a political science student at Leiden University who joined GHRD in May 2021 as an intern in team Pakistan. Now, she is the team coordinator for North America and is responsible for coordinating the documentation of human rights violations in USA, Canada, and America.