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Pushbacks in the EU: How to end impunity?

Migration / COMMENTARY
Tineke Strik

Date: 16/12/2020
Pushbacks at our external borders have become a widespread practice. Why are these violations so persistent, and what can be done to stop them? We need a wider scope of the newly proposed monitoring mechanism, stricter enforcement of the rules and stronger scrutiny from the European Parliament and Commission.

Pushbacks at our external borders have become a persistent and widespread practice, often accompanied by violence. Their systematic character reveals that they are not only a matter of practice but also of policies in many EU border countries. Investigative journalists recently found that despite its task to promote human rights compliance at the external borders, Frontex is complicit in such pushbacks.

In response to the many calls to end these flagrant violations, the European Commission has introduced a national fundamental rights border monitoring mechanism in its recent proposal for a Screening Regulation. According to Commissioner Ylva Johansson, this will prevent pushbacks. This is a positive first step, but will not sufficiently protect migrants against arbitrariness, violence and the denial of access to an asylum procedure. Why are these violations so persistent in the first place? We need not only a wider scope of the newly proposed monitoring mechanism but also stricter enforcement of the rules, linked to stronger scrutiny from the European Parliament and Commission.

Are the rules sufficient?

EU law distinguishes between border checks undertaken at border crossing points on the one hand and, on the other, border surveillance between border crossing points, to prevent persons from circumventing border checks. While the Schengen Borders Code (2016/399; SBC) and the Schengen Handbook include many rules on border checks, the provisions on border surveillance are very limited. The SBC empowers the Commission to adopt delegated acts for additional measures governing border surveillance, but until now, such a delegated act has never been adopted. This leads to different interpretations by member states about what they have to or are permitted to do between border checks, for instance, regarding the construction of fences.

The Fundamental Rights Agency’s (FRA) 2020 report released on 8 December confirms that border guards face a lack of clarity in their border surveillance activities. This includes, for example, procedural safeguards when apprehending a migrant in relation to an unauthorised border crossing or the limits of operational cooperation with neighbouring countries. More legal certainty requires more detailed rules which limit the discretion of member states during border surveillance. Existing obligations may be worked out as well, for instance, on providing information and forwarding people to an asylum procedure. However, when it comes to the use of violence and pushbacks, there can be no doubt about the breach of the fundamental rights and the Refugee Convention as referred to in Article 4 of the Schengen Borders Code (SBC). Furthermore, Article 14(1) of the SBC stipulates that the right of asylum and to international protection shall not be affected by the rules on the refusal of entry.

Although the SBC also includes procedural safeguards, such as on the right to information and to appeal against a refusal, the application of the Returns Directive (2008/115/EC) in border areas could strengthen the legal position of migrants. This could add the right to be heard, the proportionality principle and other safeguards during all stages of a return process. As many member states use the option of Article 2(a) not to apply the Return Directive in border areas, I have proposed to abolish this option in the recast of the Return Directive and make the application mandatory.

Is the monitoring sufficient?

Most member states have one or more independent monitoring bodies whose mandate stretches out to human rights compliance at the border, such as national ombudsmen, National Preventive Mechanisms and national human rights institutions. However, a lack of resources, a limited mandate or obstruction by authorities often impede effective monitoring, especially of governments accused of pushbacks. Complaints from monitoring bodies or non-governmental organisations in those countries are mostly declared inadmissible on the ground of a lack of evidence.

The Commission’s proposal for an independent monitoring mechanism should therefore include criteria ensuring its effectiveness, as well as for an independent assessment of complaints. Most of all, the application of the obligatory monitoring mechanism should not be limited to the screening procedure but cover all border areas, as pushbacks are prone to take place out of sight; in forests and at sea. In addition, an effective monitoring mechanism cannot replace the right to an effective remedy against decisions taken during the screening procedure. Such a right should be added in the proposed Screening Regulation. With these improvements, the proposed legislation would contribute to fundamental rights compliance, as it would enable the Commission to enforce independent monitoring and judicial review.

Is compliance enforced sufficiently?

However, the current practices teach us that obligations alone are no guarantee for compliance. The enforcement of the rules and a real threat of sanctions are crucial. In cases of reported pushbacks, the Commission has generally relied on the concerned governments’ denials. The Commission considers itself incapable of investigating allegations. This response is far from satisfactory.

The Commission’s enforcement competence implies an enforcement obligation, especially if it concerns fundamental rights violations. This includes not only the incorrect transposition of EU law but also violations while implementing it on the ground. The Commission has difficulties in reconciling its role regarding legislation with its role on enforcement. Ongoing negotiations on asylum and migration, where it seeks support from the member states, seem to hold the Commission back from criticism or enforcement measures. As member states also prefer to look away from other EU countries’ clear violations, a toxic atmosphere of impunity has developed.

The proposed EU Agency for Asylum (EUAA) will be tasked with monitoring compliance by the member states, which could promote enforcement action. However, that would require transparency as well as safeguards for an independent monitoring department within the EUAA, as the Agency would also depend on good relations with the member states.

The application of the Schengen acquis in the member states, including its rules and practices on border checks and procedural safeguards, is verified by the Schengen evaluation and monitoring mechanism, established by Council Regulation 1053/2013. The evaluations are conducted jointly by the Commission and the member states. The lack of detailed rules on border surveillance impedes an effective use of the Schengen Evaluation and Monitoring Mechanism (SEM) in this area.

Nevertheless, the most important reason why the SEM does not prove to be a correction mechanism for pushbacks is that fundamental rights are currently absent as a criterion for assessing compliance with the SBC. The Commission has announced that it will fill this gap by making fundamental rights an integral part of the SEM. This requires the involvement of the FRA and other independent experts in the evaluation, the guarantee that information from national monitoring bodies is included, and unannounced inspections.

Time to act

The New Pact on Migration and Asylum, as well as the foreseen revision of the Schengen instruments, are promising avenues for the EU legislator to improve and clarify the rules governing the procedural safeguards and fundamental rights at the border. However, rules alone do not safeguard compliance. The Commission should strengthen its role as ‘guardian of the Treaties’ by enforcing member states’ compliance with EU obligations; not only by assessing their transposition into national legislation but also their implementation on the ground. As the Commission is incapable of conducting fact-finding missions by itself, it should ensure that national monitoring bodies are sufficiently equipped with an adequate mandate and budget and that complaints are assessed independently and followed up.

The European Parliament should, as a co-legislator, ensure that those obligations and criteria are amended into the New Pact proposals. However, the Parliament cannot afford to stop there: Members of the European Parliament should also be more effective in controlling the Commission’s enforcement of rules. The many credible and well-documented allegations of pushbacks by member states beg a firm and determinant action from the Commission, not its ongoing silence. The recent FRA report forms the perfect basis for a more vigilant approach from both the Commission and the Parliament. It also shows that member states can no longer shy away from violations at our external borders. External border controls are only effective if they also respect the Union’s values and rights.

It is high time to break the silence of the EU institutions. The Parliament should establish an inquiry committee scrutinising member states’ human rights violations at the Union’s external borders, and the roles of Frontex and the Commission. The European Ombudsman has rightfully started an own-initiative inquiry on the complaint mechanism of Frontex and pushback allegations at the Croatian borders. Nevertheless, the effective and actual protection of fundamental rights should not depend on the initiative of the Ombudsman alone. It merely signals that the EU has acted too little and too late.

Tineke Strik is a Member of the European Parliament for the Greens and Professor of Citizenship and Migration Law at Radboud University.

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