Dr Rachael Dickson of Birmingham Law School writes on how migration policies that have long been criticised are now being tested by the European Court of Human Rights and the European Court of Justice, and why the outcomes could have wide-ranging implications on migration policy and beyond. 

A case has been lodged at the European Court of Human Rights that accuses Greek authorities of serious human rights abuses against migrants at sea. As a result of the Syrian War, and a combination of other factors, the Aegean Sea has increasingly been a route into Europe for migrants. The dissatisfaction of states along the EU border, such as Greece and Italy, at the pressure increased migrant arrivals have put on their asylum procedures lead to EU attempts to garner solidarity and spread out the responsibility for migration policy to all EU Member States.

However, not all EU states are on board with taking more responsibility. To work around this, the EU has increased the mandate of Frontex – the European Border and Coast Guard Agency. Its role is to coordinate operations along the border. The handling of migrant entry to the EU has become what is known as joint action, involving Frontex and national operatives working together. The activities undertaken in such cooperation include search and rescue missions to locate and assist boats carrying migrants that are in trouble. Often migrants travel on vessels that are not fit for the journey. Such boats are often operated by smugglers who profit from the desperate and vulnerable. Identity checks and screening processes are also conducted to assign migrants to immigration and asylum procedures. This may be making an application for refugee status, or another form of international protection, or it may be decided migrants have no legal right to entry, in which case procedures for their removal begin. 

Importantly, Frontex does not have the ability to grant or deny asylum. That power lies with national authorities. However, it is not a decision that can be made instantly as it involves corroborating the information obtained from the individual and gathering evidence to support the decision. The principle of non-refoulement is supposed to guarantee that no one should be returned to a country where they would face torture, cruel, inhuman or degrading treatment or punishment or other irreparable harms. With such high stakes for individuals it is important that decisions are informed but on the other hand hosting migrants for the duration of this process is costly and demanding on a state’s physical resources such as providing food, shelter, medical treatment and so on.

Although the EU declared that the crisis was over in March 2019, migration is still a contentious political issue and without more accessible systems to claim asylum, dangerous journeys seem set to continue. The case lodged by the Lesvos Law Centre at the European Court of Human Rights makes claims that Greek personnel breached human rights law by forcing a migrant boat to turn around and denying it entry to a Greek port. There have been other reports of such incidents, known as ‘push backs’. The motivation behind push backs is that by not allowing the migrants to disembark from the boat, a nation state would not have to assume responsibility for processing asylum claims (and the resource demand entailed).   The organisation Medicins Sans Frontieres (Doctors Without Borders) has taken legal action against the Italian authorities for refusing to allow one of its rescue ships to dock in Palermo in 2020. During the time the boat was denied entry to port a passenger had to be airlifted to receive medical attention.

The problem with the joint action is that it is difficult to assign responsibility and raise complaints. This is exacerbated in push back situations when migrants do not enter EU territory so cannot access the relevant channels. Questions also exist as to how effective those channels are and concern is growing at how migration policy operates without appropriate oversight and remedy.

In addition to the Greek case, a preliminary action has been lodged against Frontex in relation to its involvement in push backs. This is a procedure under EU law in which the Court of Justice of the EU gives a ruling on a state or institution that has not fulfilled their obligations. It has been alleged that Frontex has failed to uphold due diligence and engaged in systematic, widespread and serious violations of its obligations under the European Union Charter of Fundamental Rights. These are similar claims to those against Greece.

In internal investigations, Frontex has claimed there is no evidence of wrongdoing. However, scrutiny is increasing with a European Parliament inquiry into possible mismanagement, the European Ombudsman investigating the effectiveness of the complaints procedure and the EU Anti-Fraud Office (OLAF) investigating use of funds. Frontex’s mandate has been expanded significantly to assume responsibility for migration policy. This approach, which has been criticised significantly, may finally be proving untenable.

International law prohibits push backs as they amount to collective refusal and fail to grant individual migrants due process which requires examining each case individually. The European Court of Justice ruled pushbacks across Hungary’s land border illegal in December 2020 but Hungary continued the practice with 600 incidents, being documented between the ruling and 26 January 2021. Frontex suspended operations on the Hungarian border as a result. However, incidents at sea have been more of a grey area, not least because they occur off-shore and are less readily observed.

Migration policy that has been criticised for some time is now being tested by the two European Courts. The specific grounds of the cases differ according to the legal jurisdictions of the Council of Europe and the European Union respectively. However, the outcomes could have wide-ranging implications about migration policy and how transparency, accountability, and human rights should be managed in joint activities.