EU border pushbacks: A 'shadow' migration policy?

What are 'pushbacks'?

The term "pushback," though widely employed by human rights organizations and government officials alike, doesn't actually have a specific legal definition. In a report from 2021, UN expert Felipe Gonzalez Morales defined them as "measures, actions or policies effectively resulting in the removal of migrants, individually or in groups, without an individualized assessment in line with human rights obligations and due process guarantees."

These can be carried out by state actors, such as police, border guards or the military or non-state actors, which may include paramilitaries, private security personnel or staff on commercial transport, Morales noted.

While pushbacks aren't defined in international law, they tend to go against well-established principles and legal obligations.

EU states have a right to police their national borders and to deny entry to individuals crossing borders illegally, but as signatories to the 1951 UN Convention on Refugees and the European Convention of Human Rights they are also bound to respect a number of commitments.

These include, according to Morales, the prohibition of collective expulsions, the right to seek asylum and the principle of non-refoulement, which forbids returning asylum seekers back to a country that would clearly be dangerous for them.

What do pushbacks look like?

A  pushback can take a variety of forms. At its simplest, it could be a single border guard stopping a single person intending to claim asylum from crossing a border using violence (or the threat of it), be it physical or verbal. 

In May, the US New York Times daily newspaper published explosive footage allegedly showing the summary illegal expulsion of a group of asylum seekers, including children, in Greece. The people were first loaded into an unmarked van, then put onto a Greek coast guard boat, offloaded onto an emergency dinghy and set adrift, according to the newspaper. They were ultimately picked up by the Turkish coast guard, concluded the investigation — deemed some of the most complete visual evidence of pushbacks to date.

Some of the highest-profile incidents have involved much larger groups of people and more complicated circumstances. An example is the deadly crush at the Spanish-Moroccan border in the Spanish enclave of Melilla last June. An extensive investigation by the BBC, among others, found that not only had at least 24 people died, more than 450 people had been pushed back from Spanish territory into Morocco during the chaos.

Where have alleged pushbacks been recorded?

A coalition of NGOs, the Border Violence Monitoring Network, claims to have gathered testimonies of illegal expulsions affecting some 25,000 people since 2017, British daily newspaper The Guardian reported late last year.

Pushback incidents have been documented at various spots on the EU's external borders in the past decade, according to Stephanie Pope, a migration expert at the non-governmental organization Oxfam.

On land, they have been reported for example on the Evros river at the Greek-Turkish border, at the Spanish-Moroccan border in the Spanish enclave of Melilla, at the borders of Poland and Belarus, Hungary and Serbia, and Croatia-Bosnia and Herzegovina.

At sea, Greek authorities have been accused of pushing boats back before they reach EU waters. The Italian coast guard has also allegedly pushed back boats into Libyan waters.

The EU also has struck formal deals with Libya, and most recently Tunisia, offering funds for authorities to prevent irregular crossings into EU territory before they occur.

The EU says this is to tackle people-smuggling and stop migrants making perilous crossings, but for Pope of Oxfam, these amount to "pullbacks."

What are the consequences — for those pushed and those accused of pushing?

Potential asylum seekers who are pushed back face an array of fates, depending on where it happens, Pope continued. In Greece, where Oxfam has carried out research, people often keep trying to enter the EU. Some succeed, but others end up stuck in Turkey, she said. Some of those pushed back into Libya have reportedly ended up in detention centers. "We still have continuous reports of human slavery, rape, torture, extortion, trafficking," Pope said.

For Hanaa Hakiki of the European Center for Constitutional and Human Rights (ECCHR), it is worth underlining that no one really knows how many would-be asylum seekers have ended up dead after being turned away.

"Death was always one of the risks with pushbacks, because they were always done with a complete sort of recklessness as to what would happen to these people," Hakiki told DW. The ECCHR, which has litigated for a number of people claiming to have been illegally prevented from entering the EU, has also worked with people who were secretly detained or tortured during a pushback, she said.

So far, countries accused of pushbacks have not faced many consequences, Hakiki added. The European Court of Human Rights has been "lukewarm” towards individual complaints, according to her, and the European Commission has not launched disciplinary proceedings against member states accused of pushbacks specifically. Given the precarious circumstances of asylum seekers and migrants, it is often extremely difficult for anyone who believes they have been illegally expelled to litigate against authorities, she stressed.

Pope of Oxfam told DW that pushbacks appear to have become more systematic in recent years and collaboration with non-EU actors has increased.

"The EU is essentially building this kind of complex web of policies, operational measures and third country agreements to stop people from ever being able to claim the right of asylum in the EU," she said.

"It's becoming a sort of shadow asylum system."

Edited by: Anne Thomas