Katsoni, Spyridoula

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Refoulement Beyond PushbacksSpyridoula Katsoni 2021-09-20T08:00:22Since the Taliban took control of Kabul, the news has abounded in heart-breakingimages of people trying to flee Afghanistan. Following some sympathetic responses,however, the discourse has shifted to the upcoming ‘immigration wave’ and to theefficiency of the EU border management in coping with said wave.‘We must anticipate and protect ourselves against major irregular migratory flows’,said Macron, while Merkel noted that ‘[w]e cannot solve all of these problems bytaking everyone in’. On a more direct note, Mitarakis shamelessly warned thatGreece ‘will not become the entrance gate for irregular Afghan refugees to Europe’and proudly underlined that ‘[o]ur country is impenetrable’. Meanwhile, Mitsotakisand Erdo#an agreed that their countries cannot afford to carry any additional refugeeweight, while both countries have taken steps to make more difficult the entry ofprospective asylum-seekers into their territory.Such declarations raise fears of upcoming breaches of the states’ obligation toallow prospective asylum-seekers to enter their territory. Against this background,a clarification of the scope of this obligation seems necessary. This post will firstindicate the link of this positive obligation with non-refoulement and subsequentlyexplore its lawful limitations.Non-Refoulement and the Obligation to AdmitAlthough the obligation to admit prospective asylum-seekers has been traditionallyviewed as contradictory to the states’ sovereign right to admit into their territoryonly such persons as they deem advisable (Boed, p. 5), the relationship of thisobligation with non-refoulement was eventually acknowledged in both theory andjurisprudence. Precisely, non-refoulement provisions have been interpreted asrequiring states to allow asylum-seekers to enter their territory with the aim offacilitating the submission and assessment of their asylum applications (Salerno, p.502). In other words, the obligation to admit has been viewed as stemming from non-refoulement provisions.Indeed, emphasis on the broad wording of article 33(1) of the Refugee Conventionled Kälin, Caroni and Heim to acknowledge that non-admission at the borderfalls within the scope of acts prohibited by the said provision (p. 1363). Similarly,the Inter-American Commission of Human Rights stressed that ‘[t]he prohibitionof refoulement means that any person recognised as a refugee or requestingrecognition as such […] cannot be refused entry at the border or expelled withoutadequate and individualised analysis of their petitions’ (para. 25).  Accordingly, theCommittee on the Rights of the Child explicitly connected access to territory withprotection against refoulement (para. 14.4), while the European Court of HumanRights (‘ECtHR’) has also upheld that the prohibition of refoulement enshrined in- 1 -ECHR article 3 entails an obligation of admission (M.K. and others v Poland, para.179).The Limitations ArguedAlthough, in line with the above, the obligation to admit prospective asylum-seekersis well-established through non-refoulement provisions. Regarding its scope,however, states have argued for numerous whimsical limitations.Indicatively, Mitarakis recently argued that, as Greece is not a neighbouring stateto Afghanistan, it is not obliged to admit prospective asylum-seekers therefrom.This argument supposedly stems from the textual interpretation of the RefugeeConvention, which, prohibiting states from returning refugees/asylum-seekers to thefrontiers of territories, where their life or freedom would be threatened, presupposesthat refugees/asylum-seekers seek refuge in countries located at the frontiers oftheir home-states. However, as Kälin, Caroni and Heim highlight, both the landor territorial waters’ border or airport transit zone of the neighbouring state andof literally any other state qualify as frontiers of the country of refuge, where theprospective asylum-seeker shall be allowed entry (p. 1367). After all, even if sucha restriction were indeed imposed by the Refugee Convention, states would bestill required to admit prospective asylum-seekers under human rights provisionsentailing protection against refoulements, which – just like the Refugee Convention –do not set a territorial-proximity requirement for asylum-seekers’ entry into the state-parties’ territory, if denial thereof would entail a risk of torture, inhuman or degradingtreatment (M.K. and others v Poland, para. 179).Another argument that has recently been raised by Greece and Turkey is that, asthese states have already admitted many asylum-seekers over the last years, theycannot be expected to admit more. However justifiable such an argument may seemin view of several EU states’ inadequate action, legally, it is equally futile. In fact, asthe ECtHR has stressed:‘the states which form the external borders of the European Unionare currently experiencing considerable difficulties in coping with theincreasing influx of migrants and asylum-seekers. […] The Court does notunderestimate the burden and pressure this situation places on the statesconcerned, which are all the greater in the present context of economiccrisis. It is particularly aware of the difficulties involved in the reception ofmigrants and asylum-seekers on their arrival at major international airportsand of the disproportionate number of asylum-seekers when comparedto the capacities of some of those states. However, having regard to theabsolute character of Article 3, that cannot absolve a state of its obligationsunder that provision’ (M.S.S. v Belgium and Greece, para. 223).As this pronouncement indicates, neither the geographic position of some statesnor their financial incapacity and contribution to earlier refugee movements exemptsthem from their obligation to admit prospective asylum-seekers from Afghanistan.- 2 -The last commonly-argued limitation is that at least those, who fall within exceptionclauses of non-refoulement provisions [e.g. Refugee Convention article 33(2)], areexcluded from the personal scope of the obligation to admit as well. However, asMoreno-Lax underlined, for reasonable grounds to be raised regarding asylum-seekers’ safety for the security or the community of the host-state, she/he must havepreviously entered the territory of that state (p. 251).The Actual LimitationsAlthough the aforementioned arguments can be dismissed, other valid limitationsrestrict the protective scope of the obligation to admit.Indeed, as the ECtHR noted, a state cannot deny entry to its territory to an asylum-seeker presenting herself/himself at the border alleging that she/he may besubjected to mistreatment if she/he remains on the territory of a neighbouring state,unless adequate measures are taken to eliminate such a risk (M.K. and othersv Poland, para. 179). To eliminate such a risk, the sending state would have toexamine whether the individual at stake will have access to an adequate asylumprocedure in the state of return upon non-admission (ibid, paras. 172-173), as wellas whether safeguards against indirect refoulement and inhuman or degradingtreatment exist in that state (M.S.S. v Belgium and Greece, paras. 344-365). If theseconditions are met, non-admission will be lawful.The same holds mutadis mutandis true for inter-state cooperative migrationcontrol policies (such as the ones established via the Dublin Regulations). If theseconditions are met in a cooperating state, then transfers of prospective asylum-seekers thereto will be lawful (M.S.S. v Belgium and Greece, para. 365). The mereexistence of such a cooperation policy, however, will not exempt the state, to whichadmission is initially sought, from its obligations (Hirsi Jamaa and Others v Italy,para. 129). The sending state will actually have to assess the circumstances inthe cooperating state before sending protection-seeker there (ibid, para. 157).In this sense, Greece’s qualifying Turkey as an a priori safe country for Afghanasylum-seekers does not render their non-admission and transfer to Turkey lawful;conversely, it raises fears of Greece’s misuse of inter-state co-operations as ameans of maneuvering around its non-refoulement obligations.Furthermore, shipboard refugee status determinations procedures have been alsoargued to serve as alternatives to admission. Precisely, as Dastyari and Ghezelbashsuggest, if certain requirements are met, states may deny the entry to prospectiveasylum-seekers, whose applications can be processed in off-shore establishments.However, as the safeguards required for such processing to be compatible withinternational law are essentially identical to those that states would have to fulfil ontheir land, the likelihood for such shipboard processing to actually take place is nothigh (ibid, p. 26).Lastly, the Grand Chamber of the ECtHR recently held that if states have madeavailable genuine and effective access to means of legal entry, they may refuse theentry of prospective asylum-seekers, who, without cogent reasons, cross the borderat a different location and take advantage of their large numbers and use force in- 3 -order to enter (N.D. and N.T. v Spain, para. 210). The court’s (already criticised)view of such acts as some form of abuse of right, however, seems to be neglectingthe non-penalisation principle embodied in article 31 of the Refugee Convention.In fact, a systemic interpretation of ECHR Article 3 against the background of thatprovision would lead to the conclusion that the personal scope of the obligationto admit is owed to all aliens, regardless of whether they enter the state territoryirregularly.ConclusionStates which were affected by the disproportionate responsibility-sharing followingthe 2015 arrival of asylum-seekers are already in the process of strategicallyorganising the non-admission of prospective asylum-seekers from Afghanistan.However, the non-admission of asylum-seekers is only compatible with non-refoulement in limited cases. Against this background, it seems that a substantiveinter-state responsibility-sharing co-operation is crucial. The “Bofaxe” series appears as part of a collaboration between the IFHV andVölkerrechtsblog.- 4 -

Refoulement Beyond Pushbacks

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Refoulement Beyond Pushbacks

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