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Understanding Pushbacks: Pushbacks are the informal cross-border expulsion (without due process) of individuals or groups to another country. This lies in contrast to the term “deportation”, which is conducted in a legal framework, and “readmission” which is a formal procedure rooted in bilateral and multilateral agreements between states. Readmissions of persons who have expressed their wish to seek asylum or who have expressed fear of being readmitted to the country they transited through are illegal. In the past five years, pushbacks have become an important, if unofficial, part of the migration regime of EU countries and elsewhere. The term “pushback” itself is a definition that came to initially describe the unfolding events along the EU borders of Hungary and Croatia with Serbia in 2016, after the closure of the Balkan route. The practice is now a hallmark of border externalisation which reaches from the Greek-Turkish border, all the way to the Slovenian-Italian-Austrian borders.

Asylum and Non-Refoulement: Though BVMN advocates for the rights of all people on the move, the laws around asylum are important in understanding how illegal pushbacks occur. Modern asylum law is based on the conviction that every individual has a right to apply for international protection in the case that their life is threatened in their country of origin. Most national and international regulations concerning asylum are based on the 1951 Geneva Convention (Convention Relating to the Status of Refugees). Expanding off of the basic right to apply for asylum, the Geneva Convention includes the principle of non-refoulement (Art. 32, 33) which forbids states from returning anyone declaring the will of applying for asylum to a place in which they would be in likely danger of persecution. While there is no international legal definition of the term pushback, it can be understood as behaviour violating the general rule of non-refoulement. Prohibiting an individual from the right to apply for asylum is generally an infringement of the Geneva Convention and as such should be considered a violation of international law.

The principle of non-refoulement has since been adopted in the legislation regulating  asylum procedures on the EU level. Examples can be found in Article 18 and 19 of the Charter of Fundamental Rights of the European Union and in Directive 2013/32/EU on common procedures for granting and withdrawing international protection. To this end, the responsibility of EU member states to comply with international standards on refugee protection is double:  not only are all EU-member states signatories of the 1951 Geneva Convention but they are also beholden to the EU principles and regulations on its common asylum system.

Collective Expulsions: The collective aspect of pushbacks is also a key element which links them to breaches of international law. The removal (en masse) of transit groups from one state territory to another represents a violation of the prohibition against collective expulsions. Collective expulsions of whole groups, as they are conducted by several EU member states, deny each individual in this group the right to apply for asylum and explain their specific and individual reasons ( Art. 4 of Protocol 4 of the European Convention on Human Rights). Greece and Switzerland are not signatories to Protocol 4 to the Convention prohibiting collective expulsions, while Türkiye and the United Kingdom signed but never ratified the treaty. Nonetheless, the European Court of Human Rights protects people from refoulement under Article 3 (the prohibition of torture and inhuman and degrading treatment of punishment) when the person would be removed to a country where they would be subjected ot torture or ill-treatment. Equally, the principle of non-refoulement is recognized as an essential and non-derogable component of international refugee protection. Since derogations from the prohibition of torture and ill-treatment are not permissible under any circumstances, states cannot return nor remove a person at risk of torture or ill-treatment under any circumstances. 

Law on Removals: Alongside mandated access to international protection, EU states must also align their domestic legislation with the Directive 2008/115/EC of the European Parliament and of the Council on common standards and procedures in Member States for returning illegally staying third-country nationals. Under this directive, obligations are enshrined, such as making detention a last recourse, mandating the provision of legal assistance and access to appeal, and halting returns to states not considered “third safe countries”. It is the responsibility of all member states, then, to ensure that these common principles are not ignored on the external borders of the European Union, whether dealing with people claiming asylum, or those transiting without this intent.