Are Belarus pushbacks pushing back EU law?

By Gregory Lens

Faced with an unprecedented influx of migrants from neighboring Belarus, EU countries on the region’s external borders are taking various measures to prevent and stop migrants from entering their countries. Latvia, Lithuania and Poland are currently confronted with a migration crisis caused by Belarus’ disgraced president Lukashenko, who vowed to flood Europe with “migrants and drugs”, presumably out of revenge for EU sanctions on Belarus after Lukashenko violently cracked down on protesters against his regime.

After creating short-term visa programs that allow for issuing tourist visas to citizens of wart-torn Middle-Eastern countries such as Iraq and Afghanistan, Belarus has become the transit center of a new migrant route to the EU. Because of a lack of a joint EU response to migration, the EU states bordering Belarus are left to fend off the crisis by themselves. Lithuania has already proposed legalizing pushbacks of irregular migrants in extreme situations, which would require adjusting the existing migration rules valid in the EU. Lithuania’s proposal of physical barriers – a measure not mentioned in current EU regulations as it is not allowed to be financed through EU funds – will be presented and investigated during an EU meeting later this month.

Several member states are however already taking matters into their own hands. Both Lithuania and Poland have introduced these pushbacks without waiting for EU permission, forcing illegally entering migrants back into either Belarus, or to official border crossings where they are able to legally apply for asylum. When the Commission asked Poland in September to allow deployment of Frontex guards at its border to aid national forces in combating the migration crisis, Poland refused, complicating the matter even further. After declaring the situation an emergency, the Polish parliament legalized pushbacks on October 14^th, together with a bill instructing the construction of a physical barrier wall on the Polish-Belarusian border.

Different interpretations on the legality of these pushback strategies cloud the situation. Commission Vice President Schinas tried to draw a clear distinction between “regular” asylum seekers who apply individually, and people who are escorted to the EU’s external border by third countries facilitating irregular migration into the Union’s territory to explain why pushbacks are legitimate measure in extreme situations.

Human rights and migrant’s rights groups are increasingly scrutinizing the execution of pushbacks by Poland and Lithuania. The United Nation’s Human Rights Office has called on Poland to “stop sacrificing migrant lives to political dispute”. The Office sees the declaring of states of emergency in EU member states which border Belarus as attempts to deflect responsibility for the asylum seekers and their access to protection. It also staunchly reminded Poland of the principle of non-refoulement embedded in the European Convention of Human Rights. The Red Cross repeated the UN body’s statement while adding that pushbacks are incompatible with the Geneva Convention on refugees.

The question that arises is whether these pushbacks are indeed contravening international law? The main legal issue relates to the rights of prospective asylum seekers, such as access to an effective remedy, protection, and the right to minimum living standards while seeking asylum in the receiving country. Each country is allowed to restrict access to its territory and take appropriate measures to achieve that goal, however respect for the principle of prohibiting collective expulsions is considered non-derogable by the UN’s Special Rapporteurs.

The recently enacted pushback legislation in Poland and Lithuania balances on the thin line of necessity with regard to protection of the state against a sudden, unexpectedly high influx of irregular migrants, versus the proportionality of such measures. Because the EU stands with its member states and has voiced support for measures to combat the Belarus-instigated migrant influx, its leaders are reluctant to condemn the practice as the Belarusian parliament voted to suspend its agreement with the EU to take back migrants. Aside from asking Poland to allow Frontex to assist in controlling the situation at its border, the EU has not undertaken any concrete measure to try to bring down the migrant flow. This strategy of tolerance of alleged human rights violations has already been heavily criticized by the European Council on Refugees and Exiles.

It remains to be determined whether the EU will act on member states’ requests to change the existing migration rules and explicitly allow pushbacks, or continue its policy of silent tolerance until after the French elections in April, after which a new migration deal will be drafted.