Thousands of migrants are doing it for themselves. Leaving behind war, persecution and impoverished societies; looking for safety and a better life. If they can reach the border of the European Union (EU), its law gives them clear legal rights: to present their case for entry, to have a fair decision. If they express a fear of serious harm if sent away, they have the right to an asylum appeal before being refused admission or deported.
What about migrants who haven’t made it to the EU border?
European states block travel by citizens of the countries that produce refugee and social crises. Fear of fines under EU law means airlines, rail, coach, and ferry services won’t carry any Syrian, Afghan or Eritrean passport holder to the border without a visa. As a result migrants are forced to use irregular carriers or travel on foot.
Blocking migrants before they reach the EU is now the main strategy of anti-migrant politicians and border control officials. Europol’s measure of success is fewer migrants reaching the EU: regardless of refugee status (or lack thereof). The EU pressurizes and offers assistance to repressive and corrupt states to get them to block migration, through the Khartoum Process and direct relations with individual states like Niger.
Does the ECHR apply?
The European Convention on Human Rights applies within an EU state’s “jurisdiction”. In Hirsi v Italy, migrants in international waters were taken aboard an Italian-flagged ship. The Strasbourg court ruled that this entitled them to the right under Article 3 ECHR to seek protection from being disembarked to face torture. This prohibition on “push-backs” applies wherever a migrant is under “control” of EU state forces, e.g. where coast guards tow boats away from Greece to Turkey.
What about migrants outside the jurisdiction of an EU state?
EU bodies such as the Council, Commission, Frontex and Europol now take a leading role in co-ordinating and implementing migration policy. This blog post focusses on their actions and those of Member States within the EU institutional framework. In these situations, EU bodies and Member States are bound by the EU Charter of Fundamental Rights. The Charter includes the right to life (Article 2), to asylum (Article 18) and the prohibition on inhumane and degrading treatment (Article 4). The Court of Justice has invoked the Charter to protect the rights of migrants: in N.S. Article 4 barred the UK and Ireland from sending asylum seekers to Greece, because it had no effective asylum system.
The Charter may seriously constrain action by EU bodies beyond the borders directed at obstructing migration. Articles 4 and 18 may be breached by actions aimed at preventing people fleeing persecution or serious harm from reaching a safe country (in or outside of the EU), or which are likely to have that effect in practice. For example, funding or technical support to assist authorities of countries like Eritrea, Sudan or Niger to detain or block movement of migrants would raise serious questions. Sudanese border officials currently help Eritrean refugees to flee in return for a bribe, but EU action could mean political activists or religious refugees being forced back to Eritrea, where they would likely face imprisonment or torture.
The right to life is also engaged by EU plans to combat movement. Government strategies designed to reduce deaths may comply with fundamental rights law. But the law could be broken by strategies which encourage smugglers to switch from safer methods – reliable boats, safe harbours, day time movement – to more dangerous techniques. Croatia may clear minefields from where migrants would walk. It would surely be unlawful for them to lay new ones: the right to life is of more importance than countering the mischief of irregular migration.
Reducing trafficking (moving migrants to subject them to forced labour or worse) is also a legitimate aim. But even Europol accepts that only a small number of the migrants are trafficked: the vast majority want to reach Europe and will be safe if they can do so. States currently have no good evidence on the effect of anti-smuggling operations, including whether they reduce the incidence or risk of trafficking. On the contrary, generalized anti-smuggling operations may drive out small operators, leaving the field to organized crime traffickers with strong connections to corrupt officials.
If the EU ever did create extra-territorial asylum camps, EU law would apply, including the fundamental rights in the Charter.
In countries where the EU and its Member States do nothing, EU law does not apply. But where the EU uses its forces, money or know-how, those actions bring migrants rights far beyond the EU’s borders.
by Simon Cox
Simon is the migration lawyer for the Open Society Justice Initiative, and former barrister at Doughty Street Chambers. He is also a member of the Tribunal Procedure Committee and a director of the Association of Lawyers for Animal Welfare.