Over the past decade the EU has witnessed an increasing number of third-country nationals trying to reach its borders to find a safe haven there. In these difficult times, both the EU institutions and its Member States have continued to proclaim their adherence to the right to seek asylum and the principle of non-refoulement, while at the same time exercising (Member States) and tolerating (EU institutions) rigid border policies which have, in practice, repeatedly caused the circumvention or breaches of these rules. This blog post provides a brief introduction and key findings of our article “External Border Control Techniques in the EU as a Challenge to the Principle of Non-Refoulement”, published here by the European Constitutional Law Review. The article is part of the EuConst section titled “Migration and the Rule of Law” which contains articles linked to the 3^rd UNESCO Chair conference: ‘Migration and the Rule of Law’, held in Zagreb on 17 January 2020.

The aim of the article is twofold. First, it shows that there is a substantive change in the EU Member States’ border practices and their willingness to admit third-country nationals to refugee status determination procedures, compared to the pre-2010 period. Second, the article highlights that the change in the Member States’ practical approach towards non-refoulement has taken place without altering a single word in the definition of non-refoulement in EU primary and secondary law. Consequently, the gap between the EU’s constitutional, normative expectations and Member States’ practices has been widening, leading to tension between the reality and the law, which even the new Pact on Migration and Asylum may be unable to eliminate. The article provides the theoretical foundations by recalling the multiple definitions of non-refoulement, by elaborating the definition which is followed in the text and by engaging with the loopholes which Member States have recently started to exploit.

It addresses deterrence techniques exercised by a number of Member States to keep migrants and refugees outside their borders and to prevent refugees’ access to meaningful protection. It starts by focusing on pushbacks and border police obstruction techniques and then moves on to subtler techniques which are used in administrative procedures, and which exploit legal uncertainties by relying on the concepts of the ‘safe third country’, ‘first country of asylum’ and ‘safe country of origin’. The discussion shows that these deterrence techniques are not capable of insulating the respective Member State from its non-refoulement duty and liability under EU law and the most recent case law of the European Court of Human Rights. The article also problematises the relationship between non-refoulement and the Commission’s 2020 Migration and Asylum Pact by discussing the difficulties the new legislative proposals could create in respecting asylum seekers’ fundamental rights and Member States’ non-refoulement obligations.

Prof. Dr. Iris Goldner Lang, LL.M. (LSE), is a Jean Monnet Professor of EU Law and the holder of the UNESCO Chair on Free Movement of People, Migration and Inter-Cultural Dialogue at the University of Zagreb, Faculty of Law.

Boldizsár Nagy is an Associate Professor at the Central European University, Department of International Relations.

Read “External Border Control Techniques in the EU as a Challenge to the Principle of Non-Refoulement” without charge until 1 October. The full EuConst section on Migration and the Rule of Law, also freely available for a limited time, can be found here.