The Struggle for Protection: Non-Refoulement in the EU Context
The principle of non-refoulement is a fundamental international human rights principle that prohibits the expulsion or return of individuals to a country where their life or freedom would be threatened on account of their race, religion, nationality, membership of a particular social group or political opinion.[1] This principle, enshrined in several international instruments, including the 1951 Refugee Convention, reflects the global consensus on protecting the rights of refugees and asylum seekers.
Despite the foundational importance of the principle of non-refoulement, many European Union (EU) Member States have implemented pushback measures aimed at forcing migrants out of their territory without regard for individual circumstances.[2] These pushback measures, often implemented at EU borders as part of international agreements with neighboring countries, pose a significant threat to the principle of non-refoulement.
Examining landmark cases adjudicated by the Grand Chamber of the European Court of Human Rights (“Grand Chamber”) sheds light on the evolving landscape surrounding non-refoulement within the EU context. The landmark case of Hirsi Jamaa and Others v. Italy in 2012 addressed the interception and return of migrants at sea.[3] The case marked a pivotal moment, affirming the extraterritorial application of non-refoulement when the person falls under the continuous and exclusive control of that State.[4] This decision set a precedent for bolstering legal protections for migrants and asylum seekers, extending their rights beyond national borders.[5]
However, subsequent rulings signaled a departure from established norms. In the 2016 Khlaifia and Others v. Italy, the Grand Chamber exhibited a tendency towards endorsing simplified expulsion measures without rigorous individual evaluations.[6] The Grand Chamber found that the European Convention on Human Rights (ECHR) “does not guarantee the right to an individual interview in all circumstances.”[7] This significantly deviated from precedent[8], raising concerns about the weakening of protections for migrants under the non-refoulement principle.
The continued erosion of non-refoulement reached a culmination in 2020 with N.D. and N.T. v. Spain.[9] Although it is well established that the principle of non-refoulement protects all individuals fleeing persecution regardless of entry status, the Grand Chamber sanctioned collective expulsions based on migrants’ own conduct and the availability of alternative legal pathways.[10] This decision drew extensive critique from commentators, who raised concerns about its implications for the integrity of international humanitarian law.[11] Subsequent decisions have underscored the persistence of this erosion.[12]
The Grand Chamber’s holdings that a personal interview may not be necessary in all situations, and recognizing that the applicants’ behavior and the presence of alternative legal pathways are factors that may impact the application of the principle, departed from the core purpose of non-refoulement.
By considering these discretionary factors the Grand Chamber’s approach disregards established international human rights law and effectively delegates the responsibility of upholding the principle of non-refoulement to individual State authorities. This is especially problematic for border States grappling with the influx of migrants, and thus, where the principle is most relevant. It is precisely in those instances that protecting migrants from potential abuses of authority and arbitrary actions by State authorities becomes paramount, as such actions could result in their being returned to countries where they may face life-threatening risks. Upholding this protection is at the heart of the principle of non-refoulement and its importance should not be minimized.
Ana Belzunce is a staff member of Fordham International Law Journal Volume XLVII.
[1] Convention Relating to the Status of Refugees art. 33(1), July 28, 1951, 189 U.N.T.S. 150.
[2] The European Center for Constitutional and Human Rights (ECCHR) defines “pushback” as measures “aimed at forcing refugees and migrants out of their territory while obstructing access to applicable legal and procedural frameworks.” See ECCHR, https://www.ecchr.eu/en/glossary/push-back/ (last visited Mar. 17, 2024).
[3] Hirsi Jamaa and Others v. Italy, App. No. 27765/09 Eur. Ct. H.R. 3 (2012).
[4] Id. at 27.
[5] Italy: ‘Historic’ European Court judgment upholds migrants’ rights, Amnesty International, https://www.amnesty.org/en/latest/news/2012/02/italy-historic-european-court-judgment-upholds-migrants-rights/ (last visited Mar. 17, 2024).
[6] Khlaifia and Others v. Italy, App. No. 16483/12 Eur. Ct. H.R. 42 (2016).
[7] Id.
[8] See Čonka v. Belgium, App. No. 51564/99 Eur. Ct. H.R. (2002) (violation was found when procedure did not provide adequate assurances that the individual circumstances of each person had been genuinely and individually considered prior to their expulsion). See also Georgia v. Russia (I), App. No. 13255/07 Eur. Ct. H.R. 43 (2014) (“routine expulsions” of thousands of Georgian nationals had not been carried out based on “a reasonable and objective examination of the particular case of each individual” in violation of the ECHR).
[9] N.D. and N.T. v. Spain, App. No. 8675/15 and 8697/15 Eur. Ct. H.R. 96-7 (2020).
[10] Id.
[11] See Pichl, Maximilian; Schmalz, Dana,“Unlawful” may not mean rightless.: The shocking ECtHR Grand Chamber judgment in case N.D. and N.T., VerfBlog. (Feb. 2020), https://verfassungsblog.de/unlawful-may-not-mean-rightless/ (last visited Mar. 2024); see also Sergio Carrera, The Strasbourg court judgement ‘N.D. and N.T. v Spain’: a ‘carte blanche’ to push backs at EU external borders?, EUI Working Paper, https://bit.ly/2PpIwkc (last visited Mar. 2024).
[12] A.A. and Others v. North Macedonia, App. No. 55798/16 Eur. Ct. H.R. (2022) (citing N.D. and N.T. extensively, the Grand Chamber again found no violation despite its acknowledgment of the “shortcomings in the asylum procedure and reported pushbacks” in the area and the fact that in this case there was “no use of force”).
This is a student blog post and in no way represents the views of the Fordham International Law Journal.