Introduction

The widespread adoption of abusive, illegal, and violent border fencing strategies has become an ever-increasing tendency to create an opportunity for States to evade safeguards that govern international protection and detention, expulsion, and use of force. Refugees are a byproduct of migrants and border interactions, and as such, a mutable relationship has led to increased interdependence. If borders were erected due to the rise in refugees, so is safeguarding these boundaries. [1] States’ obligations to asylum seekers begin when they cross a state’s border and claim the right to asylum. [2] In addition to the Weberian dominance over violent acts, [3] states are responsible for protecting human rights. However, the latest developments in the immigration and border governance sector demonstrate that the States have been given a monopoly in constructing a wide range of legal and institutional barriers to prevent asylum seekers from crossing their borders.

The increase in the use of technology for political purposes and a variety of tactics used by State actors, and at times, in conjunction with non-state actors to stop irregular migrants from crossing international borders, has facilitated an overt and dehumanizing practice of border control. The range of human rights violations arising from the adopted policies of the European Union (E.U.) Member States to unlawfully eliminate migrants who are deemed undesirable, racist, and asylum seekers as a risk are usually concealed by invisible State-led strategies aiming to ignore or cover up allegations of lawlessness. This article focuses on current responses to the immigration and border governance area that depart from the standard human rights-based model and are akin to a more conventional tug-of-war where various governmental deterrence strategies heavily influence the pull force. These include detention, pushback, and surveillance technologies that increase the vulnerability of migrants and deprive refugees of their rights as humans.

Pushback Practices’ Spillover: Human Rights a Cog in the Wheel

By international law, States are entitled to manage and control their borders. In recent years, however, States put militarised border controls, extraterritorial border controls, and deterrence measures ahead of protecting their fundamental rights. The growing number of border violence and pushbacks inside borders within the Council of Europe area isn’t the only problem. State responses to their shaky strategies are veiled by what they see as legitimate reasons. Some, for instance, mention an existing readmission agreement or “tailor-made partnerships” to transfer the burden and responsibility of managing its borders to third-party nations and supranational regulations regarding border control, such as those in Schengen that they implement. Some may refer to “unprecedented” or “emergency” situations, like the massive number of migrants that have arrived at E.U. borders and the Covid-19 epidemic, or, more recently, the use of the E.U.’s borders to facilitate the treatment of vulnerable refugees and migrants.

To disguise these dehumanizing practices of border governance, several States have initiated legislative initiatives to allow pushbacks to be normalized through the introduction of laws and executive orders from the government; however, they are having negative consequences for critical safeguards for human rights. Principles of human rights enshrined in international law, such as the case law of the European Court of Human Rights (ECtHR), are often ignored (D v. Bulgaria) or deliberately wrongly interpreted (N.D. as well as N.T. v. Spain) to evade accountability formally.

Recent developments at regional and national institutions and courts concerning the legal liability for pushbacks are promising. In Slovenia it was the Supreme Court, on the issue of chain refoulement rejected the pushback of a Cameroonian citizen after the Slovene police allegedly handed the defendant over to Croatian police following an unintentional standard procedure that was formalized; he was subsequently placed within Bosnian refugee camps without the opportunity to argue his case in opposition to the transfer. The Supreme Court ordered the Government of Slovenia to take the appropriate steps to allow asylum seekers to return to the country to apply for asylum. These practices can have an effect that can affect other rights like rights to freedom (Article 5 of the ECHR) and, more specifically, in cases where people are informally held in facilities or vehicles before being removed.

Generalized Detention & Inhuman Treatment: Default Tactics to Coerce Returns

By international human rights law (Art.9 of the International Covenant on Civil and Political Rights), nobody should be subjected to arbitrary detention or arrest, such as mandatory, automatic, or indefinite detention, and detained in conditions that violate minimum international standards. The deprivation of liberty is deemed arbitrary when asylum applicants, refugees, or immigrants are subjected to lengthy administrative detention without recourse to justice or remedies. In the past few times, there has been a rise in detention time for asylum seekers or those seized and handed over to authorities. In this regard, several countries have adopted a dual-pronged default strategy: either consider more than half of asylum applications inadmissible due to the concept of a safe third country or immediately move towards administrative detention in the standard method. In 2021, for instance, Greece issued two ministerial decisions, one of which ( JMD 42799/2021) Turkey has been unilaterally classified as a “safe third country’, specifically for those with significant recognition rates for international protection, such as Syria, Afghanistan, and Somalia. This ad-hoc designation, however, has brought up many questions. While Turkey’s generosity in sheltering refugees more than any other nation is undeniable, it must be recognized that it does not meet the requirements for a particular third country due to the sheer number of deportations from Syrian refugees in Northern Syria. In addition, since the year 2020, Turkey has refused to admit asylum seekers returning from Greece, leading to thousands of asylum seekers being rejected and stuck in legal limbo suffering from poverty, homelessness, and even indefinite prison sentences in Greece. Administration detention is now standard practice in Greece and has expanded its purpose to include identification verification.