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MEIG Highlights, Latest News 2 novembre 2021

Highlight 26/2021 – Can we legalize extrajudicial push-back of asylum-seekers? The example of Poland

Béatrice Jotterand, 2 novembre 2021

On October 14th 2021, the Polish parliament adopted a law authorizing polish authorities to « push-back » asylum seekers immediately after they cross the Belarus-Poland border. In addition, polish authorities were given the power to force back refugees without considering their individual circumstances and by refusing them any possibility to apply for asylum. Polish parliament took this decision in a tense context. The number of migrants crossing the border from Belarus has been increasing since August 2021 and the Polish authorities have been accusing Belarus and Russia of encouraging migration to Europe. The European Union has also accused Minsk of supporting migrants from regions in crisis, including Iraq, Syria, and Afghanistan, in their attempt to reach Europe. According to the European Union, the behaviour of Belarus could be explained by the desire of Alexander Lukashenko’s regime to create instability on Europe’s doorstep in response to the sanctions taken against the Belarusian regime. These sanctions were implemented by the European Union as a response to the serious human rights violations committed against civilians by the Belarusian government.

As a result of this situation, hundreds of asylum seekers attempt to cross the Polish border every day. However, they face a wall of a razor-wire fence along the Belarus border as well as Polish soldiers or police officers. Those who succeed in passing the frontier are under arrest and they risk being forcibly deported. Once again, asylum seekers have to survive in precarious conditions as they are stuck in the cold on the Polish-Belarus border and risk death from hypothermia.

This practice of turning back individuals at the border is a delicate subject regarding human rights. Push-backs violate – among other laws – the prohibition of collective expulsions stipulated in the European Convention on Human Rights. Indeed, the European Court of Human Rights issued a judgment in June 2021 (ECHR, 8 July 2021, D.A. and others v. Poland, n° 51246/17) on push-backs of Syrian asylum seekers at the Polish-Belarusian border. It indicated, inter alia, the existence of a violation of the Article 3 of the Convention since denying the right to apply for asylum exposed the applicants to a « risk of inhuman and degrading treatment and torture in Syria« . Furthermore, it underlined the violation of Article 4 of the Protocol n°4 to the Convention that stipulates that « Collective expulsion of aliens is prohibited« . From the point of view of international and European law, the Polish legalization of “push-backs” violates the common European asylum policy which aims to offer an appropriate status to any third-country national in need of international protection. In addition, it may go against the European Union’s commitment to respect international law and, in particular, the principle of non-refoulment.

From a human perspective, it seems completely intolerable not to come to the aid of individuals seeking protection, fleeing the atrocities of war. Poland and, more broadly, the European Union is engaged in a diplomatic dispute with Belarus in which innocent people are the crux of the matter. Asylum seekers have become « means in hybrid warfare ». Belarus apparently « instrumentalizes » refugees by supporting them in their journey to Europe. The country has opened its borders unilaterally to the European Union but has simultaneously prevented refugees sent back from Europe from returning to its territory. The sum of political decisions on the part of Poland and Belarus has led to the current dramatic situation on their shared border. Asylum seekers are caught in the crossfire.

Thus, legitimizing push-backs is not appropriate because such strategic interests should not take precedence over humanitarian considerations. After all, it opens the door to potentially more severe practices that run counter to the reception of asylum seekers.

Nevertheless, there is a point to be taken into consideration. It is imperative to note that neither Member States nor even the European Union encourages massive and predominantly unregulated immigration. Here is another challenge facing the European Union: what is the right balance between the imperative of protecting individuals in danger and the need of safeguarding crucial national (social, political and economic) interests?

Béatrice Jotterand, Can we legalize extrajudicial push-back of asylum-seekers? The example of Poland, Highlight 26/2021, available at www.meig.ch

The views expressed in the MEIG Highlights are personal to the author and neither reflect the positions of the MEIG Programme nor those of the University of Geneva.

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