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GLAN-ICHR Submission on European Pushbacks submitted to UN Special Rapporteur on Rights of Migrants

The Global Legal Action Network (GLAN) and the Irish Centre for Human Rights (ICHR) today presented a submission to the Special Rapporteur on the Human Rights of Migrants in support of his forthcoming report on pushback practices and their impact on the human rights of migrants.

Global Legal Action Network 

The report, which Special Rapporteur Felipe González Morales will present to the 47th session of the Human Rights Council, seeks to address current patterns of summary expulsions (pushbacks) on land and at sea and to offer recommendations to better ensure migrants’ access to international protection and human rights at international borders.

Noting the lack of a universal definition, the Special Rapporteur describes pushbacks as the “various measures taken by States which result in migrants, including asylum seekers, being summarily forced back to the country from where they attempted to cross or have crossed an international border without access to international protection or asylum procedures or denied of any individual assessment on their protection needs which may lead to a violation of the principle of non-refoulement.”

In a joint submission, GLAN and ICHR compiled a set of key points for the Special Rapporteur’s consideration, based on the organisations’ recent legal work and analyses of European pushbacks. The submission identifies the following topics as the foremost issues regarding pushbacks in the European context.

• Migration and financial cooperation to implement illegal pushbacks. In the exercise of EU and non-EU partnerships and cooperation frameworks for ‘combatting illegal immigration’, such as the Memoranda of Understanding between Italy and Libya and Malta and Libya, illegally-disbursed development funds from the EU are used for quasi-military purposes and mismanaged with serious consequences to human rights protection. The EU’s financial complicity in illegal pushbacks has been challenged by GLAN and others.

• Pushbacks by proxy. The EU and Italian funding of the Libyan Coast Guard (LYCG) is so extensive that the LYCG would not be able to exist or function without such support. As communicated in the case of S.S. and Ors v. Italy, currently pending before the ECtHR, Italy exercises effective control over the LYCG and its jurisdiction is thus implicated in the LYCG’s ‘pullbacks’ of migrants at sea.

• Constructive refoulement: Prosecution and criminalisation of SAR NGOs to diminish their capacity to conduct rescue at sea. A causal link exists between the shrinking space for solidarity with migrants and conditions that are conducive to constructed refoulement. As a result of the criminalisation of Search and Rescue NGOs, migrants are rendered ‘rightless’, exposed to preventable death and refoulement.

• The weaponisation of life-saving equipment for pushbacks. In a pattern of pushbacks widely documented across the Aegean since March 2020, asylum seekers attempting to apply for protection in Greece are taken on Hellenic Coast Guard vessels and forced onto inflatable, non-navigable life-rafts, left to drift at sea. This practice amounts to torture under international law.

• Collective expulsions as systemic discrimination. Asylum-seekers, as well as refugees already holding EU protection, are regularly stopped and arrested by Greek police in public spaces in Greece’s northeastern border region, then detained and collectively forced across the Evros River to Turkey by masked officers in rubber boats. The use of racial profiling to target individuals for these pushbacks exemplifies Greece’s structural discrimination towards migrants, an aggravated systemic violation of the peremptory international prohibition on racial discrimination.

• Pushbacks as enforced disappearances of migrants. For decades, Greece has systematically conducted these pushbacks across the Evros border, where migrants are deprived of liberty, detained incommunicado and clandestinely expelled from Greece. The individual complaint of FAJ v Greece, submitted to the UN Human Rights Committee last November, broke new grounds by arguing that pushbacks can constitute enforced disappearances under international law.

• Private refoulement: The use of private merchant vessels to perform interdictions. Merchant ships have been strategically mobilised by States for the interdiction and refoulement of migrants at sea, violating customary rules of public international law and the law of the sea. One example of this pattern is the Nivin incident, presented to the Human Rights Committee in SDG v Italy, whereby Italian authorities directed a Panamanian merchant vessel to intercept and return a boat of 93 migrants to Libya in cooperation with the LYCG.

• Aerial refoulement: The use of aerial assets, including drones, to assist and direct interdictions by non-EU actors. The Nivin incident, in which a Spanish surveillance aircraft operating within the Italian-coordinated EUNAVFOR MED first sighted the migrants’ boat, also highlights a systematic pattern of EU aerial surveillance methods being deployed to support pushbacks to Libya. The use of aerial assets as a front line of early detection to enable LYCG interceptions has been recorded since at least 2017, and continues to facilitate unlawful refoulement, impedes access to asylum, and exposes migrants to abuse by the LYCG.

In compiling this inventory of key points from our work for the Special Rapporteur’s review, the submission seeks to assist his efforts of presenting a comprehensive report about pushback practices, the myriad human rights violations pushbacks involve, and the institutionalized denial of protection for migrants at international borders. The joint ICHR-GLAN submission can be found in full here and will be published on the Special Rapporteur’s website at a later date.