By Dr Vicky Kapogianni, Lecturer in Law, Kent Law School, University of Kent

Introduction

The normalisation of illegal, abusive, and violent border governance fencing strategies has turned into an ever-increasing trend generating space for States to circumventing safeguards regulating the international protection, detention, expulsion, and the use of force framework. Refugees are the by-product of the migrants and borders interaction and thus there is a contingent relationship which fuels an increasing interdependence. If borders were drawn up with the proliferation of refugee movements, so is the protection of these borders.[1] States’ obligations towards asylum seekers are triggered upon reaching the borders of a State and claim asylum.[2] Besides the Weberian monopoly on violence,[3] a State has the duty to protect human rights. Nonetheless, recent developments in the migration and border governance field evidence the States’ given primacy in erecting an expansive range of institutional and legal barriers designed to push asylum seekers away from their borders.

The proliferation of political technologies and heterogeneous tactics adopted by State actors and on occasions collaboratively with non-State actors to deter irregular migrants arriving at international borders has nurtured an intemperate and dehumanising border regime praxis. The full spectrum of violations stemming from the adopted policies by European Union (EU) Member States to illegally oust unwanted, racialised-and portrayed as a risk- asylum seekers are commonly masked by quasi-invisible State-led attempts aiming to dismiss or conceal allegations of lawlessness. The article’s focus is on contemporary responses to the migration and border governance field which derail from the conventional human rights-based approach and centre to a normative tug-of-war in which the pulling force heavily tilts towards manifold governmental tactics of deterrence, including pushbacks, detention and surveillance technologies resulting in increasing migrants’ vulnerability and depriving them of their human rights.

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

Under international law, States have a right to control and regulate their borders. Nonetheless, in recent years, States put militarised borders, extraterritorial border control and deterrence measures before the safeguard of fundamental rights. However, the growing scale of pushbacks and border violence within the Council of Europe area is not the only concern. Member States’ responses on their doubtful tactics are covered up by what they consider as legitimate justifications. For instance, some may refer to the existence of readmission agreements or ‘tailor-made partnerships’ to externalise the cost and responsibility of managing its external borders to third countries or to supranational rules on border control –such as under Schengen– which they are simply implementing. Others tend to invoke ‘unprecedented’ or ‘emergency’ situations such as the massive influx of migrants arriving at the EU borders, the Covid-19 pandemic or more recently, the instrumentalisation of vulnerable migrants and refugees.

To whitewash these dehumanising border governance tactics, several States have prompted legislative initiatives to normalise pushbacks via the introduction of legislation and government executive orders, despite these having an adverse impact on key human rights protections. Cardinal principles enshrined in international law, including the case law of the European Court of Human Rights (ECtHR) have often been disregarded (D v. Bulgaria) or deliberately misinterpreted (N.D. and N.T v. Spain) to evade accountability in a formalistic manner.

Recent developments at national and regional institutions and courts on legal responsibility for pushback practices appear to be promising. In Slovenia, the Supreme Court, on the matter of chain refoulement, condemned the pushback of a Cameroonian national when the Slovene police unlawfully handed the plaintiff to the Croatian police after conducting a fleeting formalised standard procedure; he ended up in Bosnian refugee camps without an opportunity to defend himself against the return. The Supreme Court ordered the Government of Slovenia to take necessary steps and allow the asylum seeker to re-enter the country and apply for asylum. Pushback practices have a domino effect affecting other rights such as the right to liberty (Article 5 ECHR), in particular, when persons are informally detained in vehicles or facilities prior to their removal.

Generalised Detention & Inhuman Treatment:  Default Tactics to Coerce Returns

Under international human rights law (Art.9 of the International Covenant on Civil and Political Rights) no one shall be subjected to arbitrary arrest or deprivation of liberty including automatic, mandatory or indefinite detention, as well as detention in conditions falling below minimum international standards. Deprivation of liberty is considered arbitrary where asylum seekers, immigrants or refugees are subjected to prolonged administrative custody without any access to justice or remedy. In recent years, there has been an increase in the detention of rejected asylum seekers or of those who have been intercepted and returned to the authorities. In this context, several countries have adopted a two-pronged default tactic; either they consider, almost half of all, asylum applications inadmissible based on the safe third-country concept or they immediately proceed to administrative detention as a default practice. For instance, in 2021, Greece issued two ministerial decisions in one of which (JMD 42799/2021) Turkey has been unilaterally designated as a ‘safe third country’ particularly for nationals with high recognition rates for international protection such as Syria, Afghanistan and Somalia. The ad hoc decision, however, has posed several issues. First, although Turkey’s generosity sheltering more refugees than any other country is indubitable, it should be acknowledged that it doesn’t meet the criteria for a safe third country considering the scale of deportations of Syrian refugees to Northern Syria. Second, since 2020, Turkey has refused to accept asylum seeker returns from Greece resulting in thousands of rejected asylum seekers being stuck in legal limbo enduring destitution, homelessness, and even protracted detention in Greece. Administrative detention has become common practice in Greece expanding its grounds to include verification of identity.

Human rights abuses and inhumane detention conditions are also deployed to coerce detainees into opting for voluntary returns applying ill-treatment practices such as limitations on access to water and hygiene facilities. Unavailable interpretation services have further raised significant concerns with detainees being unable to communicate their requests and needs. Detained foreign nationals have been brought to sign documents of detention and deportation orders in languages they could not understand (Greek, Turkish), without knowing their content or being provided with a qualified interpreter. Coercion and deceit into signing voluntary return forms are therefore additional tactics used by States to force returns thus eluding accountability and accusations of violating the principles of non-refoulement.

The Digitalised Border Control Regime: Smart Borders or High-Tech Pushbacks?

To complement the triptych of soaring fencing border regimes, the article concludes with the ramifications of the surveillance technologies on migratory movements. Over the past decade, the EU and its member States have invested on advanced technologies and deterrent systems aiming to detect and keep at bay those seeking to legally apply for asylum. Facial recognition, ground sensors, aerial video surveillance, drones and even experimental technology are increasingly employed to monitor and secure border spaces. Border officers, for instance, use drones and helicopters in the Balkans, while Greece on its borders with Turkey utilises airships. Similarly, Spain, being on the frontiers of large numbers of migrant arrivals, has been investing on the ‘migration control industry’ with technology and construction firms to bolster borders protection and surveillance.

Smart borders or high-tech securitisation of borders, nonetheless, have not deterred people from crossing as movement continues through different and more dangerous routes. Nor have they ensured the requisite legal human rights protections of those subject to tech-surveillance. Contrariwise, surveillance technologies have been weaponised against asylum seekers, making them easier to detect and thus exacerbate their vulnerability along with the dangers they encounter. The rapid technological advances come in stark contrast with the comparatively slow legislative process and regulatory rulemaking. Therefore, a balance must be maintained to avoid the proliferation of human rights abuses and migrants’ deaths.[4] The new Frontex employs drones as key tools in its border management activities reinforcing its functional aspects through the multipurpose European Borders Surveillance System (EUROSUR) platform. Nevertheless, Frontex has been repeatedly accused of being complicit in pushback operations and not complying with its responsibilities under international law, namely, safeguarding the protection of fundamental rights.

To sum up, the impact of technology-driven surveillance remains under question, particularly in terms of its effectiveness and the ostensibly increased security which is intended to proffer. The digitalised supremacy of border control could be instrumental for security purposes and challenges but also detrimental for the protection of fundamental human rights for all those attempting to reach the borders.

[1] Randall Hansen, State Controls: Borders, Refugees, and Citizenship, The Oxford Handbook of Refugee and Forced Migration Studies, 2014, 257

[2] G Loescher, and J Milner (2011) ‘UNHCR and the Global Governance of Refugees’ in A Betts (ed) Global Governance Migration (Oxford University Press) 189-209

[3]The monopoly of the use of force is of significant importance for democratic States based upon the rule of law as it guarantees that democratically legitimate decisions can be enforced.

[4] Samuel Norton Chambers et al., ‘Mortality, Surveillance, and the Tertiary ‘Funnel Effect’ on the U.S.-Mexico Border: A Geographical Modelling of the Geography of Deterrence’, Journal of Borderlands Studies (2019)