On Sunday 1 March 2020, in response to a Turkish announcement that it would no longer take steps to stop people from seeking international protection* in Europe, Prime Minister of Greece Kyriákos Mitsotákis announced on Twitter that:
Our national security council has taken the decision to increase the level of deterrence at our borders to the maximum. As of now we will not be accepting any new asylum applications for 1 month. We are invoking article 78.3 of the TFEU to ensure full European support.
The borders of Greece are the external borders of Europe. We will protect them. I will be visiting the #Evros land border with Turkey along with Charles Michel @eucopresident on Tuesday. Once more, do not attempt to enter Greece illegally – you will be turned back.
Since that time, widespread media reports show border closures on land and violent pushbacks at sea By 3 March, Greece had claimed that it had stopped at least 26,000 attempted border crossings, while Turkey declared on 5 March that over 130,000 people were en route to Greece.
Turkey hosts over 3.6 million registered Syrian refugees along with over 365,000 persons of concern from other nationalities, Further, it has taken measures to prevent individuals from entering Europe in accordance with an arrangement with EU Member States entered into on 16 March 2016, commonly referred to as the EU-Turkey deal.
Key questions that arise from this state of affairs include the following:
Is it permissible, as a matter of international law, for a state to close its land borders in order to prevent people from applying for international protection?
Can states try to stop people from arriving at the border by pushing back boats at sea?
Given the number of people seeking to enter Greece, is this an exceptional scenario that justifies the exceptional measures?
We tackle each question in turn:
- Closure of the land border
The first point to clarify here is that Greece has been a party to the 1951 Convention on the Status of Refugees (the Refugee Convention) since 1960. As an EU Member State, Greece is also bound by EU law, which contains detailed provisions relating to the reception and processing of claims for international protection, including refugee status and subsidiary forms of protection based on human rights norms.
As a State Party to the Refugee Convention, Greece is bound by the principle of non-refoulement, which is established at Article 33 of the Convention. This principle means that states must not expel individuals who are seeking refugee status, and who may therefore face being persecuted if returned to home countries. This principle also applies under EU law, including under Article 78(1) of the Treaty on the Functioning of the European Union and under Article 4 and 19 of the EU Charter
The UN High Commissioner for Refugees, which under the Refugee Convention can provide authoritative interpretations of the meaning of the Convention, has since 1977 affirmed the principle that refusing people entry at the border risks violating the principle of non-refoulement.
UNHCR has called upon Greece and the EU to respect the principle of non-refoulement in the current context of the Greek border closure.
The EU Procedures Directive contains multiple provisions relating to the lodging of applications for international protection at the border, highlighting the importance of access to the asylum procedure as a safeguard against refoulement.
Consequently, a decision by an EU Member State to close its land borders and to refuse to accept applications for asylum clearly risks obligations under international as well as EU law.
2. Pushbacks at sea
Owing to the obligations that apply to states when individuals seek international protection on their territory (including at the border), many states have developed a range of practices designed to prevent individuals from reaching their territory. Such practices include the posting of immigration officers to international airports, the imposition of visa regimes and sanctions on airlines and other carriers who board people who do not have a right under national law to enter the territory.
Intercepting boats at sea and pushing them back to the countries where they originated has been a practice of European states for many years. When a state takes control of a ship and where individuals express a wish to apply for international protection, a failure to process this request has been found to amount to a violation of the non-refoulement prohibition described above – see the Hirsi Jamaa v Italy case in the European Court of Human Rights.
3. The exceptionality of the situation in Greece
The Greek Prime Minister invoked Article 78(3) of the Treaty on the Functioning Union in support of the decision of his national security council to ‘increase the level of deterrence at our borders to the maximum’. The provision reads:
In the event of one or more Member States being confronted by an emergency situation characterised by a sudden inflow of nationals of third countries, the Council, on a proposal from the Commission, may adopt provisional measures for the benefit of the Member State(s) concerned. It shall act after consulting the European Parliament.
It is noteworthy that Article 78(1), as mentioned above, reaffirms the primacy of the non-refoulement obligation, strongly suggesting that Article 78(3) cannot authorize border closures, pushbacks and refusals to receive applications for international protection. Significantly, Article 78(3) was adopted by the Council 22 September 2015 for the benefit of Italy and Greece, which at the time were facing significant increases in the number of people seeking international protection.
Measures such as relocation within the European Union reflect the principle of solidarity, established under Article 80 of the Treaty on the Functioning of the European Union. Indeed, a new measure was agreed between five EU Member States in October 2019 in relation to relocating people arriving in Malta.
The fact that individuals are seeking to enter the European Union via Greece in numbers that are politically unwelcome does not alter the nature of Greece’s obligations under international and EU law.
Although Europe and its Member States may prefer that other states that are closer to countries of origin of people seeking international protection continue to host 80% of the world’s refugees the fundamental right to seek asylum must be respected and protected by Greece and by the European Union.
*The term ‘international protection in Europe’ refers to the framework established under international and EU law establishing obligations towards refugees and other people who risk being exposed to serious harm if returned to their home countries.
This post was written by Matthew Scott