Since the 2015 refugee crisis there has been an increasing ‘securitization’ of EU refugee law that has only been exacerbated by the Russia-Ukraine conflict. In this latest RevDem Rule of Law podcast Oliver Garner discusses this phenomenon with Aleksandra Ancite- Jepifánova. She is a Research Affiliate with the Refugee Law Initiative at the University of London and Visiting Fellow at the Centre of Law and Society at Cardiff University.
You are collaborating at the moment with the recently established CEU Democracy Institute Rule of Law Clinic in producing amicus curiae briefs for the European Court of Human Rights. Could you explain the action, and yours and the Clinic’s contribution?
We have submitted third party interventions in two cases concerning the situation at the EU’s border with Belarus. In total, there are currently about 30 cases pending before the European Court of Human Rights against Lithuania, Latvia, and Poland involving asylum seekers who have attempted to enter these countries from Belarus. The two cases in which we intervened are brought against Latvia and are both very similar. The first case concerns a national of Guinea, and the second case concerns a small group of five Syrian nationals. In both cases, the applicants attempted to enter Latvia from Belarus irregularly aiming to subsequently claim asylum in the EU’s territory. However, in both cases, they ended up being subjected to constant pushbacks exercised by both Latvian and Belarusian authorities, and were effectively forced to remain in the forest for prolonged periods of time in inhuman and life threatening conditions.
In the first case, the applicant was forced to remain in the forest for about six months from September 2021, when he arrived at the border, until March 2022 when he was finally admitted into Latvia and at a later stage allowed to apply for asylum. In the second case, which deals with Syrian nationals, the applicants remained in the forest in December 2022 and in January 2023 during very cold winter months. In their complaint, the applicants rely on Article 3 of the European Convention on Human Rights which prohibits inhuman or degrading treatment and torture.
So what did we do in our interventions? We provide an overview of the situation in Latvia in this particular context, highlighting the most problematic aspects. The interventions are based on evidence which was collected during my research on the EU Belarus border crisis. I would say that if we compare the situation among the three Member States involved – Latvia, Lithuania and Poland – the situation in Latvia in many respects is worse than in the neighbouring countries.
Previously, they were mostly denied or concealed by the relevant Member States; no Member State would be ready to admit that it deliberately carries out pushbacks which are illegal under EU law. However, this has changed with the crisis at the border with Belarus.
It started when the EU decided to impose sanctions on Minsk following which Belarus started actively issuing visas to nationals of Middle Eastern and African countries. In response, Poland, Lithuania, and Latvia, three Member States which border Belarus, took a step that was unprecedented in the EU’s history and openly adopted long term, far reaching, and blanket domestic legislative measures that severely restrict the right to seek asylum and openly authorized pushbacks, which is in direct breach of UN International Refugee and Human Rights Law. The rationale which is put forward by all three governments is the perceived hybrid attack of the the instrumentalization of migrants, which is claimed to have been orchestrated by the Belarusian regime.
So the Latvian authorities declared a state of emergency in all the territories bordering the country’s border with Belarus, which is about 170 kilometres long. There was a Cabinet of Ministers Order, which is executive legislation by which the Latvian authorities deployed at the border were given powers to order anyone who has irregularly crossed the Latvian border from Belarus, or attempted to do so, to immediately return to Belarus without any formal return procedures as foreseen by EU law. The Latvian authorities have also been authorized to use physical force and special means, including electric shock devices, to ensure compliance, irrespective of the individual’s wish to claim asylum. Crucially, up until April 2022, the Order actually expressly provided that applications for asylum in all these territories shall not be accepted, with no exceptions. In other words, Latvia suspended the right to seek asylum and openly legalized pushbacks in their domestic legislation, which is contrary to its obligations under EU and International Human Rights Law. And, of course, it violates the principle of non-refoulement, which is a key principle in international law prohibiting returning someone to a state where they may face persecution and/or inhuman or degrading treatment.
The person should be able to receive an individualized assessment of their asylum claim, which has not been done in the present situation.
In practice the pattern of pushbacks exercised by the Latvian authorities was different from that in Poland and Lithuania. In winter 2021-22 – the time period of one of the cases in which we intervened – the pushbacks in Latvia actually targeted a very small group of largely the same people who had been forced to remain in the forest for up to seven months. I have conducted in-depth interviews with nearly 40 non-EU nationals involved. All of those people who attempted to cross into Latvia from Belarus during that period of time had spent significant periods of time in the forest in inhuman conditions, and their testimonies are extremely detailed and backed up by various types of evidence. They reveal that, at the Latvian side of the border, they were guarded by armed masked men in dark uniforms, who they refer to as commandos, who subjected those apprehended at the border to daily pushbacks, physical violence, and other abuses including using electric shock devices, threatening them, and demanding absolute obedience. The people stranded in the forest were also forced to live in the open air in very low temperatures – during that winter the temperature went down to minus 20 degrees. They suffered from severe malnutrition and the Latvian authorities only gave them, for example, a pack of biscuits and a bottle of water per day. They also experienced burns because they were forced to sleep close to the fire, frost bite, and other skin conditions because they were unable to maintain hygiene – sometimes they were unable to take showers for several months.
After they spent several weeks to several months in the forest, they were transferred to the Daugavpils Detention Center, which is on the Latvian side of the border, on so-called humanitarian grounds. From there they were typically returned to their countries of origin, via the Assisted Voluntary Return procedure without the asylum applications being registered by the Latvian authorities because, during that time,
no one who had crossed the border from Belarus was able to submit an asylum application in Latvia.
Predominantly the country where those people came from was Iraq, and basically, they were returned to Iraq after having spent several weeks to months in the forest and having been unable to claim asylum in the EU as they wished. According to the testimony, Latvian authorities just informed them that there was no possibility to apply for asylum in Latvia, and they would say we will take you back to the forest, or keep you in detention for a very long time if you do not agree to sign a voluntary return declaration.
A landmark case was delivered by the European Court of Justice in summer 2022, which considered very similar legislation that was introduced by Lithuania. The Luxembourg judgment clearly stated that such an approach is incompatible with EU law, and you cannot deprive a non-EU national of an opportunity to apply for asylum only because they have crossed the border irregularly, which was the case in Lithuania and in Latvia, even in the event of a declaration of an emergency. In Lithuania an emergency was declared due to a mass influx of aliens, and that was the formulation used in the Lithuanian legislation.
However, the judgment has been ignored both in Lithuania and Latvia, and Latvia has further cemented the ongoing practice of pushbacks in its domestic legislation. A similar move was previously taken by Lithuania irrespective of that judgment. So, unfortunately, the Court of Justice decision has been completely ignored.
Even foreign based researchers and international organizations who have dared to criticize the Latvian policy towards asylum seekers are stigmatized, and sometimes accused of having connections with the Kremlin or are called useful idiots playing into the hands of Russian propaganda. So, unfortunately, the situation is extremely concerning.
Thank you for this introduction to quite a harrowing story of how EU law is challenged by geopolitics and the very real human costs for people who find themselves at the borders. You have written in your research about how the EU has securitized migration both before and following the Russian Ukraine War, which you touched upon at the end of your answer there. Do you think that restrictive measures against migrants who are perceived to have been ‘instrumentalized’ by hostile states are incompatible with the EU’s values?
The migrant instrumentalization concept is used by EU Member States to justify any type of derogation from the existing legal framework. This has created a situation where, in essence, governments can rely on this concept in order to exclude the so-called ‘racialized other’ from the scope of fundamental rights protection. There is an assumption which underpins the instrumentalization of migration concept that the Belarusian regime artificially creates migration flows to destabilize the EU. So it is assumed that there is a distinction between artificial and natural migration flows, which is extremely problematic.
Also, people crossing from Belarus are described as illegal migrants and economic migrants as opposed to genuine refugees fleeing from Ukraine.
The problem with the concept of instrumentalization of migration is that it is overly simplified – it is a generalized term which does not capture the complexities of the situation on the ground. First and foremost, it completely diverts attention from the main reasons for why people undertake dangerous and irregular journeys to seek protection in Europe: global passport inequality, the EU’s externalization containment policies, and the consequent absence of legal routes to seek protection. For those who hold an Iraqi, Syrian, or Afghani passport, it is extremely difficult if not impossible to obtain a visa for Europe. This is why most people, if they want to flee to seek protection in Europe, need to undertake very dangerous journeys to reach Europe, and this is why any such route would present an opportunity for them to exercise their rights to seek asylum in Europe.
This narrative about artificial migration flows that consist of economic migrants is not supported by any empirical evidence. My research suggests that those who arrive at the EU’s external border are a very heterogeneous group with very different backgrounds. For example, there are Afghans fleeing the Taliban regime in Afghanistan, there are Syrians fleeing compulsory military service in Syria, and there are people from Iran fleeing political persecution. I have also interviewed people from Iraq, including Yazidis who are a religious minority that was persecuted by ISIS, and they have been living in protracted displacement for nearly a decade in the Iraqi region of Kurdistan. All these people were perceived as being instrumentalized and consequently they were deprived of their right to seek international protection in the Member States they tried to enter.
If we look at the actions of the Belarusian regime, we can see that the situation has changed significantly since the onset of the crisis in autumn 2021. Following the pressure of the EU, foreign airline companies or governments, including Belarus, have introduced travel restrictions on nationals from certain Middle Eastern countries, and this happened already in autumn 2021. The Turkish government actually banned Syrian, Yemeni, and Iraqi nationals from flying to Minsk. The Belarusian State Airline announced that it would no longer carry nationals of these countries to Belarus, and hundreds of Iraqi nationals were returned from Minsk to Iraq, while there were so called repatriation flights organized by IOM in autumn 2021.
Now most of those who arrive from Belarus currently hold Russia rather than Belarusian visas, which are issued for a variety of purposes, such as tourism, study, work, private visits, and so on. They are organized by non-state-actors, intermediaries from very diverse backgrounds.
It is extremely dangerous for these people because of what happens to them in Russia; they can be removed to their countries of origin, they cannot apply for asylum, or they can apply for asylum, but it is just a formal procedure and 99% of claims will be rejected. The Russian authorities have recently been trying to recruit people to deploy them in the conflict in Ukraine, which is a very dangerous situation for them.
We have also seen many people who try to cross into the EU and seek international protection in the EU who have previously resided in Russia long term. We cannot say they are being instrumentalized in any way because those people managed to obtain a visa to Russia a couple of years ago, then the visa expired, so they would live irregularly in Russia, and try to find a job. But since the war started the economic conditions in Russia have deteriorated, and the human rights situation has significantly worsened, and people sometimes just try to escape Russia and seek protection in the EU.
So what happens now? We have seen that these practices of pushbacks which have been introduced by Latvia, Lithuania, and Poland have had a spillover effect. Most recently, this discourse has been taken up by Finland, which first amended its domestic legislation accordingly, and then temporarily closed all its land border crossing points with Russia. They reacted to an increasing number of people who tried to enter from Russia and claim international protection in Finland. Again, my research suggests that among those people were Syrian people who had lived in Russia for prolonged periods of time and so there was no way that they have been instrumentalized. There were people who previously attempted to cross from Belarus, and they were prevented from doing so by either Polish or Belarusian authorities, and then the smugglers brought them to the Finnish border with Russia. Again, these are very, very different situations. It is very concerning right now that the Finnish government is contemplating legalizing pushbacks in Finnish domestic law. This is clearly a spillover effect and it is a very dangerous trend.
I think it is very important to hear about how empirical research, such as your own, can provide nuance to the sometimes lazy cliches that can be perpetuated through the media, such as this idea of instrumentalization. For our next question, the Democracy Institute Rule of Law Clinic’s lead researcher, Dimitry Kochenov, alog with Sarah Ganty have recently made some very powerful claims that the EU pursues ‘lawlessness law’ and operates as a ‘death machine’ in the field of migration. Based on your own research do you think that these claims can be justified?
The European Union is based on the rule of law, and it is founded on such values as human rights, equality, and human dignity. These are fundamental rights that should be respected in any case and should be applied to anyone irrespective of their immigration status and country of origin. However, as we have seen, the reality is very different and when it comes to the racialized other the EU’s proclaimed values do not seem to work. The EU Belarus border crisis is currently the most salient example of this process and, as I have mentioned before, it is the first time when the Member States have legalized measures that are openly incompatible with EU and International Human Rights Law. As a consequence, I would say that the EU’s border with Belarus has become an exclusion zone where protection seekers are being exposed to various types of inhuman and degrading treatment. It has definitely led to deaths, disappearances, and amputated limbs, which are an everyday reality right now on that particular border. Actually, such practices have been normalized, and this has led to complete dehumanization of people at the border. This has been done with silent approval at the EU level. So when someone dies at the border, or if someone has their limbs amputated, this is the direct responsibility of EU Member States who carry out pushbacks and this is why people are stranded in the forest for prolonged periods of time in inhuman conditions. However, the EU is trying to shift responsibility on to some third countries, although these countries are well known for their violations of human rights like Belarus, or Russia, for example. Clearly, it is a very problematic situation when the EU, as a union of values, carries the main responsibility for what is happening at the border on the individual level.
We have also seen what is happening in the context of the EU Belarus border crisis.
There has been no investigation of what is happening at the border, although there has been plenty of evidence of really serious human rights violations. The Commission has also embraced the migrant instrumentalization narrative. This migrant instrumentalization concept has finally found its way into EU law with the new pact on migration asylum. It has been approved by the European Parliament and now will be a legal concept in EU law, which is extremely problematic because, as I have mentioned previously, it ignores the realities on the ground, it is extremely broad, it is extremely vague, and it lacks legal certainty.
The EU pact on migration asylum, of course, does not foresee any pushbacks; it only foresees border procedures and accelerated examination of asylum claims, which again is very problematic and gives cause to serious concern, but does not go as far as the domestic legislation the Member States have already introduced. The Member State responses to the crisis have been highly disproportionate, not only from a legal but also from a public policy perspective because the number of people who attempt to enter the EU from Belarus is generally extremely low. It is nowhere near the number of arrivals via the Mediterranean today, let alone the figures we saw in 2015 and 2016 when the EU received over 2.5 million asylum applications, or the millions of Ukrainian nationals who have been actually welcomed by the EU since the start of the Russian aggression. For example, in 2021 at the very peak of the crisis, the Polish border guards recorded fewer than 40,000 attempts at illegal border crossings as they formulate it, which means pushbacks from Belarus, and the numbers dropped sharply in 2022 and 2023. These numbers do not even represent the number of people who attempted to cross the border; they represent the number of pushbacks as many people try to enter multiple times. Sometimes, as we have seen in the Latvian case, there is just one person spending seven months in the forest who is subjected to daily pushbacks, so they push them back and forth every day and you can count the number of pushbacks to which one person was subjected. So these numbers have been extremely exaggerated and are not the actual numbers of people. For example, my analysis suggests that the actual number of people who tried to cross the Latvian border during the winter of 2021-2022 was 250. This is an extremely low number, and they kept these people in the forest for that long. Of course, the authorities claim that there were over 6000 border crossing attempts during that period, but if we count the number of pushbacks experienced by one person, we can see that the number behind the government statistics is completely different.
I would say that such low numbers of asylum seekers cannot really represent a threat to a state’s national security. If there were any individual risk, then it could be addressed by existing legal means with dignity and respect without resorting to blanket measures, such as denying individuals the right to seek asylum and subjecting them to inhuman and degrading treatment in the forest. More generally, if we are talking about the EU’s policy regarding asylum and migration, it is well known that the EU pursues a broad externalization strategy aiming to prevent migrants from reaching Europe by various means, like concluding deals with third countries with records of serious human rights abuses such as Turkey and Libya. We know that everyone intercepted by the Libyan Coast Guards, who are supported by the EU financially and by various means, would end up in a Libyan detention center. These detention centers are well known for exploitation, torture, forced labor, sexual abuses and so on. This has been widely documented, but unfortunately, this is the current situation.
Beyond the EU, and close to home for myself, the United Kingdom has been enveloped in political and constitutional controversy recently over its plan to deport irregular entrants to Rwanda. What is your opinion on the threat of such measures to the UN Refugee Convention and the principle of non-refoulement?
The Rwanda deal is, of course, very problematic. It is the worst of policies. In a nutshell, if someone were to arrive in the UK irregularly and claim asylum, then they would be removed to Rwanda and their claim would be processed there, and if it is successful, then they would be able to settle in Rwanda, not in the UK. Last autumn, the UK Supreme Court actually found this policy unlawful. It claimed that Rwanda is not a safe country where asylum seekers could be relocated because they would then be at risk of refoulement which is contrary to international human rights law. However, the UK government has now announced a new plan and there is a new deal which is seeking to address the concerns expressed by the court and accommodate and mitigate them. It contains some guarantees and protections for asylum seekers that were not in the original plan, and the new treaty provides that the individuals who would be relocated to Rwanda would not be removed to any other country except the UK. Basically that means, for example, that asylum seekers who commit crimes in Rwanda could be deported to the UK. It could also mean that those whose claims are rejected by Rwanda, and who are not considered refugees by Rwanda, also might be returned to the UK. I am not quite sure how this will be implemented in practice because there are a lot of legal problems and practical issues with the implementation of this plan. For example, it also contradicts the UK Illegal Migration Act because, according to the act, it is not permissible for a person who is removed from the UK to a safe third country to return. So it is not clear how that would be compatible with this legislation if people could be returned to the UK. It is not known what would happen to those individuals who would be returned to the UK, and whether their asylum claims will be processed under UK law, or whether they would be removed to a country which would be ready to accept them. There are so many unknowns in that particular plan.
However, my principal concern relates to the notion that Rwanda is a safe country for asylum seekers. The Supreme Court was very explicit and had very well founded arguments for why Rwanda cannot be considered a safe third country. There are systemic deficits in processing asylum claims, for example, the Supreme Court actually highlighted that citizens of certain countries, like Afghanistan and Syria, have an almost 100% rejection rate in Rwanda. However, we know that people coming from these countries and claiming asylum have most of their claims being approved by the UK. Rwanda has a lot of internal problems – political rights are restricted, it remains among the poorest and least developed countries in the world, and there is huge inequality. So, there are a lot of internal constraints, and I would be really cautious to call Rwanda a safe third country. Rwanda’s authorities have admitted that they cannot guarantee how many asylum seekers they would be able to take from the UK, so the future of the deal is equally unclear.
Unfortunately, this has had a spillover effect, and we have seen that EU Member States have come up with plans to follow in the UK’s footsteps and have signed similar deals with third countries. The first one was a deal between Italy and Albania, which was concluded in November 2023. Now it was just very recent news that a couple of EU Member States are planning to sign agreements with third countries and send their migrants who are intercepted at sea. This has quite huge support in the EU, which raises concerns as to the compatibility of such deals with international human rights law
For a final question, I thought that I would focus on your argument in which you have also criticized the EU’s and certain Member States’ response towards Russian citizens as part of this process of securitization of migration, and you have compared this hostile response to Russian citizens to the response towards ‘hostile aliens’ during the World Wars. Do you think this is also evidence of a geopolitical rather than value based approach to migration in the EU?
Yes, in my opinion, most definitely. After the Russian invasion of Ukraine those people who have Russian passports became targets of legislative changes which were specifically designed to limit entry and residence rights of this particular group. Evidence- and individual-based approaches toward this category have been substituted for what I call the ‘enemy alien’ logic that was there during and in the aftermath of the First World War Unfortunately, Russian citizens are collectively portrayed as a security threat, and they are assigned collective responsibility for Putin’s actions and so on. The most visible step in this regard was the suspension of the EU Russia Visa Facilitation Agreement in September 2022. Following this, Russian citizens face obstacles in entering the EU and applying for protection. This is not a complete Schengen visa ban as was originally planned, which would target so-called Russian tourists. However, Russian citizens now face longer visa processing times, extra checks, and many other restrictions when applying for a visa.
Poland, the Baltic States and Finland, have gone much further and have unilaterally introduced a nearly absolute entry ban on Russian citizens, including those who hold short term Schengen visas issued by other Member States. This is a violation of the Schengen visa code because it does not allow for blanket bans on certain groups based on their nationality alone. However, this has been in place for almost two years and the situation has not changed. Such measures have had profound implications for the persons involved, and they have targeted a much larger group of people than those labelled as tourists who travel to the EU for leisure and shopping as if no war were waging in Ukraine.
The first group which is particularly disadvantaged are those who flee the oppressive regime, and all the more so because, since February 2022, the human rights situation in Russia has significantly deteriorated. The Russian authorities have introduced a wide range of restrictions and legislative measures to curtail freedom of association, such as peaceful assembly. Also there is a systematic crackdown of NGOs and independent media. This has led to mass arrests, detentions, and harassment of human rights defenders, anti-war activists, journalists, minorities and so on.
For example, there are very limited opportunities for them to obtain a humanitarian visa, and this opportunity is confined to exceptional cases where people have made public appearances, for example, journalists, who have openly criticized the government. This is clearly not the case for the majority of people fleeing the regime. For example, since February 2022 Germany has issued as few as 3000 humanitarian visas to Russian citizens, and the numbers for other EU Member States are even lower than that.
One category that is particularly affected by the restrictions are the Russian citizens who flee the military draft. Their options to claim protection in the EU are now very limited. The second group that is affected by the restrictive measures, perhaps unexpectedly, are Russian citizens who are family members of EU citizens and residents. The Baltic States, Poland, and several other EU Member States have officially stopped issuing Schengen visas to Russian citizens subject to very limited exceptions which include family members of citizens or residents of a particular Member State. For example, in Latvia, this exception is confined to spouses, children, parents, grandparents, and grandchildren of Latvian passport holders. So when it comes to unregistered partners, siblings, cousins, uncles, nieces, nephews, and other extended relatives, let alone friends, they do not fall within this category and consequently, they are stopped from visiting their family members in the Baltics. It does not matter how significant their relationship is. We are talking only about family members; we are not talking about people who have very close ties with the EU, like business ties, or those who have studied in the EU previously, or those who have other types of connections with the EU and who are now unable simply to come and visit, although the majority of those people are clearly opposed to the Putin regime and clearly many of them do regard this EU policy as a betrayal of values they share. There is a feeling of resentment among the Russian citizens who clearly oppose the Putin regime and would be happy to maintain ties with the EU and maintain connections. In my view, this policy is extremely harmful and does not contribute in any way to the improvement of the situation in terms of Ukraine.
This transcript has been edited for length and clarity. In collaboration with Karen Culver.
