Deflecting reality by viewing migration through the lens of ‘emergency’
Doctoranda de la Universidad de Gießen
National ‘emergency’ legislations and the European Court of Human Rights in cases of pushbacks at the European external borders
Courts at European or national levels are certainly not the only actors shaping developments in the migration and border policies of European states. However, they play a crucial role in defining the legal boundaries within which states operate, particularly when human rights violations at Europe’s external borders are at stake. Judgments by the European Court of Human Rights (ECtHR) can, in theory, set limits on restrictive migration policies and influence future European practices. This is particularly true for decisions of the Grand Chamber of the ECtHR, whose decisions often promise a shaping of the application and practice of the law of the European Convention on Human Rights (ECHR). The Grand Chamber is currently deliberating on three potentially landmark cases concerning pushbacks at the Eastern European external border with Belarus.
On February 12, 2025, the Grand Chamber heard arguments in the cases R.A. and Others v. Poland (see hearing), H.M.M. and Others v. Latvia (see hearing), and C.O.C.G. and Others v. Lithuania (see hearing). These cases are among more than 30 currently pending before the Court, all relating to events that took place between summer 2021 and summer 2023 in the area of Europe’s external borders with Belarus.
They highlight the intersection of legal, political and security concerns around migration on Europe’s eastern borders, where structural violence against non-European bodies manifests as physical border violence (see the report of UN Special Rapporteur on the human rights of migrants on his visit to Poland in 2022).
They also exemplify how the respective narrative of a conflict and the adoption and understanding of legal frameworks are closely intertwined. The use of ‘emergency’ approaches by Poland, Latvia and Lithuania, among others, in attempting to extend exceptions to human rights obligations already established by the ECtHR (see N.D. and N.T. v. Spain and A.A. and Others v. North Macedonia) to cases of so-called ‘instrumentalized migrants’ is a deflection from the actual security issues for Europe raised by Russia, with very problematic consequences for the lives and rights of asylum seekers in the first place and also for the rule of law through the normalization and systematic integration of the lawless practice of pushbacks into exceptional law. The ‘state of emergency’ narrative used by Poland and others is designed to legitimize pushbacks and create further holes in the ECHR.
Pushbacks as systematic violations of the ECHR
Pushbacks, as in R.A., H.M. and C.O.C.G., are measures taken by state authorities to forcibly and summarily return migrants across a border without allowing them to claim asylum or to have their claims properly assessed. In the legal regime of the Council of Europe, forced returns are closely linked to, inter alia, violations of the prohibition of collective expulsion Art. 4 of Protocol 4 to the ECHR (A4P4) and of the principle of non-refoulement Art. 3 of the ECHR. But also in Art. 4 of the Schengen Borders Code and Art. 9 of the Asylum Procedures Directive, the prohibition of refoulement is laid down in the concretization of Art. 33 of the 1951 Refugee Convention, as confirmed by the ECtHR in paras. 180 f. of M.K. and Others v. Poland. In this decision and in D.A. and Others v. Poland, Poland was also found to be in breach of Art. 3 and A4P4 by failing to process applications for international protection lodged at the EU-Belarus border.
Despite their unlawfulness, pushbacks are a systematic practice and a commonly used tool of border management by European states. A recent report by nine NGOs documented around 20,000 recorded pushbacks at the Latvian, Lithuanian and Polish borders with Belarus in 2024 alone. In Europe as a whole, 120,000 pushbacks. These figures most likely underestimate the true scale. The NGO coalition 11.11.11 in its 2023 report found a number of 343,000 pushbacks throughout Europe.
The systematic dimension of pushbacks throughout Europe is a circumstance which the ECtHR has acknowledged regarding the Greek practice of pushbacks in the recently decided case of A.R.E. v. Greece. The deliberate and systematic Polish practice of refusing entry to foreigners coming from Belarus and of holding only very brief interviews was also confirmed by the Court in 2020 in para. 208 of M.K. and Others v. Poland.
Facts of the cases of R.A., H.M. and C.O.C.G.
The case of R.A. and Others v. Poland concerns 32 Afghan nationals stranded in a makeshift camp between Belarusian and Polish authorities for about 10 weeks (August 8 – October 23, 2021). Despite seeking asylum from Polish border authorities, they were ultimately returned to Afghanistan, the country they had fled from the Taliban.
In H.M.M. and Others v. Latvia, 26 Iraqi Kurds claim they were repeatedly pushed back by Latvian authorities between August 11 and 15, 2021, while trying to cross the territorial border zone from Belarus by foot. An alleged claim for asylum was not reviewed by Latvian authorities. The applicants, including five children, were eventually allowed to enter Latvia, detained in a foreigners’ accommodation center, and later returned to Iraq between November 2021 and March 2022.
The case of C.O.C.G. and Others v. Lithuania involves four Cuban nationals who allege being pushed back to Belarus multiple times by Lithuanian authorities in March and April 2022. Unlike the previous cases, they were eventually apprehended, allowed to apply for asylum, and after months in a foreigners’ registration center, granted asylum with permanent residence permits.
As reported by several humanitarian organizations (see here, here, here and here), the terrain at the Polish border is particularly difficult, covered by dense forests and swamps. People attempting to cross this border are repeatedly turned back and spend long periods in the sistiema, the stretch of land between the two border fences, which refugees refer to as the ‘death zone’ or muharrama. Those trapped in the sistiema and along the border are exposed to extreme temperatures, with inadequate access to food, clean water, shelter and medical care, exacerbating existing physical and mental health problems.
Shifting responsibility to asylum-seekers in cases of collective expulsion as a gateway to exceptions
Among other legal issues, a key question at these hearings was whether there was ‘effective access to legal means of entry’ (see para. 201 of N.D. and N.T. v. Spain) provided by Poland, Latvia and Lithuania respectively. This refers to a principle applied by the ECtHR that if the lack of an individual expulsion decision in violation of A4P4 is a consequence of the applicant’s ‘own culpable conduct’, the respondent State has not violated its obligation to assess individually all the arguments put forward by the asylum-seeker. This logic was used by the Court, for example, in the 2005 case of Berisha and Haljiti v. the former Yugoslav Republic of Macedonia (dec.), where the applicants had jointly pursued an asylum procedure and therefore received a single decision. On the basis of this same rationale, the ECtHR established a highly indeterminate and much-criticized two-tier exception to the prohibition of collective expulsion under A4P4, also in cases of pushbacks at land border, in N.D. and N.T. v. Spain and further developed in A.A. and Others v. North Macedonia.
In N.D. and N.T., the ECtHR ruled that Spain had not violated the prohibition of collective expulsion by immediately returning migrants attempting to cross from Morocco to Spain. The Court argued that the applicants had placed themselves in an unlawful situation by not using existing legal channels, but by crossing the border fence en masse in a group of around 600 people in 2015. In A.A. and Others, the logic of shifting the obligation to prevent human rights violations to asylum-seekers who place themselves in ‘jeopardy’ by ‘entering illegally’ (para. 123 of A.A. and Others v. North Macedonia) seemed to become the assumption rather than the exception by relying on the circumstance of irregular entry as sufficient condition for applying the two-tier test.
Although in the cases at hand the border crossings were uncontested peaceful and in small groups, and therefore different from the events at the Melilla fence, the gateway created is in the world and gives rise to efforts by states to extend exceptions from human rights obligations.
Restricted access to asylum procedures in domestic ‘emergency’ areas
State agents in the current cases before the ECtHR have argued that it has always been possible to enter Poland and Latvia regularly by applying for humanitarian visas at official entry points. Whether this assertion is true or not is also a question of facts, evidence and procedural rules on the burden of proof (see here on procedural inequality before the Court). In para. 207 of M.K and Others v. Poland, the ECtHR found that the respective applicants had attempted to cross the border to Poland in a regular manner in 2016 and 2017 and ‘were trying to make use of the procedure of lodging applications for international protection that should have been available to them under domestic law‘.
By the time of the respective border crossings and pushbacks in 2021 and 2022 in R.A., H.M. and C.O.C.G., domestic law in Poland, Latvia and Lithuania had changed radically. Several amendments in national law were targeted at foreigners crossing the border irregularly from Belarus and aimed at ‘grounding pushbacks in domestic law’.
Lithuania was the first of these three countries to adopt legislations effectively excluding foreigners who entered the country irregularly from fundamental rights protection, declaring an ‘extraordinary situation’ due to a ‘mass influx’ of foreigners on July 2, 2021, which is still in force. Further amendments passed by the Lithuanian Parliament stipulate that in the event of a declared ‘state of emergency’, asylum application of persons who have entered the country irregularly must not be accepted. Such a ‘state of emergency’ due to a ‘mass influx’ of foreigners was declared for the entire territory on March 22, 2022 and repeatedly renewed, most recently on May 3, 2023. The resolution continues to be in force, although the number of irregular arrivals has decreased; according to a document accompanying the parliamentary resolutions, a ‘mass influx’ refers more to the ‘instrumentalization of migrants’ than the number of arrivals. The Court of Justice of the European Union (CJEU) ruled in its 2022 decision in case C-72/22 that Lithuania’s ‘emergency’ legislation does not exempt the country from its obligations under EU law, a fact taken into account by the judges of the Grand Chamber during the question and answer session in C.O.C.G. and Others v. Lithuania.
Latvia also declared a ‘state of emergency’ along its border with Belarus from August 10, 2021, to August 10, 2023, pursuant to Cabinet of Ministers Order No. 518. This measure allowed the authorities to reject asylum applications from people crossing the border irregularly and to carry out immediate returns, including by force. This policy was justified by an alleged sharp increase in irregular crossings from Belarus. Latvian authorities reported intercepting 6,600 people in the first seven months of the ‘emergency’. However, research suggests that this figure was inflated by counting repeat attempts, with the actual number estimated at 200-300. For context, even Frontex recorded 8,100 irregular crossings along the entire 6,000km Eastern European border in 2021, including to Moldova, Ukraine and Russia.
Contrary to the findings in M.K. and Others v. Poland, Polish national legislation has also been amended with the aim grounding pushback practices at the Belarusian border in the domestic law, following the Hungarian example in stretching EU asylum law. On September 2, 2021, Poland also declared a ‘state of emergency’. Two legal frameworks, one adopted in August 2021 on the basis of a Covid-19 executive regulation and the other on a parliamentary act of October 2021, prevent applications for international protection and facilitate immediate return to Belarus (for a thorough analysis see here). Most recently, on February 21, 2025, the Polish Parliament approved a bill that would suspend the right to claim asylum for people who cross the border irregularly. While the amendment still needs to be approved by the Senate, it has already raised concerns among human rights observers, for example by Council of Europe’s Commissioner for Human Rights, Michael O’Flaherty.
Yet the practice of grounding pushbacks in domestic law is not a new idea. As early as 2015, the Spanish Organic Law 4/2015 (Ley Orgánica 4/2015), in its first final provision, established a highly criticized (see here and here) special legal regime that was supposed to allow the immediate return of persons who had crossed the border irregularly from Morocco, thus grounding in domestic law the long-standing unlawful pushback practices by the Guarda Civil in the enclaves of Ceuta and Melilla.
One of the common features of these domestic ‘emergency’ legislations is that they geographically restrict access to asylum procedures to certain official border crossing points or to consulates and embassies in third countries. It is therefore clear from the evidence of national legislation that the availability of effective means of legal entry has been massively reduced. Even when states have included exceptions to the general non-admission of asylum claims, such as in the amendments adopted by the Lithuanian Parliament on April 25, 2023, following the CJEU ruling in case C-72/22 for persons fleeing persecution within the meaning of the 1951 Refugee Convention, these have been applied very restrictively and must be seen as the last shadow of human rights protection in a general framework of systematic and legally grounded pushbacks.
‘Culpable conduct’ of being ‘instrumentalized’ by Belarus?
Following the legal principles of N.D. and N.T. v. Spain, the state agents in the cases at hand argued that the applicants did not have ‘cogent reasons’ for not using these allegedly available means of legal entry, which would indicate that the lack of an individual decision was consequence of their ‘own culpable conduct’ (para. 208 of N.D. and N.T.). ‘Cogent reasons’ refer to ‘objective facts’ that have prevented the applicants from regularly crossing the border and for ‘which the respondent State is responsible’ (para. 201 of N.D. and N.T.).
It is therefore a question of assigning responsibility for the lack of individual examination, which extends into the period long before the actual border crossing. This is where the geopolitical context of the EU-Belarus border comes into play, and the parties of the proceedings tell us different stories to make sense of it all.
The state agents emphasize that they are being attacked in a ‘hybrid war’ orchestrated by Belarus, and are therefore in the position of ‘heroic’ EU member states protecting not only the EU’s external borders, but also European values such as freedom of expression and democracy. The asylum seeker who crosses the border irregularly is portrayed as deliberately acting in bad faith, abusing the international protection system and collaborating with hostile Belarus. Being ‘culpable’ in this narrative means being ‘instrumentalized’ by a third state.
Indeed, in the summer of 2021, Belarusian dictator Lukashenko announced that he would ‘flood the EU with migrants’. And indeed, following the EU’s decision to impose sanctions on Belarus in response to its fraudulent presidential elections in 2020 and its military support for Russia, Belarus began issuing tourist visas to people in Middle Eastern and African countries. A state-run travel agency helped facilitate the journey to the Russian federation or Belarus. Belarusian state authorities then facilitated the transfer to the border with Poland, Latvia, Lithuania and stopped to prevent irregular border crossings into the EU.
Representatives of the applicants tell us the stories of people and children caught between these increasingly hostile states. People whose human rights have been structurally violated. People who were trapped in the forbidden zone between the fences, being de-humanized by the law. People who do not cooperate with Belarus but cross the borders irregularly because they have no other choice.
The geopolitical context is highly critical at a time when the former world order seems to be eroding, and international power relations are being debated. That in the context of the EU-Belarus border, Poland, Latvia and Lithuania and other member states, supported by the EU Commission, are not responsible in the first place is an illusion. To argue that the asylum seekers did not have ‘cogent reasons’ to cross the border irregularly, would mean, that to speak of ‘culpable conduct’ of the asylum seeker is not even a subjective attribution of individual controllable circumstances, but the attribution of a whole geopolitically critical situation. The ‘emergency’ legislations outlined above provides clear answers concerning the distribution of responsibility in prioritizing border control: the risk of geopolitical conflict must be borne by migrants, not states.
Concluding remarks
There is the need to address security concerns at the European level, as well as ‘hybrid threats’ that are not yet sufficiently conceptualized in legal terms. This also includes talking about disinformation. ‘Emergency’ as a concept can be seen as a legal and discursive tool to identify security concerns and justify related exceptional measures. However, the declaration of a situation as a ‘state of emergency’, as the ‘mass influx of migrants’ in R.A., H.M. and C.O.C.G., does not, allow the circumvention of the existing legal order with its own and conclusive system of derogation clauses, or function as a blank cheque to extend exceptions under the case law of the ECtHR to incomparable cases with major losses of human rights protection.
The use of the term ‘state of emergency’ from the perspective of the state experiencing it through migration seems odd, euphemistically speaking, considering that the reference point for defining ‘states of emergency’ could also be people. In this case, one would have to conclude that it is the asylum-seekers at Europe’s external borders who are experiencing emergencies. It must therefore be very critically questioned what is referred to by ‘emergency’ and whether the measure applied is actually directed against its originator and not merely against the asylum-seeker held vicariously responsible. De-normalizing migration through ‘emergency’ approaches will in the end not stop imperial and autocratic states like Russia from acting as aggressors on the international stage.
Disclosure: The author is one of 22 academics who have intervened as Third Party in the case of C.O.C.G. and Others v. Lithuania before the ECtHR, which is currently being deliberated. The arguments outlined here are partly a result of the group’s research conducted for the Third-Party Intervention, which can be found here.
