Pushbacks in Spain: ECtHR gives a judgement that is far removed from reality

The European Court of Human Rights (ECtHR) has ruled that the deportation of two refugees without asylum proceedings is lawful. this judgment hardly anyone had reckoned, as the Small Chamber of the ECtHR had decided completely differently in 2017.

The Grand Chamber of the ECtHR claims in the grounds of the judgment that there are legal alternatives to violent, illegal border crossing, which in reality do not exist for Sub-Saharan Africans*, and that overcoming the border installations is in reality the only way to gain access to the Spanish asylum system.

The Grand Chamber of the ECtHR must have been aware of this, at least in part, which is why they argued that access to legal channels is restricted by Morocco, not by Spain, which means that Spain cannot be condemned for this. This is also surprising, since, for example, the UNHCR has explained in detail in the proceedings that there is Spanish influence on this refoulement practice in Morocco.

Another part of the judgment also leads to Lack of understanding among specialist lawyersThe judges argue that the applicants have put themselves in an unlawful situation by using the size of their group and violence to cross the border, which means that they are no longer entitled to a constitutional asylum procedure in Spain.
Combined with the reference to legal channels of access, this fundamentally disenfranchises applicants regardless of their grounds for asylum.

Also from Human rights organisations like Pro Asyl and in commentaries there is criticism of the judgment: "The judgment argues with a reality that does not exist", writes Tim Röhn in the world and calls this a "poverty testimony of the Strasbourg judges". In the "Süddeutsche Zeitung" Wolfgang Janisch describes it's called "unworldly."

However, the ruling is not a carte blanche for the so-called pushbacks. The Chamber did not make a blanket decision that illegal border crossings mean that asylum applications may no longer be submitted. Rather, it referred several times to the violent crossing and group size used by the applicants to gain access to Spanish territory.Such a situation does not exist, for example, on the green Croatian-Bosnian border, where neither violence nor group size are needed to enter Croatian territory. Moreover, the ruling refers to the border area. In Slovenia or Croatia, people often stay in the territory for days before they are brought back to Bosnia without access to legal procedures.Legal access to asylum procedures does not even theoretically exist at many EU borders, which means that the ruling is not applicable there as well. The Turkish-Greek border is in many cases a maritime border. The judgement is not applicable to this, rather the well-known Hirsi judgement applies here (Info on this at Migrationsrecht.netAccording to § 31 of the Geneva Convention on Refugees (GFK), fugitives should not be punished for illegally crossing the border if they are in direct danger in the neighbouring country.

However, the final word on the pushbacks at Spain's external border has not yet been spoken either: a case is still pending before the Spanish Constitutional Court, which could well be decided differently and which had been suspended until the ECtHR decision.

However, the ECtHR decision may also have to be seen in the context of another pending case on humanitarian visas (LINK): If the court now strongly emphasises the real existence of legal access to asylum procedures, this could also lead to the ECtHR claiming entitlement to access to humanitarian visas in certain cases. The ruling is also expected to be issued in the first half of 2020.

The ruling is nevertheless worrying, as it could push many people onto the even more dangerous route across water to Europe, and states such as Croatia and Greece could deliberately misinterpret the ruling and extend their pushback practices.

In doing so, European states should actually do justice to the verdict by finally opening legal, real access routes to constitutional asylum procedures at border crossings and to humanitarian visas in embassies.