[Analysis] Lack of legal clarity on EU ‘pushbacks’ of migrants at sea

“The court said Spain had no obligation to offer them access to an asylum procedure,” he told MEPs last week.

Leggeri has also highlighted EU rules on interceptions at sea in interviews with German and Italian media, giving authorities the right to turn around boats in territorial waters whenever a crime like smuggling is involved.

The arguments appear to bolster the legal justification for pushbacks, an illegal practice of forcing would-be asylum seekers to return to the territory from where they came.

At the same time, the Warsaw-based agency must take its orders from the Greek authorities while on mission in the Aegean sea.

Leggeri can then claim violations of fundamental rights have not been committed by the agency.

The Greek authorities say they too are not guilty of any offence.

With no one to take the blame, and a European Commission unable to hold Frontex to account, the interpretation of EU rules is being used to further muddy the waters.

The point was driven by senior European Commission official, Matthias Oel.

“Each border guard has to decide within seconds. Is it an illegal entry or is it a humanitarian situation?” he said, noting mistakes happen.

An internal Frontex probe was tasked to shed light on the allegations following a joint-investigation by the Bellingcat website and other media in October.

But it too was unable to fully decipher EU rules on interceptions at sea, in the context of the Spanish case.

The European Commission has since penned a five-page legal analysis, obtained by EUobserver.

And it clearly casts doubt on the legal arguments invoked by Leggeri.

“This judgment cannot be directly applied to all situations,” it states of the Spanish case.

So what happened in Spain and why is it being used as legal fodder to stop migrant boats?

Scaling fences in Melilla

Melilla is one of two Spanish enclaves in north Morocco, surrounded by three parallel fences to keep people out.

Several hundred tried to scale the fences in August 2014 in a desperate bid to get asylum.

Among them was a young man from the Ivory Coast and another from Mali.  Both got caught by the Spanish police and escorted back to Morocco.

Critics called it a collective pushback.

But last year the European Court of Human Rights ruled their forced return had not been entirely illegal.

That judgement came in mid-February 2020. Within days, Turkey started ushering thousands of people onto the Greek border.

Tensions spiked as the European Commission declared Greece a “shield” for the European Union.

The Greek vice-president of the European Commission, Margaritis Schinas, then announced unequivocal support for Athens as authorities suspended asylum claims for the entire month of March.

At the same time, the Greek national security council convened a meeting chaired by centre-right prime minister Kyriakos Mitsotakis.

“They decided to make the optimal use of the provisions on interception, which means that some cases the migrant boats can be instructed not to stay,” said Leggeri.

It is within this context the judgement by the ECHR has been spun, along with EU interception rules, to support ‘legal’ pushbacks in the Aegean Sea.

Commission says ‘no’

But the European Commission says the Melilla case does not apply to the sea, noting it took place at land borders.

Secondly, international standards in Morocco can vary and may change over time.

“The principle of ‘non-refoulement’ was not at stake in that judgment,” the commission added, noting individual applicant claims of torture had been deemed inadmissible.

Finally, the court did not base its decision on EU interception rules as outlined in EU regulation 656/2014.

That law allows authorities to turn back a boat or escort it “outside of, or towards, a destination other than the territorial sea.”

It is the same law invoked by Leggeri in his interviews with German and Italian media, as well as in his auditions with the European Parliament.

Nora Markard, a professor of International Public Law and International Human Rights at the University of Münster, is also not convinced by Leggeri.

“You cannot simply send them back without examining their individual cases,” she said of the people arriving on boats from Turkey.

The European Court of Human Rights had ruled on that as well in 2012, in a case where the Italian coast guard was forcing people back to Libya.

It was deemed illegal. It happened on the high sea.

And although the EU interception rules in the Frontex case takes place in territorial waters, Markard says that does not matter.

“There is no exception [to pushbacks], this is an absolute guarantee,” she said.

Ultimately, the European Court of Justice will have to decide who is right.