The pictures on our television screens on the Polish-Belarus borders raise fundamental issues with the approach of the European Union towards persons potentially seeking protection.
There is no doubt that Belarus, an authoritarian and repressive regime, is using migrants as pawns in their political disputes with the EU. While this issue has impacted on Latvia and Lithuania, the key focus has been on Poland.
Poland is feeling the pressure from Belarussian attempts to spark controversy and cause political tension within and between EU member states. Such actions from autocratic Belarussian authorities are not unsurprising, and likely done with the tacit consent of their Russian allies.
What is surprising is the ferocity and repressive tactics of the Polish army and police in “pushbacks” of migrants who have managed to cross the border into Poland.
This reaction of Poland towards persons seeking protection on the border is being permitted by the indecent silence of the EU and its member states.
The political niceties adopted of merely expressing concerns or broad calls that compliance with EU law must be respected by Poland, ring hollow when the pictures on our screens show the cruelty inflicted on persons in preventing them from entering Poland.
Media are being denied access to report on the situation due to the supposed state of emergency that Poland has declared. Civil society and activist groups are being denied access to persons in this border no man’s land to provide essential food and water.
Persons seeking protection are dying on Europe’s frontiers, without much concern from member states of the EU, no doubt seeking to allow Poland to do what it wishes, regardless of their legal obligations.
The EU is purportedly based on core fundamental values and respect for, and protection of, human rights.
While current interpretations of human rights law do not generally provide a right of entry into any State for the purposes of claiming protection, once a person crosses the border of any European Union member state, then significant legal protections apply.
Admittedly, such an obligation, while clearly set out in law, has been breached continuously by states such as Greece, Italy, Hungary, Poland, and probably other EU states.
The human right to claim asylum is explicitly protected by the EU Charter of Fundamental Rights. This is given force through a range of EU legal measures regarding the qualification of a person for protection; the procedures that must be followed in determining a protection claim; the rights of a person seeking protection to basic supports for the duration of their protection; alongside the Dublin III Regulation, which determines which EU member state is responsible for processing a protection claim.
The core rights that have to be protected include that a person has a right to claim protection from persecution and serious harm that they may face in their countries of origin if returned.
The EU member state where a person lodges their claim has a legal obligation to process this claim within a reasonable period of time, permit access to legal advisors, ensure that reception conditions for the protection applicants are provided, and fairly determine whether a person comes within the strict and limited legal basis for entitlement to protection.
Polish legislators have recently passed an act of parliament that rides roughshod over many of these European Union legal obligations.
What we have witnessed on the Poland-Belarus border means that these legal obligations upon states do not appear to be worth the reams of paper they are written on. The European commissioner for home affairs, with responsibility for asylum law and policy, Ylva Johansson, articulated in response to the Belarus-Poland situation that “pushbacks should not be normalised, pushbacks shall not be legalised”.
Yet the Polish authorities continue to push back migrants on Polish territory back to Belarus. Commission president Ursula von der Leyen’s most recent statement rightly criticises Belarus and emphasises the need to “prevent a humanitarian crisis from unfolding”, yet makes a stark conclusion that “migrants can be safely returned to their country of origin”.
There was a startling lack of appreciation for the gross violations of European Union law that Poland is engaging in.
While the European Union rightly has reacted with speed to Polish attempts to fundamentally undermine an independent and impartial judiciary, it appears that gross violations of EU law directed at persons being pushbacked into Belarus after reaching Polish territory, is not receiving the level of European Union condemnation that it should be.
A union based on a commitment to the rule of law, democratic freedoms, and human rights should not tolerate such violations of the right to asylum that Poland is inflicting on migrants at its borders. It is absolutely no justification to, in effect, suspend legal obligations, due to Belarussian authorities orchestrating what is occurring.
Whether those at the border of Poland, and those pushed back from Poland to Belarus meet the legal definition to entitle them to seek protection is not something the Commission president, the Polish authorities or other European Union member states can at this stage determine.
That decision is for relevant domestic authorities to examine, in full compliance with international and European Union law. This whole situation belies just how irrelevant human rights legal obligations can become, when migrants are dehumanised and used not only as political pawns by Belarus, but also by Poland and the European Union.
How irrelevant the law and respect for the rule of law can be when situations of ‘crisis’ emerge.
The only threat that the European Union faces is when legal obligations on member states are, in effect, disregarded because of governmental, political, and societal dislike for persons seeking protection.
Liam Thornton is an associate professor in the School of Law, University College Dublin