In 2001 Matthew Gibney wrote a text in which he showed an apparent paradox in the form of increasingly far-reaching protection of refugees on the basis of adopted supranational mechanisms, combined with the continuous tightening of refugee policies by European countries. According to Gibney, symptomatic of an increasingly higher standard of protection was the judgment of the European Court of Human Rights (ECtHR) in the case of Chahal v. The United Kingdom, in which the Court for the first time extended protection against refoulement to persons who may pose a threat to national security. On the other hand, the author lists the practices of European countries aimed at pushing forced migrants away from their territories (the so-called non-entrée policy), which for him were a blatant attempt to circumvent the high European standards of protection. Gibney put forward the thesis that the contradiction between the two trends is only apparent – in fact, expanding the standards of protection of forced migrants at the supranational level inevitably leads to creating barriers for the same migrants in order to prevent them from entering the territories of European countries. In order to avoid the obligation to protect ever new groups of migrants, democratically elected governments, answerable to isolationist voters, have opted to prevent migrants from Global South countries from reaching their borders. In this perspective, the progressive approach to the protection of forced migrants represented by the ECtHR and, to some extent, the European Union, appeared as a façade behind which the opportunistic actions of the member states of the Union and the Council of Europe stood. We are currently dealing with the gradual dismantling of this facade.

Until recently, in response to questionable state practices, it was possible to count on the rights of forced migrants to be claimed by institutions established for that purpose within the European system of human rights protection. ECtHR judgments in cases such as M.K. and others vs. Poland and others, and above all, Hirsi Jamaa and others v. Italy, directly oppose the non-entrée practices applied by states. The second of these judgments extended the obligation to admit to the refugee procedure to all territories where the services of a given state exercise “effective control” over the asylum seeker. This ruling meets Gibney’s postulate in the above-mentioned text that the progressive standards of protection in force in Europe should be extended wherever the services of European states come into contact with those seeking international protection.

The European Commission also appeared determined to enforce states’ obligations under the Common European Asylum System in the face of unprecedented migratory pressures in 2015 and beyond. As a result of cases brought against Hungary, Hungary, Poland and the Czech Republic, the Commission found that the Court of Justice of the European Union (CJEU) found that the Member States had failed to fulfil their obligations in a solidarity-based response to the ongoing crisis. However, these cases remain the last in which the Commission decided to initiate proceedings before the CJEU in the context of migration. Meanwhile, the practice of pushbacks has spread among the Member States immeasurably in comparison with the crisis of 2015, so the Commission remains largely passive, also in the rhetorical aspect. Symptomatic is the lack of a strong reaction (even in verbal terms) to activities such as those carried out by the Polish services in the context of the humanitarian crisis at the border with Belarus, or very similar measures applied by Greece a year earlier. The proposed reform of the Common European Asylum System in the form of the New Pact on Migration and Asylum also limits the right of asylum seekers to access the territory of the EU. My diagnosis of the reasons for the Commission’s departure from vigorously enforcing the rights of asylum seekers is as follows: due to the failure of the relocation program after 2015 and the persistent divisions within the Community that this program has caused, the Commission lacks the authority and political will to confront the Member States on the issue of migration. Pushbacks have become common in almost the entire territory of the Union, because after 2015 it became clear that European solidarity in the face of a massive influx of foreigners is an illusion and the Commission is unable to enforce it. The Union’s response to the crisis related to the influx of war refugees from Ukraine is in this approach an exception to the rule and only emphasizes the political selectivity in the use of legal tools for the protection of forced migrants.

Despite some flaws in the image of the refuge for the rights of asylum seekers, the ECtHR can still be regarded as their guardian in principle. As it seems, however, it is the last authoritative European institution that is willing to enforce high standards of protection of forced migrants and not succumb to the decisive trend towards tightening non-entrée policies.

Maciej Grześkowiak

PhD student at the Department of Human Rights at the Faculty of Law and Administration of the University of Warsaw and the Doctoral School of Social Sciences at the University of Warsaw in the discipline of legal science. Leader of a research project devoted to the empirical effects of the shortcomings of the universal refugee protection system, financed by the National Science Center. As an expert in the field of refugee protection, he dealt with the implementation of humanitarian programs among refugee communities in the Middle East and the coordination of activities with UNHCR and other humanitarian organizations. After returning to Poland, he worked at the Helsinki Foundation for Human Rights. From 2022, the Chief Coordinator for Scientific Cooperation in the Office of the Human Rights Defender.