It was a month ago to the day.
On February 2, 2024, the Council of State drastically restricted the possibility for the State to push back migrants who had entered the European Union (EU) illegally to France's borders.
At the same time, the Office of Immigration and Demography (OID) published a note entitled: “
Possibilities and limits of refoulement at the internal and external borders of the European Union
”.
The tone is set from the outset, “
the state of the law appears to be an excessive straitjacket for those who want to control their migration policy
”, underlines the introductory summary.
The note seeks to demonstrate that the States of the European Union have only limited room for maneuver to combat irregular immigration at the borders.
This note is the latest publication from this think tank founded in 2020 by a group of comrades, senior civil servants and entrepreneurs.
Led by thirty-year-old Nicolas Pouvreau-Monti, formerly of the Accenture consulting firm and trained at Sciences Po, this think tank aims to fuel a dispassionate public debate on immigration and its demographic consequences.
The OID regularly publishes notes, columns or surveys.
Following the decision of the Council of State and while the migration issue promises to be central in the European election campaign, the OID offers an inventory of the European legal framework which surrounds the “
refoulement
” of migrants.
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“An effective returns policy”?
If States' capacities for action are so limited, the note details, it is because the notion of "border" is not the same depending on whether it is an external or internal border of the country. Union.
On the one hand, Article 14 of the Schengen Borders Code obliges Member States to “
guard
” the external borders against illegal entries.
On the other hand, freedom of movement takes precedence for internal borders.
The same foreigners that Union law calls for not allowing entry can
de facto
move quite easily between states once they have entered Union territory.
The note details the range of guarantees that Directive 2008/115, better known as the “
return directive
”, offers these migrants.
“
Defining an effective returns policy
”, however, is the ambition declared in recital 4 of this directive.
But the strength of this principle is blunted by a series of exceptions, norms and conditions attached to it.
States must, for example, give the immigrant a period of time for voluntary departure (article 7), before being able to resort to forced removal only as a “last resort” and under strict conditions (article 8).
Removal which may be suspended in the event of an appeal (article 9).
Most of the time, the States of the Union therefore find themselves paradoxically paralyzed by the directive which claims to give them the means to act.
Certainly, a simplified removal procedure allows them in certain cases to free themselves from the guarantees granted to migrants (article 2 paragraph 2 of the return directive)... But always subject to the principle of “non-refoulement”.
This principle regularly resurfaces in the public debate on immigration, without us knowing precisely what it refers to.
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Individual rights rather than national security
Recently, the term has returned to the media, with the joining of Fabrice Leggeri, the former boss of Frontex, to Jordan Bardella's National Rally (RN) list for the European elections.
In February 2022, the European Anti-Fraud Office (Olaf) accused him of having covered up “
violent maritime pushbacks
” when he headed the European border agency.
The agency's Board of Directors nevertheless decided not to open a disciplinary investigation against him.
The principle of non-refoulement comes neither from national law nor from EU law, but from international law.
The 1951 Geneva Convention, relating to the status of refugees, prohibits the return of foreigners to a country where they would be threatened.
Originally, the principle of non-refoulement was seen as a corollary of the right to asylum and subject to a certain number of limits.
Subsequently, it was very widely extended by international human rights law and European law, until it became a general and absolute principle, underlines the OID.
In this matter, the European Court of Human Rights (ECHR) thus gives priority to the rights of individuals over the national security of a State.
The OID cites the judgment of February 1, 2018, by which the ECHR condemned France for having expelled to Algeria an Algerian convicted of participation in a criminal association with a view to preparing acts of terrorism, and dismissed it. of an asylum application.
Note that the ECHR subsequently issued a reverse decision for a similar case.
But without renouncing the absolute nature of non-refoulement: it had simply considered that Algeria was now a safe country (CEDH, April 29, 2019, AM v France, no. 12148/18).
Another limit to the removal of migrants is the ban on collective expulsions.
The ECHR in fact prohibits States from removing a group of foreigners without “
reasonable and objective examination of the particular situation
” of each of them (ECHR, judgment of December 15, 2016, Khlaifia and others v. Italy).
With the exception of cases where migrants attempted to force their way out of an official crossing point, taking advantage of the mass effect.
Note that non-refoulement and the prohibition of collective expulsions are not limited to the territory of a State, but have been extended to the high seas by the jurisprudence of the ECHR.
Also read: Xavier Driencourt: “The Canaries, the Lampedusa we don’t talk about”
Denounce the ECHR and the Geneva Convention?
After providing an overview of these legal constraints, the OID suggests some avenues which would make it possible to strengthen the protection of European borders against illegal immigration.
First of all, it is a question of States exploiting the limited room for maneuver at their disposal.
For example, strictly speaking, the ECHR does not prohibit the deportation of immigrants to countries considered safe.
Thus Turkey, considered as such by Greece for certain nationalities.
Furthermore, the center for reflection on immigration underlines that refusing access to territorial waters to boats seeking to enter Europe illegally would not, strictly speaking
,
constitute refoulement: it is not a question of refoulement of migrants, but to block their way.
Finally, the possibility of cooperating with the countries of departure so that they intercept the boats is mentioned.
A solution considered several times by European leaders in recent years, with mixed success.
For example, Giorgia Meloni tried to find an agreement of this order with the Tunisian government of Kaïs Saïed in 2023.
Above all, the OID concludes that a firm migration policy is incompatible with the ECHR and the Geneva Convention, which it purely and simply proposes to “
denounce
”.
“
The release of these international instruments would make it possible to effectively oppose illegal migratory flows
,” details the note.
A radical proposal, but taken up on their own, at least on the ECHR, by the three main lists of the right in the European elections, LR, the RN and Reconquête!.
François-Xavier Bellamy, Jordan and Bardella and Marion Maréchal all wish to renegotiate the terms of France's accession to the ECHR.
Which would amount to states taking control of asylum policy and the end of the principle of non-refoulement.