Asylum seekers being forcibly expelled at EU borders, says top rights lawyer

Europe’s most senior human rights official has said there is evidence of asylum seekers being forcibly expelled at EU borders, as he urged mainstream politicians not to concede to populists on migration.

The commissioner for human rights at the Council of Europe, Michael O’Flaherty, told the Guardian he was concerned about the treatment of asylum seekers at the EU’s external borders in Poland and Greece, as he warned against a “securitisation response” that goes too far.

O’Flaherty, who began his six-year term in 2024, testified last month before the European court of human rights’ grand chamber in cases brought by asylum seekers against Poland and Latvia. A group of 32 Afghan nationals, who say they fled their country after the Taliban returned to power, say they were forced back to Belarus by Polish border guards in 2021, giving them no chance to claim asylum. In the second case, 26 Iraqi nationals of Kurdish origin say they were pushed back to Belarus by Latvian authorities in the same year.

Both groups say they were stranded in a forested no man’s land between the Belarusian and EU frontiers for several weeks.

Poland and Latvia – as well as Lithuania, Estonia and Finland – have been grappling with a surge in irregular border crossings since 2020, orchestrated by the Belarusian autocrat, Alexander Lukashenko, who is seeking to destabilise EU countries.

O’Flaherty described the actions of Belarus as deplorable and unacceptable, but “the securitisation response by the neighbouring countries goes too far”.

“The willingness to shut down any possibility of asylum is a violation of law, the willingness to return people across a border at risk of persecution is a violation of international law,” he said. “And it’s not necessary, because the numbers that are being intercepted at the fences are modest.”

About 17,000 people made an irregular crossing over the EU’s eastern land border (which includes Ukraine) in 2024, the EU border agency, Frontex, reported.

Ignoring warnings from human rights defenders, Finland closed all nine crossing points at its border with Russia in 2023 in response to intelligence that showed Russian agents were helping asylum seekers over the EU frontier. Polish lawmakers are discussing plans to temporarily suspend the right to asylum, while the country’s prime minister, Donald Tusk, has described migration as a question of “the survival of our western civilisation”.

O’Flaherty told the ECHR’s great chamber that the frame of “hybrid warfare” and “weaponisation of migrants” – language frequently invoked by EU leaders – gave the impression that people crossing the border “should somehow be equated to the outrageous actions of Belarus”.

Asked by the Guardian about alleged pushbacks at the Polish border, the lawyer said he was “not in a position to describe a universal practice”, but was “confident that there have been sufficient incidents to be a cause of great concern”.

People from the Middle East and elsewhere face members of the Belarusian military at the Belarus-Poland border near Grodno in 2021. Photograph: Oksana Manchuk/AP

O’Flaherty has also concluded there is “compelling evidence” of “summary returns” across Greece’s land border with Turkey and from the islands. On a visit to Greece earlier this month, he met officials to discuss the Adriana shipwreck of June 2023, when more than 700 people drowned after a crowded boat carrying people from Afghanistan, Pakistan and Egypt sank in the Peloponnese.

Human rights NGOs that investigated the disaster accused Greek authorities of failing to mobilise “appropriate resources for a rescue” and of ignoring offers of assistance from Frontex.

O’Flaherty said he understood from his meetings that Greece’s ombudsman was “calling for a criminal investigation of specific individuals working for the state”. He added that it was very important that “Greece carefully consider his report and take the necessary prosecutorial action”.

There is an increasingly hardline response to migration in Europe, with growing interest in processing asylum claims elsewhere, such as Italy’s agreement with Albania and the previous British government’s Rwanda deal, now cancelled. Last October, EU leaders discussed creating offshore “return hubs” for people denied asylum in the EU.

O’Flaherty, who was director of the EU’s Fundamental Rights Agency, said any external centres had to guarantee certain red lines on human rights: the right to claim asylum and appeal against a decision; “appropriate reception conditions”; no detention of children; and ensuring people would not be returned to a country where they risked persecution.

The Irish human rights lawyer, who began his career at the UN in Bosnia-Herzegovina in 1993, said it was “the most challenging time for the protection of human rights” he had seen in his working life.

While he said there had always been “deeply disturbing levels of human rights violation and abuse”, the last decade had seen a repudiation of human rights by some leaders and regimes. And since 2024, he said, centrist politicians were also willing to suspend or ignore human rights obligations, particularly concerning asylum rights.

“Centrist politicians are saying things that would have been unacceptable a very short time ago, and that worries me, because if I can mangle a quotation from the Irish poet William Butler Yeats, when the centre cannot hold, things fall apart.”

He said, referring to migration, that moderate political leaders across Europe needed “to stand up for human rights” and not concede “own goals” to populists or “instrumentalising neighbouring states”.