Rule of Law Backsliding and the Fundamental Rights of Migrants in Europe

The European Commission’s Rule of Law Report, while assessing EU member states’ adherence to key rule of law principles, significantly lacks a focused evaluation of fundamental rights protections, especially for migrants. This oversight not only undermines the report’s comprehensive integrity but also reflects poorly on the EU’s commitment to its core democratic values.

The upcoming European Commission’s Rule of Law Report, planned for publication on 3 July 2024, has been delayed to as late as September reportedly due to political reasons. Since 2020, the report has assessed the European Union’s (EU) member states’ respect for the rule of law principle. However, it lacks a dedicated assessment of fundamental rights protection, especially of migrants. This is a serious shortcoming as the Mediterranean is among the deadliest routes for individuals attempting to seek refuge in Europe. Overlooking the treatment of migrants will make Europe a graveyard not only for migrants but also the EU’s values that are fundamental to the grouping’s existence.

Appraising the Rule of Law Report

The Rule of Law Report emphasises four pillars of the rule of law: the independence, quality, and efficacy of justice systems; anti-corruption frameworks; media pluralism and media freedom; and institutional checks and balances. These four areas are understood to be “key interdependent pillars for ensuring the rule of law” and are used as the methodology for assessing the state of the rule of law in EU member states.

The report has drawn criticisms, questioning its overall utility in preventing rule of law backsliding, characterised as the process through which elected public authorities aim to weaken internal checks on power, potentially leading to the entrenchment of the ruling party, and the larger goal of dismantling the liberal democratic state.

The protection of fundamental rights is not given a dedicated section in the report. Civil society organisations (CSOs) worry that the report does not sufficiently address the issues of human rights, social justice, and equality within the larger rule of law mechanism. Further, the fundamental rights of migrants remain at the margin, for example as seen with the 2023 Rule of Law report on Greece, a country among the main entry points into the EU with land and sea borders with Turkey. This suggests a lack of a comprehensive understanding on how the violations of migrant rights fit into rule of law backsliding.

The omission is critical. The protection of fundament rights is closely intertwined with the rule of law and democracy. A strong democracy and rule of law provides a significant foundation for ensuring the protection of rights and dignity. Conversely, rights violations can serve as an indicator, showing cracks in the rule of law, and democratic institutions’ inability to safeguard human rights. Without a strong emphasis on fundamental rights in the report, CSOs can find it difficult to directly incorporate human rights concerns into evaluating the rule of law in the EU.

Migrant rights central to the rule of law

Despite the omission, violations of migrants’ fundamental rights cut across the four pillars of the Rule of Law report methodology. Further, civil society actors are actively trying to make the connection between migrant protection and the quality of the rule of law more explicit.

To elaborate, considering the justice system’s pillar of the report, the 2024 joint submission to the European Commission by Greek CSOs such as Refugee Support Aegean and European partners argue that there is ineffective judicial investigation into the violations of migrant rights. The European Court of Human Rights (ECtHR) also delivered a judgement, noting the lack of proper investigation in a case where a Turkish national claimed he was forcibly removed from Greece to Turkey (B.Y. v. Greece no. 60990/14). The Greek Council for Refugees further propounded that the interim measures issued by the ECtHR, which prohibited the removal of asylum seekers, were not fully respected. The Greek government firmly denies pushbacks of migrants but instead adheres to its “strict but fair” migration policy. The lack of investigation and enforcement of court judgements underscores the point that migrants do not have access to justice. More seriously, it cultivates the culture of impunity and lack of accountability when human rights violations occur.

In the media freedom pillar, journalists working on migration and asylum issues can be subject to surveillance with spyware. Investigative news platform Solomon has received a legal notice to remove an article, alleging the confiscation of refugees’ money and personal belongings during pushbacks. This generates a deteriorating climate for freedom of the press and poses more risks for journalists to ensure transparency regarding authorities’ exercise of power.

Turning to the anti-corruption pillar, the toughening of borders make migrants rely on smuggling networks, creating opportunities for corruption between security forces and migrant smugglers. In May 2023, five border guards in northeastern Greece were charged with facilitating unauthorised migrant entry into Greece from Turkey in return for payment. Border hardening does not only increase migrant vulnerability to more severe forms of exploitation, such as human trafficking, but can also undermine public trust in law enforcement to safeguard the rule of law.

In the fourth pillar of institutional checks and balances, the United Nations Special Rapporteur for Human Rights Defenders published in 2023 that CSOs working to ensure the rights of migrants, asylum seekers, and refugees in Greece “have been subjected to smear campaigns, a changing regulatory environment, threats and attacks and the misuse of criminal law against them to a shocking degree.” Such an environment limits the capacity of CSOs for protecting migrants from harm, thus eroding check and balance mechanisms to hold authorities to account.

Preventing rule of law backsliding

Violations of the fundamental rights of migrants and the obstacles faced by CSOs shed light on rule of law backsliding. The implications are far-reaching. Prioritising migrant and refugee protection does not only serve to safeguard vulnerable populations on the move but also ensure the existence of strong democracy, the rule of law, and fundamental rights in Europe.

Dr Ruji Auethavornpipat is a Lecturer in Politics and International Relations at La Trobe University. His research examines the contestation of global migrant protection norms in Southeast Asia and Europe. The analysis is part of a research project investigating the interplay between the fundamental rights of migrants and the rule of law, with support from the re:constitution Fellowship funded by Stiftung Mercator.

This review article is published under a Creative Commons Licence and may be republished with attribution.