Judges have found against a Syrian migrant who claimed his family were victims of “pushbacks” and sued for damages.
In 2016, the Syrian man’s family was flown out of Greece to Turkey by Frontex, the EU Border Guard authority, in what is referred to as a joint-return operation. This happened before their asylum procedure was completed, allegedly causing harm to the family.
The alleged damage they have suffered cannot be directly attributed to Frontex’s conduct, the judges ruled in Luxembourg on September 6. Frontex was not responsible for examining return decisions or asylum applications, the court stated. It said that return decisions and procedures “fall within the competence of the Member States alone”.
Since Frontex “does not have the power to assess the merits of return decisions or applications for international protection, that European Union agency cannot be held liable for any damage related to the return of those refugees to Turkey,” the court ruled.
This marked the first lawsuit for damages filed against Frontex in the General Court of the European Union, a component of the Court of Justice of the European Union (CJEU). Had it succeeded, it would have significantly curtailed Frontex’s authority. Now it has confirmed that Frontex can carry on with its ‘return’ operations.
NGOs have repeatedly accused Frontex of violating international law and of not sufficiently protecting human rights when dealing with migrants.
The Syrian family, now living in Iraq, argued their asylum application should have been assessed before they were removed from the EU. They also claimed that Frontex violated the prohibition on “degrading treatment”, ignored the right to effective legal protection and infringed upon the rights of children. As a result, they were seeking compensation of around €140,000.
Had the European Border Guard not sent the family to Turkey, Greece would have sent the Syrians back without Frontex’s assistance. The European Border Guard is therefore not liable for the deportation, the General Court of the European Union ruled.
“It is the Member States alone that are competent to assess the merits of return decisions and to examine applications for international protection, which designate the bodies responsible for an appropriate examination of applications,” judges said.
The family was defended by lawyers from Prakken d’Oliveira, a Dutch firm specialising in asylum rights and human rights, and the case was supported by Refugee Council Netherlands and the Sea Watch Legal Aid Fund among others.
The ruling comes as a blow to open-border activists, who strongly oppose such pushbacks, a catch-all term, as there is no legal definition for what a pushback exactly is.
Prakken d’Oliveira is known backing left-wing causes and has previously defended radical environmentalists, squatters and migrants. The company was also involved in a court case against MEP Geert Wilders and defended Volkert van der Graaf, who murdered Dutch politician Pim Fortuyn in Holland in 2022. The company was also involved in a case regarding the al-Aqsa Foundation.
The Syrian family’s lawyer Lisa-Marie Komp told news outlet NU.nl: “You cannot just deport people to another country. Before you deport someone, you must first assess whether someone is entitled to asylum. That has not been done here.”
In a statement on its website, Prakken d’Oliveira called the ruling “unsatisfactory”. It noted that it was now clear that the final responsibility for human rights lies with Member States, but asked for what and to whom Frontex is accountable.
“It is now up to politicians, especially the European Commission. It must work to clarify the regulations so that it is clear how Frontex should monitor human rights,” it said.
Hans Leijtens, the executive director of Frontex, applauded the court’s decision. “Today’s ruling encourages me to continue the new path that Frontex has taken,” he said.
“We remain committed to fostering the respect of fundamental rights in all our activities. When things can be done better than in the past, we’re always ready to improve.”
Today’s ruling confirms that while Frontex supports Member States in returns it cannot assess the merits of return decisions. Nevertheless, we continue to put in place more safeguards to make sure that the rights of all people involved are fully respected https://t.co/vJQJPVxogq pic.twitter.com/WpwFUqts2E
— Frontex (@Frontex) September 6, 2023
The General Court’s decision comes at a time when Europe is faced with an ongoing migrant crisis and a record number of new arrivals.