Faced with the growing difficulties of achieving a paradigm shift in European migration policies, with more solidarity and respect for human rights, legal associations across Europe are networking to achieve legal and social change
(Originally posted by International on May 23, 2023)
A few years ago, at the end of an interview on Pact on migration and asylum presented by the European Commission, the Italian lawyer Anna Brambilla had launched a proposal: “Let’s found the Gtmaaf: a transnational group of mutual aid for frustrated lawyers”.
Halfway between a joke and a call for resistance, the idea of Brambilla, a member of theAssociation for Legal Studies on Immigration (Asgi), was born from an observation: in a European context that is increasingly hostile to migrants, faced with the increasingly rapid dismantling of asylum and foreigners’ rights, defending the rights of migrants had become an almost impossible mission, a job discredited by governments that bogeyed “activist lawyers”.
Since 2020, the situation has worsened, increasing the sense of helplessness among jurists and jurists working alongside asylum seekers and other people trying to regularize their presence on the territory of the European Union. From left to right, European governments strive to restrict the rights of non-European people by amending or ignoring laws, thereby trampling on their fundamental rights.
Join forces
No practice is more emblematic than that of pushback (or rejections). Although international law forbids returning asylum seekers to territories where their life or freedom could be threatened, this type of operation is now common in many member states, at both external borders (Bulgaria, Croatia, Spain, Greece, Hungary, the list is long) as internal to the EU (as happens on the Franco-Italian border).
Lithuania recently distinguished itself by passing legislation legalizing this practice, but most countries that carry out pushbacks do so by deliberately breaking the law.
In Lesvos, a Greek island about ten kilometers off the coast of Turkey, push-backs take place “almost every day, in some cases even several times a day, which the authorities systematically deny”, denounces Ozan Mirkan Balpetek, head of communication and ‘advocacy at the Legal center Lesvos (Lesbos Legal Centre, Lcl), a non-profit organization registered in Greece, which provides free legal assistance to migrant people.
The associations also focus on strategic litigation, with the aim of obtaining a broader change on a legal and social level
In Poland, the lawyer Aleksandra Pulchny, a partner of theAssociation for legal intervention of Warsaw, describes a similar situation: “Since August 2021, people who they arrive from Belarus they are transferred by Polish border guards to the Białowieża forest. The pushbacks continue because, despite the construction of the wall, people still manage to enter Polish territory. And even if we have obtained sentences issued by some courts, the border guards continue with the pushbacks”.
To strengthen legal and humanitarian assistance to people arriving at the border, the association has created, with other partners, the Grupa Granica network. “We are also part of the Migration consortium ”, explains Pulchny, “a network of Polish NGOs with which we take common positions and meet the authorities”. At the European level, the association has joined the Prab project, which brings together various organizations committed against pushback. “Joining forces with others is essential,” Pulchny assures.
Balpetek agrees, but underlines how important it is to build alliances that go beyond EU borders, as happened on the occasion of the seventh anniversary of the cooperation agreement between the EU and Turkey, denounced by the LCL with 73 partner. “The fact that people die in international waters or in one no man’s land (no man’s land) must naturally lead lawyers working in the EU to collaborate with their colleagues in neighboring countries”.
Balpetek mentions the collaboration born around the case of Barış Büyüksu, a Turkish citizen who died on October 22, 2022, shortly after being found on an inflatable dinghy off the Turkish city of Bodrum. According to some witnesses, the man had arrived on the Greek island of Kos, where he was reportedly detained and tortured by the Greek authorities before being rejected along with 14 other people. The autopsy report, recently released in Turkey, confirms the allegations of torture.
“The more pushbacks become a reality, the more we feel the need to collaborate with our colleagues in Turkey,” explains Balpetek, “because mainland Greece is 500 kilometers away from here, while now, as I speak, I see Turkey from my window L ‘Europe doesn’t end in Greece or Bulgaria”.
The other side of the coin
The three associations also focus on strategic litigation, bringing emblematic cases before national or international courts with the aim of obtaining a broader change on a legal and social level. “It can be useful, but there is a reverse side of the medal”, observes Brambilla, “because even when you win, the power reorganizes itself to frustrate this result. We must not let ourselves be discouraged but it is perhaps necessary to reconsider the dispute also by foreseeing what the possible response of the state authorities could be”.
Pulchny gives an example. Following some decisions of the European Court of Human Rights, which condemned Poland for the administrative detention of minors, “some Polish courts had changed their position”. Then, recently, the Kętrzyn Family Detention Center in the north of the country was converted into a facility for men only. “In our opinion, it could have happened because the court responsible for examining the cases of that center had become too ‘pro-children'”, explains the lawyer. “Today families with children are detained in another city, where the court is less attentive to this issue, and we have to start all over again.”
“The state doesn’t like submitting to the law,” observes Belgian lawyer Selma Benkhelifa, a member of the Progress lawyers network . Benkhelifa is the kind of lawyer who doesn’t hesitate to recite a poem by Bertolt Brecht (“Our defeats, you see / prove nothing, except / that we are too few / to fight against infamy”) when a judge decides to adjourn his client, a young Afghan educated in Belgium, in her country of origin. “When I started practicing in 2001, judges and lawyers often agreed on basic principles: the existence of human rights, the fact that a white person and a black person are equal. But they told us: ‘Your client is lying’, and we had to prove that she wasn’t lying. For some years now, even when we demonstrate that the person could die if they were sent back to their country of origin, the judge replies: ‘Patience’ ”.
Surrender to disbelief
Benkhelifa and his colleagues have got into the habit of no longer appearing alone “when we risk finding ourselves with a very hostile court: to support each other, but also because sometimes you happen to hear certain things… and you wonder if you’re dreaming”.
Recently, in Belgium, even the judges have had to surrender to disbelief. Despite over eight thousand convictions by the labor court and multiple injunctions by the European Court of Human Rights, the Belgian authorities continue to break the law by leaving thousands of asylum seekers on the streets, all of whom have the right to housing. According to Benkhelifa, this refusal to respect the decisions of justice marks a turning point: “I often say that foreigners are a test case for liberticidal policies. The erosion of fundamental rights begins with them because nobody cares. It’s a very dangerous precedent.”
Despite the seriousness of the challenges, from Warsaw to Brussels, from Lesvos to Milan, the will to fight remains intact, also thanks to the solidarity that grows between, and around, those who defend the rights of people on the move. “Of course, we feel frustration”, acknowledges Balpetek, “but what allows us to move forward is the enormous international solidarity”, such as that inspired by the case of the “Moria 6”, the six young Afghans sentenced, on the basis of questionable elements, to heavy prison sentences for the fire at the Moria camp on Lesvos in 2020 (the appeal process, which was due to start on 6 March 2023, has been postponed for a year). “This solidarity is important for us, but also for the people in prison”. Across the EU and beyond, relationships between those who resist – jurists, NGOs, activists – are therefore consolidating on a transnational scale.
Something is also changing among jurists themselves. “I think that in the face of the current situation, some colleagues are becoming radicalized”, observes Benkhelifa, “and recognize that we need to open the borders if we want to stop killing people”. Anna Brambilla talks about the need to change course and perspective, not to think exclusively in terms of asylum but to return to the original reflection on rights, freedom of movement and migration.
“Change must also be cultural and personal,” he says. Thus, since 2022, Asgi has offered its members meetings with migration specialists in areas other than law, to stimulate this change of perspective and avoid isolation and disciplinary division. “Furthermore, we cannot fail to observe how, even among ‘insiders’, knowledge is still essentially white and Western”, adds Brambilla. “As Rachele Borghi, professor of geography at the Université Paris-Sorbonne argues, it is necessary to ‘decolonise knowledge’”, and this also in the field of law.
“Of course I’m angry, but I haven’t lost hope, because I believe that the question of human rights and democracy is an eternal struggle,” concludes Benkhelifa. “The situation could get worse for a few more years, and then get better. One of the reasons I decided to become a lawyer was the admiration I felt for the French-Tunisian jurist Gisèle Halimi. During the Algerian war, she defended activists of the National Liberation Front who had received a death sentence. Halimi and her colleagues had the courage to carry on this battle because they believed in free Algeria. I believe in the equality of all human beings and in the opening of borders and this gives me the strength to continue this fight, even if for now it may seem utopian”.
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