Pushbacks as a Breach of Fundamental Human Rights: A Convergence of the Approaches of European Courts: Reflections on the Developments in the Case Law of the CJEU and the ECtHR

Recent case law from the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR) has declared practices involving the pushback of individuals, including those seeking asylum, to be illegal. This is a significant and positive development. This article examines the approaches taken in key cases before these two courts, comparing and reflecting on how they have framed pushbacks as a violation of fundamental rights and the procedural obligations that States have under international and European law. While both courts have ruled these practices to be in breach of applicable laws, their framing of the violations has differed. The ECtHR has focused on the fundamental rights that are threatened when individuals are pushed back across borders. In contrast, the CJEU has previously concentrated on the violations of procedural rules that occur during the forcible return of individuals. However, in the recent case of MA, the CJEU acknowledged that the breach of procedural rules inherent in pushbacks undermines access to effective protection, resulting in a denial of access to asylum. This situation constitutes a breach of Article 18 of the Charter of Fundamental Rights. This important development indicates a convergence in the approaches of the two courts, both condemning pushbacks as violations of individual rights and highlighting the necessity of the right to enter as an integral part of the effective right to asylum.