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Jurisprudence updates

11 February 2025

Updates on jurisprudence relevant to the externalisation of border and immigration controls. Provided by the Refugee Law Initiative Working Group on Externalisation.

Contents

• Extraterritorial detention and state responsibility: UN Human Rights Committee decisions in M.I. and Nabhari by Izabella Majcher
• European Court of Human Rights sets high bar for evidence in alleged pushback cases against Greece by Ayşe Dicle Ergin
• Challenging border externalisation: evidentiary bias and procedural violations in M.A. and Z.R. v. Cyprus by Vicky Kapogianni

Extraterritorial detention and state responsibility: UN Human Rights Committee decisions in M.I. and Nabhari 

Keywords: Immigration detention, Extraterritorial detention, Offshore processing; Jurisdiction

In two landmark decisions against Australia, the UN Human Rights Committee reaffirmed that states remain responsible under the International Covenant on Civil and Political Rights (ICCPR) for the treatment of individuals detained in offshore processing facilities, provided they exercise effective control over those operations. The rulings concerned Australia’s transfer of asylum seekers to the Regional Processing Centre (RPC) in Nauru under two Memoranda of Understanding between the two countries, which allowed Australia to transfer to Nauru asylum seekers arriving by sea.

The M.I. et al. case involved 24 unaccompanied children from Iraq, Iran, Afghanistan, Pakistan, Sri Lanka, and Myanmar, who had fled persecution and were intercepted at sea by Australian authorities. They were initially transferred to Christmas Island (an Australian territory) and subsequently detained at the RPC in Nauru. Similarly, in the Nabhari case, an Iranian asylum seeker who arrived on Christmas Island with her relatives was transferred to Nauru and detained at the RPC.

The Committee relied on the principle of "power or effective control" to determine jurisdiction. Specifically, it found that Australia exercised significant control over the RPC’s operation and management. Australia had arranged for the construction and establishment of the centre in Nauru and directed or oversaw its operation and management through financing, hiring private and other entities (including security, cleaning, catering, recreational and educational services) which were accountable to Australia. As a result, individuals detained at the RPC were under Australia’s jurisdiction, and their detention was attributable to Australia.

In both cases, the detention was found to violate Article 9(1) of the ICCPR, which protects the right to liberty, as Australia failed to provide adequate justification for the detention.

The judgments are a timely reminder that effective control implies responsibility and outsourcing of operations does not absolve states of accountability under the ICCPR. The decisions are relevant to other offshore processing practices, including detention, most recently attempted under the Italy- Albania deal.

Izabella Majcher

European Court of Human Rights sets high bar for evidence in alleged pushback cases against Greece

Keywords: ECtHR, push back, evidence, use of technology, risk of ill treatment

On 7 January 2025, the European Court of Human Rights (ECtHR) ruled on two significant cases - A.R.E. v. Greece and G.R.J. v. Greece - confirming that Greece has systematically pushed back third-country nationals from its territory to Türkiye.

In A.R.E. v. Greece, the ECtHR found that Greece had removed a Turkish national without assessing the risk of ill-treatment the applicant might face upon return to Türkiye. The Court further ruled that Greek authorities unlawfully detained the applicant prior to the pushback, an act described as a kind of temporary enforced disappearance. Moreover, the Greek asylum system was deemed ineffective in providing remedies for these violations. Consequently, the Court determined that Greece had breached multiple provisions of the European Convention on Human Rights, including: the prohibition of inhuman and degrading treatment; the right to liberty and security; and the right to an effective remedy.

In G.R.J. v. Greece, the case involved an Afghan unaccompanied minor (aged 15) fleeing persecution by the Taliban. The applicant alleged that he was forcibly removed from the Samos refugee camp in Vathy and placed on an inflatable raft by Greek coastguard officers, despite his stated intention to apply for international protection. The ECtHR acknowledged the challenges of gathering evidence regarding clandestine state activities but ultimately deemed the case inadmissible. The decision was based on inconsistencies in the applicant’s statements, coupled with insufficient evidence to prove his presence in Greece and subsequent pushback. Audio-visual material, including photographs and videos, failed to meet the evidentiary threshold required by the Court.

These cases underscore the ECtHR's heightened evidentiary expectations for pushback victims to demonstrate their presence in the state’s territory. In A.R.E. v. Greece, technological evidence, such as location data sent via a mobile phone, played a crucial role in satisfying this requirement. Conversely, in G.R.J. v. Greece, the absence of consistent testimony undermined the credibility of audio-visual material in the file, thus the applicant’s claims. Whether the ECtHR’s approach to such cases will change remains to be seen.

Ayşe Dicle Ergin

Challenging border externalisation: evidentiary bias and procedural violations in M.A. and Z.R. v. Cyprus

Keywords: Pushbacks, state accountability, evidentiary challenges, procedural violations, Lebanon, externalisation

On 8 January 2025, the European Court of Human Rights (ECtHR) finalised its judgment on M.A. and Z.R. v. Cyprus. At its core, the case reveals the emerging tension between formal, state-sanctioned asylum procedures and the informal practices of externalisation, where states effectively outsource their border control functions to third countries, often without due regard for international legal obligations. In this case, Cyprus was found in violation of the European Convention on Human Rights (ECHR) for unlawfully expelling two Syrian nationals to Lebanon without processing their asylum claims, thereby exposing the increasing reliance on extraterritorial measures such as pushbacks, which states use to evade accountability and circumvent international obligations under both refugee and human rights law.

The Court’s reasoning drew on earlier landmark decisions, notably Ilias and Ahmed v. Hungary and Hirsi Jamaa and Others v. Italy, reaffirming that a state cannot abdicate its responsibility for the protection of individuals by invoking and relying on bilateral agreements, as doing so may undermine the protection of individuals from potential harm. Importantly, it highlighted that Cyprus failed to conduct an independent assessment of the risks the applicants might face upon return to Lebanon, despite the well-documented shortcomings in Lebanon’s asylum system. These failures, the ECtHR argued, demonstrate that Cyprus violated its procedural obligations under Article 3 of the Convention and Article 4 of Protocol No. 4 on account of the applicant’s return to Lebanon.

Additionally, the case highlights broader challenges associated with the ECtHR’s reliance on state-produced evidence. Of 28 applications documenting similar pushbacks, only M.A. and Z.R. was registered by the Court. This is significant because the ECtHR often dismisses cases based on testimonies from pushback survivors or civil society actors, which it deems insufficient in the absence of state-backed evidence. This evidentiary bias raises concerns about the Court’s ability to adequately address violations, particularly in the context of externalisation policies where documentation is frequently suppressed.

This case highlights the critical need for the ECtHR to interrogate its evidentiary assumptions and adapt its procedures to ensure greater recognition and redress for those subjected to border violence. Furthermore, it illustrates the risk of the Court inadvertently legitimising the externalisation of border governance through so-called ‘operational partnerships’ with purportedly ‘reliable’ third countries.

Vicky Kapogianni