Rule of Law – Access to Remedy – Pushbacks – Schengen Information System – Mutual Trust
This article paints a less-known picture of pushbacks. One that does not take place in a remote forest of Eastern Europe but in a border guards office in Northern and Western Europe. The exchange of asylum refusal decisions and entry and residence bans between State Members of the Schengen area through the Schengen information system brings a systematic risk for individuals in the context of the rule of law crisis. Hungary will be taken as an example of a country recording pushbacks decisions in the Schengen information system. Digital pushback is the perpetuation of the infringement of EU law at the external border, amounting to a pushback, by another Member State because of information exchanged about a third-country national. This research investigates if the current legal standards, in the jurisprudence of the CJEU, on the protection of the right to an effective remedy, Article 47 of the charter of the EU, are adapted to prevent digital pushbacks.
The classic picture of pushbacks is that of a family or individuals being physically, and in some cases violently, prevented from entering the territory of a state. Media reports cover it extensively at the external borders of the European Union, in the Mediterranean Sea but also at land borders in the forests of Eastern Europe. Non-refoulement is the cornerstone of asylum law. In a broad sense, derived from human rights law, non-refoulement entails an absolute prohibition of returning anyone to a place where there might be a risk of torture, inhuman or degrading treatment or punishment. Article 18 of the Charter of the European Union guarantees the right to access asylum and respect for the 1951 Geneva Convention on Refugees. Member States of the European Union have agreed on an asylum policy with common standards for fair and efficient asylum procedures, notably in Article 78 of the Treaty on the Functioning of the European Union (TFEU). The establishment of common rules on border control and asylum applications supposes that any Member State will assess the demand for protection of an individual with the same respect for fundamental rights protection. Refusal decisions of asylum applications are exchanged between national administrative authorities dealing with migration and border control to be commonly enforced across the European Union.
In this piece, I paint another picture of pushbacks, not taking place in a remote forest of Eastern Europe but inside a border guards office in Northern Europe: a so-called digital pushback. The term means the perpetuation of the infringement of EU law at the external border, amounting to a pushback, by another Member State because of information exchanged about a third-country national. This definition follows from the remarks of advocate general Kokott in 2005 on the case Commission v. Spain (that will be described below). She noted a “structural shortcoming in the management of data” if the alert exchanged between Member States is illegal, “without further verification the recourse to the alert would perpetuate the infringement of EU law committed in the first place by the MS issuing the alert and this lead to a new breach of EU law”.
As noted by Iris Goldner Lang and Boldizsár Nagy, there is a new development in the enforcement of European law with the open defection from EU rules on asylum and migration by some Member States contesting the common values of the Union. Asylum policies are one of the many faces of the rule of law crisis in Europe, argues Lilian Tsourdi. The electoral objectives of some governments and the policy changes they carry are fueled by a restrictive policy on migration and asylum at odds with the harmonized European standards. Hungary is an illustrative example of this trend because of the well-documented reports of NGOs and several cases to the Court of Justice of the European Union (CJEU) concerning violations of the obligation of granting access to fair asylum procedures at the external border. Despite those well-known violations, Hungary keeps recording asylum refusal decisions and exchanging them with the other Schengen States. Therefore, there is a risk, for individuals, of being denied fair procedural standards for their asylum demands across the Schengen area.
This research investigates if the current legal standards, in the jurisprudence of the CJEU, on the protection of the right to an effective remedy, Article 47 of the Charter of the EU, can prevent digital pushbacks. The first part will describe the term “digital pushbacks”, taking Hungary’s border practices as an example of the current risk to individuals’ fundamental rights. The second part will question the jurisprudence of the CJEU on the right to an effective remedy for information-driven decision-making in asylum policies.
The Schengen entry ban and digital pushbacks recorded by Hungary
An entry ban is a key measure of European migration and asylum laws. It has been introduced in the Return Directive of 2008, as an administrative or judicial decision or act prohibiting entry into and stay on the territory of Schengen States for a specified period, accompanying a return decision. Third-country nationals’ personal information will be recorded in the Schengen Information System to be accessible to other Schengen national border and migration authorities (Article 24 of the Return Directive). The migration and border control authorities of a Member State can also record an entry and residence ban by assessing that the personal circumstances of the presence of that third-country national on its territory pose a threat to public policy, public security or national security (Article 24.1). The ban can last up to 5 years and it has a European dimension preventing entry and staying into all Member States of the European Union. The Schengen Information System is the most widely used, the oldest (26 March 1995) and the largest information sharing system for security and border management in Europe. Of interest for this study is the migration control function of the system. Border guards, migration and asylum authorities will consult the European information system with the personal information of a person. In case there is a match with an alert, the national authority can deny entry or stay to the concerned person. In some humanitarian cases, the national authorities can consult the other national authority that recorded the alert and afterwards decide to grant a residence permit. The keystone of the Schengen information system is mutual trust between the Member States, the presumption of compliance with rights’ obligation of another authority decision (see the work of Ermioni Xanthopoulou).
In Hungary, since 2015, the border, migration, security and asylum policies took a parallel development and distanced themselves from European standards. In 2018 the European Commission started an infringement procedure against Hungary before the European Court of Justice arguing that the country was violating the right of access to the asylum procedure enshrined in Article 6 of the Asylum Procedures Directive. The CJEU condemned Hungary in Commission v. Hungary (2020). The Luxembourg judges decided that the rule of first entry applied by Hungarian authorities as an inadmissibility ground for asylum applications did not respect European standards of procedural fairness, Article 47 of the Charter of the EU. Serbia, from where most asylum seekers transit before arriving at the Hungarian borders, is deemed a safe third country where those persons can seek protection. The CJEU condemned the lack of guarantee that asylum seekers would have their demand for protection adequately assessed in Serbia and that they won’t be returning to a state where they would be in danger. Those decisions of the CJEU and the subsequent litigation brought about the reforms of the Hungarian government, worsening the condition of access to asylum, clearly showing that asylum refusal decisions taken by Hungarian authorities since 2015 did not respect European asylum procedural standards.
Nonetheless, Hungary keeps registering entry and residence bans in the Schengen Information System, preventing individuals from seeking asylum in another Schengen country. This has been detailed in the report of the Asylum Information Database on Hungary of 2020 on page 29. According to the annual reports of the European Union Agency for the Operational Management of Large-Scale IT Systems in the Area of Freedom, Security and Justice, the authority managing the operation of the Schengen Information System, there have been approximately 6154 alerts on third-country nationals to be refused entry or stay registered in the last three years.
Judicial review of digital pushbacks
The Schengen information system regulation has taken into account the necessity to monitor the exchange of alerts between national administrative authorities with the creation of SIRENE offices (which stands for Supplementary Information Request at the National Entries). National offices record alerts into the system and assesses the quality of alerts received by other Member States. The State that registered the alert in the SIS is responsible for ensuring that the data entered into the Schengen Information System is accurate, up-to-date and lawful (Article 44, Regulation (UE) 2018/1861). In case there is a doubt about the quality (the lawfulness or accuracy) of an alert, the SIRENE office can request supplementary information from the state that registered the alert. SIRENE offices are part of law enforcement authorities. A parallel can be made with the analysis of Laura Dreschler on the verification of the respect for fundamental rights protection by a law enforcement authority in the context of international data transfer. She established that because it is done secretly between law enforcement authorities it is not transparent and creates legal uncertainty for individuals’ fundamental rights protection.
In 2006, the CJEU was called on by the European Commission to decide whether border guards could automatically refuse entry after finding a match in the Schengen information system with alerts registered by another Member State (case C-503/03). Two persons were refused entry at the Spanish border, despite being family members of European citizens, because they were registered in the SIS. The CJEU decided that border guards should not automatically refuse entry but ask for sufficient information from the authority having registered the alert to do an individual and proportional assessment. Every member state has discretion in deciding who should be allowed on its territory, as far as it respects European law, including fundamental rights protection. Individuals contesting a decision informed by an alert stored in the SIS are faced with the limited jurisdiction of national courts. The principle of territoriality prevents a court from reviewing the reasoning of another national administration. In the case of Moon, an individual was contesting in several countries a decision of refusal of entry motivated by an entry and residence ban registered in the SIS by Germany. In most cases, the national Court refused to apply a transnational review of the correct application of European law by the German authority, precluding Moon from obtaining an effective remedy.
The most recent jurisprudence of the CJEU concerning data-driven decision-making in the migration context is still in its infancy. Of interest, the recent case R.N.N.S. and K.A. concerned the consultation procedure for a visa refusal. Before granting a short-term visa, national administrative authorities will consult the other Member States that can object to the entry of the person into the Schengen area.
The Luxembourg judges made clear the minimal information required to be given to the applicant to respect its right to an effective remedy. It required the Member State taking the refusal decision to substantiate it with: “the specific ground for refusal based on that objection, accompanied, where appropriate, by the essence of the reasons for that objection”. To further contest the reason for the objection, the individual must be informed about the national authority at the origin of the information where they can launch a judicial proceeding. In the context of digital pushbacks originating from Hungary, this would mean for the applicant to contest the asylum refusal in Hungary. It leads to obvious problems, such as the fact that the person prevented from entry into the Hungarian territory will not be able to be present at the trial. Also, there have been reports of serious limitations in the access to justice of third-country nationals as well as attacks on the judicial system’s independence in general.
Preliminary questions to the CJEU in C-528/21: an opportunity to affirm the prohibition of digital pushbacks?
The serious problem in the respect for EU law as well as the limits of national judicial authorities are very apparent in a recent case of the Budapest High Court that referred preliminary questions to the Court of Justice of the European Union in 2021 in M.D., C-528/21, still pending. After having lived in Hungary for sixteen years, a father of a two-year-old child was denied his residence permit. He was ordered to leave the country based on the opinion of an administrative authority. The applicant was deemed to represent a real, immediate and serious threat to security because of a previous conviction for offering assistance to illegal migrants to cross the border without permission. The entry and residence ban was promptly registered in the Schengen Information System II.
The Budapest High Court referred preliminary questions to the CJEU, asking whether the protection of the right to an effective remedy, under Article 47 of the Charter, should guarantee the judicial review of the reason for the decision and a consideration of the personal circumstances. Moreover, the Hungarian authorities refused to comply with a final judgement ordering immediate judicial protection against the enforcement of the entry ban because its description was already entered into the Schengen Information System. The consequence of this entry ban barred the applicant from exercising his right to appeal or to enter Hungary. The Budapest High Court asked whether this practice was violating Article 13 of the Return Directive and the right to a fair trial enshrined in Article 47 of the Charter.
The Budapest High Court has taken a courageous stand in asking preliminary questions to the CJEU on such a contentious subject. The policy of Victor Orban’s government to prevent contestation of national policies threaten the independence of judges. The Hungarian Constitutional Court declared recently a request to the European Court of Justice for advice on the interpretation of European laws unlawful. The judge was placed under a disciplinary process, even though the CJEU clearly stated, in IS, C-564/19 (2021), that judges cannot be forbidden from seeking guidance from the Court: “EU law precludes disciplinary proceedings from being brought against a national judge on the ground that he or she has referred for a preliminary ruling to the Court of Justice.” The mere decision of the Hungarian government to take action against a judge asking for an interpretation of European laws has a serious deterrence effect on the judiciary in the country.
One could hope that the CJEU in the case M.D. will decide that as long as Hungary is not respecting the protection of the right of an effective remedy and a fair trial, Article 47 of the Charter as well as individuals’ protection in the return directive, the country should be banned from entering alerts in the Schengen information system. This would however be a strong stand from the Court deviating from the questions asked by the Budapest Court.
As for now, the Luxembourg judges have been careful not to decide on a blanket ban on national authorities’ decisions in cases of violation of the rule of law. There have been two major types of cases decided by the CJEU regarding the exchange of information between Member States and the consequences for individuals’ fundamental rights. In the context of the Dublin regulation, the questions to the Court are about returning asylum seekers to a country where they would suffer from fundamental rights violations because of the condition of reception, as well as the risk for the individual to be sent back to a country where there is a real risk of being subjected to persecution, torture, inhuman or degrading treatment or any other human rights violation. The Court recognized that in the circumstances of serious deficiency in the other Member State the person should not be returned. (N.S., 2011; see the work of Xanthopoulou on this topic)
The CJEU decided on another line of cases concerning the impact of the rule of law backsliding in some countries for a person to be returned because of a European arrest warrant. The individual pending trial and, in some cases, detention in the other Member State is at risk because of the lack of independence of the judiciary. The Luxembourg judges decided that the national court could assess whether the individual situation of a person warrants the suspension of their return (Aranyosi and Căldăraru, 2016). However, despite rule of law problems that keep strengthening in some European countries, the CJEU does not allow for a blanket ban on the enforcement of all administrative authority decisions coming from those countries.
B. Conclusive thoughts on human rights responsibility from EU Institutions
There are digital pushbacks recorded in the Schengen information system and there is a risk that the Member States enforce those decisions perpetuating rule of law violations at their borders. Individuals contesting in court data-driven decision-making are faced with the territorial jurisdictional limits of national courts. The CJEU has built a jurisprudence meant to protect individuals but its impact is ultimately limited by the lack of access to justice for those persons (as illustrated at §§51-52 of R.N.N.S. and K.A.). Indeed, third-country nationals contesting at the borders the enforcement of a digital pushback can only contest the reasons for the decision in the country that registered the alert. As explained above the rule of law problem in Hungary prevents asylum seekers from obtaining an effective remedy.
The upcoming case of M.D. will, most likely, be an example of the limited impact of the Court to redress current fundamental rights violations. The Court can condemn Hungary for its lack of fairness in the procedure by requesting the authorities to respect the Court’s decision to allow the individual back into the country for its hearing. Nonetheless, the Court decision will only consider the individual case whereas there are a large number of digital pushbacks stored in the Schengen information system. In his newly published book, Michal Krajewski has suggested that extrajudicial authority could compensate for the shortcoming of European judicial review, in particular concerning technically or scientifically complex legal acts.
The European Commission and EU Lisa are the authority responsible for managing the operation of the Schengen information system. The European Commission, specifically the Directorate General for Migration and Home Affairs (DG HOME), has overall responsibility for the development and funding of the information systems. Since 2012, the Commission has tasked the European Union Agency for the Operational Management of Large-Scale Information systems in the Area of Freedom, Security and Justice (“eu-LISA”) with storing data and maintaining SIS II, Eurodac, and VIS (Court of Auditors, Special Report No 20/2019) p. 14).
Respect for European law, and fundamental rights protection in the Charter, are conditions for the use of this system. Before being allowed to be part of the Schengen information systems, Member States had to set up a national data protection framework in accordance with European standards of protection (Article 117 of the Convention on the implementation of the Schengen Agreement). Melanie Fink’s research on human rights positive obligations derived from Article 53(3) of the EU charter showed that there is a responsibility for omissions. When the violation of a fundamental right is known from an institutional actor, for example, Frontex in the research of Fink, human rights responsibility forces the institution to act to prevent an individual from having their rights violated. In the context of SIS operation, it would mean that the European Commission and EU Lisa would be responsible for digital pushbacks if they do not act to prevent them from being enforced.
The Schengen Evaluation and Monitoring Mechanism (SEMM) has been created to review the respect by Schengen states of European law in their operations at the borders, including in their SIS operations. SEMM organises visits to the country and publishes a confidential report addressed to the country, the European Commission and the Council of the European Union with recommendations and observations.
One of the recommendations for action discussed for the reform of the SEMM by the European Parliament has been the automatic triggering of the infringement procedure by the Commission in case of serious deficiency at the border. Another measure that could be taken is the decision of EU Lisa to stop its operation on managing the quality of the SIS data of Hungary. In 2021, Frontex pulled back its operation from Hungary because of fundamental rights violations at the borders. In case, EU Lisa stopped reviewing the quality of data from Hungary, it should mean, at minimum, that all alerts stored by Hungary would be flagged for not having the required standards of quality, with the further consequence to force those Member States that want to inform their decision at the border with Hungarian alert to conduct an individual assessment of the proportionality of using such an alert.
C. Suggested Readings and Selected Bibliography:
CJEU, Request for a preliminary ruling, 26 August 2021, M.D., C-528/21.
CJEU, 23 November 2021, IS, C‑564/19, EU:C:2021:949.
CJEU (GC), 17 December 2020, European Commission v Hungary, C-808/18, EU:C:2020:1029.
CJEU, 24 November 2020, RNNS and KA, Joined cases C-225/19 and C-226/19, EU:C:2020:951.
CJEU (GC), 21 December 2011, N. S., C-411/10, EU:C:2011:865.
CJEU(GC), 31 January 2006, Commission of the European Communities v Kingdom of Spain, C-503/03, EU:C:2006:74.
E. Xanthopoulou (2020) Fundamental Rights and Mutual Recognition in the Area of Freedom, Security and Justice: A Role for Proportionality, Bloomsbury Publishing, Modern Studies in European Law, Hart Publishing.
E. Brouwer (2021) Schengen and the Administration of Exclusion: Legal Remedies Caught in between Entry Bans, Risk Assessment and Artificial Intelligence, European Journal of Migration and Law, volume 23, pp. 485 – 507.
E. Brouwer (2008) The Other Side of Moon-The Schengen Information System and Human Rights: A Task for National Courts, Centre for European Policy Studies (CEPS) Working Document, Volume 288.
I. Goldner Lang and B. Nagy (2021) External Border Control Techniques in the EU as a Challenge to the Principle of Non-Refoulement, European Constitutional Law Review, 1-29.
I. Majcher, (2020) The Schengen-wide entry ban: how are non-citizens’ personal data protected?, Journal of Ethic and Migration Studies, 48 (8), 1944-1960.
G. Matevžič (Hungarian Helsinki Committee) with substantive contributions from J. Białas (Helsinki Foundation for Human Rights), N. Charalambidou (Kisa) and Z. Barcza-Szabó (Hungarian Helsinki Committee) within the framework of The Right to Know project (2021) The Right to Know – Comparative Report on Access to Classified Data in National Security Immigration Cases in Cyprus, Hungary and Poland.
N. Vavoula (2022) Immigration and Privacy in the Law of the European Union: the case of information systems, Brill Publishing, Immigration and Asylum Law and Policy in Europe, Volume: 51.
To cite this contribution: R. Lanneau, “Digital pushbacks at European borders: an ongoing threat to the rule of law in the Schengen area”, Cahiers de l’EDEM, Special Issue, August 2022.
 The calculation of the number of alerts on third-country nationals entry and residence bans registered by Hungary in the SIS over three years has been made by dividing the annual number of alerts on persons registered in the country (2) and the overall percentage of Article 24 alert in the European Union (2.1). This is an approximate calculation since there is no percentage of Article 24 alert for Hungary. The reason is that there is no other public data available.