EU law protects fundamental rights, including the principle of non-refoulement. However, these standards are challenged by national practices, which range from rigid pushbacks to subtler techniques which exploit legal uncertainties by relying on 'safe country' concepts. The EU institutions’ acceptance of such practices further undermines the practical viability of the principle of non-refoulement. These developments call into question EU’s values and are steadily modifying its constitutional fabric. The Migration Pact could further compromise Member States’ duty to ensure meaningful protection of refugees. This contribution shows that there is a substantive change in the Member States’ border and admission to procedure practices, which range from the exploitation of legal uncertainties to direct breaches of human rights obligations, including the principle of non-refoulement. It will be suggested that this change is widening the gap between the professed legal principle and practice.
This paper analyzes the constitutionality of two recent high-profile judgements of the Supreme Court of Canada (SCC), the 2019 Canada (Public Safety and Emergency Preparedness) v. Chhina, that addresses the human rights issues of the indefinite detention of forced migrants, and the Federal Court of Appeal (FCA), 2021 Canada (Citizenship and Immigration) v. Canada Council for Refugees, that decided the appeal of the 2004 Canada-United States Safe Third Country Agreement (STCA), that considers both as “safe countries” for refugees and requires asylum seekers to make their claims for refugee protection in the first country of their arrival. Critical legal analyses on the core elements of each of these contentious judgements will yield assessments of their constitutional validity.
This paper examines the links between the state of asylum provision in the EU and challenges to the rule of law. Recent years have seen the EU plagued by populism, racism and xenophobia. This has been linked with challenges to the rule of law in some Member States. Asylum provision and refugee protection is another urgent challenge facing the EU. Three main problems have emerged. First, a persistent implementation gap has eroded mutual trust between Member States. Second, protection obligations have often been deflected, with the EU institutionalising containment and externalisation in its relations with non – EU States. Thirdly, fundamental rights violations in some Member States have been characterised as systemic, or reaching the level of a humanitarian emergency. To what extent can the implementation gap, fundamental rights violations, and the state of asylum provision in the EU generally be considered one of the many ‘faces’ of rule of law backsliding?
In recent years, the majority of those deported from the United States are sent back to their home countries through summary procedures. Bypassing the immigration court system, these summary removals are improperly punitive, deny due process, and violate fundamental non-refoulement obligations under U.S. and international law. This talk will provide an overview of recent policy changes that have led to an increase in fast-track removals, the legal framework for these removals, and case studies that highlight the impact of these summary procedures on asylum seekers.