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Dr Maja Grundler, Royal Holloway University of London and Professor Elspeth Guild, Queen Mary University of London

A recent contribution to this blog discussed the complex legal picture emerging in relation to the EU closing its borders to Russian nationals. While that contribution touched on fundamental rights issues, specifically the right to seek asylum, there are many other human rights provisions which are relevant when discussing the closing of borders and the rights of those who seek to cross them. EU Member States must indeed respect the prohibition of collective expulsion and refoulement, the prohibition of forced labour and human trafficking, as well as the right to liberty, the right to family life, and the right to non-discrimination.

The Prohibition of Collective Expulsion and Refoulement

According to Article 4 of Protocol 4 to the ECHR, the collective expulsion of aliens is prohibited. Even though the ECtHR has issued a number of questionable decisions on collective expulsion in recent years, justifying expulsion based on applicants allegedly not making use of regular border-crossing procedures (ND and NT; AA and Others), the fact remains that the prohibition of collective expulsion is violated where an applicant has no realistic chance of making a claim for international protection (Shahzad v Hungary, para 63). Thus, third-country nationals seeking protection at a border crossing point must be admitted for the purpose of assessing their protection claims and individuals already present in EU territory, too, must be given the opportunity to lodge a claim. An individual risk assessment must be conducted for each applicant to prevent refoulement.

As we have discussed elsewhere, individuals fleeing military service in Russia may be eligible for international protection under EU law and indeed, there is a strong presumption in favour of such protection. European human rights law, too, provides for protection for conscientious objectors. The ECtHR considers that conscientious objection can fall within the ambit of Article 9 ECHR (Bayatyan v Armenia) and that the consequences and penalties attached to refusing to perform military service can amount to violations of Article 3 ECHR (e.g. Ülke v Turkey; Savda v Turkey), Article 6(1) ECHR (Savda v Turkey), Article 9 ECHR (e.g. Bayatyan v Armenia; Erçep v Turkey; Savda v Turkey; Papavasilakis v Greece), and Article 14 ECHR in conjunction with Article 9 (Thlimmenos v Greece). Even though in its 2020 judgement in Dyagilev v Russia, the ECtHR found that Russia had an appropriate framework in place to assess requests for replacing military service with a civilian alternative, new cases must be assessed ex nunc, on the particular facts of each case and in light of any policy changes in the current context of Russia’s invasion of Ukraine. 

In addition to claims based on a refusal to perform military service, Russian nationals may succeed with protection claims for a number of other reasons. Members of the LGBTQ+ community in Russia, for example, experience ‘issues from workplace discrimination to the refusal of law enforcement to investigate homophobic crimes’. Further, the Russian government is known to target political dissidents and journalists. As such, each protection claim must be assessed on its own merits and the prohibition of refoulement must be respected. 

Trafficking Risks

As a result of border closures, individuals seeking to leave Russia are likely to increasingly rely on smugglers and traffickers. In its judgement in Rantsev v Cyprus and Russia, the ECtHR clarified that trafficking falls within the scope of Article 4 ECHR and that states have positive obligations under Article 4, in conjunction with the Council of Europe Convention on Action against Trafficking in Human Beings (ECAT). This includes an obligation to take operational measures to protect trafficked persons. Concretely, this means that where states are aware, or ought to be aware, that an individual is at real and immediate risk of being trafficked, they must take appropriate steps to remove the individual from that situation.

States must also ensure that trafficked persons are identified in a timely manner and that they receive assistance aimed at ensuring their physical, psychological and social recovery. It should also be noted that prosecuting trafficked persons for crimes committed in the context of their trafficking experience has been found to hinder that recovery and may therefore be at odds with states’ positive obligations under Article 4 ECHR (VCL and AN v The United Kingdom).

Detention

Detention of asylum seekers and other migrants is regulated in EU law through a number of instruments of the Common European Asylum System (CEAS) – the Dublin III Regulation, the Reception Conditions Directive and the Asylum Procedures Directive – as well as in the Return Directive. On the European level, Article 5 ECHR provides for the right to liberty and security, while authorising detention on specific grounds. In the immigration context, deprivation of liberty is permissible if it is ‘in accordance with a procedure prescribed by law’ and constitutes ‘the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition’ (ECHR Art 5(1)(f)). 

The ECtHR has clarified that ‘the detention of potential immigrants, including asylum-seekers, is capable of being compatible with Article 5 § 1 (f),’ including where the individual in question has already entered the state’s territory (Saadi v The United Kingdom, para 64). Nevertheless, EU law specifies that Member States shall not detain an individual for the sole reason that he or she is an applicant for international protection (see e.g Article 8(1) of the Reception Conditions Directive). We have discussed detention grounds, the appropriate conditions of detention, and procedural safeguards under EU law in detail elsewhere (Chapter 6). 

It is important to note that under both EU and European human rights law, confinement at so-called transit zones at the border can amount to a deprivation of liberty for the purpose of Article 5 ECHR (RR and Others v Hungary) and attracts the same procedural safeguards which are applicable in formal detention contexts under EU law (FMS and Others). As such, any EU Member States considering establishing transit zones where Russian nationals cross into EU territory should be aware that, according to the CJEU’s judgement in FMS, applicants for international protection can only be held in a transit zone for up to four weeks. Further, detention must be necessary and proportionate, must be ordered by an administrative authority, must be for as short a period of time as possible, and judicial review of the decision to detain must be available.

Family Life

Article 8 protects the right to respect for private and family life. The ECtHR has frequently been requested to adjudicate on the extent of this right where one (or more) family members are aliens seeking to join a family member who is a national or permanent resident of the destination state. It has held that there is a positive obligation on states to grant family reunification taking into account five substantive elements:

(1) the status in and ties with the host state of the alien and family members; 

(2) whether the alien’s family member had a precarious or secure status in the destination state when the family relationship was established; 

(3) whether there are insurmountable or major obstacles to the family living in the country of origin of the alien seeking family reunification; 

(4) whether there are children involved; 

(5) whether the family member in the destination state has sufficient independent and lasting income (not welfare benefits) to cover the cost of subsistence of the family (MA v Denmark). In that case, the ECtHR found that a waiting period of three years before family reunification would be contemplated for beneficiaries of international protection was unjustified on a fair-balance assessment, though a shorter waiting period might be justified depending on the circumstances. 

As regards Russians fleeing Russia (due to a refusal to perform military service or for other reasons) who have close family members in a Council of Europe host state, clearly requirement three is fulfilled: individuals fearing persecution or serious harm in Russia face insurmountable obstacles to living in Russia so that family reunification ought to be facilitated in the host state, taking into consideration the fair-balance approach required by the ECtHR.

In the assessment of any attempted entry of such a Russian national (or a visa application), this element should have particular importance when considering the application in the round. Where the family member resident in the destination state is a refugee or a beneficiary of international protection, the procedural requirements for family reunification with a Russian national must be sufficiently flexible to safeguard the right (Tanda-Muzinga v France). In every case there must be an individualised fair-balance assessment of the interest of family unity in light of the concrete situation of the persons concerned. Particular attention must be paid by the state authorities to the question of whether there is an actual prospect of return and to the likely duration of the obstacles to such a return, which in the case of this category of Russians depends on the length of the war and its outcome for their status (e.g. whether it is likely there will be an amnesty for those refusing to perform military service). 

Non-discrimination

Article 14 ECHR prohibits discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth, or other status in the enjoyment of a substantive right in the ECHR. Article 1 of Protocol 12 provides a general prohibition on discrimination regarding ECHR rights on the slightly wider grounds of sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth, or other status. 

According to the ECtHR, very weighty reasons have to be put forward regarding a difference in treatment based exclusively on the ground of nationality as compatible with the ECHR (Gaygusuz v Austria; Koua Poirrez v France; Andrejeva v Latvia). Where a substantive ECHR right is at stake, be it protection from torture, inhuman or degrading treatment (Article 3), the right to be from slavery and forced labour (including trafficking) (Article 4), the right to liberty (Article 5) family life (Article 8) or another right, if Russian nationals are treated differently from other persons, a question of discrimination arises. 

While there is no ECHR right permitting an alien to enter any country as such, where he or she does so in pursuance of the exercise of a right under the ECHR, then Article 14 is engaged. There are circumstances where the ECtHR has accepted that discrimination on the basis of nationality is consistent with Article 14 in conjunction with another right, most recently in Savickis and Others v Latvia – which diverges from previous case law – where a question of aggregation of periods of employment for the calculation of pension entitlements was at stake. However, the same ‘very weighty reasons’ test set out in Gaygusuz remains the standard against which there is a margin of appreciation available to the state. This is applicable to Russian nationals fleeing military service or for other reasons if treated differently from other aliens. 

Conclusion

Even though some EU states are attempting to exclude Russian nationals from entering their territory, all EU Member States must continue to uphold human rights at the border. This begins with ensuring that individuals seeking to enter are not pushed back, collectively expelled and subjected to refoulement. As such, EU Member States must facilitate Russian nationals’ access to the asylum procedure. They must also be attentive to trafficking risks and offer protection and assistance to trafficked persons. Further, any use of detention at the border must be in line with human rights law and respect procedural guarantees. In addition, Russian nationals may have a right to family reunification with family members residing in the EU/Europe. In all of these scenarios, Russians must not be treated differently because of their nationality. Thus, human rights law limits the extent to which EU Member States can prevent the entry of Russian nationals and regulates how they should be treated.