In recent years, pushbacks, the
practice of forcibly returning asylum seekers without access to legal
procedures, have become a central issue in European border politics. On 12
February 2025, the European Court of Human Rights (ECtHR or Court) Grand
Chamber heard three landmark pushback cases at the Belarus border, including H.M.M.
and Others v Latvia
and C.O.C.G.
and Others v. Lithuania,
among over 30 pushback-related applications pending before the Court. Their
context has been further shaped by Lithuania’s recent submission to the International Court of
Justice (ICJ), accusing Belarus of violating its obligations under the UN
Protocol against the Smuggling of Migrants. The hearings illuminate evolving
interpretations of pushback practices and their implications beyond the individual
claims under Article 3 and Article 4 of Protocol No. 4 of the European
Convention of Human Rights (ECHR or Convention). The respondent states framed
their arguments within the broader geopolitical narrative of a 'hybrid war'
allegedly orchestrated by Belarus to justify an unwritten exception to absolute
rights, despite the Court’s established rejection of any balancing in such
cases. This submission examines how the responding states, namely Latvia and
Lithuania, framed their arguments not only in legal terms but also through the lens
of deservingness. Using the concept of promising victimhood, it examines two
key courtroom rationales: vulnerability and assimilability, paradoxical
criteria demanding asylum seekers be both vulnerable and assimilable. It shows
how this deservingness logic, once mainly political, is now entering legal
reasoning before the ECtHR.
The EU-Belarus Migration Standoff
Tensions at the EU-Belarus border began
in the summer of 2021, when Belarus eased visa rules for nationals,
predominantly from Middle Eastern and African countries, and, in coordination
with local travel agencies, facilitated their arrival in Minsk. It also stopped
preventing irregular crossings into the EU. In response, Latvia and Lithuania
alongside Poland swiftly amended
domestic laws to restrict asylum access for irregular arrivals and allow
summary returns without individual assessments. By mid-August 2021, Latvia and
Lithuania saw a sharp spike in entries and detentions: Latvia registered 386 asylum applications in a single month, more than the
total of 2018
(185) and 2019
(195) combined.. Lithuania reported over 4,000 irregular entries.
Respondent States’ Legal Arguments
and the Hybrid Warfare Narrative
In H.M.M.
and Others v. Latvia,
26 Iraqi Kurds, including children, reported being held in a tent with
inadequate conditions, subjected to abuse, pushbacks and pressured into
agreeing to return to Iraq. In C.O.C.G.
and Others v. Lithuania,
four Cuban nationals were repeatedly expelled by Lithuanian border guards to
remote areas and pushed back by Belarusian forces. Despite these cycles, they
were eventually granted international protection in Lithuania. A central
argument in the respondent governments’ submissions was that the situation at
the Belarus border amounted to a form of hybrid warfare with Poland citing
efforts to ‘undermine regional security’ and Lithuania accusing
Belarus of weaponizing Convention to undermine democracy.
These attempts, often coupled with
an overly expansive reading of the Grand Chamber’s judgment in N.D. and N.T. v. Spain which introduced a two-tier test
under Article 4 of Protocol No. 4 ECHR, permitting exceptions to the
prohibition on collective expulsions as well as Ždanoka
v. Latvia (No. 2), in which the Court acknowledged that where the Court recognised that
it ‘does not operate in a vacuum’ (para. 55).
The respondent states asked the Court to consider
the exceptional nature of the situation, advocating for a broad margin of
appreciation in interpreting both the non-refoulement principle guaranteed
under Article 3 ECHR and Article 4 of Protocol No. 4. They effectively urged
the Court to move away from its established case law affirming the absolute
nature of these protections, invoking security concerns without offering
substantive legal arguments, despite repeated questions from the bench.
The Paradox of Promising Victimhood in Latvia and Lithuania’s Legal Reasoning
Originally
developed by Chauvin
and Garcés-Mascareñas hers the concept of promising victimhood captures how migrants are
selectively deemed deserving. The ‘ideal asylum seeker’ must meet contradictory
demands: they must show vulnerability from exceptional displacement while also
proving assimilability. Welfens extends this with three tensions: cultural,
political, and economic. This concept provides a useful framework to analyse
how its two central rationales manifest in the arguments of Latvia and
Lithuania before the Court.
Applicants in both the Latvian and
Lithuanian cases fall into multiple vulnerability categories: they are asylum
seekers subjected to pushbacks, placed under exclusive state control, and in
some instances, have faced or undergone removal. The Latvian case also involves
minors, triggering an additional layer of heightened vulnerability. However, Latvia
and Lithuania challenged applicants’ vulnerability by framing them as
autonomous, downplaying harm from pushbacks and questioning their need for
protection based on origin, means, or minor infractions.
1. Vulnerability related to migration
A key factor enabling the Court’s
assertiveness under Article 3 is the vulnerability of applicants. M.S.S
v. Belgium and Greece cemented
the
recognition of asylum seekers as particularly vulnerable under Article 3 (paras 232 and 251). Even when not
explicitly invoked, vulnerability shapes the Court’s reasoning, including in
recent ‘Greek hotspots’ (see M.A.
and others v. Greece). Consequently,
it is logical that the states attempt to construct a line of argumentation that
challenges this vulnerability.
Beyond overlooking vulnerabilities linked to migration, both
states disregarded the risk of ill-treatment upon
return, asserting Belarus was safe
without substantiating this claim. The Council of Europe (CoE) Commissioner for
Human Rights, in a third-party intervention,
noted the absence of a functioning asylum system in Belarus. According to
applicants, Latvian officials were aware
of the abuses, with the Interior Minister calling Belarusian practices
‘inhumane,’ and the Defence Minister acknowledging violence and forced border
crossings. Lithuania too, according to submissions, was
aware of systemic violations, engaging potential Article 4 obligations.
While applicants typically must show individualized risk
under Article 3 non-refoulement, vulnerability can lower this threshold. Particularly
in extra-Dublin returns, the Court has found that members of persecuted ethnic,
religious, or political groups face a real risk in non-EU or non-CoE countries
(compare, for instance, Hirsi Jamaa and Others v Italy and Savriddin Dzhurayev v Russia).
2. Vulnerability
related to exclusive state control
All applicants were apprehended and
subjected to measures amounting to deprivation of liberty, often for return
purposes and in remote or makeshift border zones.Under Article 3 jurisprudence,
such exclusive state control is a key source of vulnerability, particularly in
the context of deprivation of liberty (see Rezmiveș
and Others v Romania, para 72). Despite this, both Latvia
and Lithuania denied any additional vulnerability stemming from their own
conduct. In Latvia, applicants, including families, reportedly faced repeated violence under Order No. 518, including electroshocks and
beatings, as well as inadequate shelter, food, and forced separations. In
Lithuania, they reportedly endured
at least six pushbacks into remote forests, often 10 hours from official
crossings, spending over two weeks in snow, developing frostbite, injuries, and
PTSD before being detained. The CoE Commissioner for Human Rights explicitly noted
before the Court that such pushbacks placed asylum seekers in ‘great vulnerability.’
3. Vulnerability of minors
In
the Latvia case, the applicants included children. Minor asylum seekers’
vulnerability is especially influential under Article 3 .Latvia appeared to
disregard the compounded vulnerability caused by its actions toward minor
asylum seekers. Minors as young as 10 months were reported effectively deprived
of liberty, a fact Latvia denied, claiming children stayed with families upon
parental request. Judge Mits underscored
the distinction between the situation of detained children and detained adults,
raising the question of the alternatives to placing children with adults. In
Latvia’s case, the pushback conditions, already harmful to adults, reportedly posed
an even greater risk to minors, whose early developmental stage makes them
especially vulnerable.
In
Tarakhel
v. Switzerland, the Court held that extreme vulnerability overrides immigration
status and that conditions causing stress or trauma to children may violate
Article 3 (para 99). Moreover, importantly for the case in question, even
accompanied children were considered extremely vulnerable (paras 99, 119). In A.B.
and Others v France,
the Court
emphasized that child immigration detention must be a last resort (paras
110-115).
4. Assimilability:
cultural, political, and economic considerations
Having
shown how states sought to undermine vulnerability, I now turn to the second
rationale of the promising victimhood framework: assimilability. This concerns
not only doubts about the ‘legitimacy’ of protection claims, such as the
argument that applicants knowingly crossed the border despite ineligibility,
but also broader cultural, political, and economic factors shaping who is seen
as deserving of protection.
Lithuania’s
response
to claims of discrimination against Cuban nationals compared to Ukrainians
warrants closer scrutiny. The government argues the cases are not comparable,
as Ukrainians fall under the EU’s Temporary Protection Directive, due to the ongoing
military conflict, whereas Cuban applicants are not fleeing ‘from a military
aggression’. However, this framing ignores context: the Cuban applicants fled
persecution after the July 2021 protests in Cuba, reportedly the largest since the 1994 Maleconazo, accompanied by serious
human rights violations that forced thousands to flee the country. Furthermore,
after escaping to Russia, they reportedly faced renewed threats, including
forced conscription into its war in Ukraine.
This
challenges Lithuania’s narrow distinction based solely on armed conflict. But
is it truly about armed conflict? Viewed through the lens of promising
victimhood, it reflects the second rationale of deservingness: assimilability, shaped
not only by culture, but also by ethnic and political markers, as Welfens
and Abdelaaty
note.
As
a CBS reporter in Kyiv said , ‘This isn’t a place
like Iraq or Afghanistan...’, while an Al Jazeera anchor remarked, ‘We are talking about Europeans leaving in
cars that look like ours to save their lives.’ These statements are far from
tangential. Domestic publics tend to empathize with refugees who share a common
identity, while racialized ‘others’ are seen as threats. Policymakers in
democracies often align refugee policy with these sentiments, especially when
admitting ‘kin’ is seen as politically safer. What crystallizes here is the
underlying assumption that the suffering of Europeans is more urgent and more
deserving of empathy than that of racialized ‘others’ escaping distant conflicts.
This logic is evident in Lithuania’s
stance, which overlooks Cuba’s repressive history and the applicants’ multilayered
vulnerability, such as persecution in Russia and the risk of forced
conscription into its war against Ukraine, a reality
faced by many
migrants there. Despite the applicant’s arduous journey and likely
trauma, they are portrayed as undeserving simply because they are not fleeing
an armed conflict, framing applicants’ actions as a matter of personal choice.Another key assimilation
argument is economic: migrants are often seen as voluntary economic actors
rather than asylum seekers, making them less deserving of protection. Latvia highlighted
applicants’ extended stays in Belarus, implying a lack of direct persecution,
while Lithuania, taking this argument further, cited
evidence of applicants previously living and working in countries like Russia
and Armenia. Lithuania also focused on applicants’ financial means, citing
‘pricey flights’ and ‘taxi service’, to suggest agency, equating economic
autonomy with ‘undeservingness’ and undermining their vulnerability.
New
arguments surfaced during the final stage of the hearings when Lithuania asserted
that it had reviewed the applicants’ backgrounds and found administrative
offences such as small thefts or travelling without tickets, infractions that
were invoked to suggest a lack of worthiness, even though they bear no
relevance to protection under international law. In this framework, Lithuania
weaponizes economic autonomy. In doing so, it imposes a paradox: the ideal
asylum seeker must be vulnerable enough to require protection, yet not so
resourceful as to appear to have agency.
Conclusion
This analysis revealed the paradox at the heart
of ‘promising victimhood,’ a paradox mirrored in the states' line of argumentation:
asylum seekers are expected to meet conflicting demands, to be sufficiently
vulnerable yet not strategic, visibly harmed yet devoid of agency. Even then, their perceived deservingness
ultimately hinges on broader considerations such as ethnic and cultural 'fit'
and the political interests of the receiving state.
Given the broader restrictive turn in European asylum policy, the
significance of the upcoming Grand Chamber judgments cannot be overstated.
Latvia and Lithuania’s logic of deservingness is echoed in the recent letter by nine EU leaders, including Latvia and
Lithuania, which calls for a reinterpretation of the ECHR in the field of
migration and openly questions whether the Court has protected the ‘wrong
people.’ These rulings will determine not just individual outcomes but whether absolute
protection can persist amid mounting political pressure to elevate
'deservingness' into a legal threshold.
