Asylum bans in the European Union: How states break the law and get away with it

Asylum seekers caught under the ban are automatically detained in wholly unsuitable conditions, with no access to basic necessities, no information on their status and on the reasons for deprivation of their liberty, and no guaranteed access to a lawyer. Authorities refuse to register their protection claims and order them to return to war-torn countries such as Yemen and Sudan. The European Union is aware and does not act.

The new Greek asylum ban is a textbook breach of EU rules neither unprecedented nor isolated. It comes as a fresh symptom of the deteriorating state of the EU’s Common European Asylum System (CEAS) and of the rule of law that sees governments across the continent openly flout straightforward refugee protection standards, disregard the courts, and get away with it.

Erosion of rules through misuse of crisis

People seeking asylum from persecution enjoy fundamental legal protections under EU law, consistently affirmed by the Court of Justice of the European Union (CJEU). Three standards warrant close consideration.

On the one hand, states have an absolute duty to prevent refoulement, meaning they may never deport a person to a place where they risk torture or ill-treatment. No restrictions are permitted on a person’s right to seek asylum and to enjoy safety until their claim is heard (C-823/21 Commission v Hungary, 22 June 2023, para 43). Neither current nor prospective EU rules adopted last year under the New Pact on Migration and Asylum permit states to suspend access to their asylum systems under any circumstance.

On the other hand, the current iteration of the CEAS as adopted in 2013 already acknowledges and caters for situations where EU countries are faced with a considerable rise in asylum applications, however unforeseeable and unavoidable. This is stressed by the CJEU in recent judgments (C-97/24 Minister for Children, 1 August 2025, para 50), as well as earlier rulings (C-808/18 Commission v Hungary, 17 December 2020, para 222).

Finally, the CJEU highlights that, where EU law sets out specific derogations from rules aimed at allowing states to respond to particular events, states may not invoke those very events in order to circumvent their legal obligations altogether (C-97/24 Minister for Children, 1 August 2025, paras 51-52).

This is precisely what European governments have sought to do. The last five years have given rise to various instances of impermissible asylum bans imposed by different states across the continent:

• In 2020, Greece imposed a one-month ban on people irregularly arriving from Türkiye from claiming asylum and ordering their immediate removal, citing an “asymmetrical threat” in the form of a large number of arrivals. None of the people caught under the ban were removed from Greece.
   
• That same year, Hungary introduced an “embassy procedure” forbidding access to asylum to people who had not previously obtained permission to enter from its embassies in Belgrade or Kyiv. The policy was instituted shortly after the CJEU declared Hungary’s previous “transit zone” asylum system contrary to EU law (C-924/19 Országos Idegenrendészeti Főigazgatóság Dél-alföldi Regionális Igazgatóság, 14 May 2020). The “embassy procedure” was also found by the Luxembourg Court to breach EU law (C-823/21 Commission v Hungary, 22 June 2023).
   
• In 2021, Poland, Lithuania and Latvia passed legislation prohibiting people entering the country irregularly from claiming asylum, citing a “mass influx” of asylum seekers “instrumentalised” by the Belarussian government. The Lithuanian rule has also been declared unlawful by the CJEU (C-72/22 PPU Valstybės sienos apsaugos tarnyba, 30 June 2022).
   
• In 2024, Finland passed legislation permitting border guards to turn back people arriving from Russia without allowing them to claim asylum.
   
• In 2025, Poland imposed a fresh two-month ban on people arriving from Belarus from applying for asylum.
   
• In 2025, Germany issued instructions to its border guards to turn back entrants at all land borders, even people seeking asylum. Domestic courts have promptly highlighted that the practice breaches EU law, while neighbouring countries such as, Austria, Luxembourg and Poland have strongly reacted to Germany’s policy.

While opting for models with varying features, the governments resorting to asylum bans share a set of underlying assumptions: that asylum seekers must not enter their soil irregularly, that the state cannot cope, and that someone else is responsible. These governments also tend to employ similar misinterpretations of legal standards on asylum and human rights in near-slogan fashion: Article 72 of the Treaty on the Functioning of the European Union (TFEU) on maintenance of law and order, the N.D. & N.T. v. Spain judgment of the European Court of Human Rights (ECtHR) on collective expulsions, and Article 15 of the European Convention on Human Rights (ECHR) on derogations from certain rights in times of war or other emergencies threatening the nation are frequent citations. The talking points in question have been readily invoked by European states regardless of geographical location, number of arrivals, or the source thereof. Where Poland, Lithuania and Latvia identify in Belarus a ‘hostile’ third country performing actions that form grounds for suspending asylum, Greece does not impute such intent to a particular actor in the case of arrivals from Libya, nor does Germany vis-à-vis arrivals from its EU neighbours.

The narratives put forward by European governments pervert and misconstrue ubiquitous principles of refugee and human rights protection, acknowledged by and binding upon states from the drafting of 1951 Refugee Convention to present. Refugees have no viable regular means to reach safety and are hence protected from penalties for irregular entry. Most remain outside Europe, in countries with limited economic resources and beleaguered protection systems, which are hardly receptive to and cooperative towards sustained EU efforts to evade responsibility for refugees. The use of “engineered migration” as a foreign policy tool is neither unprecedented nor unforeseeable, particularly in a political context where narrowly conceived domestic priorities overtake EU foreign policy and engagement with “countries which can hold the EU to ransom by cooperating or not”, as put by the European Council on Refugees and Exiles (ECRE). And finally, European countries should expect arrivals of refugees and should maintain functioning, sufficiently resourced asylum systems to address them. 

The “rhetorical escalation” from – what ought to be – essential notions of refugee protection to “crisis”, “instrumentalisation”, “hybrid attack” or “weaponisation” run counter to both empirical evidence and to legal principle. It undermines stability of relations and cooperation with countries outside the EU. It also erodes straightforward rules through obfuscation of standards and through proliferation of unclear, overlapping derogations therefrom. The effects of this approach are strongly reflected in the legislative landscape of the CEAS following the New Pact on Migration and Asylum, predominantly shaped by national governments sitting in the Council of the European Union as lawmakers. EU law now includes a dedicated Crisis Regulation, offering states a broad catalogue of derogations from EU asylum rules to use under insufficiently defined circumstances. The instrument entrenches the concepts of “crisis”, “instrumentalisation” and “force majeure” as invoked by Greece in 2020, Poland, Lithuania and Latvia in 2021 and so on. The Crisis Regulation forms but a part of the equation, however. The various instruments of the New Pact on Migration and Asylum set out at least ten different circumstances out of the ‘ordinary’ condition of European asylum systems which may trigger derogations from established standards. This inevitably injects confusion and conflation of derogation regimes, and casts doubt on the effectiveness of monitoring and enforcement of the rules by the responsible institutions.

Erosion of rules by enforcement deficit

Standards are equally weakened when disregarded by the very institutions tasked with their enforcement. Governments flouting EU rules may often lean towards institutional introspection and choose to disregard critique from any domestic or international monitoring body that is not the EU executive.

For its part, however, the European Commission has not only refrained from criticising the latest Greek asylum ban but also subscribed to the state’s assumption that arrivals of asylum seekers from Libya amount to an “exceptional situation”. The absence of any public contestation of the ban by the Commission seems to be construed by the Greek government as implicit support, or at least acquiescence of the policy. So is the continued operational support offered by the Commission to Greece through the five-year-long presence of its Task Force Migration Management in the country. Similar stances have been adopted by the Commission in response to other asylum bans e.g. Poland. These are in sharp contrast to the Commission’s swift launch of legal action in the form of infringement proceedings against Hungary, resulting in several powerful condemnations handed down in CJEU judgments (C-808/18 Commission v Hungary, 17 December 2020, C-823/21 Commission v Hungary, 22 June 2023).

Acquiescence of breaches via operational support extends to EU agencies. Frontex interpreters deployed inside Greek detention centres currently assist state authorities in serving unlawful, unenforceable deportation orders to refugees denied access to asylum, who are ordered to return to Sudan, Yemen, or Libya.

The idleness of EU enforcement institutions inevitably leaves contestation of asylum bans predominantly to the adjudication of individual cases before the courts. Yet, litigation carries important limitations. First, governments seeking to infringe essential standards of refugee protection are often inclined to make little or no provision to allow affected individuals to access justice. Greece, for example, offers neither linguistic nor legal assistance to the thousands of people it detains for deportation purposes, in stark dereliction of its legal obligations and of EU recommendations over the past decade. This includes those caught under its latest asylum ban.

Second, national courts may not necessarily show readiness to challenge government policies, especially in countries riddled with broader rule of law backsliding. Following the 2020 asylum ban, Greek courts reproduced the government’s rhetoric on the existence of an “asymmetrical threat” by Türkiye and rubberstamped detention orders against people denied the right to seek asylum.

Third, redress by European courts is not immediately available. The European Court of Human Rights (ECtHR) may take several years to decide a case, though it may order interim measures to prevent irreparable harm in exceptional cases. As for the CJEU, cases are mainly brought before it through preliminary references by national courts – as done for the Lithuanian asylum ban – or through infringement proceedings launched by the Commission – only done for Hungary so far.

Fourth, compliance with court rulings is a policy matter exceeding the sphere of litigation. Governments condemned by courts for breaching EU asylum standards have at times openly refused to execute judgments and pursued their unlawful policies unabated. Germany is a recent such example. Here too, the European Commission fails to meaningfully scrutinise states’ failure to implement judgments as a core rule of law matter, even when expressly requested to do so e.g. in cases concerning Greece’s compliance with ECtHR rulings.

Importantly, non-compliance with judgments may – and in fact already does – escalate to a direct contestation and affront of the courts as a whole, in an attempt to restrict and to discredit any administration of justice that does not align with governments’ objectives. This is starkly illustrated in the recent call for a “new and open-minded conversation” about the ECtHR’ treatment of migration cases by nine European countries, including those awaiting seminal judgments of the Court on human rights violations related to push backs and suspension of access to asylum (Poland, Latvia, Lithuania).

Asylum bans introduced by governments throughout the EU forcefully demonstrate the risk of defeat of even the clearest, most established and hard-fought principles when political institutions fail to abide by their core responsibilities. These principles must be upheld, and the EU must ensure that non-compliance therewith leads to accountability.