In recent years, a worrying trend has been observed in member States’ migration policy: the latter are increasingly invoking national security arguments to justify restrictive measures and refoulement in the area of migration, as the examples of Greece, Poland, and Hungary demonstrate. This development raises serious questions about the safeguarding of the principle of non-refoulement, especially in cases of mass arrivals or the so-called “instrumentalization” of migrants. Moreover, the apparent recent acceptance of this trend by the European Commission is a matter of significant concern. The resurgence of restrictive migration policies at the EU level is not a novel phenomenon. However, what is noteworthy is the invocation of the “essential state functions” clause (Article 4(2) TEU), in conjunction with Article 72 TFEU, which protects “national security” as a new source of justification of deviations on migratory policies. Interestingly, the EU Commission endorses this legal basis for refoulement measures that potentially infringe upon the fundamental rights of migrants.
Theoretical framework: Articles 72 TFEU and 4(2) TEU
In order to understand the legal basis for invoking national security arguments in migratory issues, it is first necessary to have a look at Article 72 TFEU, stating that: “This Title shall not affect the exercise of the responsibilities incumbent upon member States concerning the maintenance of law and order and the safeguarding of internal security.” This Article, positioned in the general provisions of the Area of Freedom, Security and Justice (“AFSJ”), gives member States considerable leeway in safeguarding their national security in the AFSJ, including asylum and migration policies (Articles 77-80 TFEU).
Moreover, Article 4(2) TEU is closely linked to Article 72 TFEU. The latter has been utilized in recent years, particularly in the area of migration, with regard to the protection of “national identities”. Presently, the second aspect of this provision, which safeguards the “essential State functions” of the member States, is gaining significant prominence, since this concept includes protecting national security as an integral part of the State. Consequently, the interconnection between these two Articles establishes a legal framework within which member States may implement measures to safeguard national security in migration-related matters, possibly raising questions regarding the upholding of the adequate level of protection of the fundamental rights of the migrants, with prejudice to the principle of proportionality (Article 52(1) CFR).
Crisis and force majeure Regulation: challenges for fundamental rights and the principle of non-refoulement
Under these circumstances, recent developments in EU legislation, in particular the new Migration Pact, especially Regulation (EU) 2024/1359 ( “Crisis and Force Majeure Regulation”), raise further questions regarding the protection of refugees’ and asylum seekers’ fundamental rights. This regulation, which materializes the protection of national security in times of crisis, aims to grant more flexibility to member States in situations of mass arrivals or cases, among others, of “instrumentalization” of migration flows, which, naturally, might pose a threat to national security. Such flexibility entails, inter alia, derogations, including mandatory border procedures for all non-EU applicants in cases of instrumentalization, which are associated with significantly reduced scrutiny, given their fast-track nature, compared to standard Asylum Procedures. While this development addresses the issue of balancing national security and human rights protection, it also raises concerns regarding the potential misuse of the flexibility granted by the Regulation at the expense of fundamental human rights. Such derogations seem particularly prone to misuse in the context of migration management, given existing data on violations of the principle of non-refoulement from countries of first entrance and the difficulty of the victims of fundamental rights violations at the borders to seek judicial protection. In this context, upholding an adequate level of protection of fundamental rights will depend on the practical application of the Regulation.
Nevertheless, the protection of the fundamental rights of migrants is also regulated within an international framework. Especially the principle of non-refoulement, which is the human right in question of this post, enshrined in Article 33(1) of the Geneva Refugee Convention and EU primary law (Article 78(1) TFEU), prohibits States from repatriating migrants to countries where they face potential persecution or significant human rights violations. Equally relevant is Article 4 of Protocol No. 4 of the European Convention on Human Rights (“ECHR”), which prohibits collective expulsions of foreigners, alongside Article 3 ECHR, which prohibits inhuman or degrading treatment. Nevertheless, the new Crisis Regulation appears to create a leeway for potential exceptions to these principles, which may lead to a significant erosion of refugee protection. For that matter, it is of utmost importance that the implementation of the new Migration Pact, starting after June 2026, remains subject to rigorous judicial scrutiny to ensure the preservation of asylum seekers’ fundamental rights, particularly in instances where the Crisis Regulation is applied, and not be carried away by the increased momentousness of the “national security” discourse.
The European Commission’s communication: a double-edged sword
Under these circumstances, the European Commission, in its recent Communication COM(2024) 570 of 11 December 2024, presented a list of legal justifications that could allow member States to “legalize” pushbacks. Although the Commission acknowledges the significance of the non-refoulement principle, the invocation of Article 4(2) TEU in conjunction with Article 72 TFEU by the latter could be interpreted as encouraging member States to utilize this legal basis, among other proposed, in future instances to “defend” against hybrid attacks from Russia and Belarus and safeguard their national security, public order, and sovereignty. Thus, from the Commission’s perspective, national security appears to take precedence over the protection of “instrumentalized” asylum seekers, which, in turn, potentially jeopardizes the adherence to the principle of non-refoulement and the right to asylum. In this sense, the Commission’s Communication, despite acknowledging the significance of safeguarding fundamental rights per Article 52(1) CFR, seems to endorse derogations from EU asylum procedures in a setting (border procedures) where ensuring the protection of fundamental rights, particularly during times of crisis, is often not feasible. In other words, the Commission seems to rely on an interpretation of Article 52(1) CFR and an evolutive interpretation of the ECHR, which may subsequently adversely influence the level of protection afforded to migrants during border crises. Hence, the Commission’s apparent prioritization of security represents a concerning shift in priorities that may lead to further significant implications.
However, it is important to emphasize that in its recent decision C-72/22 PPU, the ECJ clarified that denying a third country national the possibility to apply for asylum solely because he or she has crossed the border irregularly is incompatible with the Asylum Procedures Directive (Directive 2013/32, “APD”) – even in the case of a declaration of a state of emergency due to a “mass influx” of foreigners (see Alison Jolynn Beuscher et al.). In other words, the state of emergency created by a mass influx of migrants, which prevents a foreigner from lodging an application for international protection, is incompatible with Articles 6 and 7(1) APD (see also the analysis by Johan Callewaert).
The ECJ has thus precluded national authorities from invoking Article 72 TFEU to derogate from the APD provisions in response to the mass influx of migrants at the border. Lithuania’s assertion that this constituted a threat to public policy or internal security was not deemed sufficient to justify such derogations. Hence, this ruling elucidates that the right to asylum remains applicable even in crisis situations. However, the extent to which this judgment could be generalized in cases of instrumentalization of migrants, especially under the new Migration Pact, remains to be seen in the Court’s future case law.
A turning point for the protection of the human rights of asylum seekers?
In this context, currently pending cases before the European Court of Human Rights (“ECtHR”) could represent a turning point in the assessment of pushbacks and the application of security arguments in the context of migration. The cases C.O.C.G. and Others v. Lithuania (application No. 17764/22, public hearing), R.A. and Others v. Poland (application No. 42120/21, public hearing) and H.M.M. and Others v. Latvia (application No. 42165/21, public hearing) all deal with arguments related to the protection of national security as a justification for the refoulement of aliens. These cases, which were heard by the Grand Chamber of the ECtHR on February 12, 2025, could point the way for the future interpretation of the relationship between national security and the protection of human rights.
These three cases in question pertain to asylum seekers who were irregularly returned to Belarus at the eastern borders of Lithuania, Poland, and Latvia. The applicants asserted before the ECtHR that their asylum applications were disregarded and that they were unlawfully returned to Belarus by the respective national authorities. They further argue that this development could potentially result in a chain deportation, thereby increasing the risk of being returned to their country of origin where they may be subjected to inhumane treatment.
Although the ECtHR does not adjudicate on EU law but rather the ECHR, the Court’s response to these cases will nevertheless be of significant importance for the protection of individuals seeking asylum at the EU’s external borders, given the influence of the ECHR on the EU legal order. Upon weighing the considerations of national security against the principle of non-refoulement, a favorable assessment of the member States’ arguments by the Court in line with the judgment N.D. and N.T. v. Spain, could, therefore, signify a fundamental shift in EU asylum protection with the blessings of an international court. Within this context, the Commission’s communication seems to point towards this direction, favoring an interpretation of the ECHR in the spirit of the N.D. and N.T. v. Spain judgment.
Conversely, rejecting these arguments would convey a clear message against the growing invocation of national security, which, of course, cannot be overlooked. In this way, the establishment of a broad discretionary margin in the treatment of migrants, particularly concerning the principle of non-refoulement, is avoided, since, as Alison Jolynn Beuscher et al.rightly point out, the crisis rhetoric risks opening Pandora’s box and allowing states to largely undo the core guarantees of the Convention. However, taking into account the previous case law of the ECtHR (here and here), it is not unlikely that the Court may opt for a solution more closely aligned with that proposed by the member States.
Reopening the discussion on Article 4(2) TEU?
The increasing reliance on national security arguments in migration cases poses a serious challenge to the protection of human rights and the principle of the Rule of Law in the EU. Meanwhile, the above-mentioned developments open the door for an updated discussion on Article 4(2) TEU, interpreted alongside Article 72 TFEU, in EU migration policy. However, in this instance, the invocation pertains not to “national identity” but to “essential state functions”. Both Articles function as safeguards of member States’ security autonomy, with the latter specifically addressing this autonomy in the AFSJ. Moreover, it is noteworthy that it is the Commission, and not, as seen before, member States, that invokes Article 4(2) TEU to propose divergent migration policies and, by emphasizing the dangers of the instrumentalization of migrants, seeks to pose limitations to EU migration law that could undermine the level of protection of fundamental rights. In this context, it is of great importance that the protection of fundamental rights, particularly the principle of non-refoulement, given the way that the ECtHR interpreted its absolute nature in N.D. and N.T. v. Spain, and the right to asylum, are not compromised in the pursuit of safeguarding national security, even during periods of heightened migratory pressure and instrumentalization of migrants. For this endeavor to succeed, a careful utilization of the proportionality principle is needed to strike a balance between them. It is anticipated that the ECJ will not adhere to the Commission’s argumentation and will instead strive for an equilibrium between State interests and fundamental rights protection, as demonstrated in its previous case law related to “national identity” arguments and EU migration policies.
Furthermore, the pending cases before the ECtHR provide an opportunity to recalibrate the balance between national security and the protection of the rights of those seeking protection. While the national security of member States is undoubtedly a legitimate objective, this must not lead to the erosion of fundamental rights of asylum seekers. In this light, the European Commission’s Communication, the aforementioned case law of the ECtHR, and the new EU crisis regulation seem to confirm a worrying pan-European trend towards a more restrictive migration policy based on the protection of national security. However, these instruments must be applied in accordance with the fundamental principles of EU law and international human rights standards, while the protection of “national security” argumentation should be functioning in a balancing manner and not lead to core violations of the former. In other words, even following an unfavorable decision for the protection of fundamental rights of the migrants by the ECtHR, the ECJ should, under Article 52(3) CFR, seek for a higher level of protection of the latter. Within this context, the aforesaid decision C-72/22 of the ECJ provides a significant point of reference by delineating the limitations on restricting the right to asylum. It is anticipated that the ECtHR will also establish clear guidelines for the application of “national security” arguments within the ECHR framework, prioritizing the protection of human rights for asylum seekers and upholding the principle of non-refoulement. These guidelines could potentially serve as the foundation for a comparable framework within the EU legal context.
In this context, it is important that the invocation of Articles 4(2) TEU and 72 TFEU, aiming at protecting national security, does not lead to disproportionate restrictions (as Daniel Thym emphasized) of fundamental rights. The EU could remain true to its core principles and effectively address the challenges of migration while safeguarding the essential functions of its member States only through rigorous adherence to the rule of law and consistent respect for human rights. Such an approach is crucial for establishing a stable equilibrium, which, in turn, could prevent a renewed instrumentalization of Article 4 (2) TEU (specifically concerning “essential state functions”) in the field of migration.
Georgios Athanasiou is a PhD researcher at the Government and Law Research Group (Faculty of Law) of Antwerp University. His research focuses on the respect for national identities and the protection of essential state functions of member States in EU migration and free movement law.
