In recent years, developments along the Belarus–Poland border have raised difficult questions about access to asylum at the EU’s external frontiers. However, the legal and humanitarian situation there has often remained at the margins of wider public debate. Maciej Grześkowiak, Max Weber Fellow in the EUI Department of Law, has examined these dynamics in his analyses in Refugee Survey Quarterly and on Verfassungsblog. His current EUI project extends this work by investigating the legal status of border walls and their implications for access to rights.
In this interview, he discusses insights from his fieldwork and legal research and considers how the developments along the EU–Belarus border connect to broader trends in European asylum law.
You have spent time along the Belarus–Poland border and spoke with people crossing it. Can you describe what you saw? Is there one encounter that has stayed with you?
Let me begin by explaining the context. What has been happening since 2021 is that Belarusian authorities have largely facilitated an irregular migration route into the EU. They relaxed visa rules, mostly for African and Middle Eastern countries, and then helped, pressured, or even forced those who arrived to cross irregularly into Poland, Lithuania, and Latvia.
On the Polish side, the response centred on the introduction of the pushback policy. People intercepted in the forest are apprehended and immediately turned back to Belarus, without conducting procedures that would ensure basic human rights safeguards.
People know this, so they do everything they can to avoid Polish authorities. They cross and then hide in the forest, sometimes for weeks, sometimes for months. They hide not only because they fear being pushed back, but also because of the EU’s so-called Dublin rules. If their data are registered in Poland and they later apply for asylum in Germany or France, they can be sent back to Poland as the first country of irregular entry.
And this is all happening in a very particular setting: the Białowieża forest, one of Europe’s last primeval forests. Crossing it without equipment and maps is nearly impossible. Unsurprisingly then, there is a growing number of casualties.
When I first went there in 2021, I went as an activist. We would bring people in the forest dry clothes, food, and medicine.
What has stayed with me is not one dramatic image, but a feeling that occurred to me and lingered: that these people were, in essence, being hunted. They were hiding in bushes, trying not to make a sound or be seen, because they knew they could not expect protection from the authorities who should be protecting them. Instead, what they could expect if caught was an immediate pushback to Belarus, where many experienced extreme violence.
You have described Poland’s pushback practice as a clear breach of domestic, EU, and international law. For readers who are not lawyers, could you explain the key legal elements that are being breached at this border?
In simple terms, Poland has been turning people back to Belarus immediately, without starting the procedures it is required to start under both domestic and EU law. This involves ignoring asylum applications.
Legally, it is enough for someone to clearly state their intention to apply for asylum in front of a border guard, in any form, for the authorities to be obliged to register that application and pass it on for examination. This does not mean they automatically get to stay forever, but they must be allowed to remain while their claim is examined.
If the authorities do not act on these statements, this, in their optics, allows them to push people back to Belarus without starting any procedure at all. That is exactly what has been happening.
This is unlawful on many counts. It violates the right to asylum provided for in the EU Charter of Fundamental Rights. It violates multiple provisions of the Common European Asylum System, which is meant to operationalise this right. And it violates the principle of non-refoulement, which prohibits sending someone against their will to a territory where they face a real risk of serious harm.
The European Court of Human Rights has already held that Belarus cannot be treated as safe for asylum seekers and we have overwhelming evidence that this is still the case: reports of beatings, sexual violence, setting dogs on people, extortion. So, pushing people back there, without any assessment of their individual situation, directly contradicts the EU and international law. Polish domestic law has been amended to account for pushbacks and disregarding asylum claims, but these domestic regulations are clearly at odds with the Polish constitution and Poland’s international obligations.
In your public work you have described this as a rule of law crisis at the EU level. What do you mean by that, and what role does the European Commission play?
The Common European Asylum System is a complex set of legal instruments that apply across the EU. However, human rights safeguards in this system are, in practice, almost unenforceable at EU level. The key reason is that the European Commission, whose role under the Treaties is to supervise Member States’ compliance with EU law – it is often called the “Guardian of the Treaties” – is not doing that job in the field of asylum.
Access to the Court of Justice of the EU is limited. Individuals cannot directly bring cases against Member States there. If the Commission chooses not to act against the widespread denial of rights happening at the EU borders, legal safeguards effectively become loose recommendations which states can break virtually at will.
In the context of the Belarus border crisis, this went even further. Poland did not just carry out pushbacks; it formally suspended the right to seek asylum for people crossing from Belarus. This is now written into Polish law. A similar move has been taken by Finland in the context of its border with Russia. In both cases, the Commission did not stop at quietly acquiescing; it advanced a legal argument in favour of these measures in an official communication.
In my view, the reasoning of the Commission in this communication involves a bad-faith interpretation of EU and international refugee law, ignoring relevant case law and misreading the 1951 Refugee Convention. That is why I talk about a rule of law crisis: when Member States can openly dismantle human rights guarantees, and the "Guardian of the Treaties” not only fails to stop them but actively justifies this, we can no longer rely on the law to protect the individual in the context of migration.
Some will say that this is not a “normal” migration situation. It is organised by hostile regimes, as a form of hybrid warfare. How do you respond to the argument that security must come first in this context?
There is no doubt that this is not a “natural” migration flow in the sense that Belarusian authorities have actively facilitated it. The same is true for Russia at the Finnish border to some extent. These are hostile states, especially since 2022. It is therefore reasonable to suspect that some individuals attempting to cross these borders might be working for those states.
But that is not the whole story. If you look at the nationalities of people crossing, they are mostly from countries such as Afghanistan, Yemen, Somalia, Syria, Sudan – countries producing refugee outflows. It is highly likely that the vast majority of them are people in genuine need of protection, or at least with plausible asylum claims. A small fraction might pose security concerns, but most do not.
The role of a democratic state that claims to uphold the rule of law and human rights should be to establish robust procedures that can distinguish between these groups. Instead, we see indiscriminate pushbacks, which amount to a form of collective punishment: Everyone is deemed “instrumentalised”, so everyone is denied basic rights.
From a security perspective, the current approach is also irrational. When guards intercept someone and immediately push them back, they relinquish any possibility of conducting security vetting. These people will typically try again until they succeed. We know that many of them do eventually reach Germany or other Western states.
So, rather than controlling who enters and gets to stay, this approach means losing control over who gets in. A system based on individualised, robust procedures would be both more compatible with human rights and at the same time capable of addressing security concerns.
Terms like “hybrid attack”, “hybrid warfare”, or “weaponisation of migration” appear constantly in discussions about this border. What are the risks of using this kind of language?
While one has to acknowledge the active role of Belarus in facilitating this migration route, these terms frame the situation almost exclusively in security terms. They shift attention away from the humanitarian dimension, which should be at least as salient for states that claim to care about human dignity and human rights.
Reading communications from Polish authorities, and even from EU institutions, there is very little acknowledgement of what is happening in the forest: people dying or hiding for days in extremely harsh conditions at constant risk of harm or even death.
Talking about “weaponisation of migration” tends to objectify people on the move. It reduces them to mere instruments, which then serves to legitimise extreme measures taken against them. Ultimately, this vocabulary helps justify blanket, indiscriminate denial of rights to entire groups of people on the grounds that they have been “used” by another state.
Terms such as “hybrid warfare” or “hybrid attack” are also questionable from a legal perspective. They point to the law of war and the UN Charter’s notion of an “armed attack” that can trigger self-defence. What is happening here does not meet that threshold. It is a migration situation that a hostile country helps facilitate, but that does not make it a war in the legal sense. Article 51 of the UN Charter is simply not applicable, and suggesting otherwise blurs important boundaries.
How does your work on this topic connect to your current research at the EUI, and what keeps you engaged with such a difficult topic?
My PhD was actually about temporary protection for refugees in so-called large-scale influx situations. This is an emergency mechanism that suspends normal procedures in favour of limited, group-based protection because there are too many people to process individually. In my PhD thesis I show how and why these time-bound, emergency-driven measures tend to stick beyond emergencies that justify triggering them. I am now working on shifting this thesis into a book.
The Belarus border crisis was not the topic of my dissertation, but as an asylum lawyer based in Poland I could not ignore it when it started in 2021. I wrote an article in Refugee Survey Quarterly soon afterwards, and since then I have continued to follow developments closely. I still advise the Polish Ombudsman’s office on these issues and occasionally write about the situation.
The project that brought me to the EUI and which I will continue working on after my fellowship ends looks at border walls and their legal status through the critical lens: how they operate, how they affect access to rights and the legal standing of people trying to cross them. I plan to work mainly at the level of international law, but I will examine two case studies: the US–Mexico border and the Poland–Belarus border. So, I will go back to the forest, this time as part of that research.
Why stay with such a bleak topic? Partly because, once you have seen the reality on the ground, it is very hard to look away. But also because I still believe that this work matters. By closely looking at what has been happening at Europe’s borders, we can see clearly how the law and state authority can be deployed to undermine values they claim to protect. Understanding and naming such practices publicly is a way of resisting their normalisation.
Maciej Grześkowiak is a Max Weber Fellow in the EUI Department of Law and a Research Affiliate at the Refugee Law Initiative of the University of London. His research focuses on international and EU asylum and migration law, and how they operate on the ground. Before joining the EUI, he worked with human rights NGOs and served as Chief Coordinator at the Office of the Commissioner for Human Rights (Polish Ombudsman).
Photo: Gov.pl, via Wikimedia Commons, CC BY 3.0 PL.