External Border Control Techniques in the EU as a Challenge to the Principle of Non-Refoulement

Over the past decade the EU has witnessed an increasing number of third-country nationals trying to reach its borders to find a safe haven there. In these difficult times, both the EU institutions and its member states have continued to proclaim their adherence to the right to seek asylum and the principle of non-refoulement, while at the same time exercising (member states) and tolerating (EU institutions) sometimes rigid border policies which have, in practice, repeatedly caused the circumvention or breaches of these rules.The aim of this paper is twofold. First, it will show that there is a substantive change in the member states’ border practices and their willingness to admit third-country nationals to refugee status determination procedures, compared to the pre-2010 period. Second, the paper will highlight that the change in the member states’ practical approach towards non-refoulement has taken place without altering a single word in the definition of non-refoulement in EU primary and secondary law. Consequently, the gap between the EU’s constitutional, normative expectations and member states’ practices has been widening, leading to tension between the reality and the law, which even the new Pact on Migration and Asylum (hereinafter: Migration Pact) may be unable to eliminate