Accessing borders, accessing justice?

The majority of Strasbourg cases in the first explored category concern the situation at the Polish-Belarussian border between 2016 and 2017, all challenging Poland.⁴⁴ During the material time, asylum seekers arriving from Belarus at Poland’s Terespol border post, which many could reach by train without obstacles imposed by Belarus, were consistently refused access to relevant border procedures by Polish border guards, who ignored circumstances that would have pointed toward their need for international protection and accordingly triggered an asylum procedure.⁴⁵ M.K. and others v. Poland, in which the Court responded positively to applicants’ claims under article 3⁴⁶ and A4P4 (in addition to claims under articles 13 and 34, which will not be discussed here), serves as the first and key case through which to discuss this constellation. In particular, it highlights the Court’s (a) affirmation of how it will evaluate jurisdiction in border situations; (b) evaluation of evidence; and (c) application of the N.D. and N.T. exception.

Decided in July 2020, the case concerned three separate applications (from one individual and two families) of Russian nationals from Chechnya who attempted to access international protection at Poland’s Terespol border post on 35, 19, and 8 separate occasions. Each time, applicants expressed their intention to claim asylum to Polish border guards, in several cases equipped with prepared written applications. Polish authorities consistently ignored these statements and applications, instead issuing administrative decisions attributing applicants’ attempts to enter Poland to purely economic or personal reasons and returning them directly to Belarus. On one occasion, applicants even approached the Polish border with powers of attorney for lawyers present at the border crossing and to whom they requested access – but were also denied. Faced with interim measures under Rule 39 requiring that applicants not be returned to Belarus without evaluation, Polish authorities again removed applicants to Belarus.⁴⁷

Decided in July 2021, Shahzad v. Hungary can be viewed as an extension of the Poland case cluster. At the time of events, Hungary’s recently overhauled and explicitly restrictive asylum policy required those attempting to seek international protection in Hungary from Serbia to approach the border at two points established as “transit zones” along the border fence. Following Hungary’s closure of its borders with Serbia and Croatia and erection of its barbed-wire fence, entrance to these transit zones were the only means by which asylum seekers could gain access to Hungary’s asylum procedure at the border.⁶⁴ In addition, Hungary imposed strict, low limits on the number of asylum seekers allowed to enter the transit zones each day. The determination of who would enter such zones was described as irregular and non-transparent by UNHCR and the CoE’s Special Representative of the Secretary General on Migration and Refugees, with a resulting “waiting list” coordinated by asylum seekers themselves at the border.⁶⁵ Single men who approached the border to sign up for the list faced particular difficulties registering, and those who did often reported waiting several months for their turn to enter.

Shahzad v. Hungary concerned a Pakistani applicant who detailed attempting to enter Hungary through the transit zone but being told that single men were not able to add their names to the list. On the incident of concern, he and 11 other men cut a hole in the fence and passed through to Hungary. When the group was found by Hungarian officers, he stated that he wished to apply for asylum but was ignored. Investigating officers questioned the applicant and his fellow travelers about smuggling before they were driven to the border fence and forced to pass through and walk back to Serbia.⁶⁶

As with M.K. and others, the Court was faced with abundant evidence on which to evaluate the Government and M. Shahzad’s conflicting accounts. This included video footage of officers forcing the applicant to the other side of the border fence as well as documents from a domestic criminal investigation into his ill-treatment that identified the officers involved.⁶⁷ This overcame the Government’s initial contention that M. Shahzad had “failed to prove that he had ever suffered the measure complained of.”⁶⁸ Reiterating N.D. and N.T., the Court first confirmed that “where the absence of identification and personalized treatment by the authorities of the respondent State is at the very core of an applicant’s complaint, it is essential to ascertain whether the applicant has furnished prima facie evidence in support of his or her version of events” before the burden of proof shifts to the Government.⁶⁹ It found that the video footage obtained from the police, as well as other official information obtained from the criminal proceedings, confirmed the applicant’s apprehension and escort to the border fence’s external side.⁷⁰ On the State’s contention – similar to the Polish cases – that the applicant had not applied for international protection in Hungary, the Court decided that whether he had been prevented from doing so was closely linked to examination of his A4P4 claim and should be decided on the merits.⁷¹

Examining these claims, the Court first dispelled Hungary’s contention that it had not expelled the applicant because officers’ escorting him to the other side of the border fence did not formally place him in Serbian territory. Importantly, the Court found that “the narrow strip of land on the external side of that [border] fence to which the applicant was escorted only had a technical purposed linked to the management of the border” with “no infrastructure” present. It reiterated that individuals removed in this manner had “no choice but to leave Hungarian territory,” and that the words of the police officers directing him toward Serbia “could only be understood by him to be an order that had to be obeyed.”⁷² It found that “relying merely on the formal status of the strip of land on the external side of border fence as part of Hungarian territory and disregarding the [referred to] practical realities would lead to article 4 of Protocol No. 4 being devoid of practical effectiveness in cases such as the present case, and would allow States to circumvent the obligations imposed on them by virtue of that provision.” As in N.D. and N.T., it reiterated that “the special nature of the context as regards migration cannot justify an area outside the law where individuals are covered by no legal system.”⁷³

Having thus established no admissibility obstacles to the claim, the Court easily and briefly concluded that the applicant’s removal from Hungary without an identification procedure or examination of his circumstances “should lead to the conclusion that his expulsion was of a collective nature […] except if the lack of examination of his situation could be attributed to his own conduct.”⁷⁴ It also found that the applicant’s circumstances “cannot be compared to the situation in N.D. and N.T:” Although M. Shahzad had entered Hungary in an unauthorised manner, the Government had not argued that this crossing created a disruptive situation or endangered public safety; rather, the reviewed video footage showed “no indication that the applicant or other men in the group used any force or resisted the officers,” and that “the situation was entirely under the officers’ control” with the applicant’ s group “follow[ing] orders.”⁷⁵ As Dana Schmalz warns, this evaluation suggests that limitations to the protection from collective Aus der ZeitschriftAsyl 1/2023 | S. 3–17 Es folgt Seite № 10⬆expulsions could be based on a vague threshold “way below otherwise punishable acts.”⁷⁶ Furthermore, the Court’s analysis that the application criteria for the N.D. and N.T. exception did not apply should have been enough for it to find a violation and end there. Instead, and despite considering that the use of violence and a disruptive situation were relevant, the Court deemed that it would “nevertheless proceed to examine, whether, by crossing the border irregularly, the applicant circumvented an effective procedure for legal entry.”⁷⁷

In finding that M. Shahzad ultimately had not had access to an effective procedure, the Court relied heavily on findings already made by the European Court of Justice (CJEU) in infringement proceedings against Hungary. There, the CJEU had found proven, “in a sufficiently documented and detailed manner […] a consistent and generalised administrative practice of Hungarian authorities aimed at limiting access to the transit zones of Röszke and Tompa so systematically and drastically that third-country nationals or stateless persons who, arriving from Serbia, wished to access, in Hungary, the international protection procedure, in practice were confronted with the virtual impossibility of making an application for international protection in Hungary.”⁷⁸ The CJEU’s findings that Hungary had accordingly failed to comply with the EU’s Asylum Procedure Directive, as well as reports of UNHCR and the CoE’s Special Representative on Migration and Refugees regarding Hungary’s use of the waiting list to limit such access particularly for single men, satisfied the Court that it could find an A4P4 violation for lack of culpable conduct on M. Shahzad’s end.⁷⁹

Although the Shahzad analysis does not necessarily clarify the scope of application for the N.D. and N.T. exception, the Court’s finding of an A4P4 violation remains significant because unlike in the Polish cases, M. Shahzad had not put forward article 3 claims. In N.D. and N.T., on the contrary, some commentators have highlighted that the applicants’ lack of article 3 claims (their non-refugee status) may have guided the Grand Chamber to loosen A4P4’s procedural protection.⁸⁰ Evaluated next to the Polish cases, Shahzad appears to be another example of the Court’s condemnation of state tactics that impede real access to asylum procedures at their borders. In 2022, the Court largely relied on and repeated these findings with ease in H.K. v. Hungary, concerning an Iranian applicant who was removed from Hungarian territory after crossing irregularly. It took no issue with the fact that H.K. had managed to add his name on the waiting list and was later admitted to the transit zone at a point after the expulsion at issue, “noting that the Government did not put forward any argument demonstrating that at the time of the applicant’s removal the procedure for legal entry had been effective.”⁸¹

The contrasting 2022 case of M.A. and others v. Latvia, in which the Court pinned its inability to find violations of article 3 and A4P4 (and in conjunction article 13) on evidentiary obstacles, highlights the exceptional nature of the Poland and Hungary cases. Brought by one of the groups of applicants and the same lawyer as in the case M.K. and others, the case concerned the Chechen family’s attempt to claim asylum in Latvia in late 2017 by traveling from Belarus aboard a train that arrived at Latvia’s railway Indra border crossing, where they were controlled. The applicants described telling Latvian border authorities that they wished to claim asylum and were equipped with a written application. However, Latvian officers issued refusal of entry documents, which it did not provide to them, and returned them by car to Belarus.⁸² The applicants were later forced to return to Russia, where the first applicant was tortured.⁸³

The Court found the key preliminary question at issue to be whether the applicants had actually applied for asylum to the authorities while in their custody, which the Government denied. Based on the evidentiary standards laid out in N.D., the Court stressed it is “in principle for the applicants to adduce evidence that they asked the Latvian authorities for asylum and that they invoked before them the existence of a risk of ill-treatment in case of return to Belarus.” However, it stressed that because the applicants had not claimed that Latvian authorities had failed to identify them as in N.D., the burden of proof would not automatically shift to the Government.⁸⁴ In addition to their own account, the applicants had submitted two statements from workers with a Belarusian rights organization: one who confirmed contact with the applicants in Belarus during their material time, and the other who attested to preparing a written asylum request for the family to provide at the Latvian border, and to seeing the applicant after their failed attempt to claim asylum. The Government, on the other hand, produced “no direct or indirect confirmation of the applicants’ allegation” that they had applied for asylum orally and in writing.⁸⁵

Although the Court found that applicants had “provided a generally clear, specific and coherent description of the events,” it took issue with the fact that, “in contrast to their previous cases against Poland and Lithuania,” the applicants had not submitted copies of their asylum requests or photographs taken while on the Latvian border. It found this absence of documentation “particularly striking given that the Aus der ZeitschriftAsyl 1/2023 | S. 3–17 Es folgt Seite № 11⬆applicants were represented by the same representative” as in those cases. More concerningly still, it seemed to suggest that that applicants’ appearance at the border “on only one occasion” casted doubt on their account. ⁸⁶

The Court chose to find the statements of the Belarusian rights defender who said he had prepared their asylum application alone insufficient evidence of the applicants’ turning over such papers to Latvian authorities and unsupported by the statement of the other witness, his supervisor; the applicants’ failure to produce a copy of the request to Latvian authorities or other documentary evidence unexplained; and the additional reporting highlighting a general lack of access to asylum in Latvia not sufficiently corroborative of their account because it discussed the situation two years earlier than the material time and could be overcome by the Government’s submitted statistics that Russian nationals had been able to submit a total of 17 asylum applications at the Latvian border in 2016 and 2017.⁸⁷ Together, it found that the Government had adequately refuted the applicants’ account, and thus, their article 3 and article 13 claims were manifestly ill-founded. It came to a similar conclusion regarding their A4P4 claims, concluding that the applicants’ several border conversations with authorities while in their custody for over four hours provided “sufficient opportunity to submit their arguments […] on an individual basis” and that the standardized refusal of entry decisions were sufficiently explained by their lack of visas for Latvia.⁸⁸

The Court’s inability to find the claims in M.A. v. Latvia substantiated, even despite the State’s failure to provide any evidence countering the applicant’s claims that their requests for asylum were ignored, reveals an extraordinarily high evidentiary standard expected by the Court. It seems irreconcilable that the Court would refer to the lack of documentation provided in the applicants’ cases against Poland and Lithuania without also taking into account the applicants’ repeated orally expressed need for protection there as well. The Court’s decision ignores the obvious power imbalance between vulnerable people on the move and the border guards who meet them, refusing to accept the common unlikelihood that those persons can take pictures or produce documents not provided to them by the state.

D. v. Bulgaria concerned the pushback of a Turkish journalist working for a newspaper deemed supportive of a movement labeled as a terrorist organisation by the government in the wake of a failed coup in summer 2016. Like many others in his position, D. was dismissed from his job and fled from Turkey to Bulgaria in the back of a truck for fear of persecution through prosecution, unable to formally exit Turkey through the country’s border controls. Romanian authorities apprehended D. and others as they were about to cross into Romania and handed them over to the Bulgarian officers. Bulgarian authorities detained the group, prevented them from seeing a lawyer, and forced them to sign several forms in Bulgarian, which they did not understand. While being interrogated as criminal suspects for having crossed the Bulgarian border irregularly, many of them explained why they had fled Turkey and feared persecution.⁹¹ Nevertheless, the Bulgarian authorities contacted the Turkish authorities⁹² and handed the group over to them within 24 hours.⁹³ D. was immediately sent to prison awaiting trial, later convicted and sentenced to 7 years of imprisonment largely on the basis of his attempt to flee. The case had been widely reported in the Bulgarian media and was taken up by the Bulgarian Ombudsperson.⁹⁴ Before the ECtHR, the applicant claimed violations of article 3, A4P4 and 13 (in conjunction with 3 and A4P4), as well as violations of article 6 as to his expulsion despite the risk of persecution by prosecution.

The Court ruled that it only needed to consider D’s claim under articles 3 and 13, finding that the issues raised under A4P4 and 6 were the same as those raised under article 3.⁹⁵ Further, the Court considered that the main issue in the case was whether the applicant had expressed his fears to the Bulgarian authorities before his expulsion.⁹⁶ Noting that the applicant’s initial intention was to transit through Bulgaria and not to claim asylum there, the Court accepted the applicant’s Aus der ZeitschriftAsyl 1/2023 | S. 3–17 Es folgt Seite № 12⬆(disputed) account that when in the hands of Bulgarian authorities, he and his group orally claimed asylum.⁹⁷ In doing so, the Court gave great weight to the absence of an independent, professional interpreter, underlining the insufficiency of informal interpretation offered by state officers or other PoM.⁹⁸ It also stressed as crucial that the only records of an interview of the applicant (as a criminal suspect) contain enough information to allow an article 3 assessment.⁹⁹ The Court found violations of both article 3 and 13.¹⁰⁰

D. v. Bulgaria sits apart from the following cases in this category because state officials had issued paperwork in relation to the applicant’s handling, leaving a trace of his treatment even if it did not accurately reflect it. Following cases instead illustrate how the lack of records characteristic of pushbacks by informal expulsions poses a major obstacle to the Court. In addition, the failure of states to investigate situations at borders where human rights violations are claimed adds to the Court’s difficulties and represents a major obstacle to applicants’ access to justice. Judges have little to assess two contradicting versions of events on the most crucial points: the presence of applicants on state territory, their contact with state agents, the content of the conversations, and whether applicants expressed protection needs or requested a lawyer or translator.¹⁰¹ These issues are not only factually crucial but also legally pivotal to article 3 claims,¹⁰² as in principle the state is usually only required to assess expulsion-related risks once the applicant has expressed their protection needs.¹⁰³ In the Court’s most recent judgment on an expulsion to Turkey where no documents were issued – concerning the abduction in Athens of a refugee from Turkey via a car with license plates registered to the Greek police, his hand-over to Turkish authorities, and forced return there – the Court found, instead, that the applicant had not provided prima facie evidence of his substantive article 3 claim. Despite many corroborating pieces of evidence of his account, analyzed by the three dissenting judges, the Court found that in the absence of official state records of the applicant’s presence in Greece, there was no evidence that he had been the person forcibly disappeared. In their dissenting opinion, three judges pointed the inconsistency of this approach with the Court’s jurisprudence on evidence in secret rendition cases.¹⁰⁴

The case of M.H. and others v. Croatia, brought by an Afghani family of two women, a man, and their 11 children who were all apprehended by Croatian officials after entering irregularly, addressed the death of 6-year-old Madina. The girl was hit by a train during the family’s nighttime summary expulsion to Serbia in late 2017. At the border between Croatia and Serbia, the only official entry point into Croatia was through classic adjacent border checkpoints, with border control from Serbia (the transit country) preceding border control and any border procedures by Croatia (the destination country). Those whom Croatian authorities apprehended after crossing the border irregularly – like M.H. and his family – were pushed back directly to Serbia.¹⁰⁵

In addition to Madina’s death, the case also addressed the subsequent treatment of the family by Croatian authorities, namely their detention and their asylum process but also their lawyer’s targeting by Croatian authorities for having sought justice for the child’s death. The death of Madina and the subsequent fate of the family received Europe-wide media attention and was followed closely by the Croatian Ombudsperson.¹⁰⁶ In Croatia, the family was supported by their lawyer as well as NGOs, namely the Centre for Peace Studies and Are You Syrious.¹⁰⁷ In addition to a violation of A4P4 as to their summary expulsion, the Court unanimously found violations of article 2 for authorities’ failure to adequately investigate the child’s death, articles 3 and 5 in relation to the families’ subsequent immigration detention in Croatia, and article 34 (right to individual petition) as to the criminalization of the family’s lawyer.

The case centered around crucial disputed facts: The family claimed that they had been apprehended on Croatian territory by officers who forced them to follow train tracks back into Serbia despite the obvious dangers in doing so with children at night, while the Croatian government maintained that the family had only entered Croatia after the child’s death in order to seek help and had then left the territory voluntarily. Croatian officers had produced no official records of any encounter with the applicants on that day and also rejected the existence of a state practice or policy of pushbacks. ¹⁰⁸ Still, the Court followed the evidentiary rules outlined in N.D. and N.T. and Shahzad – both cases where the respondent state acknowledged their pushback policy – to shift the burden of proof to Croatia after the establishment of prima facie evidence by the applicants, “where the absence of identification and personalized treatment of the respondent State [is] at the very core of an applicant’s complaint.”¹⁰⁹ Here, the Court ruled that despite the absence of material evidence of the applicants’ summary expulsion from Croatia prior to the child’s death, the fact that the applicants’ accounts were consistent, Aus der ZeitschriftAsyl 1/2023 | S. 3–17 Es folgt Seite № 13⬆specific, and supported by reports from several organisations constituted prima facie evidence.¹¹⁰

In considering the applicants’ claim under A4P4, the Court reiterated the applicability of the N.D. and N.T. exception to specific situations of irregular crossings in large numbers intending to be disruptive and endanger public order.¹¹¹ Despite the clear inapplicability of the exception to the circumstances at hand the Court, like in Shahzad, went on to apply the “own culpable conduct” test, examining whether the applicants had access to means of legal entry. The Court took into account the fact that applicants were asylum seekers with no documents and therefore dismissed as irrelevant the two humanitarian cases the government had put forward as evidence of means of legal entry into Croatia. Due to the Croatian government’s failure to provide information on the modalities of applying for asylum at its borders, the Court ruled that it could not determine whether any legal avenues for entry were available to the applicants and therefore found a violation of A4P4.¹¹² As in Shahzad, the Court’s reasoning in this case represented a broadening of the applicability of N.D.’s “own culpable conduct” exception, again applying the test on the simple basis of irregular entry.

On article 2, the Government argued that the family’s claim was inadmissible because the applicants had not filed a civil case for the state’s alleged failure to prevent the child’s death. Nonetheless, the Court ruled that in these circumstances, only an effective criminal investigation would constitute an effective remedy, as is required in situations of deaths caused by the state’s recklessness, deaths occurring in suspicious circumstances, or when state agents disregarded legal duties.¹¹³ The Court gave particular weight to the fact that the officers’ actions right before the death “might have involved a deliberate disregard” of their duties under national and EU asylum law, the UN Convention for the Rights of the Child, or “at the very least” Croatia and Serbia’s readmission treaty.¹¹⁴ The Court found a violation of article 2’s procedural obligations and held the national criminal proceedings to be inadequate due to major flaws: While statements from the applicants and witnesses had been discarded as unreliable for minor discrepancies, those of police officers were deemed consistent, and changes made to these statements throughout the investigation were not questioned.¹¹⁵ Further, a number of crucial investigative steps were omitted. In particular, the police’s claim that footage of the events from border thermal cameras was unavailable was not verified by the investigative attorney general’s office. Similarly, the family’s request that their presence on Croatian soil be verified through an analysis of their mobile phone’s GPS data was disregarded. Finally, the family and their lawyer were excluded from the investigative process by being denied access to information on the investigation, and their suggestions and requests on what action to take were consistently disregarded.¹¹⁶ The Court declined to find a violation of article 2’s material limb, resting on the possibility for Croatian authorities to re-open the criminal proceedings.¹¹⁷ The Croatian government has since confirmed that further investigative steps will be taken; however, the current new lines of inquiry still rely exclusively on the re-examination of data held by the state, explaining that any personal data is erased after 12 months. Further, the investigation has remained exclusively in the hands of the police¹¹⁸ despite the fact that the violations themselves resulted from a covert practice coordinated at the highest levels of same institution,¹¹⁹ and thus lack the necessary independence to be effective.¹²⁰

A.A. and others v. North Macedonia concerned the March 2016 formal closure of the Balkan corridor, which had allowed the relatively safe passage of refugees into Northern Europe since mid-2015.¹²¹ Its 8 March 2016 closure trapped some 13,000 people at the border between Greece and North Macedonia, facing dire living conditions and a fully inadequate Greek asylum system.¹²² The applicants were eight adults – including one man in a wheelchair – who, due to the horrendous living there, took part on 14 March 2016 in what would be called “The March of Hope” and crossed into Northern Macedonia to seek refuge. There, they were stopped by Northern Macedonian officers who impeded their access to humanitarian or legal support¹²³ and drove them back to the border fence, cut holes, and forced them to crawl underneath,¹²⁴ as Aus der ZeitschriftAsyl 1/2023 | S. 3–17 Es folgt Seite № 14⬆was widely reported in the media.¹²⁵ The case asked the Court to position itself on the unacknowledged consequences of the EU Council’s decision to close borders: a now Europe-wide border practice of refusing to register asylum seekers on states’ territories, denying them access to asylum, and summarily expelling them.¹²⁶ In M.H. v. Croatia, the Court had already stated that such behaviour violated officers’ duty under the EU Asylum Procedure Directive to facilitate access to asylum claim registration.¹²⁷

Given the causal link between the EU Council’s decision and applicants’ fate, the applicants were able to submit overwhelming evidence of refugees being “stranded” in Greece at the material time. This included reports from UN,¹²⁸ CoE,¹²⁹ and EU¹³⁰ bodies, as well as international¹³¹ and local NGOs specialized in refugee rights.¹³² Submitted evidence showed a complete lack of registration of newly arrived asylum seekers in Northern Macedonia between March and August 2016 – the time of applicants’ expulsions – with a clear drop from 8 March 2016, the day after the EU Council’s announcement.¹³³

Despite all this, the Court found no violations, ruling that the applicants were barred from claiming rights under A4P4 as they had crossed irregularly in a large group. The Court acknowledged that applicants had not used violence¹³⁴ but stated that it would, by now familiarly, continue to examine whether their irregular entry “circumvented an effective procedure for legal entry.” This time, unlike in Shahzad and M.H., the Court concluded that asylum seekers could have accessed asylum through the border posts on 14 March 2016. It did so by citing numbers provided by the Government of certificates of intentions to claim asylum issued “between 19 June 2015 and 8 March 2016,”¹³⁵ precisely before the closure of the borders at stake in the case. Moreover, these certificates were issued at the Vinojug transit center in Gevgelija, around 2km away from the border, to those who had already crossed irregularly and away from any official border crossing, further highlighting their lack of relevance to the expulsion at hand. The Court did not question the Government’s claim that these certificates were issued at the official border crossing of Bogorodica,¹³⁶ despite reports to the contrary by UNHCR.¹³⁷ These devastating conclusions echo the gross factual errors of the Court in its assessment of access to legal entry in N.D. and N.T.¹³⁸ Such erroneous findings seriously question the Court’s ability – or willingness – to adequately assess the factual existence of “means of legal entry” under the Aus der ZeitschriftAsyl 1/2023 | S. 3–17 Es folgt Seite № 15⬆“own culpability conduct” exception in cases where individuals cross irregularly for lack of other options.

The Court’s findings in two (in)admissibility decisions concerning the Spanish-Moroccan land border present similarly grave flaws. Following N.D. and N.T., these cases both challenged the “hot returns” (devoluciones en caliente) at the borders of Melilla and Ceuta, Spanish enclaves bordering Morocco. Previous attempts to address these expulsions before national courts had failed, including a criminal investigation into the tragedy of the “Tarajal massacre,” during which dozens of PoM died after the Spanish Guardia Civil fired rubber bullets and canister cans toward a group of persons struggling to keep afloat in the water.¹³⁹ Yet the outcome of these two Strasbourg cases has confirmed impunity at the Spanish-Moroccan land border, as well as the racialised nature of the issue.