HUMAN RIGHTS IN THE EUROPEAN CONSTITUTIONAL ORDER

The legislation seems to institutionalize a rule formerly used by Member States in a detrimental way. The ECtHR case law shows how the legal fiction of non-entry may be used as a tool for pushbacks or a way to breach the principle of non-refoulement. Instead of providing irregular migrants a rather high or at least adequate level of protection, given the fact that some of them are disembarked after an operation at sea, the current legislation appears to favour concepts and mechanisms that have failed in the past in terms of efficiency and safety.

72