Afghanistan, Asylum Law and the Balkan Route: When Protection Becomes Intermittent
I will never forget the images of August 15, 2021, when Kabul fell. Hamid Karzai International Airport became the last possible boundary between life and fear. Thousands of people were running, crowding, pleading for a way out. Some clung to departing aircraft, in a desperation that marked the collective conscience. In those days, an international airlift led by the United States was activated to evacuate diplomats, foreign nationals, and Afghan collaborators. Italy, through Operation Aquila Omnia, concluded its evacuations on August 27, 2021, bringing 5,011 people to safety, including 4,890 Afghan citizens, through 90 flights. On August 30, the last American soldier left Afghanistan, formally ending twenty years of military presence.
Yet, as planes were taking off, a vast portion of that population was left behind. Many of those who had collaborated with Western forces were unable to evacuate. Exposed, identifiable, traceable individuals. People who knew—with a clarity that the law cannot ignore—that there would be no salvation. The Taliban had names, records, information. And with them, the power to strike.
I remember mothers handing over their children, even newborns, to Western soldiers, in the hope of securing at least their future. I remember an escape that was not only military, but also moral. NATO contingents left the country rapidly, without ensuring effective protection for all those who had collaborated. Humanitarian visas did not reach everyone. And those left behind were forced to face the consequences of total exposure.
This is the story of one of them.
Of one of those faces who did not make it onto those planes.
Of one of those who were denied a corridor, a visa, a form of protection.
It is the story of a man who does not ask for pity, but for recognition.
Who does not speak to accuse, but to exist.
And perhaps it is precisely here that the law must learn to pause for a moment:
to look, before judging.
An Afghan man, now thirty-five years old, who collaborated with Western forces and who, for that very reason, found himself in the most dangerous condition possible: being identifiable, recognizable, and therefore persecutable. His escape was not organized, not protected, not guaranteed. It was entrusted to chance, to resilience, to the ability to survive within a system that, at its most critical moment, ceased to function.
This is where his journey begins. And above all, this is where a legal question arises that can no longer be ignored: what remains of the law when those who should have been protected are left behind?
The case of a 35-year-old man who, in 2014, leaves his country to escape threats attributable to the Taliban is not merely an individual narrative: it is a concrete test of the resilience of the international and European system of fundamental rights. Within it, the right to asylum, the prohibition of refoulement, the protection of human dignity, and the minimum procedural guarantees that every State is required to ensure are all dramatically intertwined.
The legal basis for his flight is clear. A well-founded fear of persecution places the individual within the scope of the 1951 Geneva Convention, whose Article 33 enshrines the principle of non-refoulement, that is, the prohibition of expelling or returning a person to territories where their life or freedom would be threatened. This principle has now acquired customary status and binds States even beyond the conventional framework. At the domestic constitutional level, it finds a counterpart in Article 10, paragraph 3, of the Italian Constitution, which recognizes the right of asylum for foreigners who are denied the effective exercise of democratic freedoms in their country.
However, the journey from Afghanistan to Italy reveals a systematic fracture between proclaimed law and applied law.
The journey is not only dangerous. It is also deeply costly. There is no such thing as a free escape when legal pathways to protection are absent.
The protagonist entrusts his journey to an organized network already contacted by his family in Afghanistan. These are not random encounters along the way, but a true chain: different actors who, step by step, manage the passage—on foot across mountains, by car along borders, often in precarious and risky conditions.
The total cost of the journey amounts to approximately €12,000.
A figure that, superficially, might seem like the price of a dignified, almost "first-class" journey. In reality, it is the price of vulnerability. It is the cost of a system that promises passage and delivery, but returns suffering.
Because those who pay are not buying safety.
They are buying exposure.
They are buying days and nights in the woods, crossings on foot through mountains, endless waiting.
They are buying the real risk of being robbed, beaten, abandoned.
They are buying the possibility of being detained, pushed back, humiliated.
In many cases, they are also buying something far worse: violence, abuse, torture, and exploitation.
Payment, therefore, is not a guarantee. It is forced entry into an opaque chain in which the migrant becomes an object of transit, not a subject of rights.
And while these individuals exhaust everything they have—often indebting entire families—a parallel, highly profitable economic system is fueled. The proceeds of migrant smuggling do not remain isolated: they are reinvested in other illicit activities, strengthening transnational criminal networks and consolidating an economy of illegality that thrives precisely on the absence of legal alternatives.
At this point, the issue inevitably becomes political, even before it is legal.
If the concrete result of the absence of legal pathways is this—a market worth thousands of euros, built on suffering, violence, and exploitation—then the question is no longer whether to act, but how.
And the answer, however uncomfortable, is evident:
would it not be more consistent with international law principles and constitutional values to establish safe, accessible, and regulated humanitarian corridors?
Corridors that remove the need to rely on smugglers.
Corridors that disrupt this economy of desperation.
Corridors that restore the law to its original function: to protect, not to pursue.
Because every journey paid for as if it were "first class" and lived as a descent into violence ultimately represents a failure of the legal system as a whole.
The recourse to an organized network of intermediaries, at a total cost of approximately €12,000, introduces the issue of migrant smuggling, governed by the Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime. However, the legal dimension of this phenomenon cannot be reduced to a purely repressive logic. International jurisprudence has repeatedly emphasized that the absence of legal entry channels constitutes one of the primary factors fueling such networks, placing migrants in a condition of structural dependency.
The most critical point emerges along the Balkan route, particularly in Bulgaria and Hungary. Here, the narrative becomes legally disruptive. Repeated pushbacks, accompanied by dispossession and violence, stand in open contradiction with the obligations arising from Article 3 of the European Convention on Human Rights, which absolutely prohibits inhuman or degrading treatment.
The case law of the European Court of Human Rights is, on this point, unequivocal. In Hirsi Jamaa and Others v. Italy (2012), the Court held that the collective expulsion of migrants, carried out without an individual assessment of their circumstances, violates both Article 3 ECHR and Article 4 of Protocol No. 4 (prohibition of collective expulsions). The Court further emphasized that State responsibility persists even when actions take place outside national territory, whenever effective control over individuals is exercised.
Even more relevant, for the case at hand, is M.S.S. v. Belgium and Greece (2011), in which the Court found that the transfer of an asylum seeker to a Member State where reception conditions are degrading constitutes a violation of Article 3 ECHR. The principle that emerges is of general scope: States cannot evade their responsibilities by invoking mechanisms of cooperation, such as the Dublin system, when this results in a compromise of fundamental rights.
Transit through Iran and Turkey first and foremost highlights the condition of total legal precariousness faced by migrants in transit countries. The absence of an effective protection system forces individuals into a state of material clandestinity: hidden, exposed, deprived of any guarantees. Within this context, episodes of private violence—armed robbery, deprivation of essential goods—cannot be read as isolated criminal acts, but as structural elements of a journey in which the individual is stripped of all protection.
In the account of the Afghan man, the pushbacks in Bulgaria and Hungary appear to have occurred without any form of individual assessment. The confiscation of essential belongings, abandonment in conditions of extreme vulnerability, and reported beatings outline a scenario which, if verified, closely resembles several situations already condemned by the case law of the European Court of Human Rights.
Firstly, there is a violation of Article 3 of the European Convention on Human Rights, which absolutely prohibits inhuman or degrading treatment. The Court has clarified, in well-established jurisprudence, that this includes not only direct physical violence but also conditions of material deprivation and abandonment capable of undermining human dignity. In this regard, M.S.S. v. Belgium and Greece (2011) recognized that exposure to extreme precariousness and destitution may in itself constitute a violation of Article 3.
Secondly, the prohibition of collective expulsions under Article 4 of Protocol No. 4 to the Convention is engaged. In Hirsi Jamaa and Others v. Italy (2012), the Court affirmed that any removal measure must be preceded by an individual examination of the migrant's situation. Summary pushbacks, carried out automatically and without access to an asylum procedure, are incompatible with this obligation.
A further aspect concerns the potential violation of Article 13 of the Convention, relating to the right to an effective remedy. The absence of access to a lawyer, an interpreter, or an asylum procedure prevents migrants from asserting their rights, effectively emptying the guarantees provided of their substance.
Finally, the combination of pushbacks and the risk of further violations in destination countries once again invokes the principle of non-refoulement, as a corollary of Article 3 ECHR and Article 33 of the 1951 Geneva Convention.
To this must be added the issue of detention. The five-day confinement in a police facility, in the absence of evident procedural safeguards, directly engages the principles developed by the Court in relation to deprivation of liberty. Article 5 of the Convention requires that any detention be lawful, necessary, and accompanied by the possibility of judicial review. The absence of such guarantees transforms administrative detention into an arbitrary measure.
The passage through Austria represents a turning point. No similar episodes of violence emerge, yet protection remains conditioned by the Dublin system, which may entail transfers to countries not always capable of ensuring adequate conditions. However, it is precisely during the train journey to Italy that something different occurs. Without a ticket, he is helped by individuals who choose not to report him, not to obstruct him, and to guide him toward appropriate food. Simple gestures, almost invisible, yet deeply meaningful. In that moment, the law—absent along the route—manifests itself in its most elementary form: humanity.
Arrival in Italy in 2015 marks the first true legal landing. He obtains a residence permit, begins working, and builds a perspective. Yet stability remains fragile. The permit expires. Renewal becomes entangled in lengthy administrative timelines and uncertainty. Eight months of waiting, appointments scheduled months apart, contradictory instructions.
The protagonist, in fact, lacked the financial means to afford a lawyer. And it is precisely here that a dimension of the rule of law often invisible yet fundamental emerges: the role of lawyers operating in contexts of marginality, the so-called "street lawyers."
These figures represent an essential bridge between formal law and effective law. They intervene where the system risks excluding those without means, restoring substance to the principle of substantive equality enshrined in Article 3 of the Italian Constitution. They do not merely provide legal assistance; they make justice accessible to those who would otherwise be excluded from it. In this sense, defense is not merely a technical prerogative, but a cornerstone of legal civilization. Without such interventions, the law would risk becoming the preserve of those who can afford it, betraying its most authentic function: to protect, above all, the most vulnerable.
In this context, judicial review assumes a central role. It represents not only a tool of individual defense, but also a mechanism for rebalancing the system, aimed at bringing administrative action back within the limits of legality.
What ultimately emerges is a structural tension between border control and the protection of fundamental rights. A tension that cannot be resolved through the compression of guarantees, but requires the strengthening of protection mechanisms.
The story of this man is not a pathological exception. It is a paradigmatic manifestation of a system in which the law risks becoming intermittent: strong in texts, weak in practice. And it is precisely within this intermittency that the credibility of the European legal order is at stake.
Because if the law is to remain law, it cannot merely proclaim principles. It must be capable of withstanding the test of reality. It must operate where the individual is most vulnerable. It must, ultimately, demonstrate that it is not only a system of norms, but an effective instrument for the protection of human dignity.
Related posts:
Balkan Route and Asylum Law: A Migrant’s Story from Pakistan to Italy
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