Logo Assembly Logo Hemicycle

Pushbacks on land and sea: illegal measures of migration management

Doc. 15604: compendium of written amendments | Doc. 15604 | 12/10/2022 | Final version

Caption: AdoptedRejectedWithdrawnNo electronic votes

ADraft Resolution

1The Parliamentary Assembly recalls its Resolution 2299 (2019) and its Recommendation 2161 (2019) “Pushback policies and practice in Council of Europe member States” and the subsequent reply by the Committee of Ministers (Doc. 15088), in which it welcomed the Assembly’s continued attention to migrants and asylum seekers. The term “pushbacks” is “in line with the violent and physical nature of the practices involved”, and it “may be applied broadly to cases of non-respect of human rights obligations related to refusal of entry into a country of persons seeking protection, the refoulement of those already within a territory, collective expulsion, obligations to carry out screenings, and other hostile action aimed to deny entry into European countries at land and sea borders”. Pushback practices are also linked to “pullbacks”, which consist in agreements between States aiming to retain migrants on one side in exchange for financial or economic advantage.
2The Assembly notes that the Committee of Ministers stressed in its reply that the right to seek asylum must be respected, underscoring that asylum seekers have the right to an individual and fair examination of their applications by the competent authorities”. The Committee of Ministers reiterated the obligation of the State receiving the asylum application to “ensure that return of the asylum seeker to his/her country of origin or any other country will not expose him/her to a real risk of the death penalty, torture or inhuman or degrading treatment or punishment, persecution, or serious violation of other fundamental rights which would, under international or national law, justify granting protection”. Article 3 of the European Convention on Human Rights (ETS No. 5) and Article 4 of its Protocol No. 4 (ETS No. 46) prohibit member States of the Council of Europe returning migrants and asylum seekers to another country without an individual assessment as to whether this is safe.
3The Assembly recalls its Resolution 2379 (2021) “Role of parliaments in implementing the United Nations global compacts for migrants and refugees” and Resolution 2408 (2021) “70th anniversary of the 1951 Refugee Convention: the Council of Europe and the international protection of refugees”, where it agreed to support world efforts in protecting the right to asylum enshrined in the 1951 United Nations Convention Relating to the Status of Refugees (“the Refugee Convention”) and other relevant international instruments.
4The Assembly deplores the profound disregard of international standards on the matter in some countries, combined with the instrumentalisation of migration flow for political purposes in others, and concludes that the right to asylum continues to be breached. Border pushbacks have now taken on worrying proportions, taking place routinely on land and in the more deadly environment of the sea, becoming a pan-European problem which pertains to at least half of the member States. Allegations are no longer limited to just one or two countries, or one or two incidents, but have become widespread and, most worryingly, part of tolerated policy. Pushbacks from Croatia to Bosnia and Herzegovina, from Greece to Türkiye, from Malta and Italy to Libya, from Hungary to Serbia, and from Poland to Belarus render the plight of migrants and refugees even harsher, heightening the risk to lose one’s life in an extremely perilous journey.

In the draft resolution, paragraph 4, last sentence, after the words “from Greece to Türkiye,”, insert the following words:

“from Switzerland, France and Austria to Italy,”

In the draft resolution, paragraph 4, last sentence, delete the following words:

“and Italy”

5Furthermore, the Assembly calls upon the Council of Europe observer and member States, as well as States whose parliament enjoys the observer or partner for democracy status to the Assembly, to respect international obligations and to enhance interstate solidarity. They should work together to guarantee the right to asylum, including member States from Central and Northern Europe. Interstate solidarity is key for a stronger Europe from political, economic, social, and cultural perspective. Migration is a natural societal phenomenon and should be addressed collectively as a continent to be more effective and to benefit fully from its positive consequences.

In the draft resolution, paragraph 5, last sentence, delete the words:

“to be more effective and to benefit fully from its positive consequences”.

12 October 2022

Tabled by Ms Sabrina DE CARLO, Mr Alberto RIBOLLA, Mr Manuel VESCOVI, Ms Maria RIZZOTTI, Mr Fabio DI MICCO, Ms Catia POLIDORI

Falls if amendment 3 is adopted.

Votes: 62 in favor 7 against 3 abstentions

In the draft resolution, paragraph 5, last sentence, replace the words “to be more effective and to benefit fully from its positive consequences”, with the following words:

“in order to manage migration flows in an orderly way that helps to promote the social and occupational inclusion of legal immigrants, while benefiting fully from its positive consequences”.

6The Assembly welcomes the Recommendation of the Council of Europe Commissioner for Human Rights, Ms Dunja Mijatović, “Pushed beyond the limits. Urgent action needed to stop pushbacks at Europe’s borders”, where she addressed the role of members of parliament in preventing human rights violations at the borders, noting that parliamentarians can play an important role in preventing pushbacks, in line with their wider role as guarantors of human rights, both as legislators and as those responsible for carrying out democratic oversight of government action.
7The Assembly underscores the importance of well-functioning independent border monitoring mechanisms at national and European levels. It forewarns, however, against the risk of paying lip service to the principle of independence by those national authorities that try to undermine the independence of such bodies by making them either dependent on the government for funding, by imposing membership in oversight committees for government-friendly entities, by restricting their access to the border or migrant retention facilities, or by limiting their actions through other means. It recalls the importance of democratic checks and balances and of independent monitoring in its fullest form.
8The Assembly notes that the European Union is often the main destination of migrants arriving to Europe. The European Union institutions should, therefore, serve as guarantors of international human rights protection regarding the right to asylum and the prohibition of refoulement. The European Border and Coast Guard Agency (Frontex) should be called upon to enhance its capacity to deal with allegations of pushbacks and allow for thorough investigation to bring those responsible for pushbacks to justice. The Assembly underscores that effective border control and the protection of fundamental rights are fully compatible. The work of the Fundamental Rights Officer of Frontex should be, therefore, supported and its monitoring capacity enhanced.

In the draft resolution, paragraph 8, replace the third sentence with the following sentence:

“The European Border and Coast Guard Agency (Frontex) should be called upon to enhance its capacity to combat cross-border crime and to conduct thorough investigations to bring those responsible to justice”.

9The Assembly deplores the use of anti-smuggling legislation against human rights defenders and people engaged in search and rescue operations on land and at sea, making access to asylum for people on the move harder to reach. Right to asylum includes the right to be informed about asylum procedures, including by civil society organisations, advocacy groups, human rights defenders and specialised legal aid institutions. States must ensure that the functioning of such bodies is not de facto prohibited by criminalising their actions.

In the draft resolution, replace paragraph 9 with the following paragraph:

"The Assembly calls on member States to encourage changes at European level to achieve a sustainable reception process shared with other member States, in accordance with the principle of solidarity referred to in Article 80 TFEU, based on shared responsibility, in order to avoid human rights defenders and those engaged in search and rescue operations on land and at sea being forced to act as a substitute for the State. The right to asylum includes the right to be informed about asylum procedures and, until an effective management system is ensured, civil society organisations, advocacy groups, human rights defenders and legal aid institutions can co-operate with the institutions of the member States, in accordance with the legislation in force and the rule of law".

10The Assembly welcomes the decisions taken by regional courts in some countries, ruling in favour of refugees, migrants and asylum seekers who had been pushed back outside the European Union’s external borders, underscoring that the practice of pushing back asylum seekers gave rise to a violation of the principle of human dignity.
11The Assembly calls for changes to the law and practice in the Council of Europe member States to stop pushbacks at land and sea and to codify the principle of non-refoulement in national legislation. In specific terms, it asks member States to take measures to prevent pushbacks, to protect the victims of pushbacks, to prosecute those responsible for pushbacks and to improve international co-operation and co-ordination between border authorities, police, and other bodies in charge of border protection, as follows:

In the draft resolution, replace paragraph 11 with the following paragraph:

"The Assembly calls upon the Council of Europe member States to change their legislation and practice in order to encourage the sharing of responsibilities and solidarity with the countries most affected by the influx of migrants by sea and by land. Specifically, it calls on member States to take measures to set quotas for the redistribution of migrants, to prosecute offenders and to improve international co-operation and co-ordination between border authorities, police forces and other bodies in charge of border protection, as follows:"

12 October 2022

Tabled by Ms Sabrina DE CARLO, Mr Alberto RIBOLLA, Mr Manuel VESCOVI, Ms Maria RIZZOTTI, Mr Fabio DI MICCO, Ms Catia POLIDORI

Falls if amendment 8 is adopted.

In the draft resolution, replace paragraph 11 with the following paragraph:

"The Assembly calls upon the Council of Europe member States to change their legislation and practice in order to promote a multilateral policy of putting in place legal pathways to all European countries on the basis of shared responsibility, to promote solidarity with the countries most affected by the influx of migrants by sea and by land, and thus to put an end to pushbacks. Specifically, it calls on member States to take measures to set quotas for the redistribution of migrants, to prevent pushbacks, to protect the victims of pushbacks and combat trafficking in human beings, to prosecute those responsible for these acts and to improve international co-operation and co-ordination between border authorities, police forces and other bodies in charge of border protection, as follows:"

11.1as regards prevention:
11.1.1to prevent all forms of “pushback” and “pullback” actions regarding migrants, refugees, and asylum seekers. Priority should be given to ensuring that border management is aligned with international law and human rights obligations. The Assembly underscores the need to ensure the individual assessment of protection needs and of the safety of a return in order to prevent violation of Article 3 of the European Convention on Human Rights and of the prohibition of collective expulsions, as enshrined in Article 4 of Protocol No. 4 to the Convention;

12 October 2022

Tabled by Mr Alberto RIBOLLA, Ms Sabrina DE CARLO, Mr Manuel VESCOVI, Ms Maria RIZZOTTI, Mr Fabio DI MICCO, Ms Catia POLIDORI

If adopted, amendment 10 falls.

In the draft resolution, paragraph 11.1.1, delete the first sentence.

In the draft resolution, at the start of paragraph 11.1.1,before the words "to prevent all forms of "pushback" and "pullback" actions regarding migrants", add the following words:

"to promote, through the competent institutions, the setting-up of United Nations or European Union offices in the countries of departure of migrants in North Africa, for the purpose of examining directly on the spot applications for asylum before they start their journey, in order to ensure that priority is given"

11.1.2to establish secured access to border checkpoints, notably representatives of national prevention mechanisms should have full access to the checkpoints and retention facilities, where such exist, to ensure full respect of international asylum norms;
11.1.3to make the national legislation and policies human rights-compliant and to amend migration legislation with a view to prevent and prohibit pushbacks and the denial of right to asylum;

In the draft resolution, delete paragraph 11.1.3.

11.1.4to make the relevant legal framework accessible, precise and clear to all migrants, refugees and asylum seekers, available, as much as possible, in languages for them to understand the procedure. Relevant and effective means of redress should be in place in cases of denial of asylum in first instance;
11.1.5considering that the civil society’s role in upholding and advancing democratic values and fundamental rights, including the right to asylum, is crucial, especially as they play an important role in documenting cases of pushbacks, to encourage and support their participation in the independent monitoring mechanisms at national and European levels. Independent border monitoring mechanisms should be able to verify misconduct by State border police and report on it to the competent judicial authorities. Council of Europe member States must respect the role of non-governmental organisations and human rights defenders in conformity with their commitments, as set out in Committee of Ministers Recommendation CM/Rec(2007)14 on the legal status of non-governmental organisations in Europe;

12 October 2022

Tabled by Mr Alberto RIBOLLA, Ms Sabrina DE CARLO, Mr Manuel VESCOVI, Ms Maria RIZZOTTI, Mr Fabio DI MICCO, Ms Catia POLIDORI

If adopted, amendment 13 falls.

In the draft resolution, delete paragraph 11.1.5.

In the draft resolution, at the end of paragraph 11.1.5, insert the following words:

"to enable non-governmental organisations to cope with the complexity of rescue operations and to ensure the safety of migrants and operators, member States are invited to introduce specific provisions and clear rules to be applied, which must be established in consultation with the European Commission and in co-operation with the relevant stakeholders;"

11.2as regards protection:
11.2.1to develop specific programmes to protect the victims of pushbacks, possibly in the framework of the Council of Europe Action Plan on Protecting Vulnerable Persons in the Context of Migration and Asylum in Europe (2021-2025) and to ensure that effective complaints mechanisms for the victims are in place. Urgent measures must be taken to ensure the protection of most vulnerable migrants and refugees: children, women, people with disabilities, and elderly people. An absolute prohibition of pushbacks of migrant children should be in place in all Council of Europe member States;
11.2.2States members of the European Union should take measures to bring the European Union law and practice in compliance with human rights standards, as mentioned in the Assembly Resolution 2416 (2022) “European Union Pact on Migration and Asylum: a human rights perspective”. This should include legal guarantees clearly established in the 1951 Refugee Convention and the European Convention on Human Rights. Practices violating the right to apply for asylum should stop;
11.3as regards prosecution:
11.3.1to ensure that allegations of pushbacks are fully investigated and those responsible are held to account to dissuade the continuation of such practices. The Assembly reiterates, therefore, the importance of the prohibition of torture or inhuman or degrading treatment and the prohibition of collective expulsions, which apply also during emergency situations;
11.3.2to comply with judgments of national courts and of the European Court of Human Rights, including their interim measures, in relation to pushbacks and refusing access to asylum and even to an asylum procedure, and to follow up recommendations of national independent bodies such as ombudspersons, as stated in Resolution 2299 (2019), keeping in mind that codifying the principle of non-refoulement in national legislation is key;
11.4as regards international co-operation and co-ordination:
11.4.1to strengthen international co-operation and co-ordination in the fields of border protection, on the one hand, and migration management, on the other. This is of great relevance as regards search and rescue operations at sea which should be effective, saving lives being the primary objective. International co-operation and co-ordination at sea should, therefore, be further enhanced to prevent human tragedy at Europe’s maritime borders;
11.4.2co-operation between border police authorities should include specialised training on the application of international standards in access to an asylum procedure, to ensure that relevant measures are in place for any individual indicating their need to seek international protection. New technological means can be used to improve access to relevant procedures and provide relevant information to asylum seekers in various languages;
11.4.3to enhance international co-operation at regional and world levels to take stock of the real progress on the right to asylum. The work of the United Nations Special Rapporteur on the Human Rights of Migrants, the United Nations High Commissioner for Refugees follow-up actions to ensure full compliance with the 1951 Refugee Convention and its 1967 Protocol, the actions of the Council of Europe Commissioner for Human Rights and of the Special Representative of the Council of Europe Secretary General on Migration and Refugees must guide public policies, in addition to the relevant treaty bodies;
11.4.4to further develop international co-operation between EU and non-EU countries’ border police structures, with the participation of Frontex, with the aim of upgrading the competences of border police in the Council of Europe member States as regards the right to asylum, in full compliance with the 1951 Refugee Convention and its 1967 Protocol, the European Convention on Human Rights, and other relevant treaties. Redress measures for failure to respect the law should be clearly stated and applied.
12The Assembly welcomes the new initiatives aimed at ensuring protection of Europe’s borders in full respect of fundamental rights and dignity of those who attempt to cross the borders. It calls for an open and constructive discussion based on the findings of the feasibility study that was launched for setting up a robust and independent human rights monitoring mechanism at the external borders of the European Union on 4 May 2022.
13Finally, the Assembly calls for stronger commitment to upholding human rights standards at Europe’s borders. Time has come for parliamentarians to stand up against pushbacks and to follow the developments closely both at the national and European levels.

12 October 2022

Tabled by Mr Alberto RIBOLLA, Ms Sabrina DE CARLO, Mr Manuel VESCOVI, Ms Maria RIZZOTTI, Mr Fabio DI MICCO, Ms Catia POLIDORI

If adopted, amendment 14 falls.

In the draft resolution, paragraph 13, delete the second sentence.

12 October 2022

Tabled by Ms Sabrina DE CARLO, Mr Alberto RIBOLLA, Mr Manuel VESCOVI, Ms Maria RIZZOTTI, Mr Fabio DI MICCO, Ms Catia POLIDORI

Falls if amendment 15 is adopted.

In the draft resolution, paragraph 13, second sentence, replace “to stand up against pushbacks" with the following words:

"to call for the sharing of responsibility in the management of migration flows between the different Member states".