Pushbacks on land and sea: illegal measures of migration management
- Author(s):
- Parliamentary Assembly
- Origin
- Assembly
debate on 12 October 2022 (31st sitting) (see Doc. 15604, report of the Committee on Migration, Refugees and
Displaced Persons, rapporteur: Mr Pierre-Alain Fridez). Text adopted by the Assembly on
12 October 2022 (31st sitting).
1. The 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 the Committee of Ministers 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 “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” (
Doc. 14909). Pushback
practices are also linked to “pullbacks”, which consist in agreements
between States aiming to retain migrants on one side of a border
in exchange for financial or economic advantage.
2. The 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, the Convention) and Article 4 of its Protocol
No. 4 (ETS No. 46) prohibit member States of the Council of Europe
from returning migrants and asylum seekers to another country without
an individual assessment as to whether this is safe.
3. The 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 worldwide efforts in protecting the right
to asylum enshrined in the United Nations’ Convention relating to
the Status of Refugees of 1951 (“the 1951 Refugee Convention”) and
other relevant international instruments.
4. The Assembly deplores the profound disregard for international
standards on the matter in some countries, combined with the instrumentalisation
of migration flows 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 Council of Europe’s
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 of losing one’s life on an extremely perilous journey.
5. Furthermore, the Assembly calls upon the Council of Europe
observer and member States, as well as States whose parliament enjoys
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
perspectives. Migration is a natural societal phenomenon and should
be addressed collectively as a continent, in order to manage migration
flows in an orderly way that helps to promote the social and occupational
inclusion of migrants, while benefiting fully from its positive consequences.
6. The 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 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.
7. The Assembly underscores the importance of well-functioning
independent border monitoring mechanisms at national and European
levels. The Assembly 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 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.
8. The Assembly notes that the European Union is often the main
destination for migrants arriving in 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 investigations 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, therefore,
be supported and its monitoring capacity enhanced.
9. The 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. The 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 the application of provisions that
criminalise their actions.
10. The Assembly calls on Council of Europe member States to encourage
changes at the 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 of the Treaty
on the Functioning of the European Union, based on shared responsibility.
The Assembly therefore 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 thereby contribute to putting an end to pushbacks.
11. The Assembly welcomes the decisions taken by regional courts
in some countries, ruling in favour of refugees, migrants and asylum
seekers who have been pushed back outside the European Union’s external borders,
underscoring that the practice of pushing back asylum seekers gives
rise to a violation of the principle of human dignity.
12. The Assembly calls for changes to the law and practice in
the Council of Europe member States to stop pushbacks on land and
at 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:
12.1 as regards prevention:
12.1.1 to 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 an individual assessment of protection needs and of the
safety of 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;
12.1.2 to establish secured access to border checkpoints; notably,
representatives of national prevention mechanisms should have full
access to checkpoints and retention facilities, where such exist,
to ensure full respect for international asylum norms;
12.1.3 to make national legislation and policies human rights-compliant
and to amend migration legislation with a view to preventing and
prohibiting pushbacks and the denial of the right to asylum;
12.1.4 to make the relevant legal framework accessible, precise
and clear to all migrants, refugees and asylum seekers, available,
as much as possible, in languages that enable them to understand
the procedures. Relevant and effective means of redress should be
in place in cases of denial of asylum at first instance;
12.1.5 considering that civil society’s role in upholding and
advancing democratic values and fundamental rights, including the
right to asylum, is crucial, especially as it plays an important
role in documenting cases of pushbacks, to encourage and support
its 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 the Committee of Ministers’ Recommendation CM/Rec(2007)14
on the legal status of non-governmental organisations in Europe;
12.2 as regards protection:
12.2.1 to 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 victims are in
place. Urgent measures must be taken to ensure the protection of the
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;
12.2.2 States members of the European Union should take measures
to bring European Union law and practice into compliance with human
rights standards, as mentioned in the Assembly’s
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;
12.3 as regards prosecution:
12.3.1 to 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 also apply during emergency situations;
12.3.2 to 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;
12.4 as regards international co-operation and co-ordination:
12.4.1 to 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 tragedies at Europe’s maritime borders;
12.4.2 to include, with respect to co-operation between border
police authorities, specialised training on the application of international
standards on 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;
12.4.3 to enhance international co-operation at regional and
global 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 follow-up actions of the United Nations
High Commissioner for Refugees 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;
12.4.4 to further develop international co-operation between
European Union and non-European Union countries’ border police structures,
with the participation of Frontex, with the aim of upgrading the
competences of border police in 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.
13. The Assembly welcomes the new initiatives aimed at ensuring
protection for Europe’s borders in full respect of the 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 to set up a robust and independent
human rights monitoring mechanism at the external borders of the
European Union on 4 May 2022.
14. Finally, the Assembly calls for stronger commitment to upholding
human rights standards at Europe’s borders. The time has come for
parliamentarians to stand up against pushbacks, to call for the
sharing of responsibility in the management of migration between
the different Council of Europe member States and to follow the
developments closely both at the national and European levels.
