Ensuring human rights-compliant asylum procedures
Resolution 2555
(2024)
| Provisional version
- Author(s):
- Parliamentary Assembly
- Origin
- Assembly
debate on 25 June 2024 (18th sitting) (see Doc. 15997, report
of the Committee on Migration, Refugees and Displaced Persons, rapporteur:
Ms Stephanie Krisper). Text adopted by the Assembly on
25 June 2024 (18th sitting).
1. The Parliamentary
Assembly recalls and aligns with the position of the United Nations
High Commissioner for Refugees (UNHCR) whereby the refugee definition
is declaratory which means that a person is a refugee as soon as
s/he fulfils the criteria contained in the definition and that principles
foreseen by international refugee law should apply in all situations.
2. 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) commit member States to making sure that they will not expose,
positively or negatively, anyone falling under their jurisdiction
to a risk of torture, or inhumane or degrading treatment. Only through
a fair and effective individual examination of an asylum application
can such obligation be met, taking into account specific vulnerabilities
faced by persons belonging to certain groups such as women, ethnic, religious
and national minorities, LGBTI people, victims of violence, and
victims of human trafficking. In case of appeal, the remedy must
be accompanied by the automatic suspensive effect of expulsion measures
should the applicant complain of a risk under Articles 2 or 3 of
the Convention. These safeguards are required for the appeal to
be considered effective and in compliance with Article 13 of the
Convention, as well as with the consistent case law of the European
Court of Human Rights (“the Court”).
3. The Assembly expresses its profound concern at the gradual
erosion of the right to seek asylum as a reaction to the growing
number of asylum applications in Europe, as well as to the instrumentalisation
and exaggeration of the phenomenon of incoming migration, orchestrated
for political purposes domestically or by certain external regimes
as a means of exerting pressure on European countries for other
purposes. It warns against this trend which, on the one hand, infringes
on international human rights and European law and which thus eventually
weakens the core principles of the rule of law and, on the other
hand, leads to chaos and human suffering.
4. The Assembly reiterates the concerns already expressed in
Resolution 2404 (2021) “Instrumentalised migration pressure on the borders
of Latvia, Lithuania and Poland with Belarus” in which it condemned
“the growing tendency to restrict the right to seek asylum of persons
crossing a border irregularly and any practice by member States
of
refoulements of migrants
and asylum seekers to third countries, where international protection
needs may not be guaranteed”.
5. The Assembly recalls the reply by the Committee of Ministers
to
Recommendation 2161
(2019) “Pushback policies and practice in Council of Europe
member States”, in which the Committee of Ministers noted that “the
right to seek asylum must be respected”, in particular, “the right
to an individual and fair examination” of asylum applications by
the competent authorities” (
Doc. 15088).
6. The Assembly highlights that asylum seekers may not be able
to avail themselves of their right to seek asylum because of restriction
or even blocking of access, disproportionally strict eligibility
criteria or wide derogation rules, insufficient capacities and resources
to process cases or dire reception conditions. It underlines that
policies of deterrence have neither demonstrated their efficiency
in enhancing domestic security nor strengthened the protection of
civil liberties. Therefore, the Assembly calls on member States
to avoid resorting to such policies.
7. The Assembly notes that asylum seekers belonging to with vulnerable
groups, particularly women, ethnic, religious and national minorities,
LGBTI people, victims of violence and victims of human trafficking,
are disproportionately affected by human rights violations at all
stages of the asylum process, both by the action and inaction of
relevant State representatives. The Assembly calls on member States
to develop policies in accordance with their human rights obligations
that take account of specific vulnerabilities of the aforementioned
persons.
9. The Assembly reiterates that access to legal aid must be guaranteed.
It encourages national parliaments to guarantee the professional
independence of legal aid providers and ensure their high competence
in line with the Guidelines of the Committee of Ministers of the
Council of Europe on the efficiency and the effectiveness of legal
aid schemes in the areas of civil and administrative law (
CM(2021)36-add2final).
10. The Assembly recalls its
Resolution 2461 (2022) and
Recommendation
2238 (2022) “Safe third countries for asylum seekers”, and welcomes
the reply of the Committee of Ministers (
Doc. 15874) informing the Assembly of its readiness to evaluate
the need for and feasibility of updating Recommendation Rec(97)22 to
member States containing guidelines on the application of the safe
third country concept. The Assembly is therefore looking forward
to the results of this evaluation and updated guidelines on the
safe third country concept.
11. The Assembly calls on national parliaments to review the alignment
of national legislation with the case law of the European Court
of Human Rights and with the above-mentioned documents adopted by
the Committee of Ministers.
12. The Assembly calls on parliaments and governments of member
States to significantly increase the availability of the resources
necessary for the processing of asylum claims in a fast, fair and
effective manner especially at the border, including through proper
access to legal aid and effective remedy.
13. The Assembly notes the adoption of the European Union Pact
on Migration and Asylum. It recalls its
Resolution 2416 (2022) “European Union Pact on Migration and Asylum: a human
rights perspective” and the remaining validity of the recommendations.
In particular, the Assembly:
13.1 reiterates
its deep concerns at the prospect of detention and de facto detention being systematised
especially in the context of the newly established border procedures.
It expresses its uncompromising opposition to the detention of children,
whatever their age, and recalls that asylum seekers are not immigration
detainees;
13.2 stresses the importance of frontloading human, infrastructural
and technical resources to ensure that member States can deliver
on their international human rights obligations to ensure effective
access to the territory of asylum and to a fair and swift asylum
procedure for all individuals across the European Union territory;
13.4 welcomes the adoption of the Council Regulation (EU) 2022/922
of 9 June 2022 on the establishment and operation of an evaluation
and monitoring mechanism to verify the application of the Schengen acquis, at European Union external
and internal borders; and recommends that the Schengen evaluators
are trained on the identification of people in need of international
protection in line with Council of Europe standards and recommendations;
13.5 encourages the European Commission to ensure that the
allocation of the European Union funding be conditioned on specific
fundamental rights clauses. In particular, the Assembly underlines
the importance of imposing such conditions in accessing European
Union funding during preliminary, mid-term and reviewing evaluation.
It recommends that such conditions involve criteria assessing the
respect for effective access to procedural safeguards during asylum
procedures as part of the “enabling conditions” pursuant to Regulation
(EU) 2021/1060 of the European Parliament and of the Council of
24 June 2021 laying down common provisions.
14. The Assembly notes that the adoption of the European Union
Pact will lead to a two-year period for evaluation of the situation
in European Union member States with respect to the implementation
of the new legislation in place. It also notes that the Pact entails
components which involve external co-operation elements which will
have an impact on non-European Union member States, many of which
are members or partners of the Council of Europe.
15. With a view to ensuring coherence in the concrete materialisation
of effective human rights safeguards forming guidance for the approach
of member States of the Council of Europe, including European Union member
States, the Assembly:
15.1 encourages
the European Commission and European Union member States to make
explicit reference to the Council of Europe’s relevant standards
and documents, including country reports and relevant case law of
the European Court of Human Rights, both in their gap analyses and
in the follow-up and assessment documents produced in the framework
of the European Union Pact;
15.2 stresses that particular attention should be paid to the
preventive mechanisms and monitoring tools falling under the remit
of the European Committee for the Prevention of Torture and Inhuman
or Degrading Treatment or Punishment, the Group of Experts on Action
against Trafficking in Human Beings, the Group of Experts on Action
against Violence against Women and Domestic Violence and the Consultative
Committee of the Convention for the Protection of Individuals with
regard to Automatic Processing of Personal Data (ETS No. 108);
15.3 calls on the above-mentioned monitoring bodies to pay
specific attention to vulnerable persons with a migration background,
including persons in need of international protection, as part of
their monitoring activities;
15.4 invites the Special Representative of the Secretary General
on Migration and Refugees (SRSG) to facilitate intergovernmental
discussions, for instance through the Network of Focal Points on Migration,
to design operational guidelines allowing for the concrete implementation
of the European Union Pact according to Council of Europe standards,
including with regard to aspects involving non-European Union member
States such as external co-operation on asylum and the use of the
safe country concept during asylum procedures.
16. The Assembly is convinced that the accession of the European
Union to the European Convention on Human Rights will strengthen
the regional approach to human rights. In this prospect, the Assembly
takes note of the already fruitful co-operation between the European
Union and the Council of Europe in the field of asylum and:
16.1 welcomes the reference made
to the “Venice Principles” to guide the mandatory national monitoring
mechanism to be established as part of the Screening Regulation;
16.2 invites member States of the Council of Europe represented
in the management board of the European Union Agency for Asylum
(EUAA) to promote operational guidelines with a view to ensuring coherence
in the approach to and application of asylum procedures at European
Union and Council of Europe levels;
16.3 invites the SRSG to contribute to enhancing such coherence
as representative of the Council of Europe at the EUAA Consultative
Forum.
