Ensuring human rights-compliant asylum procedures
- 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 Office of the United Nations
High Commissioner for Refugees (UNHCR) whereby the definition of
“refugee” is declaratory, which means that a person is a refugee
as soon as he or she fulfils the criteria contained in the definition
and that the principles foreseen by international refugee law must
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,
directly or indirectly, 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 an obligation be met, taking into account specific vulnerabilities
faced by persons belonging to certain groups such as women, ethnic, religious
and national minorities, lesbian, gay, bisexual, transgender and
intersex (LGBTI) people, victims of violence and victims of human
trafficking. In the case of an appeal, the remedy must be accompanied
by an automatic suspensive effect on expulsion measures should the
applicant complain of a risk under Article 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 at the instrumentalisation
and exaggeration of the phenomenon of incoming migration, orchestrated
for domestic political purposes 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 law 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” and, in particular,
that “asylum seekers have the right to an individual and fair examination
of their 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 restrictions
or even blocking of access, disproportionally strict eligibility
criteria or wide derogation rules, insufficient capacity and resources
to process cases, or dire reception conditions. It underlines that
policies of deterrence have neither demonstrated their effectiveness
in enhancing domestic security nor in strengthening 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 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,
which take account of specific vulnerabilities of the aforementioned
persons.
8. The Assembly encourages member States to set up accelerated
procedures only if in full compliance with human rights standards,
making use of already existing procedures such as the prima facie procedure. The Assembly
reiterates the imperative to ensure that accelerated procedures
do not result in lowering procedural safeguards, in accordance with
the Court’s case law. It recalls the commitments by the Committee of
Ministers to ensure access to justice for asylum seekers, pursuant
to Resolution No. 1 on access to justice for migrants and asylum
seekers, adopted at the 28th Conference of European Ministers of
Justice (25 and 26 October 2007) and to the Guidelines on human
rights protection in the context of accelerated asylum procedures
(2009).
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 level
of 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.
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 No. R (97) 22 containing
guidelines on the application of the safe third-country concept.
The Assembly is therefore looking forward to the results of this
evaluation and the 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 Court 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 an effective remedy.
13. The Assembly notes the adoption of the European Union Pact
on Migration and Asylum (the Pact). It recalls its
Resolution 2416 (2022) “European
Union Pact on Migration and Asylum: a human rights perspective” and
the continuing validity of the recommendations contained in it.
In particular, the Assembly:
13.1 reiterates
its deep concern 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 providing sufficient human,
infrastructural and technical resources at an early stage to ensure
that member States can deliver on their international human rights
obligations to guarantee effective access to the territory of asylum
and to a fair and swift asylum procedure for all individuals throughout
the territory of the European Union;
13.3 welcomes the initiative of establishing human rights border
monitoring mechanisms and underlines that these mechanisms should
be effective, independent and work in co-ordination with the Council
of Europe’s monitoring bodies, notably those referred to in paragraph
15.2, and with the UNHCR. These mechanisms should also take into
consideration the Principles on the Protection and Promotion of
the Ombudsman Institution (the Venice Principles), adopted by the
European Commission for Democracy through Law (Venice Commission)
in 2019, and be in line with the recommendations of the European
Union Agency for Fundamental Rights on Establishing national independent
mechanisms to monitor fundamental rights compliance at EU external
borders, published in 2022;
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 in 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 European Union funding is conditional on specific
fundamental rights clauses. In particular, the Assembly underlines
the importance of imposing such conditions when accessing European
Union funding during preliminary, mid-term and retrospective evaluations.
It recommends that such conditions involve criteria for assessing
compliance with 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 on the European
Regional Development Fund, the European Social Fund Plus, the Cohesion
Fund, the Just Transition Fund and the European Maritime, Fisheries
and Aquaculture Fund and financial rules for those and for the Asylum,
Migration and Integration Fund, the Internal Security Fund and the
Instrument for Financial Support for Border Management and Visa
Policy.
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 includes
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 practical implementation
of effective human rights safeguards to guide 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 the relevant case law
of the Court, 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 (CPT), the Group of Experts
on Action against Trafficking in Human Beings (GRETA), the Group
of Experts on Action against Violence against Women and Domestic Violence
(GREVIO) 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 practical 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 Regulation (EU) 2024/1356
of the European Parliament and of the Council of 14 May 2024 introducing
the screening of third-country nationals at the external borders
and amending Regulations (EC) No 767/2008, (EU) 2017/2226, (EU)
2018/1240 and (EU) 2019/817;
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.
