European Union Pact on Migration and Asylum: a human rights perspective
- Author(s):
- Parliamentary Assembly
- Origin
- Assembly
debate on 24 January 2022 (2nd sitting) (see Doc. 15438, report of the Committee on Migration, Refugees and
Displaced Persons, rapporteur: Mr Oleksii Goncharenko). Text adopted by the Assembly on
24 January 2022 (2nd sitting).
1. On 23 September 2020, the European
Commission issued a Communication on a New Pact on Migration and
Asylum, introducing a number of proposals aimed at improving asylum
and migration management procedures in Europe, in particular an
integrated procedure at external borders (pre-entry screening leading
to an asylum procedure and/or a swift return decision), a common
European Union return system to improve expulsion procedures and
a new obligatory solidarity mechanism. While the pact’s proposals
are primarily addressed to the European Union and its 27 member
States, its conceptualisation of regional migration governance is
relevant to the wider membership of the Council of Europe.
2. The recent political crisis in Afghanistan and a State-sponsored
increase in migration pressure at the European Union’s border with
Belarus have shown that an efficient mechanism to address migration
and asylum challenges in Europe, which is fully consistent with
human rights obligations, is urgently needed.
3. The Parliamentary Assembly welcomes the European Union’s commitment
to fully integrating European human rights standards into all its
policies on migration and asylum and supports its efforts to put
forward a “more human and more effective migration and asylum system”.
It supports the holistic approach to the management of irregular
migration proposed in the EU pact and the introduction of a crisis
reaction mechanism strengthening solidarity provisions, which is
extremely important in the current situation.
4. The Assembly reiterates the obligation of EU member States
to implement existing EU migration- and asylum-related legislation,
which remains applicable regardless of reform proposals, and encourages
the European Union institutions to reach an agreement on the main
legislative proposals in the EU pact, while ensuring its compliance
with the Council of Europe standards as they pertain to the pact.
5. It also believes that the new asylum and migration management
system will contribute to minimising the impact of the Covid-19
pandemic in Europe by reducing the length of procedures and providing
States with emergency funding to address Covid-19 in reception facilities
and public hospitals. The EU Migration Preparedness and Crisis Blueprint
could be an effective tool for information exchange between member
States on the responses to the pandemic in Europe.
6. The Assembly strongly supports the proposals to facilitate
more labour migration across different skill levels and to protect
migrant labourers from exploitation. It encourages the European
Union to increase legal pathways to entry, in particular for the
EU’s neighbouring countries.
7. At the same time, the Assembly notes that the proposals included
in the pact are very complex and do not contribute to a clear understanding
of the proposed management of the EU’s external borders. This raises concerns
that the proposed accelerated asylum procedures will reduce the
quality and fairness of procedures and thus lead to higher rejection
rates and the inability of asylum seekers and refugees to access
safeguards such as adequate legal assistance and a fair and fast
asylum procedure.
8. The Assembly considers that before the adoption of the pact’s
proposals, a comprehensive human rights assessment of the compatibility
of each measure with the case law of the European Court of Human
Rights needs to be undertaken by the European Commission.
9. The Assembly believes that special procedures for the protection
of persons in vulnerable situations must address the needs of these
persons and incorporate the heightened duty of support that arises
from human rights obligations. This includes the mainstreaming of
disability-, age- and gender-sensitive considerations, as well as
health-related vulnerabilities and those affecting victims of human
trafficking and women victims of gender-based violence. This must
be ensured throughout the migration and asylum process, primarily
through compliance with the provisions on vulnerability set out
in EU legislation and related case law.
10. The Assembly considers that it is important to propose concrete
recommendations to the governments of the European Union member
States on how to make sure that European migration policy contributes
to the development of European solidarity, economic prosperity,
respect for human rights and protection of the well-being of all.
Therefore, it recommends:
10.1 amending
the pact’s proposed “screening regulation” to ensure that it includes
an effective suspensive remedy against incorrect categorisation
during screening in order to fully respect the obligations arising
out of the right to an effective remedy (Article 13 of the European
Convention on Human Rights (ETS No. 5)). The screening regulation
should also guarantee access to information, the rights of people
undergoing the screening, including access to a lawyer and the right
to challenge the decision, and the privacy and protection of the
data collected;
10.2 ensuring that every asylum seeker at the EU border or
within its jurisdiction has access to and receives a fair and effective
determination of the merits of their claim to international protection,
in recognition of non-refoulement obligations.
The legal fiction of “non-entry” should be removed to ensure that
access to a fair procedure is guaranteed to all;
10.3 clarifying the provisions relating to restrictions on
and deprivation of liberty, in particular during the screening procedure,
to protect migrants and asylum seekers from unlawful detention and
ensure conformity with the obligations flowing from the right to
liberty and security (Article 5 of the European Convention on Human
Rights), in line with the relevant case law of the European Court
of Human Rights. Explicit references to the use of detention only
as a measure of last resort should be included in the pact’s proposals,
with clear references to the obligation to work towards finding
alternatives to immigration detention and implementing them. Asylum
seekers and refugees should not be detained solely on immigration
grounds;
10.4 ensuring that all children under the age of 18 are exempt
from the proposed border procedures under the pact, in line with
the principle of the best interests of the child and the obligations
towards children, as outlined in the United Nations Convention on
the Rights of the Child; similarly, all children (under the age
of 18) should be exempt from detention;
10.5 agreeing on a mandatory relocation system as a measure
of solidarity prioritising the cases of family reunion and unaccompanied
migrant children;
10.6 reconsidering the proposal to allow States to opt for
“return sponsorship” instead of relocating people to their own territories,
as it raises serious human rights and legal concerns;
10.7 clarifying in the pact’s proposals the concrete support
that must be made available to persons identified as being in a
vulnerable situation, including comprehensive support that meets
basic health and welfare needs addressing specific vulnerabilities.
Reference should be made to existing obligations on the provision
of special procedural and special reception guarantees for vulnerable
persons;
10.8 making sure that a cross-cutting assessment of the impact
of the proposals on women and girls, as well as boys, in a vulnerable
situation is undertaken by the European Union and identifying the different
impacts of the proposals. Proposals should be made to address any
inequalities found;
10.9 conducting a cross-cutting review of the proposals to
determine compliance of the provisions with obligations towards
persons with disabilities, in line with the obligations under the
United Nations Convention on the Rights of Persons with Disabilities;
in particular, the duty on States to provide reasonable accommodation
to persons with disabilities should be explicitly included as an
obligation;
10.10 introducing into national legislation special legal provisions
prohibiting the criminalisation of non-governmental organisations
or individuals carrying out search-and-rescue operations at sea
or providing humanitarian or other forms of assistance to migrants,
asylum seekers and refugees;
10.11 increasing the capacity of search-and-rescue operations
in the Mediterranean Sea and establishing predictable disembarkation
arrangements in safe ports for rescued persons;
10.12 ensuring that relevant non-governmental organisations
working in the field of migration can provide information and legal
assistance and take part in monitoring fundamental rights at borders.
This entails the possibility for such organisations to be granted
access to border areas and places of deprivation of liberty in order
to provide humanitarian assistance and legal advice and assistance;
10.13 ensuring that both the European Border and Coast Guard
Agency (Frontex) and the new EU Agency for Asylum carry out their
respective duties in full compliance with fundamental rights.
11. The Assembly also considers that the European Commission should
continue to hold EU member States accountable for their treatment
of migrants, asylum seekers and refugees by fully exercising its
powers under EU law to institute infringement procedures and other
less stringent measures, such as monitoring, making recommendations
and providing and withdrawing funding, whenever member States fail
to fulfil their human rights obligations, including in relation
to the prohibition of refoulement and
violence against migrants, asylum seekers and refugees at the European
Union’s external borders.
12. The Assembly welcomes the proposal to establish independent
monitoring mechanisms at the national level to investigate allegations
of fundamental rights violations at borders. Taking into account
the Council of Europe’s competence in this field, the Assembly calls
on Council of Europe member States to make sure that these national
monitoring bodies are independent from national authorities, work
on the basis of clearly defined mandates, are accessible to migrants,
asylum seekers and refugees and take into account and act upon relevant
information provided by international organisations, non-governmental
organisations and EU agencies and institutions. Furthermore, these
monitoring mechanisms should have sufficient resources to exercise
their functions and have well-trained staff, and should prepare
periodic and public reports containing findings and conclusions,
including steps to hold to account those responsible for violations
of fundamental rights. It is highly important to broaden the scope
of the monitoring by these bodies to ensure that they can monitor
cross-border events and border-control activities.
13. The Assembly encourages the European Commission to consider
further supporting the development of co-operation programmes with
the Council of Europe to ensure consistent knowledge sharing among national
monitoring bodies in order to strengthen their contribution to the
effective implementation of the European Convention on Human Rights
and other relevant instruments.
