Ensuring human rights-compliant asylum procedures

Doc. 15997: compendium of written amendments | Doc. 15997 | 25/06/2024 | Final version

Compendium index

Amendment 1 Amendment 2

Caption: AdoptedRejectedWithdrawnNo electronic votes

ADraft Resolution

1The 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.

2Article 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. 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”).

• Amendment 1

25 June 2024

Tabled by Ms Béatrice FRESKO-ROLFO, Ms Bernadeta COMA, Ms Sona GHAZARYAN , Ms Yevheniia KRAVCHUK, Mr Damien COTTIER, Mr Régis BERGONZI

In the draft resolution, paragraph 2, at the end of the second sentence, insert the following words:

", taking into account specific vulnerabilities faced by persons belonging to such groups as women, ethnic, religious and national minorities, LGBTI people, victims of violence, and victims of human trafficking."

Explanatory note

This is to ensure that a vulnerable person will find good treatment of their file.

3The 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.

4The 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”.

5The 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).

6The 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.

• Amendment 2

25 June 2024

Tabled by Ms Béatrice FRESKO-ROLFO, Ms Bernadeta COMA, Ms Sona GHAZARYAN , Ms Yevheniia KRAVCHUK, Mr Damien COTTIER, Mr Régis BERGONZI

In the draft resolution, after paragraph 6, insert the following paragraph:

"The Assembly notes that asylum seekers who identify 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."

Explanatory note

This is to ensure that a vulnerable person will find good treatment of their file.

7The Assembly encourages member States to design 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 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 and to the Guidelines on human rights protection in the context of accelerated asylum procedures.

8The 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).

9The 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.

10The 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.

11The 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.

12The 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:

12.1reiterates 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;

12.2stresses 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;

12.3welcomes 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 14.2, 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 (Venise 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;

12.4welcomes 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;

12.5encourages 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.

13The 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.

14With 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:

14.1encourages 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;

14.2stresses 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);

14.3calls 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;

14.4invites 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.

15The 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:

15.1welcomes the reference made to the “Venice Principles” to guide the mandatory national monitoring mechanism to be established as part of the Screening Regulation;

15.2invites 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;

15.3invites the SRSG to contribute to enhancing such coherence as representative of the Council of Europe at the EUAA Consultative Forum.