Putting an end to collective expulsions of aliens
- Author(s):
- Parliamentary Assembly
- Origin
- Assembly
debate on 8 April 2025 (13th sitting) (see Doc. 16135, report of the Committee on Migration, Refugees and Displaced
Persons, rapporteur: Mr Pierre-Alain Fridez). Text
adopted by the Assembly on 8 April 2025 (13th sitting).
1. The Parliamentary Assembly recalls
that collective expulsions of foreigners are formally prohibited
under Article 4 of Protocol No. 4 to the European Convention on
Human Rights (ETS No. 46), a prohibition which is also enshrined
in the law of the European Union in accordance with Article 19 of
the Charter of Fundamental Rights of the European Union. In this
context, the Assembly is concerned about the growing divergence between
international law and member States’ practice.
2. The Assembly considers that the practice of collective expulsions
poses a major challenge to respect for the rule of law and fundamental
human rights standards, including the principle of non-refoulement and the absolute
prohibition of torture. It points to the principles by which the
Council of Europe member States are bound and their legal obligations
in this respect, and stresses the need for increased action by the
Organisation to support them in this area.
3. The Assembly points out that pursuant to the judgment of the
European Court of Human Rights (“the Court”) in Khlaifia and Others v. Italy, “collective
expulsion” is to be understood as “any measure compelling aliens,
as a group, to leave a country, except where such a measure is taken
on the basis of a reasonable and objective examination of the particular
case of each individual alien of the group”.
4. Welcoming the case law of the Court, particularly the Čonka v. Belgium judgment, in which
it was held that all expulsion procedures must afford sufficient
guarantees demonstrating that the personal circumstances of each
of those concerned have been genuinely and individually taken into
account, the Assembly is alarmed at the widespread practice of collective
expulsions in Europe without the individual examination of each person’s
situation.
5. The Assembly emphasises the importance of an individual examination
of each person’s situation in preventing collective expulsions.
In line with Assembly
Resolution 2461 (2022) and
Recommendation 2238 (2022) “Safe
third countries for asylum seekers”, it points out the importance
of avoiding the use of lists of safe countries as grounds of inadmissibility
for asylum claims and welcomes the decision of the Committee of
Ministers to look into the possibility of revising its Recommendation
No. R (97) 22 to member States containing guidelines on the application
of the safe third country concept.
6. The Assembly also expresses its deep concern at the spread
of the notion of “legal fiction of non-entry”, whereby persons are
considered not to have entered European territory, and the use of
which will be facilitated by the implementation of the European
Union Pact on Migration and Asylum (“the Pact”), which could make
it more difficult for people to seek asylum. It refers in this context
to the extraterritorial application of Article 4 of Protocol No. 4
to the European Convention on Human Rights established in the Hirsi Jamaa and Others v. Italy judgment,
and the fact that the “legal fiction of non-entry” does not exempt
States from their obligations, particularly those of non-refoulement and the absolute
prohibition of torture and ill-treatment.
7. In its
Resolution 2462 (2022) “Pushbacks
on land and sea: illegal measures of migration management”, the
Assembly highlighted the intrinsic link between the prohibition
of collective expulsions, the principle of
non-refoulement and
the absolute prohibition of torture. Breaching these fundamental
principles can expose individuals to tragic consequences for which
those responsible must be held accountable.
8. In its
Resolution 2555 (2024) “Ensuring
human rights-compliant asylum procedures”, the Assembly highlighted
the following legal obligations and stresses here the binding nature
of these obligations: only through a fair and effective individual
examination, including of asylum applications, can a State meet
its obligation not to expose, directly or indirectly, anyone falling
under its jurisdiction to a risk of torture or inhumane or degrading
treatment. Furthermore, in case of an appeal, the remedy must have
an automatic suspensive effect on expulsion measures should the
applicant complain of a risk under Article 2 or 3 of the European Convention
on Human Rights (ETS No. 5, “the Convention”). These procedural
safeguards are required for the appeal to be considered effective
and in compliance with Article 13 of the Convention, and with the
consistent case law of the European Court of Human Rights.
9. Conscious of the requirements of internal security and border
management incumbent on States in a geopolitical context that is
sometimes complex, the Assembly invites Council of Europe member
States nonetheless not to fall into the trap of invoking exceptions
to human rights principles in order to meet these challenges. In
this respect it refers to its
Resolution 2404 (2021) “Instrumentalised
migration pressure on the borders of Latvia, Lithuania and Poland
with Belarus”, in which it condemned “any instrumentalisation of migrants,
refugees and asylum seekers by States for political purposes”.
10. The Assembly underlines that the main victims of what it called
“hybrid attacks” in
Resolution 2404 (2021) are
the migrants themselves. The response of States targeted by such
attacks punishes migrants and increases their vulnerability, rather
than sanctioning or holding to account the States that are guilty
of this instrumentalisation. This twisted logic is a trap, and the
extreme vulnerability of migrants and violation of their human rights
can be avoided if European States refuse to fall into it.
11. In this respect, the Assembly deeply regrets that the drive
to protect national security and ensure a total protection of borders
seems to be used to justify the relaxing of the rules in force which
were built up and agreed to by the States themselves. It points
out that the concept of instrumentalisation does not provide a basis
for a general derogation from asylum and human rights norms, including
the absolute nature of the principle of non-refoulement and
Article 3 of the Convention, and the obligation to conduct an individual
assessment of a person’s situation before returning them. In this
context, the Assembly urges member States not to derogate from their
obligations, even in difficult situations, as the Court of Justice
of the European Union recalled in the case C-72/22 PPU – Valstybės
sienos apsaugos tarnyba.
12. Regretting that no European country on the migration routes
taken by those seeking refuge and a decent life in Europe is exempt
from the practice of collective expulsions, the Assembly calls on
the Council of Europe member States to consider establishing legal
migration pathways which will both avoid human tragedies and respond
to labour shortages, in keeping with the spirit of its
Resolution 2586 (2025) “Immigration,
one of the answers to Europe’s demographic ageing”.
13. To make it possible to document any infringements of rights
at the border, to hold those responsible accountable and to guarantee
access for migrants to legal assistance and information on their
rights, border areas must be accessible at all times, including
areas where and in procedures during which the “legal fiction of
non-entry” applies and/or where migrants are deprived of their freedom.
Access should be granted, in law and in practice, not only to the
fundamental rights officers of the European Border and Coast Guard
Agency (Frontex), but also to national and Council of Europe monitoring
mechanisms, the United Nations High Commissioner for Refugees, national
human rights institutions, parliamentarians, civil society organisations, health
professionals, lawyers and journalists.
14. In this context, the Assembly welcomes the fact that the European
Union member States are required to set up independent national
monitoring mechanisms by June 2026 to guarantee respect for human
rights at borders during the “screening” procedures and the accelerated
asylum procedures at the border provided for in the Pact. The Assembly
strongly encourages member States to take account of the guidance
provided by the European Union Agency for Fundamental Rights in
its “Monitoring fundamental rights during screening and the asylum
border procedure – A guide on national independent mechanisms”,
especially the recommendation to adopt national legislation to extend
the scope of monitoring to all aspects of border management, including return
procedures.
15. The Assembly recognises that the adoption of the Pact is a
sign of the political will among European Union member States to
take a consistent approach to these issues. With a transitional
period that runs until 2026 and implementing measures yet to be
adopted, however, the Assembly stresses that proper safeguards need
to be established when devising the national plans for the implementation
of the Pact so as to avoid the occurrence of collective expulsions.
16. To guarantee access to an individual assessment of the situation
of each migrant, particularly when crossing borders, in the context
of asylum or return procedures, the Assembly strongly encourages
the member States to:
16.1 adopt
national action plans for the implementation of the Pact in line
with the 1951 Convention relating to the Status of Refugees of the
United Nations (“the 1951 Convention”) and the European Convention
on Human Rights, making explicit reference to these treaties;
16.2 provide for the systematic assessment and guarantee of
the legality of expulsion orders, including those following a decision
of inadmissibility with regard to an asylum application, by a court
with jurisdiction in the territory concerned, before any return
operation, including in fictional “non-entry” situations;
16.3 provide appropriate training based on respect for international
human rights law standards, including the 1951 Convention and the
European Convention on Human Rights, intended for border guards
and other stakeholders such as lawyers, judges and prosecutors,
interpreters and administrative staff. In this context, the Assembly
encourages the use of the European Programme for Human Rights Education
for Legal Professionals (HELP) of the Council of Europe to devise
such training programmes;
16.4 provide access to a lawyer and to interpretation services,
including when migrants intercepted at sea disembark, and ensure
compliance with official note-taking procedures, particularly so
as to avoid the misinterpretation of statements made in the context
of applications for international protection;
16.5 for those member States that are members of the European
Union, allocate sufficient material and human resources for the
proper implementation of national plans for the application of the
Pact with due respect for human rights, particularly with regard
to the implications in terms of procedural guarantees.
17. Noting the high number of applications pending before the
Court concerning collective expulsions and of judgments that are
still under supervision of the Committee of Ministers of the Council
of Europe, the Assembly urges the Council of Europe member States
condemned by the Court to execute these judgments promptly and fully,
in particular by:
17.1 taking all
the necessary measures to ensure that migrants are treated in accordance
with the Convention, particularly with regard to collective expulsion,
and that they are systematically given genuine and full access to
legal entry procedures in the States;
17.2 ensuring that asylum seekers are not expelled without
being identified or having their individual situations assessed;
17.3 avoiding any distortion of foreigners’ statements as to
whether they wish to request international protection;
17.4 providing migrants with effective remedies, including,
in particular, sufficient time to take their case to court before
expulsion orders are executed;
17.5 ensuring that the suspensive effect of appeals against
decisions to refuse applicants admission to the country applies
in law and in practice;
17.6 benefitting from the process of execution of Court judgments
in order to develop a comprehensive approach to the challenges posed
by large-scale arrivals of migrants, aiming thereby to resolve any complex
structural problems identified by the Committee of Ministers.
18. The Assembly welcomes the political will of those States which
choose to receive migrants in accordance with international law
standards, despite the challenges raised by substantial numbers
of arrivals.
19. Noting that the countries in which migrants first arrive are
those that shoulder most of the responsibility for reception and
integration policies, the Assembly calls for a co-ordinated and
coherent European approach to reception of migrants, in law and
in practice, between territories, at both national and European
levels.
20. The Assembly points out that the prohibition of collective
expulsions applies at all borders, including the internal borders
of the European Union. Hasty returns within the Schengen area cannot
be justified without due regard for applicable procedural guarantees
and an individual decision, in keeping with the case law of the Court
of Justice of the European Union. The Assembly also draws attention
to the extended re-establishment of controls within the internal
borders of the Schengen area, which runs counter to this spirit
of solidarity.
21. The Assembly points out how essential it is for the best interests
of the child to be protected under all circumstances and deeply
regrets instances of political instrumentalisation of the situation
of unaccompanied children. Where large numbers of such children
arrive in particular geographical areas, the Assembly strongly encourages
stakeholders to seek a solution enabling their relocation to, reception
in and integration into other regions of the same country. This
would foster a consistent approach where it comes to giving these
children the opportunities for being welcomed and integrated which
are their due, including being given support thanks to guardianship
systems in keeping with Recommendation CM/Rec(2019)11 of the Committee
of Ministers to member States on effective guardianship for unaccompanied
and separated children in the context of migration.
22. The Assembly strongly encourages an overhaul of asylum legislation
in countries where it is no longer fit for the purpose of coping
with increases in migration flows and does not comply with European
law.
23. Recognising the importance of providing legal assistance to
migrants to make the assessment of their individual situation effective,
the Assembly considers it critical that more lawyers specialising
in immigration law are available at points of arrival. It therefore
strongly recommends the provision of specific training in maritime law
and asylum law to support these efforts. It also recommends improved
access to interpreters, particularly at the point when migrants
disembark.
24. The Assembly is concerned about the sexual and gender-based
violence to which women and children are subjected during their
journey, and the risks of trafficking afterwards. It points out
that if the competent authorities consider that there are reasonable
grounds to believe that a person is a victim of trafficking in human beings,
they must not be removed from the country until the process of identifying
them as a victim is complete. It recommends the introduction of
special protection measures to guarantee their safety, including:
24.1 specific training for lawyers
to help them better recognise and assist victims of sexual and gender-based
violence, with earmarked funding;
24.2 except in cases of family ties or friendships predating
the journey, the separation of men and women in reception centres
for foreigners or the transfer of women to separate centres to protect
them from pressure from the men with whom they travelled.
25. The Assembly welcomes the creation of the new Division on
Migration and Refugees at the Council of Europe, established with
a view to consolidating and intensifying the Organisation’s efforts
to address urgent matters related to migration and asylum, and invites
the member States to take full advantage of its expertise.
26. Convinced of the Council of Europe’s key role in supporting
member States in their efforts to honour the commitments they entered
into on joining the Organisation and in ratifying its international
treaties, particularly the European Convention on Human Rights,
the Assembly encourages the member States and European Union bodies
to refer systematically to Council of Europe standards when devising
national and European public policies on migration and asylum. More
generally, it considers that the updating of the “Twenty guidelines on
forced return” adopted by the Committee of Ministers (CM(2005)40)
and the development by the Council of Europe of a toolkit of good
practices concerning the implementation of its standards in the
management of migration and asylum by its member States, would be
very useful.
27. The Assembly is convinced that the complex situation of Council
of Europe member States’ overseas territories, which requires a
humane and transparent policy response respecting individual rights,
would merit further consideration, and recommends that this issue
be addressed in a future report.
