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Recommendation 2028 (2013) Final version
Monitoring the return of irregular migrants and failed asylum seekers by land, sea and air
1. The removal of irregular migrants
and failed asylum seekers is an integral part of migration-management policy
and border control. According to the 2013 annual risk analysis by
the European Agency for the Management of Operational Co-operation
at the External Borders of the Member States of the European Union (Frontex),
there are approximately 300 000 third-country nationals living irregularly
in Europe who have been ordered to leave, up 17% on the previous
year.
2. Given this situation and the inadequacy of the provisions
concerning forced removals and more particularly the monitoring
procedure as such, the Parliamentary Assembly believes that there
is now an urgent need to reinforce the human rights dimension of
returning irregular migrants and failed asylum seekers.
3. The Assembly notes that forced removals are primarily governed
by the human rights standards under the European Convention on Human
Rights (ETS No. 5), the European Convention for the Prevention of Torture
and Inhuman or Degrading Treatment or Punishment (ETS No. 126),
as well as the United Nations Convention against Torture and other
Cruel, Inhuman or Degrading Treatment or Punishment and its optional protocol
(OPCAT) and the Twenty Guidelines on Forced Return adopted by the
Committee of Ministers in May 2005.
4. The Assembly also refers to the European Union Directive (2008/115/EC)
on common standards and procedures in Member States for returning
illegally staying third-country nationals, which entered into force
in 2010 and provides, inter alia,
that “clear, transparent and fair rules need to be fixed to provide
for an effective return policy as a necessary element of a well-managed
migration policy”.
5. The Assembly is aware that in spite of a number of conventions
and legal texts, member States have still not succeeded in drawing
up common rules on protecting people who are to be removed by land,
sea or air and monitoring the relevant procedures.
6. The Assembly is concerned that people held awaiting return
are especially vulnerable and are not always properly informed,
including in a language that they can understand, about their rights,
the legal process and the decision-making system in the country
where they are held. It should be underlined that the transit phase
is the most critical phase of the removal process. It is often then
that the greatest risks of ill-treatment occur due to the use of
coercive or restraining measures, which have, on occasion, resulted
in death.
7. The Assembly therefore recommends that the Committee of Ministers
instruct a relevant committee of experts to:
7.1. draw up common rules applicable to all States covering
human rights safeguards to be put in place during the return process,
by land, sea and air, and more particularly covering:
7.1.1. the
procedures to be followed in preparing people for their removal,
and the information to be given to them, including a set time limit
for informing returnees of a pending removal;
7.1.2. the standardisation of risk levels involved in the removal;
7.1.3. the use of restraint techniques and coercive measures;
7.1.4. the content of training programmes for the various stakeholders;
7.1.5. medical examinations and the role of medical staff accompanying
returns;
7.1.6. independent, neutral, transparent and effective monitoring
procedures with a clearly defined mandate to oversee the entire
removal procedure from start to finish;
7.1.7. the procedures to be followed upon a completed return
mission and also after unsuccessful returns, including compulsory
reporting;
7.2. define a system of compulsory vocational training for
escort staff and independent monitors;
7.3. propose minimum safeguards for returnees once they arrive
in the country to which they are being returned and measures necessary
to determine what becomes of migrants who disappear on arrival;
7.4. draw up specific guidelines for removals of children and
vulnerable groups, in particular pregnant women and people suffering
from serious illnesses.
8. The Assembly invites Council of Europe member States to:
8.1. comply with international standards
on forced returns, ensuring that the right to appeal is included;
8.2. implement an effective and co-ordinated system for monitoring
forced returns by air, sea or land at national level, and co-operate
fully with international monitoring mechanisms;
8.3. take all necessary measures to ensure that, when working
in co-operation with Frontex, human rights concerns are fully taken
into account, and that effective systems of monitoring are put into
place. This is particularly important in the context of single or
joint return charter flights involving more than one member State.