Print
See related documents
Resolution 2228 (2018)
Human rights impact of the “external dimension” of European Union asylum and migration policy: out of sight, out of rights?
1. The Parliamentary Assembly has
followed closely the European Union’s policies providing for the implementation
of asylum and migration control and border management beyond its
external borders since the beginning of the current crisis in 2011.
2. The Assembly’s position on the externalisation of asylum procedures
has adapted to the evolving situation. Resolution 2147 (2017) on the need
to reform European migration policies called on European Union member
States and institutions to “explore possibilities for better identifying
people in need of international protection and organising external
processing of asylum applications by means of safer procedures established
outside Europe in safe third countries, provided that the human
rights of the asylum seekers are safeguarded”. In Resolution 2000 (2014) on
the large-scale arrival of mixed migratory flows on Italian shores, the
Assembly expressed support for the setting up of camps to process
asylum requests in North Africa. In Resolution 2109 (2016) on the situation
of refugees and migrants under the EU–Turkey Agreement of 18 March 2016,
it voiced its concern that “the EU–Turkey Agreement raises several
serious human rights issues relating to both its substance and its
implementation now and in the future”.
3. The declared objectives of the delegation of migration procedures
to countries outside the European Union’s borders are to ease the
migratory pressure on member States at the European Union’s borders,
thus facilitating migrants’ onward resettlement throughout Europe
and a more regular influx; to reduce migrants’ need to undertake
potentially fatal land and sea journeys; and to promote co-operation
with Europe’s neighbours in migration management. In the recent Resolution 2215 (2018) “The
situation in Libya: prospects and role of the Council of Europe”,
the Assembly notes that the European Union’s Triton and Sophia air
and sea operations resulted in a reduction of nearly 32% of arrivals
on the Italian coasts between November 2016 and November 2017, that
these operations have saved over 200 000 lives since 2014 and that
the European Union provides much of the funding for the activities
of the United Nations High Commissioner for Refugees and the International
Organization for Migration in aid of refugees and migrants.
4. However, the shifting of responsibilities through the enlistment
of third countries to reinforce European Union border controls entails
serious human rights risks; it increases the risk of migrants being
“stranded” in transit countries through readmission, as well as
the increased use of punitive and restrictive measures such as refoulement, arbitrary detention
and ill-treatment. It is also a way for many European Union member
States to distance themselves from the politically divisive issue
of assisting and integrating refugees. Keeping migrants at a greater
distance may also in fact provide a means of avoiding situations
of refoulement within Europe.
In the above-mentioned Resolution
2215 (2018), the Assembly called on the Council of Europe member
States to comply with their obligations under Article 3 of the European
Convention on Human Rights (ETS No. 5), which requires them to refrain
from sending migrants back to countries where they are exposed to
the risk of torture and inhuman or degrading treatment or punishment,
and not to co-operate on migration control with third countries
if this is likely to result in violations of Article 3.
5. Despite what might be termed as the success of the European
Union’s externalisation policies in contributing to a reduction
in the number of migrants entering Europe, it has become clear that
the involvement of third countries in migration management has compromised
the rights of asylum seekers on many occasions. The member States
should do more to ensure that these rights are defended and maintained,
especially where this degradation is a direct consequence of measures
decided in Europe. Europe is both morally and politically accountable.
6. The Assembly considers that migrants who have been, or will
be, the subjects of asylum processing organised by the European
Union outside its borders may find themselves in a “legal limbo”
with regard to the guarantee of the fundamental rights stemming
both from the United Nations 1951 Convention relating to the Status
of Refugees and the European Convention on Human Rights. That is
because the countries concerned may not have equivalent human rights
standards or legal instances to uphold them, whereas asylum seekers face
difficulties in holding the European Union or individual States
responsible for possible human rights violations.
7. This difficulty in upholding rights is all the more serious
as the people in question are more exposed to their denial: in extreme
situations there is proof that migrants have been subjected to refoulement, torture and inhuman
and degrading treatment and even slavery, as revealed in Libya;
in others, they are consistently subjected to discrimination, arbitrary
detention and lack of social protection and economic opportunities.
8. Externalisation policies have been introduced without due
regard to the need to ensure that their implementation does not
jeopardise human rights. In addition, there is a growing tendency
to make development assistance conditional on countries’ taking
on migration procedures. For countries which by definition lack
sufficient capacity to respond to the needs of their own populations,
this amounts to creating more tensions and difficulties.
9. The Parliamentary Assembly therefore urges member States to:
9.1. work together to ensure that
the growing focus on deterrence policies does not detract from European
States’ primary duty to respect and defend human rights globally
and does not reduce resources devoted to development co-operation,
which aims for the long-term reduction of poverty;
9.2. refrain from externalising migration control to countries
in which legislation, policies and practice do not meet the standards
of the European Convention on Human Rights and the United Nations Convention
relating to the Status of Refugees, and where State agencies cannot
effectively ensure the protection of these rights. To achieve this,
human rights impact assessments at national and regional level should
be carried out by States before entering into such co-operation;
9.3. introduce conditions in all agreements and arrangements
concerning asylum management providing for human rights protection
of migrants and asylum seekers, including:
9.3.1. standards
for asylum seekers and refugees equivalent to the Convention relating
to the Status of Refugees and its 1967 protocol;
9.3.2. respect for the standards of the European Convention on
Human Rights, including the obligation of non-refoulement and
an individual and meaningful assessment of asylum claims, the right
to an effective remedy, freedom of movement (including the right
to leave a country), human dignity and non-discrimination, as well
as information and legal assistance;
9.3.3. safe and hygienic reception conditions and efficient and
appropriate asylum application procedures which avoid arbitrary
detention and allow possibilities for family reunion;
9.3.4. ensure that external co-operation on migration control
and return policies is contingent on a system of independent monitoring
which will ensure compliance with international human rights law
and suspension of co-operation in the case of repeated human rights
violations;
9.4. support the changes to the Dublin Regulation of the European
Parliament and of the Council, on the basis of Assembly Resolution 2072 (2015) “After
Dublin – the urgent need for a real European asylum system”, and
according to the proposals of the Committee on Civil Liberties,
Justice and Home Affairs of the European Parliament approved in
November 2017, forsaking the country of first entry criterion and
distributing asylum applicants among all member States under a permanent
quota system, in accordance with Article 80 of the Treaty on the
Functioning of the European Union.
10. In line with its Resolution
2109 (2016) and its Resolution 2224 (2018) on the humanitarian
situation of refugees in the countries neighbouring Syria, the Assembly
praises the efforts of the Government of Turkey to host (as at June
2018) 3.6 million Syrian refugees and large numbers of refugees
and asylum seekers of other nationalities, and asks it to:
10.1. while acknowledging the Turkish
efforts, ensure that the EU–Turkey Agreement is implemented in full
respect of the human rights of all migrants, including irregular
migrants and refugees;
10.2. while acknowledging the Turkish efforts, guarantee that
asylum seekers have access to an effective asylum procedure respecting
the non-refoulement principle
and to proper reception provisions;
10.3. in order for Syrian refugees to be able to build a sustainable
future, ensure their right to family reunification and all the rights
provided by the Convention relating to the Status of Refugees, including effective
access to education and in particular the means of earning a livelihood
through effective access to the labour market, without losing the
benefit of protection measures or possibilities of resettlement;
10.4. give Syrian refugees fleeing their country access to Turkey,
and ensure that border control activities do not prevent them from
claiming their right to protection;
10.5. while acknowledging the Turkish efforts, ensure that migrants,
asylum seekers and refugees always have access to an effective remedy
against deportation decisions, including suspensive effect and a
full and ex nunc review, and
that these fundamental rights are not affected by any measures taken under
the state of emergency;
10.6. give full information to asylum seekers on their asylum
and protection status possibilities and provide direct access to
legal assistance at all stages of asylum procedures, including appeal
against decisions, as well as psychological support.
11. The Assembly asks the Government of Italy to:
11.1. make any co-operation, both
present and future, with the Libyan Coastguard dependent on respect
for refugees’ and migrants’ fundamental rights, particularly by
refraining from exposing them to situations in which they risk being
subjected to severe ill-treatment, in accordance with its Resolution 2174 (2017) on
human rights implications of the European response to transit migration
across the Mediterranean;
11.2. in accordance with its Resolution 2215 (2018), delay the
setting up of a new Maritime Rescue Co-ordination Centre in Libya
until capacity building has ensured improved governance structures,
to ensure adequate international human rights law training for the
Libyan Coastguard, and to maintain and improve co-operation with
non-governmental organisations (NGOs) carrying out search and rescue
operations in the Mediterranean in accordance with international
rules and agreements concluded by individual countries;
11.3. investigate fully the allegations of experts and international
NGOs, such as Amnesty International, of returns to Libya of migrants
picked up at sea in the Italian search and rescue zone, and of collusion
between the Libyan coastguard and the human smugglers in the Mediterranean.
12. The Assembly further asks the European Union member States
and institutions, in addition to putting in place all the safeguards
to the externalisation of migration control described above, to:
12.1. make progress with the European
Union’s ratification of the European Convention on Human Rights
in order to remove the legal void to allow appeals against the European
Union’s external policies;
12.2. step up the sharing of responsibilities, in the first
instance by fulfilling their pledges to resettle 50 000 refugees
(of whom only 4 252 had been transferred in May 2018), giving preference
to the most vulnerable refugees;
12.3. in the context of the EU–Turkey Agreement, improve the
flexibility of European Union programme implementation in order
to provide more rapid and appropriate responses and fulfil the European
Union’s obligations entered into under the agreement;
12.4. substantially improve, broaden and sustain support to
host countries and communities, particularly those affected by large
movements of refugees, in order to provide protection, assistance and
sustainable solutions for refugees. Such support should not depend
on co-operation on return or border control. The European Union
should give its full support to the draft global compact on refugees;
12.5. ensure that the European Union carries out thorough human
rights impact assessments, in particular as regards compliance with
the principle of non-refoulement,
both in advance of agreements likely to have an impact on human
rights and after such agreements have been put into operation. Assessments
should include direct, indirect, intended and unintended effects
on human rights;
12.6. recognise responsibility and enhance accountability for
human rights violations in third countries if they result from formal
or informal agreements on migration control between the European
Union or its member States and those countries, and ensure that
migrants affected by this co-operation have access to effective
means of legal redress from European Union institutions and member
States;
12.7. refrain from making funding for co-operation programmes
to developing countries dependent on their acceptance of delegated
migration control which should be the responsibility of European
Union member States;
12.8. carry out stricter supervision of how funding for migration
control is spent and ensure that a large proportion of expenditure
is devoted to migrants’ well-being and human rights during all procedures;
12.9. ensure greater transparency in reporting on the expenditure
of funding from the European Union and establish more assessment
and accountability mechanisms for the investments made in the context of
the external dimension of European Union migration policies;
12.10. ensure that all co-operation arrangements with third countries
on migration, whether formal or informal, including agreements of
a political nature, are treated in a manner consistent with the
principles and values set out in the international treaties and
in the Charter of Fundamental Rights of the European Union;
12.11. in the context of the EU–Turkey Agreement, ensure that
asylum seekers in Turkey have access to effective asylum procedures,
that refugees can effectively enjoy all the rights under the Convention relating
to the Status of Refugees, including access to the labour market,
and that Syrian refugees are able to leave their country if necessary;
12.12. carry out a thorough human rights assessment of the EU–Turkey
Agreement on a regular basis, in compliance with the European Union
Ombudsman’s January 2017 decision in the joint inquiry into complaints
Nos. 506-509-674-784-927-1381/2016/MHZ against the European Commission
concerning a human rights impact assessment in the context of the
EU–Turkey Agreement “since the implementation of the Agreement reasonably
and necessarily has an impact (a) on the human rights of migrants
(direct or indirect) and (b) on the ability of the EU and the Member
States involved to fulfil their human rights obligations”. In order
to carry out its responsibility, the European Union should ensure
the possibility of legal redress for people affected by the agreement;
12.13. guarantee that the standards related to the safe third
country concept in the forthcoming asylum procedures regulation
are in line with international human rights law, by requiring that
third countries fulfil all obligations under the European Convention
on Human Rights and the Convention relating to the Status of Refugees,
both in legislation and in practice, and that refugees have a meaningful
connection with the third country concerned.