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Resolution 2299 (2019)
Pushback policies and practice in Council of Europe member States
1. To control and manage migration
flows, Council of Europe member States concentrate much of their efforts
on guarding frontiers. In this context, refusals of entry and expulsions
without any individual assessment of protection needs have become
a documented phenomenon at Europe’s borders, as well as on the territory of
member States further inland. As these practices are widespread,
and in some countries systematic, these “pushbacks” can be considered
as part of national policies rather than incidental actions. The
highest risk attached to pushbacks is the risk of refoulement, meaning that a person
is sent back to a place where they might face persecution in the
sense of the 1951 United Nations Convention Relating to the Status
of Refugees (“the Refugee Convention”), or inhuman or degrading
treatment in the sense of the European Convention on Human Rights
(ETS No. 5, “the Convention”).
2. This is why the European Court of Human Rights, for instance
in its judgment Hirsi Jamaa and Others v. Italy (Application
No. 27765/09), but also in N.D. and N.T.
v. Spain (Applications Nos. 8675/15 and 8697/15), requires
the individual assessment of protection needs and of the safety
of a return in order to prevent violation of Article 3 of the European
Convention on Human Rights and of the prohibition of collective expulsions,
as enshrined in Article 4 of Protocol No. 4 to the Convention (ETS
No. 46). Pushbacks take place in particular at European Union borders,
which is at least in part a consequence of the shortcomings of the current
Dublin Regulation and of the failure of attempts to introduce fair
responsibility-sharing in Europe.
3. Pushbacks often take place where migrants attempt to enter
the territory of a member State in large numbers because the passage
is, or appears to be, more “open” than elsewhere, or is geographically
close to the countries of origin of asylum seekers. However, recent
evidence of pushbacks shows that they also take place where numbers
of arrivals are low, but where national policies are hostile towards
migration in general. There are also cases of “multiple pushbacks”
where migrants are expelled by various countries successively.
4. The Parliamentary Assembly is concerned about the persistent
and increasing practice and policies of pushbacks, which are in
clear violation of the rights of asylum seekers and refugees, including
the right to asylum and the right to protection against refoulement, which are at the core
of international refugee and human rights law. In view of the gravity
of the human rights violations involved, the Assembly urges member States
to provide adequate protection to asylum seekers, refugees and migrants
arriving at their borders, and thus to refrain from any pushbacks,
to allow for independent monitoring and to fully investigate all
allegations of pushbacks.
5. The Assembly is extremely worried about persistent reports
and evidence of inhuman and degrading treatment of migrants by member
States and their agencies in the framework of these pushbacks, through intimidation,
confiscating or destroying migrants’ belongings, and even through
the use of violence and by depriving migrants of food and basic
services. In denying having carried out such pushbacks, these types
of (sometimes systematic) inhuman and degrading treatment are denied
as well, and are therefore not adequately examined or not examined
at all.
6. The Assembly therefore calls on Council of Europe member States
to comply with their international obligations in this regard, in
particular those set out in the European Convention on Human Rights
concerning the prohibition of collective expulsion and inhuman and
degrading treatment, as well as the right of access to asylum procedures
and the prohibition of refoulement as
established in the United Nations Refugee Convention.
7. Reported pushbacks concern actions towards migrants who have
clearly crossed the border and find themselves inland, but also
towards migrants who are present near or at the border, attempting
to cross it. A significant number of them have attempted or envisaged
submitting an asylum claim. The most important negative consequence
of pushbacks is the vulnerable position of the victims. The denial
of access to a proper asylum procedure implies that they run the
risk of being returned to, or stranded in, another country where
they do not have access to proper asylum procedures either, which
puts them at risk of being pushed back to yet another country (so-called
“chain refoulement”). Pushbacks
can, however, also lead to direct persecution or inhuman or degrading
treatment in the country they are returned to, or from which they
cannot escape. The core obligations of asylum and international
law are meant to prevent this from happening. The consequence of
member States’ refusal to address reported cases of pushbacks is
that these practices persist, depriving victims of the right to
an effective remedy and to hold authorities accountable for human
rights violations.
8. In order to avoid responsibility, member States increasingly
make attempts to prevent migrants from crossing their border and
to keep them out of their jurisdiction. To this end, frontline States
in particular conclude agreements with their neighbouring countries,
which are requested to prevent migrants from leaving their territory
and paid to do so. These actions of neighbouring countries, often
referred to as “pull-backs”, may hamper access to protection for
asylum seekers stranded in that country if a sufficient protection
system is lacking. In cases of a clear connection between such bilateral
co-operation, lack of access to asylum and other human rights violations,
the member State requesting pull-backs is also responsible for such
violations.
9. To abandon all types of pushbacks, member States should respond
actively and adequately to every sign or evidence of their occurrence.
Instead, however, there is a tendency in an increasing number of countries
to refuse independent examination of serious allegations, to simply
deny them or to accuse, stigmatise and even criminalise non-governmental
organisations (NGOs), human rights defenders and members of civil
society who work to assist migrants in gaining access to asylum
procedures and protection. In reporting and attempting to investigate
pushbacks and related human rights violations, NGOs are frequently blamed
and negatively framed for “interference”, despite their key role
in facilitating migrants’ access to their rights and to justice.
10. In this regard, the Assembly calls on Council of Europe member
States to respect the role of NGOs and human rights defenders in
conformity with their commitments, as set out in Committee of Ministers Recommendation
CM/Rec(2007)14 on the legal status of non-governmental organisations
in Europe.
11. The Assembly also recalls its recent adopted texts, including
its Resolution 2073 (2015) and Recommendation 2078 (2015) “Countries
of transit: meeting new migration and asylum challenges”, and Resolution 2228 (2018) and Recommendation 2136 (2018) “The
human rights impact of the ‘external dimension’ of European Union
asylum and migration policy: out of sight, out of rights?”, as well
as the June 2018 urgent debate on the obligation to save lives at
sea, which underlined the crucial work of NGOs in the Mediterranean
Sea and the need to allow them to pursue their life-saving operations.
The Assembly also refers to statements made by the Council of Europe
Commissioner for Human Rights on the increasing administrative obstacles
confronting human rights defenders.
12. In the light of the above, the Parliamentary Assembly urges
member States:
12.1. with respect
to border controls, to
12.1.1. refrain from any measure or
policy leading to pushbacks or collective expulsions, as they lead
to a violation of the core rights of international asylum law, notably
the right to asylum, the right to be protected against refoulement and the right to access
an asylum procedure;
12.1.2. refrain from any type of violence against migrants and
measures depriving them of their basic needs such as food, water,
housing and emergency health care;
12.1.3. ensure independent and sustainable monitoring of border
control activities, which is essential in putting an end to (violent)
pushback action, by granting independent bodies and NGOs access
to all border areas, by granting independent bodies access to all
border surveillance material, and by effectively addressing reports
and complaints by migrants and NGOs, ensuring sufficient independence;
12.1.4. combine the investigation of incidents with protective
measures for alleged victims pending conclusions. Prevention measures
must be introduced against informal forced return procedures, including
standardised procedures at borders and clear rules of conduct;
12.1.5. encourage and support legal research, investigative journalism
and reliable information from recognised, reputable, international
and non-governmental organisations as a means of correctly informing
the public, rather than relying on unsubstantiated reports, hearsay
and misinformation. Satellite and digital data enable registration
of cases which require investigation by official and impartial bodies;
12.1.6. comply with judgments of national courts and of the European
Court of Human Rights, including their interim measures, in relation
to pushbacks and refusing access to asylum and even to an asylum
procedure, and to follow up recommendations of national independent
bodies such as ombudspersons;
12.1.7. introduce and/or improve police training programmes, emphasising
that border protection and surveillance must be carried out in full
compliance with international obligations to respect individual
rights to protection, to information, to legal assistance and not
to be detained arbitrarily;
12.2. with respect to services at borders, to:
12.2.1. increase
the means given to border services to allow them to provide adequate
services to refugees, asylum seekers and migrants arriving at national
borders, whatever their status and pending the implementation of
appropriate procedures;
12.2.2. ensure the provision to migrants arriving at borders of
information on their legal position, including on their right to
apply for international protection (as enshrined in Article 8 of
Directive 2013/32/EU of the European Parliament and of the Council
on common procedures for granting and withdrawing international
protection – the recast Asylum Procedures Directive) in a language they
can understand, including oral interpretation (if necessary using
the possibilities of distant interpretation using services available
on the internet), taking into account the special difficulties of
vulnerable people such as children and traumatised and illiterate
people;
12.2.3. ensure the provision of interpretation at borders and
throughout reception and medical examinations, registration and
asylum processing, and to immediately cease any practices consisting
in obliging migrants to sign documents they do not comprehend, which
could lead them to believe they are signing asylum applications
when the documents concern deportation;
12.3. concerning legal assistance, to
12.3.1. ensure
migrants can make a claim for protection at borders, and obtain
legal aid and accessible and comprehensible information regarding
their legal rights, taking into account the special circumstances
of vulnerable people;
12.3.2. allow NGOs to provide assistance at places where human
rights violations are reported (in particular in transit zones and
along borders);
12.4. concerning medical and psychological assistance, to:
12.4.1. provide adequate access to medical services and health
care at borders and immediately after transportation to reception
centres, ensuring a permanent presence of medical staff, taking
into account the special needs of vulnerable people, such as children,
traumatised people and pregnant women;
12.4.2. in this framework, enable formal testimonies of physical
violence perpetrated by border officials to be verified objectively;
12.4.3. give access to psychological support for asylum seekers,
especially children, who often suffer from multiple trauma on arrival
in Europe. The psychologists working with NGOs should be involved
as partners in providing support, in view of the extensive experience
and expertise of international NGO networks working with migrants;
12.5. concerning NGOs, to:
12.5.1. consider NGOs as partners
and refrain from action that undermines their legitimate activities
aimed at saving human lives;
12.5.2. refrain from using stigmatising rhetoric against NGOs
assisting migrants, and refrain from taking any measures criminalising,
stigmatising or putting at any disadvantage individuals and NGOs
providing humanitarian assistance to, and defending the rights of,
refugees, asylum seekers and migrants; the authorities are thereby
invited to restore an enabling environment conducive to their work;
12.5.3. investigate allegations of infractions by NGOs of national
laws or regulations before independent courts for adjudication and
sanctions, which should only be applied in proven cases, respecting
the principle of proportionality and founded on a clear legal basis.
13. When implementing the assistance, services, policies and procedures
set out above in sub-paragraphs 12.1 to 12.4, member States should
ensure that these are gender-sensitive and that the special vulnerability of
women and girls is duly taken into account. They should also ensure
that legally binding standards, namely the Council of Europe Convention
on Preventing and Combating Violence against Women and Domestic Violence
(CETS No. 210), the Council of Europe Convention on Action against
Trafficking in Human Beings (CETS No. 197) and the Council of Europe
Convention on the Protection of Children against Sexual Exploitation
and Sexual Abuse (CETS No. 201) are fully known to all those concerned
by the arrival of migrants and that they implement them at all stages
of the process.
14. With respect to co-operation between countries on border management,
the Assembly urges member States not to conclude agreements on the
retention of migrants on one side of national borders, as these
often create situations in which lives and human rights are put
in danger through the obligation to stay in places where living
conditions are inhuman and services practically inexistent. Arbitrary
detention and denial of the right to (seek) asylum as well as the
right to be protected against refoulement are
also likely to arise in these circumstances.
15. The Parliamentary Assembly once again urges member States,
especially members of the European Union and the Schengen area,
to improve mechanisms for relocation, which are key in reducing
the pressure on Europe’s bordering countries and avoiding overcrowding,
unnecessary detention and unacceptable reception conditions for
asylum seekers. At the same time and for the same reason, more priority
should be given to the integration of protected people, including
the granting of legal status on other grounds, generalising best
practices from countries with proven success in this process.
16. The Assembly urges all European Union member States to refrain
from any pushbacks or complicity on pull-backs at their external
or internal borders. In line with their obligations under the recast
Asylum Procedures Directive and guidance provided by the European
Asylum Support Office (EASO) and the European Border and Coast Guard
Agency (Frontex), they must proactively inform migrants arriving
at their external borders of the possibility to make an application
for international protection and ensure access to legal assistance
and representation. NGOs providing counselling and legal assistance
must be given access to border crossing points and detention facilities
at the border and to migrants held there.
17. The Assembly urges Frontex to strengthen its internal reporting
mechanism on human rights violations occurring during Frontex-led
or co-ordinated operations. In case of violations of human rights
or international protection obligations that are serious or likely
to persist, the agency’s Executive Director should suspend or terminate
such operations, in line with Article 25.4 of Regulation (EU) 2016/1624
of 14 September 2016 on the European Border and Coast Guard. Reiterating
the Frontex Consultative Forum on Fundamental Rights recommendation,
the Parliamentary Assembly urges Frontex to immediately suspend
its operations at the Hungarian-Serbian border in light of the systematic
violations of human rights in the transit zones as confirmed by
the European Court of Human Rights in its judgment Ilias and Ahmed v. Hungary.
18. Finally, the Assembly urges the European Commission to:
18.1. ensure that member States immediately
halt practices and policies of pushbacks and collective expulsions
by responding actively and effectively to violations of Article
3 of the European Convention on Human Rights, Article 4 of Protocol
No. 4 to the Convention and Article 33 of the United Nations Refugee
Convention, as well as the European Union asylum acquis, and by investigating allegations
of unlawful acts by member States;
18.2. establish a systematic, independent and transparent mechanism
to monitor compliance of border management policies and practice
with the relevant provisions in the European Union asylum acquis, Articles 18 and 19 of the
Charter of Fundamental Rights of the European Union, the Schengen
Borders Code and the Directive 2008/115/EC of the European Parliament
and of the Council on common standards and procedures in Member
States for returning illegally staying third-country nationals,
and launch infringement procedures where necessary;
18.3. define guidelines on how to reconcile border control with
safeguarding access to protection, and assist member States in implementing
these guidelines;
18.4. link human rights-related requirements to the use of European
Union funding related to asylum, migration and border management
and monitor the compliant use of this funding by member States.