Monitoring, reporting and protecting migrants’ rights at borders
Practices of National Human Rights Institutions in Europe
The rights of migrants are well-established on the agendas of European National Human Rights Institutions (NHRIs). Due to their nature as independent state-mandated bodies, NHRIs play a key role in monitoring, promoting and protecting the human rights of migrants, including at the borders.
The violation of migrants’ rights at the borders is a key persisting fundamental rights concern in Europe. Despite the efforts of civil society organisations, international organisations and NHRIs, migrants still see their rights violated on a daily basis, such as by being unlawfully detained, being denied access to the asylum procedures, or even being returned to countries where they would likely be persecuted or subject to inhumane or degrading treatment.
The monitoring of migrants’ rights at the border, including through the exchange of experiences with other NHRIs, is a key priority for European NHRIs. The main distinctive features of European NHRIs, if compared to other organisations working in this field, are:
- Most ENNHRI members have the National Preventative Mechanism (NPM) mandate under the Optional Protocol of the Convention against Torture, which means that they are the designated independent bodies vested with unrestricted and unannounced access to all places of detention, including at the border and situation of de facto detention. This allows NHRIs to fill existing data gaps on practices and conditions of detention at the border, since access to these facilities for civil society organisations are increasingly restricted.
- European NHRIs are independent bodies but enjoy a special place in the State structure and easier access to the government. This close relation with the government, which in some cases also includes an obligation of the government to provide information to NHRIs, gives European NHRIs a special role in the promotion and protection of migrants’ rights. The recommendations of NHRIs are also submitted directly to the government and often put before the Parliament for discussion.
- NHRIs form a bridge between state and non-state actors on migration. They support and cooperate with civil society organisations, for example by coordinating efforts and ensuring an enabling space for NGOs working on migration issues, and, in some cases, by providing human rights training.
The project has three main components, which reflects NHRIs’ mandate and added-value:
- Monitoring: The drafting of a common methodology ensures that the information collected by NHRIs in different European countries is relevant, complementary and comparable.
- Reporting: The selected European NHRIs drafted national reports with the result of the monitoring at the borders, focused on key elements, main human rights concerns and good practices.
- Protecting: NHRIs will make use of their mandate to meet the government and other relevant State actors to discuss the findings and propose changes that will ultimately result in the protection of migrants’ rights at the borders.
Difficulties to access the asylum procedure in practice, despite existing national and international human rights obligations, remains a fundamental issue faced by persons in need of international protection in Europe. These difficulties are often closely linked to current, restrictive legislation and policy at national borders, as well as EU external borders. While reports of push-backs, refusals of border authorities to register asylum applications, and lack of information and legal assistance continue to emerge, data on these practices are often incomplete or inexistent due to the remoteness of borders and difficulties faced by NGOs and other organisations of being granted access to border or detention facilities. As explained above, NHRIs can play an important role in complementing the available data, due to either their mandate as NPM, when applicable, or to their nature as independent public bodies. Therefore, the project, while looking generally on migrants’ rights at the border, could focus on human rights concerns with regard to access to the asylum procedure, push-backs and violence at the borders.
The National Consultative Commission on Human Rights (CNCDH) is the French National Institution for the protection and the promotion of human rights (French NHRI).The CNCDH has a particular focus on migration, regarding both the situation of migrants at borders and inland. The report covers the work of the Commission in the field of migration over the three latest years (2018-2020), including on-site visits at the Franco-Italian and Franco-British borders.
In this background paper, ENNHRI sheds light on the findings of NHRIs about human rights violations at the borders and how they have used their strong, broad mandate to promote and protect migrants’ human rights. Looking forward, this paper serves as a starting point for European NHRIs to put forward recommendations to national and regional authorities to ensure that human rights are also respected at the borders.
By observing, gathering and verifying information, NHRIs use their unique mandate to identify and address violations of the human rights of migrants at European borders. With this practical Guidance, NHRIs and other actors engaged in monitoring at borders can: address common human rights concerns; compare information; exchange on their monitoring challenges and good practices; and propose joint advocacy actions.
The Guidance identifies four main areas of concern that human rights monitors at borders can focus on:
- Return procedures and violence by state and non-state actors, with a focus on pushbacks and collective expulsions.
- Access to relevant procedures at borders, including asking for asylum.
- Living conditions in reception facilities and places of deprivation of liberty, particularly for vulnerable groups.
- Effective systems for human rights accountability at borders, such as independent monitoring, an enabling environment for human rights defenders, and adequate response from authorities when violations occur.
Following the full Guidance’s approach, four clusters of questions address potential human rights issues that monitoring bodies like National Human Rights Institutions (NHRIs) can investigate when assessing the situation at borders during the pandemic.
Due to the fast-evolving nature of the pandemic, this Complementary Guidance does not intend to give an all-encompassing overview of the human rights issues that need being monitored and addressed. It must be read together with the wider principles and questions presented in the full Guidance and complemented by the best practices and standards identified by expert organisations.
In this statement, ENNHRI is calling for all monitoring mechanisms to be truly independent, adequately resourced and have appropriate expertise and powers. Their monitoring should lead to human rights accountability at borders and be considered alongside other EU policies. National Human Rights Institutions (NHRIs) should be consulted and considered when establishing such mechanisms.
In this statement, ENNHRI calls for NHRIs to be a part of the solution for stronger human rights monitoring at Europe’s borders. The creation of “new” systems to monitor human rights at Europe’s borders is the subject of much discussion. However, while Europe needs more transparent, accountable and human rights-compliant governance at its borders, the answer is not to create new mechanisms, but to strengthen existing ones. NHRIs, alongside other human rights defenders, are already playing a crucial role in independently monitoring Europe’s borders, and their work should be reinforced.
NHRIs of Germany, Greece, Croatia and Bosnia and Herzegovina have published a joint statement on the human rights situation at European borders and the impact of EU asylum policy. According to the statement, the current developments at the EU’s external borders are alarming and demonstrate the consequences of the increasing externalisation and shift of the European migration and asylum policy to the borders.
Joint Monitoring at Borders: practice of the Georgian and Armenian NHRIs in cooperation with UNHCR
Human rights monitoring at borders is a key function of National Human Rights Institutions (NHRIs). In this guest article, the Office of the Public Defender of Georgia and the Human Rights Defender of Armenia share their experience and identify the benefits of inter-NHRI cooperation, including through joint visits at borders.
European Parliament recognises NHRIs’ key role in monitoring human rights in forced returns of migrants
On 17 December, the European Parliament adopted a Resolution that provides an EU-wide overview of the implementation of the Return Directive. It identifies human rights issues in return procedures and recalls the obligations of EU Member States under the Directive. It also calls on the European Commission and Member States to respect and make use of the mandate of National Human Rights Institutions (NHRIs), including in relation to the monitoring of conditions of immigration detention and forced return operations.
Human rights must be at the centre of the implementation of the Global Compact on Migration in Europe
ENNHRI has made a submission for the Regional Review of the Global Compact on Migration (GCM), providing information on the implementation of the GCM in Europe. The submission summarises findings and recommendations from National Human Rights Institutions (NHRIs) in Europe in the field of asylum and migration.
Protecting the rights of migrants during the pandemic: How have NHRIs responded?
Throughout the COVID-19 pandemic, National Human Rights Institutions (NHRIs) in Europe have promoted and protected the rights of migrants – a group disproportionately affected by the crisis. The impact of NHRIs’ work shows that they must be part of regional solutions for stronger human rights protection, especially as new developments offer opportunities for change in asylum and migration policy.
New resource for monitoring rights of migrants at borders during COVID-19
NHRIs issue statement on the situation at EU external borders and European asylum policy
The National Human Rights Institutions (NHRIs) of Germany, Greece, Croatia and Bosnia and Herzegovina, which are also ENNHRI members, have published a joint statement on the human rights situation at European borders and the impact of EU asylum policy. According to the statement, the current developments at the EU’s external borders are alarming and demonstrate the consequences of the increasing externalisation and shift of the European migration and asylum policy to the borders.
ENNHRI launches new Guidance for stronger monitoring of migrants’ rights at borders
National Human Rights Institutions (NHRIs) and other human rights defenders operate in increasingly challenging contexts when monitoring, promoting and protecting the human rights of migrants at borders. To support this work, ENNHRI has launched a Guidance with four areas of focus and guiding questions, along with key principles.
ENNHRI contributes to discussion at the European Parliament on violations of human rights of migrants at the borders
On 18 February, ENNHRI participated in a briefing organised by the Open Society European Policy Institute (OSEPI) and MEP Tineke Strik to discuss the violations of migrants’ human rights in different European borders and how it relates to threats to the rule of law. ENNHRI highlighted NHRIs’ independent monitoring and the challenges faced by Human Rights Defenders, including NHRIs, when working on migration.
New paper outlines how European NHRIs promote and protect human rights of migrants at borders
ENNHRI has launched a new paper outlining how National Human Rights Institutions (NHRIs) in Europe promote and protect the human rights of migrants at borders. The paper serves as a starting point for European NHRIs to put forward recommendations to national and regional authorities to ensure greater respect for human rights.
New ENNHRI report showcases good practices of European NHRIs in advancing economic and social rights of migrants
The report highlights the work of National Human Rights Institutions (NHRIs) in Europe in relation to migrants’ access to economic and social rights. It provides an overview of the main human rights issues faced by migrants when seeking to enjoy their economic and social rights and concrete examples of how NHRIs use their mandate to address them. This information was compiled based on the exchange of good practices and key challenges in ENNHRI’s Asylum and Migration Working Group.
European NHRIs gather in Madrid to strengthen their work on the rights of migrants at the borders
From 9 to 11 October, ENNHRI’s Asylum and Migration Working Group met in Madrid, where representatives of 17 National Human Rights Institutions (NHRIs) reaffirmed the importance of collective work on migrants’ rights. In particular, participants strengthened their knowledge on promoting and protecting migrants’ rights at the borders by sharing practices and hearing from regional actors in this field, while also stressing the importance of collaboration with civil society organisations.
Supported in part by a grant from the Foundation Open Society Institute in cooperation with the OSIFE of the Open Society Foundations