Opinion on Independent Human Rights Monitoring Mechanisms at Borders under the EU Pact on Migration and Asylum

10 March 2021 | Download as PDF

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 September 2020, the European Commission presented the EU’s new Pact on Asylum and Migration which puts forward a package of different legislative and policy proposals in the field of asylum, migration and border control in the EU. Among these, the legislative proposal for a Screening Regulation introduces a mandatory pre-entry screening phase for third-country nationals who do not fulfil entry conditions and requires Member States to establish a monitoring mechanism at the borders to oversee the human rights compliance of the screening process. However, the proposal remains vague as to the specific nature, powers, guarantees and functions of the mechanism.

ENNHRI has already advocated that NHRIs are a part of the solution for stronger human rights monitoring at Europe’s borders.

Based on European NHRIs’ experience in monitoring, promoting and protecting the human rights of migrants at borders, ENNHRI presents 10 recommendations in relation to the establishment and functioning of monitoring mechanisms at borders:

1. National monitoring mechanisms must be independent.

The independence of the mechanisms is a pre-condition for their effectiveness in monitoring, tackling, and preventing human rights violations at borders.

2. Mechanisms should have a broad scope to monitor human rights at borders.

The mandate should encompass all human rights violations by national authorities at borders, including outside official procedures, borders crossings and facilities and particularly in situations that often go unreported, such as pushbacks and violence at the borders.

3. Mechanisms should be given strong powers to carry out their mandate.

They must have unhindered access to documents, information, facilities, border areas and any place where victims of human rights violations may be found with the full cooperation of national authorities.

4. NHRIs should be consulted and their mandate respected when establishing and implementing the monitoring mechanism.

NHRIs should have a genuine opportunity to consider their possible role as the designated mechanism, part of it, or a close partner.

5. Mechanisms should be adequately resourced and possess the necessary skills and expertise.

Monitoring mechanisms must receive sufficient funding and have adequate resources, including qualified personnel and any other human or material resources, for implementing their activities.

6. Mechanisms should be accessible and transparent.

The mechanism should benefit from regular exchanges with civil society organisations and other human rights defenders and its work should be submitted to public scrutiny, with no prejudice for its independence.

7. Mechanisms need an enabling space for their effective and independent functioning.

The mechanism should not face threats, intimidation or reprisals from public authorities or private groups and inviduals, its personnel should be protected.

8. Monitoring should lead to better protection and human rights accountability.

The mechanism should contribute to ensuring access to justice for victims of human rights violations, propose recommendations to relevant authorities and enhance the overall system for human rights accountability at the national, regional, and international levels.

9. Mechanisms should be considered alongside other EU policies.

The EU should consider the role and placement of monitoring mechanisms alongside its other initiatives in the field of fundamental rights and the rule of law.

10. Cooperation among monitoring bodies is essential, including from non-EU countries.

It is only by ensuring human rights-based cooperation on both sides at the borders that violations can be monitored, tackled and prevented.

ENNHRI and its members will continue to engage with EU co-legislators to ensure that the negotiations under the EU Pact on Asylum and Migration bring opportunities to achieve a human rights-compliant migration and asylum policy and legislation in Europe.

ENNHRI is the European Network of National Human Rights Institutions. We bring together over 40 National Human Rights Institutions (NHRIs) across Europe to enhance the promotion and protection of human rights in the region. Our network provides a platform for collaboration and solidarity in addressing human rights challenges and a common voice for NHRIs at the European level.

ENNHRI’s work in relation to migrants’ rights at borders is supported in part by a grant from the Foundation Open Society Institute in cooperation with the OSIFE of the Open Society Foundations

Photo credit: Flickr/Steve Evans