The violation of migrants’ rights at borders is a major and enduring 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. 

They are unlawfully detained, denied access to asylum procedures and even returned to countries where they would likely face persecution or inhuman or degrading treatment. 

Monitoring the human rights of migrants at borders is a key priority for European NHRIs. When taken together, their findings – compiled in ENNHRI’s regional report from 2021 – paint a picture of trends across Europe.  

However, monitoring is not an end in itself. Rather, it is a means for strengthening accountability and human rights compliance. In the next phase of its work on rights at borders, ENNHRI is shifting the focus from monitoring to accountability.  

Different human rights accountability systems exist at the national level. Yet many lack independence or are ineffective. Indeed, European NHRIs have reported a climate of impunity at borders.  

There is a lack of investigations into rights violations, poor cooperation by police and border authorities, inadequate access to justice for victims. Political will to recognise and address shortcomings is also in short supply.   

Why NHRIs are key human rights actors at borders 

The following sets European NHRIs apart from other organisations working on the human rights of migrants at borders:  

• European NHRIs are independent bodies, but enjoy a special place in the state structure and access to the government. This close relationship, which includes an obligation on the government to provide them with information, means NHRIs have a unique role in promoting and protecting migrants’ rights. They submit their recommendations directly to the government, with these often put before parliament for discussion. If implemented, the recommendations can lead to the revision of legislation, policies and practices that contradict human rights standards or contribute to human rights violations at borders.

• NHRIs form a bridge between state and non-state actors on migration. They support and cooperate with civil society organisations. For example, they coordinate efforts and ensure an enabling space for NGOs working on migration. In some cases, they provide human rights training that nurtures an enhanced culture of rights at borders. 

• Most ENNHRI members have the National Preventative Mechanism (NPM) mandate under the Optional Protocol of the Convention against Torture. This means that they are designated independent bodies vested with unrestricted and unannounced access to all places of detention, including at borders and in situations of de facto detention. This allows NHRIs to fill existing data gaps related to practices and conditions of detention at the border particularly as access to border facilities is increasingly restricted for civil society organisations.

ENNHRI’s understanding of human rights accountability is broad and reflects the unique position, role, and status of NHRIs in the human rights architecture. Accountability has multiple dimensions and is made up of several elements, including:  

• independent and effective monitoring and reporting at borders; 
• accessible complaints mechanism; 
• independent investigations into allegations of human rights violations; 
• a guarantee of effective access to justice in theory and practice; 

• the revision of legislation, policies, and practices that contravene human rights standards and contribute to violations of human rights at borders; and,  
• an increased focus on cultivating a culture of rights where authorities and other actors at borders are trained on human rights, take their obligations seriously, and cooperate with human rights defenders (HRDs).  

For more information, read the ENNHRI report on gaps in human rights accountability at borders. 

ENNHRI’s work on rights at borders encompasses four main areas, which reflect NHRIs’ mandates and added value. The activities on accountability build on the findings of NHRI monitoring and reporting.  

• Accountability: NHRIs have experience of monitoring and reporting at borders, and in some cases, investigating individual human rights violations. This means they are well-placed to identify gaps in human rights accountability at borders, their underlying causes, and solutions to bridge these gaps.  
• Monitoring: The drafting of a common methodology for monitoring rights at borders has ensured that the information collected by NHRIs in different European countries is relevant, complementary and comparable.  
• Reporting: Selected European NHRIs have drafted national reports based on their monitoring at the borders. These outlined key human rights concerns and good practices. The insights they are providing on accountability will feed into a final report.  
• Protecting: NHRIs have already used and will continue to use their mandate to meet governments and other relevant state and regional actors. They will discuss their findings and propose changes that will ultimately result in enhanced protection of migrants’ rights at the borders. 

Several human rights violations take place at Europe’s borders, despite existing national and international obligations. These are often closely linked to restrictive national and regional legislation and policies at borders.  

Reports continue to emerge of pushbacks, border authorities refusing to register asylum applications, and insufficient and inadequate information and legal assistance. Yet there is a lack of investigations and other necessary follow-up action that would ensure accountability when violations occur.  

NHRIs can complement available information and provide recommendations to address systemic issues due to their broad mandate as independent public bodies.  

ENNHRI’s work focuses not only on independent human rights monitoring and reporting at borders, but also on ensuring that monitoring leads to accountability.  

It brings together NHRIs to understand gaps in human rights accountability. It also facilitates NHRI cooperation and exchange on common challenges to and good practices and recommendations for strengthening human accountability at borders.  

ENNHRI’s work on accountability will culminate in a final report compiling this crucial information. This will be addressed to national and regional actors.