Human rights and accountability at borders

Practices of National Human Rights Institutions in Europe

The human rights of migrants have long been a key concern for European National Human Rights Institutions (NHRIs).

As independent state-mandated bodies, NHRIs play a key role in monitoring, promoting and protecting these rights, particularly at borders. At the same time, they help ensure accountability when violations occur.

NHRIs’ broad mandates mean they form a crucial part of any effective human rights accountability systems.

More information

Background

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.

What is human rights accountability?

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. 

Concept

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. 

Scope

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.   

background-red-lens-01-250x370

ENNHRI report - gaps in accountability for human rights violations at borders

Drawing on the experience and findings of European NHRIs, this report identifies gaps in accountability for human rights violations at borders. Based on their reporting, ENNHRI found shortcomings in five key areas:

  1. Structural gaps;
  2. Gaps in investigations;
  3. Gaps in access to justice;
  4. Gaps in revisions and prevention; and,
  5. Gaps in promoting a culture of rights.

The report identifies specific issues under each topic. These can serve as a starting point for NHRIs to exchange practices, develop solutions to overcome the identified gaps, and formulate recommendations to strengthen human rights accountability at national and regional levels.

Based on European NHRIs’ monitoring and investigative work, this report highlights regional trends and challenges linked to four key human rights issues at borders: returns and violence; access to relevant procedures; reception conditions and deprivation of liberty; and human rights accountability. It closes with ten recommendations for achieving human rights-sensitive governance at borders. These recommendations are also visualised in a separate infographic.

Through its mandate as National Human Rights Institution and National Preventive Mechanism, the Croatian Ombudswoman is responsible for the promotion and protection of human rights and freedoms of migrants in Croatia, including at borders. In their report, the NHRI presents findings from the activities carried out in 2020, including monitoring visits and complaint-handling.

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.

The Greek National Commission for Human Rights (GNCHR) is the Greek NHRI, accredited with A-status since 2001. This report covers the GNCHR’s activities on the protection of migrants’ rights at borders in 2020, taking into consideration major developments such as the entry into force of a new legal regime on international protection, tensions occurred at the Greek-Turkish land borders, and the pandemic. 

The Protector of Citizens is the Serbian NHRI. Within its mandate of National Preventive Mechanism, the Protector of Citizens monitors the treatment of migrants and asylum seekers by public authorities. The report presents the findings of the monitoring visits conducted in 2020-2021 at the borders with North Macedonia, Bulgaria and Croatia, and at international airports.

The Human Rights Ombudsman of the Republic of Slovenia is the Slovenian National Human Rights Institution. The Ombudsman, in cooperation with selected non-governmental organisations, is also the Slovenian National Preventive Mechanism. The Ombudsman makes use of both the NHRI and the NPM mandate to monitor the rights of migrants and handle complaints. 

Recommendations, migrants rights at borders

These recommendations are based on information from and trends identified in NHRIs’ work promoting and protecting the human rights of migrants at borders. They outline steps that relevant actors at the national and regional levels can take to ensure human rights-sensitive governance at borders.

guidance-BACKGROUND-red-with-signpost-01-250x370

This scoping paper sets out possibilities for NHRIs to cooperate with different actors on asylum and migration issues.

Working with different EU institutions and agencies, bodies of the Council of Europe, and different United Nations mechanisms could boost the impact of monitoring activities and enhance respect for relevant human rights norms and standards. At the same time, working with civil society organisations – especially those with a field presence – could strengthen NHRI engagement around border procedures, detention, reception, and returns.

By outlining areas for action and regional cooperation, this scoping paper points towards opportunities for NHRIs in the evolving landscape of European migration law and policy.

NHRIs in compliance with the UN Paris Principles can play an important role in ensuring that governments spend public funds for migration and asylum in a way that complies with their human rights obligations.

This report outlines the strong relationship between budget allocations and the realisation of human rights. It also summarises recent policy developments that offer strong opportunities for the involvement of NHRIs, and highlights the special role that ENNHRI can play to support its members in this area.

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.

background red doc-01

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.

background red with click-01

New paper outlines the role of NHRIs in the human rights scrutiny of EU funds for migration and asylum


NHRIs in compliance with the UN Paris Principles can play an important role in ensuring that governments spend public funds for migration and asylum in a way that complies and contributes to fulfilling human rights obligations. In a new paper, ENNHRI provides a short overview of the EU funds for migration in the period of 2021-2027 and the related opportunities and challenges for NHRIs regarding human rights scrutiny on the use of the funds.

» Read the article

Role of NHRIs in monitoring, reporting and protecting migrants’ rights at borders highlighted at High-Level Conference


On 2 and 3 June, ENNHRI held an online High-Level Event bringing together Head of National Human Rights Institutions (NHRIs) and migration experts, partners from international organizations, national governments, civil society organisations and academia to discuss the role of NHRIs in ensuring respect for the human rights of migrants at borders.

» Read the article

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.

» Read the article

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.

» Read the article 

Human rights must be at the centre of the implementation of the Global Compact on Migration in Europe

migrant family

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.

» Read the article 

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.

» Read the article 

New resource for monitoring rights of migrants at borders during COVID-19

ENNHRI has launched a new resource to complement its Guidance on monitoring the human rights of migrants at the borders. This new complementary guidance provides a series of guiding questions relevant to human rights monitoring at borders in the context of the COVID-19 pandemic.

» Read the article 

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.

» Read the article 

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.

» Read the article 

ENNHRI contributes to discussion at the European Parliament on violations of human rights of migrants at the borders

Participants at the event

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.

» Read the article 

New paper outlines how European NHRIs promote and protect human rights of migrants at borders

Men walking on a railway

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.

» Read the article 

New ENNHRI report showcases good practices of European NHRIs in advancing economic and social rights of migrants

Migrant children in a classroom

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.

» Read the article

European NHRIs gather in Madrid to strengthen their work on the rights of migrants at the borders

Participants of the Asylum and Migration WG meeting in Madrid

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.

» Read the article

Supported in part by a grant from the Foundation Open Society Institute in cooperation with the OSIFE of the Open Society Foundations