In his speech at a joint debate with the Committee on Migration, Refugees and Displaced Persons of the Parliamentary Assembly of the Council of Europe, held on 2 October, Commissioner for Human Rights Michael O'Flaherty underlined that in addressing migration-related issues he draws on his work as Commissioner. "I've been the Commissioner for six months today, but migration has arguably been the top topic." he said.
During the joint debate on “Missing migrants, refugees, and asylum seekers – A call to clarify their fate” and “A shared European approach to address migrant smuggling” of the Parliamentary Assembly of the Council of Europe, he outlined five ways in which human rights can be put back at the heart of migration and border policy.
"First, the topic of curbing migrant smuggling. The most fundamental issue in dealing with smugglers, who must be brought to justice to the full extent of the law, their behaviour is despicable and deplorable, but in dealing with them, the first point must be to respond to the root cause of smuggling: promoting safe and legal pathways into our countries. Not open doors, but carefully controlled doors, safe doors that give people the opportunity to seek protection.
Second, another essential dimension in dealing with smuggling is to be careful with whom we deal in our cooperation with third countries. This area of externalisation of our migration policies, including for the purpose of curbing smuggling, is fraught with risk. Just think of the situation EU member states have been brought into in terms of engagement with countries such as Libya and Tunisia.
Third, in terms of my headline reactions to this issue, let us be very careful that in criminalising smuggling, we don't criminalise humanitarian action. There is discussion going on at the moment about a new instrument, I don't take a view on whether it is necessary or not, but I do take a firm view that it must honour the definition of smuggling to be found in the relevant United Nations treaty, the so‑called Palermo Protocol, which identifies the need for a for‑profit motive in the definition of smuggling. This is essential if we are to avoid criminalising legitimate humanitarian action."
In his fourth point, the Commissioner argued that while people’s claim for international protection are under consideration, they need to live in conditions fit for a human, adding that there have been improvements, but noted that in many countries the reception conditions remain deeply challenging. He further stated that when it comes to reception conditions, detention must not be the default option. "Detention must be the last resort when nothing else is considered to be effective and appropriate," he underlined.
Speaking about his fifth point, the Commissioner called for the establishement of independent human rights monitoring mechanisms as Europe's borders, where they do not already exist. "It can be done by an ombudsman, it can be done by a human rights commission. The model can be very specific to the country, but where this methodology has been tested it has been found to be useful. There has been a reduction in the number of incidents or alleged incidents and an overall sense that the border is working better. I strongly encourage the introduction of such mechanisms where they do not currently exist."
The CommHR also insisted on upholding the law at Europe's borders. He wondered how is it possible that some of us say "“Well, let's violate the law at our borders”. Why is violating the law at the border any less corrosive of the rule of law than violating the rule of law in the courtroom?"
In his exchange with the Committee of Ministers on 11 November, the Commissioner also raised the issue of migration, expressing concern about the securitisation of a number of borders in the context of an undoubted instrumentalisation of migration by third states. "This instrumentalisation is deplorable, however it is important that in responding to it, in protecting our borders, we do not have recourse to securitisation strategies which are at odds with human rights commitments under international law. I've visited a number of frontiers in recent times, and I am concerned about the extent to which human pushbacks take place, the extent to which the possibility to claim asylum is removed, and the very worrying humanitarian situation in some of the restricted-access zones to be found along borders.
It is very important that we do not cede our own commitment to human rights and the rule of law in responding to the outrageous practices of third states. And we also have to keep in mind that securitisation strategies often do not lead to the desired outcome, and to the contrary, they encourage smugglers, and they make the smuggling efforts ever more dangerous.
Before moving on, I recall another aspect of border management: the externalisation of consideration of asylum applications. I am currently reviewing the diverse forms of the practice and will publish my observations and recommendation in the matter early in 2025."
Further migration-related activities of the Council of Europe Human Rights Commissioner included submitting his written comments to the Grand Chamber of the European Court of Human Rights in the cases concerning summary returns of asylum seekers from Lithuania, Latvia and Poland to Belarus.
He also sent a letter to Cypriot President Nikos Christodoulides, highlighting the situation of some 35 individuals who have been stranded in the buffer zone for several months. “Prolonged stays in poor conditions expose them to significant risks of violation of the human rights enshrined in the European Convention on Human Rights (ECHR), including the prohibition of inhuman and degrading treatment and the right to private and family life”. He urged the authorities to ensure that laws and practices applied in the buffer zone and at sea comply with Council of Europe human rights standards.
Finally, during his five-day visit to Ireland (7-11 November), the Commissioner said he was alarmed
by the fact that single men seeking asylum in Ireland are not offered accommodation and often end up sleeping rough. “I highly appreciate the continued welcome extended by Ireland to Ukrainian beneficiaries of temporary protection and people fleeing conflict or persecution elsewhere, and the efforts made to address the long-standing shortages in accommodation. However, there are over 2,800 men currently exposed not only to adverse weather conditions but also growing hostility against them. I note that the government recognises the extent of this challenge and urge it to resolve the situation before the onset of winter.”
The Commissioner also discussed issues related to the recent introduction of increased border security measures in Ireland and encouraged the authorities to ensure that they are conducted in full compliance with their international human rights and refugee protection obligations.
