Speech at the Fundamental Rights Forum

Vienna, Austria 21 June 2016
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Thank you Chair

And thank you Michael for giving me the opportunity to participate in an event with such broad appeal and to comment on such a topical issue:  EU asylum policy. 

As you know, the Council of Europe and the European Union have a lot to share. All 28 EU countries are Council of Europe members; quite often we work in overlapping fields; and, in principle, we have the same values.

The protection of human rights is, of course, the raison d’être of my Organisation. However, the EU is also committed to ensuring their respect in all areas covered by its policies; this is why your truly remarkable agency has been created.

If there is one policy area in Europe today where our states must make sure that human rights are upheld, this is migration. This is also the task that the Secretary General of the Council of Europe gave me when he appointed me, on February 1st, as his special representative on migration and refugees. 

My role is to conduct fact-finding missions to the states that are most impacted by the current migration flows in order to make proposals on how the Council of Europe can assist them in the most effective manner; also to enhance coordination within the Council of Europe in the fields of migration and refugee protection; and most importantly for today’s purposes, to find ways of better cooperating with other European and international organisations.   

My mission to Vienna to attend the Fundamental Rights Forum follows on the heels of my first official visit to Brussels where I had a series of high-level meetings with officials from the European Commission, the Council and the European External Action Service, as well as with the Presidency and members of the European Parliament.

Thanks to a frank exchange of views, I am now beginning to have a clearer picture of where the European Union wants to go in terms of asylum policy and of the big institutional challenges it will be confronted with in the immediate future. 

Being an outsider, I am of course less concerned than the EU officials and MEPs I met about the institutional challenges. For me as a representative of the Council of Europe, as I said before, the biggest challenge is how our member states can manage the migration flows whilst respecting human rights. And in the few minutes that I have at my disposal I will try to point out some issues to which I consider that the European Union should pay particular attention in this connection when developing its asylum policies.

Effective asylum determination procedures are, of course, key to any such policies. There is no doubt that the directives in place and the legal instruments to come reflect adequately this concern. What the case law of the European Court of Human Rights requires in this respect is automatic suspensive effect for appeals against decisions to return to countries where the returnee runs a real risk of being subjected to torture or inhuman or degrading treatment or punishment. According to the case law, this applies when the returnee has an arguable claim that there is such a risk. In practice, this means automatic suspensive effect at the initial stages at least, of all such appeals procedures.

Many of the asylum-policy-related proposals on the EU legislative table involve conferring additional powers to EU agencies. As a result, some of the actions that used to be conducted by the states will now be conducted by the agencies in question. In our view, it is important that there should be appropriate European supervision over the actions of these agencies to ensure respect for human rights.

Other proposals aim at promoting a fairer refugee-distribution mechanism. I have visited some of the countries that bear most of the burden today and I cannot but applaud the intentions behind these proposals. What the proposals should not overlook is the states’ obligation to respect key European Court of Human Rights judgments stopping them from sending refugees and asylum seekers to member states that cannot guarantee for them effective asylum procedures and adequate living conditions. Of course, states should not be allowed to capitalise on their own failings. At the same time, we should also accept the reality of some of these states and the need to assist them to comply with the judgments of the Strasbourg Court. Our system is after all based on the idea of collective responsibility for ensuring respect for human rights.

In addition to effective asylum determination procedures, states should put in place proper integration policies for refugees. This is an aspect that should not be overlooked in Brussels. All aspects of these integration policies should respect human rights; they should also have a clear emphasis on non-discrimination and zero tolerance for hate crime.

There is no doubt that some asylum seekers will eventually be returned to what are termed in EU law safe non-EU countries. Some of these countries are Council of Europe member states. What the EU asylum policy should do/continue to do is to ensure that the returning states rely on the body of knowledge built by the various Council of Europe monitoring/advisory mechanisms when assessing whether a non-EU country is safe. The findings of these bodies are a very important safeguard against hasty - not to say expedient or politicised - decisions in this connection. And the absence of equivalent mechanisms to assess the situation in other neighbouring countries that are not Council of Europe members should be a factor to be taken seriously into consideration before deciding whether the EU should conclude special agreements with them.

This brings me to another related issue. Since EU asylum policy is increasingly based on such agreements, it is important that the Council of Europe states that conclude them are persuaded to ratify all protocols to the European Convention on Human Rights that are relevant for the topic we are discussing today; specially Protocol No. 4, which protects among other things against collective expulsions.

Finally, EU asylum policy should place special emphasis on protecting refugee and asylum seeking children. This is another aspect of the mandate given to me by the Secretary General of the Council of Europe. The Committee of Ministers of the Council of Europe, at its Sofia meeting in May, decided to start work towards an action plan in this area, which I have been asked to coordinate. This is yet another topic on which we can develop synergies between our two organisations.

And it is with this call for increased synergies that I would like to close my presentation, hoping that this year’s Fundamental Rights Forum will signal a new phase in our cooperation with a view to guaranteeing those fleeing war and persecution at home a safer future in our privileged - in terms of values and human-rights protection - part of the world.

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