Speech at the International Round Table “Regulation of Migration Processes in Eurasian Space”

Moscow 29 May 2018
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I am very pleased to be here today with you.

But you may well be wondering what a man from an organisation aimed at upholding human rights, democracy and the rule of law can possibly have to say about the regulation of migration processes in Eurasian space.

It is true that the Council of Europe does not have a mandate for managing migration as such. But, indirectly, we influence migration processes through:

our instruments, most notably our European Convention on Human Rights;

our human rights court; and

our other standards.

These instruments and standards apply in our 47 member states, from Lisbon to Vladivostok; from Reykjavik to Nicosia. Everyone entering this territory – and even some who have not physically entered but who can be considered to be under the effective control of our member states – is covered. Whatever their nationality, ethnic origin or religion, they are all protected by our human rights standards and fall under the jurisdiction of the European Court of Human Rights.

This is the concept – the human rights concept - that our member states agreed to, in order to keep peace in Europe.

Let me give you a couple of examples of how the CoE influences migration management - regulation of migration processes in Europe.

In 2011, the ECtHR delivered a judgment in MSS v Belgium and Greece. The case concerned the return of an asylum-seeker from Belgium to Greece under the so-called Dublin Regulation. This EU instrument allocates responsibility for determining asylum applications among EU countries. The basic principle is that the country of first arrival is the one which should decide on asylum claims. The Court held that conditions in Greece for asylum-seekers were so poor that CoE member states would be in breach of their obligations under the ECHR if they sent asylum-seekers back to that country. In reaching that decision, the Court effectively suspended the operation of the Dublin Regulation as far as asylum-seekers who had first arrived in Greece were concerned. EU Member States had to find other mechanisms to process the claims of these asylum-seekers while also taking steps to improve the situation in Greece to enable the Dublin process to recommence.

In its 2012 judgment in Hirsi Jamaa and Others v Italy, the Court found Italy to be in breach of the Convention because its military ships returned to Libya asylum-seekers rescued on the high seas. This underlined our member states’ responsibility for asylum-seekers coming under their effective control and restricted their ability to simply return them to third countries.

As I have already mentioned, member states accepted, for good reason, to be part of this system, which they created. In all areas of their activity, they are bound by CoE Conventions and other standards that they have agreed. This applies also when they are designing migration policies and regulating migration practices: they remain bound by CoE instruments.

Today, for an increasing number of our member states, these obligations are seen as a burden which restricts their freedom to set national migration policy. Some do not want to respect their commitments, or seek to change established rules.

Some question whether a system established in the late 40s and early 50s remains relevant to and suitable for the challenges faced by Europe in 2020. One could answer that the ECHR is not a rigid document, guaranteeing human rights standards as understood when it was concluded in 1950. It is a living instrument, and its provisions are continually being interpreted by the Court in light of modern-day standards to reflect today’s realities and challenges. But not everyone agrees.

Looked at from this perspective, this is no longer only about the human rights of migrants and refugees. It goes much deeper. It is about the very commitment of our member states to human rights protection in Europe, and the very existence of the collective responsibility that underpins this system put in place by those who understood far better than we do the price of prioritising national interests.

There are undoubtedly issues that need to be taken seriously and carefully discussed. The rise of populism, nationalism, racism and xenophobia is the result, at least in part, of a growing concern that our countries cannot absorb the numbers of migrants arriving at our shores. These concerns cannot simply be dismissed. One has to engage with them, explain more clearly how migrants can contribute to communities and show how welcoming migrants need not be to the detriment, financial or otherwise, of the local population.

There are legitimate security concerns about the risk of terrorists entering Europe among legitimate refugees. These concerns should be addressed by robust vetting procedures which identify the very small number who pose a security threat.

We also need to reflect, for example, on the circumstances in which it is acceptable to detain migrants as part of an efficient migration strategy and to what extent viable alternatives exist to ensure that those refused asylum status do not simply disappear but can be effectively returned.

Let me turn now to what we do in the CoE, and how we influence migration policy and processes.

As you may know, I began my work as the SRSG on migration and refugees just over two years ago.

My work has of course focused on the countries most affected by the so-called “European migration crisis”. However, my experience during my many fact-finding missions has shown me that the challenges presented by migration do not vary much from country to country. This is why I would like to share my views of the challenges migration poses for the CoE member states, and the fundamental principles which I believe must underpin Europe’s migration management system. The lessons we have learned will undoubtedly be useful in other geographical contexts.

One of my tasks is to carry out fact-finding missions, to see for myself the situation on the ground and report to the SG and the CM. My missions so far have largely concentrated on countries providing an emergency response to the high number of refugees and migrants arriving. I have observed in many places the goodwill and compassionate approach shown by the authorities and by communities towards the new arrivals.

But I have also witnessed different responses, and these are – from the CoE mission point of view – rather troubling.

We are seeing an upsurge in support for populist and far right parties, as they seek to persuade voters that governments have lost control of migration. They spread mistrust and hatred in our communities, which can erupt in violence and other racist acts.

In some countries coalitions or other power-sharing arrangements give populist parties a role in government. In others, mainstream parties are adopting populist policies to win votes. The overall impact has been that populist, xenophobic, nationalist policies have made their way into mainstream politics, to the detriment of fair, balanced and fact-based discourse.

One can observe that this is increasingly resulting in the building of a Fortress Europe. Walls and fences are being erected at borders and reports of pushbacks are commonplace. Conditions for asylum-seekers and refugees who manage to penetrate Europe’s defences are getting tougher. Immigration detention is being used to manage migration flows. Many countries are applying a more limited protection status that bestows fewer rights on recipients. More and more restrictions are being imposed on family reunification. Welfare support for asylum seekers and refugees is being cut. Some of the measures proposed or adopted raise serious human rights concerns under the ECHR. While by no means universal, this is nonetheless a clear trend.

Here our position is clear: the role of the CoE in protecting the human rights of refugees and migrants is more important than ever. Because it is about the rule of law; it is about respect for the rules we have all accepted in the name of collective responsibility for maintaining peace. We cannot compromise here. Our position is that the human rights standards of the Organisation, which apply throughout the migratory process, provide a strong legal framework on which migration management policies should be founded. A fair system which treats everyone with dignity and respect and grants protection to those in need is a more credible system. Full compliance with human rights standards will mean fewer challenges to decisions made and actions undertaken in the migratory process. It also makes the case for returning to their countries of origin those not granted protection status stronger.

So what does this mean, in concrete terms, for migration policies? I have recently set out my views on this question in my activity report, covering the first two years of my mandate. I believe that a strong, credible, European migration policy – to be sustainable – must include the following elements.

States need to show solidarity in times of high numbers of arrivals and share responsibility for hosting asylum seekers and refugees. Despite scare-mongering news reports, there is no doubt that we still have capacity to welcome all those who have already arrived in Europe in need of international protection if we distribute the new arrivals fairly.

We must continue to uphold the right to apply for asylum for all who seek international protection and increase our efforts to ensure that this right is effectively secured in practice, because we committed to protect those who are in need. This means zero tolerance towards pushbacks at our member states’ borders and simplified access to asylum procedure. These procedures must permit an individualised and rigorous scrutiny of claims; accelerated or simplified procedures, based on safe country concepts, may fall foul of this requirement. Access to accurate and relevant information about the right to asylum and applicable procedures is a key feature of an effective asylum system. The provision of interpretation and legal assistance is also important to ensure that the right to seek asylum is properly secured in practice. Remedies should be available, and where an arguable claim for asylum is made should have automatic suspensive effect. Administrative justice systems need to adapt to better manage their asylum-related workload and ensure swift but fair decision-making. All of this means that states have to invest much more money to increase personnel and improve procedures.

We also need to put in place legal pathways. This will help to better manage migration flows. For those fleeing war and persecution, this means looking into the possibilities to establish opportunities for seeking protection from outside Europe, in full compliance with human rights obligations, via resettlement programmes, humanitarian visa regimes and other private sponsorship schemes. There should be a workable and swift procedure for reuniting refugees with their families, as required by Article 8 ECHR. For migrants not seeking international protection, states need to create realistic prospects for lawful economic migration to Europe, in line with their needs. In this way we can address the continent’s labour and skills shortage and remove some of the attraction of irregular migration.

It is fundamental that we ensure that the human rights of migrants and refugees are respected during the migratory process. Decent accommodation and minimum social rights, such as access to basic health care and education, should be enjoyed by all migrants while they are on our continent, regardless of their immigration status. Migrants should not be detained for reasons relating to their migration status unless detention is justified under strictly delineated exceptions to the right to liberty. Realistic and effective alternatives to detention have to be developed in the national context and applied by states. Where detention is justified, the conditions of detention must be appropriate.

Additional protections for the vulnerable, including women, children, stateless people and LGBTI migrants, should be in place. Urgent action is needed to tackle the sexual abuse and exploitation of children, violence against women, human trafficking and the activities of smugglers. Guardianships systems across Europe must be strengthened to ensure that children enjoy the assistance of a guardian as soon as possible after their arrival, and in any case before any formal procedures for asylum or age assessment are begun. Age assessment procedures should respect the dignity and physical integrity of children. Those who arrive in Europe as teenagers need special support to help them transition to adulthood, with the attendant increase in independence and responsibility, in unfamiliar cultures.

Those who are not entitled to international protection should be returned. Of course, human rights should also be protected during removal procedures, and readmission agreements should be made contingent on proper international human rights supervision.

And now the most difficult part: states need to combat populist, xenophobic speech, “fake news” and hate crimes. We must change the political discourse around refugees and migrants. This is no easy task. The negative perceptions created and fed by some politicians and media have taken root in many countries. But tackling xenophobia, hate crime and intentional misreporting of the facts around refugees and migrants is a central element of securing community support. Politicians therefore have a responsibility to promote tolerance and mutual respect as regards migrants and refugees arriving in the country. Encouraging social inclusion by emphasising these fundamental values benefits us all.

There is also a real need for the development of integration policies for migrants who will stay. Integration activities which encourage interaction between local communities, including religious organisations, and newcomers can help to break down prejudices and foster mutual understanding. Measures promoting access to the labour market, recognition of academic qualifications and opportunities for language-learning facilitate the integration process. Municipalities have a critical role to play in developing effective integration strategies at local level, and should have the resources necessary to undertake this important task. Improved access to the labour market for asylum seekers and refugees can also boost local economies and make the public more aware of the advantages that migration can bring.

Tackling these challenges successfully requires a clear, principled and holistic approach by states working together for the good of all.

The CoE offers support to its member states to put in place such an approach, based on its human rights standards, through a number of different bodies and activities.

Each of these bodies has its own area of expertise. But we all work together to secure the fundamental rights of people in migration. The human rights expertise of the CoE and the practical assistance we can give are central elements of our added value in the migration field.

The full engagement of our member states, through government representatives of course but also civil society and academic institutions, is crucial to the success of our work. I therefore welcome this initiative by the RUDN, and look forward to further cooperation in the future.

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