“Member states should unequivocally commit to handling the arrival of persons fleeing the horrendous situation in Afghanistan in accordance with their human rights obligations”, said the Council of Europe Commissioner for Human Rights, Dunja Mijatović, today.
“Various governments and local authorities in Council of Europe member states have set a positive example by pledging to host people fleeing Afghanistan following the Taliban’s takeover of that country. Regrettably, however, many member states have also hinted at, announced or taken steps towards border closures, the building of walls and fences, restrictions on asylum applications or pushbacks. These and other measures ostensibly aimed at ‘preventing irregular migration’ may result in people being prevented from seeking asylum on the territories of our member states, unlawfully turned back at borders or left without access to protection anywhere along their routes while seeking safety.
Some states have invoked fears of a new ‘migration crisis’ or ‘the lessons of 2015’ to justify such measures. This overlooks that the real crisis is being faced by the people of Afghanistan, notably women and girls, and by some neighbouring countries to which people mainly flee and which have already been hosting large numbers of Afghan refugees for many years. But Council of Europe member states cannot and should not expect to be insulated from the consequences of events in Afghanistan, especially in the form of arrivals of Afghans seeking protection at their borders and on their territories. While this may create challenges, these must be met in accordance with accepted and established human rights standards, and not be seized as an opportunity to further erode the system of protection in Europe, including key safeguards in the European Convention on Human Rights and the Refugee Convention. This would only exacerbate the true crisis that Europe is currently facing in relation to refugees, asylum seekers and migrants: a human rights crisis.
Events of recent years also show that responses which sideline human rights do not lead to sustainable solutions. Rather, they result in unnecessary human suffering by those targeted by such responses, leaving them stuck at borders, in inhumane reception conditions and in prolonged uncertainty - often leaving local communities to deal with the adverse effects of such policies.
Council of Europe member states should therefore take three key steps to tackle any upcoming challenges in a human rights-compliant manner.
Firstly, they should speed up the preparation of their reception and asylum facilities for potential new arrivals, so as to prevent overcrowding, sub-standard conditions and long delays in asylum processing in the near future. In particular, they should put in place gender-sensitive policies and procedures that cater for the specific needs and situation of women and girls, unaccompanied children, LGBTI people and other vulnerable groups. While the scale of arrivals could be greater or smaller, well-prepared member states, individually and collectively, have the capacity to meet these challenges. Failing to take action now, including because this is deemed politically sensitive, would be shortsighted. And it may turn the idea that a ‘crisis’ is coming into a self-fulfilling prophecy.
As past experience shows, it is likely that some member states, owing to their geographical location, will be more affected. They should therefore be able to rely on support from other states, both materially and, where necessary, with resettlement or relocation efforts.
Secondly, Council of Europe member states should ensure that the announced goal of ‘preventing irregular migration' does not lead to the de facto denial of human rights.
It would of course be preferable if those arriving in Europe could use safe and legal routes, a scenario requiring concerted efforts by member states to significantly expand resettlement places and making full use of humanitarian visas for those at immediate risk in Afghanistan or without appropriate protection in neighbouring countries, as well as removing unnecessary barriers to family reunification. However, member states must be realistic in acknowledging that many fleeing Afghanistan will still have no other choice than to resort to irregular movement to seek safety. Member states must therefore strictly refrain from penalising persons seeking protection for arriving irregularly, or from denying them access to asylum procedures because of the manner of their arrival or solely because they travelled through other countries before reaching their territories. Everyone, regardless of how they arrived, must be treated fully in line with the right to seek asylum, the principle of non-refoulement, the prohibition of collective expulsion and the prohibition of torture or inhuman or degrading treatment.
Similarly, Council of Europe member states which work with third countries to control migration must ensure that persons affected by such cooperation activities are not deprived of a chance to seek protection, left in limbo along their migration routes or otherwise made victims of human rights violations as a result of European financial or other support. This requires, in particular, making thorough human rights risk assessments of any cooperation activities and ensuring independent monitoring of their implementation.
Thirdly, human rights-focused solutions must be provided for Afghans who are already present on the territories of Council of Europe member states, whether for many years or having arrived more recently. Some member states that continued to insist on forcibly returning Afghan nationals, even as the scale of the catastrophe unfolding in Afghanistan was already abundantly clear, have now fortunately changed course. Others, however, have not yet unequivocally stated that returns will be suspended. All member states should scrupulously observe UNHCR’s non-return advisory. They should ensure protection is granted as appropriate in the light of current circumstances, including by reassessing rejections made before the most recent events in Afghanistan. People should not be left in a prolonged state of uncertainty, without realistic possibilities of reuniting with family members, or deprived of access to employment, education or other genuine possibilities to eventually integrate in the host country. Where protection is nonetheless denied, member states should ensure that the human rights of those involved are upheld, including by ensuring that they are not left in limbo without access to basic services or subject to long-term detention, while return remains impossible.
Council of Europe member states – many of which were active in Afghanistan over the last twenty years – do not only face a moral and legal imperative to treat Afghans seeking protection fully in line with their human rights obligations. Importantly, they also have the capacity to do so, individually and collectively. Moves that undermine human rights, therefore, would not be the inevitable result of the arrival of Afghans seeking protection, but of a lack of political courage and leadership.