Fundamental rights of refugees, asylum applicants and migrants at the European borders

These rights and obligations are stemming from the rich body of case law of the European Court of Human Rights (ECtHR).The Court acknowledged that states enjoy an "undeniable sovereign right to control aliens’ entry into […] their territory",¹ but it emphasised that they must exercise this right in line with the provisions of the European Convention on Human Rights (ECHR).²

As regards border control, the EU Schengen Borders Code (Regulation (EU) 2016/399) lays down rules governing border control of persons crossing the EU’s external borders:

• Article 5 - external borders may be crossed only at border crossing points and during the fixed opening hours;
• Article 13 - EU countries have to put in place an effective border surveillance system to prevent unauthorised entry;
• Articles 3 - border control measures must be without prejudice to the rights of refugees and other people requesting international protection, in particular as regards the principle of non-refoulement;
• Article 4 - EU countries must respect fundamental rights when carrying out border controls.

States have an obligation to protect people against loss of life and inhuman or degrading treatment or punishment. This includes disproportionate violence.

Excessive use of force may result in violations of Article 2 (right to life) and Article 3 (prohibition of torture, inhuman or degrading treatment or punishment) of the ECHR. It can also lead to violations of the right to life, the right to integrity and the protection from ill-treatment enshrined under the EU Charter of Fundamental Rights (EU Charter).

Whenever Articles 2 and 3 of the ECHR are violated, States must carry out an effective official investigation.³

To be effective, an investigation must be prompt, expeditious and capable of leading to the identification and punishment of those responsible:

• investigation must be thorough and must make a serious attempt to find out what happened;
• people responsible for the investigation or carrying it out must be practically independent from those implicated in the events; there must be no hierarchical or institutional connection;
• victims should be able to effectively participate in the investigation and the next of kin of the victim must be involved to the extent necessary to safeguard their legitimate interests.⁴

The Schengen Borders Code requires that:

• Article 14 (3) – people refused entry have a right to appeal;  
• Article 4 - border control tasks have to be carried out in full respect of human dignity.

This means that checks at border crossing points must be carried out in a way which does not discriminate against a person on grounds of sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.

• issue an individual written return decision to the person concerned;
• inform them that they will be removed and give them the possibility to present arguments why the return would be in breach of international or European law.

Article 2 (2) (a) of the Return Directive allows Member States not to apply certain provisions to people apprehended in connection with their irregular border crossing. Notwithstanding this exception, every person must receive an individual decision.

In addition, under EU law as well as CoE law, the principle of non-refoulement forbids States to send back people who would face persecution or serious harm (see “Bars to removal” in the tab Removal, return and detention).

• come directly from a territory where their life or freedom was threatened;
• present themselves to the authorities without delay.

Pursuant to Article 5 of the 2000 United Nations Anti-Smuggling Protocol, migrants must not become liable to criminal prosecution if they have become victims of smuggling.

Under EU law, criminal sanctions must not undermine the effectiveness of the Return Directive (2008/115/EC).

According to the Court of Justice of the EU, criminal law sanctions may be applied to irregular migrants subject to return. However, they must not hamper or delay the removal procedure.

Therefore, national legislation can permit the imprisonment of persons in return procedures only after the administrative measures envisaged in the Return Directive have been exhausted.⁵

Under Articles 18 and 19 of the EU Charter, Member States have to give access to asylum procedures for people who seek international protection.

Protection needs cannot be set aside while implementing measures to address public health considerations at the borders.

Refusing entry of all asylum applicants, or of those of a particular nationality, does not comply with the right to seek asylum and could lead to a risk of violating the principle of non-refoulement.

Under Article 15 of the European Convention of Human Rights (ECHR), states can derogate from various provisions of the ECHR. Any derogation needs to comply with the law, and be necessary and proportionate to its pursued aim. Any derogation from the principle on non-refoulement (Articles 2 and 3 of the ECHR) is invalid.

Whilst acknowledging the clear imperative to take firm actions to combat a pandemic, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) pointed out the absolute nature of the prohibition of torture and inhuman or degrading treatment or punishment. Protective measures must never result in ill-treatment of persons deprived of their liberty. States should continue to guarantee access for monitoring bodies to all places of detention, including places where people are kept in quarantine. All monitoring bodies should however take every precaution to observe the ‘do no harm’ principle.¹

The European Social Charter sets out the right to health and provides for the right to medical assistance (Articles 11 and 13), which are applicable to migrants in an irregular situation.² States have an obligation to prevent epidemics and provide the means of combatting epidemic diseases.

In case of pandemic, alternative measures such as testing, isolation and quarantine may enable authorities to manage the arrival of asylum applicants in a safe and orderly manner, while respecting the right to asylum and the protection from refoulement and providing the necessary healthcare to those in need.

Article 15 of the ECHR further clarifies that these rights are absolute and cannot be derogated from even in time of emergency.

In some exceptional cases, states also cannot remove people who would suffer from a flagrant breach of Article 5 (right to liberty) or Article 6 (right to a fair trial) of the ECHR in the country of destination.²

In addition to the absolute bars to removal, under the 1951 Refugee Convention and under the EU Qualification Directive (2011/95/EU), refugees and subsidiary protection status holders can only be removed in extremely exceptional situations and only when this does not conflict with the absolute bars deriving from the ECHR.

Where a person has an “arguable complaint” that his removal would expose him or her to treatment breaching Article 2 (right to life) or Article 3 (prohibition of torture, inhuman or degrading treatment or punishment) of the ECHR, he or she must have an effective remedy which suspends his or her removal (automatic suspensive effect).³

Under EU law, some of the requirements elaborated in the European Court of Human Rights (ECtHR) case law have been included in the Asylum Procedures Directive (2013/32/EU). The directive sets out very detailed rules on common procedures for granting and withdrawing international protection. It applies to asylum claims made in the territory of EU Member States, including at borders, in territorial waters and in transit zones (Article 3).

For people who do not request international protection, the Return Directive (2008/115/EC) provides for certain safeguards on the issuance of return decisions.

For refugees, the principle of non-refoulement as laid down in Article 33 of the 1951 Refugee Convention, prohibits the return of refugees and asylum applicants to countries where they would risk persecution.

For all people, regardless of their legal status, the principle of non-refoulement is a core component of the prohibition of torture and cruel, inhuman or degrading treatment or punishment enshrined in Article 7 of the 1966 United Nations (UN) International Covenant on Civil and Political Rights and Article 3 of the 1984 UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Such obligations are absolute: they do not allow for any derogation, exception or limitation. The prohibition of refoulement applies both at the border and within the territory of a state.⁴

Under the European Convention of Human Rights (ECHR), Article 2 (right to life) and Article 3 (prohibition of torture, inhuman or degrading treatment or punishment) prohibit any return of an individual who would face a real risk of treatment contrary to those provisions. States are liable for breaches of their obligations enshrined in the ECHR.⁵

The principle of non-refoulement is also applicable in the context of non-admission and rejection at the borders.⁶

When it comes to the EU's fundamental rights regime, the principle of non-refoulement also takes centre stage. It is reflected in Article 78 (1) of the Treaty on the Functioning of the EU. Articles 18 and 19 of the EU Charter also encompass the prohibition of refoulement, which is further specified in secondary EU law and applies to refugees, asylum applicants and migrants in an irregular situation. Essentially, these provisions mirror international human rights obligations undertaken by EU Member States.

Under Articles 3 and 4 of the Schengen Borders Code (Regulation (EU) 2016/399), border control has to respect the rights of refugees and people requesting international protection.

Under Article 9 of the Asylum Procedures Directive (2013/32/EU), asylum applicants can remain in the territory of an EU Member State until a decision is made on their application. Return procedures have to be implemented taking into account the best interests of the child, family life, the state of health of the person concerned and the principle of non-refoulement (Article 5 of the Return Directive, 2008/115/EC).

The term ‘expulsion’ refers to any forcible removal of a foreigner from the territory, irrespective of the lawfulness and length of stay, the location of apprehension, the person’s status or conduct.⁹

An expulsion is characterised as “collective” when there is no reasonable and objective examination of the particular case of each individual within the group. The size of the group expelled is not relevant: even two persons may be sufficient to form a group.¹⁰

The persons concerned must have the opportunity to put forward their arguments to the competent authorities on an individual basis.

However, the degree of individual examination of the personal circumstances of each member of the expelled group depends on several factors.

• People must have a genuine and effective possibility of raising arguments against their expulsion.¹¹
• They must make use of lawful ways to reach the country, if they exist and are effective.
• If they do not make use of such possibility, enter the country in a violent way and do not have an arguable claim under Article 3 (prohibition of torture, inhuman or degrading treatment or punishment) of the ECHR, they may lose such right.¹²

Notably, it must be:

• provided for by national law;
• carried out in good faith;
• closely connected to the legitimate aim pursued.

The conditions of detention should be appropriate and the length of the detention should not exceed what is reasonably required.

Proceedings must be carried out with due diligence and there must be a realistic prospect of removal.

According to European Court of Human Rights case law, the specific situation of detained persons and any particular vulnerability (such as health, age, special needs, etc.) may render detention unlawful. If the aim pursued by detention can be achieved by other less coercive measures, detention is not lawful.¹³

When children are involved, the authorities must demonstrate that detention is necessary and that other less coercive measures cannot be applied instead. Maintaining family unity does not justify detention: the principle of the best interests of the child requires that alternatives should be considered for the entire family.

The extreme vulnerability of children has consequences not only in the context of protection against arbitrariness under Article 5 (1) (f) of the ECHR, but also for Article 3 (prohibition of torture and other forms of ill-treatment) of the ECHR. Even if conditions of detention are appropriate, detaining children might still violate Article 3 of the ECHR.¹⁴ 

Under the EU asylum and return law, detention solely on grounds of seeking asylum, or mere irregular entry or stay is prohibited.

Detention of people seeking international protection and people in return procedures must be:

• necessary and proportionate;
• based on an an individual assessment of the circumstances of each case;
• applied only if it has been established that other less coercive measures cannot be implemented instead.

To avoid arbitrary detention, authorities need to meet additional requirements, such as giving reasons for any detention and allowing the detainee to have access to speedy judicial review (Reception Conditions Directive, 2013/33/EU, Articles 8-11 and Return Directive, 2008/115/EC, Articles 15-17).

In addition, asylum and pre-removal detention must be as short as possible. When deprived of their liberty, people must be treated in a humane and dignified manner.

Immigration detention of children must be a measure of last resort, for the shortest period of time and after it has been established that alternative measures cannot be applied effectively.

Unaccompanied children can be detained only in exceptional circumstances.

The European Convention of Human Rights (ECHR) does not provide for the right to asylum as such. However, turning away an individual and thereby putting them at risk of torture or other forms of inhuman or degrading treatment or punishment is prohibited by the principle of non-refoulement.

To be protected from arbitrary removal, people should have access to fair and efficient asylum procedures and get sufficient information on the relevant procedures in a language they understand, as well as a right to legal advice. The European Court of Human Rights (ECtHR) has also emphasised the importance of interpretation to ensure access to asylum procedures.¹

Article 18 of the EU Charter explicitly guarantees the right to asylum.

Under Article 4 of the Schengen Borders Code (Regulation (EU) 2016/399), border control activities must fully comply with the requirements of the 1951 Refugee Convention and the obligations related to access to international protection, in particular the principle of non-refoulement.

Article 6 of the Asylum Procedures Directive (2013/32/EU) requires Member States to register an asylum application within established deadlines. Under Article 8 of the directive, Member States must provide asylum applicants with information on the possibility to do lodge their claims.

Under EU law, the Asylum Procedures Directive (2013/32/EU) requires Member States to register and examine all asylum applications.

In 2001, the EU adopted the Temporary Protection Directive (2001/55/EC) for situations of mass influx of displaced persons. The directive requires a decision by the Council of the EU to be operational, which has not happened by 2020.

In case of a large number of arrivals, Article 6 of the Asylum Procedures Directive allows to extend the deadlines for registering and examining asylum applicants.

However, authorities are not allowed to deny people the right to seek asylum.

This also applies when returning an asylum applicant to a transit country that may be categorised as a “safe third country” but does not itself offer sufficient guarantees against refoulement.

The expelling state cannot merely assume that the individual will be treated in the receiving third country in conformity with the ECHR standards. Authorities must carry out a rigorous and up-to-date assessment, notably of the accessibility and functioning of the receiving country’s asylum system and the safeguards in practice.²

Under international as well as EU law, a state may refuse to grant asylum to a person who had already found safety in a third country. Articles 36-39 of the Asylum Procedures Directive (2013/32/EU) define the requirements and safeguards. Under Article 36 of the directive, rejecting an applicant because he or she had found protection in a third country must, however, be established after having examined the individual case.

This includes an obligation to take active steps to detect vulnerabilities at the earliest stage possible through effective vulnerability assessment procedures, and to ensure that individuals are informed about such procedures.¹

Under EU law, Member States must take into account the special needs of vulnerable persons seeking international protection (Reception Conditions Directive (2013/33/EU), Article 21) or subject to a return procedure (Return Directive, 2008/115/EC, Article 3 (9)).

Under the Reception Conditions Directive, Member States are obliged to assess within a reasonable period of time whether applicants for international protection have special reception needs.

Member States are also required to indicate the nature of such needs and ensure that they are taken into account throughout the duration of an asylum procedure, while adequate support and appropriate monitoring of their situation is provided.

The Return Directive also requires that detailed attention be paid to their particular situation when adopting and implementing a return decision, including in the context of pre-removal detention.

The best interests of the child must always be a primary consideration.³ States thus have to provide special protection and care to children, including putting in place reasonable measures to prevent ill-treatment.⁴ This means that reception conditions should be appropriate and adapted to the child’s age. Children should not be held in places that are “ill-adapted to the presence of children”⁵ and conditions should “not create for them a situation of stress and anxiety with particularly traumatic consequences”.⁶

The EU Charter stipulates that the best interests of the child must be a primary consideration in all actions concerning them.

Such obligation is replicated in the EU asylum law and the Return Directive (2008/115/EC). As a general principle, Member States have to take into account the specific situation of children and to ensure an adequate standard of living for the child’s physical, mental, spiritual, moral and social development.

National authorities should identify such children as soon as possible and take measures to ensure they are placed in adequate accommodation. This applies even if the children do not apply for asylum, but intend to do so elsewhere, or to join family members there.⁸

A guardian and/or legal representative should also be appointed. Any failure or inaction to provide assistance and accommodation may amount to a degrading treatment under Article 3 of the ECHR.⁹

Under EU law, asylum seeking unaccompanied children (which also include separated children, meaning those separated from their parents/guardians but not from other relatives) should be placed in non-custodial settings, with adult relatives, a foster family, or in accommodation centres with special provisions for children (Reception Conditions Directive, 2013/33/EU, Articles 19 (2) and 24 (2)).

In accordance with the EU asylum law, they have to be provided with a representative/guardian as soon as they have applied for asylum.

Under Article 10 of the Return Directive (2008/115/EC), when removing an unaccompanied child from a Member State’s territory, the authorities must be sure that he or she will be returned to a member of his or her family, a nominated guardian or adequate reception facilities in the state of return.

There is no absolute ban on returning unaccompanied children, but the decision to return must give due consideration to the best interests of the child, with the assistance of appropriate bodies other than the return-enforcing authorities.