Press Release

Respect fundamental rights when tackling the instrumentalisation of migrants

White line with word border below
blende11.photo © adobestock.com, 2020
Some non-EU countries increasingly use migrants and refugees to put pressure on the EU and its external borders. As EU countries react by building fences and restricting asylum procedures, a new position paper from the EU Agency for Fundamental Rights (FRA) underlines how countries can deal with such pressures in a legal and legitimate way. It highlights that the EU must respond by punishing the actors responsible for instrumentalisation, rather than migrants and refugees who are often unaware that they are being used.

Under EU law, instrumentalisation of migrants occurs when countries use migrants as a tool for political pressure with such intensity that it objectively puts essential state functions at risk. In such situations, EU law allows countries to temporarily restrict some fundamental rights to deal with the situation.

However, certain rights, such as the prohibition of torture or sending people back to where their lives and freedom are at risk (non-refoulement) are absolute. They cannot be limited under any circumstances.

The latest FRA position paper describes four types of measures to counter instrumentalisation of migrants and refugees in full compliance with fundamental rights:

1.    Targeting the actors that instrumentalise migrants – EU countries may take steps to counter state-sponsored migrant smuggling, impose sanctions on hostile States or restrict the visas of people from those countries. They should not punish the people who have been instrumentalised or the humanitarian organisations who support them.

2.    Dealing with migrant arrivals – EU countries have a duty to treat migrants humanely and allow them access to asylum procedures. Under the EU’s new Asylum and Migration Pact, countries will be able to ask for more time to register and process asylum applications at the borders. They will also be able to return rejected applicants more quickly.

3.    Working with transport companies – EU countries can use various measures to deal with companies who transport migrants to EU borders. These range from providing training to airline staff to revoking travel companies’ licenses to operate in the EU.

4.    Responding to the militarisation of borders – the blurring of lines between border management measures (where EU law applies) and military measures (which largely fall outside the scope of EU law) risks undermining fundamental rights protection. The paper stresses that any activities to deal with migrants and refugees at borders must comply with the EU Charter of Fundamental Rights.

Quote from FRA Director Sirpa Rautio:

“The use of migrants as a political instrument is nothing new. But the responses to this issue must not overshadow the human reality. Instead of punishing migrants and refugees who are being used and abused for political gains, EU countries need to direct their measures towards the hostile actors. Some of the current responses to instrumentalisation may undermine the protection of fundamental rights at the EU’s borders, including the right to asylum. They must not become a blueprint for the treatment of all migrants and refugees who are crossing the border in an unauthorised manner.”

For more please contact: media@fra.europa.eu / Tel.: +43 1 580 30 653