11
juillet
2023

Protecting human rights defenders at risk: EU entry, stay and support

Across the world, human rights defenders protect and uphold human rights in some of the most challenging situations. In some countries they face worrying levels of threats and attacks, intimidation and harassment. This report outlines how human rights defenders can enter and stay in the EU when they need protection. It suggests how EU institutions and Member States could use the flexibility in existing legal provisions and provide shelter for defenders who seek protection.

Under international law, states have a sovereign right to control the entry and presence of non-nationals – including human rights defenders – in their territory, subject to their human rights obligations including on non-refoulement. [69] See for example the following ECtHR cases: ND and NT v. Spain, Nos. 8675/15 and 8697/15, 13 February 2020, para 167; Chahal v. United Kingdom, No. 22414/93, 15 November 1996, para 73; Vilvarajah and Others v. United Kingdom, Nos. 13163/87; 13164/87; 13165/87; 13447/87; and 13448/87, 30 October 1991, para 102.
Under EU law, common rules exist for Member States on short-term visas and border controls, notably the ‘Visa Code’ and the ‘Schengen Borders Code’. [70] See the two key EU instruments: Regulation (EC) No. 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas (Visa Code), OJ L 243, 15.9.2009, pp. 1-58 (as amended); and Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code), OJ L 77, 23.3.2016, pp. 1-52.
Decisions on who is given a long-term visa or residence permit are largely the responsibility of Member States. For some categories of migrants with a valid stay permit – for example migrant workers, students and researchers – EU law establishes certain rights. [71] For more information, see the European Commission webpage on Migration and Home Affairs, Legal migration and integration
There are no such specific provisions established for human rights defenders.

The EU established a unified system of external border controls and a border-free area inside, which is generally referred to as the ‘Schengen area’. Not all EU Member States are part of the Schengen area, and the Schengen system extends beyond the borders of the EU to Iceland, Liechtenstein, Norway and Switzerland. [72] For an overview on the Schengen area, see https://home-affairs.ec.europa.eu/policies/schengen-borders-and-visa/schengen-area_en Regarding the four Member States that are not part of the Schengen area, many EU rules relating to Schengen apply also to the Schengen candidate countries – Bulgaria, Cyprus, and Romania – but only a few apply to Ireland. [73] For the applicability of the different EU law instruments on borders, prevention of irregular immigration and visas as well as large-scale EU information technology systems, see FRA and European Court of Human Rights (2020), Handbook on European law relating to asylum, borders and immigration, edition 2020, Luxembourg Publication Office, Annex 1.

This section briefly describes EU law regulating border controls and visas. It also refers to selected provisions that regulate the entry, storage, and processing of personal data in large-scale EU information technology systems, as relevant for human rights defenders.

“Despite the great EU policies on human rights defenders, in reality the processes are opaque, messy and slow.”

Russian woman human rights defender, interview conducted by the authors, 23 February 2023

The EU has set up rules to prevent irregular entry and stay. Supporting the irregular entry of a human rights defenders in the EU is unlawful and thus punishable, unless justified by humanitarian exceptions or by obligations flowing from the UN Convention Relating to the Status of Refugees. [74] UNHCR(1951),Convention and Protocol Relating to the Status of Refugees
The Carriers Sanctions Directive [75] Council Directive 2001/51/EC of 28 June 2001 supplementing the provisions of Article 26 of the Convention implementing the Schengen Agreement of 14 June 1985, OJ L 187, 10.7.2001, p. 45.
provides for sanctions against carriers, such as airlines, that transport undocumented migrants into the EU. The Facilitation Directive [76] Council Directive 2002/90/EC of 28 November 2002 defining the facilitation of unauthorised entry, transit and residence, OJ L 328, 5.12.2002, p. 17.
defines unauthorised entry, transit and residence and provides for sanctions against those who facilitate such breaches. Under Article 1 (2) of the Facilitation Directive EU Member States can decide not to sanction humanitarian assistance but are not obliged to refrain from doing so [77] For an overview of EU Member States policies and practices in this regard, see FRA (2014), Criminalisation of migrants in an irregular situation and of persons engaging with them – Annex (EU Member States’ legislation on irregular entry and stay, as well as facilitation of irregular entry and stay), 26 March 2014.
. In general, , there are few legal pathways available for entering the EU. [78] FRA (2015), Legal entry channels to the EU for persons in need of international protection: a toolbox
Accessing legal pathways can often be challenging for human rights defenders, meaning they may need to resort to doing so unlawfully. [79] Interview with Prof. Stéphanie Laulhé Shaelou, 9 June 2023

The Schengen Borders Code [80] Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code), OJ L 77, 23.3.2016, p. 1.
lays down rules governing the control of people crossing the external borders of the Schengen area. Article 6 describes the conditions that third-country nationals must fulfil to cross the external borders. They must:

  • have a valid travel document, usually a passport;
  • have a visa, if they are nationals of third countries for which a visa is needed;
  • justify the purpose and conditions of their intended stay and have sufficient means of subsistence;
  • not be the subject of an alert in the Schengen information system (SIS) saying that their entry should be refused.

Human rights defenders are not always in a position to fulfil the conditions required to enter the EU. For example, the authorities of their country of origin may refuse to issue them a passport, which is a typical a pre-condition for requesting a visa. In addition, human rights defenders may not have sufficient resources. More importantly, they may not be able to demonstrate the purpose of their intended stay, as required by the authorities, and give assurances that they will not overstay their visa. They may also be listed in an Interpol database due to a criminalisation in retaliation for their human rights work. [81] See for example Fair Trials (2022), Interpol: New data reveals 1,000 Red Notices and Wanted Person diffusions rejected or deleted each year, 7 November 2022, and Statewatch (2023), Interpol must halt Turkey’s use of databases to pursue dissidents, 6 June 2023, based on The Arrested Lawyers Initiative (2023), Report on Turkey’s abuse of Interpol’s Stolen and Lost Travel Documents Database, 1 June 2023.

Exceptionally, under Article 6 (5) of the Schengen Borders Code, Member States may allow individuals who do not fulfil one or more of the above conditions to enter their territory on humanitarian grounds, on grounds of national interest or because of international obligations, which could be applied to human rights defenders. For example, following Russia’s invasion of Ukraine, the European Commission issued guidance to Member States concerning admission on humanitarian grounds for people who did not fulfil one or more of the conditions for entry set out in the Schengen Borders Code. [82] European Commission (2022), Commission Communication Providing operational guidelines for external border management to facilitate border crossings at the EU-Ukraine borders 2022/C 104 I/01, C/2022/1404

Real-life story

Effects of an Interpol alert

A human rights defender had been granted refugee status in Norway and therefore was free to travel in the EU with the required travel documents. In 2020 they travelled to Prague, Czechia, without any problems. However, on the way back, the defender was stopped in transit in another EU country following an Interpol alert. Despite the refugee status in Norway, the prosecutor of that country decided to take the case to court to consider whether they were in danger or not and if they should be returned to their country of origin. It took nine months for the justice system to handle the case due to the COVID-19 pandemic. Thanks to the effort of prominent NGOs, the defender was freed from custody a few days after being detained. They were not allowed to leave the country until the authorities had made their final decision, whereupon they were then sent back to Norway.

A political activist who had been granted refugee status in Sweden was stopped at the Norwegian border in Spring 2023 following an Interpol alert. The activist was released after 24 hours when the Norwegian border police received documentation from his lawyer and Swedish authorities confirming his refugee status in Sweden. The Human Rights House Foundation had also contacted the Norwegian police handling Interpol alerts. They were then sent back to Sweden.

Source: Information provided by the Human Rights House Foundation.

Nationals of 105 countries require a visa to come to the EU. [83] Regulation (EU) 2018/1806 of the European Parliament and of the Council of 14 November 2018 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement, Visa List Regulation, OJ L303, 28.11.2018, consolidated version, annex 1.
A visa must normally be obtained before travelling.

The Visa Code applies to visas issued for intended stays of up to 90 days in any 180-day period. It does not distinguish between categories of visa applicants on the basis of their profession, activities or travel purpose. There is no specific type of (short- or long-stay) visa for human rights defenders. They must collect and submit the same documentation as any other traveller [84] Parliamentary question | Answer for question P-000850/20 | P-000850/2020(ASW) | European Parliament (europa.eu)
. Unless the competent Member State decides to apply the optional facilitations that are possible under the Visa Code, human rights defenders must follow the standard procedure, which is usually a lengthy process. The Court of Justice of the European Union clarified that under EU law there is no right to receive a visa to come to the EU to apply for asylum [85] CJEU, C-638/16 PPU, X. and X. v. État belge [GC], 7 March 2017. In a similar case, the ECtHR held that the ECHR does not apply to visa applications submitted to embassies and consulates of the Contracting Parties (M.N. and Others v. Belgium [GC], No. 3599/18, 5 May 2020).
. It also said that Member States can only refuse a Schengen visa on one of the grounds for refusal listed in the Visa Code. [86] CJEU, C-84/12, Rahmanian Koushkaki v. Bundesrepublik Deutschland [GC], 19 December 2013.

The 1990 Convention implementing the Schengen Agreement and the Visa Code [87] Regulation (EC) No 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas (Visa Code), OJ L 243, 15.9.2009, p. 1, as last amended by Regulation (EU) 2019/1155 of the European Parliament and of the Council of 20 June 2019 amending Regulation (EC) No 810/2009 establishing a Community Code on Visas (Visa Code), OJ L 188, 12.7.2019.
envisage three types of visas and provides detailed rules and procedures for the first two types. [88] Visa Code, Regulation (EC) No. 810/2009, Consolidated Version, as last amended by Regulation (EU) 2019/1155), Annex VII.

  • A visa: Airport transit visas for nationals of the 12 countries that require a visa even if they only wish to transit through an airport in the EU. [89] Visa Code (Regulation (EC) No. 810/2009, consolidated version, as last amended by Regulation (EU) 2019/1155), Article 3 and Annex IV.

As Schengen visas allow the holder to stay in the EU for a limited period only, they are not appropriate for many of the protection and mobility needs of human rights defenders outlined in Section 2.2. In addition, in the case of immediate risk, which would necessitate emergency relocation, procedures are normally too slow. Only in exceptional cases such visas have been issued within 48 hours, or even immediately. Furthermore, in exceptional cases Member States may also issue visas upon arrival at an EU external border. National long-stay visas have proven useful for many of the protection needs of human rights defenders; however, in practice these are not frequently used by Member States for the purpose of defenders’ protection. [91] Interviews with the authors.

A Schengen visa may be issued for one, two or multiple entries. [92] Visa Code Regulation (EC) No. 810/2009, Consolidated Version, as last amended by Regulation (EU) 2019/1155), Article 24.
Article 24 (2) of the Visa Code envisages the issuing of multiple-entry visas with progressively longer validity (up to a maximum of 5 years) to people who have used previous short-stay visas correctly. A multiple entry visa with a long period of validity would significantly facilitate human rights defenders traveling into and across the EU. Multiple-entry visas offer the most flexible option for human rights defenders’ mobility needs. They are also, under current rules, the only option that would allow a human rights defender to hold a valid visa in advance of possible risk, including unforeseen immediate risk. Member States occasionally provide multi-entry visas with a long period of validity to selected human rights defenders. [93] CEELI Institute (2020), Human Rights Defenders in EU Visa Policy: Recommendations for Reform

The EU has concluded a number of visa facilitation agreements, for example, with Armenia, Azerbaijan, Belarus, Cape Verde and Russia. [94] A full list of visa facilitation agreements is available on the European Commission webpage, Migration and Home Affairs, Visa Policies.
Examples of visa facilitation include the waiving of the visa fees for certain people, quicker processing of visa applications or easier access to the opportunity to be granted multiple-entry visas for certain categories of people; and a shorter list of supporting documents being required. Depending on the specific agreement, human rights defenders may be covered under specific categories of people, such as journalists or participants in scientific, cultural or artistic activities. The EU suspended the visa facilitation agreement with Russia on 6 September 2022 and partially suspended the agreement with Belarus on 9 November 2021. [95] Council Decision (EU) 2021/1940 of 9 November 2021 on the partial suspension of the application of the Agreement between the European Union and the Republic of Belarus on the facilitation of the issuance of visas, OJ L 396, 10.11.2021, pp. 58–60 and Council Decision (EU) 2022/1500 of 9 September 2022 on the suspension in whole of the application of the Agreement between the European Community and the Russian Federation on the facilitation of the issuance of visas to the citizens of the European Union and the Russian Federation OJ L 234I , 9.9.2022, pp. 1-3.

Where a visa applicant does not fulfil all required conditions, Article 19 (4) of the EU Visa Code allows for the issuing of visas on humanitarian grounds, for reasons of national interest or because of international obligations. Under Article 25, such visas are valid only for the territory of the issuing Member State, unless other Member States consented to extend their validity to their territory as well. In practice, this means that human rights defenders holding such a visa cannot travel freely within the EU for the purposes of their work, including advocacy and participating in events, unless the other Member States explicitly agree. Only very few Member States have provided visas for human rights defenders based on these provisions. [96] Interview from ProtectDefenders.eu with the authors, 6 April 2023.

Some human rights defenders who need to access the EU are nationals of a third country for which the EU does not require a visa to visit the Schengen area for a stay of up to 90 days within any 180-day period. As of April 2023, nationals of 61 countries – mainly in the Americas, including the Caribbean, in Europe and in the Asia-Pacific region – are visa exempt. [97] See Annex II, Regulation (EU) 2018/1806 of the European Parliament and of the Council of 14 November 2018 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement (codification), p 17.
If they hold a valid travel document and fulfil the other requirements in the Schengen Borders Code, they can enter the EU.

In future, as with any other visa-free third-country nationals, human rights defenders will have to apply online for authorisation through ETIAS before travelling. [98] See Article 1, Regulation (EU) 2018/1240 of the European Parliament and of the Council of 12 September 2018 establishing a European Travel Information and Authorisation System (ETIAS) and amending Regulations (EU) No 1077/2011, (EU) No 515/2014, (EU) 2016/399, (EU) 2016/1624 and (EU) 2017/2226.
The travel authorisation does not confer an automatic right of entry or stay, and the traveller will still be checked at the border. [99] See Article 36 (6), Regulation (EU) 2018/1240 of the European Parliament and of the Council of 12 September 2018 establishing a European Travel Information and Authorisation System (ETIAS) and amending Regulations (EU) No 1077/2011, (EU) No 515/2014, (EU) 2016/399, (EU) 2016/1624 and (EU) 2017/2226.

ETIAS is a large-scale EU information system that, in the future, will support Member State authorities to assess the admissibility of third-country nationals travelling to the EU without a visa. Before travelling, individuals will have to obtain ETIAS travel authorisation by filling in an application online through a public website. Based on the personal data provided by the applicant, ETIAS will indicate whether their visit to the Schengen area poses any risks that requires further consideration by national authorities. ETIAS will do so by automatically cross-checking:

  • the applicants’ data against various databases, namely relevant EU IT systems and Europol data;
  • the applicant’s travel document(s) against the Interpol Stolen and Lost Travel Documents (SLTD) database and the Interpol Travel Documents Associated with Notices (TDAWN) database;
  • the applicants’ data against the ETIAS watchlist,which includes individuals suspected of past or potential future involvement in terrorism or other serious crimes;
  • the applicants’ data against specific risk indicators that will indicate through an algorithm whether a person could pose a security, irregular immigration or high epidemic risk. [100] See Articles 20, 21, 22,26, 33, 34, Regulation (EU) 2018/1240 of the European Parliament and of the Council of 12 September 2018 establishing a European Travel Information and Authorisation System (ETIAS) and amending Regulations (EU) No 1077/2011, (EU) No 515/2014, (EU) 2016/399, (EU) 2016/1624 and (EU) 2017/2226.

If ETIAS does not identify any risks, applicants will receive travel authorisation immediately. Otherwise, competent national authorities will review the application and determine if the ETIAS authorisation should be granted or rejected. Prior to boarding, airlines will verify that a visa-exempt traveller has a valid travel authorisation. ETIAS authorisations will be valid for 3 years (or until the passport expires, whichever comes first) and will allow multiple trips to the Schengen areas without the traveller having to re-apply each time.

The ETIAS might prevent a human rights defender from travelling to the EU if certain mitigating measures are not in place. Based on the algorithm used, [101] See Article 33, Regulation (EU) 2018/1240 of the European Parliament and of the Council of 12 September 2018 establishing a European Travel Information and Authorisation System (ETIAS) and amending Regulations (EU) No 1077/2011, (EU) No 515/2014, (EU) 2016/399, (EU) 2016/1624 and (EU) 2017/2226.
human rights defenders might fall into a risk group for irregular migration meaning their application will not be automatically accepted but will be subject to manual review by Member State’s authorities. If not specified in their application, the national competent authority might not know that the concerned person is travelling to seek safety or to carry out human rights work in the EU. Unless they interview the person, they might therefore not even be in a position to take such humanitarian considerations into account, and therefore refuse the travel authorisation.

In a similar way to the common rules on visas, Member States may exceptionally issue a travel authorisation for humanitarian reasons with limited territorial and temporal validity when the manual revision is still ongoing and/or if a travel authorisation has been refused, annulled or revoked. [102] See Article 16 (8) and Article 44, Regulation (EU) 2018/1240 of the European Parliament and of the Council of 12 September 2018 establishing a European Travel Information and Authorisation System (ETIAS) and amending Regulations (EU) No 1077/2011, (EU) No 515/2014, (EU) 2016/399, (EU) 2016/1624 and (EU) 2017/2226.
Such limited territorial validity travel authorisation is usually valid for the Member State that has granted it, unless the competent authorities of other Member States agreed to extend its geographical validity.

Human rights defenders might not be aware that they could match a risk profile in ETIAS which would delay or even prevent the issuing of their authorisation. They may also not be aware of the option to indicate the humanitarian purpose of their visit in the application form [103] Article 44 (2), Regulation (EU) 2018/1240 of the European Parliament and of the Council of 12 September 2018 establishing a European Travel Information and Authorisation System (ETIAS) and amending Regulations (EU) No 1077/2011, (EU) No 515/2014, (EU) 2016/399, (EU) 2016/1624 and (EU) 2017/2226.
or to the responsible authorities.

Finally, any ETIAS application, including those submitted for travel on humanitarian grounds, must meet basic admissibility criteria, which means that the applicant must complete all fields of the online application form. Human rights defenders who do not possess valid travel documents (e.g., because their passport will expire in less than 3 months, [104] Recital 19, Regulation (EU) 2018/1240 of the European Parliament and of the Council of 12 September 2018 establishing a European Travel Information and Authorisation System (ETIAS) and amending Regulations (EU) No 1077/2011, (EU) No 515/2014, (EU) 2016/399, (EU) 2016/1624 and (EU) 2017/2226.
because the authorities denied their passport application, or because they are flagged in an Interpol database) will not be able to apply.

The personal data of third-country nationals coming to or applying for permission to come to the EU are stored in large-scale information systems. As described in Section 3.1.3, data on visa-free travellers will be stored in ETIAS. Data on visa applicants, including biometric data such as fingerprints and facial images, are stored in VIS. In future, fingerprints and facial images will also be processed in the entry-exit system any time a third-country national crosses the EU external borders for a short-stay visit. The systems are intended to be ‘interoperable’, meaning that authorised officers will be able to search and see data stored on individuals across these systems, depending on their access rights laid down in EU law. Besides competent national authorities, law enforcement authorities will be able to access the systems – when authorised and under strict conditions – to prevent, detect and investigate terrorist and other serious criminal offences. Moreover, ETIAS and VIS check data against the SIS II, which enables Member States to share information on suspected criminals, wanted or missing people (both EU citizens and third-country nationals), third-country nationals for whom entry in the EU is to be refused, and people subject to a return decision, among others. [105] For more information on the systems referenced, see the following regulations: ETIAS Regulation (EU) 2018/1240; for the Visa Information System Regulation (EC) 767/2008 as amended by Regulation (EU) 2021/1134; for the Entry Exist System, Regulation (EU) 2017/2226; for Eurodac Regulation (EU) No. 603/2013 (Eurodac Regulation); for the SIS Regulation (Regulation (EU) 2018/1862), SIS Border Checks Regulation (Regulation (EU) 2018/1861) and SIS Returns Regulation (Regulation (EU) 2018/1860); For Interoperability Regulation (EU) 2019/817 and Regulation (EU) 2019/818;
Earlier FRA reports pointed out opportunities for and risks to fundamental rights resulting from these systems and their interoperability. [106] FRA (2018), Under watchful eyes – Biometrics, EU IT-systems and fundamental rights, Luxembourg, and FRA and ECtHR (2020), Handbook on European law relating to asylum, borders and immigration – Edition 2020, Ch. 2.

Human rights defenders might be under surveillance in their country of origin and hence afraid to have their data stored in a large-scale IT system. In addition, they might fear that their personal data could be unlawfully shared with the country of origin, or accessed for unauthorised purposes, or that a data breach might occur if the system is hacked. A data breach could expose them and/or their family members – including children – to retaliation measures in the country of origin. EU law provides for strict data protection and data security rules. Sharing personal data stored in any EU IT system with third countries is allowed only when this is necessary for return purposes and to fight serious crimes and terrorism. [107] VIS Regulation, Article 31; EES Regulation, Article 41; and ETIAS Regulation Article 65.
Safeguards also exist for querying Interpol databases without revealing information to the state that issued the alert. [108] See for example ETIAS Regulation, Article 12 and the Interoperability Regulations (EU) 2019/817 and (EU) 2019/818, Article 9 (5).
Human rights defenders might not be aware of these safeguards and hence be reluctant to provide their personal data.

Within the visa and border procedures, the Interpol Stolen and Lost Travel Documents (SLTD) database and the Interpol Travel Documents Associated with Notices (TDAWN) database will in the future be automatically queried through ETIAS, VIS and interoperability. [109] ETIAS Regulation (EU) 2018/1240, Article 20 (2); Interoperability Regulations (EU) 2019/817, Article 9; and VIS Regulation (EU) 2021/1134, Art.1 (11) inserting Art. 9a to the VIS Regulation.
Interpol databases are fed by information provided by national law enforcement authorities. In this context, a European Parliament recommendation of 5 July 2022 to the Council and the Commission [110] European Parliament (2022), Report on a European Parliament recommendation to the Council and the Commission on the negotiations for a cooperation agreement between the European Union and the International Criminal Police Organization (ICPO-INTERPOL) | A9-0200/2022, para N, and European Parliament (2022) Negotiations for a cooperation agreement between the EU and Interpol, 5 July 2022. For further details about risks related to such queries, see FRA (2018), Interoperability and fundamental rights implications, 19 April 2018.
noted that “governmental, international and non-governmental organisations continue to report abuses by some member countries of Interpol’s notice and diffusion system in order to persecute political opponents, national human rights defenders, lawyers, civil society activists and journalists, in violation of international standards on human rights and Interpol’s own rules.” [111]

A hit in an Interpol database may lead to a visa or ETIAS authorisation refusal or to a refusal of entry at the border, hindering a human rights defender’s access to EU territory.

Similarly, there have been instances in which renowned human rights defenders have been placed by their governments on an Interpol list, preventing them from entering the EU. [112] Interview with International Partnership for Human Rights, 19 April 2023; see also Fair Trials (7 November 2022), Interpol: New data reveals 1,000 Red Notices and Wanted Person diffusions rejected or deleted each year

Human rights defenders may also face challenges when travelling to the EU if they are the subject to an alert in the SIS. This large-scale IT system stores alerts on certain categories of wanted or missing people and missing objects. It also contains alerts on third-country nationals who are subject to a refusal of entry or a return decision. [113] The SIS legal framework encompasses three different legal acts – namely the SIS Police Regulation (Regulation (EU) 2018/1862), SIS Border Checks Regulation (Regulation (EU) 2018/1861) and SIS Returns Regulation (Regulation (EU) 2018/1860).
The SIS legal framework encompasses three legal acts, namely the SIS police regulation, the SIS border checks regulation and the SIS returns regulation. An entry ban in SIS means that a visa application will in principle be rejected and entry into the EU refused. [114] Visa Code, Article 32 (1) (a) (v) ; Schengen Borders Code, Article 6 (5).
If a Member State wants to grant a residence permit or a long-stay visa to a third-country national who is the subject of an entry ban entered by another Member State, it must engage in prior consultations with that other Member State and take its concerns and interests into account. [115] SIS Returns Regulation (Regulation (EU) 2018/1860), Article 9; Return Directive (2008/115/EC), Article 11 (4).

Regarding online application tools, applying online for a visa might be beneficial for human rights defenders because they would not be exposed to the security risks associated with physically travelling to a Member State embassy or consulate, and there would be faster access to the visa application process. Nonetheless, defenders may fear that their data will be hacked by or leaked to their country of origin, and that unauthorised or unlawful access could take place. It cannot be excluded that defenders with lower digital skills may not be able to fill in the application form online. Similarly, external service providers may unlawfully pass on information to national authorities. Moreover, risks to the physical integrity of defenders applying for a visa could persist, as the Commission’s proposal sets out that visa applicants will need to appear in person the first time they request a visa and subsequently at regular intervals (e.g. after renewing their passport) to have their fingerprints taken.

This section describes what permissions human rights defenders need to be able to stay in the EU for a short period or for longer periods.

To stay lawfully in the EU for up to 90 days in any 180-day period, it is sufficient for a human rights defender – as for any other third-country national – to fulfil the conditions for entry set out in the Schengen Borders Code. In terms of documents, human rights defenders from countries that do not require a visa require only a valid travel document (and, in the future, ETIAS travel authorisation), whereas those who are visa-bound need to also have a Schengen visa. With these documents, they can also move freely within the Schengen area. [116] Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders, OJ 2000 L 249/19, Articles 19-20.
Even if there are no border controls for crossing internal borders of the Schengen area, they must hold a valid travel document (e.g., a valid passport).

Such short-term stay allows human rights defenders to participate in conferences and events, to meet human rights actors in the EU, to stay for short-term rest and respite or capacity building programmes, and, in principle, to continue their human rights work in their country of origin. However, to carry out remunerated work or to receive funding in the EU, they need to fulfil the conditions set out in the relevant Member State’s domestic law.

Should human rights defenders wish or need to stay in the EU for more than 3 months or if they have already exhausted the 90 days-stay due to previous trips to the Schengen area within the same 180-day period, they need to obtain a long-stay visa, a residence permit or another form of permission to stay, for example as asylum applicants. Otherwise, they become ‘overstayers’ and will be subject to return procedures under the return directive [117] Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals,OJ L 348, 24.12.2008, p. 98.
. As a rule, the purpose of stay is declared at the consulate (work, study, etc.), and the consulate makes its decision based on the declared purpose. The consulate might issue a long-term visa or a residence permit right away, or they might issue an entry visa only, with the third-county national receiving the residence permit after arrival in the EU Member State.

The decision on whether to issue a residence permit to a human rights defender lies with the Member State. Residence permits may be issued for different purposes, which vary across Member States. For human rights defenders, residence permits are typically granted for work, research or study or based on humanitarian or national interest grounds. The rights attached to these permits, including whether holders are allowed to work, bring their family members or set up an NGO, are regulated in national law. For certain permits – those issued for the purpose of work, research or study – EU law provides for a common set of rights and harmonises application procedures. [118] Directive 2011/98/EU of the European Parliament and of the Council of 13 December 2011 on a single application procedure for a single permit for third-country nationals to reside and work in the territory of a Member State and on a common set of rights for third-country workers legally residing in a Member State, OJ L 343, 23.12.2011, p. 1–9 (amendments to this directive are under review) and Directive (EU) 2016/801 of the European Parliament and of the Council of 11 May 2016 on the conditions of entry and residence of third-country nationals for the purposes of research, studies, training, voluntary service, pupil exchange schemes or educational projects and au pairing (recast), OJ L 132, 21.5.2016, p. 21–57, last amended by Directive (EU) 2021/1883.

Holders of long-stay visas and residence permits issued by one Member States are entitled to move within the EU for short-term stay, for example to visit friends or participate in conferences of events, as long as they do not stay in another Member State for more than 3 months. [119] Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders, OJ 2000 L 249/19, Articles 21.
Students and researchers enjoy broader mobility rights which include the possibility of a longer stay in the second Member State. [120] Directive (EU) 2016/801 of the European Parliament and of the Council of 11 May 2016 on the conditions of entry and residence of third-country nationals for the purposes of research, studies, training, voluntary service, pupil exchange schemes or educational projects and au pairing (recast)

Provided they have a valid passport, human rights defenders holding a residence permit in an EU Member State may be able to travel for various reasons. Depending on the type of residence permit, defenders may also be able to access the labour market in the Member State in which they are temporarily staying. Holding a national residence permit may also facilitate the opening of bank accounts in the Member States, something that can otherwise be challenging, as human rights defenders have reported. [121] Interview with ECNL and Araminta, 22 March 2023.

The right to asylum is a fundamental right enshrined in Article 18 of the Charter of Fundamental Rights of the European Union and Article 78 of the Treaty on the Functioning of the European Union. Providing international protection to people fleeing persecution is also an obligation under the Convention Relating to the Status of Refugees, with which EU asylum policy must be in harmony. Many human rights defenders may qualify as refugees under the definition set out in the Convention and in EU law, or for subsidiary protection. [122] For the EU law definition of who is entitled to international protection, see Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast), OJ L 337, 20.12.2011, pp. 9–26.

The international protection regime applies only to individuals who are outside their country of origin. Asylum rules are therefore of no help to human rights defenders who are still in their own country. Human rights defenders can apply for asylum when they reach the EU’s external borders or when they are already in the EU, although a few Member States also allow their diplomatic representations to receive asylum applications.

The EU has established common rules on asylum adopting several EU law instruments. These rules regulate how to apply for asylum and the procedure to follow and the rights of asylum applicants and of those granted international protection, either as refugees or as subsidiary protection status holders. [123] For an overview see, European Commission webpage on Migration and Home Affairs with the Common European Asylum System.
The principle of non-refoulement, which prohibits the return to persecution or other serious harm, is the cornerstone of international refugee law and of EU asylum law. [124] For an overview of the principle of non-refoulement, see FRA (2016), Scope of the principle of non-refoulement in contemporary border management: evolving areas of law.
The forced return of human rights defenders to their country of origin may also violate the principle of non-refoulement set out in Article 19 of the Charter of Fundamental Rights of the European Union.

During the examination of the application, which, depending on the circumstances of the case, can last for several months or years, asylum applicants must usually hand over their national passports. Travelling to their home country may indicate that they are not at risk of serious harm there, thus entailing the rejection of their asylum claim. Applying for asylum in the EU is therefore not compatible with regular visits by human rights defenders to their home country to continue their human rights work. Similarly, if granted refugee status, regular visits to the country of origin may indicate that the person is no longer at risk there and trigger procedures to cease refugee status. [125] For the grounds of cessation of refugee status in EU law, see Qualification Directive 2011/95/EU, Article 11.

For these reasons, the international protection regime is not suitable for human rights defenders who want to continue their human rights activities at home. However, in circumstances in which human rights defenders staying in the EU fear persecution or serious harm in case they return, and where they have no other legal basis to stay in the EU for a longer period, applying for international protection is currently the only option available. As asylum applicants, they have only restricted access to the labour market [126] Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (recast), OJ L 180, 29.6.2013, pp. 96-111, Article 15.
and usually cannot set up an NGO for the purpose of carrying out their human rights work and receiving funding for it [127] Interview with ECNL and Araminta, 22 March 2023.
. Once granted international protection, EU law allows them to work and, in the case of those with refugee status, to bring core family members to the EU. [128] For the right to work, see Qualification Directive 2011/95/EU, Article 26 and for family reunification, Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification, OJ L 251, 3.10.2003, pp. 12-18, in particular Article 3 on the personal scope of the directive.

Experience shows that human rights defenders seeking to relocate temporarily or to use short-term mobility usually do so with the intention of returning to their communities to continue their human rights work. [129] CEELI Institute (2020), Human Rights Defenders in EU Visa Policy: Recommendations for Reform
Statistics from Spain and the Netherlands illustrate that human rights defenders usually return to their home countries to continue their human rights work: less than 10% of human rights defenders who arrived in the EU under their national temporary relocation programmes (see Chapter 4) filed an application for international protection.

The current practical limitations on access to visas and their nature of offering human rights defenders only shorter-term stays may, however, force defenders to turn to asylum as their only option to find safety.

Resettlement is the admission of refugees who are staying in a country of asylum but who cannot stay there any longer because they are exposed to risks. [130] United Nations High Commissioner for Refugees (UNHCR) (2011), UNHCR Resettlement Handbook
While resettlement is not a dedicated programme for human rights defenders, some resettled refugees are likely to meet the description of human rights defenders, although the protection needs that make someone ‘viable’ for resettlement are not necessarily the same as the protection needs of human rights defenders. Resettlement is not an option for individuals, including human rights defenders, who are still in their country, or who face immediate risks. Although there are procedures for the processing of urgent cases, the processing time for resettlement cases is generally long and unpredictable.

The United Nations High Commissioner for Refugees (UNHCR) selects and refers such refugees to a resettlement country which has agreed to admit and provide them with permanent residence status. According to Eurostat, in 2021, the 27 EU Member States admitted 23,755 refugees under resettlement programmes. [131] Eurostat data, extracted on 15 April 2023.


“HRDs working with international civil society organisations report that the Schengen visa has become a matter of privilege that only some defenders have access to, and even the visa declines appear to be pervasive and systematic for HRDs from some countries, such as Syria, Iraq, Palestine, and Yemen.”

ProtectDefenders.eu [132] ProtectDefenders.eu et al (September 2022), Joint Statement: International Civil Society Organisations call for an effective and enabling EU VISA framework for At-Risk Human Rights Defenders

Many human rights defenders are not aware of the potential options available to them in terms of mobility and relocation to the EU. Existing relocation programmes are limited both in terms of the number of defenders who can benefit and the length of the programmes Most existing EU Member State practices for human rights defenders’ relocation are via word of mouth and not publicised, for example through official websites. While this undercover approach tries to ensure that only legitimate defenders are aware of existing relocation programmes, it also means that existing schemes favour well-connected defenders, often from or around capital cities. Where information is available, it is often only in languages such as English, French, Russian and Spanish. [133] Interview with Polish Helsinki Foundation, 15 March 2023; Interview with People in Need, 30 March 2023, Interview with ProtectDefenders.eu, 6 April 2023

When seeking to lawfully enter and stay in the EU, human rights defenders often face obstacles. Several of the challenges are common to anyone applying for an EU visa; however, some challenges are specific to human rights defenders. In practice, these obstacles are such that human rights defenders are often deterred from making applications or seeking temporary relocation as part of their protection strategies. [134] Interview with ProtectDefenders.eu, 6 April 2023

When applying for EU visas, human rights defenders at risk may face the following obstacles: [135] See notably CEELI Institute (2020), Human Rights Defenders in EU Visa Policy: Recommendations for Reform and Belarusian and Russian human rights defenders and activists – Priorities for support and protection, Tbilisi, October 30 – November 2, 2022 (non-public report, on file with Amnesty International)

  • lack of knowledge about existing options;
  • restrictions on applications from outside their country of residence;
  • long, costly and at times insecure travel required to access consulates and lodge applications, in particular for defenders in remote areas;
  • visa services being outsourced to external service providers, resulting in privacy risks, increased costs and administrative inflexibility around support documents;
  • an inadequate time frame for making a visa application, especially for defenders at immediate risk;
  • difficulties gathering required support documents, in particular proof of income or employment, to prove intention to return;
  • difficulties in obtaining valid travel documents (passports);
  • language requirements;
  • visa fees;
  • refusal based on criminalisation in retaliation for their human rights work, as their travel document may have been stored in the Interpol SLTD or TDAWN databases by their country of origin in order to prevent them from leaving the country or check their whereabouts. [136] Fair Trials (2022), Interpol: New data reveals 1,000 Red Notices and Wanted Person diffusions rejected or deleted each year, 7 November 2022.

Human rights defenders who are staying in a third country other than their country of nationality may in certain cases need to return to their home country to file a visa application or to pick up their visa, which might put them at risk. They may also be at heightened risk if they have to visit their country’s diplomatic service / consulate in a third country for visa-related reasons.

Real-life story

Need to return to home country for visa

A Turkish journalist and human rights defender, who was accepted for the ICORN relocation programme, had already relocated to Georgia when they were invited by an ICORN city in Sweden. In Turkey, they had been sentenced to more than 6 years in prison over their journalistic and activist work on Kurdish issues and women’s and LGBTIQ+ rights violations, including sexual violence, torture, and enslavement. The journalist was granted a residence permit by the Swedish Migration Agency, and they were instructed to pick up their proof of residence permit / visa at a Swedish consulate in Turkey. This was impossible due to the risk of imprisonment. ICORN organised a courier who could travel from Georgia to Turkey and deliver the journalist’s passport to the consulate. This was a costly procedure that added time and uncertainty to an already strained situation.

Source: Information provided by ICORN.

Human rights defenders also report difficulties in gathering required supporting documents, in particular, proof of income or employment and intention to return. [137] CEELI Institute (2020), Human Rights Defenders in EU Visa Policy: Recommendations for Reform
In some cases, the defender’s country of origin will not issue them a passport to prevent them from travelling. Human rights defenders often do not have regular official income or an official employer and therefore find it difficult to provide proof of work and stable financial means in the visa application. They are required to demonstrate an intention to return to their country and adequate means of subsistence during a stay where the person is not sponsored by an inviting organisation. Some defenders have reported having to downplay the risks to their lives to increase their chances being granted a visa. [138] Interview with Amnesty International, 9 June 2023.

Visa procedures are usually lengthy, which is a particular challenge for human rights defenders in emergency situations. The Visa Code contains rules on the timeframe for lodging and processing visa applications. A visa application has to be lodged between 15 days and 6 months before the intended visit. Article 9 of the Visa Code, however, grants Member States discretion ‘in justified cases of urgency’. Indeed, a few Member States have occasionally issued a Schengen visa within 48 hours for such cases. However, human rights defenders cannot know in advance whether this will be possible. As a result, human rights defenders in need of emergency relocation often evacuate in the first instance to a country for which they do not require a visa – which might not be safe for them in the long run but helps them escape the immediate danger – before trying to get to the EU from there.

Real-life story

Challenges because of lack of passport

An Afghan defender who supported Amnesty International with carrying out research in Afghanistan managed to flee to Iran in 2022 but remained at risk. Amnesty International assisted them with their application for a French visa. The visa application process was severely delayed, and the ability of the beneficiary’s family to travel was hampered by their lack of passports. Despite much advocacy by civil society, they are still, at the time of writing, waiting on a decision by the French authorities.

Source: Information provided by Amnesty International.

Another challenge specific to human rights defenders relates to the outsourcing to external service providers of certain visa processing tasks, such as providing information, taking biometrics and accepting applications and transmitting them to the consulate (Article 43 of the Visa Code). Although external service providers are bound by data protection obligations and expatriate staff must monitor their activity, [139] Visa Code, Article 38 (1a), Article 43 and Annex X.
such outsourcing of visa services to external service providers may result in additional privacy risks, and administrative inflexibility around supporting documents. [140] CEELI Institute (2020), Human Rights Defenders in EU Visa Policy: Recommendations for Reform, p. 28.
Since service providers usually work with local staff, human rights defenders may fear being exposed as defenders if they are invited to be part of a specific ‘human rights defenders programme’ of a given EU Member State, which has occurred in the past. [141] CEELI Institute (2020), Human Rights Defenders in EU Visa Policy: Recommendations for Reform, p. 29, and Interview with People in Need, 30 March 2023.
Such service providers may also charge additional fees for applications further increasing the economic barrier for defenders and others applying for visas.

Another challenge specific to human rights defenders concerns criminal records they may have been given as a result of the persecution related to their human rights work, which may lead to them being placed on Interpol’s SLTD or TDAWN databases.

Real-life story

Risk in obtaining a visa at a consulate

ICORN is currently working on relocating a human rights defender from Kurdish Iraq to a specific EU country. This defender is experiencing hostility from their family who does not share their values or opinions.

New regulations in the intended country of relocation make it mandatory for residence permit applicants to have their passports verified at a consulate before the application can be processed. This means that applicants for a residence permit must visit a consulate at least twice: once to have their passport verified, and once to pick up their proof of residency, should the permit be granted.

The only consulate of the specific EU country in Iraq with the competency to verify passports is in Baghdad, which is far from the defender’s home. To follow the application procedure the human rights defender will have to put themselves at great risk of violence if they must return to the family after the trip while awaiting the outcome of the application process.

Source: Information provided by ICORN.

Civil society reports that defenders from certain regions, in particular those regions with significant irregular migration to the EU, see their visa applications rejected more frequently than others. Notably, defenders from the Middle East and North Africa region seem to be refused visas more frequently than those from other regions, even in cases in which short-term stays are envisaged for attending events organised by EU institutions or EU civil society organisations. [142] Interview with ProtectDefenders.eu, 6 April 2023; Interview with International Partnership for Human Rights, 19 April 2023, Interviews with interlocutors in EU institutions.

Another specific challenge relates to LGBTIQ+ defenders, who usually have difficulty providing proof of marriage and hence lack the opportunity to provide official arguments for the need for a visa for their partner, who may also be at risk and in need of relocation, whether or not they are activists themselves.

Overall, human rights defenders face a high degree of uncertainty when applying for Schengen visas as it is not known in advance whether any given Member State (or official) will exercise the discretion and flexibility possible in the Visa Code to their benefit. It also seems often unclear to applicants how to exercise their right to appeal in practice (in application of Article 32 (3) of the Visa Code).

Real-life story

Many HRDs from Belarus and Russia have had to leave their countries due to (the risk of) persecution, relocating to both EU and non-EU countries. The EU and some EU Member States have already been extremely helpful in issuing visas and helping with relocation. Nevertheless, there are still difficulties, including cases of denial of visas to HRDs at risk, HRDs with Schengen visas having difficulties crossing both internal and external borders, and long waiting times for visas. The fact that HRDs cannot yet return and that there are still many activists who remain in Russia and Belarus working in very difficult circumstances, means that facilitating access to visas will continue to be of utmost importance in the coming years.”

Source: Amnesty International / School of Civic Education, Belarusian and Russian Human Rights Defenders and Activists – Priorities for support and protection, Tbilisi, October 30–2 November 2022 (not publicly available; on file with Amnesty International), p. 4.