On 15 March, FRA Director Michael O'Flaherty delivered a speech on 'People on the move; Their rights – our future' at the University of Zagreb's law faculty.
Dear Members of the University,
Just a few days into my role as director of the Fundamental Rights Agency, in January 2016, I visited locations in Greece and Italy that were receiving large numbers of asylum seekers and other migrants. Since then, I have returned frequently and have also visited the other migration ‘hotspots’ across EU Member States, including here in Croatia in November 2020. I was most recently at an external border – on the Greek island of Lesvos – just last month.
Over the span of nearly eight years, there have been developments in terms of showing respect for the human rights of those who arrive at our borders. As my Agency chronicles in a report that will be published later this year, reception conditions in some countries have improved, child protection is now taken more seriously (you do not see children in cages), and the child guardianship systems of some countries have been reformed. Asylum procedures have sped up. Independent human rights monitoring at the borders is being developed in some locations. EU agencies, including Frontex, now have a strong fundamental rights monitoring capacity. The EU and its Member States have put in place a robust legal toolkit to manage migration. And, of course, in light of the Russian aggression against Ukraine, we have all shown how a large and sudden influx of people can be managed effectively and respectfully.
Indeed, the very success of the management of the arrival of people displaced from Ukraine through temporary measures serves to demonstrate how much more we can and must do in welcoming others. Notwithstanding the improvements, we have a long way to go before we can say that the human and fundamental rights of all asylum seekers and other migrants are honoured. Problems persist in law, policy, practice, and attitude.
I take the opportunity of this lecture to propose some short- and longer-term responses to the challenges that we face. Before doing so, please allow me to step back and set a context for these reflections.
Migration in history and today
Migration is as old as human history. There is no society that has not evolved as a function of migratory movements. My own country, Ireland, was not even populated for much of the earth’s history and is today made up of people of extraordinarily diverse origins. As any of us who happened to undergo DNA testing know, we are all, in one way or another, the descendants of migrants.
Experience shows how migration can bring about benefits for receiving societies. It is not just that we can point to the genius of refugees like Einstein in the US or Wittgenstein in Ireland, or indeed of the heroes of the recent Netflix film, The Swimmers.
Much more generally, study after study shows how increases in migration tend to contribute to economic growth, mainly for the receiving countries. A recent Global Trends report of the US Director of National Intelligence suggests that “migrants can generate economic gains for destination countries – through increases in labour, human capital, and entrepreneurship – while providing countries of origin with remittances that improve socioeconomic development” – partly making up for the labour and brain drain affecting the sending countries.
The causes of migration tend not to change greatly over time – they include war, economic stagnation and entrenched inequalities, hunger, the persecution of minorities, and environmental degradation. Today, we are witnessing how such migratory push factors are exacerbated by advances in communication and transportation – both allowing people to move comparatively faster and easier across countries and continents, while staying in touch with families and friends back home.
Consider poverty: as the gap between the world’s rich and poor widens exponentially, internet and satellite media bring a constant flow of images of wealth and prosperity into the homes of those less well-off. At the same time, according to the World Bank, in just the past year, there has been a sharp rise in the number of people who have fallen into extreme poverty and food insecurity due to soaring food and fuel prices. In recent years, we also observe that, due to climate change, natural disasters occur more frequently and are of greater magnitude with dramatic humanitarian consequences. For example, the floods in Pakistan last year swamped one-third of the country. By mid-January 2023, as many as 4 million children were still struggling without proper shelter and winter clothing, living near contaminated flood waters, risking their survival and wellbeing.
Here in Europe, the impact of war and conflict on migration is an ever-present reality. I acknowledge with respect that I am in a country that experienced such horrors in recent living memory. This is not a thing of the past; every day for the last year, we have heard evidence of the horrors inflicted on the people of Ukraine.
In light of the global realities, global displacement figures are truly startling. The UN Refugee Agency announced in May 2022 that, globally, one in every 78 people has been forced to flee their country due to persecution, conflict, violence, human rights violations, and events seriously disturbing public order.
Here in Europe, the Russian war of aggression in Ukraine has resulted in massive population displacement, both internally and externally. The European Union has received the largest number of people fleeing war since World War II: nearly eight million people fled across Europe, out of whom nearly four million, mostly women with children, received temporary protection in the EU. Overall, in 2022, almost 1 million asylum applications were registered in the EU, the highest number since 2016.
These are the historical and contemporary contexts for today’s Europe to stand true to its values and its self-interest in its management of migration. As I said, we are, at least in large part, succeeding in protecting displaced Ukrainians, but the same cannot be said for so many others.
Notwithstanding the achievements I mentioned earlier, in some locations across the EU we confront deplorable practices, such as the pushback of asylum seekers, inadequate search and rescue capacities on the high seas, bad reception conditions, dysfunctional asylum procedures and poorly designed and implemented integration measures. These problems are compounded by intolerant discourse on the part of some leaders, echoed in the media. In addition, the persistent lack of solidarity with Member States located at the EU external borders, such as Croatia, is disappointing.
So then, how can we deal with the opportunities and challenges that migration brings? Allow me to make five suggestions:
First, save lives
Just weeks ago, we were shocked by the shipwreck off Calabria’s coastline, where over 80 people were confirmed dead, including 16 children, after a 20-metre boat carrying some 200 people crashed into rocks near the shore. Earlier this week, the bodies of 5 people were recovered when a boat – once again – sank off the Greek island of Farmakonisi. These tragedies signal the need for a renewed wakeup call. Every year, tens of thousands of people risk their lives to escape poverty or persecution by coming to the EU and many die in their attempt. Since 2014, almost 30,000 deaths or disappearances were recorded within Europe and at its external borders. In the course of last year alone, the International Organization for Migration recorded 2,967 deaths or disappearances at Europe’s land and sea borders.
These deaths and disappearances are even more disturbing when we consider that the law could not be clearer. Our States have an unequivocal duty to save the lives of those arriving at our frontiers. This is also a long-standing imperative of international maritime law. The human rights obligation was recently clarified by the European Court of Human Rights in Safi and Others v. Greece. The Court concluded that the national authorities had not done all that could reasonably be expected of them to prevent the loss of lives. This is the first time that the Court applied a positive obligation flowing from the right to life (Article 2 of the ECHR) to a search and rescue operation concerning asylum seekers.
Internationally agreed policy is also unambiguous. The Global Compact on Migration, supported by 163 UN Member States, includes the undertaking “to cooperate internationally to save lives and prevent migrant deaths and injuries”.
The obligation to save lives requires States to deploy the necessary search and rescue capacities. Where they cannot do this effectively alone, they should support any legitimate efforts of civil society. Right now, in some places, this is far from the case. Since 2018, my Agency has been reporting on delays in disembarkation and on the trend to criminalise search and rescue efforts in the Mediterranean Sea carried out by NGOs or others. While the prevalence of smuggling of and trafficking in human beings must be addressed and eradicated, the distinction must be made between persons smuggling and trafficking and those honouring the human rights imperative – and duty – of saving lives at sea.
Second, ensure genuine access to asylum across the EU, as a keystone of common European legal heritage
The right to seek asylum is a principle of international law and it is explicitly guaranteed in Article 18 of the EU Charter of Fundamental Rights. Notwithstanding, legal restrictions persist that permit the apprehension and immediate summary return of those entering a country by circumventing border controls, without an individual examination of a person’s situation.
It is necessary to review all such legal provisions in light of international and EU law and jurisprudence. Law reform may be challenging, especially in contexts of divisive politics, but it is essential to the rule of law in States that are committed to upholding universal values as reflected in the EU Treaties and the rulings of international courts.
Having acknowledged the right of asylum we need to have mechanisms so that it is respected. A well-functioning, accessible system for identifying, registering, and referring every person who wishes to seek asylum is critical – it is also necessary for our security. Such a system would allow for the protection and support of asylum-seekers by directing them to the appropriate procedures and would also support EU societies in identifying potential threats, such as terrorism.
It is also important to acknowledge that the right to asylum is not automatic and only extends to those who qualify for international protection. Its corollary should always be the safe and dignified return of those who do not qualify. The effective implementation of return policies serves to uphold the effectiveness of the asylum system and protect its integrity. Voluntary departure is preferrable to forced returns, not only from a fundamental rights point of view, but because it is easier, cheaper, and more dignified. However, when voluntary departures do not work, States have a right to resort to safe, rights-respectful forced returns.
Third, open legal pathways for those in need of protection
The Global Compact for Refugees calls for “pathways for the admission of persons with international protection needs”. These should be “made available on a more systematic, organized, sustainable and gender-responsive basis and contain appropriate protection safeguards”.
Safe and legal pathways to seek asylum in Europe would save lives and greatly reduce the desperate need to resort to smugglers to reach Europe. Moreover, this would render the right to asylum – protected by Article 18 of the EU Charter of Fundamental Rights – a reality for refugees and other persons in need of protection who are staying in a third country, and who often face risks to their safety.
Currently, there are highly limited resettlement and other legal admission possibilities for people in need of protection to legally enter and stay in the EU. Obtaining a visa for the EU can be difficult for those who flee war, and it is often impossible for those persecuted to visit an EU consulate to apply for a visa.
What’s more, over the past eight years, Europe’s tendency has been to erect more fences rather than open more doors. The total length of border fences at the external EU borders and the Schengen area has reached 2,048 km. Before 2015, only four Member States had border fences; by the end of 2022, 12 Member States had built such fences, sometimes equipped with coil-shaped blades or wires emitting dangerous electric shocks.
The EU and its Member States need to do more to provide adequate legal pathways to those seeking asylum. In this endeavour, they can draw inspiration from such good practices as the Humanitarian Corridors initiative. This is a safe and legal programme of transfer and integration in Europe of vulnerable people (such as children, older persons, disabled persons) fleeing the war in Syria, and conflicts in Lebanon, Sudan, Eritrea and Somalia. The programme is co-funded by the EU and supported by Catholic and Protestant-inspired organisations. Since February 2016, almost 6000 people have safely reached Europe through this initiative.
Fourth, strengthen EU monitoring of fundamental rights violations at borders
Serious, recurrent and systematic fundamental rights violations at the EU’s external borders continue to be reported by civil society and international organisations. At the same time, many fundamental rights safeguards that are embedded in secondary EU law are not operationalised. These safeguards are not adequately known, understood or applied by the relevant officials. They are often technical and procedural, but they can make a marked difference in the protection of fundamental rights. Let me mention three:
First, the so-called “Schengen evaluations”
These are periodic inspections of the implementation of the Schengen rules, for example on border controls or returns. They also cover fundamental rights. In the past, these ‘Schengen evaluations’ focused on technical details, but they now require evaluators to be trained on fundamental rights. They also allow evaluators to use evidence provided by human rights monitoring bodies, and to make unannounced visits to assess serious fundamental rights violations allegations. They also include the possibility of a follow-up procedure for risks of systematic fundamental rights violations. My Agency participates as an observer in these evaluations on fundamental rights aspects. The recommendations are in the public domain, and human rights actors can and should use them in their work.
Second, the work of Frontex
Respect and promotion of fundamental rights is a core part of the Frontex mandate. It is a key aspect of the EU’s integrated border management and as a result, Frontex is increasingly equipped with tools to carry out this work. Frontex now has a fundamental rights officer, a complaints mechanism, a fundamental rights strategy and an action plan to be carried out by over 40 recently-recruited fundamental rights monitors. As Frontex deploys more and more resources to the field, statutory national human rights bodies and civil society also have an important role to play in scrutinising the developing operational work of the agency.
The third example relates to EU funds
To implement their commitments flowing from EU law in the field of asylum, borders and immigration, Member States need money. EU funds are designed to help them. For the period of 2021-27, the Asylum, Migration and Integration Fund has a total of 9.9 billion euro and the Border Management and Visa Instrument (under the Integrated Border Management Fund), has 7.37 billion euro.
As with any other EU law instrument, the Regulations establishing the two funds and regulating their operation must be interpreted and applied in full respect for fundamental rights, as laid down in the EU Charter of Fundamental Rights.
To support a fundamental rights compliant implementation, the EU legislator built a number of safeguards into EU law, including the requirement that Member States involve fundamental rights bodies in their programming; that all funded programs comply with the Charter of Fundamental Rights; and that Member States must include diverse partners, including human rights experts, in their national monitoring committees.
Where it has concluded that these conditions have not been fulfilled, the EU may refuse to reimburse the costs.
These recent developments are ‘game-changers’, but now we need to ensure that they are operationalised – that they are hardwired into the implementation of all relevant laws and policies.
Let me now move to my fifth suggestion: to use classic human rights tools and accountability avenues to address allegations of serious violations of fundamental rights.
Many allegations of fundamental rights violations could constitute serious crimes. Nevertheless, few cases are taken up by national judicial systems. Where complaints are processed, cases tend to be closed, partly because of lack of evidence. The reasons for this lack of evidence need to be properly investigated: Is it because victims or witnesses are afraid to come forward? Is it because they cannot be found?
In order to enhance accountability for crimes and other rights violations, we should put in place or strengthen independent border monitoring. There are already some examples that I can cite: the Greek National Commission for Human Rights set up a mechanism for recording summary returns. In May of last year, the Greek Ombudsman was investigating over 50 incidents concerning more than 10,000 people. The Spanish Ombudsman has issued eleven recommendations relating to the situation at the border. The Polish Commissioner for Human Rights regularly visits the land border with Belarus to monitor the situation.
In October last year, my Agency published guidance to assist EU countries in setting up national independent mechanisms to monitor fundamental rights compliance at external borders. The Government of Croatia has already supported the establishment of such a mechanism; this is an important step and I welcome it. However, it can continue to be strengthened. The mechanism could, for example, allow monitors to assess the situation in locations where most of the fundamental rights issues originate, namely at green borders.
In my words today, I have listed several building blocks and tools that can help to unlock the divisive narratives on migration. Thinking more broadly and longer term, there is a need to reflect on the added value of additional institutional changes. Let me briefly mention three:
The first has to do with the delivery to victims of human rights abuse of meaningful access to justice at the European Court of Justice in the context of the alleged wrongs of EU agencies and other entities. Today, such access is limited due to the high threshold of locus standi. The relevant EU actors could consider reforming such procedures.
Secondly, any such developments need to go hand in hand with the EU’s renewed efforts to accede to the European Convention on Human Rights. The EU’s accession to the Convention, when it occurs, will strengthen the European legal protection space by broadening the normative base and opening up new legal avenues for redress.
And thirdly, are we perhaps at the moment to accept the logic of the ‘Europeanisation’ of asylum policy? In other words, should we not be reflecting on the added value of creating a fully EU-harmonised asylum procedure with an EU authority and an EU court that ultimately decides on who is entitled to asylum and who is not – resulting in uniform and mutually-recognised international protection statuses across the EU?
Let me stop here with a sense of humility: I am conscious that, confronted by the scale of the challenges and its impact on human wellbeing, my proposals are of a modest level of ambition. I believe they would make for a fairer, safer Europe, but I appreciate that respectful engagement in the age old and unstoppable phenomenon of migration will ultimately require more. It calls for brave, visionary leadership, accompanied by a sustained investment in policies that are globally engaged.
As we look to our political leaders to rise to this challenge, we should be in no doubt of the objective to be attained. Pope Francis, when speaking on the island of Lesvos in 2021, articulated the goal in the clearest of words,
“… we see another kind of shipwreck taking place: the shipwreck of civilisation, which threatens not only migrants but us all. How can we save ourselves from this shipwreck which risks sinking the ship of our civilisation? By conducting ourselves with kindness and humanity. By regarding people not merely as statistics […but] for what they really are: people, men and women, brothers and sisters, each with his or her own life story”.
These are the words by which we and our societies will ultimately be judged.