Joint Statement: EU Leaders should Uphold Right to Asylum in Europe – 10 steps for the EU to ensure sustainable and rights-based asylum systems

An increasing move towards containment and evasion of responsibilities

Ten steps to meet EU human rights obligations and safeguard access to asylum in Europe

Address and reverse impediments to the right to seek asylum and access to protection in Europe in the implementation of EU law and the Pact on Migration and Asylum 

1. Focus on compliance with EU law and implementation of the Pact in line with human rights and in close cooperation with civil society. States should take steps to implement the Pact comprehensively, ensuring people with protection needs are identified in a fair and efficient way and given swift access to the asylum procedure. They should take steps to prevent the reform’s worst likely consequences, including widespread detention at borders, lowered asylum standards, and an abuse of ‘crisis’ or ‘instrumentalization’ measures, leading to restricted access to asylum at and within their borders. States should refrain from practices leading to undue restrictions on freedom of movement, such as residence requirements or other measures amounting in practice to a deprivation of liberty. In line with the requirements of the Pact, EU member states need to take steps to ensure sufficient funding and preparedness of their migration, asylum and reception systems for possible increases in arrivals to prevent avoidable crises. The Pact implementation should also provide an opportunity to address longstanding gaps in national asylum systems, including inadequate and insufficient reception capacity, and addressing practices and policies that breach international law, such as the unlawful denial of access to asylum or to a state’s territory, or ongoing cases of border violence or failure to provide assistance at sea. The right to seek asylum should be upheld no matter where people come from or how they entered the territory or came within the jurisdiction or control of EU authorities
2. Refrain from arbitrarily detaining refugees, asylum seekers and migrants and imposing other restrictions on people’s freedom of movement during asylum and return procedures. States must take every step to avoid arbitrary detention at borders. They should generally refrain from detaining asylum seekers and migrants, and at a minimum, they should ensure detention is used as an exception, for the shortest possible time and subject to review. People with specific needs and vulnerabilities – including pregnant people, survivors of torture and of trafficking, people with physical or mental disabilities, serious physical or mental medical conditions, older persons, children, and families with children should not be detained. NGOs and rights monitoring bodies should have unhindered access to border facilities and free quality legal assistance should be provided.
3. Enable effective monitoring and accountability for rights violations and pushbacks at European borders, including through addressing the shortcomings raised by civil society concerning the independent border monitoring mechanism to be established by all member states as part of the Pact. To ensure that the mechanism foreseen in the Screening Regulation and the Asylum Procedures Regulation is credible and effective it should be expanded in scope, made truly independent, and coupled with strengthened accountability for violations and sanctions for non-compliance.
4. Expand avenues to alternative residence permits for people with protection and other human rights-related needs but not eligible for asylum and ensure the broad range of existing opportunities for legal stay are accessible in practice, including existing permits regulated under national or EU law for humanitarian reasons, medical grounds, for victims of human trafficking, for children, young people and families, and stateless people.

5. Uphold EU and international law obligations to ensure access to territorial asylum in the EU and to respect the principle of non-refoulement; providing regular pathways to migration can never replace access to territorial asylum. In accordance with the principle of non-refoulement in refugee and human rights law, states may not return people to places where they would be at significant risk of serious human rights violations. Initiatives and efforts to provide alternatives pathways and ‘safe routes’ should never be used as a pretext for justifying the curtailment of the right to seek asylum at the border or imposing admissibility restrictions including impeding or delaying access to territory.

6. Ensure adequate Search and Rescue (SAR) capacity and safe and timely disembarkation at the closest port of safety. Rescue at sea is a duty of maritime law. The EU and its member states should end the hinderance and criminalization of SAR operations by civil society organizations and deploy and sustain adequate SAR capacity. Any vessel engaging in the rescue of refugees and migrants in distress should be promptly granted a place of safety where survivors can disembark in a timely manner, prioritizing the safety and welfare of rescued people, and their swift access to asylum procedures. Nobody should be subject to any form of unlawful or arbitrary detention upon disembarkation. Any cooperation with third countries that cannot be considered places of safety should be limited to cases where their intervention is essential to prevent imminent loss of life and be conditional on guarantees that their intervention would not result in the disembarkation taking place in an unsafe port.

7. Expand protection and assistance for refugees and migrants along migratory routes through partnerships with third countries without containment objectives. Establishing safe pathways, supporting asylum capacity, and expanding protection for refugees and migrants along migratory routes as part of a route-based approach is important as a way of improving global asylum governance and migration management in a rights-respecting way. However, when investments in asylum capacity in third countries are driven by an underlying objective of stemming and reducing arrivals to European shores, increasing evidence, including research commissioned by the EU, suggests that this creates disincentives for EU’s neighbors to progress on building national asylum systems and expand protection for refugees as they know that this will lead to the EU containing migrants and refugee populations on their territory.

8. Recognize the need for significant upscaling of safe and regular pathways in the pursuit of improved management of global mobility. Initiatives to expand safe and regular pathways are commendable and should inspire further efforts. Lessons learned from the Safe Mobility Offices in Latin America demonstrate, however, that to be successful, safe pathways need to be accessible at scale, match the needs of those moving irregularly and reach those most in need. The existence of regular pathways should not be used as a pretext or rationale for disqualifying eligibility to lodge asylum claims for people who enter without authorization. Resettlement through the UN’s resettlement system should be strengthened, and the Union Resettlement Framework offers an opportunity for the EU to do so. Moreover, additional safe and regular avenues for protection should be developed, such as the possibility for applying for asylum at embassies and consulates, humanitarian visas and easier access to family reunification. Taking a less restrictive approach to family reunification for refugees is an important alternative pathway to protection in Europe, as experience shows that many refugees and asylum seekers enter via irregular and dangerous routes to seek protection and be reunited with family members. Dignified mobility opportunities such as labor or education-based pathways should also be greatly expanded. Safe and regular pathways should be seen as complementary, rather than a substitute, to the right to asylum.

9. Prioritize and conduct human rights impact assessments in advance of collaboration with or support to third countries on asylum and migration and suspend funding when human rights are violated. A human rights approach and timely human rights impact assessment should guide interventions to ensure that asylum and migration cooperation with non-EU countries is conditional on guaranteeing protection for refugees and migrants. The EU must ensure that any funding for border control and migration management includes human rights safeguards, follows rigorous human rights risk assessments, and develops concrete benchmarks to this end. No support should be channeled to entities responsible for human rights abuses. Transparent and independent monitoring and accountability mechanisms should be in place, with public reporting of their findings and outcomes. Where abuses are reported, they should be swiftly investigated, and cooperation should be suspended until the abuses are rectified, safeguards are in place, and steps are taken to ensure that such cooperation does not facilitate further rights violations.

10. Strengthen parliamentary and public scrutiny over ongoing agreements. This should include ensuring public availability of monitoring reports and respect for the principle of freedom of information. Evidence of the negative human rights effects of extraterritorial migration cooperation by actors working with refugees, migrants and host communities needs to be acknowledged, and timely and appropriate corrective action taken in program and policy interventions by the EU and member states. Likewise, systematic inclusion of civil society and of those affected by the policy in the monitoring should be ensured. Where this is not possible, consultations and/or access for civil society to share data and evidence with relevant EU institutions should be established.

Signatories