POST 12 OF THE SERIES OF THE ODYSSEUS BLOG ON THE PACT ON MIGRATION & ASYLUM
By Dr Tamás Molnár*, European Union Agency for Fundamental Rights (Vienna), legal research officer – asylum, migration and borders; Corvinus University of Budapest, Department of International Relations, lecturer on international migration law
Setting the scene: Why monitoring fundamental rights compliance at borders?
Monitoring compliance with fundamental rights is particularly important for state activities performed in “hidden places” where the public has limited or no access, such as remote areas at European Union (EU) external land borders (e.g. in forests, mountains, swamps) as well as in rough waters at sea (borders) in the Aegean or in the Mediterranean, often in the dark. Over the past decade or so, EU Member States’ border management tools, capacity, resources and infrastructure (including physical barriers) at EU external borders have been significantly enhanced to address ever more complex challenges. However, some of these enhancements have given rise to serious fundamental rights challenges. This calls for more effective fundamental rights monitoring at the external borders through reinforced mechanisms that have the capacity and expertise to monitor respect for the wide range of fundamental rights enshrined in the Charter of Fundamental Rights of the EU (‘the Charter’) that various state activities at EU external borders affect.
As the EU Agency for Fundamental Rights (FRA) has aptly pointed out, an effective and independent fundamental rights monitoring system at external borders is a core fundamental rights protection tool. Independent monitoring at borders entails collecting, verifying and analysing information to determine if the authorities’ actions comply with EU and international law. It reduces the risk of fundamental rights violations by enhancing the protection of victims of fundamental rights violations, strengthening the application of fundamental rights safeguards already in place and providing expert advice when needed. At the same time, it can support domestic investigations of allegations against public authorities by providing objective, evidence-based and unbiased analysis and reporting. This improves transparency and accountability, and thus enhances public trust in authorities operating at or in the vicinity of the borders – and all of this can lead to less court litigation against their practices. Effective monitoring mechanisms can contribute to an environment at EU external borders where people concerned can effectively exercise their fundamental rights and access international protection, judicial remedies and complaints mechanisms.
Two new legal instruments adopted as components of the EU Pact on Migration and Asylum, namely the Screening Regulation (see its Article 10, coupled with recitals (27)-(29)) and the Asylum Procedure Regulation (see its Article 43(4) paired with recital (71)) require Member States to set up independent national mechanisms to monitor compliance with fundamental rights in the context of screening (both in the vicinity of borders and within the territory) and when processing aslyum claims at or in proximity of EU external borders (asylum border procedure).
This blog post aims, first, to put the appearance of this new form of fundamental rights monitoring under EU migration/asylum law into a broader context; and then to analyse, with critical eyes, the main features and criteria set out in EU legislation of these national monitoring mechanisms, together with FRA’s envisaged role in providing general guidance for Member States on the matter.
Is monitoring fundamental rights compliance at borders new?
As a matter of fact, there is nothing new under the sun when it comes to the idea of monitoring compliance with fundamental rights at EU external borders. The United Nations (UN) Refugee Agency (UNHCR) has traditionally promoted the setting up and putting into operation border monitoring mechanisms. Since the 2000s, in several Central and Eastern European countries, UNHCR, border guards and relevant NGOs working in the field have concluded tripartite arrangements to monitor border management activities along EU external land borders. At that time, these were EU candidate countries, wanting to join the Union, and all are now EU Member States located at the EU external or Schengen land borders. These tripartite agreements, serving as the legal basis, formalised the cooperation, roles and responsibilities, and working methodologies among the actors in the area of border management. They also provided a platform for dialogue among national authorities, UNHCR and its civil society partners as well as other stakeholders. Although such agreements were in most cases discontinued, UNHCR continues to monitor refugee protection in border areas together with its partners as part of its mandate under its Statute.
In addition, the Office of the UN High Commissioner for Human Rights (OHCHR) has likewise a strong human rights-monitoring role, notably through its field presence. The special procedures under the auspices of the UN Human Rights Council play a similar role. Moreover, the 2002 UN Optional Protocol to the Convention against torture and other cruel, inhuman or degrading treatment or punishment (OPCAT) and the 1987 European Convention for the prevention of torture and inhuman or degrading treatment or punishment both established monitoring bodies (the SPT and the CPT respectively), providing them with unrestricted access rights to people, places and relevant documents.
Currently, in some Member States, national human rights institutions regularly visit border areas to monitor fundamental rights compliance in their capacity as national preventive mechanisms under the OPCAT.
Existing forms of fundamental rights monitoring in the EU ‘area of freedom, security and justice’
Zooming in on the EU acquis, the obligation introduced by the Screening Regulation – and the Asylum Procedure Regulation as per asylum border procedures – for Member States to provide for national fundamental rights monitoring mechanisms is not unprecedented in the EU ‘area of freedom, security and justice’ either (Title V of the Treaty on the Functioning of the EU).
For instance, the Return Directive (Article 8(6)) has already set out the obligation to monitor rights compliance when Member States carry out forced return operations (removals). In a similar vein, the European Border and Coast Guard Agency (Frontex) has been operating, under the auspices of the Fundamental Rights Officer, a pool of forced-return monitors (with over 60 monitors designated by Member States) who observe and report on Frontex-supported or -coordinated forced return operations using objective and transparent criteria (Article 51 of Regulation (EU) 2019/1896 – ‘EBCG Regulation’). This scheme complements the above-mentioned national forced return monitoring systems. More broadly, over 50 fundamental rights monitors, acting as the extension of Frontex’ Fundamental Rights Officer in the field, monitor and assess the fundamental rights compliance of all Frontex operational activities, including forced return operations, and provide advice and assistance in this regard (Article 110 of the EBCG Regulation).
More broadly, the revamped Schengen evaluation mechanism (up and running since 2023) has now an explicit, ex lege stipulated dimension to monitor compliance with fundamental rights in the national application of the various strands of the Schengen acquis. Likewise, the so-called ‘vulnerability assessment’ carried out by Frontex increasingly factors in fundamental rights considerations when evaluating Member States’ operational resilience in responding to challenges at external Schengen borders.
Shaping fundamental rights monitoring in the context of screening and the asylum border procedure: its genesis and the outcome
Against this backdrop, when the European Commission tabled, back in September 2020, the package of proposals under the so-called EU Pact on Migration and Asylum, it may not have come as a surprise that it envisaged the setting up, by Member States, of independent national mechanisms to monitor the compliance with fundamental rights in the context of the ‘pre-screening’ process of new arrivals in an irregular situation. One of the most contentious issues during the ensuing negotiations in the law-making process was the question of monitoring fundamental rights compliance. Compared to the original Commission proposal, the co-legislators took diametrically opposing views on the matter. The Council position sought to significantly water it down, keeping the bare minimum of the proposed obligations only. The European Parliament (EP), in turn, argued for extending the scope of monitoring beyond screening per se, to cover all border management activities, including border surveillance, as most of the fundamental rights sensitive activities carried out by authorities (e.g. push-backs; ill-treatment) occur in these settings, out of sight. Also, the EP position enriched the proposed provisions with more fundamental rights safeguards and standards, including further detailed powers of the mechanism (as opposed to the original proposal), and the introduction of an obligation to involve NGOs in the mechanism.
The adopted version of the Screening Regulation, after fierce debates during the trialogues about the mechanism’s scope and powers, reflects a delicate compromise. The agreed rules (Article 10) strengthened the mandate of the independent monitoring mechanism (compared to the initial Commission proposal – see its analysis below), which also got extended to the asylum border procedure (see Article 43(4) of the Asylum Procedure Regulation). However, this new form of fundamental rights monitoring does not cover border surveillance activities (which was a red line for Member States), hence authorities’ actions – and their wrongdoings – at the ‘green border’ or at sea will not be under such mechanisms’ watchful eyes. This is thus less than what Commissioner Johannsson promised in her speech on the new Pact proposals back in September 2020, emphasizing that the independent national monitoring mechanisms will make sure that “there are no push backs at the border”. At the same time, the compromise kept FRA’s originally envisaged role in providing general guidance for Member States on how to set up such mechanisms and ensure their independent functioning. Remarkably, this new form of fundamental rights monitoring does not extend to the return border procedure either, which forms – together with the screening and the asylum border procedure – the ‘third leg’ of the seamlessly connected procedures to be carried out in the vicinity of the EU external borders. Differently put, these three processes constitute together a ‘pre-entry phase’ for ‘irregular arrivals’ (recital (57) of the Asylum Procedure Regulation), who are not to be legally authorised to enter while being subject to any of them. Yet, one can argue that the joint reading of the relevant provisions of the Return Border Procedure Regulation (Article 4(3)) with the Return Directive carries the logical conclusion that – at least – forced return monitoring systems, within the meaning of Article 8(6) of the Return Directive, should be operational in the context of the return border procedure, too.
Turning to the legal edifice governing the new form of fundamental rights monitoring, the first subparagraph of Article 10(2) of the Screening Regulation stipulates that
[e]ach Member State shall provide for an independent monitoring mechanism in accordance with the requirements set out in [Article 10] [to] monitor compliance with Union and international law, including the Charter [of Fundamental Rights of the EU], in particular as regards access to the asylum procedure, the principle of non-refoulement, the best interest of the child and the relevant rules on detention, including relevant provisions on detention in national law, during the screening.
Added to this, with a view to maximizing the impact of and the follow up to the findings of the national monitoring mechanism, each Member State is obliged to investigate allegations of failure to respect fundamental rights in relation to the screening, to enable victims to access civil or criminal justice. Such alleged rights violations must be dealt with effectively and without delay in the framework of the investigations they trigger (Article 10(1) and (2)(b)).
Key features of the future national independent monitoring mechanisms
Drilling a bit deeper into the new rules, Member States must guarantee the independence of the monitoring mechanism, the institutional design of which should involve ombuds institutions, National Human Rights Institutions, and national preventive mechanisms under the OPCAT – and may involve relevant international organizations (e.g. UNHCR), non-governmental organizations and independent public bodies. To ensure the required level of the mechanism’s independence, Member States should draw from the safeguards set out in the OPCAT and the related guidelines on national preventive mechanisms, the UN Paris Principles for national human rights institutions, the UN General Assembly Resolution A/RES/77/224 on the role of Ombudsman and mediator institutions, the Council of Europe (CoE) Venice Principles, and the CoE Committee of Ministers Recommendation CM/Rec(2021)1 (see recital (27) of the Screening Regulation). A noteworthy safeguard, inspired by the guidance for forced return monitoring systems in the Return Handbook, flags what does not qualify as a monitoring mechanism: the existence of judicial remedies in individual cases, or national systems that supervise the efficiency of the screening – and mutatis mutandis the asylum border procedure (recital (29) of the Screening Regulation).
As for its scope, the monitoring mechanism should cover all activities related to the screening and the asylum border procedure, with the power to carry out on-the-spot checks and random and unannounced checks. Equally important is the mechanism’s access to all relevant locations, including reception and detention facilities, individuals, and documents – however, access can be subject to security clearance under certain circumstances. To ensure its sustainable functioning, Member States must equip the mechanism with appropriate financial means, too. In view of transparency and feeding into policy-making, the mechanism must be empowered to issue annual recommendations to Member States. At the same time, the European Commission must take into account the findings of the mechanism when assessing the Charter-related conditionality requirements for all relevant EU funds, in particular the EU migration and border management funds. Likewise, Member States must include in their future national strategies on migration and asylum how the findings of the monitoring have been taken into account domestically – and a similar obligation applies to the European Commission when preparing the future European Annual Asylum and Migration Reports (Asylum and Migration Management Regulation (EU) 2024/1351, Articles 7(1)(c) and 9(3)(e)).
Finally, to ensure coherence and complementarity, the work of the monitoring mechanism should be without prejudice to the activities of the Frontex Fundamental Rights Officer and the fundamental rights monitors under the EBCG Regulation; the Schengen evaluation and monitoring mechanism; the mechanism to monitor the operational and technical application of the Common European Asylum System (CEAS) run by EU Asylum Agency; as well as other existing national, regional (e.g. CoE) or international (e.g. UN) monitoring bodies. Still, it is not entirely clear as of yet how these synergies will be ensured and capitalised on. Given the importance of the various large-scale EU IT systems and their interoperability when carrying out screening tasks (Articles 14-16 of the Screening Regulation) (but also, to a lesser degree, in the context of the asylum border procedure), the mechanism is required to establish and maintain close ties with national data protection authorities and the European Data Protection Supervisor as well.
The role of the EU Agency for Fundamental Rights
Complying with all of the above criteria can pose significant challenges to EU Member States, notably for those where such monitoring is unchartered territory. This is irrespective of the fact whether one sees the glass half empty or half full when it comes to the scope, powers and safeguards of the mechanism (see e.g. Apatzidou) – the element of novelty, from a government’s perspective, is undisputable. In order to assist Member States in shaping up their own national mechanism, the EU Agency for Fundamental Rights has been tasked by the EU legislator to issue more detailed general guidance for Member States on how to do that, including guaranteeing the mechanism’s independent functioning. Added to this, Member States may request FRA to support them, bilaterally, in the actual development of their national monitoring mechanism, including the safeguards for independence of such mechanisms, as well as designing the monitoring methodology and appropriate training schemes (Article 10(2), penultimate subparagraph of the Screening Regulation).
The new rules will not entrust FRA with a monitoring mandate as such – and the Agency has no capacity and resources to do monitoring itself on the ground either. Rather, FRA is required to give general advice on how to put in place such mechanisms in full compliance with the above-mentioned requirements and the applicable UN and CoE soft law instruments referred to above. Similarly, the Agency is expected to undertake capacity-building work to help Member States operate their own systems properly. In other words, 27 national independent mechanisms will need to be operating in the field. This allows for tailor-made solutions and responses to the local specificities and, if need be, timely adjustments to the realities on the ground.
In October 2022, FRA already issued a broader guidance on fundamental rights monitoring at the external borders in general (also encompassing border surveillance activities). The Agency has reviewed and updated this guidance, in close consultation with various stakeholders including Member States, to fully align it with the requirements stemming from the Screening Regulation (which are likewise applicable to the asylum border procedure). The new guidance is now available here.
Questions of implementation – outlook to the future
How will these monitoring bodies look like? What will their actual powers be? Will they really function independently, effectively and efficiently? So many unanswered questions – and counting. Member States now have some time until mid-June 2026 to come up with their own solutions when providing for an independent national monitoring mechanism. Observers will gain more insights into that once the national implementation plans for the Pact – following the blueprint of the Commission’s common implementation plan – will be submitted by mid-December 2024. One building block of these plans is dedicated to fundamental rights, covering also independent monitoring mechanisms. One of the first tasks of Member States will be, next to adopting an appropriate domestic legal framework on the matter, to ensure that the mechanism “has sufficient capacity and appropriate financial means to carry out its tasks, including planning and ensuring the relevant partnerships, sufficient qualified personnel, administrative arrangements and running costs.” In the course of this reflection period, Member States – activating the relevant passages of Article 10(2) of the Screening Regulation – may also want to reach out to FRA for further, country-specific advice on how to ensure, at the operational level, the mechanism’s independent functioning, along with designing its concrete working methodologies, and the accompanying training schemes.
Entrusting with these tasks already existing independent mechanisms with relevant expertise, experience and already meeting many of the criteria set forth in EU law (e.g. ombuds institutions) appears to be an approach to enjoy priority – also having regard to cost effectiveness. Certainly, creating or designating mere ‘fig leaf’ structures is to be avoided – which would be incompatible with the letter and spirit of the EU legislation setting out this new duty. First off, the European Commission as the ‘guardian of the Treaties’ must keep an eye on the national implementation steps in this regard, with the possibility to launch an infringement procedure in case of non-compliance (e.g. no mechanism up and running until the set deadline; or they fall short of the standards). Furthermore, given that the Screening Regulation is part of the Schengen acquis, and by the same token the rules on the asylum border procedure are part and parcel of the Common European Asylum System, the work of the national monitoring mechanism – and its compatibility with the applicable EU rules and criteria – will be under scrutiny in the frame of the Schengen evaluation mechanism and the soon-to-come CEAS evaluation mechanism respectively.
The national monitoring mechanisms will not deliver an almighty panacea to all fundamental rights issues at the EU external borders, that is for sure. Still, they can undoubtedly contribute to restoring the rule of law in this context, which has become severely damaged in recent years due to multiple deficiencies. These include the widespread, recurrent and grave rights violations at borders (many of which would constitute, if proven, criminal acts); non-identification of vulnerabilities; and the difficulty for victims to access justice; along with the persisting and manifest conflicts between national and EU law (eroding the “very root of the EU legal order”); the lack of effective investigations; and the sense of impunity for the perpetrators. Putting bricks back into the EU building of rule of law would be already, in itself, a welcome step forward – and 27 mechanisms will have a tangible potential to that.
* The views expressed in this blog post are solely those of the author and its content does not necessarily represent the views or the position of the European Union Agency for Fundamental Rights.