EU Pact on Migration & Asylum: How can we ensure the effectiveness of national monitoring mechanisms?

National monitoring mechanisms should play a key role in instilling a human rights culture in border management entities, writes Birgit Van Hout.

By Birgit Van Hout

Birgit Van Hout is UN Human Rights (OHCHR) Regional Representative for Europe

15 Mar 2021

The UN High Commissioner for Human Rights and the international and regional human rights mechanisms have been calling on the European Union to strengthen human rights safeguards in migration governance.

This call has come about following concerns over pushbacks at borders, the denial of entry of rescue boats in European ports, immigration detention, forced expulsions and a lack of systematic access to information, health and justice for migrants and refugees.

Following the proposal in the new EU Pact on Migration and Asylum that Member States establish national monitoring mechanisms, the European Parliament is well placed to weigh in on the parameters and scope of such mechanisms.

The screening regulation explicitly includes the screening process, detention, and the principle of non-refoulement as part of the mandate of the new mechanisms. However, violations of human rights and humanitarian law often occur outside official border crossings, police facilities or formal procedures.

The mandate of the new mechanisms should therefore be sufficiently broad in scope, geographically and procedurally. The monitoring body should have the power to visit locations, including unannounced visits, access documents, interview witnesses and alleged victims and investigate reports of human rights violations.

By analogy, the Paris Principles, which are globally accepted for the accreditation of national human rights institutions, could guide the identification of minimum criteria for the new mechanisms. Foremost is the need for the monitoring mechanisms to be independent in law and in practice, a critical element which could be periodically reviewed through an EU-managed accreditation procedure.

"Monitoring mechanisms need to be independent in law and in practice, a critical element which could be periodically reviewed through an EU-managed accreditation procedure"

Independence entails legal, operational, policy and financial autonomy, free from executive interference, and the provision of adequate resources. National monitoring mechanisms should work with regional and international human rights bodies and national human rights institutions to avoid fragmentation between the various rights protection regimes.

They should also work in a collaborative fashion with civil society and Frontex Fundamental Rights Monitors, once deployed. Monitoring is not an end in itself, but a means to achieve compliance with human rights obligations.

Any national legislation establishing the new mechanism should therefore compel authorities to cooperate constructively with the new mechanism. Clarifying the follow-up process to the recommendations of the mechanism will also be crucial.

The accountability of States goes to the heart of the matter. Where victims of human rights violations are not in the country anymore, it is still necessary to ensure their access to justice and effective remedy.

National monitoring mechanisms should play a key role in instilling a human rights culture in border management entities, so that human rights are not perceived as an obstacle to border governance, but seen as living values that serve the common interest.

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