An additional part or version of this document is available.

CM/AS(2009)Rec1808finalE  / 15 July 2009 

Ministers’ Deputies
CM Documents

CM/AS(2009)Rec1808 prov2 19 February 20091
——————————————

1052 Meeting, 25 March 2009
4 Human Rights


4.3 “Assessment of transit and processing centres as a response to mixed flows of migrants and asylum seekers” –

Parliamentary Assembly Recommendation 1808 (2007)
Draft reply

Item to be prepared by the GR-H at its meeting on 10 March 2009

——————————————

1. The Committee of Ministers has carefully examined Parliamentary Assembly Recommendation 1808 (2007) on “Assessment of transit and processing centres as a response to mixed flows of migrants and asylum seekers”, as supplemented by Resolution 1569 (2007) on the same subject. It forwarded the recommendation to the member states and to the Steering Committee on Human Rights (CDDH), the European Committee on Legal Co-operation (CDCJ) and the European Committee on Migration (CDMG), whose comments are appended to this reply.

2. The Committee of Ministers draws attention to its constant concern with matters relating to the management of migration flows in Europe and its desire for an increasingly consistent, comprehensive, integrated and co-ordinated approach to migration policies, fully respecting human rights and geared to the needs of Europe as a whole.

3. It notes that Recommendation 1808 (2007) was adopted in the context of mass arrivals of illegal immigrants and asylum seekers and that opening the type of transit and processing centre that is referred to in the Recommendation is one of the approaches that is being considered to deal with these mixed flows. In this connection, it points out that member states have the right, as a matter of well-established international law and subject to their treaty obligations, to control the entry and residence of aliens on their territory.

4. It notes, however, that at present, for a number of reasons, this approach is no longer considered a priority by the main stakeholders in this sphere. If the establishment of such centres were to be considered again, it believes that they should be set up and managed in full compliance with the relevant international human rights instruments, particularly the European Convention on Human Rights and its case-law.

5. In this connection, it points out that under Article 1 of the European Convention on Human Rights, the member states must secure to everyone within their jurisdiction – including legal and illegal migrants – the rights and freedoms defined in the Convention. More specifically, if people are to be held in these centres by force, it considers that they should also be held in accordance with the law and in compliance with standards set by the relevant international instruments and the European Convention on Human Rights. In this respect, the Committee of Ministers considers it important to recall in particular the role of the European Committee for the Prevention of Torture (CPT) in ensuring respect for human rights standards in places of detention.

6. Neither should the functioning of these centres infringe the rights of persons needing international protection to seek and enjoy such protection with full respect for their fundamental rights and in accordance with the 1951 Geneva Convention relating to the Status of Refugees and its 1967 Protocol.

7. Particular attention should also be paid to various recommendations by the Committee of Ministers which may have some bearing on the functioning of these centres such as Recommendations (2003) 5, (98) 15 and 98 (13) as well as the “Twenty guidelines on forced return” adopted by the Committee of Ministers on 4 May 2005.

8. The Committee of Ministers informs the Assembly that the CDDH is currently finalising draft Guidelines on Human Rights protection in the context of accelerated asylum procedures. A number of elements of these Guidelines will concern the situation of asylum seekers in such centres.

* * *

Appendix I to the reply

Comments of the Bureau of the European Committee on Legal Co-operation (CDCJ)
on Parliamentary Assembly Recommendation 1808 (2007)

1. Following the adoption by the Parliamentary Assembly of Recommendation 1808 (2007) “Assessment of transit and processing centres as a response to mixed flows of migrants and asylum seekers”, the Committee of Ministers decided to communicate it to the European Committee on Legal Co-operation (CDCJ), for information and possible comments by 31 December 2007.

2. The Bureau of the CDCJ took note of the Recommendation of the Parliamentary Assembly and decided to comment on domains which are of particular interest to the CDCJ.

3. The Bureau of the CDCJ underlines the need to ensure that every migrant or asylum seeker has an effective access to justice and refers in this regard to the Resolution n°1 on “access to justice for migrants and asylum seekers”,2 in which the European Ministers of Justice agreed “on the importance of securing the fundamental rights of, and facilitating their exercise by, migrants and asylum seekers, through access to information, to an effective remedy, to a fair trial and, where appropriate, to representation, interpretation and assistance”.

4. The Committee of Ministers was is in this respect invited by the Ministers of Justice to entrust the CDCJ, in co-operation with the European Committee on Crime Problems (CDCP) and the Steering Committee for Human Rights (CDDH), to examine “access to justice for migrants and asylum seekers by identifying means and measures with a view to facilitating and ensuring this access, including the provision of legal aid and assistance”.

5. The Bureau of the CDCJ shares the concerns of the Parliamentary Assembly regarding the practical and legal implications for the viability and nature of transit and processing centres (paragraph 2 of the Recommendation).

6. The Report prepared by the Committee on Migration, Refugees and Population (document 11304) sets out in its explanatory memorandum (paragraph 38) that the determination of jurisdictional responsibility for processing centres should be in conformity with the European Convention of Human Rights and its related jurisprudence.

7. The Bureau of the CDCJ furthermore notes that the case-law of the European Court of Human Rights accords migrants and asylum seekers substantial guarantees (prohibition of torture, right to respect for private and family life, prohibition of collective expulsion of aliens) and procedural safeguards (inter alia developed on the basis of the right to an effective remedy).

8. The Bureau of the CDCJ recalls the “Twenty guidelines on forced return” adopted on 4 May 2005 by the Committee of Ministers further to their drafting by the Ad hoc Committee of Experts on Legal Aspects of Territorial Asylum, Refugees and Stateless Persons (CAHAR) and which concern procedures leading to the expulsion of non-nationals whose presence on the territory of a member state is illegal. Guideline 10 is more specifically dealing with conditions of detention pending removal and should be taken into consideration with a view to ensure that migrants enjoy the rights they are entitled to.

9. In the framework of the Memorandum of Understanding between the Council of Europe and the European Union, the Bureau of the CDCJ furthermore calls for full consideration of the Council of Europe standards in the current exercise of preparation of a “Common European Asylum System” by the European Union.

10. Considering the transversal nature of issues related to migration and asylum, currently dealt with by various Steering Committees in the Council of Europe, the Bureau of the CDCJ calls for a comprehensive and co-ordinated approach in this field, in order to ensure that the rights of this vulnerable group of persons be adequately considered.

Appendix II to the reply

Comments of the Bureau of the European Committee on Migration (CDMG)
on Parliamentary Assembly Recommendation 1808 (2007)

a. The European Committee on Migration (CDMG) welcomes the attention of the Parliamentary Assembly of the Council of Europe to the proposals to create transit and processing centres to manage the mixed flows of migrants and asylum-seekers. It fully agrees with the Parliamentary Assembly that all legal, practical and particularly human rights implications arising from the creation of such centres should be carefully examined and evaluated prior to their opening.

b. The CDMG also believes that should such centres be opened, an effective system of monitoring and control should be put in place with a view to assuring that the human rights of migrants and asylum-seekers in these centres are respected in accordance with Council of Europe standards.

Appendix III to the reply

Comments from the Steering Committee for Human Rights (CDDH)
on Parliamentary Assembly Recommendation 1808 (2007)

The CDDH takes note of Recommendation 1808 (2007). It recalls its work in progress concerning the drafting of guidelines on human rights protection in the context of accelerated asylum procedures. The draft text currently being studied notably handles in detail the question of material conditions in transit centres and the training of the personnel responsible for these centres. It is foreseen that the draft guidelines be finalised in 2008 and sent to the Committee of Ministers for consideration and possible adoption before the end of 2008.

1 This document has been classified restricted at the date of issue; it will be declassified in accordance with Resolution Res(2001)6 on access to Council of Europe documents.

2 28th Conference of European Ministers of Justice “Emerging issues of access to justice for vulnerable groups, in particular: migrants and asylum seekers; and children, including children as perpetrators of crime”, held in Lanzarote (Spain) on 25-26 October 2007.


 Top

 

  Related Documents
 
   Meetings
 
   Other documents
 
   External links