Critically assessing human rights integration in AFSJ policies

Abstract

The aim of this report (FRAME deliverable D 11.2) is to critically assess the integration of human rights into certain EU justice and home affairs policies. The report scrutinises the EU’s action in relation to border checks, asylum and immigration, and in connection to organised and serious crime, terrorism, human trafficking, as well as international crimes. The central goal is to identify gaps and incoherencies in how human rights are integrated into and protected in the said policies. Special consideration is given to the relationship between the internal and external dimensions of the investigated policies. The report builds upon FRAME deliverable D 11.1, in which the integration of fundamental rights in the institutions and instruments of the Area of Freedom, Security and Justice (AFSJ) was considered. While deliverable D 11.1 addresses the coherence of the structures and instruments of the AFSJ, the present report focuses on studying the content of the policies and their impact on the realisation of human rights. To some extent, however, this report also pinpoints structural matters that negatively or positively affect the realisation of human rights. The report is mainly based on desk research on EU legislation and policy documents in the areas under scrutiny. In the analysis special attention is given to human rights problems identified in reports by international and EU human rights monitoring bodies and to criticism raised by human rights NGOs. The report is composed of four chapters. Chapter I, the introductory chapter, outlines the scope and aim of the report and explains some of the central concepts used in the report. In Chapter II, the EU policies on immigration, border checks and asylum are analysed. Questions considered in this chapter include the EU visa regime, border checks and surveillance, the EU asylum acquis, protection in the contexts of return and readmission, and the social and economic rights of non-EU citizens staying in the Union. In Chapter III, attention is directed towards the EU collaboration regarding organised and serious crime. This chapter contains a general part on the fight against organised and serious crime, after which the EU approaches to human trafficking, counter-terrorism and international crimes are addressed in greater detail. This chapter also includes a case study on extraordinary rendition. On the basis of the analysis in the substantive chapters of the report, the concluding chapter (Chapter IV) identifies crosscutting issues affecting the realisation of human rights in the areas that the report analyses and proposes recommendations. The analysis of the various justice and home affairs policies clearly shows that the AFSJ is an area of EU action in which special consideration to human rights must be given. It is argued that three crosscutting issues negatively affect the integration of human rights in the justice and home affairs policies considered in this report. These issues are: (a) a strong security focus or ‘securisation’; (b) lack of coherence; and (c) lack of solidarity. As regards securitisation, a trend towards accepting increasingly punitive and coercive measures to counteract serious crime and irregular migration is identified, and concern is expressed for the human rights implications of this trend. In relation to coherence, the report points to the many different types of incoherence that are found to be present in the justice and home affairs policies. Particular concern is expressed concerning the lack of coherence between the EU’s human rights rhetoric and the actual integration and monitoring of human rights standards. The external action of the EU in the field of justice and home affairs is sometimes also plagued by differential standards as compared to the EU’s internal action, and depending on whether or not the external partner is a key strategic ally. The lack of solidarity is identified as a factor that negatively affects the possibilities of the EU to overcome the human rights problems identified in the report. While the Union is aware of the many human rights issues within the field of justice and home affairs, it seems unable to adopt effective measure to overcome them. Based on these findings, the report makes recommendations for a more human rights-based approach to the EU’s justice and home affairs. Most importantly, the report asserts that Member State discretion and mutual trust should not override protection of human rights, and that political will and solidarity among the Member States are necessary if more profound changes in the justice and home affairs cooperation are to be achieved. It is further proposed that human rights monitoring should be enhanced in many areas of justice and home affairs. Likewise, the importance of human rights impact assessments before adopting new legislation and policies is emphasised. The report also stresses the value of academic research in this regard. EU policy choices in the realm of justice and home affairs should be based on solid facts and objective research rather than on unsubstantiated fear and prejudices.