Course Manual For Fundamental Rights Trainers - v2 PDF

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Course manual
for Frontex fundamental
rights trainers
Trainer’s handbook
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Course manual
for Frontex fundamental
rights trainers
Developed by Frontex
in cooperation with Member States
and Schengen-associated countries
This manual is for law enforcement use only.

Permission for distribution outside the EU Member States’
and Schengen associated countries’ law enforcement
agencies must be granted by Frontex.
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Legal notice
The contents of this publication do not necessarily reflect the official opinions of any
institution or body of the European Union. Neither the European Border and Coast
Guard Agency nor any person or company acting on behalf of the Agency is respon-
sible for the use that may be made of the information contained in this publication.
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Acknowledgements
The Frontex Training Unit would like to express its gratitude to all experts consti-
tuting the team that contributed to the development of the Course manual for Fron-
tex fundamental rights trainers. Our appreciation goes to all the Member States, Partner
States, Schengen associated countries, EU agencies, international organisations and
non-governmental organisations involved for their commitment, expertise and mul-
tidimensional advice in ensuring that the training — together with all the supplemen-
tary materials and tools — is comprehensive, operationally relevant and practical. We
would like to thank the members of the Frontex Consultative Forum on Fundamental
Rights and our colleagues from the Frontex Fundamental Rights Office for their val-
uable comments, insight and extensive support, which helped us to develop a course
manual tailored to the needs of border guards.
Development team
Franz Pesendorfer (Austria)
Antonio Vulas (Croatia)
Jaana Barrot (Estonia)
Aleksandar Dimovski (North Macedonia)
Konstantina Anastasopoulou (Greece)
Maria Zachari (Greece)
Ilaria Renelli (Italy)
Vadims Serguns (Latvia)
Diana Brombergier (Poland)
Antonio Sergio Henriques (Portugal)
Catalin Cazangiu (Romania)
Adrian Lazaroaia (Romania)
Dumitru Tomescu (Romania)
Andrea Espada Fernandez (Spain)
Juan Miguel Garcia Salguero (Spain)
Coordination team
Juris Gromovs, Gabriela Zawadzka and Radu Constantin Anton (Frontex Training Unit)
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Frontex European course for Frontex fundamental-rights trainers
Common statement
This course has been developed by a working group of border management ex-
perts and fundamental rights practitioners. It was drafted in accordance with
the latest international and European human rights standards. The course takes
into consideration the complexity of the duties performed by officials at the
EU’s borders. In this respect, we have taken great care to represent as closely
as possible the everyday reality of officers. The goal of the course manual is
to provide guidance to training institutions willing to implement a Sectoral
Qualifications Framework-based programme for border-related fundamen-
tal rights trainers. The working group entrusts border guard training insti-
tutions and border guard trainers with the implementation of the standards
set and consequently with the dissemination and promotion of fundamental
rights within the European border guard community.
Frontex HQ, Warsaw, June 2018
The Union is founded on the values of respect for human dignity, freedom, de-
mocracy, equality, the rule of law and respect for human rights, including the
rights of persons belonging to minorities. These values are common to the
Member States in a society in which pluralism, non-discrimination, tolerance,
justice, solidarity and equality between women and men prevail.
Article 2, Treaty on European Union
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Contents
Abbreviations #6
General part #11
1. Module I: Basics of border-related fundamental rights #11

1.1. The origin of fundamental rights #11
1.2. States and fundamental rights #13
1.3. European human rights instruments #15
1.4. Monitoring of implementation and judicial enforcement of fundamental
rights #18
1.5. International monitoring mechanisms #19
1.6. European monitoring and judicial mechanisms #27
1.7. National monitoring mechanisms #32
1.8. International protection of migrants in today’s context #34
1.9. Fundamental rights and entitlements of border guards #38
1.10. Fundamental rights closely connected to border tasks #43
1.11. Fundamental principles closely connected to border tasks #82
1.12. Access to international protection #94
1.13. Complaint mechanism #108
Operational part #113
2. Module II: Impact of first-line border activities on fundamental

rights #113
2.1. Regular border checks #113
2.2. Detection #125
2.3. Interception #131
3. Module III: Impact of second-line border activities on fundamental

rights #139
3.1. Screening #139
3.2. Reception #147
3.3. Registration #155
3.4. Debriefing #168
3.5. Return #170
Notes #188
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Abbreviations
API Advance Passenger Information

CAT Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment
CEDAW Convention on the Elimination of All Forms of Discrimination
against Women
CESCR Committee on Economic, Social and Cultural Rights
CJEU Court of Justice of the European Union
CPED International Convention for the Protection of All Persons from
Enforced Disappearance
CPT European Committee for the Prevention of Torture and Inhuman
or Degrading Treatment or Punishment
CRC Convention on the Rights of the Child
CRPD Convention on the Rights of Persons with Disabilities
EASO European Asylum Support Office
ECHR European Convention for the Protection of Human Rights and
Fundamental Freedoms
ECRI European Commission against Racism and Intolerance
ECtHR European Court of Human Rights
EU European Union
Eurosur European Border Surveillance System
ExCom Executive Committee of the Programme of the United Nations
High Commissioner for Refugees
FRA European Union Agency for Fundamental Rights
Frontex European Border and Coast Guard Agency
GDPR General Data Protection Regulation
HRC Human Rights Council
ICCPR International Covenant on Civil and Political Rights
ICERD International Convention on the Elimination of All Forms of Racial
Discrimination
ICESCR International Covenant on Economic, Social and Cultural Rights
ICMW International Convention on the Protection of the Rights of All
Migrant Workers and Members of Their Families
IMO International Maritime Organization
IOM International Organization for Migration
MS Member State
NGO non-governmental organisation
NHRI national human rights institution
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NPM national preventive mechanism

OHCHR United Nations Office of the High Commissioner for Human Rights
OSCE Organization for Security and Co-operation in Europe
RI return intervention
RO return operation
SAR International Convention on Maritime Search and Rescue
SOLAS International Convention for the Safety of Life at Sea
SPT Subcommittee on Prevention of Torture
TC third country
TEU Treaty on European Union
TFEU Treaty on the Functioning of the European Union
UDHR Universal Declaration of Human Rights
UN United Nations
UNCLOS United Nations Convention on the Law of the Sea
UNHCR United Nations High Commissioner for Refugees
Unicef United Nations Children’s Fund
UPR Universal Periodic Review
WHO World Health Organization
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General part #
GENERAL PART
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General part: Module I
1. Module I: Basics of border-related

fundamental rights
1.1. The origin of fundamental rights
1.1.1. General considerations
International human rights are a form of public international law that creates
rights for individuals and duties for States, as well as domestic and interna-
tional remedies for the violation of rights and the failure of duties. Constituted
by that set of international instruments and institutions that explicitly deter-
mine the human rights of persons, it includes the international and regional
human rights obligations of States, stemming from either international trea-
ties or customary international law. Human rights provisions give entitlements
to individual persons individually, or in some cases collectively, to make legal
claims before public authorities and where legal support for these claims is said
to respect these individuals’ entitlements as human persons (1).
International human rights law emerged in the 20th century from the desire
of world leaders to avert the horrors that took place during World War I and
World War II. In 1945, the international community adopted the Charter of
the United Nations (UN). The Preamble to the Charter of the United Nations
(the UN Charter) states: ‘We the peoples of the United Nations determined
… to reaffirm faith in fundamental human rights, in the dignity and worth of
the human person, in the equal rights of men and women and of nations large
and small’ (2).
The UN Charter does not further define the content of human rights, as it was
decided that, for this purpose, an International Bill of Human Rights should be
drawn up. Once this work was complete, the Universal Declaration of Human
Rights (1948) (UDHR), the International Covenant on Economic, Social and
Cultural Rights (1966) (ICECSR), the International Covenant on Civil and Polit-
ical Rights (ICCPR) and its two optional protocols, which provide for the right
of individual petition (1966) and aim at abolishing the death penalty (1989),
formed the five constituent parts of the International Bill of Human Rights ( 3).
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In terms of chronology, the adoption of the UDHR was also followed by in-
ternational treaties on specific subjects, such as the UN Convention relating
to the Status of Refugees (1951), the UN Convention relating to the Status of
Stateless Persons (1954), the UN Convention on the Reduction of Stateless-
ness (1961) and the International Convention on the Elimination of All Forms of
Racial Discrimination (1965) (ICERD). Two covenants, adopted in 1966, subse-
quently covered the main catalogue of human rights (4). Since then, other signif-
icant human rights treaties have been adopted in the UN framework, such as:
the UN Convention on the Elimination of All Forms of Discrimination against
Women (1979) (CEDAW);
the UN Convention against Torture and Other Cruel, Inhuman or Degrad-
ing Treatment or Punishment (1984) (CAT);
the UN Convention on the Rights of the Child (1989) (CRC);
the International Convention on the Protection of the Rights of All Migrant
Workers and Members of Their Families (1990) (ICMW);
the International Convention for the Protection of All Persons from Enforced
Disappearance (2006) (CPED);
the UN Convention on the Rights of Persons with Disabilities (2006) (CRPD).
1.1.2. Human rights and fundamental rights
It has to be stressed that the term ‘fundamental rights’ is used in the EU to

express the concept of ‘human rights’ within a specific EU internal context.
However, traditionally, the term ‘fundamental rights’ is used in national con-
stitutions, whereas the term ‘human rights’ is used in international law. The
two terms refer to the same content and substance, as can be seen from the
similarities between the content of the Charter of Fundamental Rights of the
European Union, the European Convention for the Protection of Human Rights
and Fundamental Freedoms (ECHR), the UDHR and some other UN human
rights treaties (5).
Rights are inherent to all human beings, regardless of their nationality, place
of residence, migration and legal status, sex, national or ethnic origin, religion,
language, belief, political or any other opinion, membership of a national mi-
nority, property, birth, disability, age or sexual orientation or any other sta-
tus. Every person, irrespective of his or her citizenship and immigration status
(e.g. an asylum seeker, a beneficiary of international protection, a labour mi-
grant, an irregular migrant, etc.), is equally entitled to all human rights with-
out discrimination based on the principle of universality.
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1.1.3. Principle of universality
Universality of human rights is a theory of human rights that says that all hu-
man rights are held by all persons in all States and societies, regardless of race,
colour, nationality, religion, language or ethnic traits and must be applied and
interpreted in the same way in all States and regions, regardless of the legal
system or political ideology (6).
The principle that ‘universality of human rights is the cornerstone of interna-

tional human rights law’, as first emphasised in the UDHR, has been reiter-
ated in numerous international human rights conventions, declarations and
resolutions. The 1993 Vienna World Conference on Human Rights, for exam-
ple, proclaimed that:
all human rights are universal, indivisible and interdependent and interre-
lated. The international community must treat human rights globally in a fair
and equal manner, on the same footing, and with the same emphasis. While
the significance of national and regional particularities and various histori-
cal, cultural and religious backgrounds must be borne in mind, it is the duty
of States, regardless of their political, economic and cultural systems, to pro-
mote and protect all human rights and fundamental freedoms (7).
1.2. States and fundamental rights
1.2.1. Implementation of fundamental rights in States
International human rights law gives specific entitlements to individuals,

against States, and provides the remedies when a mechanism exists to adju-
dicate claims (e.g. such a mechanism exists under the ECHR) (8). In brief, it can
be stated that the international human rights treaties are implemented and
enforced almost entirely through the national legal means of the States that
ratified them, while the international implementing bodies primarily comple-
ment those efforts and strengthen national measures (9). Two of the most im-
portant examples of exceptions to this general statement can be found in the
activities of the European Court of Human Rights (ECtHR) and the European
Court of Justice, which are discussed in the sub-section below.
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1.2.2. Obligations of the State and its agents
The obligations of the State, in relation to the protection of human rights, can
be divided into positive and negative ones. According to the ECtHR, the prime
characteristic of positive obligations is that, in practice, they require national
authorities to take necessary measures to safeguard a right or, more specif-
ically, to adopt reasonable and suitable measures (depending on the specific
case, practical, legislative or judicial measures) to protect the rights of the in-
dividual (10). Negative obligations, on the other hand, require States to refrain
from actions that may result in violations of human rights. States and their
agents, including border guards, have an obligation to respect, protect, pro-
mote and fulfil human rights.
The obligation to respect means that States must refrain from interfer-
ing with or curtailing the enjoyment of human rights (negative obligations);
The obligation to protect requires States, but also non-State actors such
as companies, to take positive action to protect people (individuals and
groups) against human rights abuses (positive obligations);
The obligation to promote requires States to ensure that everyone has the
opportunity to learn about their rights.
The obligation to fulfil means that States must take positive action to fa-
cilitate or provide for the enjoyment of human rights, for example by en-
suring that border guards are trained adequately to uphold human rights.
Article 4 of Regulation (EU) 2016/399 of the European Parliament and of the

Council of 9 March 2016 on a Union Code on the rules governing the movement
of persons across borders (Schengen Borders Code) stipulates that, while con-
trolling the crossing of EU external borders, EU Member States
shall act in full compliance with relevant Union law, including the Charter of
Fundamental Rights of the European Union, relevant international law, in-
cluding the Convention relating to the Status of Refugees done at Geneva on
28 July 1951, obligations related to access to international protection, in par-
ticular the principle of non-refoulement, and fundamental rights. In accord-
ance with the general principles of Union law, decisions under this Regulation
shall be taken on an individual basis.
In this case, the State is represented by all State authorities, in particular the
border authorities, that apply the abovementioned Schengen Borders Code
rules. Thus, State representatives or agents, such as border guards, are re-
sponsible for upholding the State’s obligations. When under its jurisdiction,
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the State and its agents also have a duty to prevent violations committed by
private persons, for example in the case of human trafficking.
All persons physically falling within the jurisdiction of the EU Member States,
including migrants and asylum seekers, should enjoy the protection of hu-
man rights as enshrined in the UN human rights instruments, the Council of
Europe’s conventions and the European Charter, as well as the protection af-
forded by national systems. According to international and European human
rights law, protection against violations applies to all persons under the juris-
diction of a State (11).
It should be noted that the question of jurisdiction with regard to both public
international law and human rights law is presumed to be exercised within a
State’s sovereign territory (12). States may also exceptionally exercise jurisdic-
tion when they operate outside their territory. The following conditions can be
identified as establishing a jurisdictional link between persons affected by ex-
ternal border controls and the State that authorises or carries out such controls:
de jure control;
de facto control over a territory or a person;
the exercise of public powers (13).
In many cases, the issue of the jurisdiction of a particular State is subject to

court dispute (e.g. when a dispute takes place in the ECtHR regarding the vi-
olation of Article 3 of the ECHR and the non-refoulement principle in certain
circumstances).
1.3. European human rights instruments
At the regional level, a number of human rights instruments have been devel-
oped in the framework of the EU and the Council of Europe. Two crucial in-
struments should be mentioned in this regard: the ECHR and the EU Charter
of Fundamental Rights.
1.3.1. The Council of Europe
The ECHR was drafted by the Council of Europe and adopted in 1950. Accept-
ance of the ECHR, the jurisdiction of the ECtHR in interpreting it and the right
of individuals to petition the ECHR for protection are now obligations of the
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Council Member States. This convention and a number of its protocols define
the authority of this legal instrument and the ECtHR to protect the rights and
freedoms of individuals. Those rights and freedoms vary in theoretical nature,
broadness of definition and detail (14). They include, for example, the right to
life, freedom from torture, slavery and forced labour, the right to liberty and
security of person, rights to a fair trial, the right to effective remedy, the right
to respect for private and family life, the right to liberty of movement and free-
dom to choose one’s residence, freedom to leave any country, including one’s
own country, the prohibition of the collective expulsion of aliens, and many
others. The ECHR should be deemed the central human rights instrument
adopted by the Council. However, there is a number of other important hu-
man rights treaties developed under the Council umbrella, often introducing
innovative systems, for example:
to monitor the conditions in which persons are being held in detention —
European Convention for the Prevention of Torture and Inhuman or De-
grading Treatment or Punishment (CETS No 126), 1987);
to protect the rights of minorities — European Charter for Regional or Mi-
nority Languages (CETS No 148, 1992) and the Framework Convention for
the Protection of National Minorities (CETS No 157, 1995);
to protect the dignity of the person against the misuse of biology and med-
icine — Convention for the Protection of Human Rights and Dignity of the
Human Being with regard to the Application of Biology and Medicine (CETS
No 164, 1997).
In addition, in some cases, the Council has also played an important role in
promoting a common approach to certain subjects, such as the fight against
trafficking of human beings (by adopting the Convention on Action against
Trafficking in Human Beings (CETS No 197, 2005), which presents a more indi-
rect relationship to human rights) (15). For many years, the ECHR has been, and
it still remains, one of the most powerful instruments in protecting the rights
and freedoms of the nationals of EU Member States, as well as those of third-
country nationals whose rights have been breached by EU Member States.
1.3.2. The European Union
The original treaties establishing European Communities in the 1950s did

not contain any system of fundamental rights protection. The relatively lim-
ited scope of the EEC Treaty, with its focus on instituting a common market,
provided limited opportunities for possible conflicts. If they did arise, States
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expected their national constitutions to be the best guarantee of protection

for fundamental rights (16).
Consequently, the EU Charter of Fundamental Rights, proclaimed in 2000, is

the first Bill of Rights developed explicitly for the EU (17). By virtue of Article 6(1)
of the Treaty on European Union (TEU), as amended by the Lisbon Treaty in
2009, the Charter is legally binding, deemed to be part of EU primary law
and subject to the jurisdiction of the Court of Justice of the European Union
(CJEU) (18). It comprises a broad range of civil, political and social rights. Fun-
damental rights proclaimed in the Charter were drawn from a variety of inter-
national and national sources, including human rights instruments of the UN,
the Council of Europe and the European Community’s Charter of the Funda-
mental Social Rights of Workers, adopted in 1989. Additional sources included
the European Community Treaty and Community legislation, and the case-law
of both the CJEU and the ECtHR (19). The Charter is also a very modern instru-
ment, which includes ‘third generation’ fundamental rights, such as data pro-
tection, issues of bioethics and transparent administration (20).
According to Article 51(1) of the EU Charter of Fundamental Rights, while its

provisions are addressed to the EU institutions, bodies, offices and agencies,
they are also addressed to Member States, but ‘only when they are implement-
ing Union law’ (21). For example, the Charter applies when EU Member States
adopt or apply a national law implementing an EU directive or when their au-
thorities apply an EU regulation. It is essential to note that the rules govern-
ing border control of persons crossing the EU’s external borders are defined
by Regulation (EU) 2016/399 of the European Parliament and of the Council of
9 March 2016 on a Union Code on the rules governing the movement of per-
sons across borders (Schengen Borders Code). In cases where the Charter does
not apply, the protection of fundamental rights is guaranteed under the con-
stitutions or constitutional traditions of EU countries and the international
conventions they have ratified (22).
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1.4. Monitoring of implementation and judicial

enforcement of fundamental rights
Nowadays, there is an impressive collection of international, regional and na-

tional human rights instruments, setting out human rights standards appli-
cable to all areas of life. This development has taken place at the UN and at
regional and national levels. International treaties, such as covenants, proto-
cols or conventions, are legally binding for States that ratify or accede to them.
Through the ratification of human rights treaties, governments undertake to
put domestic measures in place, as well as legislation, in compliance with their
treaty-based obligations and duties.
1.4.2. Legal implications
Where domestic legal proceedings fail to address human rights abuses, mech-
anisms and procedures for individual complaints or communications are avail-
able at the regional and international levels to help ensure that international
human rights standards are indeed respected, implemented and enforced at
the local level. In legal theory, there is an approach that divides international
human rights law into ‘hard law’ (treaties) and ‘soft law’. The term ‘soft law’ is
used to describe international instruments that are not recognised as treaties
by their makers, even if they employ imperative language, such as ‘shall’, but
have as their purpose the promulgation of ‘norms’ of general or universal ap-
plication. Such non-treaty instruments are typically called guidelines, princi-
ples, declarations, codes of practice, recommendations or programmes. At the
same time, the soft law UDHR has been the source of many universal and re-
gional human rights treaties (23). Nevertheless, these non-treaty instruments
have an undeniable moral force and provide practical guidance to the States
on their conduct. The value of such instruments lies in their recognition and
acceptance by a large number of States. Although they do not have a binding
legal effect, they may be perceived as declaratory of broadly accepted prin-
ciples within the international community and guidance on the implementa-
tion of the obligation to respect, protect and fulfil. The different international
treaties coexist with each other. According to a well-established principle of
international law, the norms that are most favourable to the individual must
be applied in a case where several norms are applicable to the same situation.
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1.5. International monitoring mechanisms
The UN human rights institutions can be divided into ‘the UN Charter-based

bodies’ or ‘treaty bodies’. The Charter bodies are established by the UN Char-
ter itself, or by bodies that are, themselves, created by this Charter. Treaty bod-
ies are created by the corresponding UN human rights treaties, for example
the abovementioned conventions (24). The main Charter bodies are the polit-
ical UN human rights institutions, as they are made up of the representatives
of governments, while the treaty bodies are the quasi-judicial arm of UN hu-
man rights supervision, composed of human rights experts acting in their in-
dividual capacities. Both types of bodies are supported by the UN Office of the
High Commissioner for Human Rights (OHCHR) (25).
1.5.1. UN Charter-based bodies
The Human Rights Council
Created in 2006 by Resolution 60/251 of the UN General Assembly (26), the

Human Rights Council (HRC) is a subsidiary organ of the UN General Assem-
bly responsible for:
promoting universal respect for the protection of all human rights and fun-
damental freedoms for all, without distinction of any kind and in a fair and
equal manner;
addressing situations of violations of human rights, including gross and sys-
tematic violations, and making recommendations;
promoting the effective coordination and the mainstreaming of human
rights within the UN system;
The work of the Council must be guided by the principles of universality, im-
partiality, objectivity and non-selectivity, constructive international dialogue
and cooperation, with a view to enhancing the promotion and protection of
all human rights — civil, political, economic, social and cultural rights — includ-
ing the right to development. In this regard, the HRC must:
promote human rights education and learning, as well as advisory ser-
vices, technical assistance and capacity-building, which are to be provided
in consultation with and with the consent of the Member States concerned;
serve as a forum for dialogue on thematic issues of all human rights;
make recommendations to the UN General Assembly for further develop-
ment of international law in the field of human rights;
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promote the full implementation of human rights obligations undertaken

by States and follow-up on the goals and commitments related to the pro-
motion and protection of human rights emanating from UN conferences
and summits;
undertake the Universal Periodic Review (UPR), based on objective and reli-
able information, of the fulfilment by each State of its human rights obliga-
tions and commitments in a manner that ensures universality of coverage
and equal treatment with respect to all States;
contribute, through dialogue and cooperation, towards the prevention of
human rights violations and respond promptly to human rights emergencies;
assume the role and responsibilities of the Commission on Human Rights
relating to the work of the OHCHR, as decided by the General Assembly in
its Resolution 48/141 of 20 December 1993;
work in close cooperation, in the field of human rights, with governments,
regional organisations, national human rights institutions (NHRIs) and civil
society;
make recommendations with regard to the promotion and protection of
human rights;
submit an annual report to the General Assembly.
The Council consists of 47 Member States, which are elected directly and indi-
vidually by secret ballot by the majority of the members of the UN General As-
sembly. Members elected to the Council must uphold the highest standards in
the promotion and protection of human rights, fully cooperate with the Council
and be reviewed under the UPR mechanism during their term of membership.
The Universal Periodic Review
Based on its mandate and its Resolution 5/1, ‘Institution-building of the United

Nations’, the HRC must conduct the UPR of the UN Member States based on
the following objectives:
the improvement of the human rights situation on the ground in the State
subject to review;
the fulfilment of the State’s human rights obligations and commitments
and assessment of positive developments and challenges faced by the State;
the enhancement of both the State’s capacity and technical assistance, in
consultation with, and with the consent of, the State concerned;
the sharing of best practice among the UN Member States and other
stakeholders;
support for cooperation in the promotion and protection of human rights;
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the
encouragement of full cooperation and engagement with the Council,
other human rights bodies and the OHCHR.
The UPR criteria must be based on:

the Charter of the United Nations;
the Universal Declaration of Human Rights;
human rights instruments to which a State is party;
voluntary pledges and commitments made by States, including those un-
dertaken when presenting their candidatures for election to the HRC.
In addition to the above and given the complementary and mutually interrelated
nature of international human rights law and international humanitarian law,
the review must take into account applicable international humanitarian law.
The Human Rights Council Advisory Committee
Based on its Resolution 5/1, ‘Institution-building of the United Nations’, the

HRC established the Human Rights Council Advisory Committee, composed
of 18 experts serving in their personal capacities, which functions as a think
tank for the Council and works at its direction. The function of the advisory
committee is to provide expertise to the HRC, focusing mainly on studies and
research-based advice. Such expertise must be rendered only upon the HRC’s
request, in compliance with its resolutions and under its guidance. The scope
of its advice should be limited to thematic issues pertaining to the mandate of
the Council, namely promotion and protection of all human rights.
The advisory committee does not adopt any resolutions or decisions, but it may
propose suggestions for further enhancing its procedural efficiency, as well as
further research proposals within the scope of the work set out by the council.
The HRC complaint procedure
A complaint procedure was established by the HRC to address consistent

patterns of gross and reliably attested violations of all human rights and all
fundamental freedoms ‘occurring in any part of the world and under any cir-
cumstances’ (27). The complaint procedure is to be, inter alia, victim-oriented
and conducted in a confidential and timely manner. A complaint (a communi-
cation) related to a violation of human rights and fundamental freedoms, for
the purpose of this procedure, is admissible provided the following applies.
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It is not manifestly politically motivated, and its object is consistent with

the Charter of the United Nations, the UDHR and other applicable instru-
ments in the field of human rights law.
It gives a factual description of the alleged violations, including the rights
that are alleged to be violated.
Its language is not abusive. However, such a communication may be con-
sidered if it meets the other criteria for admissibility after deletion of the
abusive language.
It is submitted by a person or a group of persons claiming to be the victims
of violations of human rights and fundamental freedoms or by any person or
group of persons, including nongovernmental organisations (NGOs), acting
in good faith in accordance with the principles of human rights, not resort-
ing to politically motivated stands contrary to the provisions of the Charter
of the United Nations and claiming to have direct and reliable knowledge
of the violations concerned. Nonetheless, reliably attested communications
that are accompanied by clear evidence must not be inadmissible solely be-
cause the knowledge of the individual authors is second-hand.
It is not exclusively based on reports disseminated by mass media.
It does not refer to a case that appears to reveal a consistent pattern of
gross and reliably attested violations of human rights that is already being
dealt with by a special procedure, a treaty body or other UN or similar re-
gional complaint procedures in the field of human rights.
Domestic remedies have been exhausted, unless it appears that such rem-
edies would be ineffective or unreasonably prolonged.
Two working groups (the Working Group on Communications and the Work-
ing Group on Situations) have the mandate to examine the complaints and to
bring consistent patterns to the HRC’s attention. Both of them must meet at
least twice a year for a total of five working days per session, to promptly ex-
amine the communications received, including replies from States, and the sit-
uations that the Council is already aware of under the complaint procedure.
The State concerned has a duty of cooperation with the complaint procedure
and must make every effort to provide substantive replies, in one of the UN’s
official languages, to any of the requests of the working groups or HRC.
Finally, the HRC must consider consistent patterns of gross and reliably attested
violations of human rights and fundamental freedoms brought to its attention
by the Working Group on Situations, as frequently as is needed, but at least
once a year. To ensure that the complaint procedure is victim-oriented, effi-
cient and conducted promptly, the period of time between the transmission
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of the complaint to the State concerned and the consideration given by the
Council must not, in principle, exceed 24 months.
Other HRC special procedures
Finally, it should be noted that the HRC also enjoys considerable powers in re-
spect of other special procedures, principally the creation of a system of man-
dates in furtherance of monitoring either specific human rights (thematic
rapporteurs) or specific countries or areas (country rapporteurs). Special proce-
dures mandate holders of can have various titles: special rapporteur, independ-
ent expert, special representative of the Secretary-General, etc. The system of
special procedures is a central element of the UN human rights machinery and
covers all human rights: civil, cultural, economic, political and social rights. As
of 1 August 2017, there were 44 thematic and 12 country mandates (28). Among
the special rapporteurs whose activity may be especially important in the con-
text of this manual, such rapporteurs as the Special Rapporteur on the human
rights of migrants, the Special Rapporteur on contemporary forms of slav-
ery, including its causes and consequences, the Special Rapporteur on traf-
ficking in persons, especially women and children, the Special Rapporteur on
the sale and sexual exploitation of children, including child prostitution, child
pornography and other child sexual abuse material and the Special Rappor-
teur on torture and other cruel, inhuman or degrading treatment or punish-
ment could be mentioned.
1.5.2. Treaty bodies
Several treaty bodies were established under the abovementioned UN human

rights treaties. They are competent to receive and consider, in a quasi-judi-
cial manner, communications from individuals who claim to be victims of hu-
man rights violations. Each body was established by the corresponding treaty
to monitor States Parties’ compliance with their treaty obligations. The sys-
tem of individual petition is optional, and the ratification of the treaties alone
does not empower those bodies to scrutinise petitions alleging violations by
a State. States must specifically declare that they recognise the competence
of the relevant committee to receive and consider applications from individ-
uals within their jurisdiction (29). The decisions of the treaty bodies are not le-
gally binding. However, their interpretations of their respective treaties have
strong persuasive force, as they represent authoritative interpretations of le-
gally binding documents. All treaty bodies monitor their respective treaties by
way of reporting processes, and all can issue general comments. Some treaty
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bodies are empowered to receive and decide upon individual and interstate
complaints ( 30). The Human Rights Committee is a UN body of independent
experts that is tasked with monitoring the implementation of the ICCPR. Its
main tasks are outlined below.
To examine reports that States Parties are obliged to submit on a regular
basis on how rights are being implemented. The committee examines each
report and addresses its concerns and recommendations to the State Party
in the form of ‘concluding observations’.
To examine individual complaints with regard to alleged violations of the
ICCPR by States and to issue (non-binding) decisions. In addition to deal-
ing with specific cases, the committee issues general comments. General
comments analyse a specific article or general issue in the covenant in an
extended and comprehensive manner. While most general comments are
detailed interpretations of a specific covenant right, some address the cov-
enant rights of specific groups, such as migrants, while others address pro-
cedural issues, such as the preparation of reports or miscellaneous issues,
for example reservations to the Covenant. The general comments are avail-
able in the treaty bodies database of the OHCHR ( 31).
The Committee on Economic, Social and Cultural Rights (CESCR) is a UN body

of independent experts that monitors the implementation of the ICESCR by
its States Parties. All States Parties are obliged to submit regular reports to
the CESCR on how the rights are being implemented. The CESCR examines
each report and addresses its concerns and recommendations to the State
Party in the form of ‘concluding observations’. With regard to individual com-
plaints, on 10 December 2008, the General Assembly unanimously adopted
an optional protocol (GA Resolution A/RES/63/117) to the ICESCR, which pro-
vides the CESCR with the competence to receive and consider communica-
tions. The optional protocol was opened for signature at a signing ceremony
in 2009. The CESCR also publishes its interpretation of the provisions of the
Covenant, known as general comments.
The Committee against Torture is a UN body of independent experts that is

tasked with monitoring the implementation of the CAT. Its functions are sim-
ilar to those of the Human Rights Committee. In addition, it has the mandate
of examining country situations in more depth within its inquiry procedure.
Its practice, including case-law, is important for understanding what exactly
torture and other ill treatment mean.
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The Subcommittee on Prevention of Torture (SPT) was set up by the Optional

Protocol to the CAT. Its tasks are similar to those of the European Commit-
tee for the Prevention of Torture: to visit places of detention to assess how
persons deprived of their liberty are treated, to draw up reports and to make
recommendations to the States on how to improve protection against tor-
ture. Moreover, it obliges States to establish national preventive mechanisms
(NPMs). As the name suggests, they are set up at the national level and have
the same task as the SPT. In the particular field of law enforcement, the NPMs
will be the most relevant institution for monitoring.
The Committee on the Elimination of Racial Discrimination is a UN body of

independent experts that is tasked with monitoring the implementation of
the ICERD. Its functions are similar to those of the Human Rights Committee.
The Committee on the Elimination of Discrimination against Women is a UN

body of independent experts that is tasked with monitoring the implementa-
tion of CEDAW. Its functions are similar to those of the Human Rights Com-
mittee. In addition, it has the mandate of examining country situations in more
depth within its inquiry procedure.
The Committee on the Rights of the Child is a UN body of independent ex-

perts that monitors the implementation of the CRC by its States Parties. It also
monitors the implementation of two optional protocols to the convention, on
the involvement of children in armed conflicts and on the sale of children, child
prostitution and child pornography. On 19 December 2011, the UN General As-
sembly approved a third optional protocol on a communications procedure,
which will allow individual children to submit complaints regarding specific vio-
lations of their rights under the convention and its first two optional protocols.
The protocol opened for signature in 2012 and entered into force upon ratifi-
cation by 10 UN Member States. The committee also publishes its interpreta-
tion of the content of human rights provisions, known as general comments.
The Committee on the Protection of the Rights of All Migrant Workers and
Members of their Families is a UN body of independent experts that monitors
the implementation of the ICMW by its States Parties. It held its first session
in March 2004. All States Parties are obliged to submit regular reports to the
committee on how the rights are being implemented. States must report ini-
tially one year after acceding to the convention and then every five years. The
committee will examine each report and address its concerns and recom-
mendations to the State Party in the form of ‘concluding observations’. The
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committee will also, under certain circumstances, be able to consider individ-

ual complaints or communications from individuals claiming that their rights
under the convention have been violated, once 10 States Parties have accepted
this procedure in accordance with Article 77 of the convention. At the moment,
two States have accepted this procedure. The committee also publishes state-
ments on themes related to its work and interpretations of the content of the
provisions in the convention (general comments).
The Committee on the Rights of Persons with Disabilities is a UN body of inde-

pendent experts that monitors the implementation of the CRPD by its States
Parties. All States Parties are obliged to submit regular reports to the com-
mittee on how the rights are being implemented. The committee examines
each report and must make suggestions and general recommendations on the
report that it considers appropriate. It must then forward these to the State
Party concerned. The optional protocol to the convention gives the commit-
tee competence to examine individual complaints with regard to alleged vio-
lations of the convention by States Parties to the protocol.
The Committee on Enforced Disappearances is a UN body of independent ex-

perts that monitors the implementation of the CPED by its States Parties. All
States Parties are obliged to submit regular reports to the committee on how
the rights are being implemented. The committee examines each report and
must make suggestions and general recommendations on the report that it
considers appropriate. It must then forward these to the State Party concerned.
In accordance with Article 31, a State Party may, at the time of ratification of
this convention or at any time afterwards, declare that it recognises the com-
petence of the committee to receive and consider communications from or on
behalf of individuals subject to its jurisdiction claiming to be victims of a viola-
tion of the provisions of this convention by the State Party.
The Executive Committee of the Programme of the United Nations High Com-
missioner for Refugees (ExCom) is a rather special case among the other bodies
mentioned. The 1951 Geneva Convention does not provide for an international
body to supervise its implementation. Although Article 38 of this convention
provides that disputes between States Parties relating to its interpretation may
be brought before the International Court of Justice, no procedure for individual
complaints is available. However, the provisions of the 1951 convention serve,
in most countries, as the primary basis for domestic asylum and refugee law.
Consequently, despite the lack of an international body, individuals should be
able to bring their petitions to domestic courts or administrative agencies ( 32).
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Established by the United Nations Economic and Social Council in 1958, ExCom
was mandated to perform a number of executive and advisory functions, such
as approving the budget and programme of the United Nations High Commis-
sioner for Refugees (UNHCR) for the following year, reaching conclusions on
international refugee protection policy issues and providing guidance on the
UNHCR’s management, objectives and priorities ( 33). The ExCom conclusions
and recommendations regarding the protection of refugees may be generally
applicable or relevant to situations in particular countries. However, they do
not usually ‘name names’ or speak directly to specific countries or situations ( 34).
1.6. European monitoring and judicial mechanisms
There are many international institutions and courts that may consider the is-
sue of protection of fundamental rights in the EU Member States. This chapter
will cover only those that were established and function within two frame-
works: the EU and the Council of Europe.
1.6.1. The framework of the Council of Europe
European Committee for the Prevention of Torture of the Council of

Europe
The European Committee for the Prevention of Torture and Inhuman or De-
grading Treatment or Punishment (CPT) was set up by the European Conven-
tion for the Prevention of Torture and Inhuman or Degrading Treatment or
Punishment. The task of the CPT is to visit places of detention in the Council
of Europe Member States to assess how persons deprived of their liberty are
being treated. These places include prisons, juvenile detention centres, po-
lice stations, holding centres for immigration detainees, psychiatric hospitals
and social care homes. The CPT delegations have unlimited access to places
of detention and the right to move around freely inside such places without
any restriction. They interview persons deprived of their liberty in private and
communicate freely with anyone who can provide information. After its vis-
its, the CPT draws up a report on its findings and issues recommendations
to the authorities with a view to strengthening the protection of detainees
against torture and other forms of ill treatment. Its reports are published with
the consent of the State concerned. The CPT has contributed significantly to
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increasing awareness of human rights problems in places of detention and has

led to reforms in many countries.
European Commission against Racism and Intolerance
The European Commission against Racism and Intolerance (ECRI) is a human

rights body of the Council of Europe, established by a decision in 1993 and com-
posed of independent experts. The ECRI monitors problems of racism, discrimi-
nation on the grounds of ethnic origin, citizenship, colour, religion and language,
xenophobia, anti-Semitism and intolerance from the perspective of the pro-
tection of human rights. Its statutory activities are threefold:
country by country monitoring,
general policy recommendations,
information and communication activities with civil society.
The ECRI prepares reports and issues recommendations to the Member States.
The field of law enforcement has been addressed by the ECRI in the context of
country monitoring and in General Policy Recommendation No 1131.
The Commissioner for Human Rights of the Council of Europe
The European Commissioner for Human Rights is an independent institution

within the Council of Europe, mandated to promote awareness of and respect
for human rights in 47 Council Member States. The initiative for setting up the
institution was taken by the Council of Europe’s Heads of State or Government
at their second summit in Strasbourg on 10–11 October 1997. On 7 May 1999,
the Committee of Ministers adopted a resolution that instituted the Office of
the Commissioner and set out the Commissioner’s mandate. The Commis-
sioner is mandated to:
foster the effective observance of human rights and assist the Member
States in the implementation of Council of Europe human rights standards;
promote education in and awareness of human rights in Council Mem-
ber States;
identify possible shortcomings in the law and practice concerning human
rights;
facilitate the activities of national ombudsperson institutions and other hu-
man rights structures;
provide advice and information regarding the protection of human rights
across the region.
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The Commissioner’s work thus focuses on encouraging reform measures to

achieve tangible improvement in the area of human rights promotion and pro-
tection. Being a non-judicial institution, the Commissioner’s Office cannot act
upon individual complaints, but the Commissioner can draw conclusions and
take broader initiatives on the basis of reliable information regarding human
rights violations suffered by individuals. The Commissioner cooperates with a
broad range of international and national institutions, as well as human rights
monitoring mechanisms. The Office’s most important intergovernmental part-
ners include the UN and its specialised offices, the EU and the Organization for
Security and Co-operation in Europe (OSCE). The Office also cooperates closely
with leading human rights NGOs, universities and think tanks.
European Court of Human Rights
The ECtHR is tasked with supervising the implementation of the ECHR. It was
set up in 1959 (and since 1998 has operated on a full-time basis) and is located
in Strasbourg. It is the oldest and most influential international human rights
mechanism in the European context. Any person who believes that a State
Party has violated his or her human rights under the convention can lodge a
complaint with the Court. Furthermore, States can bring cases against other
States. Its decisions are binding on the State, and its case-law has influenced the
law and practice in EU Member States to a great extent. The Court has made
a significant contribution to a contemporary understanding of human rights.
The ECHR establishes an obligatory judicial system, providing for authoritative

interpretation and enabling anyone to seek redress against the alleged viola-
tion of the convention rights by the national authorities before the ECtHR ( 35).
The decisions of the ECtHR may affect situations not only when the develop-
ment takes place in the territory of an EU Member State but also when it goes
beyond that territory. For example, the ECtHR has developed extensive criteria
for limiting State discretion regarding extradition or expulsion ( 36) as well as the
practice of interception at sea and the subsequent enforced return of irregular
migrants to the country of departure outside the EU whenever the transferee
faces a real risk of torture or inhuman or degrading treatment abroad ( 37). The
consequences of human rights violations in the European human rights sys-
tem, according to the ECtHR, are outlined below.
In the event that a violation is discovered, the State concerned must be care-
ful to ensure that no such violation occurs again, otherwise the ECtHR may
deliver new judgments against them. In some cases, the State will have to
amend its legislation to bring it into line with the ECHR.
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When the Court finds against a State and observes that the applicant has
sustained damage, it awards the applicant just satisfaction, that is to say, it
awards the latter a sum of money by way of compensation for that damage.
The Committee of Ministers ensures that any sum awarded by the Court is
actually paid to the applicant.
In addition, the so-called ‘Dialogue Protocol’ (Protocol 16 to the ECHR), en-
tered into force on 1 August 2018. In accordance with this Treaty, upon request
of the highest courts and tribunals of the States Parties to the convention,
the Court may give advisory opinions on questions of principle relating to
the interpretation or application of the rights and freedoms defined in the
ECHR or its protocols. The national courts may seek an advisory (non-bind-
ing) opinion in the context of the cases pending before them, thus giving
them an opportunity to clarify the human rights-related issues before is-
suing their own decisions. However, it should be noted that this Treaty has
not yet been ratified by all EU Member States, and so not all the national
courts will be able to ask for such advisory opinions.
1.6.2. The framework of the European Union
The CJEU has been placed at the heart of the architecture on fundamental
rights in EU law and can be regarded as one of its principal guarantors. The
Treaty on the Functioning of the European Union (TFEU) grants full judicial re-
view capacities to the CJEU in the particularly fundamental rights-sensitive ar-
eas of migration, border control and asylum ( 38). It should be emphasised that
Article 47 of the EU Charter of Fundamental Rights confers the right to an ef-
fective remedy to everyone whose rights and freedoms guaranteed by EU law
might have been violated by executive power ( 39). The most common types of
cases that the CJEU deals with are outlined below (40).
Interpreting the law (preliminary rulings). National courts of EU Member
States are required to ensure EU law is properly applied, but courts in dif-
ferent countries might interpret it differently. If a national court is in doubt
about the interpretation or validity of an EU law, it can ask the Court for
clarification. The same mechanism can be used to determine whether a na-
tional law or practice is compatible with EU law.
Enforcing the law (infringement proceedings). This type of case is taken
against a national government for failing to comply with EU law. It can be
started by the European Commission or another EU Member State. If the
country is found to be at fault, it must put things right at once or risk a sec-
ond case being brought against it, which may result in a fine.
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Annulling EU legal acts (actions for annulment). If an EU act is believed to

violate EU treaties or fundamental rights, the Court can be asked by the
government of an EU Member State, the Council of the EU, the European
Commission or (in some cases) the European Parliament to annul it. Pri-
vate individuals can also ask the Court to annul an EU act that directly con-
cerns them.
Ensuring the EU takes action (actions for failure to act). The Parliament,
Council and Commission must make certain decisions under certain cir-
cumstances. If they do not, EU governments, other EU institutions or (un-
der certain conditions) individuals or companies can complain to the Court.
Sanctioning EU institutions (actions for damages). Any person or company
who has had their interests harmed as a result of action or inaction of the
EU or its staff can take action against them through the Court.
In references for preliminary rulings, the CJEU can also make use of the so-
called ‘expedited procedures’ and, in particular, of the urgent preliminary ruling
procedure in the areas of migration, border controls and asylum (in the case of
Kadzoev, C-357/09, for example, the CJEU specified the conditions for the de-
tention of irregularly staying third-country nationals in the scope of the Re-
turn Directive (2008/115/EC)) (41).
At present, there are already tens of cases in which the CJEU has decided on
the interpretation of the Schengen Borders Code Regulation, Regulation (EU)
No 604/2013 of the European Parliament and of the Council of 26 June 2013
establishing the criteria and mechanisms for determining the Member State
responsible for examining an application for international protection lodged
in one of the Member States by a third-country national or a stateless person
(Dublin III Regulation) and other EU legal acts in the abovementioned areas.
While many of those CJEU judgments are not directly linked to the interpre-
tation of the fundamental rights, overall knowledge of the CJEU case-law is
very useful for border authorities.
The results of the CJEU judicial activity in the area of border control may, in
some cases, lead to changes in the national legislation of EU Member States
on border control-related issues or in how national border authorities’ inter-
pret and apply the Schengen Borders Code Regulation in practice. For example,
in its judgment of 21 June 2017 in the case of A, C9/16, the CJEU indicated that
the TFEU and the Schengen Borders Code Regulation must be interpreted as:
precluding national legislation that confers on the police authorities of the
Member State in question the power to check the identity of any person
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within an area of 30 kilometres from that Member State’s land border with
other States Parties to the Schengen Convention, with a view to prevent-
ing or terminating unlawful entry into or residence in the territory of that
Member State or preventing certain criminal offences that undermine the
security of the border, irrespective of the behaviour of the person concerned
and the existence of specific circumstances, unless that legislation lays down
the necessary framework for that power, ensuring that the practical exer-
cise of it cannot have an effect equivalent to that of border checks, which
is for the referring court to verify;
not precluding national legislation that permits the police authorities of
the Member State in question to carry out identity or border crossing doc-
ument checks on any person on board trains and on the premises of the
railways of that Member State and briefly to stop and question any person
for that purpose if those checks are based on knowledge of the situation
or border police experience and provided that the exercise of those checks
is subject under national law to detailed rules and limitations determining
the intensity, frequency and selectivity of the checks, which is for the re-
ferring court to verify (42).
1.7. National monitoring mechanisms

Any proceedings regarding breaches of human rights that take place in the do-
mestic or international courts may result in not only high financial costs for the
State (i.e. the taxpayers) but also a moral and reputational cost, which preju-
dices the standing of the said State in the regional and international fora. It is
also important to emphasise that the ECHR, the ICCPR and, less commonly,
the ICESCR may have a direct effect in national legal systems through national
constitutions and State obligations under the international and regional law
(Council of Europe, EU) recognised by them. While each EU Member State es-
tablished its original human rights protection system, which evolved from and
is part of its political, cultural and historical context, an effective national hu-
man rights protection system consists of four universal fundamental elements.
Normative standards, domestic laws and regulations that reflect/imple-
ment international human rights obligations of the States.
National policies and procedures aimed at protecting or promoting hu-
man rights, ensuring accountability and upholding the principle of
non-discrimination.
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Institutions that contribute to the promotion and protection of human

rights, guarantee oversight and ensure accountability. These include bod-
ies such as the NHRIs (in the form of human rights commissions, special-
ised institutions or ombudspersons) and the judiciary and law enforcement
authorities, including the police and border guard services.
A civil society that is able to contribute freely to the promotion and protec-
tion of human rights in society (43).
In some circumstances, border control and return operations entail the adop-
tion of actions or decisions that are particularly sensitive from a human rights
perspective (44). Border guards are actors in human rights protection in that
they represent the State in all its effects and also bear some of the responsi-
bility for its human rights obligations. Similar to the police, the border guard
officials are given the power to use force and, when necessary, enforce the
laws in exercising their mandate to protect the borders and, where appli-
cable, to fight cross-border crimes and terrorism. At the same time, human
rights place essential restrictions on the actions of border guards and the use
of force, strictly binding them to the principles of legality, proportionality and
necessity (45). While exercising their tasks, border guard officials must not only
respect human rights but also actively protect them, for example, by follow-
ing the principle of non-refoulement in a case where a person applies for in-
ternational protection.
1.7.1. National human rights institutions
Among the abovementioned actors, NHRIs play an essential role in the human
rights architecture at the national level by monitoring compliance, conduct-
ing research, initiating preventive measures and awareness-raising. NHRIs also
operate as hubs within countries by linking actors, for example by linking gov-
ernment agencies with civil society. By making these connections, NHRIs con-
tribute to narrowing the ‘implementation gap’ between international standards
and concrete measures. They also help to ensure that both the indivisibility
and the interdependence of the full spectrum of human rights are respected.
1.7.2. Civil society organisations
Civil society organisations and international, regional and national human rights
NGOs play a fundamental role in protecting and promoting human rights, in
particular by monitoring and reporting human rights violations, contribut-
ing to awareness and the accountability of relevant public bodies, including
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border guard services and reform processes, and providing assistance to vic-
tims of human rights violations.
1.8. International protection of migrants in today’s

context
Migration itself is a natural part of human existence; it is neither a crime nor a

problem (46). On 19 September 2016, the UN General Assembly in its New York
Declaration for Refugees and Migrants summed up the global phenomenon
of migration by emphasising that:
since earliest times, humanity has been on the move. Some people move
in search of new economic opportunities and horizons. Others move to
escape armed conflict, poverty, food insecurity, persecution, terrorism, or
human rights violations and abuses. Still others do so in response to the
adverse effects of climate change, natural disasters (some of which may
be linked to climate change), or other environmental factors. Many move,
indeed, for a combination of these reasons.
It continued by stating that:
we are witnessing in today’s world an unprecedented level of human mo-

bility. More people than ever before live in a country other than the one in
which they were born. Migrants are present in all countries in the world.
Most of them move without incident. In 2015, their number surpassed
244 million, growing at a rate faster than the world’s population. How-
ever, there are roughly 65 million forcibly displaced persons, including over
21 million refugees, 3 million asylum seekers and over 40 million internally
displaced persons (47).
Internally displaced persons have been forced to move as a result of persecu-

tion, conflict, violence or human rights violations (48). According to the United
Nations Department of Economic and Social Affairs, Population Division, in
2017, the migrant population worldwide peaked at 257.7 million. Asia and Eu-
rope combined hosted over 60 % of all international migrants worldwide dur-
ing that year, with nearly 80 million international migrants living in Asia and
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78 million in Europe (more than six of every ten international migrants reside
in Asia or Europe — 80 and 78 million, respectively), while North America hosts
the third largest number (58 million), followed by Africa (25 million), Latin Amer-
ica and the Caribbean (9.5 million) and Oceania (8.4 million) (49).
As noted by the OSCE,
widespread unemployment and a lack of viable economic opportunities

leave countless numbers of people without jobs or sustainable livelihoods.
At the same time, a growing demand for cheap labour, combined with of-
ten pervasive corrupt practices, has led to an increasing tolerance towards
the exploitation of economically vulnerable people in dangerous and de-
grading work in the OSCE region. This demand, against the backdrop of the
evolving crises, actually contributes to migration flows, thereby heighten-
ing the vulnerability of the affected populations, providing new, lucrative
opportunities for criminal networks and ensuring and ensuring an unbro-
ken cycle of exploitation (50).
In 2015, the number of people applying for asylum in the EU peaked at 1.26 mil-
lion, while the total for 2015 and 2016 combined was more than 2.5 million
people. Authorities in the Member States issued 593 000 first instance asy-
lum decisions in 2015 — over half of them positive. Most people who applied
for protection at the height of the refugee crisis in 2015 had to wait until 2016
to receive their ruling. That year, 1.1 million asylum decisions were made. Of
these decisions, 61 % were positive, with one third of applicants granted refu-
gee status, the highest level of international protection (51).
In 2016, 388 000 people were denied entry at the EU’s external borders. Ac-
cording to Frontex data, more than 2.3 million irregular crossings of the EU’s
external borders were registered by national authorities in 2015 and 2016 (52).
In such circumstances, it is also crucial to recognise that, while human smug-
gling and trafficking in human beings are distinct concepts, they overlap sig-
nificantly in practice. When refugees and migrants are forced to use smugglers
to take irregular, covert and more expensive routes to reach their destinations,
they are simultaneously exposed to higher risks of exploitation, which can re-
sult in situations of trafficking (53).
At the same time, according to the estimates of the International Organiza-

tion for Migration (IOM), on the Central Mediterranean route alone, which is
considered to be the deadliest migration route in the world, more than 14 500
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deaths were recorded between January 2014 and July 2017. During 2017, 1 in 36

migrants attempting to cross the Central Mediterranean route perished. This
is a significant increase compared with 2016, when 1 in 88 was reported miss-
ing or dead (54).
The UNHCR collected evidence that demonstrated that, among the incom-
ing flow of migrants and refugees, some were stateless. As such, they should
be identified and protected. Currently, most migrants/refugees originate from
countries with known stateless populations (Syria, Iraq, Kuwait, Eritrea, Af-
ghanistan, etc.). In addition, the influx includes Palestinians, who are recorded
as stateless in some EU Member States. The UNHCR estimates that there are
over half a million stateless persons in Europe, including a large group made
up of migrants originating from both European and non-European countries.
1.8.2. Causes and actual impact
Migration can be both a cause and a consequence of statelessness. Migra-

tion poses a risk of statelessness when migrants rupture their link with their
countries of origin. This is often the case for migrants who are stranded in Eu-
rope or who have been stranded elsewhere before entering Europe. It can be
a factual and practical rupture in which people lose all records and evidence
of their nationality, that is, their legal link with their country of origin. Alter-
natively, it can be a rupture by virtue of the law of the country of origin when
it provides for the withdrawal of nationality on account of residence abroad.
Statelessness can also be a factor in migration. Because stateless persons are
often deprived of fundamental human rights and marginalised in their coun-
try of origin, they may search for new opportunities elsewhere.
According to the European Commission, the number of children in migration

arriving in the EU has also increased dramatically over the last few years; many
of these children were unaccompanied. In 2015 and 2016, around 30 % of asy-
lum applicants in the EU were children, and there has been a six-fold increase
in the total number of child asylum applicants in the last six years (55). Based
on data from the UNHCR, the United Nations Children’s Fund (Unicef) and the
IOM, over a ﬁfth of nearly 800 000 children who applied for asylum in Europe
in 2015 and 2016 were considered unaccompanied (56).
Whatever the reasons may be for an individual, a family or group of people to

migrate, they all share, to some extent, the same experience of embarking on
an unfamiliar and at times dangerous journey. Adults and children, men and
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women, may be asylum seekers, victims of trafficking or undocumented mi-

grants, or they may even fall into all of these categories at the same time. The
immigration status of people on the move may also differ at various stages of
their journey through various countries. Such migrants may encounter many
different situations of vulnerability (57). In addition, as a result of gender norms,
roles and relations, men and women are exposed to different types of risk and
vulnerability during forced migration. As a result of their status in society and
sex, women and girls are particularly vulnerable to discrimination and sexual
and gender-based violence — which may in itself be grounds for flight — and
have other specific protection risks (58). Undocumented migrants have limited
access to their rights, are vulnerable to abuse and slavery and are always on
the move for fear of detection. In many cases, people can be so reluctant to
be sent back, because of a well-founded fear of persecution or risk of harm in
returning to their place of origin, that they will risk their lives and undergo se-
vere adversity rather than face return to their country of origin.
Motivations can change as migratory journeys progress, and refugees and

migrants can fall in and out of a range of legal categories as they move from
their country of origin to the country of destination, passing through one or
more transit countries, and even as they return once more to their own coun-
try. States, on the other hand, have a vested interest in controlling migration.
According to the International Commission of Jurists (ICJ), migration is a highly

charged and contested political issue in most destination States. Control of na-
tional borders is seen as an essential aspect of the sovereign State. National
political debates on migration or migrants can be a flashpoint for political and
social anxieties about security, national identity, social change and economic
uncertainty. These political battles are also manifested in national law, which
may create a framework within which migrants’ human rights are threatened.
States adopt increasingly restrictive rules, often fuelled by popular hostility to
immigrants. Such policies and laws restricting legal migration often have the
effect of increasing the proportion of undocumented migrants, whose vulnera-
bility to exploitation and abuse is acute. There are therefore essential interests
at stake for both the individual and the State (59). The Global Migration Group
has stated that the UDHR begins with a recognition of the ‘inherent dignity
and of the equal and inalienable rights of all members of the human family’.
Human rights law thus provides that, in general, all persons, without discrim-
ination, must have access to all fundamental human rights with narrow limi-
tations related to political rights and freedom of movement. States are further
obliged to ensure that, for a legitimate objective, any differential treatment
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between citizens and non-citizens or among different groups of non-citizens

is undertaken in a non-discriminatory manner and that the course of action
taken to achieve this objective is proportionate and reasonable (60).
1.9. Fundamental rights and entitlements of border

guards
1.9.1. Rights of border guards
Any citizen may join the border guard or police service if he or she complies
with the relevant conditions. They must receive thorough training through-
out their careers, as well as appropriate instruction on social issues, funda-
mental freedoms, human rights and, in particular, the ECHR and the Charter
of Fundamental Rights of the EU. The professional, psychological and material
conditions under which border guards perform their duties must aim at pro-
tecting their integrity, impartiality and dignity. This chapter will briefly cover
some of the human rights issues that may be particularly relevant to border
guards. There are numerous documents (e.g. the Frontex Code of Conduct for
All Participants in Frontex Activities (the Frontex Code of Conduct), the Euro-
pean Code of Police Ethics, etc.) that cover, to a great extent, the explanation
of the exercise of human rights by the border guards. Border guards are enti-
tled to work in an environment that enables them to respect and enjoy their
human rights and the professional standards associated with their position.
As a rule, they must enjoy the same civil and political rights as other citizens.
Restrictions to these rights may only be made where necessary for the exer-
cise of their functions, in accordance with the law, and they must be propor-
tional and necessary (61). In general, the border guard personnel should have
the right to organise or to participate in representative organisations, to re-
ceive an appropriate remuneration and social security and to be provided with
special health and security measures, taking into account the particular char-
acter of their work (62). Examples of the human rights that may be particularly
relevant to border guards include (63):
right to life (e.g. the right of the officers to be protected in dangerous sit-
uations, etc.);
freedom of assembly and association;
right to an effective remedy;
right to a fair trial;
right to fair and just working conditions.
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Right to life
Sometimes, in the course of their duties, the physical and mental well-being of
border guard personnel may be endangered. In particular, border guards may
be at serious risk of a physical threat when carrying out border surveillance
at unauthorised crossing points. For example, they may be heavily outnum-
bered by people attempting to cross illegally, or people may be armed and may
forcibly resist being conveyed to a particular border point. In such cases, bor-
der guards should not be required to confront these persons until assistance
is provided. At the same time, border guards should be permitted to use force
to defend themselves, when necessary, with proportionate force and equip-
ment. Such use of force should be proportionate, authorised under national
law and sufficiently regulated by it, providing a system of adequate and effec-
tive safeguards against arbitrariness and possible abuse of force.
Right to fair and just working conditions
Border guards are entitled to fair remuneration, and particular factors are to
be taken into account, such as higher risks, responsibilities and particularly ir-
regular working schedules.
Freedom of association
They should have the choice of whether to set up, join and play an active part
in professional organisations. They may also play an active role in other or-
ganisations. Some international treaties, such as the ICCPR and the ECHR, ex-
pressly recognise the possibility of imposing certain restrictions on the exercise
of the right to freedom of association by some public officials, including mem-
bers of the police and armed forces (64). A trade union or similar representative
of border guard personnel may take part in negotiations concerning the pro-
fessional status, rights and guarantees of the officers and the terms of their
employment in line with the relevant national legislation (65).
Right to an effective remedy and a fair trial
Border guards have the right to a fair hearing if complaints are raised against
them. If he or she has been charged, the border guard must be presumed in-
nocent until proved guilty according to law. With their rights and freedoms,
they also have the right to an effective remedy before a tribunal. In addition,
the border guards should also be able to make substantiated complaints about
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the behaviour of colleagues to the proper authorities without fear of this prej-
udicing their career prospects.
Other fundamental rights, which are to be considered in the context of the

border guard personnel, include (but not limited to):
freedom from discrimination, including equal pay for men and women, is-
sues of dismissal practices and prevention and combating of harassment;
social securitfy;
right to privacy, including data protection;
freedom of expression.
1.9.2. The complexity of working in border control areas
As with anyone working in complex environments, including working with per-

sons in distress, the challenges that surround the work of border officials can
have an impact on their health and psychological well-being. In turn, this can
affect the effectiveness and quality of their work. In the discharge of their du-
ties, border officials can experience varied emotions, such as compassion for,
indifference to and feelings of rejection towards the individuals they deal with
on a daily basis. At the end of the day, this will also have an impact on their abil-
ity to respond objectively and empathetically to the different situations they
encounter at the border and take appropriate action. Extensive research on
the work of institutions dealing with victims of trauma or human rights vio-
lations, as well as more generally with people in need, has shown the kind of
psychological strain that such kind of work can place on staff, particularly those
working on the ground and in daily or regular contact with people in need. In-
dividuals working for border control agencies are no exception to this rule (66).
The demanding complexity of the work and the frequent encounters with peo-
ple who are traumatised, scared or exhibit mental or physical distress, in ad-
dition to hearing their stories, can lead to developing vicarious or secondary
trauma. It is essential that such individuals are able to identify the symptoms
of secondary trauma that they may develop, so they can act upon them. Some
of the symptoms of secondary trauma are:
intrusive thoughts
chronic fatigue
sadness
anger
poor concentration
detachment
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emotional exhaustion
fearfulness
shame
physical illness
absenteeism.
Professionals studying and working with secondary traumas concur that it is

essential that individuals working with victims of trauma are able to acknowl-
edge the existence of symptoms associated with secondary trauma and that
they do not need to deal with them alone. Secondary trauma is relatively com-
mon, and employers and colleagues can assist in overcoming the symptoms.
Access to counselling should be readily available, protected by confidential-
ity and accessible.
1.9.3. Professional standards and fundamental rights
The nature of the work of border guards and police requires them to come
into close contact with the public. The efficacy and efficiency of their tasks
dependent on public support. Public confidence in the work of those agencies
managing the borders is intrinsically linked to the attitudes and behaviours
that officers display towards the public, in particular their respect for human
dignity, fundamental rights and freedoms of any individual or group crossing
the border, be it at sea, land or air. Violations of fundamental or human rights
that occur as a result of both action or omission (not acting to protect or pre-
vent a violation), irrespective of the cause, are unacceptable. The complexity
and difficulties encountered by border guards demand that they should be fa-
miliar with not only the law (including human rights) but also ethical issues,
cultural diversity, age and gender perspectives. Each border guard integrates
ethical concerns and practices into all of his or her functions, including his or
her own values and conduct. The effects of violations perpetrated by border
guards could have multiple consequences:
erosion of public trust;
aggravation of unrest;
hindering successful prosecution in courts (i.e. in instances of human
trafficking);
making the State liable to pay reparations to victims;
leaving vulnerable individuals in need of protection without justice;
causing national, international public and media criticism and condemnation.
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To dispel old myths that law enforcement is weakened by human rights and
the ethical issues that emerge from them, the UN’s Code of Conduct for Law
Enforcement Officials, the Council of Europe’s European Code of Police Ethics
and Ethics of Border Security, commissioned by Frontex, among other related
codes of conduct, have been written to provide a framework for border offi-
cials to act ethically and in full conformity with fundamental rights. A code of
conduct ensures high professional and personal standards through the iden-
tification and understanding of ethical questions and the appropriate way to
address those questions. In this regard, the Frontex Code of Conduct — an eth-
ical code of conduct for border guards in general — makes clear the values and
standards that are required from all participants in an activity coordinated or
led by Frontex and thus creates the framework under which their duties are
performed. It should be emphasised that, with this document, Frontex fills a
current gap in the legal system, as a comparative study commissioned by Fron-
tex on existing law enforcement ethical codes of the EU Member States has
shown that, while many EU Member States have codes of conduct that are
used by border guards (23 of the EU and Schengen-associated countries), only
three have been explicitly written for border guards. The vast majority were
written for police or other services performing border management functions
in the Member States concerned.
The Frontex Code of Conduct aims to promote professional values based on

the principles of the rule of law and respect for fundamental rights, and to es-
tablish the ethical behaviour standards that guide all persons participating in
Frontex activities.
As regards its content, the Frontex Code of Conduct lists the principles and
values that guide the performance of their duties and personal behaviour, rec-
ommends best practice and defines conduct that is forbidden. Recognising
the need to uphold a proper balance between the efficiency of border control
and respect for fundamental rights, the code establishes, along with lawful-
ness, respect for — and furthermore the promotion of — fundamental rights
as one of its main principles.
According to this provision, under no circumstances can it be admissible for

the participants to inflict, instigate or tolerate any form of violation of those
rights. It implies that they should do their utmost to hinder any severe offence
against human dignity. A final set of rules envisages that law enforcement of-
ficers, because of their particular functions, focus on human behaviour in ways
that may touch upon the fundamental rights of citizens. The EU Charter of
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Fundamental Rights was the basic framework used for drafting the code. More-
over, other international texts that are particularly applicable to law enforce-
ment officials in the international context, such as the UN’s Code of Conduct
for Law Enforcement Officials and Resolution 690 (1979) of the Parliamen-
tary Assembly of the Council of Europe on the Declaration on the Police, have
been not only considered in depth but also influential sources for drafting the
code. Furthermore, and as mentioned above, a comparison of national codes
of conduct was carried out and the results of the study have been taken into
account while drafting the code.
1.10. Fundamental rights closely connected to border

tasks
1.10.1. Right to life
Article 3 of the UDHR: Everyone has the right to life, liberty and secu-
rity of person.
Article 6 of the ICCPR: Every human being has the inherent right to life.
This right shall be protected by law. No one shall be arbitrarily deprived of
his life. In countries which have not abolished the death penalty, sentence
of death may be imposed only for the most serious crimes in accordance
with the law in force at the time of the commission of the crime and not
contrary to the provisions of the present Covenant and to the Convention
on the Prevention and Punishment of the Crime of Genocide. This pen-
alty can only be carried out pursuant to a final judgment rendered by a
competent court. When deprivation of life constitutes the crime of geno-
cide, it is understood that nothing in this article shall authorize any State
Party to the present Covenant to derogate in any way from any obliga-
tion assumed under the provisions of the Convention on the Prevention
and Punishment of the Crime of Genocide. Anyone sentenced to death
shall have the right to seek pardon or commutation of the sentence. Am-
nesty, pardon or commutation of the sentence of death may be granted
in all cases. Sentence of death shall not be imposed for crimes commit-
ted by persons below eighteen years of age and shall not be carried out
on pregnant women. Nothing in this article shall be invoked to delay or
to prevent the abolition of capital punishment by any State Party to the
present Covenant.
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Article 2 of the ECHR: Everyone’s right to life shall be protected by law.

No one shall be deprived of his life intentionally save in the execution of a
sentence of a court following his conviction of a crime for which this pen-
alty is provided by law. Deprivation of life shall not be regarded as inflicted
in contravention of this Article when it results from the use of force which
is no more than absolutely necessary: in defence of any person from un-
lawful violence, in order to effect a lawful arrest or to prevent the escape
of a person lawfully detained, in action lawfully taken for the purpose of
quelling a riot or insurrection.
Article 2(1) of the Charter of Fundamental Rights of the European Un-

ion: Everyone has the right to life.
Men, women and children around the world often risk their lives trying to cross
borders. They do so to seek international protection against persecution or
other threats to their life, liberty or security, or work, better living conditions
and educational opportunities. Regardless of whether the individual at risk at
the border is a person who is in need of international protection or an irregu-
lar migrant, the protection of the person’s life must remain the top priority of
the border and coast guard authorities.
The issues of search and rescue at sea go well beyond the protection of fun-
damental rights, as the rights and obligations of the States are stipulated in
international maritime law and numerous national acts. The general field of
search and rescue includes many speciality sub-fields, typically determined by
the type of terrain over which the search is conducted. Search and rescue ser-
vices throughout the world depend on ships — merchant vessels for the most
part — to assist persons in distress at sea. Nowadays, distress signals can be
rapidly transmitted by satellite and terrestrial communication techniques to
both search and rescue authorities ashore and ships in the immediate vicinity,
enabling a swift and coordinated rescue operation.
Several international law instruments spell out the obligations of States to

rescue people in distress at sea, in particular the 1982 UN Convention on the
Law of the Sea (UNCLOS), the 1974 International Convention for the Safety of
Life at Sea (SOLAS), the 1989 International Convention on Maritime Search
and Rescue (SAR) and the International Convention on Salvage. For example,
Article 98 of UNCLOS specifies that the coastal States have an obligation to
promote the establishment, operation and maintenance of an adequate and
effective search and rescue service regarding safety on and over the sea and,
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where circumstances so require, cooperate with neighbouring States for this

purpose by way of mutual regional arrangements.
According to international law, rescue is an operation to retrieve persons in

distress, provide for their initial medical needs or other needs and deliver them
to a place of safety (67). States are obliged to cooperate in rescue situations and
ensure that the individuals rescued at sea can be disembarked in a safe place.
States must also ensure that assistance is provided to any person in distress
at sea, regardless of their nationality or status or the circumstances in which
the person is found. In this regard, the International Maritime Organization
(IMO) has provided guidance on such issues, for example Principles Relating to
Administrative Procedures for Disembarking Persons Rescued at Sea (68) and
Guidelines on the Treatment of Persons Rescued at Sea (69).
Many UNHCR documents also cover the situation of persons in need of pro-
tection and refugees at sea, including the IMO-UNHCR Rescue at Sea: A Guide
to Principles and Practice as Applied to Refugees and Migrants (70).
In the border control context, it should be noted that recital 47 of the European
Border and Coast Guard Regulation specifies that Frontex and the national au-
thorities of EU Member States that are responsible for border management,
including coast guards to the extent that they carry out border control tasks,
should fulfil their tasks in full respect for fundamental rights, including UNC-
LOS, SOLAS and SAR. In accordance with EU law and these international instru-
ments, the Agency should assist EU Member States in conducting search and
rescue operations to protect and save lives whenever and wherever required.
In addition, recital 45 of this regulation emphasises that the regulation does

not affect the division of competence between the EU and the Member States
under the EU founding treaties or the obligations of Member States under in-
ternational conventions, such as UNCLOS, SOLAS, SAR, the International Con-
vention for the Prevention of Pollution from Ships, the International Convention
on Standards of Training, Certification and Watch-keeping for Seafarers, and
other relevant international maritime instruments. Recital 25 of Regulation
(EU) No 1052/2013 of the European Parliament and of the Council of 22 Oc-
tober 2013 establishing the European Border Surveillance System (Eurosur
Regulation) also contains a similar provision. In addition to international law,
domestic laws have been adopted, and measures have been taken in the EU
to increase search and rescue capacities of EU Member States and to reduce
the number of deaths of people at sea.
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Protecting and saving more lives is among the primary objectives of the Eu-
rosur Regulation, which establishes the European Border Surveillance System
(Eurosur). Article 2 of the Eurosur Regulation stipulates that it must apply to
the surveillance of external land and sea borders, including the aim of ensur-
ing the protection of migrants and saving their lives. In addition, it states that
the EU Member States and the Agency must comply with fundamental rights,
in particular the principles of non-refoulement and respect for human dignity
and data protection requirements, when applying this regulation. They must
give priority to the special needs of children, unaccompanied minors, victims
of human trafficking, persons in need of urgent medical assistance, persons in
need of international protection, persons in distress at sea and other persons
in a particularly vulnerable situation.
1.10.2. Rights to human dignity
Article 1 of the UDHR: All human beings are born free and equal in dig-
nity and rights. They are endowed with reason and conscience and should
act towards one another in a spirit of brotherhood.
Article 1 of the EU Charter of Fundamental Rights: Human dignity is in-

violable. It must be respected and protected.
Every person possesses human dignity, which is inherent and inalienable. The
basis of human rights is often referred to as ‘inherent human dignity’. This
human dignity is preserved and enhanced by the setting of international hu-
man rights standards that limit States from committing acts or failing to act
in such a way as to violate human dignity (71). The concept of human dignity
can be considered as the cornerstone of human rights, and thus references to
dignity can be found in all major international human rights treaties, both in
the preambles to and/or in the texts of articles, such as (the list below is by
no means exhaustive) (72):
The International Covenant on Economic, Social and Cultural Rights (ICE-
SCR) (1966),
The International Covenant on Civil and Political Rights (ICCPR);
The International Convention on the Elimination of All Forms of Racial Dis-
crimination (1965) (ICERD);
The UN Convention on the Elimination of All Forms of Discrimination against
Women (1979) (CEDAW),
The UN Convention against Torture and Other Cruel, Inhuman or Degrad-
ing Treatment or Punishment (1984) (CAT);
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The UN Convention on the Rights of the Child (1989) (CRC);

The International Convention on the Protection of the Rights of All Migrant
Workers and Members of Their Families (1990) (ICMW);
The International Convention for the Protection of All Persons from En-
forced Disappearance (2006) (CPED);
The UN Convention on the Rights of Persons with Disabilities (2006) (CRPD).
Article 7(1) of the Schengen Borders Code Regulation specifically addresses the

issues of safeguarding this right, emphasising that border guards must, in the
performance of their duties, fully respect human dignity, particularly in cases
involving vulnerable persons. Any measures taken in the performance of their
duties must be proportionate to the objectives pursued by such measures. In
practice, there can be numerous situations when human dignity may be po-
tentially affected in the course of border control procedures (73). Negative ex-
amples may include the treatment of returnees by border guards during return
procedures or the manner in which travellers are asked questions by border
guards at the border control points. In the latter case, it should be emphasised
that Chapter 1.3 of the Practical Handbook for Border Guards (the Schengen
Handbook) (74) stipulates that:
border guards should not interrogate the traveller as a potential criminal
or irregular immigrant;
questions should be asked with particular sensitivity when addressed to chil-
dren, victims of trafficking or other people who may have been exploited or
who are otherwise vulnerable to exploitation, including irregular immigrants;
questions posed by the traveller should not be considered by the border guards
as intrusive or as suspicious and should be answered factually and politely.
1.10.3. Prohibition of torture and inhuman or degrading treatment or

punishment
Article 5 of the UDHR: No one shall be subjected to torture or to cruel,

inhuman or degrading treatment or punishment
Article 3 of the ECHR: No one shall be subjected to torture or to inhuman

or degrading treatment or punishment.
Article 7 of the ICCPR: No one shall be subjected to torture or to cruel, in-

human or degrading treatment or punishment. In particular, no one shall be
subjected without his free consent to medical or scientific experimentation.
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Articles 3 and 4 of the CAT: No State Party shall expel, return (‘refouler’)
or extradite a person to another State where there are substantial grounds
for believing that he would be in danger of being subjected to torture. For
the purpose of determining whether there are such grounds, the compe-
tent authorities shall take into account all relevant considerations includ-
ing, where applicable, the existence in the State concerned of a consistent
pattern of gross, flagrant or mass violations of human rights. Each State
Party shall ensure that all acts of torture are offences under its criminal
law. The same shall apply to an attempt to commit torture and to an act
by any person which constitutes complicity or participation in torture. 2.
Each State Party shall make these offences punishable by appropriate pen-
alties which take into account their grave nature.
Article 4 of the Charter of Fundamental Rights of the EU: No one shall be

subjected to torture or to inhuman or degrading treatment or punishment.
Article 1(1) of the CAT defines the term ‘torture’ as:
any act by which severe pain or suffering, whether physical or mental, is

intentionally inflicted on a person for such purposes as obtaining from him
or a third person information or a confession, punishing him for an act he
or a third person has committed or is suspected of having committed, or
intimidating or coercing him or a third person, or for any reason based on
discrimination of any kind, when such pain or suffering is inflicted by or at
the instigation of or with the consent or acquiescence of a public official
or other person acting in an official capacity. It does not include pain or
suffering arising only from, inherent in or incidental to lawful sanctions.
Article 3 of the ECHR does not provide for any definition of torture or inhu-
man or degrading treatment or punishment. Nevertheless, guidance on these
issues can be found in ECtHR case-law.
Firstly, it should be noted that Article 3 of the ECHR makes no provision for ex-
ceptions from the above-mentioned prohibition and no derogation from it is
permissible under Article 15(2), even in the event of a public emergency threat-
ening the life of the nation (e.g. Selmouni v France) (75). The Court has confirmed
that even in the most challenging circumstances, such as the fight against ter-
rorism and organised crime, the ECHR prohibits, in absolute terms, torture and
inhuman or degrading treatment or punishment, irrespective of the conduct
of the person concerned (e.g. Chahal v the United Kingdom). The nature of the
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offence allegedly committed by the applicant is therefore irrelevant for the

purposes of Article 3 (e.g. Saadi v Italy (76)).
Secondly, in order for ill treatment to fall within the scope of Article 3 of the
ECHR, it must attain a minimum level of severity. The assessment of this min-
imum level depends on all the circumstances of the case, such as:
the duration of the treatment;
its physical or mental effects;
in some cases, the sex, age and state of health of the victim (e.g. in Jalloh
v Germany (77));
the purpose for which the treatment was inflicted, together with the in-
tention or motivation behind it (e.g. in Krastanov v Bulgaria (78));
its context, such as an atmosphere of heightened tension and emotions
(Selmouni v France).
The ECHR recognises treatment as ‘degrading’ when it is such that arouses in

its victims feelings of fear, anguish and inferiority capable of humiliating and
debasing them and possibly breaking their physical or moral resistance or that
drives the victim to act against his or her will or conscience (e.g. Keenan v the
United Kingdom (79)). In determining whether a particular form of ill treatment
should be classified as torture, consideration must be given to the distinction,
embodied in Article 3, between this notion and that of inhuman or degrading
treatment. The ECtHR in its case-law emphasises that it appeared that it was
the intention that the convention should, by means of such a distinction, at-
tach a particular stigma to deliberate inhuman treatment causing very seri-
ous and cruel suffering (e.g. in Ireland v the United Kingdom (80)). The ECtHR has
concluded that, even in the case of Gäfgen v Germany where the threat of tor-
ture was used by police officers in an attempt to save a life of another person,
such action can also be considered torture (81).
Finally, the Court has concluded that, in addition to the severity of the treat-
ment, there is a purposive element to torture, as recognised in the CAT, Ar-
ticle 1 of which defines torture in terms of the intentional infliction of severe
pain or suffering with the aim of obtaining information, inflicting punishment
or intimidating.
The absolute prohibition of torture or inhuman or degrading treatment or

punishment also applies to cases of expulsion if substantial grounds have been
shown that a returnee would face a risk of being tortured or subjected to ill
treatment in the country they are returning to (please also see, in this regard,
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the sub-section on the principle of non-refoulement). Public authorities are

also obliged to take steps to prevent torture and ill treatment. Among other
things, this requires both laws that adequately protect vulnerable groups from
ill treatment and public officials to act to protect vulnerable people from harm
inflicted on them by others.
1.10.4. Prohibition of slavery, servitude, forced labour and trafficking in

human beings
Article 4 of the UDHR: No one shall be held in slavery or servitude; slav-

ery and the slave trade shall be prohibited in all their forms.
Article 4 of the ECHR: No one shall be held in slavery or servitude. No one

shall be required to perform forced or compulsory labour.
Article 5 of the EU Charter of Fundamental Rights: No one shall be held

in slavery or servitude. No one shall be required to perform forced or com-
pulsory labour. Trafficking in human beings is prohibited.
It is crucial that border and coast guards are aware of the risk profiles of po-
tential victims of human trafficking and able to identify them, as this helps to
prevent and detect this crime during entry/exit checks. Trafficking in human
beings involves the exploitation of people through force, coercion, threat and
deception and entails fundamental rights abuses, such as physical and emo-
tional violence, deprivation of liberty, debt bondage and a lack of control over
freedom and labour. The crime of trafficking can be perpetrated for purposes
of sexual exploitation or labour exploitation, and it may be either international
— by crossing international borders — or take place in the victims’ own coun-
tries and communities. Many of the victims are women and children.
According to Article 3 of the UN Protocol to Prevent, Suppress and Punish Traf-

ficking in Persons, especially Women and Children, and supplementing the
United Nations Convention against Transnational Organized Crime, ‘traffick-
ing in persons’ involves three elements, as outlined below.
An action. The recruitment, transportation, transfer, harbouring, reception
of persons and exchange or transfer of control over those persons;
A means. Threat, use of force, other forms of coercion, abduction, fraud,
deception, abuse of power or a position of vulnerability, the giving or re-
ceiving of payments or benefits to achieve the consent of a person having
control over another person;
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The purposes. Prostitution, sexual exploitation, forced labour, forced crim-

inal activities, slavery or activities similar to slavery, servitude, removal of
organs, illegal adoption or forced marriage. It should be noted that the con-
sent of a victim of trafficking to the intended exploitation is irrelevant and
the recruitment, transportation, transfer, harbouring or receipt of a child
for the purpose of exploitation must be considered ‘trafficking’, even if this
does not involve any of the means set forth above.
It should be noted that, according to Article 26, ‘Non-punishment provision’, of

the Council of Europe Convention on Action against Trafficking in Human Be-
ings, each State Party to this Treaty ‘shall, in accordance with the basic prin-
ciples of its legal system, provide for the possibility of not imposing penalties
on victims for their involvement in unlawful activities, to the extent that they
have been compelled to do so.’ In addition, according to Articles 13 and 14 of
this convention, a possible victim of trafficking may be provided with a recov-
ery and reflection period and, in certain situations, a residence permit in the
country of destination (82). Smuggling, on the other hand, is the procurement,
in order to obtain, directly or indirectly, a financial or other material benefit, of
the illegal entry of a person into a State of which the person is not a national
or a permanent resident (UN Protocol against the Smuggling of Migrants by
Land, Sea and Air, supplementing the United Nations Convention against Trans-
national Organized Crime).
In the case of Rantsev v Cyprus and Russia, the ECtHR emphasised that, like
slavery, trafficking in human beings, by its very nature and aim of exploita-
tion, is based on the exercise of powers attaching to the right of ownership; it
treated human beings as commodities to be bought and sold and put to forced
labour; it implied close surveillance of the activities of victims, whose move-
ments were often circumscribed; and it involved the use of violence and threats
against victims. The Court held that trafficking itself was prohibited by Arti-
cle 4 of the ECHR (prohibition of slavery and forced labour) (83).
Persons who have been or are at risk of being trafficked may also have a well-
founded fear of persecution or be at risk of serious harm and are therefore
in need of international protection. States must ensure that appropriate and
effective referral mechanisms are in place between authorities combating
trafficking and those responsible for granting international protection. Such
measures must ensure full compliance with the principle of non-refoulement.
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Special measures are needed to ensure that the specific protection needs of
child victims of trafficking are addressed. To facilitate the identification and re-
ferral of children on the move at risk, Frontex developed the VEGA Handbook:
Children at Airports and conducts joint operations at selected airports in the
EU Member States and the Schengen-associated countries with the partici-
pation of child protection experts from international organisations and NGOs
on an annual basis.
1.10.5. Right to privacy and family life and protection of personal data
Article 12 of the UDHR: No one shall be subjected to arbitrary interference

with his privacy, family, home or correspondence, nor to attacks upon his
honour and reputation. Everyone has the right to the protection of the
law against such interference or attacks.
Article 8 of the ECHR: Everyone has the right to respect for his private and
family life, his home and his correspondence. There shall be no interfer-
ence by a public authority with the exercise of this right except such as is
in accordance with the law and is necessary in a democratic society in the
interests of national security, public safety or the economic well-being of
the country, for the prevention of disorder or crime, for the protection of
health or morals, or for the protection of the rights and freedoms of others.
Article 1 of Regulation (EU) 2016/679 of the European Parliament and of

the Council of 27 April 2016 on the protection of natural persons with
regard to the processing of personal data and on the free movement
of such data, and repealing Directive 95/46/EC (the General Data Pro-
tection Regulation (GDPR)):
1. This Regulation lays down rules relating to the protection of natural per-
sons with regard to the processing of personal data and rules relating to
the free movement of personal data.
2. This Regulation protects fundamental rights and freedoms of natural

persons and in particular their right to the protection of personal data.
3. The free movement of personal data within the Union shall be neither
restricted nor prohibited for reasons connected with the protection of
natural persons with regard to the processing of personal data.
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Article 4(1) of the GDPR: ‘personal data’ means any information relating

to an identified or identifiable natural person (‘data subject’); an identifi-
able natural person is one who can be identified, directly or indirectly, in
particular by reference to an identifier such as a name, an identification
number, location data, an online identifier or to one or more factors spe-
cific to the physical, physiological, genetic, mental, economic, cultural or
social identity of that natural person.
Article 7 of the EU Charter of Fundamental Rights: Everyone has the right

to respect for his or her private and family life, home and communications.
Article 8 of the EU Charter of Fundamental Rights:
1. Everyone has the right to the protection of personal data concerning

him or her.
2. Such data must be processed fairly for specified purposes and on the ba-
sis of the consent of the person concerned or some other legitimate ba-
sis laid down by law. Everyone has the right of access to data which has
been collected concerning him or her, and the right to have it rectified.
3. Compliance with these rules shall be subject to control by an independ-

ent authority.
Article 9 of the EU Charter of Fundamental Rights: The right to marry

and the right to found a family shall be guaranteed in accordance with the
national laws governing the exercise of these rights.
Data protection and privacy issues
The term ‘data protection’ is generally recognised as designating the protec-

tion of ‘personal data’, this notion being understood not as ‘private’ or ‘inti-
mate’ data but in the sense of ‘data that can be referred to a specific person’
and thus can include publicly available data. In accordance with EU law, this
concept refers to a series of subjective rights granted to those whose per-
sonal data are processed, a number of obligations imposed on those who pro-
cess personal data and the compulsory existence of a supervisory authority to
monitor compliance with these rules (84).
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The current understanding of data protection as a fundamental right under

Article 8 of the EU Charter of Fundamental Rights is intrinsically linked to
the right to private life included in Article 8 of the ECHR. While private life is a
broad term that embraces issues concerning the protection of an individual’s
personal space, which goes far beyond data protection, such as the right to
be let alone or the right to develop personal relationships with each other, the
protection of personal data is one crucial aspect of the right to private life (85).
Although Article 8 of the ECHR does not mention ‘right to privacy’, the EU leg-
islator commonly uses the expression ‘right to privacy’ to refer to the right es-
tablished in this article. In accordance with EU law, ‘privacy’ is a broad notion
that includes in its scope the protection of personal data, at least partially (in-
sofar as the ECtHR considers that a particular data processing practice consti-
tutes an interference with the ‘right to respect for private life’, an assessment
that is dependent on the nature of the data and the circumstances of its stor-
age, and which might result in ensuring protection of only part of the data
falling into the category of ‘personal data’ as recognised by the EU law (86)).
Personal data protection
As emphasised jointly by the European Union Agency for Fundamental Rights

(FRA) and the Council of Europe, the EU Charter of Fundamental Rights not
only guarantees respect for private and family life (Article 7) but also estab-
lishes the right to data protection (Article 8), explicitly raising the level of this
protection to that of a fundamental right in EU law. EU institutions, as well as
Member States, must observe and guarantee this right, which also applies to
the Member States when implementing Union law (Article 51). The EU Charter
of Fundamental Rights not only explicitly mentions a right to data protection
in Article 8(1), but also refers to key data protection principles in Article 8(2).
Finally, Article 8(3) of the Charter ensures that an independent authority will
control the implementation of these principles (87).
Under EU law, personal data can only be gathered legally under strict con-
ditions for a legitimate purpose. Furthermore, persons or organisations that
collect and manage personal information must protect it from misuse and
must respect certain rights of the data owners that are guaranteed by EU law.
Every day, within EU companies, public authorities and individuals transfer vast
amounts of personal data across borders. Conflicting data protection rules in
different countries would disrupt international exchanges. Individuals might
also be unwilling to transfer personal data abroad if they are uncertain about
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the level of protection in other countries. Appropriate safeguards must be put

in place to ensure that the sharing of personal data with third countries is done
in line with relevant European and international standards. If detailed personal
information on applicants for international protection or those persons who
were granted either refugee status or subsidiary protection were to become
inadvertently available to their countries of origin, their life, liberty or physi-
cal integrity, or those of their families or other associates, may be jeopardised.
Safeguards must be put in place to prevent this, such as industry standard en-
cryption technology, access rights through security profiles and detailed stand-
ard operating procedures on the handling of confidential data. Any processing
of personal data should respect the principles of necessity and proportionality.
Consequently, common EU rules have been established to ensure that per-

sonal data enjoy a high standard of protection everywhere in the EU. Every-
one has the right to complain and obtain redress if his or her data are misused
anywhere within the EU. From May 2018, Regulation (EU) 2016/679 of the Eu-
ropean Parliament and of the Council of 27 April 2016 on the protection of nat-
ural persons with regard to the processing of personal data and on the free
movement of such data, and repealing Directive 95/46/EC (the GDPR) fore-
sees specific rules for the transfer of personal data outside the EU to ensure
the best possible protection of data when it is exported abroad.
It should be noted that recital 58 of the Frontex Regulation stipulates that

any processing of personal data by the Member States within the framework
of the regulation should be conducted in accordance with Directive 95/46/EC
(the 1995 Data Protection Directive). In cases where the processing of data is
necessary primarily for the purpose of ensuring a high level of internal security
within the EU, especially in the context of actions relating to the monitoring
of migratory flows and risk analysis, the processing of personal data collected
during joint operations, pilot projects and rapid border interventions and by
migration management support teams or the cooperation with EU institutions,
bodies, offices, agencies and international organisations, the Council Frame-
work Decision 2008/977/JHA of 27 November 2008 on the protection of per-
sonal data processed in the framework of police and judicial cooperation in
criminal matters was being applied until 6 May 2018.
However, it has to be noted that the GDPR repealed the 1995 Data Protec-
tion Directive and replaced this act when it came into effect on 25 May 2018.
In turn, the abovementioned Framework Decision was repealed by Directive
(EU) 2016/680 of the European Parliament and of the Council of 27 April 2016
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on the protection of natural persons with regard to the processing of personal

data by competent authorities for the purposes of the prevention, investiga-
tion, detection or prosecution of criminal offences or the execution of crimi-
nal penalties, and on the free movement of such data, and repealing Council
Framework Decision 2008/977/JHA. This directive creates a comprehensive
framework for data processing activities performed by law enforcement au-
thorities (including border guards) for the prevention, investigation, detection
or prosecution of criminal offences or the execution of criminal penalties, in-
cluding the safeguarding against and the prevention of threats to public secu-
rity (88). In this regard, EU Member States had an obligation to adopt and publish,
by 6 May 2018, the laws, regulations and administrative provisions necessary
to comply with this directive. They applied those provisions from 6 May 2018.
Private life
Everyone has the right to respect for his or her private and family life, home
and correspondence. This right is subject to proportionate and lawful restric-
tions. The protection of sensitive personal data (in line with Article 8 of the
ECHR, as mentioned above) is a broad-ranging right that is often closely con-
nected with other rights, such as freedom of religion, freedom of expression,
freedom of association and the right to respect for property.
According to the case-law of the ECtHR, Article 8 of the ECHR entails both
positive and negative obligations (the same applies to Article 7 of the EU Char-
ter of Fundamental Rights). The negative obligation requires States to assure
an exercise free of interference of the rights specified in Article 8 of the ECHR,
unless the conditions in Article 8(2) of the ECHR are fulfilled, in which case the
state should refrain from taking certain actions. The positive obligation en-
tails the adoption of measures designed to protect the individual’s rights out-
lined in Article 8 of the ECHR, in particular against interference by others (89),
to criminalise extreme breaches of the right to a private life by private indi-
viduals and to ensure that the state authorities do not violate the rights of the
individuals in this regard.
Family life
Article 8 of the ECHR and Articles 7 and 9 of the EU Charter of Fundamen-

tal Rights also provide the right to family life as well as the right to marry
and found a family. According to the view of the ECtHR, the concept of fam-
ily life has evolved steadily during the lifetime of the EHCR, and it continues
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to develop to take account of social and legal change. Thus, the Court main-
tains a flexible approach to the interpretation of family life, bearing in mind
the diversity of modern family arrangements, the implications of divorce and
medical advances (90).
It should also be noted that, once established, family life does not come to an
end, even in the event of divorce or when the parties no longer live together,
or when a decision of competent authorities to place a child in care has been
taken, etc. Some cases, such as adoption or expulsion, may break the ties of
family life, but the ECtHR has established that this can only happen in excep-
tional circumstances (91). The ECtHR holds the view that it is for the States
to maintain public order, in particular by exercising their right, as a matter of
well-established international law and subject to their treaty obligations, to
control the entry and residence of foreigners. Moreover, according to ECtHR
case-law (92), the EHCR does not guarantee the right of a foreign national to
enter or reside in a particular country. Thus, there is no obligation for domes-
tic authorities to allow an alien to settle in their country (Jeunesse v the Neth-
erlands (GC) (93)). The corollary of a State’s right to control immigration is the
duty of foreigners such as the applicant to submit to immigration controls and
procedures and leave the territory of the State when ordered to do so if they
are lawfully denied entry or residence (Jeunesse v the Netherlands (GC)). How-
ever, the Court has restricted the use of the abovementioned prerogative by
States in relation to the right to family life in its case-law. For example, the
Court found a violation of Article 8 whereby the authorities failed to secure the
applicant’s right to respect for his private life by not putting in place an effec-
tive and accessible procedure that would have allowed the applicant’s asylum
request to be examined within a reasonable time, thus reducing the precari-
ousness of his situation as much as possible (B.A.C. v Greece) (94).
Another example would be the power of the States to deport foreigners con-
victed of criminal offences. However, their decisions in this field must, in so far
as they may interfere with a right protected under Article 8(1) of the ECHR,
be necessary in a democratic society, that is to say they must be justified by
a pressing social need and, in particular, proportionate to the legitimate aim
pursued (e.g. in Mehemi v France (95)). In many cases, for example, the main ob-
stacle to expulsion was that it would entail difficulties for the spouses to stay
together and, in particular, for one of them and/or the children to live in the
other’s country of origin.
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In relation to the expulsion of a family member, the ECtHR has been apply-
ing the test developed in Boultif v Switzerland (96) in a growing number of judg-
ments. The Court considers the following criteria: the nature and seriousness
of the offence committed by the person subject to expulsion procedures; the
duration of the person’s stay in the country from which he or she is going to
be expelled; the time that has elapsed since the commission of the offence
and the person’s conduct during that period; the nationalities of the various
persons concerned; the person’s family situation, such as the length of their
marriage; other factors revealing whether the couple lead a real and genuine
family life; whether the spouse knew about the offence at the time when he
or she entered into a family relationship; and whether there are children in the
marriage and, if so, their age. The ECtHR also considers the seriousness of the
difficulties that a spouse would be likely to encounter in the person’s coun-
try of origin; although the mere fact that a person might face particular diffi-
culties in accompanying his or her spouse cannot in itself preclude expulsion.
Finally, the issue of forced marriage as a serious violation of fundamental rights

has to be noted. According to a FRA study, although there is no official, inter-
nationally agreed definition, forced marriage can be described as a marriage
concluded without the consent of one or both partners and therefore against
the will of at least one of them. In addition, the 2011 Council of Europe Con-
vention on Preventing and Combating Violence against Women and Domestic
Violence (the Istanbul Convention) obliges States to criminalise the intentional
conduct of forcing a person to enter into a marriage (97). The specific provi-
sions on forced marriages are to be provided at the level of national legislation.
Respect for home
According to ECtHR case-law (98), the notion of ‘home’ is an autonomous con-

cept that does not depend on classification under domestic law (Chiragov and
Others v Armenia (GC) (99)). Therefore, the answer to the question of whether
a habitation constitutes a ‘home’ under the protection of Article 8(1) depends
on the factual circumstances, namely the existence of sufficient and continu-
ous links with a specific place (Winterstein and Others v France) (100). This concept
extends to a professional person’s office or business premises, a newspaper’s
premises, a notary’s practice, a university professor’s office, a registered office
and to the branches or other business premises of a company.
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Respect for correspondence
The right to respect for one’s correspondence is a right to uninterrupted and

uncensored communications with others (101). The right to respect for ‘corre-
spondence’ within the meaning of Article 8(1) aims to protect the confidenti-
ality of communications in a wide range of different situations and forms, such
as faxes, telexes, letters of a private or professional nature, packages seized by
customs officers, telephone conversations between family members or with
others, telephone calls from private or business premises or from a prison,
electronic messages (emails), internet use, data stored on computer servers,
including hard drives and floppy disks. Interference with the right may take
different forms, such as all forms of censorship, interception, monitoring, sei-
zure and other hindrances. In addition, impeding someone from even initiating
correspondence constitutes the most far-reaching form of ‘interference’ (102).
Limitations of the right to a personal life and a family life
Article 8 of the ECHR and Articles 7 and 9 of the EU Charter of Fundamental

Rights are qualified rights and, as such, the right to a private and family life
and respect for the home and correspondence may be limited. So, while the
right to privacy is engaged in a vast number of situations, the right may be
lawfully limited. Any limitation must have regard to the fair balance that has
to be struck between the competing interests of the individual and the com-
munity as a whole. In particular, any limitation must be:
in accordance with law;
necessary and proportionate;
for one or more of the following legitimate aims:
ll the interests of national security,
ll the interests of public safety or the economic well-being of the country,
ll the prevention of disorder or crime,
ll the protection of health or morals,
ll the protection of the rights and freedoms of others.
1.10.6. Rights of vulnerable groups
Article 25(2) of the UDHR: Motherhood and childhood are entitled to spe-

cial care and assistance. All children, whether born in or out of wedlock,
shall enjoy the same social protection.
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Article 24 of the EU Charter of Fundamental Rights: Children shall have

the right to such protection and care as is necessary for their well-being.
They may express their views freely. Such views shall be taken into con-
sideration on matters which concern them in accordance with their age
and maturity. In all actions relating to children, whether taken by public
authorities or private institutions, the child’s best interests must be a pri-
mary consideration. Every child shall have the right to maintain on a reg-
ular basis a personal relationship and direct contact with both parents,
unless that is contrary to his or her interests.
Article 25 of the EU Charter of Fundamental Rights: The Union recog-

nises and respects the rights of the elderly to lead a life of dignity and in-
dependence and to participate in social and cultural life.
Article 26 of the EU Charter of Fundamental Rights: The Union recog-

nises and respects the right of persons with disabilities to benefit from
measures designed to ensure their independence, social and occupational
integration and participation in the life of the community.
Article 7(1) of the Schengen Borders Code Regulation: Border guards

shall, in the performance of their duties, fully respect human dignity, in
particular in cases involving vulnerable persons.
Article 34(3) of the Frontex Regulation specifies that, while performing its
tasks, the European Border and Coast Guard must take into account the spe-
cial needs of children, unaccompanied minors, persons with disabilities, victims
of trafficking in human beings, persons in need of medical assistance, persons
in need of international protection, persons in distress at sea and other per-
sons in a particularly vulnerable situation.
The UN General Assembly in its New York Declaration for Refugees and Mi-
grants of 19 September 2016 noted the ‘vulnerabilities of women and children
during the journey from country of origin to country of arrival’. These include
‘their potential exposure to discrimination and exploitation, as well as to sex-
ual, physical and psychological abuse, violence, human trafficking and contem-
porary forms of slavery’. In addition, they might also have traditionally been
victims of violations and consequently require special protection for the equal
and effective enjoyment of their human rights.
In 2017, the OHCHR concluded that:
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while migration can be a positive and empowering experience for indi-

viduals and communities and can benefit countries of origin, transit and
destination, it is clear that precarious movements of people are a serious
human rights concern … Although they might fall outside the specific le-
gal category of refugee, migrants may need particular attention to be paid
to the respect, protection and fulfilment of their human rights. Some will
need specific protection as a result of the conditions they are leaving be-
hind, the circumstances in which they are compelled to move and in which
they are received, and/or according to specific characteristics such as age,
gender, disability or health status (103).
This sub-section makes use of the findings of the OHCHR guide Principles and
Practical Guidance on the Protection of the Human Rights of Migrants in Vul-
nerable Situations (104). This document emphasises that the concept of a ‘mi-
grant in a vulnerable situation’ may be understood as a range of factors that
are often intersecting, can coexist simultaneously and can influence and ex-
acerbate each other. Situations of vulnerability may change over time as cir-
cumstances change or evolve. The factors that create a vulnerable situation for
migrants may be the driving force behind their migration from their countries
of origin, may occur in transit and/or may be related to a particular aspect of
a person’s identity or circumstance. Thus, the vulnerability in this context can
be understood as situational (external) and/or embodied (internal), as shown
in the examples below.
A vulnerable situation arising from the reasons for leaving countries of origin.
A vulnerable situation occurring within the context of the circumstances
that migrants encounter en route, at borders and on reception. In this re-
gard, the OHCHR emphasises that this includes not only dangerous travel
routes and transportation means and difficult living conditions during travel,
but also the inadequate and often harsh conditions in which migrants are
received at borders, which can also violate rights and further exacerbate
vulnerabilities. Responses, such as the arbitrary closure of borders, denial
of access to asylum procedures, arbitrary push-backs, violence at borders
committed by State authorities and other actors (including criminals and
civilian militias), inhumane reception conditions, a lack of firewalls and de-
nial of humanitarian assistance increase the risks to the health and safety
of migrants, in violation of their human rights.
A vulnerable situation related to a specific aspect of a person’s identity or
circumstance. Some people are more at risk of human rights violations than
others, owing to their persisting unequal treatment and discrimination based
on factors, either singly or in combination, including age, gender, ethnicity,
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nationality, religion, language, sexual orientation or gender identity, or mi-

gration status. Certain people, such as pregnant women, persons in poor
health, including those with HIV, persons with disabilities, older persons or
children (including unaccompanied or separated children) are more at risk
because of their physical and/or psychological condition.
In relation to the applicants for international protection, recital 29 of the Asy-

lum Procedures Directive emphasises that certain applicants may be in need of
special procedural guarantees because of their age, gender, sexual orientation,
gender identity, disability, serious illness, mental disorder or as a consequence
of torture, rape or other serious forms of psychological, physical or sexual vi-
olence. EU Member States should endeavour to identify applicants in need of
special procedural guarantees before a first instance decision is taken. Those
applicants should be provided with adequate support, including sufficient time
to create the conditions necessary for their effective access to procedures and
to present the elements needed to substantiate their application for interna-
tional protection. In turn, Directive 2013/33/EU of the European Parliament
and of the Council of 26 June 2013 laying down standards for the reception of
applicants for international protection (recast) (Reception Directive) provides
a non-exhaustive list of vulnerable persons, such as minors, unaccompanied
minors, disabled people, elderly people, pregnant women, single parents with
minor children, victims of human trafficking, persons with serious illnesses,
persons with mental disorders and persons who have been subjected to tor-
ture, rape or other serious forms of psychological, physical or sexual violence,
for example victims of female genital mutilation.
While international law and EU law outline the rights of vulnerable persons
and an obligation to respect them, they do not define a model system to as-
sist them. Offering assistance to people in vulnerable situations is primar-
ily within the scope of the relevant national legislation of EU Member States,
which differs from country to country. For example, according to the HRC,
most European countries have national programmes for protecting, receiving
and assisting unaccompanied migrant children. Some European countries are
implementing interventions aimed at creating a well-defined reception sys-
tem with highly specialised structures and special facilities (105).
Finally, please note that the abovementioned list of vulnerable persons in need
of particular protection is not exhaustive, as other groups not discussed in this
sub-section may find themselves in vulnerable situations.
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1.10.7. Right to asylum
Article 14 of the UDHR: Everyone has the right to seek and to enjoy in
other countries asylum from persecution. 2. This right may not be invoked
in the case of prosecutions genuinely arising from non-political crimes or
from acts contrary to the purposes and principles of the United Nations.
Article 1(A)(2) of the Convention relating to the Status of Refugees of

28 July 1951: For the purposes of the present Convention, the term ‘refu-
gee’ shall apply to any person who: … owing to well-founded fear of be-
ing persecuted for reasons of race, religion, nationality, membership of a
particular social group or political opinion, is outside the country of his
nationality and is unable or, owing to such fear, is unwilling to avail him-
self of the protection of that country; or who, not having a nationality and
being outside the country of his former habitual residence as a result of
such events, is unable or, owing to such fear, is unwilling to return to it.
In the case of a person who has more than one nationality, the term ‘the
country of his nationality’ shall mean each of the countries of which he
is a national, and a person shall not be deemed to be lacking the protec-
tion of the country of his nationality if, without any valid reason based on
well-founded fear, he has not availed himself of the protection of one of
the countries of which he is a national.
Article 78(1) of the TFEU: The Union shall develop a common policy on

asylum, subsidiary protection and temporary protection with a view to
offering appropriate status to any third-country national requiring inter-
national protection and ensuring compliance with the principle of non-re-
foulement. This policy must be in accordance with the Geneva Convention
of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of
refugees, and other relevant treaties.
Article 18 of the EU Charter of Fundamental Rights: The right to asy-

lum shall be guaranteed with due respect for the rules of the Geneva Con-
vention of 28 July 1951 and the Protocol of 31 January 1967 relating to the
status of refugees and in accordance with the Treaty establishing the Eu-
ropean Community.
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Right to asylum in the context of EU and international law
For the purpose of this manual, the right to asylum will be examined in the
context of the EU law on asylum in force in conjunction with the relevant in-
ternational legal instruments. Article 2 of Directive 2011/95/EU of the European
Parliament and of the Council of 13 December 2011 on standards for the qual-
ification of third-country nationals or stateless persons as beneficiaries of in-
ternational protection, for a uniform status for refugees or for persons eligible
for subsidiary protection, and for the content of the protection granted (re-
cast) (Qualification Directive) specifies that ‘international protection’ means:
refugee status
subsidiary protection status.
In addition, Council Directive 2001/55/EC of 20 July 2001 on minimum stand-

ards for giving temporary protection in the event of a mass influx of displaced
persons and on measures promoting a balance of efforts between Member
States in receiving such persons and bearing the consequences provides for
the special legal mechanism of protection. According to Article 2 (a) of this di-
rective, ‘temporary protection’ means a procedure of exceptional character to
provide, in the event of a mass influx or imminent mass influx of displaced per-
sons from third countries who are unable to return to their country of origin,
immediate and temporary protection to such persons, in particular if there is
also a risk that the asylum system will be unable to process this influx with-
out adverse effects for its efficient operation, in the interests of the persons
concerned and other persons requesting protection. The existence of a mass
influx of displaced persons must be established by a Council decision adopted
by a qualified majority on a proposal from the European Commission, which
must also examine any request by a Member State that it submit a proposal
to the Council. Since its adoption in 2001, the mechanism of temporary pro-
tection has been introduced into the national asylum systems of EU Mem-
ber States, but, in practice, there have been no cases of its ‘activation’ so far.
The request for international protection should be understood to be on the

grounds that the applicant (a third-country national or a stateless person) is
either a refugee within the meaning of Article 1(A) of the 1951 Geneva Conven-
tion or a person eligible for subsidiary protection.
As mentioned above, Article 1(A) of the 1951 Geneva Convention sets forth that
a refugee is a person who is outside his or her country of nationality or habit-
ual residence, has a well-founded fear of being persecuted because of his or
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her race, religion, nationality, membership of a particular social group or po-

litical opinion and is unable or unwilling to avail him- or herself of the protec-
tion of that country, or to return there, for fear of persecution. People who
fulfil this definition are entitled to the rights and bound by the duties con-
tained in the 1951 convention.
In turn, according to the Qualification Directive, a ‘person eligible for subsidi-

ary protection’ means a third-country national or a stateless person who does
not qualify as a refugee but in respect of whom substantial grounds have been
shown for believing that the person concerned, if returned to his or her coun-
try of origin, or in the case of a stateless person, to his or her country of for-
mer habitual residence, would face a real risk of suffering serious harm and is
unable, or, owing to such a risk, unwilling to avail himself or herself of the pro-
tection of that country. There is a set of detailed provisions in this directive de-
scribing the criteria of eligibility for this status.
Recital 5 of the Qualification Directive clarifies that those third-country na-

tionals or stateless persons who are allowed to remain in the territories of the
Member States for reasons not due to a need for international protection but
on a discretionary basis on compassionate or humanitarian grounds fall out-
side the scope of this directive. In practice, many EU Member States employ
the practice of granting so-called ‘humanitarian protection’, which is based on
national legislation and which may still be granted to persons:
who have not been granted refugee status or subsidiary protection, but,
at the same time,
who cannot be returned to their countries of origin because their return
may result in a refoulement case and be in breach of Article 3 of the ECHR.
Finally, it should be noted that, according to Article 31(1) ‘Refugees unlawfully in

the country of refuge’ of the 1951 Geneva Convention, States must not impose
penalties on refugees (on account of their irregular entry or presence) who,
coming directly from a territory where their life or freedom was threatened in
the sense of Article 1 of this convention, enter or are present in a State’s terri-
tory without authorisation, provided they present themselves without delay
to the authorities and show good cause for their irregular entry or presence.
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Activities of the national border authorities of EU Member States and the

right to asylum
The Preamble to the Schengen Borders Code Regulation specifies that the reg-
ulation respects fundamental rights and observes the principles recognised
in particular by the Charter of Fundamental Rights of the European Union. It
should be applied in accordance with the Member States’ obligations as re-
gards international protection and non-refoulement.
Article 3 of this regulation emphasises that it applies to any person crossing

the internal or external borders of a Member State, without prejudice to the
rights of refugees and persons requesting international protection, in particu-
lar as regards non-refoulement.
Subsequently, Article 4 of the regulation indicates that when applying the reg-
ulation, Member States (primarily border guard services but also any other rel-
evant national authorities that may implement apply the regulation) must act
in full compliance with relevant Union law, including the EU Charter, relevant
international law, including the 1951 Geneva Convention, obligations related to
access to international protection, in particular the principle of non-refoule-
ment, and fundamental rights. In accordance with the general principles of Un-
ion law, decisions under the regulation must be taken on an individual basis.
It should be emphasised that, depending on the national legislation and in-

stitutional framework for international protection of a particular EU Member
State, the national border authorities may have a different scope of respon-
sibilities within the framework of asylum procedures. While the border guard
service in some Member States may deal with a wide range of tasks, such as
carrying out the initial registration of asylum seekers, determining their sit-
uation within the scope of the Dublin III Regulation, carrying out the first in-
terview regarding the application for international protection and addressing
detention issues and other issues, in other Member States, their functions
would be very limited.
EU Member States must ensure that those other authorities that are likely
to receive applications for international protection, such as the police, border
guards, immigration authorities and personnel of detention facilities, have the
relevant information and that their personnel receive both the necessary level
of training that is appropriate to their tasks and responsibilities and instructions
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to inform applicants as to where and how applications for international pro-

tection may be lodged, facilitating their access to asylum procedure.
Selected obligations of the national border authorities of EU Member

States in the asylum process
Recitals 26, 28 and 29 of the Preamble to and Article 6(1) of Directive 2013/32/

EU of the European Parliament and of the Council of 26 June 2013 on common
procedures for granting and withdrawing international protection (Asylum
Procedures Directive) specify some of the main requirements placed on the
national authorities in relation to the issue of dealing with applications for in-
ternational protection, including at the borders.
Officials who first come into contact with persons seeking international
protection, in particular the officials carrying out the surveillance of land
or maritime borders or conducting border checks, should receive relevant
information and necessary training, which is appropriate to their tasks and
responsibilities, and instructions to inform applicants as to where and how
applications for international protection may be lodged. (Article 6(1) of the
directive).
According to the Schengen Handbook, a person should be considered an ap-
plicant if he or she expresses — in any way — fear of suffering serious harm
regarding their return to their country of origin or former residence. The
wish of a person to apply for protection does not need to be expressed in
any particular form. The word ‘asylum’ does not need to be used expressly
— the defining element is the expression of fear at what might happen
upon return. In case of doubt on whether a declaration or statement could
be understood as a wish to apply for international protection, the border
guard must consult the national authority that is responsible for the exam-
ination of these applications.
Those officers should be able to provide third-country nationals or state-
less persons who are present in the territory, including at the border, in ter-
ritorial waters or in the transit zones of EU Member States, and who make
an application for international protection, with relevant information as to
where and how these applications may be lodged.
Where those persons are present in the territorial waters of a Member
State, they should disembark on land and have their applications for inter-
national protection examined.
Many applications for international protection are made at the border or
in a transit zone of a Member State prior to a decision on the entry of the
applicant. Member States should be able to provide for admissibility and/
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or substantive examination procedures, which would make it possible for

such applications to be decided upon at those locations in well-defined
circumstances.
In order to facilitate access to the examination procedure at border cross-
ing points and in detention facilities, information should be made available
on the possibility of applying for international protection. Basic communi-
cation that is necessary to enable the competent authorities to understand
if persons declare their wish to apply for international protection should be
ensured through interpretation arrangements.
Officials in charge must take into account the specific situation of vulnera-
ble persons (please also see, in this regard, the sub-section on the rights of
vulnerable persons) in all the activities in which border authorities are in-
volved during the asylum procedures and that are carried out in line with
international law, EU law and national legislation.
Right of the stateless persons to international protection
To date, 24 EU Member States ratified the 1954 Convention relating to the Sta-
tus of Stateless Persons, which is an important international treaty for identi-
fying stateless persons and ensuring protection of their rights as it establishes
an internationally recognised status for them (106). It was originally intended
as a Protocol to the 1951 Convention relating to the Status of Refugees but
was deferred for independent consideration as a stand-alone treaty, given the
unique status of stateless persons (107). Statelessness refers to the condition of
an individual who is not considered as a national by any State under the op-
eration of its law. Although stateless people may sometimes also be refugees,
the two categories are distinct in international law.
In some cases, a stateless migrant who has not been granted international
protection may later face a grave violation of his or her fundamental rights.
In particular, if such a person is returned to a country where he or she is not
protected as a national or where he or she is not granted international pro-
tection, he or she may face indefinite detention, serial expulsion and depri-
vation of access to basic services. Consequently, this person is entitled to the
protection under the EU Charter of Fundamental Rights — Articles 1, 2, 3, 4
and 6 in particular.
It should be noted that the 2015 Council Conclusion on Statelessness (108) un-

derscored the importance of identifying and protecting stateless people to
guarantee their enjoyment of fundamental rights.
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The Common European Asylum System, and more specifically the Qualifica-
tion Directive and Asylum Procedures Directive, entitles stateless people to
obtain international protection on the basis of fearing persecution/facing se-
rious harm in their country of origin. Statelessness stems from issues related
to nationality. Its main causes are gaps in nationality laws, arbitrary depriva-
tion of nationality, processes relating to State succession and restrictive ad-
ministrative practices, for example in relation to the issuance of documents
that prove nationality. A person may or may not have become stateless on
persecutory grounds.
While human rights are in principle universal and inherent, in practice, a large
range of fundamental human rights are denied to stateless people: they are
often unable to access services and State protection; they cannot obtain iden-
tity documents; they may be detained for reasons linked to their statelessness.
Having no definite legal status and thus lacking protection, stateless persons
become legally invisible and encounter great, and often insurmountable, dif-
ficulties. For this reason, under international law, stateless persons are enti-
tled to international protection. Border guards have a duty to recognise and
respond in a positive manner to persons who present themselves at the bor-
der and may be in need of international protection because they are poten-
tially stateless. In this regard, it is the duty of border guards to inform persons
of their right to seek and enjoy international protection.
At this stage, the role of border guards is only to detect if the applicant is po-
tentially stateless. The determination of a statelessness status should be pro-
cessed by trained eligibility officers with nationality expertise at a later stage.
If a potentially stateless person also applies for asylum, it is also important
for border guards to detect if the applicant is potentially stateless. It would
be inappropriate to register an asylum applicant as ‘having unknown nation-
ality’ and process his or her asylum claim without further investigation into
whether he or she has or does not have the nationality of a given country. The
determination of his or her statelessness will help inform the level of protec-
tion that should be afforded to him or her on the basis of the relevant inter-
national and regional instruments. In this regard, it is important to consider
two situations, as outlined below, where the determination of statelessness
proves to be essential:
If the applicant is stateless, the eligibility officer should enquire if the lat-
ter’s absence of nationality results from persecution in the country of or-
igin or if discrimination faced by stateless populations in the country of
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origin has given rise to persecution. If so, the applicant is likely to qualify
for a refugee status.
Stateless persons who are refugees under the 1951 Convention relating to
the Status of Refugees (for reasons linked to their statelessness) are entitled
to protection under that instrument. When an individual is both a refugee
and stateless, both types of status should be recognised. Although the 1951
convention generally entitles individuals to more rights than the 1954 con-
vention (including protection against refoulement), a person whose refugee
status ceases may not always have acquired a nationality and may continue
to require international protection under the 1954 convention. Recognition
as a stateless person can also facilitate the exercise of other rights. For ex-
ample, children of refugees born in the country of asylum, who did not ac-
quire any other nationality, are entitled to the nationality of the country of
asylum under the 1961 Convention on Reduction of Statelessness and other
UN and regional human rights instruments.
If the person is stateless but does not meet the requirements for granting
international protection, he or she is still eligible for the protection granted
to stateless people on the basis of the 1954 Convention relating to the Sta-
tus of Stateless Persons and/or some of the provisions of the EU Charter of
Fundamental Rights. A return to his or her country of origin would expose
him or her to fundamental rights violations, including, but not limited to, a
high risk of indefinite detention and expulsion.
1.10.8. Right to healthcare
Article 25 of the UDHR: Everyone has the right to a standard of living ad-
equate for the health and well-being of himself and of his family, includ-
ing food, clothing, housing and medical care.
Article 12 of the ICESCR: The States Parties to the present Covenant rec-
ognize the right of everyone to the enjoyment of the highest attainable
standard of physical and mental health. The steps to be taken by the States
Parties to the present Covenant to achieve the full realization of this right
shall include those necessary for:
a) The provision for the reduction of the stillbirth-rate and of infant mor-
tality and for the healthy development of the child;
b) The improvement of all aspects of environmental and industrial hygiene;
c) The prevention, treatment and control of epidemic, endemic, occupa-
tional and other diseases;
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d) The creation of conditions which would assure to all medical service

and medical attention in the event of sickness.
Article 24 of the CRC: States Parties recognize the right of the child to
the enjoyment of the highest attainable standard of health and to facil-
ities for the treatment of illness and rehabilitation of health. States Par-
ties shall strive to ensure that no child is deprived of his or her right of
access to such healthcare services. States Parties shall pursue full imple-
mentation of this right and, in particular, shall take appropriate measures:
a) To diminish infant and child mortality;
b) To ensure the provision of necessary medical assistance and healthcare
to all children with emphasis on the development of primary healthcare;
c) To combat disease and malnutrition, including within the framework
of primary healthcare, through, inter alia, the application of readily
available technology and through the provision of adequate nutritious
foods and clean drinking-water, taking into consideration the dangers
and risks of environmental pollution;
d) To ensure appropriate pre-natal and post-natal healthcare for mothers;
e) To ensure that all segments of society, in particular parents and chil-
dren, are informed, have access to education and are supported in the
use of basic knowledge of child health and nutrition, the advantages
of breastfeeding, hygiene and environmental sanitation and the pre-
vention of accidents;
f) To develop preventive healthcare, guidance for parents and family plan-
ning education and services.
States Parties shall take all effective and appropriate measures with a
view to abolishing traditional practices prejudicial to the health of chil-
dren. States Parties undertake to promote and encourage international
cooperation with a view to achieving progressively the full realization of
the right recognized in the present article. In this regard, particular ac-
count shall be taken of the needs of developing countries.
Article 25 of the CRC: States Parties recognize the right of a child who
has been placed by the competent authorities for the purposes of care,
protection or treatment of his or her physical or mental health, to a peri-
odic review of the treatment provided to the child and all other circum-
stances relevant to his or her placement.
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Article 11 of the European Social Charter (The right to protection of health):

With a view to ensuring the effective exercise of the right to protection of
health, the Parties undertake, either directly or in cooperation with public
or private organisations, to take appropriate measures designed inter alia:
• to remove as far as possible the causes of ill-health;
• to provide advisory and educational facilities for the promotion of health
and the encouragement of individual responsibility in matters of health;
• to prevent as far as possible epidemic, endemic and other diseases, as
well as accidents.
Article 13 of the European Social Charter (The right to social and medical
assistance): With a view to ensuring the effective exercise of the right to
social and medical assistance, the Parties undertake:
• to ensure that any person who is without adequate resources and who
is unable to secure such resources either by his own efforts or from
other sources, in particular by benefits under a social security scheme,
be granted adequate assistance, and, in case of sickness, the care ne-
cessitated by his condition;
• to ensure that persons receiving such assistance shall not, for that rea-
son, suffer from a diminution of their political or social rights;
• to provide that everyone may receive by appropriate public or private
services such advice and personal help as may be required to prevent,
to remove, or to alleviate personal or family want;
• to apply the provisions referred to in paragraphs 1, 2 and 3 of this arti-
cle on an equal footing with their nationals to nationals of other Parties
lawfully within their territories, in accordance with their obligations un-
der the European Convention on Social and Medical Assistance, signed
at Paris on 11 December 1953.
Article 35 of EU Charter of Fundamental Rights: Everyone has the right

of access to preventive healthcare and the right to benefit from medical
treatment under the conditions established by national laws and practices.
Article 5 of the Return Directive, ‘Non-refoulement, best interests of the

child, family life and state of health’: When implementing this Directive,
Member States shall take due account of: … the state of health of the third-
country national concerned, and respect the principle of non-refoulement.
Article 14(1)(b) of the Return Directive ‘Safeguards pending return’: Mem-

ber States shall, with the exception of the situation covered in Articles 16
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and 17, ensure that the following principles are taken into account as far
as possible in relation to third-country nationals during the period for vol-
untary departure granted in accordance with Article 7 and during peri-
ods for which removal has been postponed in accordance with Article 9:
… b) emergency healthcare and essential treatment of illness are provided.
Article 16(3) ‘Conditions of detention’: Particular attention shall be paid to

the situation of vulnerable persons. Emergency healthcare and essential
treatment of illness shall be provided.
As this course covers the issues of fundamental rights only in the context of
border control, this sub-section does not aim to cover issues such as the ac-
cess of various categories of migrants who are residents of EU Member States
(students, migrant workers, family members of migrant workers, refugees,
tourists, etc.) to the healthcare services within the territory of those States.
In these cases, access to national healthcare systems (including issues such
as the right to receive medical assistance and medicine free of charge, etc.) is
regulated by a combination of EU and national legal acts of EU Member States
related to the specific immigration status of the person and may be different
for various categories of migrants (e.g. refugees v students, long-term resi-
dents v family members of EU citizens, etc.). This is also confirmed by the EU
Charter of Fundamental Rights, which provides for the right of everyone to
access preventive healthcare and benefit from medical treatment under the
conditions established by legislation and the practices of EU Member States.
In line with the international law, States should adopt and implement an ef-
fective national health policy that does not discriminate against non-nation-
als and addresses the needs of irregular and regular migrants during all stages
of the migration process (109). Numerous provisions of the abovementioned in-
ternational treaties describe, to various extents, the right to the highest at-
tainable standard of health and the right to medical assistance.
General Comment No 14, ‘The Right to the Highest Attainable Standard of
Health’, adopted by the CESCR in 2000, provides for a detailed authoritative,
albeit legally non-binding, explanation of the right of everyone to the enjoy-
ment of the highest attainable standard of physical and mental health in line
with Article 12 of the ICESCR. To explore the notion of this right, this sub-sec-
tion is primarily based on the main provisions of General Comment No 14 as
well as a few provisions of EU law.
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Health is a fundamental human right that is indispensable for the exercise of

other human rights. Every human being is entitled to the enjoyment of the
highest attainable standard of health conducive to living a life in dignity. The
ICECSR prohibits any discrimination in regard to the access to healthcare and
underlying determinants of health, as well as to the means and entitlements
for their procurement, on the grounds of race, colour, sex, language, religion,
political or any other opinions, national or social origin, property, birth, a phys-
ical or mental disability, health status (including HIV/AIDS), sexual orientation,
civil status, political status, social status or any other status, which has the in-
tention or effect of nullifying or impairing the equal enjoyment or exercise of
the right to health.
In this regard, CESCR General Comment No 14 confirms that States have a
core obligation to ensure, at the very least, the satisfaction of the minimum
essential levels of each of the rights, including essential primary healthcare.
These core obligations include at least the obligations below.

to ensure the right of access to health facilities, goods and services on a
non-discriminatory basis, especially for vulnerable or marginalized groups;
to ensure access to the minimum essential food, which is nutritionally ad-
equate and safe, to ensure freedom from hunger to everyone;
to ensure access to basic shelter, housing and sanitation and an adequate
supply of safe and potable water;
to provide essential drugs, as defined under the World Health Organization
(WHO) Action Programme on Essential Drugs;
to ensure equitable distribution of all health facilities, goods and services;
to adopt and implement a national public health strategy and plan of action
on the basis of epidemiological evidence, addressing the health concerns of
the whole population. The strategy and plan of action should be devised, and
periodically reviewed, on the basis of a participatory and transparent pro-
cess, and they should include methods, such as the right to health indicators
and benchmarks, by which progress can be closely monitored. The process
by which the strategy and plan of action are devised, as well as their con-
tent, should pay particular attention to all vulnerable or marginalised groups.
The CESCR also indicated that States also have an obligation of ‘compara-
ble priority’:
to ensure reproductive, maternal (prenatal as well as post-natal) and child
healthcare;
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to provide immunisation against the major infectious diseases occurring

within the community;
to take measures to prevent, treat and control epidemic and endemic diseases;
to provide education and access to information concerning the main health
problems in the community, including methods of preventing and control-
ling them;
to provide appropriate training for health personnel, including education
on health and human rights.
According to the WHO,
the most frequent health problems of newly arrived refugees and migrants
include accidental injuries, hypothermia, burns, gastrointestinal illnesses,
cardiovascular events, pregnancy- and delivery-related complications, di-
abetes and hypertension. Female refugees and migrants frequently face
specific challenges, particularly in maternal, new born and child health,
sexual and reproductive health, and violence (110).
Article 34(3) of the Frontex Regulation specifies that, in performing its tasks,

the European Border and Coast Guard (i.e. Frontex and the national author-
ities of Member States that are responsible for border management, includ-
ing coast guards to the extent that they carry out border control tasks) must
take into account the special needs of persons in particularly vulnerable situa-
tions, including persons in need of medical assistance. It should be noted that,
in terms of practical steps, the WHO advised States to use triage
at points of entry to identify health problems in refugees and migrants

soon after their arrival. Proper diagnosis and treatment must follow, and
the necessary healthcare must be ensured for specific population groups
(children, pregnant women and the elderly). Each and every person on the
move must have full access to a hospitable environment, to prevention
(e.g. vaccination) and, when needed, to high-quality healthcare, without
discrimination on the basis of gender, age, religion, nationality, race or le-
gal status (111).
1.10.9. Right to liberty and security
Article 3 of the UDHR: Everyone has the right to life, liberty and secu-
rity of person.
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Article 9(1) of the ICCPR: Everyone has the right to liberty and security
of person. No one shall be subjected to arbitrary arrest or detention. No
one shall be deprived of his liberty except on such grounds and in accord-
ance with such procedure as are established by law.
Article 37 of the CRC: States Parties shall ensure that: …

• No child shall be deprived of his or her liberty unlawfully or arbitrarily.
The arrest, detention or imprisonment of a child shall be in conformity
with the law and shall be used only as a measure of last resort and for
the shortest appropriate period of time;
• Every child deprived of liberty shall be treated with humanity and re-
spect for the inherent dignity of the human person, and in a manner
which takes into account the needs of persons of his or her age. In par-
ticular, every child deprived of liberty shall be separated from adults
unless it is considered in the child’s best interest not to do so and shall
have the right to maintain contact with his or her family through cor-
respondence and visits, save in exceptional circumstances.
Article 6 of the EU Charter of Fundamental Rights: Everyone has the

right to liberty and security of person.
Article 5 of the ECHR: Everyone has the right to liberty and security of
person.
The ECHR embodies a key element in the protection of an individual’s human

rights. Personal liberty is a fundamental condition that everyone should gen-
erally enjoy. Deprivation is likely to have a direct and adverse effect on the en-
joyment of many of the other rights, such as the right to family and private
life, the right to freedom of assembly, association and expression and the right
to freedom of movement. Furthermore, any deprivation of liberty will invari-
ably put the person affected into an extremely vulnerable position, exposing
him or her to a risk of being subjected to torture and inhuman and degrading
treatment or punishment.
The ECtHR stated that the confinement of foreigners, accompanied by suita-

ble safeguards for the persons concerned, is acceptable only to enable States
to prevent unlawful immigration while complying with their international ob-
ligations, in particular under the 1951 Geneva Convention relating to the Status
of Refugees and the European Convention on Human Rights. States’ legitimate
concern to foil the increasingly frequent attempts to circumvent immigration
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restrictions must not deprive asylum-seekers of the protection afforded by

these conventions. A non-exhaustive summary of the ECHR assessment cri-
teria in the area of detention was provided in M.S.S. v Belgium and Greece (112).
When the ECtHR examines the conformity of the manner and method of the
execution of the detention measure with the EHCR, it must look at the par-
ticular situations of the persons concerned. The Court checks the compliance
of national authorities with Article 3 of the ECHR, which enshrines one of the
most fundamental values of democratic societies and prohibits, in absolute
terms, torture and inhuman or degrading treatment or punishment, irrespec-
tive of the circumstances and the victim’s conduct.
Article 3 of the ECHR requires the State to ensure that detention conditions
are compatible with respect for human dignity, the manner and method of the
execution of the measure do not subject the detainees to distress or hardship
of an intensity exceeding the unavoidable level of suffering inherent in deten-
tion and, given the practical demands of imprisonment, their health and well-
being are adequately secured.
For example, the ECtHR found the cases of detention of persons outlined be-
low to be contrary to Article 3 of the ECHR.
Confining an asylum-seeker to a prefabricated cabin for 2 months with-
out allowing him outdoors, or to make a telephone call, and with no clean
sheets and insufficient hygiene products.
A period of detention of 6 days, in a confined space, with no possibility of
taking a walk, with no leisure area, sleeping on dirty mattresses and with
no free access to a toilet.
The detention of an asylum-seeker for 3 months on police premises pend-
ing the application of an administrative measure, with no access to any rec-
reational activities and without proper meals, has also been considered as
degrading treatment.
The detention of an asylum-seeker for 3 months in an overcrowded place
and in appalling conditions of hygiene and cleanliness, with no leisure or
catering facilities, where the dilapidated state of repair of the sanitary fa-
cilities rendered them virtually unusable and where the detainees slept in
extremely filthy and crowded condition.
National legislation, which does not provide for a maximum period of de-
tention before the expulsion, does not satisfy the foreseeability require-
ment of Article 5(1) of the ECHR (Rahimi v Greece (113)).
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A lack of opportunity for a person to lodge an arguable complaint (e.g. re-

garding detention or the detention conditions) in law or in practice would
also result in the violation of Article 13 of the ECHR, which requires the pro-
vision of a domestic remedy to deal with such complaint.
In accordance with EU law, detention must be a last resort, when it proves

necessary and on the basis of an individual assessment of each case; all alter-
natives must first be exhausted, unless such alternatives cannot be applied
effectively in the individual case (Article 8(2) of the Reception Conditions Di-
rective, Article 18(2) of the Dublin III Regulation and Article 15(1) of the Return
Directive: ‘unless other sufficient but less coercive measures can be applied’).
Detention should therefore only take place after full consideration of all possi-
ble alternatives or when monitoring mechanisms have not achieved the law-
ful and legitimate purpose. Article 8(4) of the Reception Conditions Directive
obliges EU Member States to lay down rules for alternatives to detention in
national law (114).
Articles 8, 10 and 11 of the Reception Conditions Directive specify that the ap-
plicant for international protection can be detained at a border post or in a
transit zone for a reasonable period, which must be as short as possible, in
order to decide, in the context of a procedure, on the applicant’s right to en-
ter the territory. The grounds for such detention must be laid down in the na-
tional law of EU Member States.
Detention of migrant children
The arrest, detention or imprisonment of a child must be in conformity with

the law and used only as a measure of last resort and for the shortest appro-
priate period of time (115). There are international treaties specifying very ex-
ceptional circumstances when the detention of a child can be allowed, as a
measure of last resort and of the shortest possible duration. The alternatives
to the detention measures should be considered by the competent authori-
ties in accordance with the relevant national legislation that defines the types
of such alternatives and procedures for their application.
Article 11 of the Reception Conditions Directive and Articles 16(3) and 17 of the

Return Directive also contain specific provisions for minors, who are only to be
detained as a measure of last resort. All efforts must be made to release and
place them in accommodation that is suitable for children. Unaccompanied
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minors seeking asylum must only be detained in exceptional circumstances

and never be placed in prison accommodation (116).
The ECtHR held that the presence in detention of a child who was accompa-
nying his or her parents was only compatible with the ECHR if the national
authorities established that they had taken this measure as a last resort af-
ter having verified, in the specific circumstances, that no other less restrictive
measure could be applied (117). The Court emphasised that the detention of
migrants, irrespective of whether they have been accompanied or not, raises
particular issues in that regard, such as the fact that they are extremely vul-
nerable and have specific needs (118). A child’s extreme vulnerability is the de-
cisive factor and takes precedence over considerations relating to the status
of irregular immigrant. In the cases of minor asylum seekers, the Court noted
that Article 22(1) of the CRC encourages States to take appropriate measures
to ensure that children seeking refugee status, whether or not accompanied
by their parents or others, receive appropriate protection and humanitarian
assistance (119). The ECtHR, in its judgments, highlighted criteria, which can be
decisive in regard to considering the detention as violation of the ECHR, such
as (this list is not exhaustive) (120):
the age of the children, placed in detention;
the length of their detention;
material conditions of their detention;
whether or not the detention facility in issue has been adapted for fami-
lies with children;
medical evidence that they have undergone serious psychological prob-
lems while in detention;
separation of children from one of their parents;
other conditions affecting the children’s psychological health;
alternative measures (less coercive measures) to the families’ placement
in administrative detention having not been sought by the competent na-
tional authorities.
In the view of the Court, while a short duration of detention in combination

with some of the abovementioned criteria may not have been sufficient to at-
tain the threshold of severity engaging Article 3 of the ECHR, their effects over
a longer period would certainly have affected a child to the point of exceed-
ing that threshold (121). Depending on the age of accompanied children (rang-
ing from 7 months to several years), the duration of detention was considered
excessive and violating Article 3 of the ECHR (122).
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The abovementioned principles established by ECtHR case-law also apply to

cases in which children are detained at border posts. For example, in case Mo-
hamad v Greece, the Court held that the detention of an unaccompanied mi-
nor at border posts for over 5 months constituted a violation of several ECHR
provisions: the right to liberty and security (Article 5 of the ECHR); prohibition
of torture (Article 3 of the ECHR); and the right to an effective remedy (Arti-
cle 13 of the ECHR) (123).
During the last few years, the UN, FRA and the Council of Europe, as well as
a number of other organisations, have highlighted the need to refrain from
child detention to seek the use of alternative measures (124). In 2017, the Com-
mittee on the Rights of the Child and the Committee on the Protection of the
Rights of All Migrant Workers and Members of Their Families stated that the
detention of any child because of their or their parents’ migration status con-
stitutes a child rights violation and contravenes the principle of the best in-
terests of the child (125).
Article 37(b) of the CRC establishes the general principle that a child may be
deprived of liberty only as a last resort and for the shortest appropriate period
of time. However, offences concerning irregular entry or stay cannot, under
any circumstances, have consequences similar to those derived from the com-
mission of a crime. Therefore, the possibility of detaining children as a meas-
ure of last resort, which may apply in other contexts such as juvenile criminal
justice, is not applicable in immigration proceedings, as it would conflict with
the principle of the best interests of the child and the right to development.
Instead, States should adopt solutions that fulfil the best interests of the child,
along with their rights to liberty and family life, through legislation, policy
and practices that allow children to remain with their family members and/or
guardians in non-custodial, community-based contexts while their immigra-
tion status is being resolved and the children’s best interests are assessed, as
well as before return (126).
1.10.10. Right to property
Article 17 of the UDHR: Everyone has the right to own property alone as
well as in association with others. 2. No one shall be arbitrarily deprived
of his property.
Article 13, ‘Movable and immovable property’, of the 1951 Geneva Con-

vention: The Contracting States shall accord to a refugee treatment as
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favourable as possible and, in any event, not less favourable than that ac-
corded to aliens generally in the same circumstances, as regards the ac-
quisition of movable and immovable property and other rights pertaining
thereto, and to leases and other contracts relating to movable and im-
movable property.
Article 17 of the EU Charter of Fundamental Rights: Everyone has the

right to own, use, dispose of and bequeath his or her lawfully acquired
possessions. No one may be deprived of his or her possessions, except in
the public interest and in the cases and under the conditions provided for
by law, subject to fair compensation being paid in good time for their loss.
The use of property may be regulated by law in so far as is necessary for
the general interest. Intellectual property shall be protected.
Article 1 of Protocol 1 to the ECHR: Every natural or legal person is enti-

tled to the peaceful enjoyment of his possessions. No one shall be deprived
of his possessions except in the public interest and subject to the condi-
tions provided for by law and by the general principles of international law.
The concept of property, or ‘possessions’, is very broadly interpreted by the

ECtHR. It covers a range of economic interests. The following have been held
to fall within the protection of Article 1 of Protocol 1: movable or immovable
property, tangible or intangible interests, such as shares, patents, an arbitra-
tion award, the entitlement to a pension, a landlord’s entitlement to rent, the
economic interests connected with the running of a business, the right to ex-
ercise a profession, a legitimate expectation that a certain state of affairs will
apply, a legal claim and the clientele of a cinema, etc. (127). According to ECtHR
case-law (e.g. in case of Sporrong and Lönnroth v Sweden) the right to property
comprises three distinct rules.
The first rule, which is of a general nature, enounces the principle of peace-
ful enjoyment of property.
The second rule covers deprivation of possessions and subjects it to cer-
tain conditions.
The third rule recognises that the States are entitled, inter alia, to control
the use of property, in accordance with the general interest, by enforcing
such laws as they deem necessary for the purpose (128).
According to ECtHR case-law (e.g. Iatridis v Greece (129)), any interference with the
peaceful enjoyment of possessions by a public authority should be lawful: the
second sentence of the first paragraph authorises a deprivation of possessions
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only ‘subject to the conditions provided for by law’, and the second paragraph
recognises that the States have the right to control the use of property by en-
forcing ‘laws’. Moreover, the rule of law entails a duty on the part of the State
or other public authority to comply with judicial orders or decisions against
it. It follows that the issue of whether a fair balance has been struck between
the demands of the general interest of the community and the requirements
of the protection of the individual’s fundamental rights becomes relevant only
once it has been established that the interference in question satisfied the re-
quirement of lawfulness and was not arbitrary.
In practice, if Member State border guards become aware of facts justifying

the seizure of property during border control activities, they must act in ac-
cordance with national, EU and international law. For example, depending on
each Member State’s legislation regarding the mandate of border authorities
and the cooperation of law enforcement authorities, border authorities may
act, independently or jointly with police and customs institutions, to prevent
the importation into or transit through the territory of prohibited items (e.g.
narcotics) or seize the vehicles of traffickers and human smugglers and con-
duct other similar activities.
1.11. Fundamental principles closely connected to border

tasks
1.11.1. Principle of non-refoulement
Article 78(1) of the TFEU: The Union shall develop a common policy on

asylum, subsidiary protection and temporary protection with a view to
offering appropriate status to any third-country national requiring inter-
national protection and ensuring compliance with the principle of non-re-
foulement. This policy must be in accordance with the Geneva Convention
of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of
refugees, and other relevant treaties.
Article 33, ‘Prohibition of expulsion or return (“refoulement”)’, of the

Convention relating to the Status of Refugees of 28 July 1951: No Con-
tracting State shall expel or return (‘refouler’) a refugee in any manner
whatsoever to the frontiers of territories where his life or freedom would
be threatened on account of his race, religion, nationality, membership of
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a particular social group or political opinion. The benefit of the present

provision may not, however, be claimed by a refugee whom there are rea-
sonable grounds for regarding as a danger to the security of the country in
which he is, or who, having been convicted by a final judgment of a particu-
larly serious crime, constitutes a danger to the community of that country.
Article 7 of the ICCPR: No one shall be subjected to torture or to cruel, in-

human or degrading treatment or punishment. In particular, no one shall be
subjected without his free consent to medical or scientific experimentation.
Article 3 of the CAT: No State Party shall expel, return (‘refouler’) or ex-
tradite a person to another State where there are substantial grounds for
believing that he would be in danger of being subjected to torture. For
the purpose of determining whether there are such grounds, the compe-
tent authorities shall take into account all relevant considerations includ-
ing, where applicable, the existence in the State concerned of a consistent
pattern of gross, flagrant or mass violations of human rights.
Article 16 of the CPED: No State Party shall expel, return (‘refouler’), sur-
render or extradite a person to another State where there are substantial
grounds for believing that he or she would be in danger of being subjected
to enforced disappearance. For the purpose of determining whether there
are such grounds, the competent authorities shall take into account all rel-
evant considerations, including, where applicable, the existence in the State
concerned of a consistent pattern of gross, flagrant or mass violations of
human rights or of serious violations of international humanitarian law.
Article 3 of the ECHR: No one shall be subjected to torture or to inhuman

Article 4 of the EU Charter of Fundamental Rights, ‘Prohibition of torture

and inhuman or degrading treatment or punishment’: No one shall be
subjected to torture or to inhuman or degrading treatment or punishment.
Article 18 of the EU Charter of Fundamental Rights, ‘Right to asylum’:

The right to asylum shall be guaranteed with due respect for the rules of
the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967
relating to the status of refugees and in accordance with the Treaty on
European Union and the Treaty on the Functioning of the European Un-
ion. (hereinafter referred to as ‘the Treaties’).
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Article 19 of the EU Charter of Fundamental Rights, ‘Protection in the

event of removal, expulsion or extradition’: No one may be removed,
expelled or extradited to a State where there is a serious risk that he or
she would be subjected to the death penalty, torture or other inhuman
Article 21, ‘Protection from refoulement’, of Directive 2011/95/EU of the

European Parliament and of the Council of 13 December 2011 on stand-
ards for the qualification of third-country nationals or stateless per-
sons as beneficiaries of international protection, for a uniform status
for refugees or for persons eligible for subsidiary protection, and for
the content of the protection granted (Qualification Directive): Mem-
ber States shall respect the principle of non-refoulement in accordance
with their international obligations. Where not prohibited by the interna-
tional obligations mentioned in paragraph 1, Member States may refoule
a refugee, whether formally recognised or not, when:
a) there are reasonable grounds for considering him or her as a danger to
the security of the Member State in which he or she is present; or
b) he or she, having been convicted by a final judgment of a particularly
serious crime, constitutes a danger to the community of that Member
State.
Member States may revoke, end or refuse to renew or to grant the resi-
dence permit of (or to) a refugee to whom paragraph 2 applies.
Article 9, ‘Right to remain in the Member State pending the examina-

tion of the application’, of Directive 2013/32/EU of the European Par-
liament and of the Council of 26 June 2013 on common procedures
for granting and withdrawing international protection (recast) (Asy-
lum Procedures Directive): Applicants shall be allowed to remain in the
Member State, for the sole purpose of the procedure, until the determin-
ing authority has made a decision in accordance with the procedures at
first instance set out in Chapter III. That right to remain shall not consti-
tute an entitlement to a residence permit. Member States may make an
exception only where a person makes a subsequent application referred
to in Article 41 or where they will surrender or extradite, as appropriate, a
person either to another Member State pursuant to obligations in accord-
ance with a European arrest warrant or otherwise, or to a third country or
to international criminal courts or tribunals. A Member State may extra-
dite an applicant to a third country pursuant to paragraph 2 only where
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the competent authorities are satisfied that an extradition decision will

not result in direct or indirect refoulement in violation of the international
and Union obligations of that Member State.
Articles 5 of Directive 2008/115/EC of the European Parliament and of

the Council of 16 December 2008 on common standards and proce-
dures in Member States for returning illegally staying third-country na-
tionals (Return Directive): Non-refoulement, best interests of the child,
family life and state of health: When implementing this Directive, Mem-
ber States shall take due account of:
a) the best interests of the child;
b) family life;
c) the state of health of the third-country national concerned,
d) and respect the principle of non-refoulement.
Articles 4 of Directive 2008/115/EC of the European Parliament and

of the Council of 16 December 2008 on common standards and pro-
cedures in Member States for returning illegally staying third-coun-
try nationals (Return Directive): With regard to third-country nationals
excluded from the scope of this Directive in accordance with Article 2(2)
(a), Member States shall: … (b) respect the principle of non-refoulement.
This sub-section builds primarily on the findings of the FRA publication Scope
of the principle of non-refoulement in contemporary border management: evolving ar-
eas of law (130). A vast number of international treaties and EU legal instruments
provides for the application of non-refoulement principles to various catego-
ries of persons on the move.
For refugees, the principle of non-refoulement is laid down in Article 33 of the

1951 Geneva Convention and it prohibits the return of refugees to a risk of per-
secution. It also covers people seeking asylum until a final decision on their
application has been made.
The principle of non-refoulement is a central element of the EU’s fundamen-

tal rights regime, reflected in Article 78(1) of the TFEU. Articles 18 and 19 of the
EU Charter of Fundamental Rights also encompass the prohibition of refoule-
ment, which is further specified in secondary EU law (these provisions are out-
lined above, at the beginning of this sub-section).
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For all persons, regardless of their legal status (e.g. persons who are crossing
the external border of the EU in an irregular manner), the principle of non-re-
foulement is a core component of the prohibition of torture and cruel, inhu-
man or degrading treatment or punishment enshrined in Article 7 of the ICCPR,
Article 3 of the CAT and Article 3 of the ECHR.
In particular, the ECtHR exercised its jurisdiction in cases of forced removal to

a country where the person concerned might be at risk of torture or other ill
treatment by referring to Article 3 of the ECHR. It stated that Article 3 of the
ECHR, which prohibits torture and inhuman or degrading treatment or pun-
ishment in absolute terms, enshrines one of the fundamental values of demo-
cratic societies. It makes no provision for exceptions and no derogation from it
is permissible under Article 15 of the ECHR, even in the event of a public emer-
gency threatening the life of a nation. As the prohibition of torture and inhu-
man or degrading treatment or punishment is absolute, irrespective of the
victim’s conduct, the nature of the offence allegedly committed by the ap-
plicant is therefore irrelevant for the purposes of Article 3 (Saadi v Italy).The
abovementioned EU asylum law provisions also prohibit the return of a per-
son to the real risk of serious harm deriving from indiscriminate violence in sit-
uations of armed conflict.
In practice, the act of refoulement may consist of expulsion, extradition, de-

portation, removal, informal transfer, ‘rendition’, rejection, refusal of admission
or any other measure that would result in compelling the person concerned to
remain in their country of origin. The risk of serious harm may result from for-
eign aggression, internal armed conflict, extrajudicial death, enforced disappear-
ance, a death penalty, torture, inhuman or degrading treatment, forced labour,
trafficking in human beings, persecution, a trial based on a retroactive penal
law or on evidence obtained by torture or inhuman and degrading treatment,
a ‘flagrant violation’ of the essence of any ECHR right in the receiving State
(direct refoulement) or further delivery of that person by the receiving State
to a third State where there is such a risk (indirect or ‘chain’ refoulement) (131).
The prohibition of refoulement applies to all locations and territories where

the State may exercise their jurisdiction, such as at borders and at sea, includ-
ing the high seas (e.g. in so-called ‘push back’ cases). In addition, the acts of
State authorities, which may trigger refoulement, may also engage violations
of other fundamental rights, such as the right to be heard, the right to an ef-
fective remedy or the prohibition of collective expulsion.
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In addition to a number of international and EU law provisions that are bind-

ing for EU Member States, the principle of non-refoulement is a fundamental
component of customary international law on the prohibition of torture and
cruel, inhuman or degrading treatment or punishment that is binding on all
States, regardless of whether they are parties to these international conven-
tions (132). In relation to the wide range of persons who are not asylum seek-
ers or refugees and as principles of customary law:
it is focused on individuals, regardless of either status or conduct, for whom
substantial grounds can be shown to support the belief that they would
face a real risk of being subjected to torture, cruel, inhuman or degrading
treatment or punishment;
it precludes any measure, regardless of form, that would have the effect of
putting an individual at risk by removing them from a place of safety to a
place of threat;
it precludes all such measures taken by or on behalf of a State — whether the
measures are taken within the territory of that State or elsewhere — in cir-
cumstances in which the measures are or would be attributable to the State;
it precludes the expulsion, return or other means of transfer of an individ-
ual to both a territory where they may be at risk directly or a territory from
which they may be subsequently removed to a third territory where they
would be at risk;
it is not subject to exception or limitation for any reason whatever (133).
Article 34(1–2) of the Frontex Regulation emphasises that the European Bor-

der and Coast Guard (i.e. Frontex and the national authorities of the Member
States that are responsible for border management, including coast guards to
the extent that they carry out border control tasks) must guarantee the pro-
tection of fundamental rights in the performance of its tasks in accordance
with relevant EU law, in particular the EU Charter, and relevant international
law, including the 1951 Convention relating to the Status of Refugees and the
1967 Protocol and obligations related to access to international protection, in
particular the principle of non-refoulement. While performing its tasks, the
European Border and Coast Guard must ensure that no person disembarks in,
is forced to enter, is conducted to, or otherwise handed over or returned to,
the authorities of a country in contravention of the principle of non-refoule-
ment or from which there is a risk of expulsion or return to another country
in contravention of that principle.
Finally, the principle of non-refoulement also applies to the cooperation of EU

Member States with neighbouring third countries. For example, Regulation
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(EU) No 1052/2013 of 22 October 2013 establishing the European Border Sur-

veillance System (Eurosur) specifies that the cooperation of EU Member States
with neighbouring third countries, including any exchange of information,
must be carried out in full compliance with fundamental rights and in particu-
lar with the principle of non-refoulement. Article 20 of the Eurosur Regulation
emphasises that such an exchange of information and such cooperation must
take place on the basis of bilateral or multilateral agreements or through re-
gional networks established on the basis of those agreements. These agree-
ments must comply with the relevant EU and international law on fundamental
rights and on international protection, including the EU Charter of Fundamen-
tal Rights and the 1951 Geneva Convention, in particular the principle of non-
refoulement. When cooperating with a neighbouring third country, or even
when operating on the territory or the territorial sea of that country, Mem-
ber States must not exchange any information that could be used by the third
country to identify persons or groups of persons whose request for access to
international protection is under examination or who are under a serious risk
of being subjected to torture, inhuman and degrading treatment or punish-
ment or any other violation of fundamental rights.
1.11.2. Prohibition of collective expulsions
Article 19 of the EU Charter of Fundamental Rights: Collective expulsions

are prohibited. No one may be removed, expelled or extradited to a State
where there is a serious risk that he or she would be subjected to the death
penalty, torture or other inhuman or degrading treatment or punishment.
Article 4 of Protocol No 4 of the ECHR: Collective expulsion of aliens is

prohibited.
Collective expulsion is prohibited in an absolute way by all major human rights

treaties, and this prohibition is considered to have assumed the status of cus-
tomary international law, therefore binding all States, regardless of whether
they are party to a treaty expressing such prohibition (134). In addition, two treaty
bodies, the Human Rights Committee and the Committee for the Elimination of
All Forms of Racial Discrimination, found that the acts of collective expulsions
violate Article 5(a) and 6 of the ICERD and Article 13 of the ICCPR, despite the
fact that they are not directly mentioned in these human rights treaties (135).
According to ECtHR case-law, the ‘collective expulsion’ is to be understood as:
any measure compelling aliens, as a group, to leave a country,
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except where such a measure is taken on the basis of a reasonable and ob-
jective examination of the particular case of each individual foreigner of the
group (see, for example, Andric v Sweden (136)).
Furthermore, according to ECtHR case-law (137), the fact that a number of al-

iens receive similar decisions does not lead to the conclusion that there is a
‘collective expulsion’ when each person concerned has been given the oppor-
tunity to put forward arguments against his or her expulsion to the competent
authorities on an individual basis (see, for example, Andric v Sweden). However,
that does not mean that where there has been a reasonable and objective ex-
amination of the particular case of an individual, the background to the ex-
ecution of the expulsion orders plays no further role in determining whether
there has been compliance with Article 4 of Protocol No 4.
There will be no violation of Article 4 of Protocol No 4 if the lack of an expul-

sion decision made on an individual basis is the consequence of an applicant’s
own culpable conduct, for example:
where applicants have pursued a joint asylum procedure and thus received
a single common decision (Berisha and Haljiti v the former Yugoslav Republic
of Macedonia);
where applicants have refused to show their identity papers to the police
and thus the latter have been unable to draw up expulsion orders in the ap-
plicants’ names (Dritsas v Italy) (138).
Usually, competent national authorities exercise the act of expulsion from the
territory of their State. However, the ECtHR also considers that Article 4 of
Protocol No 4 of the ECHR applies to the interception and immediate depor-
tation of irregular migrants by border police. Thus Article 4 of Protocol No 4
of the ECHR applies to the cases of refusal to allow entry to the national ter-
ritory to persons who arrived illegally. The case of Sharifi and Others v Italy and
Greece was concerned with the deportation of migrants, to Greece, who had
clandestinely boarded vessels for Italy and arrived in the Italian port of An-
cona. The Court did not consider it necessary to determine whether the ap-
plicants had been returned after or before reaching the Italian territory, since
Article 4 of Protocol No 4 was, in any event, applicable to both situations (139).
Finally, in the case of Hirsi Jamaa and Others v Italy (140), the ECtHR considered
that the removal of aliens carried out in the context of interceptions on the
high seas by the authorities of a State in the exercise of their sovereign au-
thority, the effect of which is to prevent migrants from reaching the borders of
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the State or even to push them back to another State, constitutes an exercise
of jurisdiction within the meaning of Article 1 of the ECHR, which engages the
responsibility of the State in question under Article 4 of Protocol No 4. There-
fore, such an act of the State also constituted ‘collective expulsion’.
1.11.3. Principle of non-discrimination and equality before the law
Article 7 of the UDHR: All are entitled to equal protection against any
discrimination in violation of this Declaration and against any incitement
to such discrimination.
Article 14 of the ECHR: The enjoyment of the rights and freedoms set forth
in the European Convention on Human Rights and the Human Rights Act
shall be secured without discrimination on any ground such as sex, race,
colour, language, religion, political or other opinion, national or social or-
igin, association with a national minority, property, birth or other status.
Article 2(1) of the ICCPR: Each State Party to the present Covenant un-
dertakes to respect and to ensure to all individuals within its territory and
subject to its jurisdiction the rights recognized in the present Covenant,
without distinction of any kind, such as race, colour, sex, language, reli-
gion, political or other opinion, national or social origin, property, birth
or other status.
Article 10 of the TFEU: In defining and implementing its policies and ac-
tivities, the Union shall aim to combat discrimination based on sex, ra-
cial or ethnic origin, religion or belief, disability, age or sexual orientation.
Article 18 of the TFEU: Within the scope of application of the Treaties,

and without prejudice to any special provisions contained therein, any dis-
crimination on grounds of nationality shall be prohibited. The European
Parliament and the Council, acting in accordance with the ordinary legis-
lative procedure, may adopt rules designed to prohibit such discrimination.
Article 19 of the TFEU: Without prejudice to the other provisions of the

Treaties and within the limits of the powers conferred by them upon the
Union, the Council, acting unanimously in accordance with a special leg-
islative procedure and after obtaining the consent of the European Parlia-
ment, may take appropriate action to combat discrimination based on sex,
racial or ethnic origin, religion or belief, disability, age or sexual orientation.
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By way of derogation from paragraph 1, the European Parliament and the

Council, acting in accordance with the ordinary legislative procedure, may
adopt the basic principles of Union incentive measures, excluding any har-
monisation of the laws and regulations of the Member States, to support
action taken by the Member States in order to contribute to the achieve-
ment of the objectives referred to in paragraph 1.
Article 21 of the EU Charter of Fundamental Rights: Any discrimination

based on any ground such as sex, race, colour, ethnic or social origin, ge-
netic features, language, religion or belief, political or any other opinion,
membership of a national minority, property, birth, disability, age or sex-
ual orientation shall be prohibited. Within the scope of application of the
Treaty establishing the European Community and of the Treaty on Eu-
ropean Union, and without prejudice to the special provisions of those
Treaties, any discrimination on grounds of nationality shall be prohibited.
The general principle of non-discrimination
The principle of non-discrimination is enshrined in numerous international

human rights, EU treaties and secondary legislation, the ECHR, the European
Social Charter, as well as relevant soft law (e.g. the general comments of the
Human Rights Committee). Some of these treaties stipulate that the human
rights they codify will be guaranteed to all without discrimination. Such clauses
are not independent: they may only be invoked in combination with other sub-
stantive provisions of the treaties concerned. Others, on the other hand, have
an independent status: they protect individuals from discrimination not only
during the implementation of the human rights listed in the instruments in
which they appear but in all fields (141).
For example, Article 2(1) of the ICCPR provides that ‘each State Party to the
present Covenant undertakes to respect and to ensure to all individuals within
its territory and subject to its jurisdiction the rights recognized in the present
Covenant, without distinction of any kind, such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property, birth or
other status’. This prohibition is further reinforced in the ICCPR by Article 3
(prohibiting sex discrimination), Article 4(1) (prohibiting discrimination in re-
lation to derogations), Article 23(4) (imposing on States Parties the obligation
to ‘take appropriate steps to ensure equality of rights and responsibilities of
spouses as to marriage, during marriage and at its dissolution’), Article 24 (in
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relation to the rights of the child) and Article 25 (in relation to rights of polit-
ical participation) (142).
While many international treaties, such as the ICERD, deal only with cases
of discrimination on specific grounds (e.g. race), the term ‘discrimination’ as
used by the ICCPR should be understood to imply any distinction, exclusion,
restriction or preference that is based on any grounds, such as race, colour,
sex, language, religion, political or any other opinion, national or social origin,
property, birth or any other status, and that has the purpose or effect of nul-
lifying or impairing the recognition, enjoyment or exercise by all persons, on
an equal footing, of all rights and freedoms (143).
According to the Human Rights Committee, the enjoyment of rights and free-
doms on an equal footing does not mean identical treatment in every instance.
With regard to this connection, the provisions of the ICCPR are explicit. For
example, Article 25 guarantees certain political rights, differentiating on the
grounds of citizenship. Not every differentiation of treatment will constitute
discrimination if they are reasonable and the aim of which is legitimate un-
der the ICCPR (144).
Article 14 of the ECHR specifies that the enjoyment of the rights and free-
doms set forth in the convention must be secured without discrimination on
any ground such as sex, race, colour, language, religion, political or any other
opinion, national or social origin, association with a national minority, property,
birth or any other status. An additional Protocol No 12 to the ECHR (which at
present has not yet been ratified by a number of EU Member States) has ex-
tended the non-discrimination protection of the convention further in rela-
tion to the rights ‘set forth by law’ and against the acts of discrimination by
any public authority. It provides for the following: ‘The enjoyment of any right
set forth by law shall be secured without discrimination on any ground such as
sex, race, colour, language, religion, political or other opinion, national or social
origin, association with a national minority, property, birth or other status. No
one shall be discriminated against by any public authority on any ground such
as those mentioned in paragraph 1.’
Provisions of EU primary law (the TFEU and EU Charter of Fundamental Rights)

provide for the prohibition of discrimination on the widest number of grounds:
sex, race, colour, ethnic or social origin, genetic features, language, religion or
belief, political or any other opinion, membership of a national minority, prop-
erty, birth, disability, age or sexual orientation, without prejudice to the special
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provisions of the founding EU Treaties, any discrimination on grounds of nation-

ality. A number of EU secondary legal acts further implement non-discrimina-
tion on various grounds (sex, race, etc.) and in various areas (e.g. employment):
Council Directive 2000/43/EC of 29 June 2000 implementing the principle of
equal treatment between persons irrespective of racial or ethnic origin; Council
Directive 2000/78/EC of 27 November 2000 establishing a general framework
for equal treatment in employment and occupation; and Directive 2006/54/
EC of the European Parliament and of the Council of 5 July 2006 on the imple-
mentation of the principle of equal opportunities and equal treatment of men
and women in matters of employment and occupation.
Non-discrimination principle at borders
Article 7, ‘Conduct of border checks’, of the Schengen Borders Code Regulation

emphasises that border guards must fully respect human dignity, in particu-
lar in cases involving vulnerable persons, during the performance of their du-
ties and must not discriminate against persons on the grounds of sex, racial or
ethnic origin, religion or belief, disability, age or sexual orientation during bor-
der checks. The same principle is also reiterated in the Schengen Handbook.
The Frontex Regulation also includes many provisions regarding the applica-
tion of non-discrimination.
The regulation respects fundamental rights, observes the principles recog-
nised by Articles 2 and 6 of the TEU and reflected in the EU Charter of Fun-
damental Rights, and seeks to promote the application of the principle of
non-discrimination (recital 49).
During deployment, members of the European Border and Coast Guard
teams must, in the performance of their tasks and in the exercise of their
powers, fully respect fundamental rights, including access to asylum pro-
cedures, and human dignity. While performing their tasks and exercising
their powers, they must not discriminate against persons on grounds of
sex, racial or ethnic origin, religion or belief, disability, age or sexual orien-
tation (Article 21(4)).
A code of conduct for the return of returnees, which is to apply during all
return operations and return interventions coordinated or organised by
Frontex, will assure return in a humane manner and with full respect for fun-
damental rights, in particular the right to non-discrimination (Article 35(2)).
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1.12. Access to international protection
1.12.1. Access to asylum procedure
According to the European Asylum Support Office (EASO)-Frontex tool, Ac-

cess to the Asylum Procedure: Practical Tools for First-Contact Officials (145),
in order to ensure that the principle of non-refoulement is respected and for
the right to asylum to be effective, every person who may be in need of inter-
national protection must be guaranteed access to the asylum procedure. Ac-
cording to the Asylum Procedures Directive, there are three separate steps in
access to the procedure:
making an application, meaning the act of expressing in any way and to any
authority the need to obtain international protection;
registering the application, which is carried out by the competent authority;
lodging an application for international protection, triggering the start of
the first instance examination.
Therefore, the role of the border guard as a first contact official is to facilitate
access to international protection by proactively identifying persons who may
wish to apply for international protection, providing them with relevant in-
formation on the right to apply for asylum and referring them to the appro-
priate procedure.
Border and coast guards are often the first point of contact for third-country
nationals reaching a country. They play a crucial role in facilitating effective
access to international protection by promptly identifying those third-coun-
try nationals, addressing their basic needs, guaranteeing their fundamental
rights, providing them with information and directing them to the adequate
procedure and to the competent authorities. To ensure that the principle of
non-refoulement is respected and for the right to asylum to be effective, every
person who may be in need of international protection must be guaranteed
access to the asylum procedure. In short, a lack of access to asylum procedure
implies a denial of the right to asylum.
According to recital 26 of the Asylum Procedures Directive with a view to en-

suring effective access to the examination procedure, officials who first come
into contact with persons seeking international protection, in particular offi-
cials carrying out surveillance of land or maritime borders or conducting border
checks, should receive relevant information and necessary training on how to
recognise and deal with applications for international protection, taking into
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account, inter alia, the relevant guidelines developed by EASO. They should be
able to provide third-country nationals or stateless persons who are present
in the territory, including at the border, in territorial waters or in the transit
zones of Member States, and make an application for international protection
with relevant information as to where and how applications for international
protection may be lodged. Where those persons are present in the territorial
waters of a Member State, they should disembark on land and have their ap-
plications examined in accordance with this directive.
Article 3 of the Schengen Borders Code Regulation specifies that it must ap-
ply to any person crossing the internal or external borders of Member States,
without prejudice to the rights of refugees and persons requesting interna-
tional protection, in particular as regards non-refoulement.
Article 6(1) of the Asylum Procedures Directive establishes that EU Member

States have an obligation to ensure that authorities, other than the compe-
tent authorities directly responsible for asylum applications, that are likely to
receive applications for international protection, such as the police, border
guards, immigration authorities and personnel of detention facilities, have
the relevant information and that their personnel receive the necessary level
of training that is appropriate to their tasks and responsibilities and instruc-
tions to inform applicants as to where and how applications for international
protection may be lodged.
Article 8 of the Asylum Procedures Directive provides for information and coun-
selling at border crossing points. It stipulates that where there are indications
that third-country nationals or stateless persons present at border crossing
points, including transit zones, at external borders may wish to make an ap-
plication for international protection, Member States (i.e. border authorities)
must provide them with information on how to do so. At those border cross-
ing points, Member States must make arrangements for interpretation to an
extent that is necessary to facilitate access to the asylum procedure.
Consequently, during the daily cross-border movements, border guards may

encounter, alongside groups of persons who are travelling for purposes such as
leisure or business, other individuals or groups who have protection needs that
require immediate action. These may include persons in need of international
protection as well as victims of human trafficking, torture, rape or other seri-
ous forms of violence, separated or unaccompanied children, women at risk and
other vulnerable persons. Many persons who may be in need of international
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protection do not know their rights and obligations and do not actively seek
asylum in the country in which they arrive. Therefore, the informative role of
the border guard is crucial to ensuring that they have effective access to the
asylum procedure.
According to Article 8(2) of the Asylum Procedures Directive, Member States

must also ensure that organisations and persons providing advice and coun-
selling to applicants have effective access to applicants present at the border
crossing points, including transit zones, at external borders. Member States
may provide for rules covering the presence of such organisations and persons
at those crossing points and, in particular, that access is subject to an agree-
ment with the competent authorities of the Member States. Limits on such
access may be imposed only where, by virtue of national law, they are objec-
tively necessary for the security, public order or administrative management
of the crossing points concerned, provided that access is not then severely re-
stricted or rendered impossible.
According to recital 29 of the Asylum Procedures Directive, certain applicants

may be in need of special procedural guarantees as a result of, inter alia, their
age, gender, sexual orientation, gender identity, disability, serious illness, men-
tal disorders or as a consequence of torture, rape or other serious forms of
psychological, physical or sexual violence. Member States should endeavour
to identify applicants in need of special procedural guarantees before a first
instance decision is taken. Where adequate support cannot be provided to an
applicant in need of special procedural guarantees within the framework of
accelerated procedures or border procedures, such an applicant should be ex-
empted from those procedures. The need for special procedural guarantees
of a nature that could prevent the application of accelerated procedures or
border procedures should also mean that the applicant is provided with ad-
ditional guarantees in cases where his or her appeal does not have an auto-
matic suspensive effect, with a view to making the remedy effective in his or
her particular circumstances.
This can be achieved by proactively identifying those who may be in need of

protection, providing them with relevant information on the right to apply for
asylum and referring them to appropriate procedures and other adequate as-
sistance and procedural guarantees. In addition, measures taken at the border
crossing points and in detention facilities mark one of the primary moments
in which the special needs of vulnerable persons may be declared or detected.
Thus, border and coast guards also have the responsibility of identifying the
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special needs of vulnerable persons and referring them to national authorities

for further assessment and/or support.
Finally, it should be noted that, according to the Asylum Procedures Direc-

tive (146), border guards have an obligation to ensure that all children in need
of international protection can effectively access the asylum procedure. Chil-
dren are also entitled to benefit from the principle of non-refoulement, equally
to adults (147). Border guards have a critical role in the referral of such children
to the national authorities responsible for the asylum procedure in line with
requirements of the relevant national referral mechanisms. The national child
protection authorities or, alternatively, the authorities responsible for the re-
ception of asylum seekers, are usually in charge of such mechanisms.
1.12.2. Access to stateless person status determination
Border guards may come across stateless people among migrants and asylum
seekers. The complexity with statelessness is that many individuals are not
aware that they may be stateless and will therefore not put forward a request
for a stateless status determination procedure. It is vital for border guards to
identify cases of potentially stateless individuals during the first stage of regis-
tration and refer the individual to appropriate protection mechanisms, whether
the person is applying for asylum or not.
1.12.3. Role of the border management authorities
As mentioned above, in line with EU law and national legislation, the task of
border and coast guards is to identify persons who may wish to apply for in-
ternational protection, provide them with relevant information and refer them
to the appropriate national authority responsible for the asylum procedure.
No one can be denied access to the asylum procedure. Prompt and efficient
referral to the competent authorities is key to ensuring the right to asylum is
guaranteed in practice. It is not the responsibility of the first-line border guard
officials to assess whether the person in front of them has protection-related
needs and whether she or he can be granted international protection or not.
That will be done at a later stage by the competent authorities.
Persons in need of protection may approach a person in uniform and establish

contact with him or her. However, many of them may have been ill-treated
by officials in their country of origin or in other countries during their jour-
ney. Therefore, in many cases, they will not approach border and coast guards
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directly, and so it is the latter’s role to create an atmosphere of trust, proac-

tively identify a person who may wish to apply for international protection and
refer those who can be understood to be seeking protection.
Border and coast guards and first-contact officials have a responsibility to be

proactive in ensuring effective access to the asylum procedure. They must
identify persons who may wish to apply for international protection, inform
them about the right to apply for asylum and provide them with information
on how to make an application. They also have to inform persons who made
an application for international protection on how to lodge their application
(please also see the sub-sections on vulnerable persons and protection from
refoulement above).
1.12.4. Application for international protection
The Asylum Procedures Directive also describes three separate steps to access
the procedure, clearly distinguishing between making, registering and lodging
an application for international protection. People can apply for international
protection in a variety of ways. Any expression of fear of persecution or seri-
ous harm in their country of origin if refused entry, whether expressed verbally
or in writing, qualifies as such a request. It is not necessary to use the exact
word ‘asylum’ or ‘refugee’. When a border guard is in doubt, he or she should
assume that a protection request has been made.
Making
Making an application for international protection means the act of express-

ing, in any way and to any authority, one’s wish to obtain international protec-
tion. Anyone who has expressed his or her intention to apply for international
protection is considered to be an applicant with all the rights and obligations
attached to this status.
Registering
After an application for international protection has been made, it must be

registered by the competent authorities within the given timeframe — no
later than 3 working days if the application has been made to an authority re-
sponsible for registering it or no later than 6 working days if the application
has been made to other authorities, such as the police, border guards, immi-
gration authorities and/or personnel of detention facilities. Under exceptional
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circumstances, when many simultaneous applications make it very difficult in

practice to respect the given time limits, it can be extended to 10 working days.
Lodging
Lodging an application for international protection means that the applicant

needs to provide information/documents to complete the file created at the
time of registering the application. Lodging an application triggers the start
of the first-instance examination. Member States may set rules on how and
where lodging takes place.
1.12.5. Persons in need of international protection
To ensure that the principle of non-refoulement and the right to asylum are
respected, border and coast guards should be aware that they must not deny
anyone access to the asylum and/or statelessness procedure. Everyone has the
right to seek international protection. Always remember that anyone can be a
beneficiary of international protection, regardless of his or her country of ori-
gin, ethnicity and/or appearance. Anyone can have protection needs, no mat-
ter how she or he looks or acts. Within the mixed migration flows, persons
with different motives and objectives travel alongside each other, often us-
ing the same routes and means of transport. Therefore, refugees and persons
whose reasons for travelling are not protection-related may look and behave
in the same way. The task of border and coast guards is to identify a person
who may wish to apply for international protection, provide them with rele-
vant information and refer them to the appropriate authority. It is not the re-
sponsibility of the border and coast guards to assess the merits of the claim for
international protection of the person in front of them and decide whether she
or he will be granted international protection. Different procedures will follow
at a different place, conducted by competent officials, to assess the person’s
protection needs and determine if they qualify for international protection.
Anyone can be a beneficiary of international protection and/or a stateless per-

son, regardless of whether one of the points below applies.
He or she entered the Member State or is present on its territory irregu-
larly, using false or fraudulent documents or without any documentation
at all, including if she or he is prohibited from entering because of the past
irregular migratory situation;
He or she is a victim of trafficking in human beings. A victim of traffick-
ing may have protection needs outside of the issue of trafficking. She or
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he may also apply for international protection when escaping the traffick-
ing situation, or the asylum procedure itself may be used by the traffickers
as a means of facilitating the presence of the person in the host country.
He or she is an unaccompanied child. The EU asylum law provides for spe-
cific guarantees to ensure that the unaccompanied child can benefit from
the rights and comply with his or her obligations in the asylum context.
Since the child is inherently vulnerable, it is very important to be particu-
larly sensitive to any additional indicators of special needs and always act
in the best interests of the child.
Indications that a person may wish to apply for international protection may
be revealed in different ways. Border and coast guards may observe them,
become aware of them through direct contact with the person or with other
persons, deduce them from the documents the person presents and/or come
across them under other circumstances.
Country of origin
General knowledge about the up-to-date situation in the person’s country of

origin, including the general political circumstances, the security situation and
respect for fundamental rights, is an indispensable source of indications for the
accurate identification of persons who may wish to apply for international pro-
tection. For example, a country embroiled in (civil) war or armed conflict or
a country governed by a dictatorial regime is likely to be a source country of
refugees. However, border and coast guards should be aware that no coun-
try can be considered generally safe for all its citizens, and even those com-
ing from a safe country of origin may have individual protection needs. Please
note, in this regard, that the EASO Country of Origin Information (COI) Por-
tal provides access to such information for use in protection status determi-
nation procedures (available at https://coi.easo.europa.eu).
Ethnicity, religion, nationality
Apart from the general context of the country of origin, particular attention
should be paid if the person belongs to (national, ethnic and/or religious) mi-
norities, as they often tend to be targets of persecution or violence. However, it
does not mean that persons from the majority may not have protection needs.
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General circumstances of arrival
The context of large-scale arrivals of big groups and individuals or families may
create different expectations regarding the profile of people and their protec-
tion needs. However, it is essential to keep in mind that refugees do not exclu-
sively travel one way or the other.
Age
Children are inherently vulnerable, and it is imperative to be particularly sen-

sitive to their protection needs, especially when they are unaccompanied or
separated. While dealing with a child, be it a girl or a boy, every officer should
act in his or her best interests, be able to communicate with him or her in a
child-friendly manner and take into account his or her possible additional spe-
cial needs. Special protective measures should be considered when there are
indications of child smuggling and/or child trafficking. For detailed advice on
how to identify children on the move at risk, consult the Frontex VEGA Chil-
dren Handbook.
Gender
Although both men and women migrate, migration is not a gender-neutral

phenomenon (148). Many women and girls, as well as men and boys in need of
international protection, may face increased risks and multiple forms of vio-
lence as a result of conflict and displacement, including forced and early mar-
riage, sexual violence, including sexual abuse and exploitation and domestic
violence (149). Women and girls in the migration context may find themselves
in a particularly vulnerable position due to their experience in the country of
origin and during their journey and may face threats, such as coerced ‘survival
sex’, trafficking in human beings and sexual harassment in transit camps and
reception centres (150). They may also face more significant obstacles in access-
ing asylum and have specific needs in the asylum process (151).
As pointed out in recital 32 of the Asylum Procedures Directive ‘with a view to

ensuring substantive equality between female and male applicants, examina-
tion procedures should be gender-sensitive. In particular, personal interviews
should be organised in a way which makes it possible for both female and
male applicants to speak about their past experiences in cases involving gen-
der-based persecution.’ Article 10(3)(d) of the same directive states that the
Member States must ensure that the personnel examining applications and
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taking decisions can seek advice, whenever necessary, from experts on par-
ticular issues, such as medical, cultural, religious, child-related or gender issues.
While it does not mean that all women have the same degree of vulnerabil-
ity, particular attention should still be paid to their possible protection and/or
additional special needs. For example, specific support should be given so that
women and girls can speak with border and coast guards privately and nobody
intervenes and/or answers questions on their behalf. Information should also
be provided directly to them, so they are not deprived of vital information and
the ability to make independent decisions, including to request international
protection or other assistance.
If possible, the presence of a female first-contact official and interpreter in the

case of female applicants should be ensured. Women should not be urged to
talk about incidents or crimes related to sexual and gender-based violence. If
appropriate, considering their age, women should be sensitively asked if they
are pregnant and, if needed, be informed of available assistance.
Family status
It is essential to take into consideration the family status of a person. Specific

categories of persons, such as unaccompanied or separated children, single
women or single parents with children, may be in a particularly vulnerable sit-
uation and may have protection as well as additional special needs.
What the person says
A person’s statements are key, and sometimes they are the only indication of
whether she or he may wish to apply for international protection. They could
also constitute the making of an application itself. Generally, if the person ex-
presses, in any way, fear of or anxiety about persecution or serious harm if re-
fused entry, this should be considered as an indication. Some of the critical
words, expressions or messages that may signal that a person may wish to
apply for international protection are listed below.
Fear — for example, the person is afraid to return to his or her home coun-
try, fears persecution, is afraid of being imprisoned in his or her home coun-
try or is afraid of being killed if he or she is returned home.
Death — for example if the person is afraid of being killed upon return.
Persecution — for example if the person says that he or she was persecuted
in his or her home country or is in fear of being persecuted upon return.
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Torture — for example if the person says that he or she or his or her family
members were tortured or if he or she reveals scars or other injuries pos-
sibly resulting from torture.
War — for example if the person says there is a (civil) war or armed con-
flict occurring in his or her home country or he or she is afraid of being
killed in the war, etc.
Return — for example if the person says that he or she cannot return to
his or her home country, or if the person is afraid to return, has nowhere
to return to or is afraid of being persecuted, imprisoned, tortured or killed
if he or she is returned home.
UNHCR (UN) or a lawyer — for example if the person asks for the UN or
UNHCR, wants to see a UNHCR representative, wants to see a lawyer, etc.
Children who are capable of forming their own views should be entitled to ex-
press those views freely in all matters affecting them, with the views of the
child being given due weight in accordance with his or her age and maturity.
1.12.6. Indicators
Approaching/avoiding the officer
Nearly everywhere in the world, an officer can be identified by her or his uni-
form. The uniform conveys power and authority and may have a powerful
psychological impact on those who see it. Persons who may wish to apply for
international protection are likely to approach a uniformed person and estab-
lish contact with the latter. However, be aware that people may also come
from countries where a uniform generates mistrust or even fear. People of-
ten avoid those in uniform because they fear the consequences of illegal en-
try, possession of forged or false documents or not having documents at all.
In these cases, border and coast guards should be able to interpret such sig-
nals to react or provide assistance appropriately.
Fear
Fear generates high levels of stress, which may manifest itself in many ways,
both physically and emotionally. Strong fear may completely immobilise a per-
son and cause passivity and apathy. Alternatively, it may cause hyperactivity,
aggressiveness and/or peculiar behaviour. Border and coast guards need to be
aware that anyone can have protection needs, no matter how she or he acts.
Fear and stress can make it difficult for the person to understand questions
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and stay focused. Therefore, it is crucial to create an atmosphere of safety and

security by giving them both information and explanations.
Interactions
Nearly all groups are based on interdependence, whether the group is large or
small, formally structured or loose or focused on one activity or another. Re-
lationships of a different nature can be established within a group, both pos-
itive relationships of mutual trust and support and unhealthy relationships of
dependency, submission, control and abuse. That is why one should pay atten-
tion to the interaction between members of a group and look for unhealthy
and concerning signs. Everyone should be given a chance to speak with border
and coast guards individually, including children and women. Nobody should
intervene and/or answer questions on their behalf, except when acting in his
or her best interests.
Appearance
Visible wounds, injuries or scars may be a strong indication of protection needs.

Other external signs, such as type and appearance of his or her clothing, the
adequacy of luggage and other belongings that the person carries with him or
her, may indicate a wish to apply for international protection. However, any-
one can have protection needs, no matter how he or she looks.
Body language
Border and coast guards must pay attention to the body language of a per-
son, such as his or her facial expressions, body posture, gestures, tone of voice,
etc. The ability to understand and use non-verbal communication is a power-
ful communication tool and can be an important indication that a person may
wish to apply for international protection. However, be aware of the cultural
and gender-based differences in non-verbal communication. The meaning and
use of body language and nonverbal signals vary from culture to culture, and
these differences can cause misunderstandings. Therefore, border and coast
guards need to consult with their superiors whenever they have any doubts
about the intentions of the person in front of them. An incorrect decision, for
example refusal of entry, can have severe consequences for such a person and
border guards should always consider any further actions.
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1.12.7. Key procedural steps
Border and coast guards must ensure that a person who may wish to apply for
international protection is informed about the possibility of doing so, advised
on how to do so and referred to the competent national authorities. This is
how access to the asylum procedure can be effective in practice.
Provision of information
The primary purpose of providing information is to ensure that persons who

may be in need of international protection have effective access to the asy-
lum procedure and can make well-informed decisions about whether to ap-
ply for international protection. Therefore, information needs to be provided
in a timely manner and should be as complete as possible, given the circum-
stances. Border and coast guards should provide necessary information about
international protection and the asylum procedure to persons who may wish
to apply. The information and the level of details provided may vary accord-
ing to the circumstances, but they should at least include information about:
the basic rights and obligations of the person;
what international protection is;
who is considered to be a refugee or a beneficiary of subsidiary protection;
where and how the application for international protection can be made
and lodged.
In particular, border and coast guards need to inform the applicant about where
and how the application may be lodged, clarifying:
what lodging is, including the consequences if the applicant does not lodge
his or her application;
which authority is responsible for the asylum procedure;
what they need to do in order to lodge the application;
where they should go to apply;
how they can get there.
Border and coast guards need to make sure that they are aware of the infor-
mation to be provided, based on national practice, and have the contact infor-
mation of responsible authorities to hand, including specialised child protection
services and other stakeholders, such as interpreters, NGOs, the UNHCR and
any other organisation providing legal advice or other assistance. If applicable,
they should make sure to have extra copies of any information leaflets and bro-
chures in the relevant languages. It is necessary to communicate in a language
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understood by a person who may require the presence of an interpreter. Com-

munication should be adapted to the person’s special needs and circumstances,
including age and gender sensitivity and/or a child-friendly approach.
Recognising an applicant
Anyone who has expressed the intention to apply for international protection
(i.e. who made the application) is considered to be an applicant for international
protection with all the rights and obligations attached to this status. Under
EU asylum law, a person is considered to make an application for international
protection when she or he expresses, in whatever way and form, the wish to
apply or if it is understood that she or he is seeking international protection.
First-contact officials will often be the first representative of their country
that third-country nationals reaching the EU will meet and with whom they
have, for the first time, the chance to express their wish to apply for asylum.
The task of border and coast guards is to recognise that a person has expressed
the wish to apply for international protection, provide him or her with relevant
information and refer him or her to the appropriate authority. It is not their
responsibility to examine the merits of the person’s asylum claim and decide
whether she or he should be granted international protection. A different pro-
cedure will follow elsewhere, conducted by other officials, to assess the per-
son’s protection needs and right to international protection.
Registering an applicant
After an application has been made, it must be registered by the competent

authority. The border and coast guards need to register the application, if ap-
plicable, or refer the application to the competent authorities for registration.
The objective of the registration process is to make the rights and obligations
resulting from making the application more effective. Therefore, the registra-
tion should be completed as soon as possible, within the time limits prescribed
by EU law: if the first-line officer works for an authority that is competent to
register the application, it must be done within 3 working days; if the border
and coast guard is not competent to register the application, the border and
coast guard should refer the application to the competent authority so that it
is registered no later than 6 working days after the application was made. It is
recommended to keep a written record, in accordance with the national pro-
cedures, that the application was received.
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Identifying special needs
This action should be conducted without delay. For applicants with multiple
needs, the border and coast guard will need to consider which referral mech-
anisms need to be activated and in which order, so they can respond to all
special needs of the applicant. Thus, for example, in the case of victims of traf-
ficking or unaccompanied children, adequate protection mechanisms may need
to be activated in parallel to the asylum procedure. To better identify the spe-
cial needs of vulnerable persons, the border guards may use the EASO prac-
tical tool for the identification of persons with special needs (IPSN) (available
at https://www.easo.europa.eu/ipsn-video-nsl.).
Taking proactive action if a person who may need protection does not
want to apply
Border and coast guards may encounter situations where a person who may
have protection needs decides not to apply for asylum. It is his or her right of
choice and nobody can force him or her to do so. However, border and coast
guards need to remember that, in such cases, they still must fulfil some obli-
gation placed upon them under international and EU law, such as:
ensure the principle of non-refoulement;
inform the person about the possibility of applying for international protection.
Border and coast guards should consult their superior whenever they have
doubts about the intentions and needs of the person in front of them, espe-
cially if his or her return to their country of origin or transit would constitute
a possible breach of international law. They should then act in line with the
national operating procedures for further follow-up.
1.12.8. Multiple protection needs
Apart from the need for international protection, some persons may have other
protection needs that require urgent attention. For example, a person may be
both a victim of trafficking and in need of international protection or both an
unaccompanied child and in need of international protection. Identification of
these multiple needs and referral to appropriate procedures, especially in the
immediate post-arrival phase, can be very challenging.
However, categorising different groups of arrivals should not detract from the
development of measures to protect the human rights of all persons without
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differentiation, including the right to asylum. For example, in the case of vic-
tims of trafficking and unaccompanied children, adequate protection mecha-
nisms need to be activated as soon as possible. However, their right to asylum
has to be guaranteed as well, and the required steps within the asylum con-
text have to be conducted simultaneously.
1.13. Complaint mechanism
1.13.1. Issuing a complaint
The legal obligation of the Agency, in cooperation with the Fundamental Rights
Officer, to establish a complaints mechanism to monitor and ensure respect for
fundamental rights in all the activities of the Agency falls under Article 72 of
the European Border and Coast Guard Regulation, adopted in 2016. The Fron-
tex Executive Director adopted the decision to establish the complaints mech-
anism, and the mechanism entered into force on 6 October 2016 (151).
In accordance with the regulation, a complaint may be lodged by any person

who is directly affected by the actions of staff involved in a joint operation, pi-
lot project, rapid border intervention, migration management support team
deployment, return operation or return intervention and who considers him-
or herself to have been the subject of a breach of his or her fundamental rights
in relation to those actions. Complaints can be submitted by a person of any
age and may be represented by any person or organisation acting on the be-
half as a representative.
A complaint may be made even if the complainant has not sought domestic
remedies, whether administrative or judicial. However, it needs to be made
within 1 year of the date on which the alleged violation of the fundamental
rights occurred or on which the complainant was informed or learnt about
the alleged violation, provided that the complainant was not otherwise pre-
vented by any circumstances from making a complaint about the an alleged
violation. Moreover, the complaint can concern only facts that occurred after
the date of entry into force of the abovementioned decision.
Complaints should be lodged in written form and must contain sufficient de-
tails of the alleged fundamental rights violation to be considered admissi-
ble. Frontex provides official complaints forms, which are available in several
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languages on its website, but the complainants are not obliged to use this for-
mat. The Frontex staff and members of the teams have an obligation to pro-
vide information about the complaints mechanism and complaint form to any
person who expresses a wish to report an alleged fundamental rights violation.
1.13.2. Handling a complaint
The Frontex Fundamental Rights Officer is responsible for handling complaints

received by the Agency. After a careful review process, the Fundamental Rights
Officer issues a decision on admissibility and forwards admissible complaints
to Frontex Executive Director. According to the right of good administration,
if a complaint is admissible, the complainant must be informed that a com-
plaint has been registered, an assessment has been initiated and a response
may be expected as soon as it becomes available. The Executive Director en-
sures an appropriate follow-up, in consultation with the Fundamental Rights
Officer, including disciplinary measures as necessary and reports back to the
Fundamental Rights Officer about the findings and follow-up.
In case an incident involves a border guard from a host Member State or mem-
bers of the teams, the Fundamental Rights Officer forwards the complaint to
the home Member State and informs the relevant authority or national com-
petent body for fundamental rights. In such a situation, the complainant should
be provided with their contact details. The home Member State is in charge of
ensuring appropriate follow-up, including disciplinary measures where neces-
sary or any other measures provided by national law. In cases where a border
guard or a seconded national expert is proven to have breached fundamen-
tal rights or international protection obligations, Frontex is entitled to request
that the Member State remove such a person immediately from the Agency’s
activity or the rapid reaction pool.
Where a complaint is inadmissible, the complainant must be informed of the rea-

sons and, if possible, provided with further options for addressing their concerns.
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OPERATIONAL PART
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Operational part: Module II

2. Module II: Impact of first-line border
activities on fundamental rights
2.1. Regular border checks
2.1.1. Overview on border checks
States have the right to determine the entry/exit conditions on their territory
in line with existing International and EU law. The entry/exit conditions for EU
Members States are regulated primarily by the Schengen Borders Code Regu-
lation. Standard border checks procedures consist of:
first-line border checks, where the documents and requirements are firstly
verified and then a short interview is performed;
second-line border checks, which should be carried out for further verifi-
cations if needed.
These checks are performed at border crossing points and are carried out on
any person crossing the border without prejudice to the rights of persons en-
joying the right of free movement and the rights of refugees and persons re-
questing international protection. Regulation (EU) No 1053/2013 foresees an
evaluation and monitoring mechanism to verify the application of the Schen-
gen acquis of, inter alia, the performance of border checks and compliance with
fundamental rights by the Member States.
2.1.2. First- and second-line border checks
Border guards carrying out first- and second-line border checks must always be
aware of the impact of their operational tasks on fundamental rights so as not
to violate any of them during their activities. In order to better perform their
duty, border guards need to be provided with adequate equipment and appro-
priate training. In addition to the EU Charter of Fundamental Rights, some of
fundamental rights relating to border checks are explicitly spelled out in the
secondary EU law, particularly in the Schengen Borders Code Regulation. Arti-
cle 7 of this regulation states that border guards must, during the performance
of their duties, fully respect human dignity, in particular in cases involving vul-
nerable persons, and must not discriminate against persons on the grounds of
sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.
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Any measures taken during the performance of their duties must be propor-
tionate to the objectives pursued by such measures. Fundamental rights en-
shrined in international and EU law must be granted to any person seeking to
cross the border. States have the right to determine the entry/exit conditions
on their territory in line with existing international and EU law. The entry/exit
conditions for EU Members States are regulated primarily by the Schengen
Borders Code Regulation. As mentioned above, standard border checks pro-
cedures comprise the checks below.
First-line border checks
Taking into account the short duration and limited verbal interaction between
the border guard and a person at the first-line border checks, a violation of hu-
man dignity may mostly occur as a result of an improper examination of entry
conditions. Since the first-line border checks are performed in open areas, in
proximity to other people, all examination measures must be aimed at limit-
ing the first-line interview to the purpose of gathering only information that
is necessary for establishing the entry conditions, in full respect for traveller’s
right to privacy. Border guards must not act in a way that could lead to inhu-
man or degrading treatment of the persons interviewed.
During the first-line border checks interview, a border guard’s questions should
be directed towards the issues connected with the entry conditions. Questions
should be framed and delivered in a professional and respectful way that will
not violate a traveller’s privacy (e.g. a border guard should not talk too loudly,
they should not gesticulate, the discretion line should be respected by other
travellers, etc.). In a case where communication with a traveller is limited be-
cause of a language barrier, the questions should be phrased using short sen-
tences and well-known terms that the traveller can understand. All other
questions or measures not related to the establishment of the entry condi-
tions should be avoided.
Second-line border checks
According to Article 7(5) of the Schengen Borders Code Regulation, third-coun-

try nationals subject to a thorough second-line check must be given information
on the purpose of and the procedure for such a check. This information must
be available in all EU official languages and in the language(s) of the country or
countries bordering the Member State concerned. It must also indicate that the
third-country national may request the name or service identification number
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of the border guards carrying out the thorough second-line check, the name
of the border crossing point and the date on which the border was crossed.
More extended, thorough procedures in the second-line border checks can

present a higher risk of human right violations in the case of improper perfor-
mance by border guards. In general, the second-line border checks must be
performed in separate areas, as more intrusive body, luggage and document
searches may have an impact on the dignity and integrity of a traveller. For this
reason, the second-line checks should be based on proper motives (e.g. doubts
about the travel documents, about the reasons of stay, etc.).
In order to respect human dignity, border management authorities must en-

sure that adequate office space and waiting areas are available to facilitate
the professional conduct of second-line border checks. Holding rooms at the
border crossing point must accommodate men and women in separate wards
and need to be appropriate for families. As a result of the time needed for sec-
ond-line procedures and decision-making (e.g. refusal of entry or issuance of a
visa), people who are being checked or investigated sometimes have to wait
for hours. In these cases, they must be provided with food, water and other
sanitary or medical facilities that are required.
Border management authorities must also ensure that body searches are car-
ried out by same-sex officers. Separate facilities must be available, as well as
a sufficient number of gender-balanced staff on duty who are trained in con-
ducting searches. The procedures and purpose of the searches must be ex-
plained explicitly to those undergoing the checks. In addition, border guards
must be trained in linguistic skills, or interpreters should be available to im-
prove and facilitate communication and interaction.
Example of breach of rights
At the airport, a second-line officer on duty makes the decision to refuse

entry to a woman whose documents seem to be regular but who does
not fulfil the means of subsistence requirement. The first flight available to
send her back home is in 2 days, and this woman must wait in a small room
until then, seated on a chair, provided only with a bottle of water and a
packet of crackers. Every time she needs to go to the toilet, she has to ask
the border guard on duty and wait for a female officer to accompany her.
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2.1.3. Impact of regular border checks on fundamental rights
Prohibition of slavery, forced labour and trafficking in human being
Pursuant to Article 11 of Directive 2011/36/EU of the European Parliament and

the Council of 5 April 2011 on preventing and combating trafficking in human
beings and protecting its victims and replacing Council Framework Deci-
sion 2002/629/JHA, each Member State has an obligation to provide assistance
and support to victims of trafficking in human beings in line with international
law, EU law and national legislation. When identifying and protecting the vic-
tims of trafficking in human beings, it should be noted that, in line with re-
cital 12 of Directive 2011/36/EU, special attention should be paid to particularly
vulnerable persons, including all children at the very least. Other factors that
could be taken into account when assessing the vulnerability of a victim in-
clude gender, pregnancy, state of health and disability. While performing their
tasks, border guards must pay attention in order to recognise specific indica-
tors, identify those people who could be victims of trafficking and subsequently
separate the presumed victim from the alleged trafficker. In the presence of
such indicators, the first-line border guard should send the alleged trafficked
person to the second line where further investigation can be carried out, and
the victim must be informed about the possibility of protection and the re-
lated procedures.
At an EU external land border crossing point of the Member State (MS)

Neverland, a border guard checks nine persons trying to cross the bor-
der in a minivan driven by a third country (TC) Utopia national. The pas-
sengers of the minivan are all young men aged around 25 years old. All of
them have forged TC Utopia documents and, during the second-line in-
terview, they declare that they are in fact from TC Mordor. According to
the national and local risk analysis and the existing risk indicators, TC Mor-
dor nationals are at a very high risk of being trafficked. In fact, in MS Nev-
erland, these people are usually exploited by local farmers for their hard
work in the fields. The shift leader, based on his or her own assessment,
makes the decision to refuse them entry, because it is a case of irregular
immigration and no further investigations are needed.
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Principle of non-discrimination
As mentioned previously, the Frontex Regulation also includes a number of

provisions regarding the application of non-discrimination.
The regulation respects fundamental rights, observes the principles recog-
nised by Articles 2 and 6 of the TEU and reflected in the EU Charter of Fun-
damental Rights, and seeks to promote the application of the principle of
non-discrimination (recital 49).
During deployment, members of the European Border and Coast Guard teams
must, in the performance of their tasks and in the exercise their powers, fully
respect fundamental rights, including access to asylum procedures, and hu-
man dignity. While performing their tasks and exercising their powers, they
must not discriminate against persons on grounds of sex, racial or ethnic
origin, religion or belief, disability, age or sexual orientation (Article 21(4)).
A code of conduct for the return of returnees, which is to apply during all
return operations and return interventions coordinated or organised by
Frontex, will assure return in a humane manner and with full respect for fun-
damental rights, in particular the right to non-discrimination (Article 35(2)).
In order to respect the right of equality at border checks, border guards must
be trained and well-educated on the issue. Quality control measures should
be addressed, and frequent stress tests should be a part of quality control. In
the context of external border control, Article 7(2) of the Schengen Borders
Code Regulation requires border guards not to ‘discriminate against persons on
grounds of sex, racial or ethnic origin, religion or belief, disability, age or sexual
orientation’. It means that nobody must be treated less favourably than an-
other is in a comparable situation. When a person is stopped and sent to the
second-line for reasons based solely or mainly on the abovementioned char-
acteristics, discrimination can occur, and the action is considered unlawful.
Although it is acceptable for sex, racial or ethnic origin, religion or belief, dis-
ability, age or sexual orientation to be one of the factors that a border guard
officer takes into account, it cannot be the sole or main reason for sending a
person to the second line. At first-line border checks, border guards may refer
some travellers to the second-line checks on the basis of risk analysis. Dur-
ing this phase, it is crucial to inform the persons about the purpose and pro-
cedure accompanying this check.
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At the air border crossing point of MS Neverland, two persons undergo

first-line checks. One person is obviously of TC Utopia origin and the other
is of TC Mordor origin. Both do not fulfil entry conditions. However, only
the TC Utopia citizen is sent to second-line check.
Based on national and local risk analysis at air border crossing points of MS
Neverland, there is a high risk of TC Utopia citizens not fulfilling the en-
try conditions to MS Neverland. Consequently, because of arising doubts,
first-line border guards usually transfer people who present a TC Utopia
passport to the second-line checks, where they are systematically checked
in a separate room. They must wait for check procedures because citi-
zens coming from other countries have priority. Consequently, all TC Uto-
pia citizens must wait for a very long time before a decision about their
situation is made.
Right to personal data protection
Database checks, when carried out, have to respect privacy and data protec-
tion principles in accordance with the abovementioned EU and national legis-
lation, the recommendations for the correct application of the Schengen acquis
and the best practices regarding the Schengen Information System.
In general, it should be emphasised that Article 5(1) of the GDPR requires that

third-country nationals are informed about the relevant aspects of their per-
sonal data being processed in a transparent, intelligible and easily understanda-
ble manner (153). In this regard, FRA has particularly expressed the opinion that:
the right to information must cover all purposes of the data processing
in IT systems in the field of asylum and migration management and must
include information on how to exercise the right of access, correction and
deletion. EU Member States should strengthen their efforts to provide in-
formation in an age- and gender-sensitive way, as well as in a culturally
appropriate manner. Particularly in the context of processing biometric
data for Eurodac, consideration could be given to complementing stand-
ard leaflets with short illustrative videos that inform people in an acces-
sible way (154).
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As shown below, Article 5(1) of the GDPR defines the principles related to the
processing of personal data in EU Member States.
1. Personal data shall be:

a) processed lawfully, fairly and in a transparent manner in relation to the
data subject (‘lawfulness, fairness and transparency’);
b) (b) collected for specified, explicit and legitimate purposes and not fur-
ther processed in a manner that is incompatible with those purposes;
further processing for archiving purposes in the public interest, scien-
tific or historical research purposes or statistical purposes shall, in ac-
cordance with Article 89(1), not be considered to be incompatible with
the initial purposes (‘purpose limitation’);
c) adequate, relevant and limited to what is necessary in relation to the
purposes for which they are processed (‘data minimisation’);
d) accurate and, where necessary, kept up to date; every reasonable step
must be taken to ensure that personal data that are inaccurate, hav-
ing regard to the purposes for which they are processed, are erased or
rectified without delay (‘accuracy’);
e) kept in a form which permits identification of data subjects for no
longer than is necessary for the purposes for which the personal data
are processed; personal data may be stored for longer periods insofar
as the personal data will be processed solely for archiving purposes in
the public interest, scientific or historical research purposes or statis-
tical purposes in accordance with Article 89(1) subject to implementa-
tion of the appropriate technical and organisational measures required
by this Regulation in order to safeguard the rights and freedoms of the
data subject (‘storage limitation’);
f) processed in a manner that ensures appropriate security of the personal
data, including protection against unauthorised or unlawful processing
and against accidental loss, destruction or damage, using appropriate
technical or organisational measures (‘integrity and confidentiality’).
At any phase of border checks, border guards must be cautious both not to let
unauthorised persons view personal data and to conduct interviews a confi-
dential manner in a secure place where other persons cannot see and over-
hear. Only job-related motives justify access to personal data, and all acquired
information cannot be transferred to people who do not have legal grounds
to access it. Personal data can only be processed for the purpose for which it
was collected. Control booths have to be properly equipped with a darkening
film on the window and a stop line for the next traveller.
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Checked people have the right to be informed about the exact personal data
that have been collected, the purpose of the collection, the possible use of the
data and the possibility of data correction, as well as to redress/appeal op-
tions. Finally, it should be noted that under Article 17 of the GDPR, individuals
have the right to have personal data erased. This is also known as the ‘right
to be forgotten’. The right is not absolute and only applies in certain circum-
stances (155). In addition, regarding asylum seekers, Article 30, ‘Collection of in-
formation on individual cases’, of the Asylum Procedures Directive states that,
for the purposes of examining individual cases, Member States must not carry
out the two actions listed below.
a) disclose information regarding individual applications for international

protection, or the fact that an application has been made, to the alleged
perpetrator(s) of persecution or serious harm;
b) obtain any information from the alleged perpetrator(s) of persecution or

serious harm in a manner that would result in the perpetrator(s) being di-
rectly informed of the fact that an application has been made by the appli-
cant in question and would jeopardise the physical integrity of the applicant,
or his or her dependents, or the liberty and security of his or her family
members still living in the country of origin. In the case of asylum seekers,
a breach of confidentiality may, for example, raise the risk of ill treatment
of these persons falling within the scope of Article 3 of the ECHR on pro-
hibition of torture, inhuman or degrading treatment or punishment. For
all relevant purposes, the use of asylum seekers’ personal data by national
competent authorities must be deemed as work with the ‘sensitive data’.
At the sea border crossing point of MS Neverland, the data of a famous in-
ternational movie star, who is a TC Utopia citizen, are checked against the
ordinary databases (national and international ones). The first-line bor-
der guard finds out there is a generic Interpol record of this person hav-
ing been a suspected drug trafficker. Taking all necessary precautions,
this border guard discloses the information to a friend, who is a gossip
column journalist.
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Rights of vulnerable groups
There is no exhaustive list of vulnerable persons or their groups. For example,

children, including unaccompanied minors, who are victims of trafficking are
considered to be vulnerable persons. At the first-line check, border guards must
be well-trained to recognise the signs and indicators of vulnerability to refer
the vulnerable persons to the second-line for further investigation. At the sec-
ond-line, officers must use personal experience and professional skills, includ-
ing the knowledge of vulnerability indicators, to identify possible vulnerable
persons. They must also assist vulnerable persons in line with national legis-
lation and in accordance with the national referral mechanisms. For example,
in cases where these persons may like to apply for international protection,
the border guards must refer them to the national asylum authorities; how-
ever, in the cases of victims of trafficking, borders guards must refer such per-
sons to the relevant national referral mechanisms.
At the land border crossing point of MS Neverland, there is a man with a

boy who seems to be approximately 6 years old and who looks sad and
concerned. The border guard suspects that the child could be a victim of
trafficking but, as the man is getting angry because of the questions being
asked and as the bus is leaving, the border guard let them go. The officer
does not want to have any problems with the bus company as a result of
the delay caused by his actions.
Rights to asylum
While verifying entry requirements, a border guard officer should keep in mind
that everyone may apply for international protection, such as refugee status
or subsidiary protection status. The wish to apply for international protec-
tion does not need to be expressed in any particular form. One can express it
directly, or there might be some indications stating that a person is in need
of protection. By explaining the nature of border check and providing a per-
son with information, the latter may be encouraged to lodge an application.
When a person expresses the wish to apply for international protection at the
border, she or he must be given the opportunity to do so. An applicant for in-
ternational protection should be informed about her or his rights and obliga-
tions, including about the possible consequences of not complying with their
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obligations and not cooperating with the authorities, for example staying in
the territory of the country where the application was lodged until the asylum
procedure is finished. A person who expressed the wish to seek asylum cannot
be refused entry into the country. Border guards must ensure the access to the
national procedures for granting and withdrawing international protection.
At the land border crossing point of MS Neverland, during the first-line

check, a TC Utopia citizen (a country that seems to satisfy the criteria for
being considered a safe country of origin), expresses the wish to apply for
international protection. The person claims to be persecuted in his or her
country of origin because of his or her religious beliefs. The first-line of-
ficer refuses, explaining that he or she considers TC Utopia to be a safe
country with a democratic government and that there is no information
about such a persecution. However, the border guard does him or her a
favour: instead of detaining him or her, he or she is offered the possibility
of going back to TC Utopia via the same route he or she arrived.
Rights of stateless persons to international protection
Some migrants may be stateless. As they do not have a country of national-

ity, they do not have definite legal status and thus lack protection. In most
cases, they do not have any documents establishing their identity, including
travel documents. Because they are stateless, they do not have a country of
nationality to which they can be deported or repatriated. As a result, in the
case of entry being denied or expulsion, they will face insurmountable diffi-
culties, such as indefinite detention or serial expulsion. It is therefore critical
for border guards to identify potential stateless people, during border checks
and verification of entry requirements, among people applying for asylum and
other categories of migrants.
Rights to privacy and family life
Right to respect for private and family life enshrined in the Article 7 of the EU
Charter on Fundamental Rights and Article 8 of the European Convention on
Human Rights and Fundamental Freedoms must be guaranteed to anyone sub-
jected to border checks. Border guards cannot interfere in the exercise of this
right, unless the interference is in accordance with the law and is necessary in
the interest of national security, public safety or the economic well-being of
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the country. This right is to protect persons crossing the border against un-
justified interference by state authorities, in this case, border guards. Facilities
ensuring privacy during thorough checks must be available when searches of
the persons are necessary.
Border guards should ensure the right of privacy and family life to all individu-
als at all stages of border checks, paying particular attention to children. Guid-
ance on the proportionality and conduct of searches should be mandatory.
Searches going beyond a superficial examination of outer garments need to
be carried out away from public view and ensure privacy.
At the land border crossing point of MS Neverland, during the first-line

check, a family from TC Utopia goes through an extensive interview. The
public can hear the loud conversation and the conflict with the border
guards. The first-line officer sends the family to the second line, where
they are all strip searched together under the argument that family mem-
bers, between themselwves, cannot claim privacy rights.
Freedom of movement of persons in the EU
One of the EU’s objectives is to establish an area without internal frontiers in

which the free movement of persons is ensured, as set out in Article 26(2) of the
TFEU. The main purpose of border checks at border crossing points is to verify
that all persons crossing the EU’s external borders fulfil the entry/exit condi-
tions. The freedom of movement must be guaranteed to any person seeking
to cross these borders in line with international law, EU law and the national
legislation of EU Member States. The freedom of movement of persons may
be infringed if somebody fulfilling all entry/exit conditions, set in EU law and
national legislation, is not allowed to cross the border.
During the briefing, a shift leader says that each citizen of TC Utopia should
be send to the second-line check for a further check. Ten Utopian citizens
are waiting for the second-line check. A second-line officer performs the
further check by interviewing them and consulting MS Neverland data
basis. After the further check, all Utopian citizens are refused entry, even
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though some of them fulfil the entry conditions. However, there was no
particular grounds to justify a threat to national security and public order.
Other rights connected to regular border checks
> Right to life
The border guard should always act in a manner that protects the lives of in-
dividuals in every situation. For example, during regular border checks, border
guards may encounter situations in which immediate medical assistance may
be required for a person at the border-crossing point whose health condition
is critical. In such cases, the priority is to save/protect the lives of those indi-
viduals. This would apply, for example, in cases where people trafficked in ve-
hicles or ships have been detected during border checks and their condition
has been evaluated as critical. In emergency situations at the border crossing
points (e.g. in the case of large groups of persons crossing the border or hav-
ing crossed the border), the priority must be given to measures meant to pro-
tect the right to life.
> Right to healthcare
Article 35 of the EU Charter of Fundamental Rights provides that everyone has

the right to access preventive healthcare and the right to benefit from medical
treatment. However, the exact conditions of providing the healthcare are es-
tablished by national laws and relevant good practices. Despite this, the right
to emergency healthcare must be ensured for everyone by the State, regard-
less of migration status. While performing their duties, border guards should
also be looking for signs that may indicate any special needs or the require-
ment of medical care. Whatever emergency assistance is required, it should
be provided to everyone without discrimination.
> Right to the integrity of persons
Respect for the integrity of persons is also one of the main obligations, at all
stages, while performing regular border checks (when speaking about integ-
rity, we refer to physical and psychological/mental integrity). The improper in-
teraction between a border guard and a person during border checks can lead
to the violation of the individual’s integrity, for example a border guard telling
a migrant not to apply for asylum because, according to him or her, their ap-
plication would be unsuccessful.
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> Right to liberty and security
A person undergoing regular border checks should not be deprived of one’s

physical liberty without any justified legal grounds. In line with conditions
laid down by Article 47 of the EU Charter of Fundamental Rights, such a per-
son has the right to an effective remedy before a tribunal to dispute an act of
deprivation of liberty.
> Right to property
As the general rule enshrined in the Article 17 of the EU Charter of Fundamen-

tal Rights, no one may be deprived of his or her possessions, except when it
is in the public interest and in the cases, and under the conditions, provided
for by law and subject to a number of other conditions. If border guards be-
come aware of any facts justifying the seizure of property, they must act in
accordance with the relevant national, EU or international law. During regular
border checks, personal belongings cannot be seized without a justified rea-
son and without notifying the owner, in writing, in line with the relevant law.
2.2. Detection
Detection at sea borders
Detection at sea consists in obtaining a real-time situational picture of the ter-

ritorial waters of the relevant EU Member States using technical equipment
and/or human resources for the surveillance of cross-border movements and
to protect lives of people at sea. When detection at sea is compared with land
and air borders, the time that elapses between the detection phase and inter-
ception is longer. The situational data collection about various incidents at sea
is inconclusive and limited most of the time. Taking into consideration these
particularities, the right to life is the foremost priority and must be ensured.
Detection at land borders
The Eurosur Handbook defines the detection process as ‘becoming aware of

an object of interest’s presence and location’. The detection phase ends where
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interception begins, despite the very thin line between the two stages. Dur-
ing border checks, the time that elapses between the detection phase and in-
terception is practically non-existent, and, consequently, the two stages are
interlinked. Therefore, the enumeration of the rights mentioned below is not
exhaustive at this stage, as others may be identified in the following stage. A
close view of the standard operating procedures envisaged for the abovemen-
tioned checks also presumes security screening of the persons detected. During
this process, prohibited items might be noticed and might therefore lead to a
different tactical approach with the aim of ensuring the security of all: border
guards and other persons involved. The rights outlined below are involved in
this phase of the border control, and their full respect is to be ensured by the
way in which the border guards conduct themselves.
Detection at air borders
For border checks at airports, border guards must adopt an approach based on
risk assessment, intelligence, behavioural patterns as well as randomly applied
inspection processes. At the detection stage, border guards become aware of an
object of interest’s presence and location, and they gather information regard-
ing the upcoming development of the situation before the interception stage.
Detection at air borders includes, in particular, checking the list of passengers

who will be disembarking from ‘at risk’ flights (based on a factual risk analysis).
One of the most useful tools for border guard officers are the Advance Passen-
ger Information (API) system and passenger name record. One of the signifi-
cant benefits of API is to enhance law enforcement capability. By searching API
data, and by further corroborating it with the passenger name record data, it
is possible to detect, for example, criminals (e.g. foreign fighters, human traf-
fickers, smugglers) sought after in one or more EU Member States among the
passengers arriving at the destination.
2.2.2. Impact of detection on fundamental rights
Right to life
The detection phase involves the planning and preparation of interception. For
example, people detected at sea may be in need of rescue, and any inactions
by national authorities may lead to violations of the right to life of these peo-
ple. Further planning of measures should follow the visual/technical detection
moment to ensure the full respect for the right to life. Failure to do so might
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lead, during the foreseen interception phase, to the impossibility of providing

the necessary/appropriate reception conditions in due course. In some cases,
detection at borders may save individuals’ lives, for example where a detected
vessel capsizes at sea and the persons onboard need to be rescued.
Examples of breach of rights (land borders)
The use of inadequate equipment/human resources can jeopardise the

right of life both for the persons detected and for the border guards in-
volved. Incorrect assessment of the situation may lead to wrong/inade-
quate actions.
Any failure to act in some situations that are out of the operational area
or beyond the responsibilities of the border guard service of one EU Mem-
ber State (e.g. failure to inform the border guards of another EU Member
State) may violate the right to life of the persons.
Example of breach of rights (sea borders)
In this phase of the border control, as already mentioned, the first right
that needs to be protected by border guards is the right to life. The aim
that remains is to proactively collect data to protect life at sea, regardless
of whether detection is performed by physical or technical means. Failure
by national authorities to provide an adequate detection system (a set of
combined technical resources, human resources and procedures) in com-
pliance with relevant national legislation, EU law and international law,
in particular the Eurosur Regulation, UNCLOS, SOLAS and SAR, may lead
to a violation of certain fundamental rights, in particular the right to life
and the right to personal data protection. In order to prevent this, States
should develop systems for detection at sea, which include:
• the establishment of a legal framework for the detection system;
• the assignment of a responsible authority;
• the organisation of available resources;
• a communication system/facilities/network;
• coordination of/and operational functions;
• processes to ensure effective national and international cooperation.
In addition, FRA recommends that:
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EU Member States should ensure that staff deployed on vessels have
regular access to first-aid refresher courses and that those who live
through traumatising experiences have access to adequate mecha-
nisms to deal with these. EU Member States should ensure that pa-
trolling vessels deployed along migrant routes are equipped with basic
supplies, such as adequate medical kits and sufficient quantities of wa-
ter, food and blankets. (156).
Example of breach of rights (air borders)
Similar to the case of detection at the sea borders, the process of detec-
tion at air borders should not have an impact on the right to life in any
way. However, the use of inappropriate equipment can pose an indirect
threat to the enjoyment of the fundamental rights to life and/or to health
both for the persons detected and the border guards. For example, the
use of scanning equipment (RAPIDScan type) that uses Gamma and X-
rays might affect the safety and health of human beings, even leading in
some cases to death. Also, the inappropriate use or overuse of portable
thermal/night vision cameras might affect the health of the police offic-
ers, especially if used for long hours.
The detection phase involves the planning and preparation of interception, for
example whether people detected at sea may need to be rescued.
> In the context of sea borders
During the detection phase at sea borders, some personal data, if any, can be
collected. However, any personal data obtained should be processed in strict
compliance with EU and international law and, in particular, with rules regard-
ing the protection of personal data and in the context of the procedures re-
lated to the Dublin III Regulation, especially the relevant legal safeguards for
individuals, prohibitions and restrictions. This applies equally to the sharing of
personal data with a neighbouring third country.
Example of breach of rights (sea borders)
An IMO number (a ship identification number) is not considered personal

data unless it leads to a natural person (157). If a natural person can be
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identified on the basis of the IMO number, sharing this information may
violate his or her fundamental right.
> In the context of air borders
According to the WCO-IATA-ICAO 2013 Guidelines on API, API provides border

control agencies with data they could otherwise access upon the passenger’s
arrival and presentation at an immigration inspection desk. API data merely
provide data at an earlier time and through a different means with the aim of
expediting the passengers’ clearance. However, airlines may collect, store and
transmit passengers’ API to border control agencies only in accordance with
applicable national legislation. The guidelines emphasise that the privacy and
data protection legislation has been enacted in many countries in recent years
to protect the individual’s right to privacy and to allow individuals to exer-
cise their rights relating to the use of their personal data. This legislation can
vary from country to country. However, there is a large degree of commonal-
ity within the provisions of such legislation, for example in terms of process-
ing principles, as mentioned above. This legislation also incorporates provisions
concerning the rights of individuals regarding their personal data. There may
also be provisions regarding the disclosure of personal data to other parties
and the transmission of such data across national borders and beyond the ju-
risdiction of the country in which it was collected.
Example of breach of rights (air borders)

• A border guard sends the list of passengers to unauthorised persons,
who use this personal data for private purposes.
• A border guard officer makes the list of passengers available to unau-
thorised persons.
• The responsible border guard does not destroy the printed version of
the list of passengers in a proper manner just after the end of their shift
and or/duty.
> In the context of detection generally
Any processing of personal data by Member States within the framework of

the Frontex Regulation should be conducted in accordance with the GDPR.
National legislation transposing Directive (EU) 2016/680 of the European Par-
liament and of the Council of 27 April 2016 on the protection of natural per-
sons with regard to the processing of personal data by competent authorities
for the purposes of the prevention, investigation, detection or prosecution of
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criminal offences or the execution of criminal penalties, and on the free move-
ment of such data, and repealing Council Framework Decision 2008/977/JHA
applies in cases where the processing of data is necessary, primarily for the
purpose of ensuring a high level of internal security within the EU, especially
in the context of actions relating to the monitoring of migratory flows and risk
analysis, the processing of personal data collected during joint operations, pilot
projects and rapid border interventions and by migration management sup-
port teams or cooperation with EU institutions, bodies, offices, agencies and
international organisations. Any processing of personal data should respect
the principles of necessity and proportionality.
Example of breach of rights (land borders)
It is of the highest importance that the list of passengers is distributed to

border guard officers who are authorised to access it in line with the rel-
evant national legislation and EU law. Moreover, access to this informa-
tion and the information received are only for service use.
Personal data collected for intelligence and risk analysis purposes should be
processed in line with legislation. During this phase, data collection is limited
to what is evident from direct observation and queries in the available data-
bases (e.g. API data). Sharing the acquired information must be performed with
full respect for the right to personal data protection. Such data should be dis-
seminated by border guards only:
following the need-to-know principle;
to the competent national authorities and agencies, which fully respect rel-
evant legal provisions on personal data protection;
without any prejudice to the person or harm to his or her legitimate interests.
As border guards may be, to various degrees, involved in the asylum proce-
dure, in line with the national legislation of their countries, it should be noted
that EU asylum law, for example Article 48 of the Asylum Procedures Di-
rective, imposes an obligation on the EU Member States to ensure that au-
thorities implementing EU law are bound by the confidentiality principle, as
defined in national law, in relation to any information that they obtain during
the course of their work. The non-authorised dissemination of personal data
may be harmful to the person’s legitimate interest, and it infringes the right
to personal data protection.
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Any of the criteria mentioned below can be used by border guard officers
for detection procedures only when there are serious grounds to suspect a
breach of law. Developing unfounded suspicions about certain individuals, or
any groups of persons, leads to discrimination. No one should solely put a per-
son or a group of persons under suspicion on the basis of the mere existence
of any of the following criteria (which is not exhaustive):
sex,
race,
social condition or ethnic origin,
language,
religion or belief,
political stance or any other affiliation,
disability,
age or sexual orientation.
In the case of air borders, the principle of non-discrimination is relevant dur-

ing both the selection of flights considered ‘at risk’ and the profiling of the list
of passengers. The selection of flights has to be the result of a risk analysis
based on factual evidence and objective, relevant data. It must not be based
on unlawful or discriminatory practices.
2.3. Interception
Overview on interception
During the interception stage, border guards get in touch with persons (who
might have been previously detected) crossing the border or trying to cross it.
This is a very sensitive moment for both border guards and persons who have
been intercepted, because their lives may be in serious danger. During the in-
terception stage, the protection of the border guards must be foreseen, al-
lowing them to perform their duties accordingly and ensure the safety of all
people on the spot. The appropriate equipment and training paves the way for
a quality performance, as well as a detailed plan, when possible, which states
the modus operandi. Planning must be tailored to circumstances.
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All persons rescued or intercepted have to be provided with first aid through a
protection-sensitive and rights-based approach that guarantees their physi-
cal and psychological integrity. Special attention must be paid to the persons
in vulnerable situations, such as children, especially unaccompanied minors.
Transfer to the second line is the next step of the interception phase.
Transfer to second line
According to the circumstances, transfer to the second line may happen af-
ter a rescue (sea border) or because more thorough document checks are
needed (e.g. air border). In any case, border guards are called to pass on in-
formation regarding the destination point and the following steps, doing so
in a calm and balanced manner. In this phase, the border guards’ main task
is to identify vulnerable individuals or groups and provide them with tailored
care. During the transfer, border guards must identify any imminent threat
and prevent any complication. Any use of force must be preceded by warn-
ings, as long as this does not endanger the safety or the security of both sides
concerned. However, where the use of force is unavoidable, it is of the utmost
importance to ensure it is necessary, legitimate and proportionate and an ap-
propriate means of restraint.
2.3.2. Impact of interception on fundamental rights
Right to life
The concern for the safety of border guards and persons intercepted must be
considered at all times. Based on experience, the right to life is much more af-
fected during interception at sea borders than at land or air borders, because
the danger is more imminent. Therefore, at sea borders, the main objective
must be rescuing persons in need. On the contrary, at land or air borders, in-
terception happens, or sometimes coincides with, the first-line check, where
the right to life is not always at a serious and imminent risk. During the inter-
ception phase, it becomes more challenging to ensure the personal security
of border guards and the right to life and integrity of other persons involved.
To ensure efficiency, the interception should be at least planned and prepared

on the basis of the risk analysis reports and data and information gathered pre-
viously. Planning and preparation are crucial to ensure the full respect for the
principles of necessity, legality and proportionality when using police methods
and means during interception. Taking into account the risk to which border
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guards are exposed, general standard operating procedures must be foreseen

so as to provide the border guards with the necessary safeguards for their well-
being (e.g. communication, backup support, appropriate equipment, such as
rubber or surgical gloves, masks for conducting searches and equipment to
film the interception in order to allow an internal or external oversight, win-
ter protection equipment if necessary etc.).
Example of good practice
A group of persons is detected on a rubber dinghy operated by a facilitator

and is about to be intercepted on the high seas. At the sight of MC Avalon
open sea patrol vessel, the facilitator opens fire against the border guards
in an attempt to escape. The border guards do not reply in the same way,
because such action could threaten the lives of the persons on board.
Prohibition of torture or degrading treatment or punishment
During the interception phase, there are cases when the person intercepted
does not comply with the guidance provided by the border guards. In the
case of mass migration flows, the number of people intercepted frequently
outnumbers the number of border guards. The border guards must, there-
fore, apply measures of restraint in cases where it is necessary and justified.
In these cases, the standard procedure must be followed. It should be empha-
sised that torture and inhuman and degrading treatment or punishment are
strictly forbidden, in relation to both the apprehended individual and a group
of such people. It would be a violation of the prohibition of torture and inhu-
mane or degrading treatment if the border guards exceed the balance in their
use of force. For example, no one can be handcuffed to fixed points or solid in-
frastructure, such as walls, ceilings, floors, central heating radiator, etc, as this
constitutes inhuman and degrading treatment. Individuals must not be sub-
jected to practices that are unnecessary and/or painful and that amount to
inhuman and degrading treatment.
The facilitator of a group of irregular migrants is intercepted at the land

border of MS Utopia. The border guards ask him to stop, so they can check
him and, after that, transfer him to the border crossing point for the fol-
lowing procedures. The facilitator refuses to be checked and uses a knife
to threaten a child in his attempt to escape. Finally, border guards stop
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and handcuff him to a radiator. As a result of their suspicions about the

presence of a second facilitator in the group, border guards start beat-
ing him to obtain more information. This would be a violation of the pro-
hibition of torture and inhumane or degrading treatment, as the border
guards exceeded the balance in their use of force.
All persons intercepted must be treated with respect to their inherent dignity,
notwithstanding their sex, race, colour, ethnic or social origin, genetic features,
language, religion or belief, political or any other opinion, membership of a na-
tional minority, property, birth, disability, age or sexual orientation (Article 21
of the EU Charter of Fundamental Rights). Discriminatory behaviour in inter-
ception is when an individual or a group of persons receive a different treat-
ment, based not on factual evidence or risk analysis but on the grounds of an
arbitrary impression/prejudice deriving from stereotypes. A border guard must
take into consideration the risk analysis and indicators so as to be able to re-
spond promptly to his or her duties to the benefit of both sides concerned.
Examples of breach of rights

• From a group of persons intercepted at the MS Avalon air border, only
young males/females with a particular skin colour have been asked to
go through a further check by the border guards because of the colour
of their skin, which is considered an indicator for irregular migration.
If this decision is not the result of a risk analysis, based on factual evi-
dence, it constitutes an ungrounded prejudice and consists of discrim-
inatory treatment.
• A border guard officer selects passengers from the list to proceed to
further checks according to his or her private beliefs and prejudices,
without taking other factors, like risk analysis, into consideration.
• A border guard officer, while performing his or her task of profiling,
selects persons to proceed to further checks on the basis of their ap-
pearance, like skin colour, without taking into consideration the risks
indicators.
• A border guard officer orders all Utopians to go to the cabin number 1
and orders to all Mordorians to wait at the end.
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During the interception phase, all persons in need of protection may be con-
sidered as vulnerable. Nevertheless, children, unaccompanied minors, persons
with disabilities, victims of torture, victims of trafficking in human beings, per-
sons in need of medical assistance and other persons in a particularly vulner-
able situation must always take priority over others and must be entitled to
tailored care in due course. The reaction of the interception of one or more
persons must be prompt. The border guards’ response time must be organised
in such a way that it does not endanger the persons intercepted or the border
guards themselves. Border guards must act proactively. The good knowledge
of vulnerability indicators, as well as the combination of training and expe-
rience, results in the prompt identification of people with special needs and
allows border guards to collect information, manage priorities and organise
further actions. At the same time, border guards must de-stress and de-es-
calate the situation, passing on a message that everything is under control, to
establish a trust relationship with the persons intercepted.
Border guards intercepted a group of 27 persons and found that, within

the group, there were children, an old man and a person that presents in-
dicators of being a victim of trafficking. In this case, it is necessary to pay
specific attention to these persons, as they are particularly vulnerable. For
example, separating children from their parents and not paying particu-
lar attention to them would infringe their rights.
Right to asylum
Persons intercepted may be in need of international protection. The State has

the primary responsibility to respond to the international protection needs
of such persons within its territory, including its territorial waters. Therefore,
border guards must ensure that persons who express the wish to apply for
international protection are referred to the national competent authorities.
Principle of non-refoulement
Non-refoulement is a fundamental right of international law and customary

international law that forbids a country receiving asylum seekers from return-
ing them to a country in which they would likely be in danger of persecution
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based on ‘race, religion, nationality, membership of a particular social group

or political opinion’ (Article 33 of the 1951 Convention relating to the Status of
Refugees). It is absolute and non-derogable, preventing unjustified extradi-
tion, expulsion or removal.
It should be also noted in the context of EU Member States and the applicable
EU law, that Article 19(2) of the EU Charter of Fundamental Rights emphasises
that ‘no one may be removed, expelled or extradited to a State where there is
a serious risk that he or she would be subjected to the death penalty, torture
or other inhuman or degrading treatment or punishment’.
For all persons, regardless of their legal status (e.g. persons who are crossing
the external border of the EU in an irregular manner), the principle of non-re-
foulement is a core component of the prohibition of torture and cruel, inhu-
man or degrading treatment or punishment enshrined in Article 7 of the ICCPR,
Article 3 of the CAT and Article 3 of the ECHR. The prohibition of refoulement
applies to all locations and territories where the State may exercise its juris-
diction, such as at borders and at sea, including the high seas (e.g. in so-called
‘push back’ cases).
A rubber boat, with approximately 50 people on board, was detected by

MS Avalon’s CPB, while out of MS Avalon’s territorial waters, in the terri-
torial waters of the neighbouring country, which systematically violates
fundamental rights. Soon after, MS Avalon’s CPB, which sails along the
borderline, circles the rubber boat in an attempt to block the boat and
prevent it from entering its territorial waters. The third-country’s na-
val asset finally intercepts the rubber boat and drives it back to a country
where the persons onboard may suffer from torture, which consequently
deprives them of their right to seek asylum.
Right to healthcare
Interception must be carried out according to a general standard procedure,

ensuring minimum planning/preparation that allows border guards to perform
their duty properly and to the best interest of the persons intercepted. The
first priority after rescuing or intercepting persons in need is to provide them
with emergency healthcare if needed. This is especially the case during the in-
terception phase at sea borders. First aid kits and other relevant equipment
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must be available for distribution when needed. The provision of water and
food should follow. Pursuant to Article 35 of the EU Charter of Fundamen-
tal Rights, everyone has the right of access to preventive healthcare and the
right to benefit from medical treatment. Therefore, it is essential to provide
every person in need who is intercepted with the necessary emergency med-
ical care. Taking into consideration that some of the persons intercepted may
not be able to communicate their needs clearly, the border guards must carry
out their tasks using a proactive approach based on their knowledge and ex-
perience. At all times, the border guards must be alert to any signs that would
indicate a need for further communication with the competent medical cen-
tre assigned to deal with the situation that has emerged.
A group of persons is rescued by border guards in a search and rescue op-

eration. After having rescued the persons in need, the first concern of the
border guards must be the provision of first aid as well as food and water.
Other relevant rights in the context of interception
> Right to personal data protection
Unauthorised dissemination of the data collected during the phase of intercep-

tion may endanger health, life, well-being and personal security (e.g. in case of
applicants for international protection).
> Right to dignity
It is necessary to establish a way of communicating with the person detected,

in a gender-sensitive and child-sensitive manner. The lack of essential com-
munication might lead to the disrespect of human dignity. Further planning
must be undertaken after the detection phase to identify and protect vulner-
able groups or persons from discrimination.
> Right to liberty and security
In certain circumstances, the right to liberty and security can be limited by

a legitimate use of force that must respect the principles of legality, neces-
sity and proportionality. Any action that limits this right must be based on
these principles, otherwise such an action (e.g. an arrest or a detention) will
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be regarded as illegal, and its duration cannot be justified by any means. As

a procedural guarantee of this fundamental right, any interception should be
the subject of a detailed formal report mentioning any use of force and means
of restraint (handcuffs, etc.).
During the interception of a group of persons at sea, an aggressive person

grabs a child to use him or her as a means of pressure. He or she is hand-
cuffed after not complying with the orders given by the border guards and
posing a threat to the child’s life. Handcuffs were applied as a last resort
and were necessary, proportionate and in line with legislation.
> Right to property
Persons intercepted must not be deprived of their personal belongings. Dep-

rivation can be legitimate only in the case of necessity. All belongings gath-
ered during interception should be stored properly and returned to the owners
in the same shape.
A significant amount of money is found in the personal belongings of an

person intercepted at a land border. The border guards decide to verify
the origin of the money and, at the end of the investigation, they do not
return it to the owner, as nothing illegal has emerged. This consists of the
violation of the right to property.
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Operational part: Module III
3. Module III: Impact of second-line

border activities on fundamental
rights
3.1. Screening
Screening in the field of irregular immigration means to establish an assumption

of the nationality or lack of nationality — statelessness — of an undocumented
person who has crossed, or has attempted to cross, an external border irregu-
larly with a view to returning the third-country national to his or her country
of origin. As a procedure, screening is a visual, verbal, manual or electronic in-
spection of a person and their belongings aimed at establishing assumptions
on the nationality or lack of nationality — statelessness — of a person. In all
these activities, border guards have to respect the fundamental rights of those
who are screened. Border guards who have non-professional attitudes and
disregard the procedural rules may infringe some fundamental rights of the
persons screened. Besides establishing an assumption of nationality, screen-
ers should have a proactive attitude to identify vulnerable persons. Failure to
identify vulnerable persons, by disregarding their vulnerable position or mis-
treatment, may also violate some of the most important fundamental rights
of the persons. Similarly, screeners should be able to recognise the persons in
need of international protection and bear in mind that family members should
not be separated at any stage. Failing to take these issues into account could
also lead to the violation of the fundamental rights of the persons screened.
3.1.2. Preparatory measures for screening
Efficient performance of a screening process depends on the preparatory work

prior to the start of the process. Screenings that are properly prepared not only
enable a better efficiency in establishing the nationalities or lack of nationality
— statelessness — but also prevent the violations of the fundamental rights
of those screened. In cases where the arrival of a large number of persons is
expected, the implications of the workload of the border control authorities
is even higher. Preparation should be in organised in the format of plan, which
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specifies various measures, such as securing medical help and psychological

support for the persons screened, accessing information on the counties of or-
igin, providing interpreters and/or the cultural mediators, striving to secure the
highest possible level of privacy and data protection and any other measures
that can ensure a safe and secure screening environment. It is crucial to en-
sure that the interpreters are neutral and objective during the performance of
their tasks. Providing a safe and secure screening environment, not only for the
persons screened but also for the screeners and other persons involved in the
screening process, can greatly improve screening efficiency, besides securing
the fundamental rights of the persons screened. Often the preparation meas-
ures cannot be provided solely by border control authorities, which means that
cooperation with other international organisations, EU agencies and national
authorities (e.g. the UNHCR, the IOM, EASO, the Red Cross/Crescent, health-
care authorities, etc.) is strongly encouraged during this phase.
3.1.3. Impact of screening on fundamental rights
Right to life
Screeners have the obligation to protect the right to life of the persons screened.
They are required to take concrete measures at the organisational and opera-
tional level to guarantee the enjoyment of this fundamental right. This means
that the border control authorities have to provide a screening environment
where the lives of the persons screened, as well as the screeners or other per-
sons involved in the screening process (e.g. interpreters), will not be endan-
gered in any way. To protect the right to life of the persons screened, screeners
have to detect and prevent any threat that might endanger the person’s life,
including those emanating from the internal relationships between the per-
sons screened, for instance the trafficker, and the victim. In a case where such
a threat exists, the screening process should be stopped until the threat has
been eliminated. Similarly, the screener must maintain full awareness of his or
her personal security during the screening process. Conducting screenings in
an environment considered dangerous for the screener’s life leads directly to
the violation of the screener’s right to life.
Conducting screenings with vulnerable groups (e.g. in cases where a vul-

nerable person is in the final stage of pregnancy) may lead to the violation
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of the right to life if unaware of circumstances (e.g. premature birth and

subsequent death of a child caused by stressful conditions).
Right to human dignity
The screener should always maintain a professional attitude, with full respect
for social, gender and cultural differences, while communicating with the per-
son screened. Securing human dignity, in the broadest sense of the word, must
be an essential element of any strategy regarding screening procedures. An
improper performance during the interaction between a screener and a per-
son screened leads to a violation of human dignity.
During the interview, questions should be directed on issues connected

with the origin of the migrant. Questions should be asked in a way that
will not violate the person’s integrity (e.g. a border guard should not talk
too loudly, they should not gesticulate and others should respect the dis-
cretion line). In a case where communication with an undocumented per-
son is limited because of a language barrier, questions should be phrased
using short sentences and well-known terms that the person in question
can understand. In any case, the screener is not allowed to act in an of-
fensive way. All other questions or measures that are not relevant to de-
termining the nationality should be avoided.
Protection of personal data
As mentioned before, any processing of personal data by national border au-

thorities at external borders, with a view to managing the crossing of its ex-
ternal borders efficiently, is governed by the GDPR. However, if such processing
is connected with the prevention, investigation, detection or prosecution of
criminal offences or the execution of criminal penalties and the exchange of
such data, national laws, which have transposed Directive (EU) 2016/680, must
apply. The screening process mainly comprises a verbal interaction with the
person, and information is rarely stored in written or electronic format. How-
ever, personal data collected during the brief conversation aimed at establish-
ing an assumption of nationality or lack of nationality — statelessness — and
the country of origin is to be protected during the process. Screeners may pro-
cess (collect) personal data (name, surname, date of birth and any other infor-
mation relevant to the cultural or social identity of the person that can help
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the screener to identify the person screened) only in the scope of assuming
nationality. The processing of such data must respect the principle of neces-
sity. Screeners are to process this data only with full respect for the right to
protection of personal data, which translates in this case to a limited dissem-
ination of such data to law enforcement authorities.
Dissemination of personal data to persons not officially entitled to carry

out the procedure of screening may lead to a violation of the personal
data protection right.
One of the main tasks of the screeners that needs to be emphasised, besides
establishing an assumption of nationality or lack of nationality — stateless-
ness — of the persons screened, is the identification of vulnerable groups.
This means that the role of the screeners during the process of protection of
vulnerable groups is critical. Concentrating on the establishment of the real
nationality of the persons screened should not prevent screeners from recog-
nising indicators that may lead to a conclusion that a person might belong to
a vulnerable group (e.g. a victim of human trafficking, a victim of slavery, etc.).
The screeners must focus on groups of persons who are especially vulnerable
to abuse that are structurally discriminated against (e.g. women) and those
groups that have difficulties defending themselves and are therefore in need
of special protection (e.g. children, unaccompanied minors, disabled persons,
etc.). Failure to identify such persons can lead to the violation of the rights of
vulnerable persons in further proceedings and to a situation in which such per-
sons will not be granted special protection, even when needed.
During the screening procedure, if a person declaring himself or herself

to be an unaccompanied minor is refused special protection because the
screener believes that he or she is adult (based only on a first impression
of the physical appearance of the person screened), a violation of rights
of vulnerable persons occurs.
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Right to international protection
Everyone should have access to the asylum procedure as well as adequate in-
formation concerning the procedure to be followed. Under the Qualification
Directive and the Asylum Procedures Directive, a person may apply for ‘inter-
national protection’ and be included in the asylum procedure, with a view to
receiving protection in the form of either refugee status or subsidiary protec-
tion status. A refugee within the meaning of Article 1(A) of the 1951 Geneva
Convention is a person who is outside his or her country of nationality or ha-
bitual residence, has a well-founded fear of being persecuted because of his or
her race, religion, nationality, membership of a particular social group or polit-
ical opinion and is unable or unwilling to avail himself or herself of the protec-
tion of that country, or to return there, for fear of persecution.
A ‘person eligible for subsidiary protection’ means a person who does not qual-
ify as a refugee but in respect of whom substantial grounds have been shown
for the belief that the person concerned, if returned to his or her country of
origin, or in the case of a stateless person, to his or her country of former ha-
bitual residence, would face a real risk of suffering serious harm and is unable
or, owing to such risk, unwilling to avail himself or herself of the protection of
that country. There is a set of detailed provisions in this directive describing
the criteria of eligibility for this status.
Consequently, screeners are obliged to provide access to international protec-

tion to every person who demands it, at every stage of the screening process.
Furthermore, screeners have an obligation to provide information regarding
the possibilities of international protection to each person where they assume
such a need may exist and there would be a risk of refoulement in the case of
return, even when such a demand is not expressed by the person.
Access to international protection must not be limited or determined by the

screener’s evaluation of the reasons for such a claim. Any engagement in the
evaluation of a claim, using it as a basis for providing access to international
protection, on the screener’s part would be a violation of the right to asylum
if it led to impeding access to the procedure in contravention of both EU and
international law.
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During the screening procedure, the screener told the person screened,
who was willing to seek international protection, that an undocumented
person cannot be referred to the asylum procedure.
The right of stateless persons to international protection
Many individuals do not know not that they might be stateless and will there-
fore not put forward a request for a stateless status determination procedure.
It is important for screeners to identify cases of potentially stateless individuals
during the first stage of registration and refer the individual to relevant pro-
tection mechanisms, whether the person is applying for asylum or not. There
are a number of ways to counter or mitigate the above difficulties, including
the use of ‘proxy questions’ to ascertain statelessness. Thus, rather than (only)
asking a person whether he or she is a citizen or is stateless — a question that
he or she may not know how to answer accurately — questions regarding
the forms of documentation that the individual possesses, for instance, can
be asked, which may offer evidence of nationality or statelessness. Questions
that will work as effective proxies in helping to identify the risk of statelessness
can also be determined on the basis of a closer analysis of the national context
(country of origin). For instance, some applicants (claim to) belong to ethnic
groups that are publicly known to be stateless (e.g. Rohingya from Myanmar).
The determination of a statelessness status should be exercised not by screen-

ers or border guards but only by trained eligibility officers with nationality ex-
pertise. As a result, if someone claims to be stateless or is suspected of being
stateless (or is unable to establish his or her nationality), they should be pro-
vided with information and legal aid in a language they understand and re-
ferred to the statelessness determination procedure that can formally recognise
their status and grant them the appropriate protection.
If a potentially stateless person also applies for asylum, it is equally important

for screeners to detect and record his or her ‘potentiality for statelessness’. It
would be inappropriate to register an asylum applicant as ‘having an unknown
nationality’ and process his asylum claim without further investigation into
whether he has the nationality of a given country or not. It would thus be the
responsibility of the eligibility officer, in coordination with the appropriate per-
son/body in charge of the statelessness determination procedure, to determine
whether the applicant is stateless. The determination of his statelessness will
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help inform the level of protection that should be afforded to him on the ba-
sis of the relevant international and regional instruments (see the nexus be-
tween asylum and statelessness outlined in Sub-chapter 2.1.3. on the right of
stateless persons to international protection).
Right to healthcare
The health conditions of persons screened can greatly influence the effective-
ness of the whole screening process. Any deterioration in the health conditions
of a person screened not only can hinder the success of a screening process
but may also endanger the life of the person. Access to health services should
be guaranteed to any person in any phase of the screening process.
Screeners should carry out their tasks in a proactive way, looking for any sign
that would indicate that the persons screened are in need of medical care. Based
on a proactive approach, border guards should facilitate access to healthcare
facilities for persons in need at any point during the screening procedure. They
must interrupt an activity to provide any emergency healthcare needed, first
aid, provision of water and food, etc.
During the screening procedure, the person screened claims that he or

she feels very unwell and has severe stomach pains, although there are
no clear or visible signs of sickness, and demands medical assistance. At
this point, the screener denies the person access to medical assistance
until the end of the procedure.
Right to liberty and security
The right to security basically goes both ways: the border guard and the sub-
ject of the screening activity have to both be and feel secure during the proce-
dure. While carrying out screening on undocumented persons, border guards
have to be alert, taking any threat into consideration, undertake reasonable
and appropriate measures to prevent events and protect the person subject
to screening. The screening process is part of the registration process. It is a
process of communication between the border guards and the persons being
screened to establish the person’s nationality.
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Therefore, prior to starting the screening process, screeners should explain to

the persons being screened the nature of the screening procedure and that their
communication does not mean any deprivation of their liberty. Nevertheless,
screening must not exceed the time needed to perform screening activities.
Performing screening tasks in a manner that can generate a feeling of in-

security for the person screened may create a barrier in communication
between the screener and the screening subject and, as a result, lead to
questionable decisions, such as wrongly identifying a minor as an adult
and placing him or her in detention.
Other fundamental rights connected to screening
> Prohibition of torture
Under no circumstances, during screening procedures, must a person be sub-

ject to torture or other inhuman or degrading treatment or punishment. The
prohibition of torture is absolute. If screeners identify a victim of torture dur-
ing the screening process, they should treat that person as a vulnerable per-
son to prevent his or her secondary victimisations, and they should refer this
person to the relevant agencies, which can provide further help.
> Prohibition of slavery, forced labour and trafficking
The prohibition of slavery and forced labour in Article 4 of the ECHR may, un-
der certain circumstances, require States to investigate suspected trafficking
and take measures to protect victims or potential victims. If screeners have
reasonable grounds for believing that a person has been a victim of traffick-
ing, the latter should be treated as a vulnerable person to prevent his or her
secondary victimisations, and screeners should refer the person in question to
the relevant agencies, which can provide further help.
> Principle of non-discrimination
Any discrimination based on grounds such as sex, race, colour, ethnic or social
origin, genetic features, language, religion or belief, political or any other opin-
ion, membership of a national minority, property, birth, disability, age or sex-
ual orientation must be prohibited. The prohibition of discrimination applies to
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all persons, irrespective of their legal status, even when they attempt or cross
a border in an irregular manner. A screener must respect and guarantee fun-
damental rights. Any measures taken during the performance of their duties
must respect the principle of non-discrimination and be proportionate to the
objectives pursued by such measures.
> Right to privacy and family life
During the screening process, the screener should ensure that, besides the
screener and the person being screened, no one else is present, except in cases
where such a presence is necessary (e.g. interpreters). If the privacy of the
screening process cannot be guaranteed by screening each person in a sepa-
rate office, it should be ensured in such a way that the isolation of the screen-
ers and the person screened means that no unauthorised person can hear their
communication. Although the screening process is an individual process, the
screeners must ensure that, after the screening process is over, the persons
screened are able to reunite with their family members. The screening process
must not violate the right to family life of the persons screened and must en-
sure that all family members (including women, elderly people, young adults,
etc.) have the right to provide information to the screener to exclude risks.
> Right to the integrity of persons
During their duties, screeners must promote and respect human values and
protect the physical and psychological integrity of persons subjected to screen-
ing against any type of abuse, in full respect for human dignity.
3.2. Reception
Depending on the legislation of the host EU Member State and the type of
border (land, sea or air), the reception phase may start before registration,
together with registration or after the screening and registration procedures.
Border officials have the responsibility to process all persons in need of in-
ternational protection and/or irregular migrants during a border-crossing or
at an entry point. This task requires the border guard to be able to commu-
nicate effectively with different persons with different personal and cultural
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backgrounds, to be familiar with the legal framework and operational guide-

lines involved in this task and to know the types of assistance people may re-
quire and be entitled to and how to proceed. The main issues for the border
guard at this stage are that they should:
make use of effective communication methods;
ensure protection of personal data/information;
identify vulnerable persons;
be aware of different cultural backgrounds;
take into consideration gender issues;
ensure family unity/reunification;
ensure effective access to the asylum procedure.
Vulnerable categories must be prioritised, especially unaccompanied minors,

families with children, pregnant women, disabled persons or other vulnerable
groups, so that waiting time is reduced to a minimum. In particular, the fol-
lowing fundamental rights have to be taken into consideration during the re-
ception stage:
the right to life;
the principle of non-discrimination;
the principle of non-refoulement;
access to the asylum procedure.
3.2.2. Preparatory measures for reception
During the reception phase, border guards must be able to provide immediate
assistance where necessary, including at or near places of rescue or intercep-
tion or during disembarkation, in the case of migrants who have travelled by
sea. Such assistance should include, in particular, medical care, adequate food
and water, blankets, clothing, sanitary items and the opportunity to rest. In-
dividual health and medical screenings must then be provided as a matter
of priority. Competent medical staff should be present at the point of rescue
or interception, or disembarkation for migrants at sea, to carry out screen-
ings and refer persons for further medical attention, including mental health
referrals where appropriate.
Another measure prior to reception is to establish transparent and efficient

reception processes to ensure that necessary assistance is provided to all mi-
grants on a non-discriminatory basis, regardless of their migration status or
the circumstances under which they arrived at the border. Identification of vul-
nerable persons and facilitating their access to procedures by providing them
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with proper assistance is one of the main concerns during this phase. Such as-
sistance, specifically regarding the identification and referral of migrants who
may be at particular risk at international borders, must be outworked in co-
operation with national protection bodies, international organisations and
civil society organisations.
Information should be provided in a language that the persons understand

and at a point that allows the latter enough time to exercise their rights and
avoid any irreversible limitation of their rights. The conditions in all tempo-
rary reception facilities must comply with international human rights stand-
ards (particularly taking into account the special needs of vulnerable people),
including adequate space, appropriate food, clean water, sanitation, adequate
medical care and access to legal aid. Temporary accommodation cannot last
longer than is strictly necessary to allow authorities to verify identity, con-
duct adequate procedures and organise transfers or referrals as appropriate.
To assure that a person accesses the necessary assistance at the border, they
should be informed immediately, in a language that they can understand, of
the procedure to be followed, their rights and obligations during the proce-
dure and the possible consequences of not complying with their obligations. In
addition, border officials have the responsibility to identify persons with spe-
cific protection needs (e.g. trafficked persons) and take immediate action in
that regard. After having assured safety, the border guard, during the process
of reception and assistance, has to keep in mind two concerns:
assistance tailored to the individual situation of the person received;
information about the access to international protection.
3.2.3. Impact of reception procedures on fundamental rights
During the reception phase, any unfair treatment or arbitrary action or distinc-
tion based on grounds such as sex, race, colour, ethnic or social origin, genetic
features, language, religion or belief, political or any other opinion, member-
ship of a national minority, property, birth, disability, age or sexual orienta-
tion must be considered as a violation of the principle of non-discrimination.
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During the reception phase, the border guard is unwilling to assist a per-
son who wishes to apply for international protection and who has previ-
ously declared himself/herself as a homosexual. According to this border
guard’s beliefs, homosexuality is a sin.
All personal data of the persons undergoing the reception phase must be col-
lected in a manner that ensures that it will be accessible only for the author-
ised national authorities in line with the relevant legislation, in particular the
national data protection and asylum laws.
A border guard, asked by a local journalist about the persons that have
settled down in the reception centre, started to tell a story about one of
the persons, giving detailed information, including his or her full name, na-
tionality, etc. In addition, the border guard, having no permission from the
abovementioned person, allowed the journalist to take a photo of him or
her, so it could be attached to the article in the newspaper. Such behav-
iour is a clear violation of the right to personal data protection.
Gender- and age-specific concerns and the situation of vulnerable persons in

relation to applicants within the reception centres need to be taken into ac-
count. Regular monitoring and adequate support considering their particular
situation, including their health, must be ensured.
The best interests of a child must be a primary consideration in all actions and
decisions concerning a child. As a general rule, children should not be separated
from their accompanying parents or relatives, unless there is reasonable sus-
picion that it is not in their best interests to stay with the latter for reasons of
abuse or criminal-related activities. In line with the relevant national legisla-
tion and referral mechanisms, guardians should be appointed for all unaccom-
panied children, including those not applying for asylum, and they should play
a crucial role in guaranteeing the children’s access to their rights and in safe-
guarding the children’s interests (158).
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In a group that was received, a border guard noticed two young girls, whose
behaviour indicated that they could be victims of trafficking in human be-
ings. Nevertheless, the border guard decides to accommodate them all to-
gether, including the man who accompanied them and who, according to
some indicators, may be a possible trafficker.
Right to international protection
Under international law, EU law and national law, border guards have a duty
to identify and respond in a protection-sensitive and rights-based approach
to persons who present themselves at the border and may wish and/or need
to seek international protection.
According to Article 8 of the Asylum Procedures Directive, where there are

indications that an individual, who is the third-country national or stateless
person and who is present at border crossing points, including transit zones,
at external borders or who is held in detention facilities, may wish to make an
application for international protection, the competent national authorities
must provide them with information on the possibility of doing so, including
arranging interpreters to the extent that is necessary to facilitate access to
the asylum procedure. The lack of effective communication on the grounds of
language or cultural barriers may result in the inability of those persons to ex-
press their wishes to seek international protection. Only the relevant national
authorities mandated to issue decisions on asylum claims can examine them.
In this regard, the border guard authorities must make proper use of the ex-
isting national referral mechanisms in the area of asylum.
International organisations (in particular the UNHCR), NGOs, and persons

providing pro bono advice and counselling to applicants must have effective
access to such applicants present at border crossing points, including transit
zones, at external borders, which may be subject to the national legislation
of EU Member States. In addition, Article 8 stipulates that limits on such ac-
cess may be imposed only where, by virtue of national law, they are objectively
necessary for the security, public order or administrative management of the
crossing points concerned, provided that access is not severely restricted or
rendered impossible as a result.
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Because of a lack of an interpreter in a reception centre, a migrant who

asked for asylum in his or her language was not understood by the bor-
der guards and, as a consequence, was refused entry to the MS Avalon.
Having no opportunity to access the asylum procedure is a clear violation
of the right to asylum.
Cultural, religious and linguistic diversity
As indicated in Article 22 of the EU Charter for Fundamental Rights, cultural,

religious and linguistic diversity must be respected. Respect for diversity is par-
ticularly relevant during the reception phase, as a lack of it may lead to une-
qual treatment of persons received as well as increase tensions in reception
areas. Any person undergoing the reception phase must be treated in a hu-
mane manner. Based on their knowledge and professional experience, bor-
der officials must take into account that, according to the rules, beliefs and
traditions of some cultural and/or religious groups, individuals should not be
forced to act against their beliefs and traditions, as long as it is not contrary
to the provisions of the relevant national law, for example on security issues.
Belonging to any group or speaking a language that is not understood by bor-
der guards cannot prevent anyone from accessing the asylum procedure or re-
ceiving necessary assistance.
After arriving at the reception centre, a man was told to remove a reli-
gious symbol that he was wearing, even though it did not cover his face
and thus the identification process would not be hindered. As he refused
to do it in front of a group of other people, the border guard told him that,
in this case, he would not be allowed to seek international protection.
Right to healthcare
As pointed out in the EASO publication ‘Rights and obligations in the context
of reception’, a Member State may provide either a place in a housing facility
or a financial allowance that should cover housing costs. Similarly, an appli-
cant for international protection may either receive food/water/clothing di-
rectly in the accommodation provided or a financial allowance. With regard to
the provision of food and clothing, an applicant is entitled to the appropriate
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food (including milk)/clothing for a baby or small child. Although a Member

State will take personal needs into account when assigning a housing facility,
the applicant must be aware that she or he may not have access to private
housing and may need to change housing facility while awaiting a decision on
their application for international protection. Member States may decide to
carry out a basic medical examination before the applicant is allowed to ac-
cess accommodation (159).
Upon the arrival of a boat that was adrift at the sea for 7 days with ten peo-
ple on board to the MS Avalon coast, the border and coast guards did not
invite medical staff to assist and started the procedure of screening and
registration immediately. In response to why they had acted in such a way,
they pointed out that everyone seemed to be healthy.
Other fundamental rights connected to reception
> Right to life
The lives of both border guards and persons arriving need to be protected at
every single stage of the procedure.
> Right to human dignity
Article 7(1) of the Schengen Borders Code Regulation specifically addresses the

issues of safeguarding this right, emphasising that border guards shall, in the
performance of their duties, fully respect human dignity, in particular in cases
involving vulnerable persons. Any measures taken in the performance of their
duties shall be proportionate to the objectives pursued by such measures.
> Right to integrity of persons
The physical and mental integrity of a migrant must be respected, including in

cases where there is a recourse to force.
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> Prohibition of torture and inhuman or degrading treatment
No one must be subjected to torture or inhuman or degrading treatment or

punishment. Any use of force or means of restraint must be legitimate, pro-
portionate and a last resort.
> Principle of non-refoulement
Border guard officials must follow the principle of non-refoulement in cases

where a person applies for international protection.
> Respect for private and family life
Border guards must respect the right to private and family life, allowing fam-
ilies to stay together in a private environment, whenever possible. Reception
conditions need to ensure family unity. As indicated in Article 8 of the ECHR,
the right to respect family life of unmarried couples must be granted as well.
For the cases of applicants for international protection, Article 2 of the Recep-
tion Directive specifies a broad definition of ‘family members’. The directive
defines the latter as, insofar as the family already existed in the country of or-
igin, the following members of the applicant’s family who are present in the
same Member State in relation to the application for international protection:
the spouse of the applicant or his or her unmarried partner in a stable rela-
tionship, where the law or practice of the Member State concerned treats
unmarried couples in a way comparable to married couples under its law
relating to third-country nationals;
the minor children of couples referred to in the first indent or of the appli-
cant, on condition that they are unmarried and regardless of whether they
were born in or out of wedlock or adopted as defined under national law;
the father, mother or another adult responsible for the applicant, whether
by law or by the practice of the Member State concerned, when this appli-
cant is a minor and unmarried.
There can be legitimate exemptions, subject to the relevant national legisla-

tion, when national authorities can separate family members (e.g. in identified
cases of domestic abuse, domestic violence, exploitation, etc.).
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> Freedom of thought, conscience and religion
Every person has the right to profess any religion or belief in worship, teach-
ing, practice and observance.
> Right to property
When dealing with migrants during the reception phase border guards must
ensure that received persons will not be deprived of their property.
3.3. Registration
The border control authorities of the Member States are responsible for reg-
istering any third-country nationals intercepted in illegal border crossings or
staying illegally within the territory of the EU, as well as all third-country na-
tionals applying for international protection in the EU. During the process of
registration, each Member State should take the fingerprints of all fingers of the
abovementioned category of third-country nationals who are at least 14 years
of age and store them in the Eurodac database, which allows the computer-
ised exchange of fingerprints solely to identify applicants already registered
in other EU Member States and to see whether the case of a person may fall
within the scope of Regulation (EU) No 604/2013 of the European Parliament
and of the Council of 26 June 2013 establishing the criteria and mechanisms
for determining the Member State responsible for examining an application
for international protection lodged in one of the Member States by a third-
country national or a stateless person (Dublin III Regulation). As summarised
by the European Commission, the Dublin III Regulation contains sound pro-
cedures for the protection of asylum applicants and improves the system’s ef-
ficiency through:
an early warning, preparedness and crisis management mechanism, geared
to address the causes of dysfunction in national asylum systems or prob-
lems stemming from particular pressures;
a series of provisions on the protection of applicants, such as a compulsory
personal interview, guarantees for minors (including a detailed description
of the factors that should form the basis for assessing a child’s best inter-
ests) and extended possibilities for reunifying them with relatives;
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the possibility of an appeal suspending the execution of transfer until af-

ter the appeal has been heard, together with a guarantee of the right for a
person to remain in the territory pending the court’s decision on the sus-
pension of transfer pending appeal;
an obligation to ensure legal assistance free of charge upon request;
a single justification for detention (where there is a risk of absconding) and
a strict limitation on the duration of detention.
the possibility that asylum seekers could, in some cases, be considered ir-
regular migrants and returned under the Return Directive, being treated
under the Dublin procedure, thus giving them more protection than un-
der the Return Directive;
an obligation to guarantee the right to appeal against a transfer decision;
more legal clarity on the procedures between Member States, such as ex-
haustive and clearer deadlines. The entire Dublin procedure cannot last
longer than 11 months to take charge of a person, or 9 months to take him
or her back (except if the person absconds or is imprisoned) (160).
According to the Eurodac Regulation, specially designated authorities of EU

Member States that are responsible for the prevention, detection or investi-
gation of terrorist offences or other serious criminal offences can have access
to the Eurodac database. However, as indicated by the European Commission,
the Eurodac database
allows Member States’ law enforcement authorities and Europol to com-

pare fingerprints linked to criminal investigations with those contained in
EURODAC, only for the purpose of the prevention, detection and investiga-
tion of serious crimes and terrorism and under strictly controlled circum-
stances and specific safeguards; in particular, by including a requirement
to check all available criminal records databases first and limiting searches
only to the most serious crimes, such as murder and terrorism (161).
In the process of registration and fingerprinting, border control authorities

should respect and safeguard EU and international legislation on human rights,
for example the ECHR and the EU Charter of Fundamental Rights.
3.3.2. Preparatory measures for registration
assistance where necessary, including at or near places of rescue or interception
or during disembarkation, in the case of migrants who have travelled by sea.
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Some reflections
Border control authorities should ensure that registration (including finger-

printing) is conducted promptly upon interception or arrival of the migrants
and in full compliance with the Eurodac Regulation. If there is no such possi-
bility, due to a lack of proper equipment or trained staff or any other objec-
tive reason, the minimal initial registration should be performed at least by
the border guards.
Registration facilities
Member States have to ensure appropriate facilities where the process of reg-
istration can be performed in full compliance with human rights requirements.
The facilities have to ensure a smooth registration process in such a way that
waiting and registration areas can accommodate the necessary equipment, staff
and third-country nationals who are registered. During the preparation of these
facilities, the special needs of disabled persons should be taken into account.
Equipment and staffing
Proper registration and fingerprinting equipment, which can ensure the effi-
cient registration of third-country nationals including with regard to number
and category of persons (the possibility that people from vulnerable groups
may be present should be taken in account), should be in place in registration
facilities. All staff carrying out the registration of third-country nationals have
to be able to use registration and fingerprinting equipment efficiently and such
that respect for fundamental rights is ensured.
3.3.3. Impact of registration procedures on fundamental rights
assistance where necessary, including at or near places of rescue or interception
or during disembarkation, in the case of migrants who have travelled by sea.
Article 1 of the EU Charter of Fundamental Rights provides for that ‘human

dignity is inviolable. It must be respected and protected.’ The process of regis-
tration consists of collecting the personal data of third-country nationals and
the fingerprinting process. Since both parts of the registration process can be
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sensitive to different cultures, ages, gender, and, in some ways, intrusive, bor-
der guards should respect the dignity of all persons being registered while per-
forming of the abovementioned tasks.
Informing third-country nationals promptly on procedures, their rights, obli-

gations and consequences of non-compliance with legislation may facilitate
respect for their dignity during all stages of the registration process.
When registering third-country nationals, border guards should respect some

specific cultural and religious behavioural differences and, in general, the state
of condition of a person in front of them. It is highly recommendable that bor-
der control authorities ensure the presence of cultural mediators/interpret-
ers that can be used during the registration process to ease possible cultural
and language barriers that may occur. During the process of registration and
fingerprinting of women and children, female officers should be preferable for
carrying out these tasks, whenever it is possible, to avoid the risk of gender
and cultural bias. In cases where a third-country national refuses to undergo
the fingerprinting procedure, legal coercive measures can be applied as a last
resort. Using interpreters and members of non-police services while explain-
ing the reasons for and the procedures of fingerprinting to the third-country
national is highly advisable. If the migrant still refuses to cooperate, border
guards should apply legitimate coercive measures, proportionate to the aim
pursued, with full respect for the integrity and dignity of the person. In the
case of vulnerable persons, border guards should apply the coercive measures
only in exceptional cases. According to FRA’s focus paper ‘Fundamental rights
implications of the obligation to provide fingerprints for Eurodac’ (162), before
resorting to coercive measures, individuals need to be provided with an effec-
tive opportunity to comply voluntarily with the fingerprinting requirements,
including asking them to appear for fingerprinting a second time. People who
have been informed and continue to object to giving their fingerprints should
be counselled with a view to addressing their fears and expectations. Tempo-
rally postponing fingerprinting to allow members of the agencies specialised in
helping vulnerable persons more time to explain the reasons for fingerprinting
to such persons can significantly help to solve these problems.

• Taking a photograph of the face of a veiled woman. If the face is not
fully covered, the border guard should not insist on the removal of the
veil, as long as the woman can be identified. If there is a requirement
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that a woman remove the veil for identification purposes, it should be

done in private area, accompanied by female border guards.
• In cases where it is evident that a person is not in a good condition of
health, registration can be postponed, or it can be conducted in such
a way that it will not overburden the person.
Examples of good practice

• Female border guards should carry out security checks on women be-
fore registration;
• Areas for security checks should provide, at least, a minimum of pri-
vacy for persons who are checked.
• Areas for registration should also provide, at least, a minimum of pri-
vacy for persons being registered (one person or one family at a time,
separate registration points inside the registration facilities, etc.).
• A person refusing to provide personal data or give fingerprints, and
where legal coercive measures should be taken, should be isolated
from the main registration area. Applying coercive measures should
be avoided in the main registration area whenever it is possible.
Prohibition of torture and inhuman or degrading treatment or

punishment
In the process of registration of third-country nationals, especially in cases

where legal coercive measures have to be applied because of the non-coop-
eration of the third-country national, none of the measures taken should ex-
pose the latter to torture or other inhuman treatment.
In a case where a third-country national refuses to cooperate with regard

to fingerprinting, the legal coercive measures taken should be proportional
to the objective. In each phase, border guards should take into consideration
the possible consequences for the third-country national when applying the
measures in relation to the objective. Such measures should be taken in ar-
eas that are separate from the main registration areas. As mentioned in the
FRA paper ‘Fundamental rights implications of the obligation to provide fin-
gerprints for Eurodac’, use of force that does not amount to inhuman or de-
grading treatment or punishment ... can still raise fundamental rights concerns,
particularly in light of Article 3 of EU Charter of Fundamental Rights, which
enshrines the right of everyone to respect his or her physical and mental in-
tegrity. When force is used to compel a person to do something, the circum-
stances of each individual case must be assessed to determine whether the
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use of force was necessary and proportionate and would still constitute lawful
interference in light of the standards set forth in Article 52(1) of the EU Char-
ter of Fundamental Rights.
When applying such coercive measures, border guards should be aware that
coercive measures are always a last resort in such cases. As recommended in
the abovementioned FRA publication, before resorting to coercive measures,
a person needs to be provided with an effective opportunity to comply volun-
tarily with fingerprinting requirements. For instance, provision of information
about the procedure and its consequences is an important step of this pro-
cess. Using interpreters or other non-police personnel to explain the neces-
sity of fingerprinting to the third-country national is highly recommendable.
During the registration process, a woman from TC Mordor has to be fin-

gerprinted. She seems to be reluctant, as she does not understand the
language of command and cannot understand the purpose of fingerprint-
ing. There is no interpreter present, so the border guards become impa-
tient and decide to handcuff her to obtain her fingerprints by force. After
finishing the registration process, the woman is placed, with her hands
cuffed, among other persons who are to be registered, to punish her and
show the others what can happen if they are reluctant to cooperate. It is
a clear violation of the prohibition of torture and inhuman or degrading
treatment, as the use of handcuffs was not a last resort. Furthermore, the
use of coercive measures was exceeded and placing the woman among
other people to punish her is degrading treatment.
The mixed nature of migration movements can present a challenge when we

talk about the principle of non-discrimination. Possible tensions arising between
different ethnic or religious groups among the migrants should be dealt with
by border guards when they start processing the migrants. It is crucial that the
organisation of the registration process does not provide any unjustified possi-
bilities of prioritising one group over the others. In any case, measures that the
border guards take should follow the principle of non-discrimination in such
a way that no person or group of people is discriminated against. This means
that the registration process should be organised so that it does not differen-
tiate people on the basis of gender, race, colour, ethnic or social origin, genetic
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features, language, religion or belief, political or any other opinion, member-

ship of a national minority, property, birth, disability, age or sexual orientation.
Border guards treat those members of a group of TC Utopia nationals who

do not demonstrate their religious views in a more privileged manner.
The most important part of the registration process is the collection of personal
data. Personal data has to be collected and stored in full compliance with the
Eurodac rules. Border guards should always bear in mind that personal data
should be protected from unauthorised access, even in cases when they are
stored only in the national databases. Member States are fully responsible for
the security of collected data and its safe storage in the central Eurodac da-
tabase. It should be noted that Article 35, ‘Prohibition of transfers of data to
third countries, international organisations or private entities’, stipulates de-
tailed rules, as outlined below, regarding the transfer of data to third countries.
Personal data obtained by a Member State or Europol pursuant to this Reg-
ulation from the Central System shall not be transferred or made available
to any third country, international organisation or private entity estab-
lished in or outside the Union. This prohibition shall also apply if those data
are further processed at the national level or between Member States
within the meaning of Article 2(b) of Framework Decision 2008/977/JHA.
Since 6 May 2018, EU Member States have had to apply the new legislation
that transposed the provision of Directive (EU) 2016/680 of the European
Parliament and of the Council of 27 April 2016 on the protection of natu-
ral persons with regard to the processing of personal data by competent
authorities for the purposes of the prevention, investigation, detection or
prosecution of criminal offences or the execution of criminal penalties, and
on the free movement of such data, and repealing Council Framework De-
cision 2008/977/JHA, and rendered invalid the previous legislation, which
was based on the abovementioned Framework Decision.
Personal data which originated in an EU Member State and are exchanged
between Member States following a hit in the EURODAC system obtained
for the purposes laid down in Article 1(2) of the Eurodac Regulation shall
not be transferred to third countries if there is a serious risk that as a re-
sult of such transfer the data subject may be subjected to torture, inhuman
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and degrading treatment or punishment or any other violation of his or her

fundamental rights.
Two abovementioned prohibitions to transfer shall be without prejudice to
the right of EU Member States to transfer such data to third countries to
which Regulation (EU) No 604/2013 (Dublin III Regulation) applies.
To protect personal data from unauthorised access, the collecting process

should be organised in such a way that one person, or one family, is registered
in time at one registration point. Collective registration of third-country na-
tionals should be avoided. This kind of collection of personal data not only en-
dangers the confidentiality that should follow the collection of personal data
but is also very impractical and unreliable. As a rule, members of one family
present their personal data together; however they have the full right to de-
mand to do this individually.
In the reception facilities, the registration booths must be separated from

each other. This enables a person to talk privately to a border guard.
Collected data should not be used or shared for other objectives except those
relating to the registration of the third-country nationals entering or staying
illegally in the territory of the EU or those applying for international protection.
When storing of those data, all EU legal requirements regarding of personal
data should be followed. Border control authorities should ensure adequate
equipment for collecting and storing the personal data of third-country nation-
als. Besides this, border control authorities should ensure that personal data
are not stored longer than the EU law and relevant national legislation permit.
During the registration process, a problem with a software program oc-

curred, so the border official responsible for registration decided to use
her or his private computer to collect and store the personal data of third-
country nationals. The computer was stolen on the same day. This is a
violation of the right to personal data protection, as the personal data
of registered persons have to be collected only in official and safe areas,
where secure storage is ensured.
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In the organisation of the registration process, border control authorities should

ensure that priority is given to the vulnerable categories of migrants, especially
unaccompanied minors, families with small children, pregnant women, disa-
bled persons or other vulnerable groups, so that their waiting time is reduced
to a minimum. Although the registration process should follow the same pro-
cedures for all persons, members of vulnerable groups should be dealt with us-
ing special care. To prevent further possible traumatisation of such persons, it
is highly advisable that other services and agencies specialised in dealing with
this category of persons should be involved in the registration process. When-
ever it is possible, the reception facilities should be easily accessible (e.g. for
elderly or disabled persons) and ensure privacy and prioritisation of vulnera-
ble persons during procedures. If possible, border authorities may also des-
ignate special areas where such persons can be registered. When there are
doubts about the age declared by an undocumented person, the principle of
presumption of a minority should prevail, and the responsible authorities that
can start the procedure for age determination should be immediately noti-
fied of the situation.
Coercive measures should not be applied to vulnerable persons for the pur-
pose of fingerprinting. In such cases, other alternatives to seek cooperation
for fingerprinting should be sought (e.g. support from social services or organ-
isations specialised in dealing with vulnerable categories, including persons of
their national background). Border guards should be properly trained in order
to recognise vulnerable persons, even in a case where the person is not ask-
ing for protection. Such persons, after registration, should be directed to the
border guard units and specialised agencies that will provide them with fur-
ther assistance.
In cases where a larger group of the third-country nationals is to be reg-

istered, border guards must identify the possible presence of vulnerable
persons in the group, based on a system of recognition of such persons.
Once recognised, they should be given priority.
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Right to asylum
The opportunity of a person to exercise the right to asylum in practice may

sometimes depend on the knowledge of a third-country national or a state-
less person willing to apply for international protection on how to use his or
her right to access the national asylum system and the proactive approach
and assistance of border guards. It may happen that an individual is not well
aware of the opportunity to claim asylum and/or of his or her statelessness
status at the border of the country that they are entering or have already en-
tered. It should not be expected that many of those who are entitled to apply
for international protection will be well aware of their rights, especially if they
come from countries where the relevant legal provisions do not exist or are not
functional. Therefore, providing information concerning the right to asylum is
mandatory and essential during the registration process. Cultural and language
barriers between border guards and third-country nationals and stateless per-
sons, as well as a lack of gender awareness, can pose an even greater obstacle
in that sense. Nonetheless, border guards should be aware that a third-coun-
try national and a stateless person has the right to express his or her claim for
international protection at any time and in any manner, including the registra-
tion process. Furthermore, border guards should be able to identify a person in
need of international protection, even in a case where the person does not ask
for it. In such cases, border guards are obliged to inform a person about his or
her rights. Border guards are not entitled to assess the merits of the applica-
tion for international protection, and the registration process should not pre-
vent access to the adequate authorities that examine applications for asylum
and/or the status of a stateless person.
It is highly recommendable that border control authorities provide informa-

tion on the right to asylum on leaflets or information boards in the recep-
tion facilities, printed in languages that can be understood by the majority
of persons undergoing the registration process. Distribution of such leaf-
lets or the location of information boards in front of the reception facilities
and next to registration booths can be seen as one of the best practices.
Right to privacy and family life
Since the primary objective of the registration process is the collection of per-
sonal data, minimal privacy conditions should, at least, be provided for the
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third-country nationals in areas where those data are collected. The above-
mentioned conditions should ensure a private conversation between a border
guard and a third-country national, which cannot be heard by others, in line
with confidentiality and privacy considerations. According to Article 8(1) of the
Asylum Procedures Directive, when an asylum applicant is at the border cross-
ing point, a Member State must make arrangements for interpretation to the
extent that is necessary to facilitate his or her access to the asylum procedure.
The assistance of interpreters during the communication with a third-country
national does not violate the right to privacy, but the interpreters should be
present only when communication would not be possible without them, re-
specting ethical principles such as impartiality, confidentiality and neutrality.
During the registration process, the right to family life should always be re-
spected in such a way that allows families to be registered altogether in one
registration booth. Despite this, family members are fully entitled to demand
an individual registration.
The best practice for securing the privacy of third-country nationals dur-
ing the registration process would be to establish separate offices for each
registration point where the third-country nationals can speak in private
with the border guards. Since such working conditions are very hard to
achieve in the cases of large migratory flows, registration points on the
registration premises should be separated in such a way that it can guar-
antee, at least, a minimum of privacy for the third-country nationals. The
tables where registration points are set up on the registration premises
should be at a certain distance from each other, the discretion line should
be set in front of the registration points and the approach of third-coun-
try nationals to the registration points should be controlled and organ-
ised by the border guards on the registration premises.
The actions of border guards are meant to ensure this right from the very mo-
ment of reception. The right to liberty and security of irregular migrants and
asylum seekers must be ensured, and the process they are going through, al-
though temporarily limits their freedom of movement, is meant to ensure
the full respect for this right. Border guards should be aware that they are re-
sponsible for the security of all persons undergoing the registration process.
This means that appropriate measures should be taken to ensure order at the
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registration booths and in the waiting areas. The policing measures in the wait-
ing areas could be crucial for preserving order during the registration process,
especially in cases concerning a large number of migrants. In some cases, the
separation of different groups of migrants, such as those of a different faith
or country of origin, during the course of the procedure or other appropriate
measures should be implemented (e.g. in cases where there are several groups
of asylum seekers representing conflicting parties in a civil war, etc.). Such sep-
aration should be conducted in a non-discriminatory manner and should not
lead to imputed discrimination. The primary objective of such measures is to
ensure the full security of all persons during all stages of the registration pro-
cess, with special consideration for vulnerable persons.
A lack of proper security measures in the waiting area may cause serious
disorder among the migrants waiting to be registered for various reasons
(e.g. clashes between various nationalities or ethnic groups, weaker peo-
ple being pushed aside, etc.). All this may cause a violation of the right to
security of persons being registered.
Other fundamental rights connected to the registration
> Right to healthcare
The registration process should not hinder the third-country national’s right
to healthcare, as the access to healthcare must be ensured prior to registra-
tion. The fact that a third-country national has not been registered yet can-
not limit his or her the right to healthcare.
> Prohibition of slavery and forced labour
Border guards should be aware of the possibility that victims of trafficking may
appear among the third-country nationals being registered. Where such per-
sons are recognised during the registration process, border guards must re-
fer them to institutions specialised for those cases in order to provide further
assistance and referral.
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> Principle of non-refoulement
During the process of registration, all third-country nationals should be regis-

tered in accordance with the Eurodac Regulation. Failure on the part of national
authorities to register a third-country national may cause his or her undefined
status and non-referral for the asylum procedure. If, as the consequence of
non-registration, such a person is later returned to his or her country of ori-
gin, where he or she was previously persecuted, such a situation would lead
to the violation of the non-refoulement principle. Registration and/or subse-
quent search and data processing in accordance with the Eurodac Regulation
is related to the following categories of the persons:
applicants for international protection, who are third-country nationals or
stateless persons and who are at least 14 years old;
third-country nationals or stateless persons of at least 14 years of age who
are apprehended by the competent control authorities in connection with
the irregular border crossing of that Member State by land, sea or air, having
come from a third country, and who are not turned back, remain physically
in the territory of the Member States and are not kept in custody, confine-
ment or detention during the entirety of the period between apprehension
and removal on the basis of the decision to turn him or her back;
third-country nationals or stateless persons — beneficiaries of interna-
tional protection;
third-country nationals or stateless persons of at least 14 years of age who are
found to be residing irregularly in an EU Member State and, as a general rule:
ll declare that they have lodged an application for international pro-
tection but without indicating the Member State in which they have
lodged the application for asylum,
ll do not request international protection but object to being returned
to their country of origin by claiming that they would be in danger,
ll seek to prevent their removal by refusing to cooperate in establish-
ing their identity, in particular by showing no, or false, identity papers.
> Right to property
During the registration process, the right to property of a third-country national

must be respected. The registration process should not include deprivation of
the third-country national’s lawfully acquired possessions. In cases where a
third-country national possesses legally obtained possessions that are not le-
gally allowed to be possessed in the Member State, the third-country national
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will be deprived of such possessions during the legally determined procedure,

where a written confirmation will be issued to the third-country national.
> The principle of equality before the law
During the registration process and any other stages of the procedure following
registration, border control authorities should ensure equal legal treatment of
all third-country nationals, irrespective of their sex, racial or ethnic origin, reli-
gion or belief, disability, age or sexual orientation. For this purpose, it is highly
recommended that all necessary legal information is provided in languages
that third-country nationals can understand or are supposed to reasonably
understand. While providing the information, the authorities should also take
into account their age, gender and ethnicity. If necessary, child-friendly infor-
mation must be provided.
3.4. Debriefing
Debriefing is the process of collecting information following the registration

phase. Information is gathered during an interview of persons who illegally ei-
ther crossed the border or made an attempt to cross it. The collection of infor-
mation must be conducted with the consent of the person being interviewed
on a voluntary and anonymous basis. Debriefing activities aim at obtaining in-
formation from either detected persons that have already entered the EU ille-
gally via external borders or those who were trying to enter illegally to produce
intelligence about the country of origin, the reason for travelling, the routes
and modus operandi or the involvement of facilitators. The interview should be
carried out in full respect for fundamental rights. The process of eliciting in-
formation (a voluntary interview) follows the P.E.A.C.E model of debriefing, a
good practice that involves:
planning and preparation (P),
engaging and explaining (E),
accounting (A),
closing (C),
evaluation (E).
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3.4.2. Preparatory measures for debriefing
Prior to debriefing
If the border guard does not speak the language of the person interviewed,
they should involve an interpreter, to ensure proper communication with the
interviewee. The appropriate conditions for interviewing should also be ensured
from the point of view of the adequate facilities and the necessary logistics.
After the debriefing
Collection of information must be followed by an analysis and dissemination

to the appropriate entities.
3.4.3. Impact of debriefing procedures on fundamental rights
Article 1 of the EU Charter of Fundamental Rights states that ‘human dignity

is inviolable. It must be respected and protected.’ The general concept of de-
briefing is based on a voluntary and anonymous approach to the person to be
debriefed with the full respect for human dignity. The approach to the person
interviewed should be in full respect for this principle. Any limitation or vio-
lation is prohibited.

• Selecting a person for debriefing, immediately after reception, and car-
rying out an interview by standing in a dark corner of the reception
centre while the person in question does not understand the purpose
of the activity and has to stand up, despite a long journey, as no seats
are available, can affect human dignity.
• Debriefing a person in a case where he or she is still wet, cold, tired,
hungry or thirsty, or does not have appropriate clothes, is a violation
of human dignity.
Prohibition of torture
The good practice of debriefing activities recommends that debriefing should

be built on trust between the interviewer and the interviewee. Use of torture
or inhuman or degrading treatment or punishment against the interviewee
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is prohibited in line with Article 4 of the EU Charter on Fundamental Rights.

During the debriefing, the person can point out indicators of previous torture
and/or inhuman or degrading treatment or punishment. When there is an in-
dication that the interviewee has been subjected to torture or ill treatment
in the past, the debriefer must not insist on some issues that can lead to sec-
ondary trauma/secondary traumatisation of the interviewee. In this case, the
debriefer should refer the person to the national authorities for specialised
procedures to be implemented.
During the interview, the person states that he or she was subjected to
forced labour and kept in locations without food or water, sleeping out-
side on the ground, and not allowed to sleep for more than 2 hours per
day. The facilitators punished him or her for not complying with the rules
by cutting his or her hair and burning his or her skin. The debriefer calls the
interviewee a liar and tells the interviewee not to waste his or her time.
To punish the debriefed person, the debriefer puts him or her in front of
other third-country nationals and orders him or her to tell his or her story.
Right to asylum
The debriefer must stop the interview if there are some indicators that the in-
terviewee is in need of international protection, or the interviewee expressly
asks for asylum. In such cases, the debriefing activity should be immediately
discontinued, and the border guard should refer the interviewee to the com-
petent authorities responsible for asylum issues.
3.5. Return
According to the Return Directive, ‘return’ means the process of a third-coun-

try national going back — whether in voluntary compliance with an obligation
to return or enforced — to:
his or her country of origin;
a country of transit in accordance with EU or bilateral readmission agree-
ments or other arrangements;
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another third country to which the third-country national concerned vol-

untarily decides to return and in which he or she will be accepted.
The national authorities may conduct the return in two procedures:

‘removal’,meaning the enforcement of the obligation to return, namely the
physical transportation out of the Member State;
‘voluntary departure’, meaning compliance with the obligation to return
within the time-limit fixed for that purpose in the return decision.
For the purpose of this course, the provisions on removal and the relevant joint
operations are further referred to as forced return.
3.5.2. Voluntary return
The Return Directive emphasises that, where there are no reasons to believe
that this would undermine the purpose of a return procedure, a voluntary re-
turn should be preferred over a forced return, and a period for voluntary de-
parture should be granted. An extension of the period for voluntary departure
should be provided, when considered necessary, because of the specific cir-
cumstances of an individual case. In particular, Article 7 of the Return Directive
specifies that a return decision must provide for an appropriate period for vol-
untary departure of between 7 and 30 days. EU Member States may provide,
in their national legislation, that such a period must be granted only following
an application by the third-country national concerned. In such a case, Mem-
ber States must inform the third-country national concerned of the possibil-
ity of submitting such an application. The time period should also not exclude
the possibility of third-country nationals concerned leaving earlier.
Where necessary, the period for voluntary departure can be extended by an ap-
propriate period on the decision of authorities, taking into account the specific
circumstances of the individual case, such as the length of stay, the existence
of children attending school and the existence of other family and social links.
Certain obligations aimed at avoiding the risk of absconding, such as regular
reporting to the authorities, the deposit of an adequate financial guarantee,
submission of documents and the obligation to stay at a certain place, may be
imposed for the duration of the period for voluntary departure. If there is a risk
of absconding, an application for a legal stay has been dismissed as manifestly
unfounded or fraudulent or the person concerned poses a risk to public policy,
public security or national security, Member States may refrain from granting
a period for voluntary departure or may grant a period shorter than 7 days. By
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providing financial assistance to migrants voluntarily returning to their coun-

try of origin, the authorities can provide migrants with the means to estab-
lish economic activity in their home country, thereby ensuring that the return
was sustainable. Voluntary return schemes help migrants who are lacking a
legal status in any country to return to their country of origin. Voluntary de-
parture is preferable to forced return, and it presents far fewer risks with re-
spect to human rights. Therefore, it is recommended that host States promote
voluntary return, in particular by affording the returnee a reasonable amount
of time to voluntarily comply with the removal order, offering practical assis-
tance, such as incentives or covering transport costs, and providing complete
information to the returnee, in a language he or she can understand, about
the existing programmes of voluntary return, especially those of the IOM and
other similar organisations, which the host States have been encouraged to
set up and to develop.
3.5.3. Removal
Although voluntary return is always a preferable option, the returnee might

be forcibly returned by air, land or sea. The framework for the core provisions
on the forceful return is provided in the Returns Directive. Forced return pro-
cedures may also result from non-compliance with the timeframe given in
the return decision and/or the return order issued in line with the relevant EU
and national legislation. According to Article 8 of the Return Directive, Mem-
ber States must take all necessary measures to enforce the return decision if
no period for voluntary departure has been granted in accordance with Arti-
cle 7(4), or if the obligation to return has not been complied with within the
prescribed period for voluntary departure. Where Member States use — as a
last resort — coercive measures to carry out the removal of a third-country na-
tional who resists removal, such measures must be proportionate and should
not exceed reasonable force. They should be implemented as provided for in
national legislation in accordance with fundamental rights and with due respect
for the dignity and physical integrity of the third-country national concerned.
Forced return could, in compliance with a number of procedures including ap-
peals, complaints and similar actions and with respect to the available reme-
dies for the individuals, apply to:
a rejected asylum seeker, for whom a negative decision on his or her appeal
is final and in force, who did not necessarily cross the border irregularly but
entered with a visa and applied for asylum thereafter;
a person in an irregular situation who crossed the border irregularly or for
whom the right to stay in the country has lapsed (due to various reasons,
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such as an overstayed visa, an expired work permit, etc.) and who has not
applied for international protection;
a person convicted for criminal offences who is returned to their country
of origin or residence following the final court decision on his or her case
of readmission.
It should be noted that, according to Article 2(2)(b) of the Return Directive,

EU Member States can decide whether or not to transpose into their national
law the possibility of applying the directive to third-country nationals who are
subject to return as a criminal law sanction or as a consequence of a criminal
law sanction, according to national law, or who are the subject of extradition
procedures. Thus such provisions of the national legislation may differ on a
country-per-country basis within the EU. The EU and/or Member States have
concluded several readmission agreements with non-EU countries in which
procedures for the identification and the safe and orderly return of irregular
migrants were established. Readmission of the returnees to their country of
origin needs to be confirmed prior to a forced-return operation (163).
The legal basis for the removal of third-country nationals who are staying
irregularly in EU Member States was enhanced by the Council Decision of
29 April 2004 on the organisation of joint flights for removals from the terri-
tory of two or more Member States, of third-country nationals who are sub-
jects of individual removal orders (2004/573/EC) and the Common Guidelines
on Security Provisions for Joint Removals by Air, which form the annex to the
aforementioned decision. All persons participating in activities coordinated by
Frontex, including return operations (ROs) and return interventions (RI) or-
ganised or coordinated by Frontex, have an obligation to guarantee the pro-
tection of fundamental rights and carry out their tasks with respect for them.
These obligations are reflected in the Code of Conduct for Return Operations
and Return Interventions Coordinated or Organised by Frontex.
The Frontex Code of Conduct sets out principles and rules that should guide
the behaviour of all persons participating in Frontex activities, namely Frontex
staff, officers of border guard services of a Member State and any other staff.
It aims to ensure the rule of law, respect, protection, fulfilment and promo-
tion of fundamental rights, with a particular focus on accompanied and un-
accompanied children and other vulnerable persons, including those seeking
international protection. It includes the obligation of referral to national au-
thorities competent to receive asylum requests. The Frontex Code of Conduct
is complemented by the Code of Conduct for Return Operations and Return
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Interventions Coordinated or Organised by Frontex, which sets out common

principles and the main procedures to be observed during such operations
and interventions. This code of conduct sets out essential rules in relation to
the general principles of fundamental rights, the limits on the use of coercive
measures, the presence of medical personnel during operations and also the
vital role of fundamental rights monitors in ensuring operational compliance
with fundamental rights.
Each implementation plan drawn up and distributed by Frontex prior to each

RO or RI contains links to both the abovementioned codes of conduct. All
participants in activities coordinated by Frontex are required to maintain the
highest standards of integrity, ethical conduct, professionalism and respect for
fundamental rights. While taking part in activities coordinated by the Agency,
they are required to comply with international law, EU law and the national
law of the organising Member State or the transit country, including their fun-
damental rights provisions.
In cases of a violation of any of these legal provisions in the course of a return,

the Member State of each RO or RI participant must sanction its staff with
appropriate measures, in accordance with its national law. Moreover, all per-
sons participating in Frontex coordinated activities are required to report any
incidents involving suspected or alleged violations of fundamental rights or
the Frontex codes of conduct.
All persons involved in activities coordinated by Frontex are expected to treat

each person with courtesy, respect and due consideration and in accordance
with the principle of non-discrimination. The specific needs of vulnerable groups
or vulnerable persons, such as children, persons with disabilities, elderly people,
pregnant women, single parents with minor children and persons who have
been subject to torture, rape or other serious forms of psychological, physical
or sexual violence, as well as persons with a serious health condition, mental
disabilities or any other vulnerabilities, as defined in the EU acquis, should be
taken into account and addressed during all phases of the operation.
3.5.4. Preparatory measures for removal
Before conducting the return operation, a set of preparatory measures are

required to ensure that the fundamental rights of the person to be returned
are guaranteed and respected. Some of the relevant operational measures
are presented below.
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Seating plan
The organising Member State must provide seats for not only escorts and re-
turnees but also medical staff, interpreters, monitors and Frontex representa-
tives. Seats for observers and external representatives should be also considered.
Consideration should be given to families with children (families should not be
separated on board), people in need of special care, etc. (164).
Food and beverages
Cultural and religious considerations should be taken into account when pro-
viding food and drink to returnees during return operations, as well as the
presence of babies or young children on board. To avoid discrimination, no dis-
tinction should be made between the food served to RO or RI participants and
the food served to returnees. The type of food and quantity should be sufficient
to cover the needs of the persons on board and during the length of the flight.
Fitness to travel and medical examinations
Collection of information must be followed by an analysis and the dissemina-

tion to the appropriate entities. The countries implementing a return decision
must ensure that all returnees are in an appropriate state of health to travel.
The returnees are to be removed only as long as they are ‘fit-to-travel’ at the
time of the flight. The medical doctor on board must be informed as soon as
possible, prior to a joint return flight, about any pre-existing medical condition
affecting a returnee and/or medical treatment required, to ensure prepared-
ness and availability of required medicines and medical equipment. Only med-
ical staff have access to the medical information of the persons to be returned.
3.5.5. Impact of return procedures on fundamental rights
Right to life
During all forced return operations, the right to life of returnees has to be both
guaranteed and protected. According to the Article 2 of the ECHR,
everyone’s right to life shall be protected by law. No one shall be deprived

of his life intentionally. Deprivation of life shall not be regarded as inflicted
in contravention of this article when it results from the use of force which
is no more than absolutely necessary:
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a) in defence of any person from unlawful violence;
b) in order to carry out a lawful arrest or to prevent the escape of a
person lawfully detained;
c) in action lawfully taken for the purpose of quelling a riot or insurrection.
Article 8(4) of the Return Directive provides for that where national authori-
ties use — as a last resort — coercive measures to carry out the removal of a
third-country national who resists removal, such measures shall be propor-
tionate and must not exceed reasonable force. Such measures shall be fore-
seen in the national legislation in accordance with fundamental rights and with
due respect for the dignity and physical integrity of the persons concerned.
To prevent any situations dangerous to the life of the returnee, coercive meas-
ures likely to obstruct the airways partially or wholly or forcing the returnee
into positions where he or she risks asphyxia must not be used. This rule is set
as the standard by the Council of Europe’s Twenty Guidelines on Forced Return
and by the Code of Conduct for Return Operations and Return Interventions
Coordinated or Organised by Frontex. To clarify and report on the facts, inde-
pendent monitoring is thus very important during forced return operations.
Article 1 of the EU Charter of Fundamental Rights states that ‘human dignity

is inviolable. It must be respected and protected.’ The returnee’s right to dig-
nity must be respected at every stage of a forced return operation, even where
the use of force or means of restraint is required. It is particularly important
in situations where a person to be restrained is returned with his or her chil-
dren. Whenever possible, the application of the means of restraint should not
happen in front of the child, to avoid putting the returnee in a humiliating po-
sition and to safeguard the best interest of the child. Moreover, returned per-
sons should have clothing suitable to the climate of the place of departure and
to that of the third country to which they are returning. The Guide for Joint Re-
turn Operations by Air Coordinated by Frontex specifies that, when necessary,
returnees should be provided with help in carrying their luggage. In addition,
all the personal belongings of returnees should be put in sealed envelopes, or
a transparent plastic bag with the name of the owner marked on it, as recom-
mended by the CPT (165). Returnees’ luggage should be transported with care.
All personal belongings should be immediately returned to the returnee on
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arrival in the country of return. Furthermore, access to hygienic items for ba-
bies, female returnees, elderly people or any other people who need it should
be ensured during the entire operation.
The right to human dignity also related to the conditions in the pre-removal
centre and the means of transportation used throughout the return opera-
tion. In particular, whenever possible, returnees should not wait for boarding
on a coach but in a secure waiting areas at the airport, which should include
space to facilitate checks, facilities for medical check-ups, toilets, a smoking
area, etc. A separate area should be provided for families with children and
persons with special needs (166). However, if there is no such opportunity, the
time spent waiting for the flight in means of transport should be reduced to a
minimum. Furthermore, the number of seats in the coach should be tailored
to the number of people transported, to enable everyone to take a seat (167).
The specific needs of vulnerable groups or individuals have to be taken into
account. The presence of at least one escorting officer of the same sex as the
returnee may also help to ensure the returnee’s dignity (168).
With regard to unaccompanied minors, Article 10 of the Return Directive states

clearly that before removing an unaccompanied minor from the territory of a
Member State, the authorities of that Member State must be satisfied that he
or she will be returned to a member of his or her family, a nominated guard-
ian or adequate reception facilities in the State of return.
Article 6 of the EU Charter of Fundamental Rights and Article 5(1) of the ECHR

state that ‘everyone has the right to liberty and security of person’. However,
the lawful arrest or detention of a person against whom an action is being
taken with a view to deportation or extradition may be justified prior to a
forced return operation when there is a risk of absconding, and if the removal
can realistically be carried out within a reasonable time. According to Arti-
cle 15(1) of the Return Directive, any detention of the person who is subject
to the return procedure must be for as short a period as possible, only main-
tained as long as removal arrangements are in progress, and executed with
due diligence. What is essential, when a returnee is deprived of liberty, is that
the person needs to be promptly informed in writing about the reasons for
the decision in a language that he or she understands. Thus access to an ef-
fective remedy is facilitated.
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Pursuant to Article 10(1) of the ICCPR, ‘all persons deprived of their liberty shall
be treated with humanity and with respect’. Therefore, an adequate standard
of living should be provided in the holding facility, with special attention for
children. Moreover, Article 16(2) of the Return Directive establishes an obliga-
tion for relevant national authorities to ensure that third-country nationals
detained are allowed — at their request —contact with legal representatives,
family members and competent consular authorities.
Article 15(2) of the Return Directive provides that detention must be ordered

by administrative or judicial authorities in writing with reasons being given in
fact and in law. When detention has been ordered by administrative author-
ities, Member States must:
either provide for a speedy judicial review of the lawfulness of detention to
be decided on as speedily as possible from the beginning of detention; or
grant the third-country national concerned the right to take proceedings
by means of which the lawfulness of detention will be subject to a speedy
judicial review to be decided on as speedily as possible after the launch of
the relevant proceedings. In such a case the Member State must immedi-
ately inform the third-country national concerned about the possibility of
taking such proceedings.
The third-country national concerned must be released immediately if deten-

tion is found to be not lawful.
Particular emphasis must be placed on situations where vulnerable persons,

children or families are detained. In such cases, emergency healthcare and es-
sential treatment of illness must be provided when necessary. Unaccompanied
children and families with children should not be detained, unless as a last re-
sort, as the best interest of the child must always be a primary consideration
regarding the detention of minors pending removal. Pursuant to Article 17 of
the Return Directive, families detained must be provided with separate ac-
commodation to guarantee them the necessary level of privacy.
Prohibition of torture and inhuman or degrading treatment and

punishment
According to Article 5 of the UDHR, Article 3 of the European Convention for

the Prevention of Torture, Article 7 of the ICCPR, Article 3 of the ECHR and Ar-
ticle 4 of the EU Charter of Fundamental Rights, no one should be subjected to
torture or to inhuman or degrading treatment or punishment. As highlighted
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earlier, recourse to any coercive measures or means of restraint towards return-

ees must be made only with respect to the principles of necessity and propor-
tionality, and in line with national legislation. According to the Guide for Joint
Return Operations by Air Coordinated by Frontex, any kind of physical assault
or threat aimed at forcing returnees to board is prohibited. Similarly, any meas-
ure aimed at punishing a person who is to be returned because he or she re-
fuses to board is forbidden. Instead, when a person refuses or resists removal,
all non-coercive means of seeking cooperative behaviour are to be prioritised.
In any case, the use of force or means of restraint must take place only after
assessing the individual’s circumstances and vulnerabilities. In particular, pos-
sible hunger strikes, threats against other participants or self-harm must be
taken into account. In addition, any use of force or means of restraint must be
systematically reviewed, as advised by the CPT and by Article 7 of the Code of
Conduct for Return Operations and Return Interventions Coordinated or Or-
ganised by Frontex (169).
Recourse to force or means of restraint may be used, bearing in mind the above-
mentioned principles, when returnees refuse to be returned, leading them to
violent or potential self-harming behaviour. It has to be taken into account that
the different means of transportation available, such as buses, trains and air-
craft, are contiguous, which does not allow much room for manoeuvre. Secu-
rity challenges have to be considered by the escorts and by the monitor when
they are, respectively, using force and observing.
Moreover, the use of force must always be necessary, proportional to the threat,
accountable and a means of last resort. This condition implies that there is an
obligation on the national authorities to demonstrate that the use of force
was justified and that preventive de-escalating means were envisaged be-
forehand (170). The use of force or means of restraint is thus closely linked with
both the right to life and the right to human dignity. They are, in turn, closely
tied to the prohibition of torture and cruel, inhuman or degrading treatment
and punishment.
The need to resort to force or means of restraint is nevertheless to be as-

sessed on a case-by-case basis. The use of force or means of restraint must
take place only after de-escalating techniques, verbal persuasion and a vol-
untary ‘time out’ have not proven successful or are expected have only short-
term effects. In any case, each situation involving a returnee must be considered
unique and thus assessed on a case-by-case basis, with due attention to the
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principles of proportionality, legality and necessity, as required under interna-

tional and regional law enforcement and as set out in the codes of conduct.
Moreover, any special needs on the part of the returnee, as well as his or her
right to dignity, privacy and cultural values, should always be taken into ac-
count during the operation.
In this regard, and following Article 6 of the Code of Conduct for Return Oper-
ations and Return Interventions Coordinated or Organised by Frontex:
The use of coercive measures must be legal, necessary and proportional, not
exceeding reasonable force, and with due respect for the returnee’s rights,
dignity and physical integrity. The use of coercive measures must take ap-
propriate account of the individual circumstances of each person, such as
if he or she is in a vulnerable condition.
These measures may be used only when strictly necessary on returnees who
refuse or resist removal or in response to an immediate and serious risk of
the returnee escaping, causing injury to themselves or to a third party, or
causing damage to property.
Coercive measures likely to compromise or threaten the ability of a returnee
to breathe normally are prohibited. Based on a dynamic risk assessment,
the relevant escort leader must periodically review the continuing neces-
sity and proportionality of deploying coercive measures and particularly
of applying means of restraint when these are used for prolonged periods.
The organising Member State and Frontex must provide a list of authorised
restraints in the operational documents in advance of the RO or RI. Where
applicable, this list must be distributed to the relevant participating Mem-
ber States prior to the RO or RI. The use of sedatives to facilitate removal
is forbidden, without prejudice to emergency measures under medical su-
pervision to ensure flight security.
No participating Member State participants are required to use coercive
measures not allowed under the relevant national legislation, even if those
measures are accepted by the organising Member State and Frontex for
that particular RO or RI.
Therefore, coercive measures or means of restraint are to be used only:

as a last resort, when strictly necessary (e.g. in situations where the re-
turnee is refusing to be returned or strongly resists, or if he or she is con-
sidered likely to harm himself or herself);
following an individual risk assessment (which must assess whether a re-
turnee is likely to resist and/or might try to self-harm);
in line with the list of means of restraint agreed upon; and/or
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in accordance with the applicable legal requirements. National legislation

in some instances prescribe the use of certain restraints on returnees as a
precautionary measure from the outset during a forced return operation.
Should the restraints be used in accordance with the national legal frame-
work, their legality cannot be questioned by a forced return monitor.
In forced return operations, the primary objective is to ensure the overall se-
curity and safety of all participants. The operation might be interrupted/
cancelled if these two conditions are not met or in the event of violation of
fundamental rights.
The principle of non-discrimination and the right to freedom of thought,

conscience and religion
The right to non-discrimination must be respected at all times during a forced

return operation. Article 7, ‘Conduct of border checks’, of the Schengen Borders
Code Regulation emphasises that border guards must, in the performance of
their duties, fully respect human dignity, in particular in cases involving vul-
nerable persons, and must not discriminate against persons on grounds of sex,
racial or ethnic origin, religion or belief, disability, age or sexual orientation dur-
ing border checks. The same principle is reiterated in the Schengen Handbook.
In addition, taking into account the right to freedom of thought, conscience

and religion (Article 10 of the EU Charter of Fundamental Rights), returnees
must be granted appropriate time and space to pray, according to their faith.
As it may be challenging to provide adequate time and space for this purpose,
various solutions may be proposed, such as the possibility of praying while
seated in between escort officers.
In addition, means of restraint should not impede prayer, as far as possible.

Nevertheless, as the security of all participants is the primary consideration of
escorts during a RO, refusal upon request to loosen restraints to allow prayer
may be permissible. In this case, the decision has to be justified by a risk as-
sessment and/or a particular situation that requires the use of force or means
of restraint. It is crucial that such decisions are not based on prejudice about
religion, as this could lead to discrimination against the returnee on the basis
of his or her faith or religious beliefs.
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Right to information
Throughout the whole return operation, returnees should have access to rel-
evant information in a language they can understand (with the assistance of
an interpreting service if necessary) and in an age, gender and culturally sensi-
tive manner. It is crucial to ensure that the information given to the returnees
during the contact talks was completely understood (including establishing if
this information was provided in writing and/or in audio-visual format). There-
fore, having interpreters on board the transport during the return operation
constitutes good practice. According to the OHCHR’s Recommended Princi-
ples and Guidelines on Human Rights at International Borders (Guideline 16),
prior to return, returnees should be provided with:
Information on any planned transfer to remove them from the country, in
a language they understand and in an age, gender and culturally appropri-
ate manner (individuals who have received a return decision/removal order).
Information on specific details of the process of the return operation.
Information on the possibility to lodge a complaint about ill treatment dur-
ing the return. Article 6 of the Code of Conduct for Return Operations and
Return Interventions Coordinated or Organised by Frontex states that the
competent authorities of the EU Member States are expected to give suf-
ficient and clear information to returnees about the RO, including how to
make a complaint about alleged ill treatment during the operation.
Access to a means of communication, before the actual return, with rela-
tives or friends in the country of return about the predicted arrival (usu-
ally a phone call).
Information (in an appropriate language and in an age, gender and cultur-
ally sensitive manner) about options for further support in the country of
return (including the provision of support services if the returnee has a sub-
stance misuse problem) where these are known about.
Individuals with diminished visual, speech or auditory abilities should be pro-

vided with access to the necessary equipment or personnel to ensure that they
have understood what the procedures are and can communicate their needs.
In the case of an investigation into an alleged violation supposedly happen-

ing during a return operation and committed by a participant assigned to
the return operation by any Member State, the returnee has the right, after-
wards, to request information and to be informed about the related measures
taken as well as possible remedies, as outlined in Article 20(4) of the Code of
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ganised by Frontex.
Right to healthcare
According to the Common Guidelines on Security Provisions for Joint Remov-

als by Air (Annex to Council Decision 2004/573/EC of 29 April 2004 on the
organisation of joint flights for removals from the territory of two or more
Member States, of third-country nationals who are subjects of individual re-
moval orders), the organising Member State and each participating Member
State must ensure that the returnees for whom they are responsible are in an
appropriate state of health that allows legally and factually for safe removal
by air. Medical records must be provided for returnees with a known medical
condition or where medical treatment is required. These medical records must
include the results of medical examinations, including diagnoses, and must
specify any medication that may be required for necessary medical measures
to be taken. Multilingual versions of medical records must be provided if the
accompanying medical staff is not able to understand the original language
properly. Organising and participating Member States are encouraged to use
common standardised forms for medical records and fit-to-fly declarations.
The participating Member States must inform the organising Member State
in advance of a removal operation of any medical condition that would have
a bearing on the removability of a returnee. The organising Member State re-
serves the right to refuse access to a joint flight to any returnee with a medi-
cal condition that would mean that their return was not compatible with the
principles of safety and dignity.
It is of crucial importance to provide returnees with a pre-return medical ex-

amination. National authorities should establish, ideally as a mandatory re-
quirement, the rules on issuance of a fit-to-fly certificate, including with regard
to pre-existing health conditions affecting a returnee and/or necessary med-
ical treatment. Such a certificate issued by a doctor needs to be transmitted
from the medical staff of the participating Member State to the medical staff
of the organising Member State prior to a return operation. Although the in-
formation gathered should serve as a basis for an adequate risk assessment,
all the sensitive data concerning specific medical issues of returnees should be
accessible only to medical staff and processed in full compliance with relevant
personal data protection legislation.
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As outlined in Article 14 of the Code of Conduct for Return Operations and Re-
turn Interventions Coordinated or Organised by Frontex, at least one doctor
provided by the organising Member State should be present during the whole
operation. Medical staff from the participating Member State can be present
as well during the in-flight phase. The relevant Member State is to provide the
necessary amount of medication for returnees under medical treatment. Any
medication administered to the returnee should be based on a medical exam-
ination and the decision of the medical staff, with particular care taken with
children. Except in emergency medical situations, no medication should be ad-
ministered without the returnee’s consent. Several international instruments
refer to the right for everyone to be free from hunger and to have access to
adequate food. Returnees are to be provided with sufficient and appropriate
food and water during a return operation. It is common practice to provide
the same type of food for returnees as for the other participants in an RO. In
addition, the dietary requirements of returnees (e.g. in relation to gluten-free,
sugar-free, halal, kosher or vegetarian food) must be observed. Sharp objects,
such as knives and forks, and hot beverages are to be avoided.
Rights of vulnerable persons
In accordance with Article 3(9) of the Return Directive, in the context of re-

turn procedures covered by that directive the term ‘ “vulnerable persons”
means minors, unaccompanied minors, disabled people, elderly people, preg-
nant women, single parents with minor children and persons who have been
subjected to torture, rape or other serious forms of psychological, physical or
sexual violence’. However, in particular situations, even groups that are not
explicitly mentioned in the above list may be considered vulnerable, such as
members of certain ethnical or cultural minorities. During a forced return op-
eration, the special needs of vulnerable persons should be taken into account
and they should be provided with adequate assistance. This means accom-
modating any special needs when it comes to food, the temperature of ba-
bies’ food, allergies, etc. Whenever possible, families should be transported
and seated together during travel to the country of return, especially in cases
where the return involves convicted criminals or returnees evaluated as being
at a high risk of resorting to violence. However, taking into account the child’s
best interests, a child may be seated separately, if circumstances require that
restraints/coercive measures are used on a parent, with adequate support and
assistance. The aim of this is to prevent the child witnessing the situation and
seeing the restraints on his or her parent.
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Unaccompanied minors should be returned only in exceptional cases when it

is in the best interest of the child, for example for the purpose of family reuni-
fication with the consent of the child, etc. However, it should be emphasised
that the decision to return such a child is the responsibility not of the escorts
but of the relevant national authorities. Separated and unaccompanied chil-
dren should receive special care and protection. In some cases, the guardian
assigned to the child before the decision on return was taken may accompany
the minor during the forced return operation. Escorts should be attentive to
the fears and anxieties of children and assist parents and guardians appropri-
ately in comforting and reassuring them.
Right to privacy
Privacy should be granted to the returnee where possible, with due considera-
tion for the age, gender and culture of the person to be returned. Physical se-
curity checks should be carried out in separate areas and by an officer of the
same sex. If security checks take place in separate rooms, the door should be
left ajar to enable monitoring of the activity. Any video and/or audio record-
ing or monitoring by third-party observers of an RO organised or coordinated
by Frontex must be subject to prior agreement between the States involved.
The national legal frameworks may differ in this regard and need to be con-
sidered separately in each specific case. To allow returnees privacy when using
the bathroom, an escort of the same sex, where possible, should wait out-
side until the returnee comes out of the bathroom. In practice, returnees who
have been assessed as high risk are asked by escorts to leave the toilet door
on board the means of transport ajar when using the bathroom.
The personal information of the returnee (the file kept by the authorities with
relevant information, the return decision, etc.), is to be handled in line with the
(national) legal framework and requirements relating to personal data protec-
tion, and thus will not be available to the participants in a forced return oper-
ation but be kept according to agreed responsibilities by the head of operation
and/or the escort leader. Information regarding the medical conditions of re-
turnees is to be kept with the medical personnel on board. Frontex assumes
that all return decisions that are executed via ROs organised or coordinated
by Frontex are in compliance with fundamental rights, including the non-re-
foulement principle, and other provisions of EU, international and national law.
All persons participating in activities coordinated and organised by Frontex,
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including ROs, have to carry out their tasks with respect for human dignity
and fundamental rights, to meet the obligations imposed upon them by the
provisions of the Frontex Code of Conduct and the Code of Conduct for Re-
turn Operations and Return Interventions Coordinated or Organised by Fron-
tex, and are required to comply with the rules of their mandates.
The Frontex Code of Conduct sets out principles and rules that guide the con-
duct of all persons participating in Frontex activities, namely Frontex staff,
officers of the border guard services of a Member State and other staff per-
forming any Frontex activity. It aims to guarantee the principles of the rule of
law and respect for, and protection, fulfilment and promotion of, fundamen-
tal rights, with a particular focus on accompanied and unaccompanied mi-
nors and other vulnerable persons, as well as persons seeking international
protection, including the obligation of referral to national authorities compe-
tent for receiving asylum requests. This code is complemented by the Code of
ganised by Frontex, which sets out common principles and the main proce-
dures to be observed during return operations and interventions coordinated
or organised by Frontex.
This code addresses specific issues and situations that may occur during ROs
and RIs. Each implementation plan drawn up and distributed by Frontex prior
to each RO or RI contains links to both the aforementioned codes. All persons
involved in activities coordinated by Frontex are required to maintain the high-
est standards of integrity, ethical conduct, professionalism and respect for fun-
damental rights. While taking part in activities coordinated by Frontex, they
are required to comply with international law and EU law, including on issues
relating to fundamental rights, and the national law of the organising Mem-
ber State or the transit country.
The Guide for Joint Return Operations by Air Coordinated by Frontex is a doc-
ument intended to provide operational guidance for Frontex-coordinated ROs
and RIs by air to standardise procedures and to simplify the organisation of ROs
and RIs. The document is a tool to provide support to the authorities responsi-
ble for the organisation of ROs and RIs. However, it is not intended to replace
or alter in any way Council Decision 2004/573/EC; it complements that decision
by describing a practical, experience-based approach, and is not intended to
create new legally binding obligations on Member States. It collects best prac-
tices relating to the performance by national authorities competent for carry-
ing out return of related tasks in the framework of ROs coordinated by Frontex.
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Furthermore, the Member State of each relevant RO participant must sanction

with appropriate disciplinary, criminal or other measures in accordance with its
national law those responsible in cases of violation of applicable national and
international legal provisions in the course of an operational activity. All per-
sons involved in activities coordinated by Frontex must avoid any kind of dis-
crimination. They are expected to treat every person with courtesy, respect
and due consideration for the nature of any legitimate activity in which they
are engaged. The specific needs of vulnerable groups, such as minors, persons
with disabilities, elderly people, pregnant women, single parents with minor
children and persons who have been subject to torture, rape or other serious
forms of psychological, physical or sexual violence, as well as persons with a
serious health condition, mental disability or any other vulnerabilities, as de-
fined in EU law, should be taken into account and carefully observed during all
the phases of the operation. All persons participating in Frontex-coordinated
activities are required to report any incidents involving suspected or alleged
violations of fundamental rights or the Frontex codes of conduct through the
appropriate reporting channel, for example through the Frontex Serious Inci-
dent Reporting system. They should receive in advance appropriate training
(including on fundamental rights) provided by national authorities responsible
for their deployment or by Frontex. Moreover, all tasks and objectives must be
performed in full compliance with international law, namely the International
Civil Aviation Organization (ICAO) Convention on Offences and Certain Acts
Committed on Board Aircraft (the Tokyo Convention) (171) and the ICAO Con-
vention on Civil Aviation (the Chicago Convention) (172).
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Notes
The legalization of human rights: Multidisciplinary perspectives on human rights and

(1)
human rights law, S. Meckled-García and B. Çali (Eds), Routledge, 2006, p. 13.
(2) United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI.
( 3) A concise encyclopaedia of the United Nations, H. Volger (Ed.), 2nd revised edition,
Martinus Nijhoff Publishers, Leiden, p. 264.
(4) A. Aust, Handbook of international law, Cambridge University Press, New York,
p. 236.
(5) FRA, ‘Frequently Asked Questions’, http://fra.europa.eu/en/

about-fundamental-rights/frequently-asked-questions
(6) H. Victor Conde, A handbook of international human rights terminology, Human

Rights in International Perspective series, 2nd edition, University of Nebraska
Press, 2004, p. 268.
(7) OHCHR, Vienna Declaration and Programme of Action, adopted by the World
Conference on Human Rights in Vienna on 25 June 1993, para. 5, available
at http://www.ohchr.org/EN/ProfessionalInterest/Pages/Vienna.aspx
(8) S. Meckled-García and B. Çali (Eds), The legalization of human rights:

Multidisciplinary perspectives on human rights and human rights law, Routledge,
2006, pp. 13–17.
(9) S. Meckled-García and B. Çali (Eds), The legalization of human rights:

Multidisciplinary perspectives on human rights and human rights law, Routledge,
2006, p. 66.
(10) J.-F. Akandji-Kombe, Positive obligations under the European Convention on

Human Rights: A guide to the implementation of the European Convention on
Human Rights, Human Rights Handbook No 7, Council of Europe, 2007, p. 7.
(11) FRA, Scope of the principle of non-refoulement in contemporary border

management: Evolving areas of law, 2016, pp. 16 and 17.

management: Evolving areas of law, 2016, p. 17.
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management: Evolving areas of law, 2016, p. 17.
(14) D. Robertson, A dictionary of human rights, 2nd edition, Taylor & Francis, 2004,
pp. 74 and 75.
(15) O. De Schutter, International human rights law: Cases, materials, commentary,

2nd edition, Cambridge University Press, 2014, p. 22.
(16) D. Chalmers,G. Davies and G. Monti, European Union law: Cases and materials,
2nd edition, Cambridge University Press, p. 232.
(17) O. Zetterquist, ‘The Charter of Fundamental Rights and the European res
publica’, in G. Di Federico (Ed.), The EU Charter of Fundamental Rights, Ius
Gentium: Comparative Perspectives on Law and Justice 8, Springer, 2011, p. 3.
(18) O. Zetterquist, ‘The Charter of Fundamental Rights and the European res
publica’, in G. Di Federico (Ed.), The EU Charter of Fundamental Rights, Ius
Gentium: Comparative Perspectives on Law and Justice 8, Springer, 2011, p. 4.
(19) Economic and social rights under the EU Charter of Fundamental Rights — a legal
perspective, T. Hervey and J. Kenner (Eds), Hart Publishing, 2003, p. vii.
(20) European Commission, EU Charter of Fundamental Rights, available at

http://ec.europa.eu/justice/fundamental-rights/charter/index_en.htm
(21) A. Rosas, ‘When is the EU Charter of Fundamental Rights applicable at

national level?’, Jurisprudencija/Jurisprudence 19(4), 2012, p. 1270.
(22) European Commission, EU Charter of Fundamental Rights, available at

http://ec.europa.eu/justice/fundamental-rights/charter/index_en.htm
(23) A. Aust, Handbook of international law, Cambridge University Press, New York,
pp. 12 and 13.
(24) S. Joseph and A. McBeth (Eds) Research handbook on international human rights
law, Elgar Publishing, 2010, p. 5.
(25) S. Joseph and A. McBeth (Eds) Research handbook on international human rights
law, Elgar Publishing, 2010, p. 5.
189
LIMITED
(26) Resolution 60/251, ‘Human Rights Council’, adopted by the UN General

Assembly on 15 March 2006, sixtieth session, agenda items 46 and 120,
05–50266.
(27) UN HRC Resolution 5/1, ‘Institution-building of the United Nations’.
(28) OHCHR, available at http://www.ohchr.org/EN/HRBodies/SP/Pages/

Welcomepage.aspx
(29) S. Lewis-Anthony and M. Scheinin, ‘Treaty-based procedures for making

human rights complaints within the UN system’, in H. Hannum (Ed.), Guide to
international human rights practice, 4th edition, Martinus Nijhoff Publishers, New
York, 2004, p. 43.
( 30) S. Joseph and A. McBeth (Eds), Research handbook on international human rights
law, Elgar Publishing, pp. 21 and 22.
( 31) The treaty bodies database of the OHCHR is available at http://tbinternet.

ohchr.org/_layouts/TreatyBodyExternal/TBSearch.aspx
( 32) D. Weissbrodt, The human rights of non-citizens, Oxford University Press, 2008,
p. 163.
( 33) G. Loescher, A. Betts and J. Milner, The United Nations High Commissioner for
Refugees (UNHCR): The politics and practice of refugee protection into the twenty-
first century, Routledge, 2008, pp. 75 and 76.
( 34) D. Weissbrodt, The human rights of non-citizens, Oxford University Press, 2008,
p. 164.
( 35) K. Hailbronner and D. Thym (Eds), EU immigration and asylum Law:

A commentary, 2nd edition, C.H. Beck/Hart/Nomos, 2016, p. 1050.
( 36) K. Hailbronner and D. Thym (Eds), EU immigration and asylum Law:

A commentary, 2nd edition, C.H. Beck/Hart/Nomos, 2016, p. 1050.
( 37) Hirsi Jamaa and Others v Italy, application No 27765/09, ECtHR,

23 February 2012.
190
LIMITED
( 38) S. Carrera, M. De Somer and B. Petkova, ‘The Court of Justice of the European
Union as a fundamental rights tribunal: Challenges for the effective delivery of
fundamental rights in the area of freedom, security and justice’, CEPS Papers
in Liberty and Security in Europe No 49, 2012, p. 6.
( 39) S. Carrera, M. De Somer and B. Petkova, ‘The Court of Justice of the European
(40) The description is based on ‘What does the CJEU do?’, available at
https://europa.eu/european-union/about-eu/institutions-bodies/
court-justice_en
(41) S. Carrera, M. De Somer and B. Petkova, ‘The Court of Justice of the European
(42) Request for a preliminary ruling under Article 267 of the TFEU from the
Amtsgericht Kehl (Local Court, Kehl, Germany), made by decision of
21 December 2015, received at the Court on 7 January 2016, in the criminal
proceedings against A; other party, Staatsanwaltschaft Offenburg.
(43) Human Rights Division of the Netherlands Ministry of Foreign Affairs, Manual
for embassies of EU Member States. Strengthening the national human rights
protection system, 2009, p. 22.
(44) S. Carrera and M. Stefan, Complaint mechanisms in border management and

expulsion operations in Europe: Effective remedies for victims of human rights
violations?, Centre for European Policy Studies, 2018, p. 1.
(45) The description is based on the similar situation of the police in the domestic
framework for human rights protection. See, in this regard, FRA, Fundamental
rights-based police training — A manual for police trainers, 2013, pp. 53 and 54.
(46) OHCHR, Report of the Special Rapporteur on the human rights of migrants
on agenda for facilitating human mobility, HRC thirty-fifth session,
23 June 2017, agenda item 3.
191
LIMITED
(47) OHCHR, Report of the Special Rapporteur on the human rights of migrants
on a 2035 agenda for facilitating human mobility, HRC thirty-fifth session,
(48) UNHCR, Global trends: Forced displacement in 2015, 2016.
(49) United Nations Department of Economic and Social Affairs/Population

Division, International migration report 2017, pp. 2 and 3.
(50) OSCE, From reception to recognition: Identifying and protecting human trafficking
victims in mixed migration flows: A focus on first identification and reception
facilities for refugees and migrants in the OSCE region, Vienna, 2018, p. 15.
(51) European Parliament, ‘EU migrant crisis: Facts and figures’, 30 June 2017,
available at http://www.europarl.europa.eu/news/en/headlines/
society/20170629STO78630/eu-migrant-crisis-facts-and-figures
(52) European Parliament, ‘EU migrant crisis: Facts and figures’, 30 June 2017,
available at http://www.europarl.europa.eu/news/en/headlines/
society/20170629STO78630/eu-migrant-crisis-facts-and-figures
(53) Mixed Migration Platform, ‘Trafficking in mixed migration flows. Exploitation

of refugees and other migrants in the Middle East and Europe’, Briefing Paper
No 4, 2017, p. 1.
(54) IOM Missing Persons Project, data available at https://missingmigrants.iom.

int/sites/default/files/c-med-fatalities-briefing-july-2017.pdf
(55) European Commission, Communication from the Commission to the

European Parliament and the Council, The protection of children in migration,
COM(2017) 211 final of 12 April 2017.
(56) UNHCR, Unicef and IOM, ‘Refugee and migrant children in Europe:
Accompanied, unaccompanied and separated — quarterly overview of trends
January-March 2017’.
(57) For example, see the Report of the Special Rapporteur on the human rights of
migrants on agenda for facilitating human mobility, HRC thirty-fifth session,
192
LIMITED
(58) European Parliament, ‘Gender aspects of migration and asylum in the EU:
An overview’, briefing, European Parliamentary Research Service, 2016, p. 3.
(59) M. Frigo, Migration and international human rights law: A practitioners’ guide,
International Commission of Jurists, updated edition, 2014, p. 36.
(60) The Global Migration Group, ‘Theme 3: Addressing vulnerabilities associated

with migration’, available at http://www.globalmigrationgroup.org/theme/
human-rights-migrants
(61) Council of Europe, Committee of Ministers, Recommendation Rec(2001)10

of the Committee of Ministers to Member States on the European Code of
Police Ethics, 19 September 2001, and explanatory memorandum (e.g. during
officially declared national emergency situations).
(62) Council of Europe, Committee of Ministers, Recommendation Rec(2001)10 of

the Committee of Ministers to the Member States on the European Code of
Police Ethics, 19 September 2001, and explanatory memorandum, p. 10
(63) The list is based on the FRA publication Fundamental rights-based police training
— A manual for police trainers, 2013, module 6, p. 182.
(64) OSCE Office for Democratic Institutions and Human Rights (ODIHR)
and Council of Europe Commission for Democracy through Law (Venice
Commission), Guidelines on Freedom of Association, Warsaw, 2015, pp. 54
and 55.
(65) OSCE Office for Democratic Institutions and Human Rights (ODIHR)
and Council of Europe Commission for Democracy through Law (Venice
Commission), Guidelines on Freedom of Association, Warsaw, 2015, pp. 54
and 55.
(66) See, for example, J. Pursiainen, ‘Do you feel a lot of stress at the border
today?’, the Finnish Border and Coast Guard Academy, 2017; or S.R. Senjo,
‘Dangerous fatigue conditions: A study of police work and law enforcement
administration’, Police Practice and Research 12(3), 2011, pp. 235–252.
(67) IMO Resolution MSC.70(69), Adoption of Amendments to the International

Convention on Maritime Search and Rescue, 1979, 18 May 1998.
193
LIMITED
(68) IMO, Principles Relating to Administrative Procedures for Disembarking

Persons Rescued at Sea, 22 January 2009, FAL.3/Circ.194.
(69) IMO, Maritime Safety Committee, Resolution MSC.167(78), Guidelines on the

Treatment of Persons Rescued at Sea (IMO Rescued Guidelines), adopted on
20 May 2004.
(70) UNHCR-IMO-International Chamber of Shipping, Rescue at Sea: A Guide to

Principles and Practice as Applied to Refugees and Migrants, January 2015,
available at http://www.refworld.org/docid/54b365554.html
(71) H. Victor Conde, A handbook of international human rights terminology (human

rights in international perspective series), 2nd edition, p. 109.
(72) C. McCrudden, ‘Human dignity and judicial interpretation of human rights’,

European Journal of International Law 19(4), 2008, pp. 655–724, available at
https://doi.org/10.1093/ejil/chn043
(73) Frontex, Ethics of Border Security, Centre for the Study of Global Ethics,
University of Birmingham, 2010.
(74) Council of Europe, Practical Handbook for Border Guards (Schengen

Handbook), available at: http://register.consilium.europa.eu/doc/
srv?l=EN&f=ST%2015010%202006%20INIT
(75) Selmouni v France, application No 25803/94, ECtHR, 28 July 1999.
(76) Saadi v Italy, application No 37201/06, ECtHR, 28 February 2008.
(77) Jalloh v Germany, application No 54810/00, ECtHR, 11 July 2006.
(78) Krastanov v Bulgaria, application No 50222/99, ECtHR, 30 September 2004.
(79) Keenan v the United Kingdom, application No 27229/95, ECtHR, 4 March 2001.
(80) Ireland v the United Kingdom, application No 5310/71, ECtHR, 18 January 1978.
(81) Gäfgen v Germany, application No 22978/05, ECtHR, 1 June 2010.
(82) Council of Europe Convention on Action against Trafficking in Human Beings,

Warsaw, Council of Europe Treaty Series No 197, 16.V.2005.
194
LIMITED
(83) ECtHR, ‘Factsheet — trafficking in human beings’, June 2017.
(84) European Parliament, Towards a new EU legal framework for data protection
and privacy: Challenges, principles and the role of the European Parliament, Policy
Department C, Citizens’ Rights and Constitutional Affairs, 2011, p. 19.
(85) F. Boehm, Information sharing and data protection in the area of freedom, security
and justice: Towards harmonised data protection principles for information exchange
at EU-level, Springer, 2012, p. 4.
(86) European Parliament, Towards a new EU legal framework for data protection
and privacy: Challenges, principles and the role of the European Parliament, Policy
Department C, Citizens’ Rights and Constitutional Affairs, 2011, p. 20.
(87) FRA and Council of Europe, Handbook on European data protection law, 2014,
pp. 20 and 21.
(88) E. Mendos Kuşkonmaz, ‘Brexit and data protection: The tale of the data
protection bill and UK-EU data transfers’, available at http://eulawanalysis.
blogspot.com/2017/09/brexit-and-data-protection-tale-of-data.html
(89) F. Boehm, Information sharing and data protection in the area of freedom, security
and justice: Towards harmonised data protection principles for information exchange
at EU-level, Springer, 2012, p. 25.
(90) U. Kilkelly, The right to respect for private and family life: A guide to the
implementation of Article 8 of the European Convention on Human Rights, Human
Rights Handbook No 1, Council of Europe, 2003, pp. 15 and 16.
Rights Handbook No 1, Council of Europe, 2001, p. 19
(92) Council of Europe, Guide on Article 8 of the European Convention on Human

Rights right to respect for private and family life, 1st edition, 2017, p. 48.
(93) Jeunesse v the Netherlands, application No 12738/10, EctHR, 3 October 2014.
(94) B.A.C. v Greece, application No 11981/15, ECtHR, 13 October 2016.
195
LIMITED
(95) Mehemi v France, application No 53470/99, ECtHR, 26 September 1997.
(96) Boultif v Switzerland, application No 54273/00, ECtHR, 2 August 2001.
(97) FRA, Addressing forced marriage in the EU: Legal provisions and promising practices,
2014, p. 7. Please note that the Istanbul Convention has not yet been ratified
by all EU Member States.

(99) Chiragov and Others v Armenia, application No 13216/05, ECtHR, 16 June 2015.
(100) Winterstein and Others v France, application No 27013/07, ECtHR,

17 October 2013.
Rights Handbook No 1, Council of Europe, 2001, p. 19

(103) OHCHR, Principles and Practical Guidance on the Protection of the Human
Rights of Migrants in Vulnerable Situations, HRC thirty-fourth session,
27 February-24 March 2017, agenda items 2 and 3.
(104) OHCHR, Principles and Practical Guidance on the Protection of the Human
Rights of Migrants in Vulnerable Situations, HRC thirty-fourth session,
27 February-24 March 2017, agenda items 2 and 3.
(105) Human Rights Council Advisory Committee, Global Issue of Unaccompanied

Migrant Children and Adolescents and Human Rights, HRC thirty-third
session, 16 August 2016, agenda items 3 and 5.
(106) UN Convention relating to the Status of Stateless Persons, 28 September 1954,

United Nations, Treaty Series 360, p. 117.
196
LIMITED
(107) European Parliament, Practices and approaches in EU Member States to prevent

and end statelessness: Study for the LIBE Committee, Policy Department C,
Citizens’ Rights and Constitutional Affairs, 2015, p. 20.
(108) Conclusions of the Justice and Home Affairs Council, 3–4.12.2015.
(109) OHCHR, Report of the Special Rapporteur on the right of everyone to the
enjoyment of the highest attainable standard of physical and mental health,
HRC twenty-third session, agenda item 3, 2013.
(110) WHO Regional Office for Europe, ‘Migration and health: Key issues’, available
at http://www.euro.who.int/en/health-topics/health-determinants/
migration-and-health/migrant-health-in-the-european-region/
migration-and-health-key-issues
(111) WHO Regional Office for Europe, ‘Migration and health: Key issues’, available
at http://www.euro.who.int/en/health-topics/health-determinants/
migration-and-health/migrant-health-in-the-european-region/
migration-and-health-key-issues
(112) M.S.S. v Belgium and Greece, application No 30696/09, ECtHR, 21 January 2011.
(113) Rahimi v Greece, application No 8687/08, ECtHR, 5 April 2011.
(114) FRA, Handbook on European law relating to asylum, borders and immigration, 2014,
pp. 146 and 147.
(115) CRC, Article 37(b).
(116) FRA, Handbook on European law relating to asylum, borders and immigration, 2014,
p. 162.
(117) A.M v France, application No 24587/12, ECtHR, 12 July 2016, available at

www.refworld.org/pdfid/5784e41b4.pdf
(118) Abdullahi Elmi and Aweys Abubakar v Malta, application Nos 25794/13 and
28151/13, 22 November 2016.
(119) S.F. and Others v Bulgaria, application No 8138/16, ECtHR, 7 December 2017,

available at http://www.refworld.org/cases,ECHR,5a2e5ecb4.html
197
LIMITED
(120) For example, some of these criteria are listed in the judgment of 7 December
2017 in the case of S.F. and Others v Bulgaria, ECHR, available at
http://www.refworld.org/cases,ECHR,5a2e5ecb4.html. For more details on
the relevant case-law, please also see the ECtHR factsheet ‘Unaccompanied
migrant minors in detention’, January 2018, available at
http://www.echr.coe.int/Documents/FS_Unaccompanied_migrant_minors_
detention_ENG.pdf, and the ECtHR factsheet ‘Accompanied migrant minors
in detention’, April 2018, available at http://www.echr.coe.int/Documents/FS_
Accompanied_migrant_minors_detention_ENG.pdf
(121) Information note on the Court’s case-law 198, July 2016.
(122) Information note on the Court’s case-law 198, July 2016.
(123) Mohamad v Greece, application No 70586/11, ECtHR, 11 December 2014.
(124) See, for example, Council of Europe Commissioner for Human Rights, ‘High
time for states to invest in alternatives to migrant detention’, 31 January 2017,
available at https://www.coe.int/en/web/commissioner/-/high-time-for-
states-to-invest-in-alternatives-to-migrant-detention; or FRA, European legal
and policy framework on immigration detention of children, 2017.
(125) UN Committee on the Protection of the Rights of All Migrant Workers

and Members of Their Families, Joint General Comment No 4 (2017) of the
Committee on the Protection of the Rights of All Migrant Workers and
Members of Their Families and No 23 (2017) of the Committee on the Rights
of the Child on State obligations regarding the human rights of children in the
context of international migration in countries of origin, transit, destination
and return, 16 November 2017, CMW/C/GC/4-CRC/C/GC/23, available at
http://www.refworld.org/docid/5a12942a2b.html
(126) UN Committee on the Protection of the Rights of All Migrant Workers

and Members of Their Families, Joint General Comment No 4 (2017) of the
Committee on the Protection of the Rights of All Migrant Workers and
Members of Their Families and No 23 (2017) of the Committee on the Rights
of the Child on State obligations regarding the human rights of children in the
context of international migration in countries of origin, transit, destination
and return, 16 November 2017, CMW/C/GC/4-CRC/C/GC/23, available at
http://www.refworld.org/docid/5a12942a2b.html
198
LIMITED
(127) M. Carss-Frisk, A right to property: A guide to the implementation of Article 1

of Protocol No 1 to the European Convention on Human Rights, Human Rights
Handbook No 4, Council of Europe, 2001, p. 6.
(128) Sporrong and Lönnroth v Sweden, application Nos 7151/75 and 7152/75, ECtHR,
23 September 1982.
(129) Iatridis v Greece, application No 31107/96, ECtHR, 25 March 1999.

management: Evolving areas of law, 2016.
(131) Concurring opinion, Judge Pinto de Albuquerque in the case of Hirsi Jamaa and
Others v Italy, application No 27765/09, ECtHR.

management: Evolving areas of law, 2016.
(133) Sir E. Lauterpacht and D. Bethlehem, Refugee protection in international law:

UNHCR’s global consultations on international protection, E. Feller, V. Türk and
F. Nicholson (Eds), Cambridge University Press, 2003, p. 151.
(136) For example, Andric v Sweden, application No 45917/99, ECtHR, 23 February

1999, decision on admissibility.
(137) ECHR, Guide on Article 4 of Protocol No 4 to the European Convention on

Human Rights — Prohibition of collective expulsions of aliens, 30 April 2017,
pp. 5 and 6.,

p. 5.
199
LIMITED

p. 7.
(140) Hirsi Jamaa and Others v Italy, application No 27765/09, ECtHR,

23 February 2012.
(141) O. De Schutter, International human rights law: Cases, materials, commentary, 2nd
edition, Cambridge University Press, 2014, p. 562.
(142) O. De Schutter, International human rights law: Cases, materials, commentary, 2nd
edition, Cambridge University Press, 2014, p. 562.
(143) UN Human Rights Committee, CCPR General Comment No 18: Non-

discrimination, 10 November 1989, para. 7.
(144) UN Human Rights Committee, CCPR General Comment No 18: Non-

discrimination, 10 November 1989, paras 8 and 13.
(145) EASO, ‘Access to the asylum procedure: Practical tools for first-contact
officials’, available at https://www.easo.europa.eu/accesstoprocedure
(146) Directive 2013/32/EU of the European Parliament and of the Council

of 26 June 2013 on common procedures for granting and withdrawing
international protection (recast), OJ L 180, 29.6.2013, pp. 60–95.
(147) Directive 2011/95/EU of the European Parliament and of the Council of

13 December 2011 on standards for the qualification of third-country nationals
or stateless persons as beneficiaries of international protection, for a uniform
status for refugees or for persons eligible for subsidiary protection, and for the
content of the protection granted, OJ L 337, 20.12.2011, p. 9–26.
(148) CEDAW, General Recommendation No 26 on women migrant workers, 2008,

p. 4.
(149) UNHCR, Sexual and gender-based violence prevention and response in refugee
situations in the Middle East and North Africa, 25 November 2015, p. 3, available
at http://www.refworld.org/docid/568f9a014.html
200
LIMITED
(152) Decision of the Executive Director No R-ED-2016-106 on the Complaints

Mechanism of 6 October 2016.
(153) Regulation (EU) 2016/679 of the European Parliament and of the Council

of 27 April 2016 on the protection of natural persons with regard to the
processing of personal data and on the free movement of such data, and
repealing Directive 95/46/EC (General Data Protection Regulation), OJ L 119,
4.5.2016, p. 1–88.
(154) FRA Opinion, ‘Under watchful eyes — biometrics, EU IT-systems and

fundamental rights’, available at http://fra.europa.eu/en/publication/2018/
biometrics-rights-protection/fra-opinions
(155) Information Commissioner’s Office, ‘Guide to the General Data Protection

Regulation’, available at https://ico.org.uk/for-organisations/guide-
to-the-general-data-protection-regulation-gdpr/individual-rights/
right-to-erasure/
(156) FRA, Fundamental rights at Europe’s southern sea borders, 2013, p. 13.
(157) See, for example, European Commission, Legal aspects of maritime monitoring
and surveillance data, summary report, 2008, p. 10.
(158) European Commission, Communication from the Commission to the

European Parliament and the Council, The protection of children in migration,
COM(2017) 211 final of 12 April 2017.
(159) EASO, ‘Rights and obligations in the context of reception’, available at

https://www.easo.europa.eu/rights-and-obligations-context-reception
(160) European Commission, Migration and Home Affairs, ‘Country responsible for
asylum application (Dublin)’, available at https://ec.europa.eu/home-affairs/
what-we-do/policies/asylum/examination-of-applicants_en
(161) European Commission, Migration and Home Affairs, ‘Identification of

applicants (EURODAC)’, available at https://ec.europa.eu/home-affairs/
what-we-do/policies/asylum/identification-of-applicants_en
201
LIMITED
(162) FRA, ‘Fundamental rights implications of the obligation to provide fingerprints

for Eurodac’, October 2014.
(163) International Centre for Migration Policy Development, Training manual for
forced return monitoring, 2015.
(164) Frontex, Guide for Joint Return Operations by Air Coordinated by Frontex,
2016, section 6.1.24.
(165) See, for example, European Committee for the Prevention of Torture and
Inhuman or Degrading Treatment or Punishment, CPT/Inf (2016) 33.
(166) Frontex, Guide for Joint Return Operations by Air Coordinated by Frontex,
2016, section 6.1.23.
(167) Report to the Government of the United Kingdom on the visit to the United
Kingdom carried out by the European Committee for the Prevention of
Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 17 to
28 September 2012, Strasbourg, 27 March 2014.
(168) Council of Europe, Twenty Guidelines on Forced Return, September 2005,

p. 50.
(169) Council of Europe, Twenty Guidelines on Forced Return, September 2005,

p. 50; Frontex, Code of Conduct for Return Operations and Return
Interventions Coordinated or Organised by Frontex, p. 13, 2018.
(170) Report to the Spanish Government on the visit to Spain carried out by
the European Committee for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment (CPT) from 17 to 19 February 2016, CPT/
Inf (2016) 35, Strasbourg, 15 December 2016.
(171) The International Civil Aviation Organization (ICAO), Convention on

Offences and Certain Acts Committed on Board Aircraft (Tokyo Convention),
14 September 1963.
(172) International Civil Aviation Organization (ICAO), Convention on Civil Aviation

(Chicago Convention), 7 December 1944, (1994) 15 U.N.T.S. 295.
202
LIMITED
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Article 2, Treaty on European Union

General part #11

1. Module I: Basics of border-related fundamental rights #11

Operational part #113

2. Module II: Impact of first-line border activities on fundamental

3. Module III: Impact of second-line border activities on fundamental

API Advance Passenger Information

NPM national preventive mechanism

General part: Module I

1. Module I: Basics of border-related

1.1. The origin of fundamental rights

1.1.1. General considerations

1.1.2. Human rights and fundamental rights

It has to be stressed that the term ‘fundamental rights’ is used in the EU to

1.1.3. Principle of universality

The principle that ‘universality of human rights is the cornerstone of interna-

1.2. States and fundamental rights

1.2.1. Implementation of fundamental rights in States

International human rights law gives specific entitlements to individuals,

1.2.2. Obligations of the State and its agents

Article 4 of Regulation (EU) 2016/399 of the European Parliament and of the

In many cases, the issue of the jurisdiction of a particular State is subject to

1.3. European human rights instruments

1.3.1. The Council of Europe

1.3.2. The European Union

The original treaties establishing European Communities in the 1950s did

expected their national constitutions to be the best guarantee of protection

Consequently, the EU Charter of Fundamental Rights, proclaimed in 2000, is

According to Article 51(1) of the EU Charter of Fundamental Rights, while its

1.4. Monitoring of implementation and judicial

1.4.1. General considerations

Nowadays, there is an impressive collection of international, regional and na-

1.4.2. Legal implications

1.5. International monitoring mechanisms

The UN human rights institutions can be divided into ‘the UN Charter-based

1.5.1. UN Charter-based bodies

The Human Rights Council

Created in 2006 by Resolution 60/251 of the UN General Assembly (26), the

 promote the full implementation of human rights obligations undertaken

The Universal Periodic Review

Based on its mandate and its Resolution 5/1, ‘Institution-building of the United

The UPR criteria must be based on:

The Human Rights Council Advisory Committee

Based on its Resolution 5/1, ‘Institution-building of the United Nations’, the

The HRC complaint procedure

A complaint procedure was established by the HRC to address consistent

 It is not manifestly politically motivated, and its object is consistent with

Other HRC special procedures

1.5.2. Treaty bodies

Several treaty bodies were established under the abovementioned UN human

The Committee on Economic, Social and Cultural Rights (CESCR) is a UN body

The Committee against Torture is a UN body of independent experts that is

The Subcommittee on Prevention of Torture (SPT) was set up by the Optional

The Committee on the Elimination of Racial Discrimination is a UN body of

The Committee on the Elimination of Discrimination against Women is a UN

The Committee on the Rights of the Child is a UN body of independent ex-

committee will also, under certain circumstances, be able to consider individ-

The Committee on the Rights of Persons with Disabilities is a UN body of inde-

The Committee on Enforced Disappearances is a UN body of independent ex-

1. Module I: Basics of border-related fundamental rights #11

2. Module II: Impact of first-line border activities on fundamental

3. Module III: Impact of second-line border activities on fundamental

NPM national preventive mechanism

1. Module I: Basics of border-related

1.4. Monitoring of implementation and judicial

promote the full implementation of human rights obligations undertaken

It is not manifestly politically motivated, and its object is consistent with

European Committee for the Prevention of Torture of the Council of

Annulling EU legal acts (actions for annulment). If an EU act is believed to

Institutions that contribute to the promotion and protection of human

1.8. International protection of migrants in today’s

we are witnessing in today’s world an unprecedented level of human mo-

widespread unemployment and a lack of viable economic opportunities

1.9. Fundamental rights and entitlements of border

1.10. Fundamental rights closely connected to border

The UN Convention on the Rights of the Child (1989) (CRC);

1.10.3. Prohibition of torture and inhuman or degrading treatment or

any act by which severe pain or suffering, whether physical or mental, is

1.10.4. Prohibition of slavery, servitude, forced labour and trafficking in