The UN special rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Ben Emmerson, recently presented the report “Impact of Counter-Terrorism Measures on the Human Rights of Migrants and Refugees” at the UN Human Rights Council.

The report is based on the current context where, on one hand, the armed conflicts in Syria have led to "an unprecedented movement of civilian populations" and, on the other, "governments, international organizations and civil society are increasingly concerned about violent extremism."

Fears are unfounded

The report observes that "the relationship between irregular migration and terrorism raises a number of acute dilemmas in terms of law and policy," giving rise to the perception that "the movement of people is a threat to national security" and fears that terrorists take advantage of the increase in migratory flows to go undetected or that the refugee camps themselves could be turning into places for radicalization or even recruiting grounds for terrorist groups.

The special rapporteur, however, disavows these allegations and demonstrates, with data from UNHCR and the European Union’s Europol agency itself, that such fears are unfounded.

The report states that not only do most refugees and migrants pose no threat, but they are usually the main victims of terrorism, since they originate and flee from regions where terrorists are most active.

"There is little evidence, however, that terrorists take advantage of refugee flows to carry out acts of terrorism," according to the report, or that they're more susceptible to radicalization.

In this respect, he points to the fact that, in 2014, 70 percent of the refugees assisted by UNHCR came from the 20 countries where the highest rates of terrorism-related fatalities have been recorded. These people "are entitled to protection from the devastating consequences of terrorist activity rather than being stigmatized as potential terrorists."

After recognizing that border controls can be a legitimate part of a state’s response to terrorist threats, the rapporteur argues that “an effective response to security threats cannot be based on measures that restrict the movement of refugees and migrants and breach their rights." Furthermore, these approaches, according to the expert, “contribute to the establishment of chaotic and covert movements of people, including through trafficking, which might ultimately assist those intent on committing acts of terrorism.”

Main challenges

The rapporteur discusses in detail what he considers to be the main challenges to the effective protection of migrant and refugee rights in this context. First, he refers to stricter border controls, underscoring that, while states have a sovereign right to set the entry and stay conditions of in their territories, they also have an obligation to respect and protect the human rights of all individuals under their jurisdiction.

In this regard, he discusses the issue of the proliferation of border surveillance systems, such as the "proposed digital entry-exit system of the European Union," about which he recalls that in order to establish such a system, proper justification must be presented, and that "the collection of data at borders, in particular biometric data, must be accurate and up-to-date, proportionate to a legitimate aim, obtained lawfully, stored for a limited time and disposed of safely and securely."

He also stresses that information-sharing systems, such as the European Border Surveillance System, "raise additional risks," since information could be shared with "third countries that might expose migrants and refugees to human rights violations," and have led to unlawful data collection "such as the reported forced fingerprinting of migrants."

All of these measures are leading migrants and refugees to resort to "precarious routes between States because of a lack of regular migration opportunities."

Among the challenges for human rights, the report also mentions the guarantees against the illegitimate use of the refugee status that a UN Security Council resolution required states to establish after 9/11. On this issue, Emmerson says that states should limit themselves to respecting the UN Convention Relating to the Status of Refugees, since it contains provisions for "the exclusion from refugee status of those who have committed heinous acts or serious crimes [such as terrorists]," as long as utmost caution is applied.

Furthermore, once the refugee status has been granted, it cannot be revoked due to "generalized suspicions based on religious, ethnic, or national origin or political affiliation," but only after performing an individual assessment.

Non-refoulement

Regarding international law’s principle of non-refoulement, whereby states are prohibited from expelling people from their territories when there is reason to believe they could face the risk of being tortured or killed, Emmerson observes that in the present context serious breaches are being committed.

He also stresses that a presumed fight against terrorism cannot be used as grounds to justify such breaches, and argues that some of the mechanisms being used by states to circumvent this principle, such as bilateral or multilateral readmission agreements with other states, pose serious concerns regarding human rights: each individual case must be analyzed, respecting due process, in order to assess the real risk of expulsion.

Emmerson also states that the non-refoulement principle remains in effect extraterritorially (such as when states send vessels to carry out interceptions at sea) and must be applied to people who are fleeing precisely from terrorism and other human rights violations committed by non-state agents, as is the case of many refugees fleeing serious conflicts.

Finally, the report also covers the issue of detention of migrants. "While it is not disputed that states have the right to detain foreigners prior to deportation," the rapporteur says, this detention "should always be a last resort and comply with the principle of legality," and is considered illegitimate "when the state does not have any intention of deporting or extraditing the individual." In any case, detention cannot be used "as a means of dealing with foreign nationals considered to be a security threat."