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Position paper on instrumentalisation of migration - cover
Copyright FRA
23
July
2025

Countering the instrumentalisation of migrants and refugees and respecting fundamental rights

This position paper examines how the EU can counter the instrumentalisation of migrants while also upholding fundamental rights. Instrumentalisation refers to countries outside the EU using migration to exert political pressure. This position paper defines the phenomenon, provides examples, and outlines legal obligations under EU law. It provides legal analysis and warns that some responses risk undermining fundamental rights at the EU’s external borders, including the right to asylum. To counter instrumentalisation and uphold fundamental rights, the position paper proposes practical measures for Member States to take, such as sanctions, border controls, and cooperation with private operators.


Introduction


  1. Article47 of the Charter of Fundamental Rights of the European Union provides that everyone whose rights and freedoms guaranteed by EU law are violated has the right to an effective remedy before a tribunal. The way Member States organise and run their justice systems is primarily a matter of national law. EU law relies on functioning national justice systems.
  2. National investigations must be prompt and effective, respecting the requirements set out by the ECtHR. The Guide on the case-law of the European Convention on Human Rights– Immigration describes the requirements flowing from the European Convention on Human Rights (ECHR). There is no specific case-law by the Court of Justice of the European Union on investigations of fundamental rights violations at EU borders.
  3. In July 2024, FRA published the Guidance on investigating alleged ill-treatment at borders. The Agency analysed criminal and disciplinary investigations into incidents of loss of life and alleged ill-treatment that occurred during border management at the EU’s external borders between 2020 and 2023. The publication covered allegations of failure to rescue people in distress, physical ill-treatment and other forms of inhuman and degrading treatment that puts migrants’ life and physical integrity at risk.
  4. FRA concluded that national investigations need to be more effective and called for more transparency on the number of cases investigated and on their results. Ineffective judicial protection against widespread rights violations poses a risk to the respect of the rule of law as enshrined in Article2 of the Treaty on European Union[1]
    FRA, Submission by the European Union Agency for Fundamental Rights to the European Commission in the context of the preparation of the annual Rule of Law Report 2023, Vienna, 2023, p. 42.
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  5. As a follow up to its 2024 publication, in the spring of 2025, with the support of its national liaison officers, FRA requested the 16 Member States at the EU’s external borders to update the information on pending and closed judicial and disciplinary investigations, covering the period until 31December 2024. The data collection covered Bulgaria, Croatia, Cyprus, Estonia, Finland, France, Greece, Hungary, Italy, Latvia, Lithuania, Malta, Poland, Romania, Slovakia and Spain. FRA received replies from courts, public prosecutors or responsible ministries and law enforcement bodies in 12 Member States in total (nine Member States provided updates on judicial proceedings and 10 on disciplinary procedures). In Member States where FRA did not receive information from the competent authorities, it requested input from legal actors.
  6. With this publication, FRA provides an update on the state of play of investigations of alleged ill-treatment at borders up to the end of 2024, covering both judicial and disciplinary investigations. In addition, this update reflects developments related to Frontex and the ECtHR.