Don’t Rock the Boat: EU leaders do as little as possible to address the migrant crisis

 

Steve Peers

 

Yesterday the EU leaders, in the European Council, adopted a policy for addressing the recent crisis of large-scale migrant death tolls crossing the Mediterranean. It builds upon the recent 10-point plan adopted by ministers (discussed here), but builds upon it in some respects. There were also some interesting last-minute changes to the earlier draft of the text (all of which are shown in the annex below), indicating leaders’ real priorities.

 

 

Detailed comments

 

At first sight, the leaders’ statement shows more compassion than the 10-point plan, referring to the huge loss of life as a ‘tragedy’ and stating an immediate priority to ‘prevent more people from dying at sea’. To this end, there is a specific commitment to triple the funds for ‘search and rescue’ as regards existing EU operations. However, this is only ‘within the mandate of Frontex’ – and the head of the EU border agency has stated that this agency does not really have a search and rescue role.

 

It should be noted that since these operations are coordinated by Frontex, detailed rules of EU law will apply (discussed here) will apply. These rules do allow, in some cases, for returns of migrants directly from their rescue to non-EU countries – as long as those countries are safe. It is unlikely that in the current situation, Libya would qualify as safe.

 

The destruction of traffickers’ vessels ‘before they are used by traffickers’ seems to suggest some Minority Report style precognisance of the future use of the boats, considering that traffickers do not paint logos on the side of their boats like ferries or shipping companies. This is also qualified by a reference to compliance with international law. It may be questioned whether this action will legally be a foreign policy operation (as the leaders assume), given the approach to EU law taken in a recent CJEU opinion concerning the EU’s anti-pirates operation (discussed here).

 

As compared to the 10-point plan, there is a reference to Interception of communications, and a very brief reference to the root causes of the problem (conflict in countries of origin, as well as Libya). The EU leaders took out a reference to stopping migrants making it to the Mediterranean shores, but it’s obvious that this is the main intention of stepping up cooperation with sub-Saharan countries.

 

There’s an added stress on readmission treaties, including with countries of transit; this refers implicitly to EU readmission treaties with North African states (not Libya) currently under negotiation. There are also two added references to the right to asylum and EU asylum law, confirming that the EU leaders do not intend to simply return migrants without considering their claims. Some press reports had erroneously suggested an intention to return many thousands of migrants without considering claims, but if migrants make it to EU waters or land, it would be illegal to return them without examining their claims under EU law. Migrants can be returned to countries of origin or transit if their asylum claims are unfounded, as long as those countries are safe. Again, returning migrants to Libya would, under current circumstances, breach EU and human rights law as long as that country does not appear safe.

 

As compared to the 10-point plan, it appears that the intention is not to fingerprint all migrants, but only those applying for asylum; this simply re-iterates long-standing EU law. More generally, the plan says little about safe passage, removing the original (and puny) target number of 5,000 resettlement places, and not referring to other forms of safe passage instead. (While it would be difficult to issue humanitarian visas in Libya, it would be possible to offer this option - discussed further here - in other States). Equally, there is little practical solidarity with frontline states; other Member States offer cash and help with processing and return, but weakened any significant commitment to relocate people from those frontline States.

 

There is an immediate commitment to issue a ‘roadmap’ next week, pre-empting the Commission’s agenda-setting role (its strategy paper is due in May). However, the role of the European Parliament may still prove significant, since it must approve any funding decisions or changes in legislation.

 

Conclusions

 

Overall, the new commitment to search and rescue is welcome, although it is qualified in light of Frontex’s limited powers.  The desire to address root causes is good but seems half-hearted, and this is easier said than done. A more ambitious strategy regarding the processing of asylum claims in non-EU transit states is probably necessary in the medium term, but neither the EU leaders nor asylum NGOs want to swallow this bitter pill for the time being. The destruction of traffickers’ boats is subject to legal and practical constraints, and will be almost literally a drop in the ocean. The summit result is frankly pathetic as regards safe passage of migrants, ensuring that they avoid the risk of the crossing altogether, and it is marginal as regards assistance to frontline Member States.

 

On the whole, it seems that the leaders want to do as little as possible to change the current approach to dealing with the crisis. Similar to their method of dealing with the euro crisis, this looks like a short-term patch-up that offers less than first appears, which will probably have to be revisited soon.

 

 

Photo credit: Kenneth Roth

 

Barnard & Peers: chapter 26

 

 

Annex

 

Special meeting of the European Council, 23 April 2015 - statement

 

[note: changes from the earlier draft are noted by underling for additions of text, and strike-out for removals of text] 

 

1. The situation in the Mediterranean is a tragedy. The European Union will mobilise all efforts at its disposal to prevent further loss of life at sea and to tackle the root causes of the human emergency that we face, in cooperation with the countries of origin and transit. Our immediate priority is to prevent more people from dying at sea.

 

2. We have therefore decided to strengthen our presence at sea, to fight the traffickers, to prevent illegal migration flows and to reinforce internal solidarity and responsibility. Given that instability in Libya creates an ideal environment for the criminal activities of traffickers, we will actively support all UN-led efforts towards re-establishing government authority in Libya. We will also step up efforts to address conflict and instability as key push factors of migration, including in Syria.

 

3. We today commit to:

 

Strengthening our presence at sea

 

a) rapidly reinforce EU Operations Triton and Poseidon by at least doubling tripling the financial resources for this purpose in 2015 and 2016 and reinforcing the number of assets, thus allowing to increase the search and rescue possibilities within the mandate of FRONTEX. We welcome the commitments already made by Member States which will allow to reach this objective in the coming weeks;

 

Fighting traffickers in accordance with international law

 

b) disrupt trafficking networks, bring the perpetrators to justice and seize their assets, through swift action by Member State authorities in co-operation with EUROPOL, FRONTEX, the European Asylum Support Office (EASO) and EUROJUST, as well as through increased intelligence and police-cooperation with third countries;

 

c) undertake systematic efforts to identify, capture and destroy vessels before they are used by traffickers;

 

d) at the same time, the High Representative is invited to immediately begin preparations for a possible CSDP operation to this effect, in accordance with international law;

 

e) use EUROPOL to detect and request removal of internet content used by traffickers to attract migrants and refugees, in accordance with national constitutions;

 

Preventing illegal migration flows

 

f) increase support to Tunisia, Egypt, Sudan, Mali and Niger among others, to monitor and control the land borders and routes in order to prevent potential migrants from gaining access to Mediterranean shores, building on current CSDP operations in the region, as well as on regional cooperation frameworks (Rabat and Khartoum processes); step up dialogue with the African Union at all levels on all these issues;

 

g) reinforce our political cooperation with African partners at all levels in order to tackle the cause of illegal migration and combat the smuggling and trafficking of human beings. The EU will raise these issues with the African Union and the key countries concerned, with whom it will propose the holding of a summit in Malta in the coming months;

 

h) step up cooperation with Turkey in view of the situation in Syria and Iraq;

 

i) deploy European migration liaison officers in key countries to gather information on migratory flows, co-ordinate with national liaison officers, and co-operate directly with the local authorities;

 

j) work with regional partners in building capacity for maritime border management and search and rescue operations;

 

k) launch Regional Development and Protection programmes for North Africa and the Horn of Africa;

 

l) invite the Commission and the High Representative to mobilise all tools, including through development cooperation and the implementation of EU and national readmission agreements with third countries, to promote readmission of unauthorised economic migrants to countries of origin and transit, working closely with the International Organisation for Migration;

 

m) while respecting the right to seek asylum, set up a new return programme for the rapid return of illegal migrants from frontline Member States, coordinated by FRONTEX;

 

Reinforcing internal solidarity and responsibility

 

n) rapid and full transposition and effective implementation of the Common European Asylum System by all participating Member States, thereby ensuring common European standards under existing legislation;

 

o) increase emergency aid to frontline Member States and consider options for organising emergency relocation between all Member States on a voluntary basis;

 

p) deploy EASO teams in frontline Member States for joint processing of asylum applications, including registration and finger-printing;

 

q) set up a first voluntary pilot project on resettlement across the EU, offering at least 5,000 places to persons qualifying for protection.

 

4. The EU institutions and the Member States will work immediately on the full implementation of these orientations. The Presidency and the Commission will present next week a roadmap setting out work up to June.

 

5. The European Council looks forward to the Commission Communication on a European Agenda for Migration, in order to develop a more systemic and geographically comprehensive approach to migration. The European Council will remain seized of the situation and will closely monitor the implementation of these orientations. The Council and the Commission will report to the European Council in June.

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The EU response to migrant deaths: protection and prevention – or policy laundering?

Steve Peers

On Monday, EU foreign and interior ministers adopted a ten-point plan in response to the recent huge death toll of migrants crossing the Mediterranean. There will be a summit on Thursday to examine the issue further, and then an EU Commission strategy proposed on May 13^th. But for now, I want to examine the initial plan.

Overall, this is a very disappointing document. It’s not only vague on crucial details but more importantly focusses less on the situation of the migrants (addressing the root causes which cause them to move, and protection from drowning and persecution) and more on border control and repression. One point in the plan constitutes a rather crass example of ‘policy laundering’ – attempting to use a crisis to shove through an essentially unrelated policy objective.

Let’s look at the ten points of the EU plan in turn, then examine the ‘Australian solution’ and the ‘Christians only’ approach which some have suggested. For alternative solutions to the problem, see the proposals of the UN Special Rapporteur on Migrants, the EU's Fundamental Rights Agency, Patrick Kingsley (in the Guardian), Nando Sigona, and myself.

Reinforce the Joint Operations in the Mediterranean, namely Triton and Poseidon, by increasing the financial resources and the number of assets. We will also extend their operational area, allowing us to intervene further, within the mandate of Frontex;

This is the only one of the ten measures related directly to search and rescue, although it’s not clear if this is actually intended to be a search and rescue mission. The mandate of ‘Frontex’ (the EU’s border control agency) concerns border control, not search and rescue as such. Indeed there is no mention of search and rescue here, or in the rest of the plan. Nor is there any express mention in the plan of the recent loss of life. There are no details of the extent of the increase in financial resources and assets, or the extent to which the operational area will increase.

A systematic effort to capture and destroy vessels used by the smugglers. The positive results obtained with the Atalanta operation should inspire us to similar operations against smugglers in the Mediterranean;

The ‘Atalanta’ operation concerns an EU military operation against pirates in the Indian Ocean. It’s clear from press briefings that the intention is to have another military operation regarding the smugglers. This will obviously entail significant costs and raises legal questions about the jurisdiction which the EU Member States have to destroy boats in the waters of third States or the high seas.

EUROPOL, FRONTEX, EASO and EUROJUST will meet regularly and work closely to gather information on smugglers modus operandi, to trace their funds and to assist in their investigation;

These bodies are respectively the EU police cooperation agency, the EU border control agency, the EU asylum support agency and the EU prosecutors’ agency. The asylum support agency has traditionally had little or nothing to do with this issue, and there is a risk that some of its funding is diverted. There is no express commitment to give it extra funds.

EASO to deploy teams in Italy and Greece for joint processing of asylum applications;

This will defray the cost of processing for those Member States and speed up processing times for overburdened administrations. It’s not clear whether this will simply be an application of existing rules which allow EASO to simply support national administrations, or whether there will be a shift to genuine ‘joint processing’ by a group of Member States or the agency as such. That would require fresh legislation.  

Member States to ensure fingerprinting of all migrants;

EU legislation already requires fingerprinting of all short-term visa applicants (once the EU’s Visa Information System is fully applied, in the next year or so), residence permit holders, asylum applicants and persons crossing borders without authorisation. All holders of EU passports (ie EU citizens) must also be fingerprinted. The only gaps here are non-visa nationals coming for short-term visits (ie citizens of countries like the USA and Canada) and irregular migrants who have ‘overstayed’ after a legal entry. However, after the EU’s Visa Information System is fully applied, the second group (overstayers) will simply be a sub-category of the first group (non-visa nationals), since everyone needing a visa will already have been fingerprinted. And proposed legislation establishing an entry-exit system will require the non-visa nationals to be fingerprinted too, although it will take a number of years for that legislation to be agreed and made operational. These various categories of people are subject to different rules as regards how the fingerprint information is stored and used; it’s not clear if the intention is to change those rules.

The very odd thing here is what fingerprinting of ‘all migrants’ has to do with the issue of migrants drowning at sea in an attempt to reach the EU. It would perhaps make sense to reiterate the requirement to fingerprint all those who apply for asylum or attempt to cross the border without authorisation (as all those migrants who attempt to cross the Mediterranean are doing), but the plan clearly refers to ‘all migrants’. So we can only conclude that this is a blatant attempt at policy laundering.

Consider options for an emergency relocation mechanism;

The concept of ‘relocation’ entails moving asylum-seekers and/or recognised refugees from the Member States which have an obligation to consider their claim, or which have recognised their refugee status, to other Member States. It would obviously reduce the pressure on the Member States which receive a significant number of refugee claims from migrants crossing the Mediterranean – most notably Malta, Italy (the island of Lampedusa) and Greece. However, it would entail either suspending the EU’s Dublin rules on asylum responsibility in part (requiring a legislative amendment) or encouraging voluntary offers from Member States which are not responsible under the rules. Both options have been discussed many times over the years with no success (Dublin amendments) or very little success (voluntary offers). The wording used here (‘consider options’) is so underwhelming that little can be expected.

A EU wide voluntary pilot project on resettlement, offering a number of places to persons in need of protection;

‘Resettlement’ is the process of taking some of the people in other (non-EU) countries who need international protection and moving them to the EU. This is the only one of the ten points which offers ‘safe passage’, ie a way for would-be asylum-seekers to enter the EU without running the risk of drowning when crossing the Mediterranean. The ‘number of places’ is not specified, and it should be noted that under EU financial law, a ‘pilot project’ is a short-term programme using only a small amount of money. Furthermore, the project is expressly ‘voluntary’. Overall, it seems that this one form of ‘safe passage’ being offered by the EU is very narrow indeed.

Establish a new return programme for rapid return of irregular migrants coordinated by Frontex from frontline Member States;

EU law specifies that asylum-seekers cannot normally be removed until a final negative decision has been taken upon their application. So this refers to people whose asylum application has definitively failed, or who never made such an application and have no other ground to stay. There are procedural rights in the EU’s Returns Directive for irregular migrants, but there is no mention of them (or the asylum laws) here. Frontex already has a role coordinating joint return flights; the intention is to devote more effort (and presumably resources) to removing people from the EU’s Mediterranean Member States.

Engagement with countries surrounding Libya through a joined effort between the Commission and the EEAS; initiatives in Niger have to be stepped up.

This is the only part of the 10-point plan that hints that the EU’s relations with third countries have a role to play. It isn’t clear what this ‘engagement’ will concern. Will it focus on the conditions in the countries of origin and transit, thereby ensuring that fewer people want to head to the EU in the first place? Or is the EU only concerned with the repressive aspects, such as tracking down smugglers and traffickers?

Deploy Immigration Liaison Officers (ILO) in key third countries, to gather intelligence on migratory flows and strengthen the role of the EU Delegations.

The intention here is to obtain more intelligence on migration flows, although it’s not clear what will be done with that intelligence once it’s obtained. There will be a cost for the EU and/or Member State budgets here.

The Australian solution?

Some have suggested that the EU adopt the supposed ‘Australian solution’, of sending boats to stop the migrants reaching the territory of the EU. In fact this is a highly simplistic understanding of Australian asylum policy. The Australians do not intercept most migrants just outside their country of origin or otherwise return them there directly. Rather the policy is to send asylum-seekers to various Pacific islands for processing and to live permanently if a claim is successful. Australia gives the countries concerned significant cash in return. Moreover, Australia has a very active resettlement policy, recently increasing the numbers of permits granted from about 13,000 to about 20,000.  So the asylum policy is justified by Australia as a means to stop people ‘jumping the queue’. Also, the policy is underpinned by indefinite detention of anyone who does make it to Australian shores without authorisation.

Could this policy be applied to the EU? There are some big legal problems. The European Court of Human Rights has ruled that migrants cannot simply be intercepted and returned to third States unless those States are safe (see the Hirsi judgment); it should be noted that conditions in some of the States participating in the Australian policy have been strongly criticized by human rights groups. Also, the EU’s Returns Directive bans indefinite detention of irregular migrants. That Directive does not apply to asylum-seekers, but EU asylum legislation applicable from July this year sets many new conditions regulating such detention. It’s highly arguable that detention of asylum-seekers cannot be justified (at the latest) once the final decision on the application has been made, or after the new EU deadlines to decide on asylum claims have passed. After that point the time limits for detention in the Returns Directive will apply.

Even if these legal problems could be overcome, could the Australian solution be replicated by the EU? The EU would have to find third countries willing to house large numbers of refugees and asylum-seekers, and pay them to do it. The numbers of migrants involved in Mediterranean crossings (about 200,000 in 2014) is far higher than those covered by the Australian solution (25,000 in 2012-13). So, although accommodating asylum-seekers in transit States is likely to play an important part in any long-term solution, this is easier said than done; and it’s important to note that the EU’s 10-point plan makes no mention of this issue.

Furthermore, the advocates for the Australian solution simply ignore Australia’s resettlement policy, which is one of the most generous in the world. Its 20,000 permits a year, for a population of 23 million, scale up to about 50,000 resettlement permits for the UK, and 450,000 across the EU. When the advocates of the Australian solution start to talk about that scale of resettlement, we should take them seriously – but not before.

Christians

Some have suggested that the UK and/or EU should focus exclusively on admission of Christian asylum-seekers, on the basis that they have ‘no other place to go’. Does that policy make sense? It’s undoubtedly true that some Christians face persecution, but so do many non-Christians – and Article 3 of the UN (Geneva) Convention on Refugees bans discrimination on grounds of ‘race, religion or country of origin’. It isn’t correct to suggest that Christians can’t live safely anywhere in any Arab or Muslim state: many of those States maintain the centuries-old tradition of letting Christians live without persecution, and indeed there are a large number of Christians living in Lebanon in particular. And it’s hard to see how this policy will work. Will Christians alone be rescued from boats in the Mediterranean, leaving the Muslims on board to sink? And how would asylum-seekers’ claims to be Christians be examined: by making applicants sit a Religious Education A-level on the boat? Or simply checking (for men and boys) to see if they are circumcised (and therefore likely to be Muslim) or not?

Comments

The first striking thing about the EU policy is that it pays little attention to the human emergency that triggered it: the deaths of hundreds of people, which resulted from a collective EU decision to stop search and rescue in the Mediterranean. There’s no express mention of the deaths themselves in the plan, and the Commission President’s statement on Sunday merely expressed his ‘deep chagrin’ at the deaths – as if someone had guzzled his last bottle of cognac.

Furthermore, the intention to expand the existing missions fails to mention any search and rescue aspects, and there is a very limited reference to expanding one form of safe passage.  No part of the plan mentions dealing with the situation in countries of origin, or helping countries of transit manage the number of migrants on their territory. Instead, there is a strong emphasis on expulsion of migrants from the EU. Overall, this leaves the impression that the ministers aren’t shocked that migrants have died – but rather irritated that some of them didn’t.

Arguments about the costs of rescue, or of asylum-seekers reaching the EU, are undercut by the implicit plans to spend considerable sums of money on a military mission, fingerprinting of migrants, expulsion, and intelligence gathering. So the argument isn’t really about economic cost – but the social and political impact of migration.

As for the intention to crack down on trafficking and smuggling, few will have sympathy for the vultures that profit from others’ suffering and frequently jeopardise the lives of hundreds of people. But it seems odd to focus on them in this plan without also trying to address the broader situation of the migrants themselves – as if the means by which people make dangerous journeys to the EU are more important than the reasons why they do this. On this point, the plan resembles the decades-long US policy of military missions in Latin America, trying to destroy drug crops. Admittedly, it’s harder to build new boats than to grow more drugs – but then, the migrants aren’t exactly coming on cruise ships. The policy may well have the effect of lowering the (already low) quality of vessels used to cross the Mediterranean, and increasing the cost of migrants' journey. Unless it forms part of a broader policy which aims to deal with the root causes of migration and the position of migrants in transit countries, it could make them less (not more) safe.

 Art credit: Alex Falco Chang

Barnard & Peers: chapter 26

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New EU rules on maritime surveillance: will they stop the deaths and push-backs in the Mediterranean?

Steve Peers

Introduction

A new EU Regulation, published today in the EU’s Official Journal, sets out new rules on maritime surveillance and rescue operations coordinated by Frontex, the EU’s borders agency. What effect will these rules have on reducing the tragic death toll of migrants in the Mediterranean? And what will happen to the asylum claims of those rescued or intercepted in the high seas?

These new rules are a response to the continued argument that the EU must bear at least some of the blame for the deaths of migrants in the Mediterranean. Furthermore, Member States’ authorities and Frontex have often been blamed for violent behaviour or ‘push-backs’: the forced return of migrants’ vessels to unsafe countries, which were condemned by the European Court of Human Rights in its 2012 judgment in Hirsi v Italy.

The Regulation replaces prior rules adopted by the Council alone in 2010, in the form of a Decision implementing the Schengen Borders Code,which was annulled by the Court of Justice of the European Union (CJEU) after the European Parliament (EP) challenged it on procedural grounds. According to the Court, an EU act concerning human rights and coercive measures had to be adopted by means of the EU’s legislative process.

That meant that the European Commission had to propose a legislative measure, which it did in April 2013. At first, a hard-line group of Member States opposed most of the provisions in this proposal concerning search and rescue and disembarkation (ie the rules on the destination of migrants who were intercepted and rescued), even after the particularly tragic loss of 300 migrants’ lives in autumn 2013. However, these Member States relented, and the European Parliament also pressed to retain and improve upon the Commission’s proposal.

The new Regulation was subsequently agreed, and will come into force on 17 July. But does it mean that the EU will be doing enough to address the loss of life and push-backs in the Mediterranean?

This post addresses these issues in turn, and concludes with an assessment of the issue of the accountability of Frontex. It is an updated and amended version of a previous Statewatch analysis on the new rules.

Search and rescue

The previous Decision contained binding rules on interception, and non-binding rules on search and rescue and disembarkation. However, the CJEU said that even the latter category of rules was binding. As noted above, a group of Member States wanted to water down (as it were) most of these rules in the new Regulation, but was ultimately unsuccessful.

There are new rules on search and rescue, which retain (at the EP’s behest) the Commission’s detailed proposal on this issue, including particularly the definition of whether vessels can be considered in a state of alert, uncertainty or distress. Provided that sinking vessels are detected in time and that these rules are properly applied, the Regulation should therefore ensure that migrants are rescued from drowning wherever possible.

Protection and disembarkation rules

On the other hand, the situation is more complex as regards the rules on protection of those migrants who are potentially at risk of persecution, torture or other forms of ill-treatment in their country of origin (or another country).

The core of the new Regulation is Article 4 – the protection against non-refoulement (removal to an unsafe country) and protection of fundamental rights. Article 4(1) states that no-one can be ‘disembarked in, forced to enter, conducted to or otherwise handed over to’ an unsafe country as further defined in the Regulation. Compared to the 2010 Decision, the Commission proposal, and the Council position, the EP successfully insisted on adding the words ‘forced to enter’ and ‘conducted to’, which clearly covers push-backs.

What is an unsafe country? Article 4(1) goes on to define two situations: (a) a serious risk of subjection of the migrant to the death penalty, torture, persecution or other inhuman or degrading treatment; and (b) the migrant’s life or freedom would be threatened on the grounds set out in the Geneva Convention on Refugees (race, religion, nationality, political opinion or membership of a social group), as well as sexual orientation. Also, a ‘chain refoulement’ is banned: a migrant cannot be handed over to a country which is safe in itself, but which would hand the migrant over to an unsafe country.

Compared to the criteria in EU asylum law (the ‘Qualification Directive’), the first category includes two of the grounds concerning the grant of ‘subsidiary protection’ (ie protection for those who do not qualify as refugees under the Geneva Convention): the death penalty and torture or other inhuman or degrading treatment. It does not include the third category, concerning ill-treatment in the event of armed conflict; however, it does include ‘persecution’, without further definition. The second category is identical to Article 33(1) of the Geneva Convention, except that it does not include the exception in Article 33(2) of that Convention for persons posing security threats et al., and it adds the grounds of ‘sexual orientation’ to those referred to in the Convention. However, the CJEU has confirmed that homosexuals can form a ‘particular social group’ under the EU’s Qualification Directive.

The 2010 Decision referred simply to ‘non-refoulement’ without any further explanation in the main text, while the 2013 proposal (and the Council’s position) referred only to the first category of grounds, without the general reference to ‘persecution’. So the EP clearly succeeded in strengthening this provision.

Next, how must an unsafe country be determined? Article 4(2) states that when considering disembarking migrants in a third country, the host Member State (the Member State from which an operation takes place or from which it is launched: Article 2(3)) must ‘take into account the general situation in that third country’, and cannot disembark or otherwise force to enter, conduct to or hand over if the host Member State or other participating Member States ‘are aware or ought to be aware’ that such a State presents such a risk. The EP insisted on adding the references to forcing to enter, conducting to or handing over.

The EP also obtained an amendment further clarifying the sources of information to take into account – a ‘broad range’, including other Member States, EU bodies, agencies and offices and international bodies. The Member States ‘may’ take into account existing agreements and projects carried out using EU funds.

What are the migrants’ procedural rights? Article 4(3) of the Regulation specifies that (in accordance with the Hirsijudgment) before disembarking or otherwise conducting, etc the migrants to a third State, taking into account the general situation in that State, the Member States’ units shall ‘use all means’ to identify the migrants, assess their circumstances, inform them of their destination and give them an opportunity to object on grounds of the non-refoulement rule. These obligations are subject to an override in the interests of the safety of all the persons involved (see Article 3).

The operational plan must ‘where necessary’ provide for medical staff, interpreters, legal advisers and other relevant experts on shore. Also, the annual reports which Frontex must provide on the application of the Regulation must include ‘further details’ on cases of disembarkation in third States, as regards the application of the relevant criteria. These provisions were insisted upon by the EP, in particular the reference to ‘legal advisers’, but there is ‘wiggle room’ conferred by the words ‘where necessary’ and ‘use all means’.

There are also limits on the exchange of personal data with third countries, an obligation to respect human dignity, and rules on training of staff.

The protection rules cannot be separated from the rules on disembarkation of migrants. According to Article 10, there are three scenarios. First, if migrants are intercepted in the territorial sea or contiguous zone (the waters adjacent to the territorial sea, according to international law: see the definition in Article 2(13)) of a Member State, then they must be disembarked in the coastal Member State, ie the Member State in whose territorial waters or contiguous zone the operation takes place (definition in Article 2(14)). But this is subject to a crucial exception: it is possible under the Regulation that a vessel that has made it this close to a Member State could still be ordered to alter course towards another destination.

Secondly, if migrants are intercepted in the high seas, they may be disembarked in the country from which they are assumed to have departed, subject to the non-refoulement rules in the Regulation. If that is not possible, then disembarkation ‘shall’ take place in the host Member State.

Thirdly, in the event of a search and rescue, the migrants shall be disembarked in a place of safety. If that is not possible, then they shall be disembarked in the host Member State.

These provisions raise many important questions. First of all, it should have been clearly specified that the general non-refoulement rule takes priority over any possibility of disembarkation in a third State.

Secondly, as correctly noted in the preamble to the Regulation, the EU’s asylum legislation applies to anyone in the territorial waters of the EU. This means that, in accordance with that legislation, once an asylum application is made in the territorial waters, the asylum applicant cannot be removed to a third State before there is a decision on the asylum application in accordance with that legislation, save for some limited exceptions not relevant here. The obvious corollary of this is that asylum-seekers who make their application in the territorial waters must be disembarked on the territory of the Member State concerned, since it is unlikely that it will be practical to keep them on board a ship for the entire duration of a full asylum procedure. However, the main text of the Regulation does not reflect the wording of this legislation, since it provides for the possibility of persons intercepted or rescued in the territorial waters to be removed to third countries.

Thirdly, when migrants are disembarked on the territory of a Member State, an awkward question could arise: is that Member State safe? While the specific non-refoulement rules in Article 4(2) and (3) refer to the safety of third countries, the general rule in Article 4(1) refers to countries in general. The European Court of Human Rights and the EU’s Court of Justice have already both concluded that Greece in effect fails the standard set out in Article 4, and litigation in some Member States is also challenging the safety of Italy. So there could be a clash between the non-refoulement rule and the obligation to disembark in a Member State which is the host State, coastal State or place of safety, or in the territorial waters of which the applications were made.

Fourthly, as for those intercepted or rescued in the high seas or the contiguous zone (the Regulation does not contemplate the scenario of migrants being intercepted in the territorial waters of third States), the bulk of the EU’s asylum legislation does not apply. However, the EU’s qualification Directive does – since there is nothing in the text of that Directive to limit its territorial scope. But the wording of the Regulation is confusing in this regard, since it does not refer to the detailed text of that Directive but rather to general standards on non-refoulement, which are different from that Directive in some respects, as noted above (the omission of persons fleeing conflict, for instance).

Having said that, EU rules on asylum procedures and reception conditions do not apply to asylum-seekers who are intercepted or rescued in the high seas or the contiguous zone, and in that case the rules in the Regulation would apply. In effect, the rules summarised above provide for a highly simplified process – which might be dubbed the ‘maritime asylum procedure’ – for such cases. As noted above, though, the words ‘where necessary’ and ‘use all means’ arguably give Member States considerable flexibility not to apply these rules fully, and these rules are (understandably) subject to the requirement to give priority to the safety of all persons. This should mean that in the event of a risk to the safety of persons, if the application of the non-refoulement rule has not yet been assessed, the migrants must be taken to a (safe) Member State to avoid prejudicing the outcome of that assessment. Once the migrants enter a Member State’s territorial waters, EU asylum law will apply fully (arguably it applies even if the application was made beforethe vessel entered those waters; if not, then there is nothing to stop the asylum-seeker making a renewed application for asylum once the vessel is in those waters).

Since most EU asylum law does not apply to the high seas, the EU’s Dublin rules on asylum responsibility do not apply either, and it is an open question whether they would apply where a person made an application on the high seas and was then brought to the territorial waters of a Member State while the application was being considered. In order to limit somewhat the huge impact of these Dublin rules on the coastal Mediterranean States, EU Member States could agree between themselves on new rules for responsibility for asylum-seekers who make their application on the high seas. If necessary, this could take the form of an amendment to the Dublin rules, added to the proposed new amendment on the application of those rules to unaccompanied minors.

Finally, at the EP’s behest, the preamble to the Regulation clarifies (recital 7) that a shipmaster and crew should not face criminal sanctions for rescuing migrants and bringing them to a place of safety. This provision is welcome, but it would be better if the EU legislation on criminal sanctions for facilitating irregular migration were amended to confirm that there is no criminal liability in such cases.

Accountability of Frontex (and national authorities)

Article 13 of the Regulation, which was inserted at the EP’s insistence, states that Frontex must make annual reports on the application of the Regulation, including on Frontex’s own procedures and information on the application of the Regulation in practice, including ‘detailed information on compliance with fundamental rights and the impact on those rights, and any incidents which may have taken place’. Presumably this means that these reports will have to include full information on where migrants were disembarked and the assessments that were made of the safety of any third countries (and Member States) in each particular case. It would have been better to clarify the extent of these obligations expressly, although any provision on accountability is better than none. The EP also insisted on a recital in the preamble, which repeats text already in the Frontex Regulation regarding Frontex cooperation with third countries. 

When the Frontex Regulation was last amended in 2011, the EP insisted on many new provisions ensuring that Frontex would be complaint with human rights standards, and the application of these new rules has since been examined by the European Ombudsman. Frontex is still refusing to establish an individual complaints procedure for migrants who believe that it has violated the rules binding upon it, on the grounds that it only coordinates Member States’ authorities’ actions, so cannot be held directly responsible for those actions.

While it would be preferable to ensure that individuals could raise complaints that Frontex had not complied with its obligations as regards human rights, it is also true to say that Frontex only coordinates Member States’ authorities’ actions. In any event, those authorities take actions that are not coordinated by Frontex. Given that (as the new Regulation itself implicitly accepts) any control of the EU’s external border, including by means of patrols outside a Member State’s territorial waters, is linked to the application of the EU’s own rules on external border controls, the EU Charter of Rights is applicable to Member States’ control of those borders. And there have been allegations that Member States’ authorities have on some occasions been responsible for push-backs and ill-treatment of migrants at the external borders.

In this context, it is possible that Frontex has been serving for too long as a ‘lightning rod’ for critics of the EU’s external borders control policy, whereas attention should have focussed more on Member States’ authorities, whether they are being coordinated by Frontex or not. The ‘right to life’ in the European Convention of Human Rights entails, according to the European Court of Human Rights, an obligation to hold an independent investigation into losses of life that have arguably resulted from actions of the authorities. So arguably the EU is under an obligation pursuant to the EU Charter of Fundamental Rights to ensure that its Member States conduct such investigations into losses of life which are linked to the implementation of EU policies, in this case the EU external borders rules. Those authorities should also be held accountable for any alleged push-backs or other ill-treatment of migrants at the external borders.

To that end, the EU should agree upon a general framework for independent investigations into such alleged abuses, with the results of these investigations reported and assessed by the Commission as part of its twice-yearly report on the Schengen system. Furthermore, it is long past time for the Commission to stiffen its backbone and to bring infringement proceedings against Member States where there is sufficient evidence that their authorities are responsible for push-backs or other ill-treatment.

Conclusions

The existence of this Regulation is welcome, as its rules on search and rescue are valuable and its provisions on protection, disembarkation and accountability of Frontex are better than nothing at all. But the complex interplay of the provisions of this Regulation with EU asylum law has led to something of a ‘dog’s dinner’ of rules governing the asylum applications of people rescued or intercepted in the Mediterranean, and the rules on the accountability of Frontex are something of a ‘red herring’ in light of the allegations of serious misconduct in some cases by national authorities. Finally, the Commission’s continued unwillingness to bring infringement proceedings in this area (and in the face of its own documented breaches of other EU immigration and asylum law) is undermining the letter and spirit of the Charter by allowing Member States’ authorities to think that they can violate the Charter with impunity. 

Further reading: Council of Europe Parliamentary Assembly report, June 2014

UNHCR comments on the Commission proposal

Barnard & Peers: chapter 9, chapter 26

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