FRONTEX: first ever RABIT operation deployed on 2 November

The Rapid Border Intervention Teams (RABIT) is a mechanism established so as to allow, in case of exceptional migratory pressure, rapid deployment of border guards on a European level.

Established in 2007 as part of the Agency’s founding mandate, RABIT operations have never been used up to now.

Home Affairs Commissioner Cecilia Malmström went to Greece to see the deployment of the 175 EU border guards posted to the Greece-Turkey border and according to Malmström’s spokesman the operation will consist in providing support activities of various nature.

According to Frontex the objective of the RABIT operation deployed in the Greek-Turkish border is to:

“assist Greek border control authorities in securing the land border with Turkey from a heavy influx of irregular migration. This will entail the deployment of 175 specialist border control personnel from 24 European countries for 24 hour joint surveillance of the land border in the area between Orestiada and Alexandroupolis, as well as additional officers at the Border Crossing Point (BCP) at Kipi.

In addition, guest officers will also be stationed at Athens airport and the operation will be supported by Frontex’s Return Coordination Office in Athens with a view to enhancing Greece’s capacity to return irregular migrants found to be staying illegally on EU territory.

Additionally to surveillance and border control, Frontex will provide interviewers to assist in the screening of apprehended migrants to ascertain their nationality and identity, as well as debriefers to gather evidence on the involvement of people smuggling networks and trafficking rings as well as other relevant intelligence on cross border criminal activities.

Therefore Frontex not only will be involved in surveillance but also in intelligence activities, by having access to personal data of individuals, in ways that are not precisely identified.

Human rights concerns

Although during these activities officers deployed are supposed to respect human rights during these operations as required by, inter alia, Articles 18 and 19 of the Charter of Fundamental Rights of the European Union, several doubts have been raised in this regard, especially taking into consideration the fact that officers may carry service weapons.

Amnesty International has addressed important questions to the State Secretary in charge of Migration and Asylum Policy for the Presidency of the Council of the European Union which took place the 8 and 9 November 2010.

These questions refer to:

The kind of training that officers have attended

According to Frontex the officers involved in RABIT operations have a curriculum that includes among others knowledge related to

“the history of EU and Schengen  EU legislation (special focus on Frontex Regulation, RABITs Regulation, Schengen Border Code)  human rights (Charter of Fundamental Rights of the EU, Geneva Convention and New York Protocol, Common European Asylum System) practical policing (intercultural management, practical work on the border).”

It remains to be demonstrated whether the fact that officers have basic notions on the above, represent sufficient guarantee for a full respect of human rights, including the principle of non-refoulement,  while operations are carried out.

The support that Frontex has received from experts in the field of international protection

No information has been provided in relation the support, if any, that Frontex has received from experts in the field of international protection when planning the RABIT operation.

In fact the decision to deploy a RABIT force follows the following procedure, as explained by Frontex:

“The decision on deployment of the Rapid Border Intervention Teams belongs to the Executive Director of Frontex. The final decision is preceded by a number of procedural steps:

a) Request of a Member State.

b) Information about the request from the Executive Director to the Management Board.

c) Assessment of the situation based on Frontex risk analyses and information provided by a Member State. The Executive Director may also send experts to the operational theatre in order to assess the situation.

d) Decision of the Executive Director (no later than five days from the date of the receipt of the request).

e) Communication on the decision to the requesting Member State and the Management Board.

f) If the decision is positive:

1. Preparation of the Operational Plan

2. Selection and composition of the teams to be sent

3. Deployment”

The kind of support that Greece has received in order to set up adequate reception facilities for all individuals whose status must be verified

So far no information has been found with the kind of support that Greece has received in order to set up adequate reception facilities for all individuals whose status must be verified.

The kind of involvement foreseen for humanitarian agencies and

Humanitarian agencies have requested to be involved in several occasions, so as to be able to monitor how Frontex has been carrying out its activities. However, none of these requests have been taken into consideration so far.

The existence of independent monitoring foreseen for these operation

Frontex explains that officers are subject to civil and criminal liability:

“While performing the tasks and exercising the powers, the members of the teams shall comply with Community law and the national law of the host Member State. While performing the tasks and exercising the powers, the members of the teams shall remain subject to the disciplinary measures of their home Member State. Where members of the teams are operating in a host Member State that Member State shall be liable in accordance with its national law for any damage caused by them during their operations.

Where such damage is caused by gross negligence or willful misconduct, the host Member State may approach the home Member State in order to have any sums it has paid to the victims or persons entitled on their behalf reimbursed by the home Member State.

Without prejudice to the exercise of its rights vis‐à‐vis third parties, each Member State shall waive all its claims against the host Member State or any other Member State for any damage it has sustained, except in cases of gross negligence or willful misconduct. (…) ”

However, Frontex has provided no information related to whether it has foreseen any measure to carry out an effective, constant and independent monitoring of the RABIT operation.

These questions are of utmost importance given the difficulties that third country nationals have to face in accessing refugee protection in Greece and the JHA Council that takes place on Monday 8 and Tuesday 9 November represents the appropriate forum to discuss such issues, especially because one of the point of the agenda concern s the development of the Common European Asylum System (CEAS), whose principles seems to be put increasingly under question by also but not only the Greek case.

The Common European Asylum System: still a long way to go.

In 2008, EU Justice Commissioner Jacques Barrot stated that the “27-nation bloc should provide “higher standards of protection” and “a more equal level playing field” with respect to asylum procedures. This high level reinforcement of the need for harmonisation has occurred throughout the years at the highest political levels. In fact, it was the EU Heads of State and Government who called for the establishment of a Common European Asylum System (CEAS) at the Tampere Summit in 1999.

Since then, there has been steady progress through Tampere and the Hague programme (2004), which have in turn been complimented by initiatives on practical cooperation and solidarity as well as the external dimension of CEAS. More recently, the Stockholm Programme (2009) has provided another opportunity for Member States to yet again declare their commitment to CEAS by 2012.

CEAS will include two crucial elements. Firstly, by joining the system, Member States will accept a higher standard of harmonisation across the EU with respect to the adherence and proper application of the human right to seek asylum. In order to realise this, amendments are needed to three key EU asylum directives, namely the directive dealing with reception conditions, the directive which deals with asylum procedures and finally amendments would be needed to the directive dealing with “standards for qualification as refugees or persons needing international protection”. 

Secondly, through CEAS, Members States will also ensure that certain procedures are consistently implemented which will have the aim of eliminating the chances of abuse of the system, no matter where the request for asylum is submitted in the European Union. This can be achieved, for example, through the recently established Common Asylum Support Office. As stated by the Swedish Minister for Migration, Tobias Billström, the Support Office could “contribute to the harmonization process” but also “facilitate the work of the national authorities” and “play a vital role in enhancing capacity building in both the short and the long run”.

The overall attitude and political commitments made are positive. The most recent results of this positive attitude would be the entry into force of the Lisbon Treaty and the adoption of the Stockholm Programme by the European Council in December 2009, which established the political priorities in the area of freedom security and justice for the period 2010 to 2014.

The Lisbon Treaty provides a mandate for the European Union to have a fully fledged policy in this domain by establishing a common European policy on asylum, which is to go further than the current cooperation between Member States. Furthermore, the Treaty also establishes subsidiary protection and temporary protection when needed (and when the conditions for granting asylum are not met), as well as offering appropriate status to any third country national not requiring international protection. These indications in the Stockholm Programme foresee a better quality of the asylum decision-making process across the Member States in order to close the protection gap in Europe.

However, to adopt these measures a qualified majority of the Member States is needed and the continued reluctance of some Member States cannot be ignored, notably of the states concerned about the economic impact of these reforms.

These concerns have to be taken into account and policy solutions found in order to ensure that the integrity of CEAS is not jeopardised, such as the potential situation of various Member States continuing, in practice, to implement different rules to asylum seekers though a common standard has been agreed upon.

One, albeit pragmatic strategy, could be to accept the inevitable result that each best practice will not be followed and therefore elevate some principles and make them sacred. Some of these principles could include the Commission’s proposals on detention. However, it is first necessary to establish that it is to be principles that are elevated and not a detailed list, as is currently trying to be agreed upon and has reached deadlock.

In order to complete the ongoing construction of the Common European Asylum System, six legislative proposals have to be negotiated with the European Parliament.

These proposals are:

the Long Term Residents Directive (rapporteur Claude Moraes),

the Dublin II Regulation (rapporteur Cecilia Wikström),

the Eurodac Regulation (rapporteur Monica Macovei),

the Reception Conditions (rapporteur Antonio Masip Hidalgo),

the Qualification Directive (rapporteur Jean Lambert),

– and finally the Asylum Procedures Directive (rapporteur Sylvie Guillaume)

Focusing on the Long Term Residents Directive, in June 2007, the Commission proposed the extension of the scope of the Directive to include beneficiaries of international protection. At the time, there was no unanimity in Council; however, with the entry into force of the Treaty of Lisbon, unanimity is no longer required for proposals dealing with legal migration and it could therefore be adopted by the Council at qualified majority.

With regards to Dublin II and the Eurodac Regulations, recast proposals were presented in December 2008 with the aim of increasing efficiency of asylum cases and offering better guarantees and legal protection to asylum seekers. In May 2009, the European Parliament proposed various amendments to these proposals in ‘first reading’. Discussions are now ongoing in Council, and though they advanced considerably, there are still serious issues that have to be resolved before the proposals can come back to the Parliament for a second reading and ultimately the adoption of the final text. The blocking issues are the definition of family members, provisions on detention and finally the necessity of a mechanism for the temporary suspension of transfers of asylum seekers to the first country of entry in the EU territory. The Belgian Council Presidency believes that the inclusion of a solidarity mechanism in the Dublin Regulation for Member States that are committed to fully implementing the EU asylum acquis, will be needed.

Whilst for Eurodac (the system collecting asylum seekers fingerprints), the blocking issue is that of the access to this data by law enforcement services. As Eurodac is not a security related measure, such a move will modify the original purpose and have an impact on data protection. This is an issue that is incredibly controversial as the European Parliament could consider it a dangerous precedent which provides law enforcement services access to systems that have been conceived for other purposes.

In order to resolve the various issues that are present in all proposals and to enable the conclusion of the negotiations, the institutions have taken various practical steps.

Recently for example, the LIBE Committee of the European Parliament set up an internal working group on asylum made up of the rapporteurs and shadow rapporteurs involved in the asylum dossiers to ensure a common strategy to treat the asylum “package”.

Furthermore, the Council Presidency intends to preserve a politically coherent approach. In fact at the last JHA informal Council meeting on 15 and 16 July this year, the Belgian Council Presidency showed a real awareness of the urgent need to advance rapidly on the legislative proposals in order for CEAS to be established by 2012, a deadline set by the Stockholm Programme (though it is becoming increasingly evident that such a deadline looks too ambitious). Taking into consideration the current political majorities between Member States to date, the Presidency will firstly focus on some pieces of the “package” such as the Long-Term Directive, Dublin II, Eurodac and the Qualification Directive as these proposals that can be viably achieved in the short-term.

Regrettably, the “reception conditions” and “asylum procedures” draft directives are seen as long-term issues with no solution foreseen in the short-term. This is due to the challenge of striking a balance between high protection standards on the one hand and the “efficiency” of the asylum system on the other; no small issue to contend with and certainly not one to which a solution is foreseen in the short-term.

Regardless of the timetable however, progress needs to be made in all proposals.

An opportunity to advance on the proposals will present itself at the Ministerial Asylum Conference on “Quality and Efficiency in the Asylum Process on 13-14 September”. Here contributions will be made by a large range of stakeholders, including the EU institutions and the Member States which should work together in order to resolve the issues that are blocking many of the proposals and be consistent with the engagements taken with the Lisbon Treaty and the Stockholm Programme.

The overall aim of a Common European Asylum System needs to be achieved urgently. Asylum seekers should be treated in an equal and fair way across all the EU Member States and not risk losing their rights depending on which Member State they so happen to land in. Furthermore, EU Member States need to work together to ensure that the system itself is not open to abuse.

Needless to say, the effects of harmonisation of this kind do not just stop at the issue of asylum, rather, this level of harmonisation feeds into the bigger issue of international relations and the image of the EU. If the European Union wishes to retain its status as the “protector” of human rights, as stated by Mr. António Guterres, the UN Commissioner for Refugees, then CEAS is an opportunity to strengthen the realisation of human rights, achieve a truly common European standard in the framework of the Geneva Convention and it can also contribute to the EU as a whole becoming a more harmonised and credible international player, rather than the clumsy one that it currently is.

Trafficking of human beings: towards a more protective regime?

The European Parliament submitted a draft report  by the co-rapporteurs  for discussion on 28 June 2010 (2010/0065(COD)) on the Proposal for a Directive of the European Parliament and of the Council on preventing and combating trafficking in human beings, and protecting victims, repealing Framework Decision 2002/629/JHA, 28 May 2010, 10330/10.

Trafficking in human beings has been primarily dealt in the international context when in 2000, the United Nations introduced the Convention on Transnational Organized Crime (UNTOC) and the supplementary Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, (the Trafficking Protocol).

According to the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children 2000 – Article 3(a):

“Trafficking in persons” shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.

This definition clearly distinguish three elements of the trafficking of human beings:

  • the act
  • the method
  • the purpose

Despite important step forwards, trafficking in human beings remains an issue that is still largely misunderstood and, consequently, inadequately addressed. The limited recognition of multiple forms of trafficking, the existence of re-trafficking activities and the role the State should have towards victims of tarfficking are some of the main problems that must be addressed.

The European Commission’s Group of Experts on Trafficking in Human Beings was established in 2008 pursuant to a decision taken in 2007 to establish a body to advise the Commission on policy and legal issues relating to trafficking in human beings. The Group has 21 members, who come from around the EU. The members come from governments of members States, as well as NGOs, international organisations and academia. The Group meets four times per year in Brussels. Its mandate is to provide the Commission with independent advice and recommendations relating to the development of law and policy with regard to trafficking in human beings, both with regard to issues raised by the Commission and also with regard to issues upon which the Group feels it should comment.

The latest opinion of this group refers to the European court of Human Rights case Rantsev v. Cyprus and Russia. The decision of the Court emphasizes the human rights aspects of trafficking of human beings, in particular with respect to the responsibility of the State to protect individuals form such practice. The opinion of the group of experts should be carefully taken into account in the current negotiations on the Proposal for a Directive of the European Parliament and of the Council on preventing and combating trafficking in human beings, and protecting victims, repealing Framework Decision 2002/629/JHA, 28 May 2010, 10330/10 and tehrefore we fully report it below.

Opinion Nº 6/2010 of the Group of Experts on Trafficking in Human Beings of the European Commission

On the Decision of the European Court of Human Rights in the Case of Rantsev v. Cyprus and Russia

The Group of Experts on Trafficking in Human Beings of the European Commission, having taken into consideration the following:

The Decision of the European Court of Human Rights in Rantsev v. Cyprus and Russia,[1]

The Stockholm Programme, which states that after the entry into force of the Lisbon Treaty, the rapid accession of the EU to the European Convention on Human Rights is of key importance,

Also taking into consideration the Action Plan implementing the Stockholm Programme and its Annex, in which the first action under the title “Promoting citizens’ rights: a Europe of rights. A Europe built on fundamental rights” is the recommendation to authorise negotiation of EU accession to the Convention for the Protection of Human Rights and Fundamental Freedoms,

adopts the following Opinion.

[1] The Group of Experts on Trafficking in Human Beings of the European Commission has examined the decision of the European Court of Human Rights in the case of Rantsev v. Cyprus and Russia.

[2] The Group notes that the European Union, and all of its Member States, are bound by the principles of human rights contained in the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and interpreted by the European Court of Human Rights.

[3] The Group considers that the decision offers important guidance on the human rights aspects of THB. This is important also in view of the 2005 Council of Europe Convention on Action against Trafficking in Human Beings and its monitoring mechanism “GRETA”.

[4] While THB is generally a crime perpetrated by private individuals, the State nevertheless has human rights obligations towards people who have been trafficked or who are at risk of being trafficked in the future, because of the State’s obligation, under Article 1 of the ECHR, to “secure to everyone within their jurisdiction the rights and freedoms” defined in the convention. The Group welcomes the clarification of the meaning of this obligation with regard to THB.

[5] Article 4 of the ECHR prohibits the holding of anyone in slavery or servitude. It also prohibits, with limited exceptions, forced or compulsory labour. No derogations are permitted from that prohibition. The obligations established in Article 4 extend to the prevention of any of these practices by private individuals. As the Court noted in Siliadin v. France:

limiting compliance with Article 4 of the Convention only to direct action by the State authorities would be inconsistent with the international instruments specifically concerned with this issue and would amount to rendering it ineffective. Accordingly, it necessarily follows from this provision that States have positive obligations … to adopt criminal-law provisions which penalise the practices referred to in Article 4 and to apply them in practice…[2]

[6] The Group notes with approval the acceptance by Cyprus that it had obligations to ascertain whether individuals, who come to the attention of State authorities as potential victims of THB, have in fact been trafficked or subjected to sexual or any other kind of exploitation.[3]

[7] The decision emphasizes that THB is prohibited by Article 4 of the ECHR without the need to define it either as slavery, servitude or forced labour. However, the Group welcomes the statement by the Court that THB may be very similar to slavery because traffickers exercise powers tantamount to ownership,[4] and that “trafficking threatens the human dignity and fundamental freedoms of its victims and cannot be considered compatible with a democratic society and the values expounded in the Convention.”[5]

[8] The Group notes that the obligation under Article 4 of the ECHR extends beyond the duty to prosecute and penalize effectively anyone who has engaged in acts aimed at holding another in slavery, servitude or forced labour. That duty clearly includes having in place national legislation

… adequate to ensure the practical and effective protection of the rights of victims or potential victims of trafficking. Accordingly, in addition to criminal law measures to punish traffickers, Article 4 requires member States to put in place adequate measures regulating businesses often used as a cover for human trafficking. Furthermore, a State’s immigration rules must address relevant concerns relating to encouragement, facilitation or tolerance of trafficking.[6]

The Group welcomes this recognition that the State’s obligation extends beyond the criminal law to include significant victim-protection measures, not only for those who have already been trafficked but also for those at risk of being trafficked in the future. Furthermore, these obligations apply to all persons within the State’s jurisdiction, irrespective of whether the victim’s State of origin is in the European Union.

In addition the Group also notes positively that the Court has addressed the issue of immigration regulations that can contribute to trafficking; in this regard the Group underlines the importance of systematically assessing the impact of immigration legislation and policy on the prevention of trafficking and the protection of victims’ rights.

[9] The Group notes further the Court’s statement that State authorities may be required to take immediate practical measures of protection of victims or potential victims of THB where

the State authorities were aware, or ought to have been aware, of circumstances giving rise to a credible suspicion that an identified victim had been, or was at real and immediate risk of being, trafficked or exploited within the meaning of Article 3(a) of the Palermo Protocol and Article 4(a) of the Anti-Trafficking Convention. In the case of an answer in the affirmative, there will be a violation of Article 4 of the Convention where the authorities fail to take appropriate measures within the scope of their powers to remove the individual from that situation or risk.[7]

Accordingly, it is not open to the State to plead ignorance of an individual’s situation where it should have made itself aware of the risk faced.

In the opinion of the Group of Experts, such practical measures include:

  • the securing of the immediate physical safety of the trafficked person, or person at risk of being trafficked;
  • their physical, psychological and social recovery, with the immediate provision of information about their rioptions in a language that they understand;
  • referral to assistance and support with the aim of long-term social inclusion.

[10] The Group considers that these immediate measures should be taken regardless of whether the person is able or willing to cooperate with the authorities. In addition, such measures might include, but are not restricted to:

  • ensuring that the person has legal assistance and access to justice;
  • evaluating the need for short or longer-term international protection, whether through refugee status or subsidiary/complementary protection.[8]
  • safe and dignified repatriation involving cooperation with the source State and relevant NGOs and following an individual risk assessment;

[11] The Group furthermore welcomes the statement by the Court that the State’s obligation under Article 4 includes a procedural duty to investigate situations of potential trafficking, independently of any actual complaint having been made by the victim, once the State is aware of such a situation. This duty will require urgent action by the State where there is a possibility to remove an individual from a harmful or potentially harmful situation.[9]

[12] The Group notes the recognition by the Court that not only destination States but also source and transit States have obligations under Article 4 to establish their jurisdiction over any trafficking offence committed on their territory, as well as to cooperate with the relevant authorities in other States.[10] The Group considers that such cooperation is essential in cases of transnational THB.

[13] The decision of the Court makes clear that THB is not only a serious criminal act; States must take significant action in order to meet their obligation to secure to all those within their jurisdiction the right to be free from the threat of enslavement, servitude and forced labour and to live in dignity. Such action is required by the procedural obligation to investigate possible cases of THB and the substantive obligation to prosecute effectively those accused of THB and to put in place effective systems to protect those at risk and to provide access to justice for victims. Such systems should involve both immediate (urgent) and longer-term measures.

[14] The Group notes with approval that the decision of the Court makes clear that a comprehensive approach, encompassing all aspects of prevention, protection and prosecution, is essential in securing effective (State) action against THB.[11]22 June 2010


[1] Application No. 25965/04, 7 January 2010.

[2] Siliadin v. France, Chamber Judgment, Application No. 73316/01, 26 October 2005, para 89.

[3] Para 187.

[4] Para 281.

[5] Para 282

[6] Para 284.

[7] Para 286.

[8] UNHCR, Guidelines on International Protection No.7: The application of Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the status of refugees to victims of trafficking and persons at risk of being trafficked (2006); Group of Experts on Trafficking in Human Beings set up by the European Commission, Opinion No. 4/2009 of 16 June 2009, On a possible revision of Council Directive 2004/81/EC of 29 April 2004 on the residence permit issues to third-country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities, para 20.

[9] Para 288.

[10] Para 289.

[11] Para 285.

Readmission agreement with Pakistan: international human rights norms respected?

One of the main debates concerning the European Union (EU) refers to whether policy making in an EU institutional setting can be defined as supranational or intergovernmental. Migration policies have traditionally supported the latter argumentation; however, since the implementation of the Treaty of Amsterdam (1999) a slow movement from an intergovernmental to a more communitarian form of cooperation in migration policies is undeniable. This shift of sovereignty is noticeable in relation to readmission agreements with third countries. The last of these agreements is with Pakistan. The LIBE Committee will be voting a draft report  the 13 July 2010.

Agreements in force with visa facilitation

Albania

Negotiation lasted from 2003 to 2005 and the agreement entered into force in 2004

Bosnia&Herzegovina

Negotiations lasted from 2006 to 2007 and the agreement was signed 1 January 2008

Fyrom

Negotiations lasted from 2006 to 18 September 2007 and the agreement was signed 1 January 2008

Moldova

Negotiations lasted from 2007 to 2007 and the agreement was signed 1 January 2008

Montenegro

Negotiations lasted from December 2006 to 2007 and the agreement was signed 1 January 2008

Ukraine

Negotiations lasted from 2002 to 2007 and the agreement was signed 1 January 2008

Serbia

Negotiations lasted from  2006 to 2007 and the agreement was signed 1 January 2008

Russia

Agreements with no Visa facilitation

Hong Kong

Negotiations lasted from 2001 to 2003 and the agreement entered into force in 2004

Macao

Negotiations lasted from 2001 to 2003 and entered into force in 2004

Sri Lanka

Negotiations lasted from 2001 to 2004 and entered into force in 2005

Pakistan

After 10 years of negotiations (2000-2010) the LIBE Committee is about to vote on a draft report on 13 July.

Negotiations with visa facilitation

Georgia

Negotiations with Georgia have completed in just one year (from 2009 to 2010). The agreement foresees visa facilitations and is now waiting for the signature of the Council

See also:

http://www.statewatch.org/analyses/no-17-readmission.pdf

Leda Bargiotti

Negotiations on a common asylum system progress with the involvement of the European Parliament

The establishment of a common area of protection and solidarity, based on a common asylum procedure and a uniform status for those granted protection remains one of the prime objectives of the EU. Following the implementation of the first phase, the European Commission submitted (in late 2008 and early 2009) a set of proposals for the recasting of existing legal instruments as well as the setting up of a European Asylum Support Office (requested by the Council in the European Pact on Immigration and Asylum). These proposals aim to commence the second phase of EU asylum policy with the overall objective of bringing in a Common European Asylum System.

The European Parliament, in its new capacity as co-legislator in a co-decision procedure with the Council, gave its position on these proposals at first reading on 7 May 2009, expressing an overall favourable opinion.

In October 2009 the Commission submitted its two most recent proposals for the recasting of the Directive on minimum standards on procedures for granting and withdrawing refugee status and the Directive on minimum standards for qualification for refugee status and the status of beneficiaries of international protection and the content of the protection granted. The LIBE Committee appointed two rapporteurs, Sylvie Guillaume and Jean Lambert, to study these proposals. An initial debate was held in committee on 16 March 2010.

Following the entry into force of the Lisbon Treaty which endowed the Parliament with new responsibilities in the setting up of new legal instruments in this field, the LIBE Committee requested in 2008, a study to the Odysseus network (the Academic Network for legal studies on immigration and asylum in Europe) “Setting up of a Common European Asylum System – on the application of existing instruments and proposals for the new system”.

Some of the most important findings of this study  (which will be available in May 2010) were presented during the roundtable organised by the LIBE Committee on 26 April 2010.  The debate, far from exhaustively analysing the questions at stake, focused on a number of cross-cutting issues with relevance for many of the legal instruments currently under debate, namely:

  1. General principles of European law as guidelines for the definition of procedural guarantees for asylum seekers
  2. Trust among Member States on each others’ asylum systems
  3. Detention of asylum seekers: Distinction between detention and restriction to freedom of movement
  4. Identification of asylum seekers with special needs
  5. Responsibility towards asylum seekers when the EU and its Member States act outside their territory
  6. Alignment of subsidiary protection and exceptions with international law and Member States’ practices and alignment of equal rights with refugees
  7. Development of a coherent common European asylum system: accession to the Geneva Convention, reinforcement of the powers of the support office or creation of a European asylum court.

1. General principles of European law as guidelines for the definition of procedural guarantees for asylum seekers

The prohibition on refoulement is the cornerstone of international refugee and asylum law.  According to this principle States are obliged not to return a person to his country of origin, or any other country, where he/she is at risk of being subject to serious harm or human rights violations.

Current instruments, such as the Geneva Convention and protocol, recommendations of the UNHCR, the Convention on Human Rights  Council of Europe’s recommendations, rulings of the European Court of Justice (ECJ), rulings of  the European Court of Human Rights (ECtHR), do not establish common procedural guarantees for asylum seekers at the European level.

In order to establish such a common set of guarantees, it is suggested to look at the general rulings of the ECJ as well as the general principles established and transpose them in procedural safeguards. These will then could form a catalogue which allows to address the shortcomings of the directive and look at the proposals of the Commission.

The two concrete interlinked examples of the right to legal aid and the right to appeal help explaining such an approach

Right to legal aid

Legal aid to asylum seekers should  be mandatory and should be appropriate to the needs of those who need it. In order to define what appropriate means it is useful to refer to what the jurisprudence has established in this regard, namely that when somebody is vulnerable it is desirable that mandatory and free legal assistance is provided.

More specifically, the right to have access to legal aid should be determined on the basis of two criteria:

–       the weaker the user and

–       the higher the nature of the right at stake

the higher the legal assistance .

Right to appeal

The right to appeal by asylum seekers should foresee the possibility to suspend the removal of the individual who appealed.

In this regard the new proposals currently under negotiations saw  the Parliament proposing a number of amendments designed to strengthen asylum seekers’ rights, in particular by ensuring that they receive free legal assistance and by improving the arrangements for the transfer of asylum seekers between Member States.

2. Trust among Member States on each others’ asylum systems

The concept of mutual trust entails the idea that asylum seekers transferred on the basis of the EU Council Regulation establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national (Dublin Regulation) are not subject to inhuman, unfair treatment and that such a provision is in conformity with the principle of non refoulement.

This principle, entails the idea that the Member State responsible for the asylum seeker transfer is also responsible for the individual’s non refoulement.

That is why it is appropriate to talk about qualified, rather than absolute trust between Member States. In this respect, since all Member States signed the 1951 Geneva Convention and the Convention on Human Rights it is assumed that signatories respect the obligations enshrined in these legal instruments.

However, Member States should be in the position to challenge the Dublin Regulation and refrain from transferring an asylum seeker to a State when they doubt that the principle of non refoulement is respected.

This represents a fundamental guarantee for individuals especially given that human rights standards varies greatly between Member States. Indeed the report of the UNHCR concluded that not all Member States’ standards are in line with international human rights standards.

The sovereignty clause however is not sufficient per se to guarantee adequate and effective safeguards to asylum seekers. Additional safeguards are necessary and that is why the Commission’s proposals are welcomed.

3. Detention of asylum seekers

The detention of asylum seekers is in principle an admissible instrument of preventing unauthorised entry or residence into the EU territory.

Member States possess a broad discretion to decide whether to detain potential immigrants.

According to the ECtHR decision in the Saadi case (Art. 5 para. 1(f)) ECHR does not prohibit that asylum seekers may be detained to prevent unlawful entry, even if detention is not “necessary” in an individual case.  Detention, however, is subject to the principle of proportionality, forbidding arbitrariness and excessively long detention.

According to EU law, asylum seekers must not be detained for the mere fact of filing an asylum application and detention should not impede individual to claim international protection. In fact their request should be processed in a priority manner.  The same principle can be found in the Reception Conditions Directive (Art. 14 paragraph 8).

The detention of asylum seekers is increasingly used not only as a consequence of a rejection of an application but also upon arrival of an individual. This measure contributes to the overall tendency to blur the lines between genuine refugees and ‘irregular’ migrants in public perception as well as in the management of public policies. Therefore, its legitimacy should be assessed especially against the risk of violation of fundamental rights.

Detention has become a measure of  prevention of ‘irregular’ flows where the control strategy is taking over from the exigencies of bona fide asylum seekers and refugees. This phenomenon raises humanitarian as well as legal concerns and that is why detention as a deterrence strategy for prevention of abuse of the asylum system cannot be justified.

In conclusion, detention should be only used as an exceptional measure. However European states’ practice indicates a wide range of approaches to detention which not always ensure the full respect of fundamental rights of asylum seekers. The proposals under revisions should therefore take into considerations the proportionality of such measure vis à vis the risk of violation of fundamental rights.

4. Identification of asylum seekers with special needs

The only legal instrument containing obligations on Member States is to be found in Article 17 of the Reception Directive. A study conducted by Odysseus in 2007 concluded that the majority of the Member States have not transposed the directive correctly and in some cases have not transposed it at all .

This is mainly due to the fact that Article 17 does not explicitly require, from a legal point of view, a specific procedure to be put in place in order to identify those asylum seekers with special needs.

The system rests on an identification of these persons, therefore progress towards a system of identification could be achieved either by:

  • obliging Member States to draw up a specific procedure for the identification of special needs (ex via  medical screening, assessment on whether or not individuals have the mental and physical capability to be transferred), or
  • by obliging authorities via clear regulations to contact asylum seekers, refer those with special needs and then provide adequate reception conditions.

The proposal of the Commission touches upon this aspect, trying to provide more legal certainty in this respect. Paragraph 20  of the proposal for a directive introduces an obligation for the Member States to carry out identifications.

However, the problem is the overall concept. The Commission has not specified that vulnerability should be considered as a criteria on its own right in order to carry on an accurate identification of individuals with special needs.

Therefore, although the second phase in the development of a common asylum system is an attempt to have a more cross -cutting approach, it still falls short on implementation provisions

5. Responsibility towards asylum seekers when the EU and its Member States act outside their territory

European primary and secondary law oblige the EU and its Member States to uphold the non refoulement principle and related procedural rights towards asylum seekers also when operating outside the EU territory.

Concerning primary law, Article 78 of the TFEU makes a clear reference to international law and inter alia to the Geneva Convention and the principle of non refoulement.

Also case law both at the national and international level confirm that the EU and the Member States are responsible towards individuals under their jurisdiction.

As soon as a contact between an individual and an EU or national authority is established,  all the activities related to it involve an exercise of jurisdiction requiring international human and refugee rights to be observed by the EU and /or the Member States , even if the contact does not take place in the EU territory.

Although there is no case law of the ECJ  in this regard as yet,  such aspect is indeed touched upon by other case law, namely in the field of competition and freedom of movement.

The European Charter of Fundamental Rights  in Art. 18 also contains references to obligations under international law. Furthermore, Art. 51 CFR, which regulates the CFR’s scope, does not take territory into account, only the authority responsible.

Also EU secondary law establishes such obligations:

  • The Qualification Directive (Art. 21 para. 1 of Directive 2004/83/EC): covers both refugee protection, in accordance with the Charter of Fundamental Rights and subsidiary protection
  • Asylum Procedures Directive (Art. 3 para. 1): member states are obliged to accept and examine requests for international protection submitted on their territory – this includes requests made at the border or in transit zones.
  • The Schengen Borders Code (Art.3): entry controls must be implemented “without prejudice to […] the rights of refugees and persons requesting international protection, in particular as regards non-refoulement”. Even though non-refoulement does not include a general right to admission, in practice it means that member states are obliged to allow temporary admission for the purpose of verifying the need for protection and the status of the person.

The current revision of the Frontex Mandate represents a very good opportunity to spell out such responsibilities. It has been demonstrated that Frontex is indeed responsible towards asylum seekers when carrying on operations outside EU territory. It is not true that Frontex is only responsible for the logistic of its operations. Frontex is responsible to conduct its activity in full respect of human right law, including the respect of the principle of non refoulement.

To reach this goals it is fundamental that the new revised mandate grants the United Nations High Commissioner for Refugees the participation to the operational activities of Frontex in order to have an effective and transparent monitoring of the agency and ensure that no violation of human rights takes place.

6. Alignment of subsidiary protection and exceptions with international law and Member States’ practices and alignment of equal rights with refugees

The EU Directive on refugee definition and complementary protection (EU Qualification Directive) established for the first time an obligation of the Member States to grant subsidiary protection status to persons who do not qualify as refugees, but are nevertheless in need of international protection.

Therefore, subsidiary protection is granted in some countries when expulsion would be in conflict among others with Article 3 of the European Convention of Human Rights, because such acts would be considered inhuman or cruel treatment.

The current scope of the qualification directive with its use of the subsidiary forms of protection is limited  and it does not provide for a  widely recognised definition of subsidiary protection .

The application of various solutions to these problems resulted in emergence of practice whereby different statuses were granted, such as “status B”, “subsidiary protection”, de facto status” and “humanitarian status”.

There is no international document, listing all persons that may be eligible for subsidiary protection, but EU Qualification Directive provides three categories of individuals to whom this protection may apply:

– persons who because of reason of death penalty or execution;

– torture or inhuman or degrading treatment or punishment in the country of origin;

– serious and individual threat to life or person by reason of indiscriminate violence in situations of international or internal armed conflict are unable, or owing to such risk, unwilling to avail themselves of the protection of the country of origin.

Despite this no provision regulates cases in which a person who is excluded from subsidiary protection by reason of having committed a serious crime, is  unable to return to the country of origin due to threat of torture.

The revision of the directive should address this aspect, as well as the problem related to family reunification, which is not provided by any EU directive.

7. Development of a coherent common European asylum system: accession to the Geneva Convention, reinforcement of the powers of the support office or creation of a European asylum court.

The development of a coherent common European Asylum System can take place either by reforming the current structure or establishing a completely new structure.

Since experience shows that revolutionary interventions are difficult to be put into place, it is probably more realistic to look at possible ways to modify the existing system of EU asylum policies.

The EU already has a series of legal instruments which provide guarantees and rights to asylum seekers. The problem is that they do not have the necessary legal effect.

For example the principle of equality is at best relative in asylum law.

Therefore it is necessary to look at different options to develop a coherent system.

Accession to the Geneva Convention

The accession to the Geneva Convention might be feasible. However it goes much further than EU law in  terms of rights recognised to asylum seekers. Therefore, the EU and the Member States in this case should align their system to meet the same standards.

European Asylum Support Office

It is currently too early to foresee the direction that the European Asylum Support Office will take. Its activities and development have already been criticised. However, it is necessary to support the further development of this office because in order to be able to reach its goals it must have a comprehensive picture of all migration factors.

Therefore, the Parliament has sought, by means of its amendments, to clarify the tasks of the European Asylum Support Office in the area of the collection, management and analysis of information, in particular as regards countries of origin, with a view to the establishment of common assessment criteria, to clarify the arrangements for cooperation with the UNHCR and the NGOs concerned, and to lay down more precise rules governing the deployment and role of the asylum support teams.

European Asylum Court

These elements however are not sufficient to develop a coherent common European Asylum System. In order to reach a real protection of fundamental rights rather than a simple management of EU asylum policies, it is necessary to eliminate the divergences that exist between the EU and national asylum legislation.

Therefore on the one hand the European Asylum support office should impose further obligation on member States to ensure that principles of EU law is correctly transposed. On the other hand it would be necessary to have a specialised asylum court.

However, this last suggestion might be less realistic due to obstacles in the Treaty of Lisbon as well as the renowned jealousy of the ECJ to keep its own competencies.

In conclusion, in a context of a single space where freedom of movement is one of the funding principles of the European Union, it is paradoxical and counterproductive to still have a mosaic of asylum systems that differ from state to state. The proposals for amendments of the Dublin Regulation, Eurodac, Reception Directive, Qualification Directive and Procedures Directive represent an improvement compared to the previous situation. However, this does not mean that the modified proposals represent the best possible solutions. Indeed, several shortcomings and loopholes have been highlighted in relation to the right of asylum seekers also in relation to the new proposals.

It is true that the EU is building a stronger asylum system, in line with the international standards. However, the asylum system start to apply only once an individual has reached a State territory. Hence, protection is subordinated to admission according to general immigration laws, which generally include a series of clauses that make the access to EU territory increasingly difficult also for those entitled to international protection.

The European Union and its Member States will probably have to put into place a third phase of asylum harmonisation takling the above mentioned shortcomes, including the problems resulting from an increasingly restrictive immigration policy.

LB

Action Plan on the Stockholm Programme released by Statewatch

European Commission: Stockholm Programme: Statewatch Analysis: Action Plan on the Stockholm Programme: A bit more freedom and justice and a lot more security (pdf) by Tony Bunyan: “The “harnessing of the digital tsunami” as advocated by the EU Future Group and the surveillance society, spelt out in Statewatch’s “The Shape of Things to Come” is embedded in the Commission’s Action Plan as it is in the Stockholm Programme….There is no mention of the European Security Research Programme (ESRP). Much of the technological development is being funded under the 1.4 billion euro security research programme. See: Statewatch/TNI report: Neoconopticon: EU security-industrial complex.

Statewatch Briefing: European Commission: Action Plan on the Stockholm Programme (pdf) Comments by Professor Steve Peers, University of Essex – Full-text: Communication from the Commission: Delivering an area of freedom, security and justice for Europe’s citizens Action Plan Implementing the Stockholm Programme (COM 171/2010, pdf)

http://www.statewatch.org/


The LIBE Committee opposes the adoption of the European Commission Draft Council decision on supplementing the Schengen Borders Code in operations coordinated by Frontex

The Committee on Civil liberties, Justice and Home Affairs (LIBE) opposed (12 in favour and 25 against) the Proposal for a Council Decision supplementing the Schengen Border Code and then approved the consequent Motion for a resolution on the draft Council decision supplementing the Schengen Borders Code as regards the surveillance of the sea external borders in the context of the operational cooperation coordinated by the European Agency for the Management of Operational Cooperation at the External Borders.

Continue reading “The LIBE Committee opposes the adoption of the European Commission Draft Council decision on supplementing the Schengen Borders Code in operations coordinated by Frontex”

European Parliament approves Barroso II

The European Parliament has approved by a very large majority, 488 votes in favour, 137 against and 72 abstentions, the Barroso II team on Tuesday 9 February, in Strasbourg.

The new Commission begins to work today, Wednesday the 10 February and its mandate will expire on 31 October 2014.

The major political groups (the EPP, the Socialist Group (S&D) and the Liberal Group (ALDE)) supported the new Commission, the Greens/EFA, the GUE/NGL, the Europe Freedom and Democracy Group (EFD) and non-attached members voted against and the Conservative Group (ECR) abstained.

Barroso asserted in front of the plenary that the main priorities of the new Commission (already presented to the EP in September 2009) will be to tackle the current economic and social situation in the EU, the fight against climate change, developing social cohesion, the creation of the freedom and security area, and strengthening Europe’s place in the world.

As part of the new framework agreement between the EP and the Commission, in which the main elements were approved by MEPs on Tuesday Barroso committed to carry on social impact analysis when there is a new legislative proposal.

According to the resolution in order to place the Parliament on an equal footing with the Council where the ordinary legislative procedure applies the Commission should:

1) Provide to the EP similar access to information than that guaranteed to the Council on legislative and budgetary matters

2) Provide full documentation to the EP on the Council’s meetings with national experts on the preparation and implementation of EU legislation

3) React to the EP’s legislative initiative within three months and present a proposal within one year or in case of refusal by the executive explain to the plenary the reasons that led to such a decision

4) Recognise the EP’s enhanced role in international negotiations (following the entry into force of the Lisbon Treaty) by providing it with “immediate and full” information at “every stage of negotiations” and by giving it observer status at international conferences.

5) Defend the EP’s position during the negotiation of the European External Action Service and involve it in the revision of the better legislation’ interinstitutional agreement.

6) through its President hold regular dialogue with the EP president .

Despite, President Barroso promised to abide by it during the second phase of negotiations on procedural matters that will get under way, the Parliament did not obtain everything it wanted. First of all, the Commission did not accept to allow the European Parliament to hold hearings of future EU ambassadors. Secondly, although Barroso chose to set a deadline for Parliament’s power of initiative, he did not agree to systematically respond to EP requests, to keep from hindering the Commission’s right of initiative. Finally, It also remains to be seen how far the Commission will agree to go on delivering information upstream to Parliament on certain aspects of EU external policy.

Now that the Barroso II has been approved by the European Parliament it is interesting to look back at what the newly elected commissioners responsible for the area of freedom, security and justice presented during the auditions held in January in front of the legislative assembly.

The Commissioners related to the area of freedom, security and justice Ms Viviane Reding will be the Vice-President of the European Commission and the Commissioner for European Justice, Fundamental Rights, Citizenship and Equal Opportunities. During her hearing, held in January, Ms Reding stated that her main objective will be to create a single justice area and enhancing equal opportunities policies, ending any forms of discrimination and, above all strengthening the legal instruments against violence towards women. In specific the three priorities presented to the Parliament in the field of Justice are:

(1) guaranteeing accused persons and suspects clear rights in the EU

(2) ensuring strong fairness rules in trials and prisons, and

(3) enhancing victims’ rights.

Ms Reding also highlighted the importance of “free circulation of administrative documents and European authentic acts” and therefore announced the publication, at the start of the year, of a Green Paper on the free movement of civil and political rights, expected at the beginning of 2010. Always in this domain, the newly elected Commissioner aims to turn Eurojust, into “a European public prosecutor’s office”. Concerning the promotion and respect of fundamental rights the Commissioner explained back in January that there will be a very specific impact evaluation on our fundamental rights. Ms Reding specified that equal opportunities should be fully integrated into employment and this would be a priority of the Belgian presidency of the Union. Finally Ms Reding stated that together with the Commissioner for Internal Affairs, Cecilia Malmström they will bring forward 169 initiatives under the Stockholm Programme.

Concerning her part, Cecilia Malmström during her hearing held on 19 January, presented immigration and the review of security legislation as the main priorities for the Commission. In relation to immigration three directives will be presented in 2010, namely: seasonal work, internal changes within multilateral companies and payment to trainees. Always in January, the newly elected Commissioner indicated that she propose a strengthening of Frontex at the beginning of 2010. The other main objective is the implementation of an internal security strategy in the EU, although little legislation will be put forward in this domain. Ms Malmström announced a review of the data retention measure at the beginning of 2011 which together the setting up of the Second Generation Information System (SIS II) she will tackle as soon as possible. She also affirmed that she supported the creation of the post of European coordinator of fighting human trafficking. The Commissioner stated that she will also present a communication on the fight against corruption and that she is keen in cooperating with Ms Reding in this domain.

LB

Towards a European regime of sea border rescue operations?

How is it possible to avoid conflict of competences between Member States concerning the surveillance of maritime borders in the south of the Mediterranean, as well as possible conflict concerning the responsibility to rescue vessels in danger or to reject illegal immigrants at the border?

These questions have been raised several times in the past by both the press and assiduous public opinion. Starting from the case of Cap Anamur, debates spread at the European Union level, where the control of the external borders of the Schengen area is now regulated by the Schengen Borders Code (which entered into force on 13 October 2006, CE Regulation  N. 562/2006 of the EP and the Council).

In fact the Schengen Code does not include a comprehensive regulation on sea borders control although it foresees, respectively in articles 12 and 13, surveillance modalities and rejection by costal guards. (*)

Events related to marine assistance and rescue are not regulated and therefore Member States refer to international conventions (and related protocols) such as the Montego Bay United Nations Convention on the Law of the Sea of 10 December 1982 – UCLOS- which requires the master of a ship to render assistance to any person found at sea in danger or distress under article 10 of the 1989 Convention on salvage, or, the International Convention for the Safety of Life at Sea of 1974 (SOLAS), – and more importantly  the International Convention on Maritime Search and Rescue of1979 –SAR-.

The main problems arises at the particle level. Thought the regulation may be consistent, the implementation varies widely between Member States. As the European Commission pointed out in its Study on the international law instruments in relation to illegal immigration by sea in 2007, “There is indeed a duty to respect fundamental rights when implementing the Schengen Code, but it is not stated explicitly in relation to surveillance operations. As regards the principle of non-refoulement, there are differences in the Member States’ interpretations of this principle of international law, with some Member States, for example, contesting its applicability in international waters.”

“Another difference between Member States relates to how they identify a situation requiring assistance: for some Member States the vessel must be on the point of sinking; for others it is sufficient for the vessel to be unseaworthy; some Member States require the people on board to request assistance, while others do not. The proposal is based on the SAR system and stipulates that as soon as there is any question about the safety of a vessel or a person the SAR authorities must be contacted and given all the information they need to determine whether or not this is an SAR situation According to the Sar Convention each search and rescue area have been delimited for each of  the country concerned search and rescue regions for which they are responsible and these regions do not necessarily correspond to the existing maritime borders.”

The SAR Convention also imposes a precise obligation to rescue and assist persons and ships in distress at sea regardless of nationality, status or circumstances in which the persons are found. The obligations relating to search and rescue include the transport to a safe place.

According to the Commission “Deciding where the people rescued should be taken is a difficult question and is seen as one of the weaknesses of the SAR system. The 2004 amendments require all states to cooperate in resolving SAR situations; the state responsible for the SAR region must, with their cooperation, decide where those rescued will be taken. One Member State did not accept these amendments. A particular point of contention was where those rescued should be disembarked if the state responsible for the SAR region failed to fulfil its obligations in this respect. Some Member States are reluctant to take part in operations because they fear that they will end up having to take those rescued to their own country.”

Such difficulties often become emergencies for the persons involved in the rescue operations. Therefore, last November the Commission suggested to integrate the Schengen Code with the main international norms applicable in the field of marine search and rescue and the disembarking of individuals in safe harbours in order to guarantee fair and equal treatment at the European level and clear signing rules especially when surveillance operations take place under the coordination of the Frontex Agency.

Initially, the proposal did not obtain the support of national experts; however it may go through after the abstention of Italy and Malta.

If the Council adopts it, it will then be up to the European Parliament to intervene. In this case the legislative assembly will have time up to the 7 April to raise its objections concerning the procedure followed by the European Commission to integrate these provisions within the Schengen Code.

The European Commission defined these provisions as purely implementing measures (which seems a rather brave interpretation given the nature of their content), allowing therefore for their quicker adoption than if they were considered as measures having a fundamental impact in the Code. Within a few weeks it will be possible to know what will be the outcome of this, nonetheless, good initiative of the Commission.
EDC.

(*)From the SCHENGEN CODE
Article 12

Border surveillance

1. The main purpose of border surveillance shall be to prevent unauthorised border crossings, to counter cross-border criminality and to take measures against persons who have crossed the border illegally.

2. The border guards shall use stationary or mobile units to carry out border surveillance. That surveillance shall be carried out in such a way as to prevent and discourage persons from circumventing the checks at border crossing points.

3. Surveillance between border crossing points shall be carried out by border guards whose numbers and methods shall be adapted to existing or foreseen risks and threats. It shall involve frequent and sudden changes to surveillance periods, so that unauthorised border crossings are always at risk of being detected.

4. Surveillance shall be carried out by stationary or mobile units which perform their duties by patrolling or stationing themselves at places known or perceived to be sensitive, the aim of such surveillance being to apprehend individuals crossing the border illegally. Surveillance may also be carried out by technical means, including electronic means.

5. Additional rules governing surveillance may be adopted in accordance with the procedure referred to in Article 33(2). (Paragraph modified by the (CE) Regulation N. 296/2008 of the European Parliament and the Council of 11 March  2008)

Article 13

Refusal of entry

1. A third-country national who does not fulfil all the entry conditions laid down in Article 5(1) and does not belong to the categories of persons referred to in Article 5(4) shall be refused entry to the territories of the Member States. This shall be without prejudice to the application of special provisions concerning the right of asylum and to international protection or the issue of long-stay visas.

2. Entry may only be refused by a substantiated decision stating the precise reasons for the refusal. The decision shall be taken by an authority empowered by national law. It shall take effect immediately.

The substantiated decision stating the precise reasons for the refusal shall be given by means of a standard form, as set out in Annex V, Part B, filled in by the authority empowered by national law to refuse entry. The completed standard form shall be handed to the third-country national concerned, who shall acknowledge receipt of the decision to refuse entry by means of that form.

3. Persons refused entry shall have the right to appeal. Appeals shall be conducted in accordance with national law. A written indication of contact points able to provide information on representatives competent to act on behalf of the third-country national in accordance with national law shall also be given to the third-country national.

Lodging such an appeal shall not have suspensive effect on a decision to refuse entry.

Without prejudice to any compensation granted in accordance with national law, the third-country national concerned shall, where the appeal concludes that the decision to refuse entry was ill-founded, be entitled to correction of the cancelled entry stamp, and any other cancellations or additions which have been made, by the Member State which refused entry.

4. The border guards shall ensure that a third-country national refused entry does not enter the territory of the Member State concerned.

5. Member States shall collect statistics on the number of persons refused entry, the grounds for refusal, the nationality of the persons refused and the type of border (land, air or sea) at which they were refused entry. Member States shall transmit those statistics once a year to the Commission. The Commission shall publish every two years a compilation of the statistics provided by the Member States.

6. Detailed rules governing refusal of entry are given in Part A of Annex V.

Immigration, asylum and borders: the priorities for the next 18 months

Interesting elements  emerge on the implementation of the Stockholm Programme (2010-2014) from the working document of the Council presidency. It is necessary, as it is often the case for official documents, to interpret the silences as well as some cryptic or general information. It therefore follows a summary of the main proposals with some complementary explanatory notes.

Continue reading “Immigration, asylum and borders: the priorities for the next 18 months”