Analysis: EU rules on maritime rescue: Member States quibble while migrants drown…

by Steve Peers Professor of Law, University of Essex

PUBLISHED ON STATEWATCH

22 October 2013

Introduction

For many years now, the death toll of migrants who drown while attempting to reach the European Union in search of a better life has tragically been rising. Most recently, public opinion was particularly shocked when hundreds of migrants drowned when a single vessel sank off the coast of Italy. The Italian government has called for the EU to adopt an action plan to deal with the issue, and the Prime Minister of Malta, calling the Mediterranean a ‘graveyard’, has called on the EU to act.

Yet shockingly, these Member States, along with four others, are blocking an EU proposal on the table that contains concrete rules on the search and rescue of migrants – precisely and solely because it contains rules on search and rescue (along with disembarkation) of migrants. In fact, they describe their opposition to such rules as a ‘red line’, ie they refuse to negotiate on their opposition to any detailed EU rules which concern saving migrants’ lives.

The following analysis examines the background to this issue and assesses these Member States’ objections. It concludes that their legal objections to this proposal are clearly groundless. Furthermore, of course, from a political point of view, the hypocrisy and inhumanity of these Member States’ position speaks for itself.

Background

Due to widespread concerns about the accountability and legality of the actions of the EU’s border agency, known as ‘Frontex’, when it coordinates Member States’ maritime surveillance operations, EU rules on this issue were first adopted in 2010.

These rules initially took the form of a Council Decision implementing the EU legislation on the control of external borders, which is known as the ‘Schengen Borders Code’. The 2010 Council Decision included binding rules on interception at sea, and apparently non-binding rules on search and rescue and disembarkation of migrants.

A majority of those members of the European Parliament (EP) who voted on this Council Decision opposed it, and so the EP decided to sue the Council before the Court of Justice to annul the decision. The EP won its case, when the Court ruled in September 2012 that the Council Decision had to be annulled.

According to the Court, this Decision should have been adopted as a legislative act, because it addressed issues that affected the human rights of the persons concerned, and regulated the coercive powers of border guards; the Court also clarified that the rules in the Decision on search and rescue and disembarkation were in fact binding. However, the Court maintained the 2010 Decision in force until its replacement by a legislative act.

In spring 2013, the Commission proposed such a replacement act, which has to be adopted by means of the ‘ordinary legislative procedure’, ie a qualified majority vote in the Council (Member States’ ministers) and joint decision-making powers of the European Parliament. This proposal took over much of the text of the Council decision, but also added some further details as regards search and rescue and disembarkation, confirming also that these rules were binding. Like the 2010 Council decision, the proposal is limited to cases where Frontex coordinates Member States’ maritime surveillance.

While the European Parliament is broadly supportive of this proposal, suggesting only modest amendments, a group of Mediterranean Member States opposes the idea of any EU measure containing any detailed binding rules on search and rescue and disembarkation – even though such provisions are the most important rules in the 2013 proposal as regards saving migrants’ lives and their subsequent welfare.

The proposed search and rescue and disembarkation rules

The relevant parts of the 2013 proposal are Article 9 (search and rescue) and Article 10 (disembarkation).
Article 9 contains first of all a general obligation to ‘render assistance to any ship or person under distress at sea’. It defines further what is meant by a condition of ‘uncertainty’, ‘alert’ or ‘distress’, and provides for general rules on coordination of operations in such cases.

As for disembarkation, Article 10 contains rules to determine where migrants should be disembarked if they are intercepted or rescued. If they are intercepted in the territorial water or nearby maritime zone of a Member State participating in Frontex operations, they must be disembarked in the territory of that State.

If they are intercepted in the high seas (ie waters which no State has a legal claim to, under the international law of the sea), then they should be disembarked in the State which they departed from – subject to the rules in Article 4 of the proposal, on the protection of fundamental rights. In the case of search and rescue operations, there are no specific rules on which State to disembark migrants in, but Article 4 implicitly applies here as well.

The rules in Article 4 prohibit sending a person to a State ‘where there is a serious risk that such person would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment or from which there is a serious risk of expulsion, removal or extradition to another country in contravention of the principle of nonrefoulement’.

This clause reflects the judgment of the European Court of Human Rights, in a case called Hirsi v. Italy, where Italy was condemned for ‘pushing back’ boats full of migrants to Colonel Khadafy’s Libya.

Member States’ objections

The group of Member States objecting to Articles 9 and 10 state that the EU has no competence over issues relating to search and rescue or disembarkation.

First of all, as regards disembarkation, this objection is clearly ridiculous.
The admission of a migrant onto a Member State’s territory, or removal to a third State’s territory, is obviously an inherent part and parcel of immigration policy, and the Treaties empower the EU to develop a ‘common immigration policy’. Equally, the Treaties give the power for the EU to adopt rules on border controls, and it would be absurd to adopt rules governing the interception of migrants without addressing the obvious corollary question of what to do with the migrants once the border guards catch them.

Secondly, at first sight, the objections to EU competence as regards search and rescue rules have more force. Certainly, there is nothing in the EU Treaties which gives the EU power to regulate searches and rescues generally. But the 2013 proposal would not do that: it would only regulate searches and rescues in the context of the EU’s border controls policy, and only where maritime surveillance was coordinated by Frontex.

Can the EU regulate searches and rescues in such cases?
The case law of the Court of Justice on public health issues should logically apply by analogy.
The Court has ruled that while the EU cannot regulate public health generally, it can take account of public health concerns when it adopts legislation (for instance, on tobacco advertising, cigarette content or the packaging of cigarettes) which is principally concerned with regulating the EU’s internal market. Similarly, the EU’s General Court has ruled that EU legislation can take account of the life and welfare of seals, if it adopts legislation on the sale of seal products that mainly concerns the internal market.

If EU internal market law can concern itself with the long-term effects of cigarette smoking for smokers, or the immediate effect of clubbing on seals, then surely EU law on border controls can concern itself with the effect of imminent drowning upon migrants, where there is a direct connection with maritime surveillance.
And there is bound to be such a connection: EU rules stepping up maritime surveillance, while they have (and legally must have) the principal purpose of controlling entry onto the territory of the Member States, will in some cases fall to be applied when the persons planning such entry are about to drown. It should be recalled, as explained above, that the proposal only sets out a general obligation to assist vessels in distress and to coordinate action in emergency situations.

Thirdly, it should not be forgotten that the proposed rules will apply only to operations coordinated by Frontex – an EU agency, funded entirely by money from the EU budget.

Why should the EU not have the power to set conditions before its agency (spending its money) assists Member States with maritime surveillance, in the same way that it has the power to set conditions on its financial assistance to its Member States, or third countries?

Another objection of the six Member States is the compatibility of the proposed Regulation with international law. The obvious way to address this problem (if it exists) is to amend the Regulation to ensure that it is consistent with international law. Anyway, the preamble to the legislation (recital 4) states that it must be applied consistently with international law: Member States did not object to such vague references to international law in readmission treaties, or in much of the EU’s legislation on irregular migration orborder controls.

The six objecting Member States seem to be concerned also about the proposal’s mere overlap (as distinct from conflict) with international law – but the EU adopts an enormous amount of legislation (on the environment, for instance) which overlaps with international law, and aims to provide for the detailed and effective implementation of the relevant international law obligations.

More fundamentally, eviscerating the proposed rules on disembarkation would empty the protection of Article 4 of the proposal (on ensuring the safety of persons sent to third countries) of much of its practical content – but, as explained above, this part of the proposal reflects important case law of the European Court of Human Rights. Similarly, removing or weakening the provisions on search and rescue would subtract from the proposal any added value as regards protection of the right to life – another key obligation of human rights law. One can only conclude that the six Member States in question come not to praise international law, but to bury it.

Conclusion

Member States rightly rejected specious and cynical legal arguments made throughout the last decade to justify torture, abduction and indefinite detention without trial in the name of the ‘war on terror’.
Of course, control of immigration is a different issue, but the legal arguments raised by these six Member States are equally specious and cynical – and should equally be rejected. The EU bears its share of responsibility (alongside its Member States) for the deaths of hundreds of migrants – but that must also mean that the Union should be able to make some concrete contribution towards reducing this death toll in future.

Sources

2010 Council Decision
Judgment of Court of Justice – Case C-355/10:
2013 Commission proposal
European Parliament draft report
Objections of six Member States
Presidency proposal
Positions of Member States on entire proposal

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NEW!! : subscribe to the first summer school on the EAFSJ…

 

LogoSummerSchool2013Rome

Roma, 8-11 July
Sala conferenze Fondazione Basso – via della Dogana Vecchia, 5 – Roma

The European Area of Freedom Security and Justice (EAFSJ): scope, objectives, actors and dynamics.

Night view of Europe

Aim: to take stock of the current state of EAFSJ and of its foreseeable evolution within the next multiannual program 2015-2019 (to be adopted under Italian Presidency at the beginning of the next legislature).
Lenght: 4 one day modules
Subscriptions: on line on the Fondazione Basso internet site : http://www.fondazionebasso.it
Participation fees:

Euro 480,00 (ORDINARY FEE).
Euro 200,00 (FOR STUDENTS / RESEARCHERS) .
(Bank Account of Fondazione Lelio e Lisli Basso – Banca Nazionale del Lavoro Ag. Senato Palazzo Madama: IBAN IT18I0100503373000000002777 ).
Subscriptions should be submitted before June 15th.The Summer School will take place only if a minimum number of subscribers is reached !For further information : tel. 0039.06.6879953 – basso@fondazionebasso.it
Languages: lessons will be mainly in Italian (some lessons will be in English and French), teaching material will be in Italian and/or English, French.
English/Italian translation will be available.
The programme is on the web-site of Fondazione Basso (www.fondazionebasso.it -Tel. 06.6879953 – email: basso@fondazionebasso.it)

July 8th
A Constitutional and Institutional perspective
09h00 am – 06h30 pm

Opening speeches:
Valerio Onida: Freedom, Security and Justice related policies from a constitutional perspective and in relation with international and supranational dimensions
Stefano Manservisi: After the Stockholm Programme : how to preserve the specificity of the European Area of freedom security and Justice related policies by integrating them in the general EU governance and legal framework?

Debate

Freedom Security and Justice as the core of the common constitutional european heritage
Protecting fundamental rights: the impact of the accession of the EU to the ECHR. A common European Constitutional Heritage arising from the Council of Europe and European Union European Courts. What can be expected from the Strasbourg Human Rights Court in areas related to the FSJ?.

Speaker: Giuseppe Cataldi

Freedom Security and Justice as the core of the common constitutional european heritage
Promoting fundamental rights: the European Charter and its impact on EU policies. Even if the Charter does not extend the EU competencies it is now a constitutional parameter to be taken in account not only by the European judges but also by the EU legislature, even for policies designed with a more limited scope.

Speaker:Ezio Perillo

Debate

Evolution and transformation of the principle of Primacy of EU law. Dialogue and mutual influence of European and national Constitutional Courts.
Fifty years after the landmark case of Van Gend en Loos and four years after the Lissabon-Urteil (Bundesverfassungsgericht judgment of 30.6.2009), the tensions between EU “limits” and national “counter-limits” could arise again notably in the EAFSJ area.

Speaker: Oreste Pollicino

The EAFSJ a cross road of European and national founding values (art. 2), as well as for fundamental and European citizenship rights. How manage the indivisibility of rights and a Member States differentiated integration ?
(Opt-in Opt-out Countries). How far can the EU impact on Member States internal legislation (Towards a “reverse Solange” mechanism)? How the EU and Council of Europe can influence national fundamental rights related policies

Speaker: Nicoletta Parisi

The EAFSJ as supranational constitutional area of democracy. From National State to the European Union: what kind of relation between national and european legal orders ?
Sixty years of EU integration have changed the concept of democracy and sovereignty. There is a metamorphosis in National State’ s traditional role and its constitutional elements such as territory, citizenship and sovereign power. The Kantian vision of a peaceful cosmopolitan project mirrors the category of EU citizenship arising in the EAFSJ. Today Habermas developed the concept of “Constitutional patriottism”, underlying a “constitutionalisation” of the European supranational area. What are the pro and cons of this EU perspective ? The post-Lisbon Treaty stressed that the EAFSJ is becoming the embryo of a European public sphere as well as of a first example of supranational democracy.

Speaker: Francesca Ferraro

Debate

July 9th
Institutional dynamics and EU practices
09h30 am – 06h30 pm

The EAFSJ before Lisbon. The intergovernmental cooperation. From “TREVI” via “Schengen” to Amsterdam. The first phase.
How formerly excluded EAFSJ related policies have been integrated into the EU framework. TREVI cooperation, the Schengen agreement (1985) and its 1990 Implementing Convention as well as the Dublin Convention on Asylum.
The emerging notion of supranational space in the Single European Act (1986). The mutual recognition principle in the Internal Market and in EAFSJ-related policies. The Schengen Acquis in the EU legal framework from Amsterdam to Lisbon. Opt-in and Opt-out Countries: the impact of differentiated integration. Schengen relevance and ECJ jurisprudence on the preservation of the Schengen system consistency. From cooperation to integration.

Speaker: Dino Rinoldi

Debate

The EAFSJ after Lisbon (1). How the EAFSJ specificity has been preserved by progressively integrating it in the ordinary EU (communitarized) legal institutional framework. The impact on the EU institutions and on the MS.
Dynamics and the role of the Institutions in promoting, negotiating and implementing the EAFSJ-related policies. European Council, European Parliament, Council of the European Union, Commission and Court of Justice interplaying in the EAFSJ. The preparatory work conducted behind the scene by the Commission Directorates General, the Council working bodies – COREPER, CATS, COSI – and the EP parliamentary committees

Speaker: Antonio Caiola

The EAFSJ after Lisbon (2) How democratic principles are fulfilled in the EAFSJ. The impact of the EP on legislative procedures.
The interparliamentary dialogue and the way how the EP and national parliaments play their role when verifying the subsidiarity and proportionality principles in the EAFSJ policies. The emerging role at EU level of “political families” represented at national European and international level (European political parties, EP political groups, national parties).

Speaker: Emilio De Capitani

Debate

The EAFSJ after Lisbon (3). How EU policies are framed and implemented at national level. How cooperation, mutual recognition and harmonisation are implemented
How EAFSJ policies are implemented at national level. Problems and opportunities arising notably when implementing the mutual recognition of other EU countries’ measures. How intertwined are the EU and national administration in the EAFSJ related policies. Is there complementarity between EU and National strategies? The EU financial levy as a facilitator of mutual EU-national coordination. The emerging role of EU Authorities and Agencies as a support and meeting space also for national administrations (Ombudsman, FRA, EDPS, FRONTEX, EASO, EMCDDA, EUROPOL, OLAF, CEPOL, EUROJUST, …).

Speaker: Lorenzo Salazar

Debate

July 10th
An European space of freedom and rights
09h30 am- 06h30 pm

The EAFSJ after Lisbon (4) Placing the individuale at the heart of EU activities
How EU legislation implements the principles of equality and non-discrimination. The ECJ jurisprudence and the phenomenon of reverse discrimination. EU citizenship-related jurisprudence. Judicial action at national and European level founded on the EU Charter. Infringement of EU founding values and fundamental rights as possible exceptions to the mutual recognition obligations? Fundamental Rights Agency.

Speaker: Valentina Bazzocchi

The EU evolving framework of Transparency, access to documents, principle of good administration, and of classified information
After Lisbon a more transparent independent and efficient EU administration can be founded on Arts 15 and 298 of the TFEU as well as Arts 41 and 42 of the European Charter. However the close intertwining of the EU and the Member States has created a hybrid system of European Classified Information (EUCI), which is particularly relevant in the EAFSJ policies. How do European and national institutions implement the EU principles? How is the principle of good administration secured? What role should the EU Ombudsman play?

Speaker: Deirdre Curtin

Protection of Personal Data. The EU reform.
After the Lisbon Treaty and the merger of the so-called first and third pillars, protection of personal data can be framed in a globally consistent manner. Informational self determination, protection against possible abuses by the private sector as well as by public sector (law enforcement authorities) can now be framed at European level by taking stock of the lessons learned at national and international level (Council of Europe, OECD). How to preserve the role of national authorities and of the new coordinating body.

Speaker: Vanna Palumbo

Freedom of movement border integrated management
Freedom of movement of European citizens as well as of third country nationals in the EU remains a central and controversial issue. The integrated external border management is progressively framed at legislative level (borders, visas..) and implemented at operational level also thanks to the emerging role of Frontex and of the new European networks (SIS II – VIS). New opportunities as well as risks emerge in the definition of the EU-Member State management of internal and external borders

Speaker: Luisa Marin

Debate

European Migratory policies
Objectives, legal framework and operational setting of the EU-Member State policies. Five years after the European Pact on Asylum and Migration (2008), what lessons can be drawn for the next (2015-2019) multiannual programme? What improvements can be foreseen for the EU migration governance at central and national level? How are the Member States implementing the EU legislation? What are the main external aspects of the EU migration policy?

Speaker: Henry Labayle

The European common asylum system (and of EASO and EURODAC)
After the first generation of EU “minimum” rules the EU has now established the Common European Asylum System foreseen by Art. 18 of the Charter and Art 78 of the TFEU by taking account of the jurisprudence of the Luxembourg and Strasbourg Courts. At national level high standards should be granted to avoid the problems found for instance with Greece when implementing the Dublin system. The principle of solidarity still seems to be underexploited. Attention should be paid to the new role of EASO (Reg. (EU) No 439/2010) as well as to the implementation of the EURODAC system.

Speaker: Patricia Van de Peer

Debate

July 11
An European space of security and justice
09h30 am -06h30 pm

Judicial cooperation in civil matters; complement of the freedom of movement?
Judicial cooperation in civil matters has been one of the most dynamic domains after the entry into force of the Lisbon Treaty. Enhanced cooperation took place in matrimonial matters and intellectual property. Special attention will be reserved for the recently revised Brussels I Regulation (which abolished the “exequatur” procedure) as well as for the new Regulations on succession and wills and on mutual recognition of protection measures in civil matters.

Speaker: Filomena Albano

Internal security strategy: crisis prevention and management.
Special attention will be paid to the implementation of the 2010 European Internal Security Strategy and its impact on the cooperation between the EU institutions and agencies as framed by the “Policy Cycle” for the 2013-2017 period. There will also be a presentation of the implementation of PRUM cooperation and of the “availability principle” as well as the way how security- and intelligence-related information is exchanged notably within the framework of the so-called “Swedish Initiative”. The role played by COSI, Europol and of the internal security fund will be presented and debated together with the impact of the up-coming “Lisbonisation” of EU measures adopted before the entry into force of the Lisbon Treaty

Speaker: Sandro Menichelli

Debate

Judicial Cooperation in criminal matters
How judicial cooperation in criminal matters has been developed between countries of different legal traditions (civil and common law). Problems and opportunities arising at each level of cross-border cooperation (open coordination, mutual recognition, legislative harmonisation). The European jurisprudence (Strasbourg and Luxembourg Courts) as well as the impact of the EU Charter. The implementation of the first post-Lisbon measures and impact of the Lisbonisation of former third pillar measures in this domain. Preserving the independence of the judiciary: towards European-wide judiciary quality evaluation systems.

Speaker: Luca De Matteis

The European Public Prosecutor: a pattern also for Member States?
The OLAF Reform and the Eurojust “Lisbonisation” are intermediate phases towards the creation of the European Public Prosecutor’s office (EPPO) (Art. 86 TFEU). The latter will be empowered to bring action also before national courts. The European legislation will determine the general rules applicable to the European Public Prosecutor’s Office, the conditions governing the performance of its functions, the rules of procedure applicable to its activities, as well as those governing the admissibility of evidence, and the rules applicable to the judicial review of procedural measures taken by it in the performance of its functions. What will be the impact, the risks and opportunities arising from the creation of this new European Institution?

Speaker: Claudia Gualtieri

How to empower the EU citizens when EAFSJ are shaped and implemented ?
Round Table with the Intervention of Paul Nemitz, Antonie Cahen, Robert Bray Tony Bunyan

Final Debate

PRESENTATION OF THE COURSE

The Treaty of Lisbon and the Charter of Fundamental Rights of the European Union, which entered into force on 1 December 2009, constituted an important step both at the legal level and at the political level in the evolution of the European Union. The aim of the EU now is not only “… to promote peace, its values and the well-being of its peoples”, having presided over, since the end of the Second World War, the longest ever period of peace between European States, but also to achieve “… an area of freedom, security and justice with respect for fundamental rights and the different legal systems and traditions of the Member States.”

After the Treaty of Lisbon, the policies already provided for in the Maastricht Treaty within the framework of the so-called “third pillar” and originally focused mainly on intergovernmental cooperation and cooperation between administrations, are now to evolve into European “common policies” directly towards the interests of the individual, who is placed “at the heart of European integration.”

It is a Copernican revolution in so far as the Union is called not only to offer “… its citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime” (Art. 3 TEU and Title V TFEU) but also to promote (and not only protect) fundamental rights and prevent all forms of discrimination (Art. 10 TFEU) and strengthen EU citizenship (Arts 18-25 TFEU) and with it the democratic principles on which it is based (Title II TEU).

The fact that the competences related to the ASFJ are now “shared” with the Member States (Art. 4 TEU) and are to be focused on the rights of the person brings about a daily interaction between the national and the European level, bringing into play national and European values, rights and objectives.

The process of reciprocal hybridization between the nascent European model and traditional national models is anything but politically painless, as the experience of almost thirty years of Schengen cooperation shows.

The aim of this Summer School is to assess the progress and difficulties encountered by the European institutions and the Member States in implementing the Charter of Fundamental Rights and the objectives set by the European Council in the “Stockholm Programme” of 10 December 2009.

Based on this evaluation, we intend to shed light on the possible priority bearing in mind that:
– it will be necessary to adjust the secondary legislation of the European Union in the light of the values and principles which are now enshrined in the Lisbon Treaty and the Charter of Fundamental Rights (“Lisbonisation”);
– we shall be in the final phase of the accession of the EU to the European Convention on Human Rights;
– at the beginning of the next legislature, we will be entering into a new phase in the European judicial area with the negotiations on the establishment of the European Public Prosecutor and the transition to the ordinary legislative procedure with regard to measures of police and judicial cooperation in criminal matters adopted before the entry into force of the Treaty (the transitional arrangements end on 1 December 2014);
– Member States which have hitherto enjoyed special treatment (Ireland, Denmark and the United Kingdom in particular) should have clarified their position with respect to the new phase of the ASFJ and the Schengen cooperation.

In the course of the next legislature it will also be necessary to promote greater consistency between European and national strategies related to the European area of freedom, security and justice. Just as in the economic sphere, the divergence of national public policies has put at risk the credibility of the common currency, the diversity of standards for the protection of the rights in Member States is straining mutual trust, the application of the principle of mutual recognition and the very credibility of the nascent “European model”. The strengthening of the operational solidarity between Member States’ administrations – which is being developed for example within the framework of Schengen cooperation – must be accompanied by legislative, operational and financial measures that implement solidarity between European citizens and third-country nationals on the territory of the Union.

In this perspective, Italy may play an important role as the new multi-annual programme for 2015-2019 is to be adopted by the second half of 2014 under the Italian Presidency.

Speakers:

Academics:
Valerio Onida, Former President of the Italian Constitutional Court
Giuseppe Cataldi, Pro-rettore Università L’Orientale (Napoli)
Oreste Pollicino, Public comparative law Professor  (Università Bocconi – Milano)
Nicoletta Parisi, EU Law Professor  (Università Catania)
Francesca Ferraro, Visiting Professor (Università L’Orientale – Napoli)
Dino Rinoldi, International Law Professor  (Università Cattolica – Piacenza)
Valentina Bazzocchi, PHD EU Law (Alma Mater Università Bologna)
Deirdre Curtin, Professor of European Law (University of Amsterdam – NL),
Luisa Marin, Assistant Professor of European Law (University of Twente – NL)
Henri Labayle, Professeur de Droit international et européen (Université de Pau et des
pays de l’Adour – France)

Representatives and officials of European and national administrations:
Ezio Perillo (European Civil Service Tribunal)
Stefano Manservisi DG of the Commission DG Home
Paul Nemitz Director at the Commission DG Justice
Antoine Cahen, Patricia Van Den Peer, Claudia Gualtieri (European Parliament)
Filomena Albano, Luca De Matteis, Lorenzo Salazar (Italian Justice Ministery)
Sandro Menichelli (UE Italian Permanent Representation )
Vanna Palumbo (Garante Privacy IT)

Representatives of Civil Society:
Tony Bunyan, Director of Statewatch,Emilio De Capitani, FREE Group Secretary and Visiting Professor (Università L’Orientale – Napoli)

BuonGoverno

European “Smart Borders” project : negative opinion of the Meijers Committee

The  Meijers Committee (*) has recently advised the members of the European Parliament to vote against the “Smart Borders” proposals (COM(2013) 95, 96 and 97).  

In its letter it has expressed its deep concerns with respect to the:
proportionality and practical feasibility of the proposals;
coherence of the proposals with existing databases;
– applicable standards of data protection for the data subjects;
– conditions for transmission of personal data to third countries;
broad discretion as regards the issuing of the registered traveller status;
– proposed amendments in the Schengen Borders Code;
– possible access to the Entry/Exit system for law enforcement purposes.

 Note on the Smart Borders proposals (COM(2013) 95 final, COM(2013) 96 final and COM(2013) 97 final)

 1. Introduction

 The proposed Entry/Exit System (EES) processes alphanumeric data and fingerprints upon entry and exit of the third-country national, aiming to improve the management of the external border and the fight against irregular migration and more specifically to contribute to the identification of any person who may not, or may no longer fulfil the conditions of duration of stay within the territory of the Member States (so-called “overstayers”). This would effectively mean that the EES would collect the personal data of all third-country nationals entering the Schengen area. The Registered Traveller Programme (RTP) enables pre-vetted individuals to cross borders faster than other third-country nationals and aims to offset the additional constraints by the EES on cross-border travel. According to the European Commission, yearly 109 million third-country nationals without a visa and 73 million third- country nationals with a visa cross the EU borders.

The costs of the Smart Borders proposals envisaged by the European Commission are 1.1. billion euro.1

The sheer amount of data collected, in combination with the high costs of establishing Smart Borders, require compelling justifications. The EU legislator is obliged to observe proportionality as a general principle of EU law. This means that the measure must be suitable and necessary to achieve the aim it pursues, and should not impose “a burden on the individual (…) excessive in relation to the object sought to be achieved”.2

The Meijers Committee is of the opinion that the Smart Borders proposals are neither proportionate, nor suitable to its stated aims and raise severe data protection concerns. Therefore, the Committee advises the European Parliament to vote against the proposals. 

 2. Proportionality and practical feasibility

 The proposals intend to facilitate the entry of “bona fide” travellers at the external borders and shorten waiting times.3 The EES is however likely to result in longer queues for third- country nationals, since all third-country nationals – also those that are not under a visa obligation – will be required to provide their fingerprints at the border. The RTP will only off-set waiting time to a limited extent, as only a limited number of third-country nationals will enrol in that programme.4 There is also a lack of clarity on the size of the problem of overstay which the EES intends to tackle. There are few reliable data on the numbers and profile of overstayers and there is very little research on the financial and social costs of the presence of third country nationals staying on an irregular basis in the EU.

Most importantly however, there is no direct link between the identification of overstayers and the stated objective of tackling irregular migration. The extent to which the information from the EES can help to implement and execute return proceedings is limited. The identification of overstayers does not provide authorities with any information as regards their location within the whole Schengen territory, nor does it facilitate return procedures. When a third county national is apprehended on suspicion of irregular stay, already now national authorities are able to establish the (ir)regularity of stay by examining the entry and exit-stamps on a person’s passport as well as by consulting the visa-stickers and VIS. Moreover, the mere identification of overstayers does not provide a solution in the situation where a third state does not cooperate in return proceedings. The side-effect of being able to collect statistics on overstay does not by itself justify the collection of large amounts of personal data.

Lessons need to be learnt from the experience with the setting up and practical operation of already existing databases. The European Commission itself has stated that a fully operational and developed Visa Information System (VIS) is “a prerequisite for the implementation of a Smart Borders System”.5 The Meijers Committee notes that the new generation Schengen Information System (SIS II) has only become operational as of 9 April 2013, the VIS is still in the process of being rolled out and access to EURODAC for law enforcement purposes has only been decided upon recently.6 There is therefore insufficient information to assess the functioning of existing databases and the added value of the current proposals. As required by the Hague Programme new centralised databases should only be created on the basis of studies that have shown their added value.7

Finally, the Meijers Committee wishes to point out the difficulties with the implementation of other information systems, most notably the SIS II, which was plagued with delays and cost over-runs due to technological problems. The United States has been unable to successfully implement a fully-functioning entry/exit system despite costly efforts to do so over the past decade.8 These experiences raise serious doubts as to the practical feasibility and cost-effectiveness of the current proposals. 

3. Coherence with existing EU legislation

The Smart Borders Package will not function in isolation. Close attention has to be paid to the interaction with other databases in the Area of Freedom, Security and Justice. The proposals do not stipulate the consequences of an entry as overstayer in the EES for the inclusion in other data bases or the possible issuing of a return decision and/or entry ban under the Return Directive 2008/115. The registration of entry bans into the SIS should always be subject to the principle of proportionality and requires an individual assessment, in accordance with Articles 21 and 24 of the SIS II Regulation. However, national practices with regard to the SIS and the application of entry bans show a diverging approach in the EU Member States.

In an earlier opinion, the Meijers Committee has already pointed out the legal uncertainty in relation to the issuing of an entry ban and its inclusion in the SIS.9 The Meijers Committee expects a similar problem with respect to the reporting of overstayers in the EES. When overstay in the past is an element to be taken into account when issuing a (new) Schengen visa to a third-country national, the risk exists that the fact that he or she is reported in the EES, will lead to an automatic refusal of a visa, not taking into account his or her personal circumstances or reasons to visit the EU.

 The Meijers Committee further points to the relationship of the EES and the reintroduction of internal border controls, regulated in Article 28 of the Schengen Borders Code. According to this provision, the obligation to enter the entry and exit data of the third country- national in the EES would apply mutatis mutandis

 Close attention also needs to be paid to the possible consequences of EES for EU citizens and especially third country family members of EU citizens. The proposals should guarantee that the application of the EES does not interfere with the rights laid down in Directive 2004/38 EC. Moreover, the Meijers Committee questions whether the EES can be applied to Turkish nationals falling under the Association Agreement and their family members in light of the standstill clause in Decision 1/80 and the nondiscrimination clause in Article 9 of the Association Agreement.

 Finally, the Smart Borders proposals refer to Directive 95/46 as the applicable legal framework for data protection. These rules are however under review and set to be replaced by a new general legislative framework on data protection (COM(2012 9,10 and 11). The Meijers Committee recommends that the adoption of proposals involving the storage of large amounts of data is postponed until the final adoption of clear and uniform rules on data protection. Following the adoption of a new legal framework, the Smart Borders proposals should be re-assessed in the light of the new data protection framework.

 4.Data protection rights

 It is established case law of the ECtHR that the mere collection, storage and processing of personal data amounts to an interference with the right to privacy (art. 8 ECHR and art. 8 EU Charter). Such interference can only be justified when it serves a legitimate aim and is proportionate to this aim. The data must be relevant and not excessive in relation to the purposes for which they are stored and preserved in a form no  longer than is required for the purpose for which those data are stored.10 As mentioned above, under point 2, the necessity and the proportionality of the Smart Borders proposals has not been established.

The Meijers Committee is of the opinion that the proposal for an Entry/Exit system does not offer sufficient guarantees to the data subject and leaves too much discretion to the Member States. In the following, the Committee makes a few comments on specific provisions relating to data protection in the proposal for an Entry/Exit system.

 § 4.1. Article 20- the storage of data

 Article 20 of the proposal for an EES regulates that data will be stored in the EES for six months when the third-country national exits the territory of the Member States within the authorised period of stay. Data shall be stored for a maximum period of five years when there is no exit-record following the date of expiry of the authorised period of stay. The unconditional application of a five years data retention period may result in a disproportional limitation of the individual freedom of movement. It could mean that an individual may not be able to re-enter the EU during five years, also when a person has overstayed his or her authorised stay for a negligible amount of time or for causes not attributable to him or her.

 § 4.2. Article 21- the possibility to amend data in EES

 The proposal is flawed as regards the rights granted to the data-subjects in case of justifiable overstay or of an erroneous entry in the EES. It is crucial that a third-country national has the possibility to request the,competent authorities to delete or amend such data and is given an effective judicial remedy, including interim measures, if the authorities refuse to amend the data, especially if in the future data stored in EES can be accessed for law enforcement purposes. Article 21 of the proposal includes these rights, but its text provides the Member State a wide discretionary power; notions such as “without delay”, “unforeseeable and serious event” and “in case of errors” can be interpreted in many different ways.

Also, the decision on which evidence shall be admitted to support the claim for amendment of the data should not be left to the discretion of the Member States. Considering that exceeding authorised stay might lead to the expulsion of the third country national, a clearly defined provision, including the possibility to grant suspensive effects to the appeal lodged on EU level is necessary. Finally, the Meijers Committee points at the important problem of the practical accessibility and implementation of the rights in Article 21, especially when the individual concerned has left the EU territory.

 § 4.3. Article 27- transfer of data to third countries

 The Meijers Committee is concerned about the wide discretionary power left to the national authorities of the Member States with regard to the transfer of personal data from the EES to third countries, as provided in Article 27 of the proposal. This discretionary power undermines the general principle that data shall not be transferred to third countries, third parties or organisations. The transfer of data to third countries is allowed for the purpose of proving the identity of third-country nationals, including for the purpose of return. The conditions to allow for such communication do not offer sufficient guarantees. It has not been substantiated why the transfer of EES data to third countries is necessary for the return of third- country nationals.

 Furthermore, Article 27(3) regulates that the transfer of third countries shall not prejudice the rights of, refugees and persons requesting international protection, in particular as regards non-refoulement. The Meijers Committee notes that it should be clarified how and by whom the decision on the transmission of data to third countries and the risk of non-refoulement will be examined and if the Member State involved will be held responsible when something happens to the person upon return to his or her country of origin.

 § 4.4. Articles 29 and Article 32- Liability and penalties

 Article 29 on the liability for suffered damage as a result of an unlawful processing operation or any act incompatible with the EES does not offer a strong position to the third- country national; Member States will be exempted from liability if it proves that it is not responsible for the event giving rise to the damage. This again leaves too much room for interpretation, especially because no clarity is given on the burden of proof, and the possibility to claim compensation is left to national law.

Article 32 provides for the possibility for the Member States to lay down rules on (administrative or criminal) penalties applicable on infringements of data protection provisions in this Regulation. These penalties should be “effective, proportionate and dissuasive”. While this formulation is consistent with EU law, the Meijers Committee finds that future evaluation mechanisms of the EES should assess carefully whether national provisions implementing this provision do guarantee in an effective manner European data protection rules.

 § 4.5. Role of the supervisory authorities

 Considering the current use and development of large-scale databases in the EU and other instruments involving data processing, such as the API Directive, the VIS and Eurodac, the Meijers Committee underlines the excessive increase of workload of the national supervisory authorities and the EDPS. This development carries the risk that supervisory authorities will not be able to exercise their tasks effectively. Therefore, the financial and personal means which are necessary for data protection authorities in order to be able to perform their tasks effectively with respect to the whole data protection framework, should be taken into account and guaranteed.

 5. Access to Entry/Exit System for law enforcement purposes and the possibilities offered by Privacy by Design

 The current proposal for an EES clearly indicates that in the near future access to the Entry/ Exit System for law enforcement purposes will be considered. This can be derived from the Impact Assessment, where access for law enforcement is already explored and recital (11) where it is set out that the technical development of the system should be as such that in the future access for law enforcement purposes will be possible. The Meijers Committee regrets the premature reference to this possibility because it obscures the discussion on the desired form and the necessity and proportionality of the system as it stands.

As already expressed in earlier comments, the Meijers Committee underlines its strong objections to provide access for law enforcement purposes.11 Access for law enforcement purposes to the EES containing data of a large group of innocent persons is to be considered as a disproportional limitation of their privacy and data protection rights, including the principle of purpose limitation. In this context, the Meijers Committee recalls that preliminary questions have been submitted by national courts in Germany and the Netherlands to the Court of Justice of the European Union on the implementation of the Regulation (EC) No 444/2009 on standards for security features and biometrics in passports and travel documents issued by the Member States.12 In these questions, the national courts voice their concerns about the proportionality of the central storage of biometric data in passports and travel documents and their use for other purposes and about the relationship of the Regulation with the rights to privacy and protection of personal data safeguarded under Article 7 and 8 of the Charter of Fundamental Rights and Article 8 ECHR.

 Although access for law enforcement purposes is not regulated in the current proposal, it is required that a technical system be set up in order to allow such access (Recital 11). In view of this, the Commission should device solutions which accommodate privacy by design,13 by recurring to Privacy Enhancing Technologies (PET).14 For example, in this case, it should be considered to use fingerprint identification technologies coupled with the storage of templates (e.g. using hash functions) of fingerprints, instead of the storage of full fingerprints in the database. Besides enhancing security, by reducing the chance to compromise biometric data, this will offer some level of data minimisation and, consequently, will benefit proportionality for a database storing data of persons which are not suspected of any crime.

 6. The Registered Traveller Programme (COM (2013) 97 final)

 The Meijers Committee has also taken note of the proposal for a Regulation establishing a Registered Traveller Programme. Recognizing the usefulness of facilitating the swift entrance of frequent third- country travellers to the EU, the Meijers Committee questions whether Article 12 of the proposal does not give too much discretion to the competent authorities in deciding on an application for such a programme. Article 12 (d) for example provides that the applicant has to prove “his/her integrity and reliability, in particular a genuine intention to leave the territory in due time”, which can be interpreted in many different ways. The Meijers Committee is of the opinion that the provisions must be more concrete, in order to avoid discretionary decisions on the admission to the Registered Travellers Programme.

 7. Proposed amendments to the Schengen Borders Code (COM (2013) 96 final)

 The amendments to the Schengen Borders Code aims to bring the Code in line with the proposals for an EES and an RTP. The Meijers Committee notes that not only technical amendments are proposed, but also amendments on the substance, considerably extending the possibilities for border guards to check whether the third country national is an overstayer. For instance, border guards now always need to verify that the third country national did not exceed the maximum duration of authorised stay in the territory of the Member States upon exit of the territory (addition para. IV to Article 7(3)(b)), whereas in the current provision this is not compulsory (Article 7(3)(c)(ii). This extended obligation is not in line with the aim to shorten waiting lines at the borders.

 The Meijers Committee is concerned about the amendments to Article 11 of the Schengen Borders Code. In the current Article 11 a presumption of irregular stay is provided for in the situation where a thirdcountry national does not bear an entry stamp, whereas in the proposed amendment not only the lack of an entry record in the EES presumes irregular stay, but also where there is an entry record but there is no exit date following the date of expiry of the authorised length of stay. The Meijers Committee notes that this considerably extends the possibilities for authorities to accept a presumption of irregular stay. This underlines the importance of entering data in the EES correctly and accurate, but also implies that clearly defined safeguards should be provided for to be able to rebut the presumption and to have an effective judicial remedy if the rebuttal of the presumption is not accepted.

 The Meijers Committee questions whether the criterion of providing “credible evidence, by any means, such as transport tickets or proof of his or her presence outside the territory of the Member State” does not leave too much discretion to authorities to decide on this issue, especially because of the serious consequences: the third- country national may be expelled by the competent authorities from the territory of the Member State concerned. The Meijers Committee considers that it should be investigated first how the Member States have applied this provision so far and whether it has lead to diverging practices.

 o-0-o

 1 Impact Assessment Proposal for a Regulation establishing an entry/exit system to register entry and exit data of third- country nationals crossing the external border of the Member States of the European Union (SWD (2013) 47 final), p. 11 and p.45.

2 P. Craig, G. de Búrca, EU LAW, Oxford, OUP, 2008, p. 545.

3 ‘Smart Borders’ enhancing mobility and security’, press release European Commission, 28 February 2013.

4 Dr. B. Hayes, M. Vermeulen, “Borderline EU Border Surveillance Initiatives », Heinrich Böll Stiftung, May 2012.

5 COM (2011) 680 final, p.7.

6 Regulation (EC) No 1987/2006 on the establishment, operation and use of the second- generation Schengen Information System (SIS II), Regulation (EC) No 767/2008 concerning the Visa Information System (VIS) and the exchange of data between Member States on short-stay visas and amended proposal for a Eurodac Regulation for the effective application of the Dublin Regulation and  to request comparisons with Eurodac data by Member States’ law enforcement authorities and Europol for law enforcement purposes (COM(2012) 254).

7 The Hague Programme, Strengthening Freedom, Security and Justice in the European Union (2005/C 53/01).

8 GAO report number GAO-09-1002T: ‘Homeland Security: Despite Progress, DHS Continues to Be Challenged in Managing Its Multi-Billion Dollar Annual Investment in Large-Scale Information Technology Systems’(15 September 2009).

9 CM1202 Note on the coordination of the relationship between the Entry Ban and the SIS- Alert- An Urgent need for Legislative Measures, 8 February 2012.

10 ECtHR S and Marper v. the UK, 4 December 2008, application nos. 30562/04 and 30566/04. See also ECJ Huber v. Germany, C-524/06, 16 December 2008.

11 See also a.o. CM1216, CM0910 and CM0714.

12 Dutch Council of State, case 201205423/1/A3, 28 September 2012, C-447/12 and Verwaltungsgericht Gelsenkirchen, C-291/12 Schwarz v. Stadt Bochum, 15 May 2012.

13 See the Opinion of the European Data Protection Supervisor on Promoting Trust in the Information Society by Fostering Data Protection and Privacy, at: http://www.edps.europa.eu/EDPSWEB/webdav/site/mySite/shared/Documents/Consultation/Opinions/2010/10-03-19_Trust_Information_Society_EN.pdf.

14 See MEMO of the Commission Privacy Enhancing Technologies (PETs), Reference: MEMO/07/159, at; http://europa.eu/rapid/press-release_MEMO-07-159_en.htm#fn3; see also the Study on the economic benefits of privacy-enhancing technologies (PETs), Final Report to the European Commission, DG Justice, Freedom and Security, Prepared by London Economics,2010 at: http://ec.europa.eu/justice/policies/privacy/docs/studies/final_report_pets_16_07_10_en.pdf; see also Commission’s Communication COM(2007) 228 final, on Promoting Data Protection by Privacy Enhancing Technologies (PETs), at: http://eur-lex.europa.eu/LexUriServ/site/en/com/2007/com2007_0228en01.pdf.

 

 

(*) The Standing Committee of Experts on International Immigration, Refugee and Criminal law, was established in 1990 by five NGO’s: the Dutch Bar Association, the Refugee Council, the Dutch section of the International Commission of Jurists, the Netherlands Centre for Immigrants/FORUM and the National Bureau against Racism (LBR).The Committee is independent. Most of its members are lawyers, working at Law Faculties in the Netherlands or in Belgium. The Standing Committee monitors developments in the area of Justice and Home Affairs and presents its opinion to the Dutch Parliament, the European Parliament, or parliaments in other Member States (e.g. the House of Lords), to the Dutch government, the European Commission and to other public authorities and NGO’s.

 

CALL FOR A TRUE EUROPEAN AREA OF FREEDOM SECURITY AND JUSTICE

By the “Fundamental Rights European Experts Group” (FREE Group) (see below)
“Let’s be driven by our values and not by our fears”

1. Three years after Lisbon the objective of an EAFSJ is still far away…

Three years after the entry into force of the Lisbon Treaty and of the European Charter of fundamental rights one can wonder if the European Union and its Member States are really committed to the objective of building the European Freedom Security and Justice Area. It is worth recalling that this objective dates back to 1997 when the Amsterdam Treaty was signed, but it has since then been substantially upgraded by the Lisbon Treaty.

After years of hard negotiations between the MS the EAFSJ has been tightly linked to a newly binding Charter of fundamental rights and some of the previous political, legal and democratic flaws have been solved. For three years the qualified majority voting has been the normal Council decision-making rule, the EP is a full co-legislator and the Commission and the European Court of Justice can fully play their role.

2. A deceiving outcome on quantitative and qualitative terms..

However notwithstanding these undeniable constitutional advances, the EU recent activity is quite deceptive both in quantitative as in qualitative terms. The EU and its MS seem still in a transitional and survival phase than in the long awaited building phase of true EAFSJ.

On quantitative aspects suffice it to note that since the beginning of the legislative term less than fifty legislative proposals have been submitted and only twenty have until now been adopted (1). If this trend continues one can wonder if the European Parliament and the Council will be able to adopt in the last 18 months of this legislature all the texts currently on the table not to speak of the proposals that the Commission has announced notably from the second half of 2013.

But much more concerning are the qualitative aspects of the institutional activity in a domain which is deemed to be now the core of the European public space.

To start with some positive aspects it is more than likely that the new Common European Asylum System foreseen by the art. 78 TFEU (and by the art.18 of the Charter) will be adopted before the end of this year (2). Progress has also been achieved with the adoption of the first measures dealing with the suspect’s rights in criminal proceedings (3) as well as in the judicial cooperation in civil matters (4) and on the establishment of new Agencies (5).

These decisions have often been taken after lengthy and painful negotiations and have been accompanied by the conclusion of international agreements as happened with the EU-US TFTP and PNR agreements. However a positive assessment on the latter is not obvious and the risks has been denounced that the final outcome could still not comply with the European Charter as well as of the European Convention of Human rights standards (6). The EP rejection of the ACTA agreement (7) has confirmed that the EU institutions often do not share the same vision of the balance to be struck between freedom and security.
Continue reading “CALL FOR A TRUE EUROPEAN AREA OF FREEDOM SECURITY AND JUSTICE”

Illegal migration: the “Returns” Directive in the recent case-law of the ECJ

by: Rosa Raffaelli

The judgment of the ECJ in the Achughbabian case, which follows closely the recently issued El Dridi judgment, has further clarified the scope of application of the Returns Directive (Directive 2008/115/EC).

The Directive, adopted under the co-decision procedure by the European Parliament and the Council, aims at establishing common standards and procedures to be applied in Member States for returning illegally staying third-country nationals (Article 1).
The Directive therefore requires States to issue a return decision to any irregularly staying third-country national, save in exceptional circumstances (Article 6).

The return decision must – as a general rule – include a period for voluntary return of between 7 and 30 days: during this period, the immigrant may not be forcibly expelled but he/she is expected to leave the national territory “voluntarily.” If the immigrant does not comply with the order, or if (exceptionally) no period for voluntary return is granted, States must take all necessary measures to enforce the return decision, including, if strictly necessary, through coercive measures (Article 8).

While the return procedure is ongoing, the third country national may also be detained, if less coercive measures appear insufficient to ensure the positive outcome of the procedure. Articles 15 and 16 provide for a number of guarantees concerning such detention, including a limit on its maximum length (6 months, exceptionally to be extended to a maximum of 18) and the possibility for judicial review, as well as establishing the principles according to which detention may only last as long as there is a reasonable prospect of removal and is to take place in specialized detention facilities. The Directive also provides for the possibility of issuing re-entry bans, lasting for up to 5 years, which are effective on the whole territory of the EU.

The compromise leading to the adoption of the directive was extremely difficult to achieve – so much so that the European Parliament, in order to encourage States to find an acceptable compromise, “froze” the European Return Fund until a directive was approved on the issue. Moreover, the final outcome clearly left many member States unsatisfied, as emerges from the low level of implementation of the Directive even after the deadline for its transposition expired (in December 2010).

Interested parties were, however, left with the possibility of raising the issue of the compatibility of national measures applicable to them with the EU Directive, leading to a surprising number of requests for preliminary rulings being filed to the ECJ.
Continue reading “Illegal migration: the “Returns” Directive in the recent case-law of the ECJ”

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.

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.

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/