Category: 7.2 Irregular immigration

EU Asylum Policy: In Search of Solidarity and Access to Protection

ORIGINAL PUBLISHED ON Migration Policy Centre, EUI

by Evangelia (Lilian) Tsourdi and Philippe De Bruycker,

1.State of play

Growing numbers of the forcibly displaced

Numerous crises and conflicts worldwide have forced more people from their homes, in the last years and months, than at any time in the last two decades1. The Syrian conflict has, for example, triggered the world’s largest humanitarian crisis since World War II, leading 3.9 million refugees to flee and leaving an estimated 12.2 million persons in need of humanitarian assistance inside Syria2. At the same time, significant numbers have had to flee other countries including Iraq, Afghanistan and Eritrea in order to seek asylum3.

The vast majority of those forcibly displaced outside their country of origin or residence remain in neighboring countries. The Syrian crisis is a telling example in this respect. Countries bordering Syria are coming close to saturation, particularly Lebanon, which hosts the largest per capita refugee population in the world with almost 1.2 million Syria refugees4. It has to be remembered that the Syrian refugee crisis comes just after the Iraqi refugee crisis of 2006-2009, which had displaced around two million Iraqi citizens towards the very same countries: Syria, Jordan, Lebanon, Turkey and Egypt5.

It is against this backdrop that the relative rise in asylum applications to the EU28 and the EU’s advancement in the creation of a common asylum system, as well as its role as a global protection actor should be assessed.

Is a Common European Asylum System in place?

The incremental development of a CEAS has been agreed since the Treaty of Amsterdam and the Tampere conclusions of 19997. The first stage of development revolved around efforts at legal harmonization on the basis of shared minimum standards. However, a common asylum procedure and a uniform status valid throughout the EU were seen as the end objective. It became apparent that legal harmonization alone would not be enough to bring about this result. Therefore, the development of other elements, and most notably, practical cooperation and enhanced solidarity came up.

It was gradually recognized that there were a number of advantages in joining forces in the asylum area. There was, of course, the rather ‘inward-focused’ motivation of establishing a common asylum system in order to limit secondary movements of protection seekers that had reached EU territory. But there were, also, more ‘outward looking goals’. Notably, these were: coordinating action in order to have a strategic impact externally; collaborating with third countries in the management of migration flows; and, less prominently, boosting the possibilities of legal access to the EU for international protection seekers.

Examined macroscopically, the CEAS is an advanced regional protection framework, both legislatively and policy-wise, that has the potential to influence the international refugee protection regime. Member States have sought to devise concrete mechanisms to allocate responsibility and they have elaborated detailed norms in areas that are not covered by the 1951 Refugee Convention, such as asylum procedures. They possess an institution, the Court of Justice of the EU, which is tasked with authoritatively interpreting the common norms, in an area where there is no ‘international refugee Court’. They have managed to move from ad-hoc support and exchanges of good practice to the institutionalization of practical cooperation efforts, by creating an EU agency. Finally, they have begun to coordinate their actions externally in an effort to manage, as much as possible, migration flows and to build protection capacity in third countries.

Nevertheless, the EU’s asylum system is riddled with problems that hold back its development. First of all, the responsibility-allocation mechanism that has been devised fails to share responsibility equitably between the Member States; it also largely disregards the realities faced by protection seekers and their preferences. More broadly, no objective discussion of what is a fair share of responsibility has ever taken place. This creates disincentives: on the one hand, for Member States to respect the obligations they have undertaken legislatively and, on the other, for protection seekers to abide by the rules, which do not take into account their links to specific Member States. Beyond the legislative and policy framework, the differentiated level of economic development between Member States, the discrepancies in their social assistance systems and the varying levels of investment in their asylum processing and reception systems, have led to widely diverging recognition rates and reception conditions. This has undercut the objective of curbing secondary movements between Member States; on the contrary it has fuelled them.

Finally, the EU’s external asylum dimension remains underdeveloped and is disproportionately focused on capacity building, while offering meagre opportunities for legal entry to protection seekers. On the contrary, the various measures the EU has taken as part of its external border control or visa policies have stifled access to protection and have led asylum seekers to risk their lives in order to reach EU territory. The impact of these policy choices is witnessed most vividly in the loss of life in the waters of the Mediterranean. Mediterranean crossings are not new; however, there an ever-increasing number of deaths in conjunction with a record number of migrant crossings8.

  1. Why is reform still necessary?

    2. Continue reading “EU Asylum Policy: In Search of Solidarity and Access to Protection”

THE COMMISSION’S NEW EU MIGRATION STRATEGY: WAITING FOR THE GREAT LEAP FORWARD

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

by Steve PEERS

Today this Commission releases its EU immigration strategy. The final text is not available yet, but here are my thoughts on the earlier version, leaked on Monday. I will update them if the final strategy differs significantly from the leaked draft.

Content

The migration strategy is divided into three parts. First of all, it sets out ‘immediate action’ to address the migrant death crisis. Secondly, it describes an agenda for immigration management in four areas: irregular immigration, border management, asylum and legal migration. Finally, it briefly sets out some long-term objectives.

Immediate action

The ‘immediate action’ section largely elaborates upon the strategy already defined by EU leaders in response to the deaths in the Mediterranean. As I discussed already, this is a modest response to the crisis, focussed mainly upon enlarging EU interception operations in the Mediterranean and destroying smugglers’ boats.

However, the Commission paper suggests more ambition in two areas. First, it wants to go further on the ‘relocation’ of asylum-seekers between Member States. This would mean that frontline states like Italy and Malta do not have to deal with so many asylum-seekers, which would normally be their responsibility under the EU’s Dublin rules on this issue. So on this issue, the Commission will propose by the end of May ‘emergency response’ legislation on the basis of Article 78(3) of the TFEU, which will allocate asylum-seekers coming as part of a mass influx between Member States. These laws will be subject to a qualified majority vote in the Council, but the European Parliament (EP) will only be consulted. The Commission will then follow that up with a proposal by the end of 2015 for a permanent system of relocation, on the basis of the ‘ordinary legislative procedure’, ie the usual powers of the EP. I have already discussed separately the question of whether they would apply to the UK.

Secondly, the Commission wants to go further on resettlement, ie the entry of recognised refugees now in third States into the EU. On this issue, the Commission will make a Recommendation on resettlement, to be followed by a binding proposal for legislation if this proves insufficient. Extra EU funds will be made available to assist resettlement.

Irregular immigration

First of all, the Commission wants to address root causes of irregular migration, by focussing the money the EU already spends on these issues. There is no clear commitment to more spending. Next, the Commission wants to address smuggling of migrants, with an ‘Action Plan’ to be produced by the end of May. The Commission doesn’t mention this, but a review of the current EU legislation on smuggling of migrants is now underway. Also, the Commission wants to take further action to enforce the EU’s Directive on employment of irregular migrants (on the implementation of this Directive, see discussion here).

Also, the Commission wants to address the issue of return, by prioritising countries of origin for readmission treaties with the EU, providing guidelines on the application of the EU Return Directive (see here on implementation of that Directive), and giving the EU Border Agency, Frontex, the power to initiate expulsion missions. The Commission will propose legislation on the latter issue on the basis of an evaluation to be completed by the end of the year.

Border management Continue reading “THE COMMISSION’S NEW EU MIGRATION STRATEGY: WAITING FOR THE GREAT LEAP FORWARD”

(DRAFT) COMMISSION STRATEGY ON EU IMMIGRATION POLICY

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

The following is a leaked draft of the Commission communication on the EU migration agenda which is due to be published on Wednesday 13th May.It might be changed before publication and may also be missing some text.

_____________________________________________________________

  1. Introduction

Throughout history, people have migrated from one place to another. The reasons can vary greatly: political oppression, war, poverty, entrepreneurship, family reunification – every person’s migration tells its own story. Migration impacts society in many different ways and calls for a variety of responses. This Agenda brings together the different steps the European Union should take now, and in the coming years, to meet this challenge.

The immediate imperative must be the duty to protect those in need.  The plight of thousands of migrants putting their lives in peril to cross the Mediterranean has shocked us all. As a first and immediate response, the Commission put forward a ten point plan for immediate action. The European Parliament and the European Council have lent their support to these plans and Member States have also committed to concrete steps to avert further loss of life.

The response was immediate but insufficient. This cannot be a one-off response. Emergency measures have been necessary because the collective European policy on the matter has fallen short. While most Europeans have responded to the plight of the migrants, the reality is that across Europe, there are serious doubts about whether our migration policy is equal to the pressure of thousands of migrants, to the need to integrate migrants in our societies, or to the economic demands of a Europe in demographic decline.

To try to halt the human misery created by those who exploit migrants, we need to exploit the EU’s global role and wide range of tools to address the root causes. Some of these are deep-seated but must be addressed. Globalisation and the communication revolution have created opportunities and raised expectations. Others are the consequence of wars and crises from Ukraine to the Middle East and North Africa. The impact of global poverty and conflict do not end at national frontiers. Europe should continue to be a safe haven for those fleeing persecution but it is also  an attractive destination for economic migrants. Upholding our international commitments and values while protecting our borders and at the same time creating the right conditions for Europe’s economic prosperity and societal well-being is a difficult balancing act that requires coordinated action on the European level.

This calls for a set of core measures and a consistent and clear common policy. We need to restore confidence in our ability to bring together European and national efforts to address migration, to meet our international and ethical obligations and to work together in an effective way. A European solution is essential because these are challenges that no Member State can effectively address alone. But it is clear that we need a new approach. This requires using all policies and tools at our disposal – combining internal and external policies to best effect. This also requires us to show solidarity and shared responsibility. All actors, Member States and EU institutions, need to work together to make a common European migration policy a reality. Continue reading “(DRAFT) COMMISSION STRATEGY ON EU IMMIGRATION POLICY”

Will the EU Migration Agenda (at last) propose to update the EU legislation on smuggling ?

By Isabella MERCONE (FREE Group trainee)

It appears that after the recent tragedies in the Mediterranean, the European Union could finally take action against deaths in the sea, and focus its efforts on the fight against trafficking of human beings. Indeed, in its special meeting on the 23th April, the European Council promised to ‘undertake systematic efforts to identify, capture and destroy vessels before they are used by traffickers’, while the High Representative was invited ‘to immediately begin preparations for a possible CSDP operation to this effect’.[1] 

This statement has been perceived by some scholars as ‘a disproportionate measure’ as it mixes up different legal situation by covering smugglers, traffickers and even pirates in the same legal basket where the legal definition of these crimes is not the same so that this EU strategy looks too hasty and quite  ‘an outrage to human rights and even to the rule of law.’[2] It has still to be seen if such a repressive approach will be endorsed at UN level (as it recently happened with the EU pressure for criminalizing the so-called “Foreign Fighters” phenomenon). The EU High Representative Federica Mogherini will brief the UN Security Council on the issue on Monday (11 May), and for the time being  both the Russian and Chinese representatives and the UN Secretary General Ban-Ki-Moon have already expressed their contrary opinion, by saying that “Apprehending human traffickers and arresting these vessels is one thing, but destroying them would be going too far.”[3]

Smuggling an trafficking look similar but are legally different..

One can then guess if by proposing a bold action such as the destruction of smugglers boats, the European Union is not taking the wrong direction by using military means without a clear legal basis, outside its territory, when the issue should be more framed by criminal law measures be they linked to smugglers or to traffickers. Under this perspective it is worth recalling that, according to international law [4],
– ‘human smuggling’ is recognized as ‘the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident’, while
– ‘human trafficking’ is ‘the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.’[5]

This is to say that the difference between the two phenomena could be often very subtle, because both of them usually concern the transport of persons from one country to another. However, the different purpose is clear: while the smuggler simply aims at receiving the benefit for the assistance provided for the illegal entry in another country, human trafficking requires evidence of the intent to exploit the trafficked person.
This is why human trafficking and human smuggling differ, although in the real life they can often overlap [6]: because, even if many desperate people are looking for the services provided by smugglers,  not all of them are (fortunately) victims of trafficking, and they deserve different kind of support. Regrettably,these days the public debate and the press present these two different legal situations as if they were the same.
On his side, the European Union, even if it has established a broad legal framework concerning trafficking in human beings[7], has regrettably “forgot” to update its legislation on human smuggling, to effectively tackle this growing phenomenon.

An outdated EU legal framework for smuggling

It is worth recalling that the EU legal framework on smuggling (so-called “facilitators package”) dates back to 2002 and is composed by two [8]measures:

– Council Directive 2002/90/EC, that provides a common definition of the offence and requires Member States to adopt effective sanctions upon any person who intentionally assists a third-country national ‘to enter or transit across’ a Member State ‘in breach of the laws of the State concerned on the entry or transit’ of foreigners, and any person ‘who, for financial gain, intentionally assists’ a third-country national to ‘reside within’ a Member State in breach of its national laws on residence. Identical sanctions must also be applied to instigators or accomplices and those who attempt to commit the activities in question.There is a ‘humanitarian’ exemption, applying ‘where the aim of the behaviour is to provide humanitarian assistance to the person concerned’. But this exception is optional, and only applies to the first category of offence.[9]

– Framework Decision 2002/946/JHA, requires Member States to punish ail the conduct defined in the Directive by ‘effective, proportionate and dissuasive criminal penalties, which may entail extradition’, accompanied if appropriate by confiscation of transport, prohibition of practice of an occupation, or deportation. In cases of unauthorized entry or transit, there must be a maximum sentence of at least eight years if the activity was committed by a criminal organization or if committed while endangering a would-be migrant’s life.

These two measures were adopted as a partial implementation of the UN “Palermo” Convention and clearly only focus on the criminalization of smugglers. As such, they lack in addressing any other aspect of the problem, like prevention or protection of smuggled persons even if in particular there is still no EU requirement to criminalize (or to decriminalize) migrants who have breached immigration law as such.[10]
Instead of providing support and assistance to smuggled persons, who are often in difficult conditions before their departure, suffer great harm during the journey, and eventually find themselves “lost” in a foreign country, trying to build a new life, after having paid a great amount of money for a journey where they risk their life, the European Union decided to insist on the ‘need to combat illegal immigration’, reaffirming the importance of protecting State (EU) sovereignty, rather than providing legal forms of migration to people looking for a better life.

An issue for the EU Commission Migration agenda…

The humanitarian crisis in the Mediterranean is now apparently wakening up the EU and raising the awareness on the growing scale of the migration phenomenon. Moreover, after the Lisbon Treaty it could be possible for the same political majority [11] to adopt a comprehensive migration policy and frame in the same legal framework humanitarian and security aspects  by creating a binding burden sharing between the EU MS.
Now it could be the right time for the EU to change its approach by taking the individual at the core of the EU policies, as required by the Charter of fundamental rights and by dealing with smuggling in a more comprehensive and consistent framework. To do do, in its “holistic” Migration agenda, the Commission should also take into account the European Parliament recommendations :

On the humanitarian side : to provide alternative and safer channels of legal migration by associating in the definition of the new EU strategy and legal acts.Notably, the ministers for social affairs as the Ministers of Interiors, who are currently in charge of these issues, still have a partial distorted view of the human mobility dynamics. In the same perspective, the EU and its MS should engage in information and awareness-raising campaigns to make would-be-migrants aware about the risks they might face in their irregular journeys towards Europe, and inform them about the existence of alternative, safer but affordable forms of migration. It would also be helpful to improve the support to ‘victims’ of smuggling (not only as it is currently the case when the victims cooperate in the criminal investigation, prosecution and trial of a smugglers), both at the moment of arrival and for an appropriate period after.

On the security side : to improve the cooperation among MS in the investigation and conduction of joint operations (supported by EU agencies such as Frontex, Europol and Eurojust) by strengthening in a consistent operational framework the exchange of information dealing with people which can be considered a “threat” for the EU such as smugglers[12], Traffickers and foreign fighters[13].

…or for the UN Security Council ?

EU institutions before launching military operations should take into account what in recent forum between Prosecutors of EU member states has emerged eg that most of the current prosecutions relate to the criminal activity committed by those who provide the transport of migrants in boats, whereas only a few of them address the leaders of the organised crime groups behind this phenomenon. The limited exchange of information through Europol and the lack of coordination between EU Member States should be considered the main obstacles in identifying these organised crime groups. Moreover, effective legislation is considered essential to address this phenomenon and to clearly distinguish between smuggling and trafficking activities, by extending law enforcement’s powers to enter adjacent territorial waters when in hot pursuit of vessels suspected of trafficking.

Last but not least, in the medium and long term perspective, given the trans-border nature of smuggling and human trafficking, consideration should be given to the need to ensure prosecution at EU level of THB and smuggling of migrants crimes, as well as the opportunity to extend the competence of the European Public Prosecutor’s Office (EPPO) also to this kind of crimes. However, it is less than likely that this straight but more legally ambitious solution would be chosen, instead of the slippery shortcut of military intervention.

Further Reading :

Steve PEERS “EU Justice and Home Affairs Law” (Third Edition) published on Oxford European Union Law Library (Chapter 7 Irregular Migration)
Shelley L., “Human Smuggling and Trafficking into Europe: a comparative prospective”, Washington DC, Migration Policy Institute, 2014.
Gallagher A.T., “Trafficking, Smuggling and human rights: tricks and treaties”, Forced Migration Review, 12 (2003), 25-28. NOTES
[1] European Council, ‘Special meeting of the European Council, 23 April 2015 – statement’, 23/04/2015, available at: http://www.consilium.europa.eu/en/press/press-releases/2015/04/23-special-euco-statement/
[2]See, for instance, Gabriella Carella, ‘Tratta degli esseri umani, uso della forza internazionale e prevenzione dei naufragi ( … dello stato di diritto)’, available at: http://www.sidi-isil.org/sidiblog/?p=1417
[3] EUObserver, ‘Russia to oppose EU sinking of migrant smuggler boats’, https://euobserver.com/foreign/128597
[4] Article 3(a) of the UNDOC Smuggling Protocol (‘Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime’, GA Res. 55/25, Annex III, UN GAR, 55th Sess., Supp. No. 49, at 53, UN Doc. A/45/49 (Vol.1) (2001), done Nov.15, 2000, entered into force Dec. 25, 2003)., available at: https://www.unodc.org/documents/treaties/UNTOC/Publications/TOC%20Convention/TOCebook-e.pdf
[5] Article 3(a) of the UNDOC Trafficking Protocol (Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, GA Res. 55/25, Annex II, UN GAR, 55th Sess., Supp. No. 49, at 53, UN Doc. A/45/49 (Vol.1) (2001), done Nov.15, 2000, entered into force Dec. 25, 2003), available at: https://www.unodc.org/documents/treaties/UNTOC/Publications/TOC%20Convention/TOCebook-e.pdf
[6] It is not unusual that a victim of smuggling later on also falls into the hand of a trafficker, in order to pay off his debt for the journey (traffickers ad smugglers often know each other and cooperate).
[7] See primarily the Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA and the EU Strategy toward the eradication of trafficking in human beings 2012-2016.
[8] In the pre-Lisbon the legal basis for criminal sanctions was in the intergovernamental regime framing the judicial cooperation in criminal matters (so called “ third pillar”).
[9] See Steve PEERS “EU Justice and Home Affairs Law” (Third Edition) published on Oxford European Union Law Library (Chapter 7 Irregular Migration)
[10] It should not be forgotten, however, that Article 31 of the Geneva Convention on refugee status exempts refugees who have entered or stayed irregularly from penalties under certain circumstances.
[11] Before the Lisbon Treaty legislation on Legal migration required the unanimity in Council.
[12] Actually, a provision concerning Communication of information between the Member States is already established by article 7 of Directive 2002/90/EC, but so far it is not clear if the MS have adequately implemented this provision.
[13] It is worth recalling that Europol has recently established a “Focal Point (FP) Travellers” which is mainly focused on so called “foreign fighters” and which is opened to all the EU  Member States as well as to third countries such as Australia, Norway, Switzerland and the US Custom and Border Protection Service (CBP). Eurojust has also asked to be associated.

FACT-CHECKING NIGEL FARAGE: WILL THE EU’S ASYLUM POLICIES ADMIT HALF A MILLION TERRORISTS?

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

by Steve Peers

Yesterday, Nigel Farage, the leader of the UK Independence Party, argued that the EU’s response to the migrant deaths crisis ran the risk of admitting half a million terrorists on to EU soil. He based this claim on the threat of the ‘Islamic State’ (Daesh) terrorists to send such killers to the EU via means of smuggling routes, and demanded that David Cameron veto the EU plans.

Do these claims make sense? Not in the slightest. First of all, the EU policy, as I discussed last week, is essentially to reaffirm the status quo. The current limited maritime surveillance missions will be expanded, although it is not clear if they will amount to fully-fledged rescue missions. This probably means that more people will reach the EU, but this will only be for the reason that fewer of them will drown en route. Once in the EU, they will be able to make claims for asylum – but that is no different to the current law. The EU’s plan does not involve any changes to EU asylum legislation; it simply calls on Member States to apply those laws. The EU did commit to some form of direct resettlement of refugees from third countries – but EU leaders could not even agree on the tiny number of 5,000 refugees to be settled next year.

Farage would prefer a policy of returning people to the countries they left. In fact, asylum-seekers can already be returned to their countries of origin or transit, if it is clear when examining their application that those countries are safe. But in accordance with the UN (Geneva) Refugee Convention – which UKIP purports to support – they cannot be returned to an unsafe country. Libya, for instance, is clearly unsafe: there are widespread whippings, beatings, electric shocks and hangings of migrants. In any event, asylum-seekers who prove to be terrorists must be denied refugee status or other forms of protection status, as the CJEU has confirmed.

Farage demands that David Cameron veto the EU’s plans, but that simply isn’t possible, because the UK has an opt-out from EU asylum and immigration law. We can choose not to participate, and indeed the UK has already chosen not to participate in any of the second phase EU asylum measures, except for those which transfer asylum-seekers from the UK to other Member States. We can choose not to participate in any future measures too – although as noted already, the EU is not even planning any new asylum laws in response to the deaths. Since the UK has an opt-out, it does not have a veto. But in fact, no Member State has a veto on EU asylum policy. Most EU immigration and asylum law has in fact been subject to qualified majority voting since 2005. (Laws on legal migration were subject to unanimous voting until 2009; but the EU’s plan does not address legal migration issues).

As regards border control operations in particular, the UK doesn’t participate fully in the EU’s border control agency, Frontex. In fact, according to the EU Court of Justice, legally we can’t participate in Frontex, since we don’t participate in the full Schengen system of abolishing internal border controls. Instead we have an informal arrangement, for instance supplying some hardware to assist with the expanded surveillance operations. But even that sort of informal arrangement is under challenge in a case pending before the CJEU.

In some ways, Farage’s own policy runs its own risks. He has argued that Christians in particular should be admitted as refugees into the EU. As I have pointed out, this again violates the Geneva Convention that UKIP purport to support, since that Convention requires non-discriminatory application on grounds of religion, and it would also be unfeasible to distinguish between Christians and Muslims during rescue at sea. But if Christians are being resettled directly from areas afflicted by Daesh, the UKIP policy would provide the perfect opportunity for ISIS fighters to pretend to be Christian as a way to ensure entry into the EU.

As an assessment of terrorist methodology, Farage’s claims are also suspect. The bulk of Daesh atrocities have not been carried out in the EU, but in Syria and Iraq, as well as by affiliated groups in Libya and Nigeria. Most of the people who have been linked to Daesh in Europe have been EU citizens who travelled to parts of the Middle East to participate in atrocities. Any migrants who were rescued from boats or who were resettled directly from conflict areas would presumably be disarmed of any weapons they were carrying en route. Of course, they might obtain weapons once they reached the EU; but since Farage is an outspoken critic of gun control, he is part of the problem, not of the solution, to that issue. As for the figure of half a million Daesh fighters coming to the EU, that’s 20 or 30 times the CIA’s estimate of the total number of all Daesh fighters.

Finally, Farage argues that the EU has cynically used the migrant deaths crisis to develop a comprehensive immigration and asylum policy. If only it had: in fact, the EU’s response is largely marginal and ineffectual. Indeed, Farage is throwing some huge stones inside this glass house. It is Farage who is trying to ‘weaponise’ the tragic deaths of hundreds of people, taking this opportunity to make an inaccurate and incoherent rant in the midst of an election campaign.

DON’T ROCK THE BOAT: EU LEADERS DO AS LITTLE AS POSSIBLE TO ADDRESS THE MIGRANT CRISIS

ORIGINAL PUBLISHED ON EU LAW ANALYSIS  Thursday, 23 April 2015

by Steve Peers

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

Detailed comments

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

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

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

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

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

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

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

Conclusions

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

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

THE EU RESPONSE TO MIGRANT DEATHS: PROTECTION AND PREVENTION – OR POLICY LAUNDERING?

ORIGINAL PUBLISHED ON EU LAW ANALYSIS Wednesday, 22 April 2015

by Steve Peers

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

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

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

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

This is the only one of the ten measures related directly to search and rescue, although it’s not clear if this is actually intended to be a search and rescue mission. The mandate of ‘Frontex’ (the EU’s border control agency) concerns border control, not search and rescue as such. Indeed there is no mention of search and rescue here, or in the rest of the plan. Nor is there any express mention in the plan of the recent loss of life. There are no details of the extent of the increase in financial resources and assets, or the extent to which the operational area will increase. Continue reading “THE EU RESPONSE TO MIGRANT DEATHS: PROTECTION AND PREVENTION – OR POLICY LAUNDERING?”

L’Union européenne et la crise de l’immigration en Méditerranée : le bal des hypocrites

ORIGINAL PUBLISHED HERE 22 AVRIL 2015

par Henri Labayle, CDRE

Rien ne change. Les minutes de silence au sein des institutions européennes ne se comptent plus face à la litanie des morts et des disparus lancés en Méditerranée.

Comme il y a près de vingt ans à Douvres devant les cadavres de 54 clandestins chinois, les Etats membres et les institutions de l’Union promettent que cette fois-ci est la dernière, qu’enfin des mesures efficaces seront prises pour faire face à l’inacceptable : des centaines de morts en quelques semaines, des milliers à venir en quelques mois si l’indifférence persiste. Faute de reconnaître son échec, l’Europe est incapable de changer d’approche en affrontant autrement la réalité. Au bal des hypocrites, le carnet de chacun est donc bien rempli.

1. Le double langage des Etats membres

L’environnement de l’Union est devenu extrêmement dangereux, troublé par une multitude de conflits. Graves autant que nouveaux, ils engendrent des mouvements de personne quasiment impossibles à réguler, pour partie imputables d’ailleurs à l’imprudence des interventions militaires occidentales, en Irak ou en Libye.

Les populations persécutées par Daesch comme par Bachar El Assad appellent la protection autant que celles fuyant la guerre en Erythrée, lorsqu’elles se jettent dans l’exode. Quoi que les politiciens prétendent aux opinions publiques nationales, cette protection leur est due et l’Union européenne n’en est pas la cause. Nous l’avions décidée bien avant, inscrite dès 1946 dans notre constitution et dans la Convention de Genève comme nos voisins depuis 1951. Notre indifférence contemporaine à la misère humaine ne peut occulter un choix qui est partie intégrante de nos valeurs. Les dévoiements tout aussi indiscutables du droit d’asile ne peuvent le masquer. N’est pas australien qui veut.

Quelle est l’attitude individuelle comme collective des Etats européens devant ce constat ? Une fuite devant leurs responsabilités et le refus de tirer les conséquences de leur impuissance matérielle et budgétaire à garantir isolément leurs frontières respectives. Ceux qui proclament le contraire en réclamant leur rétablissement ont-ils oublié l’échouage d’un cargo turc transportant des immigrants kurdes sur une plage corse et imaginent-ils ce qu’il adviendrait demain d’une vague semblable à celle de la Sicile ?

Ce refus s’est traduit d’abord, en Méditerranée. Sous couvert de soulager l’Italie qui avait lancé à grands frais l’opération de sauvetage « Mare nostrum » après une première catastrophe, les Etats membres lui ont substitué l’opération conjointe « Triton ». Elle a divisé les coûts par trois et couvert une zone moindre, aux seules fins de surveillance de la frontière commune. Les 4 avions et 21 bateaux alloués par une vingtaine d’Etats, dont certains ne sont pas membres de l’Union, illustre bien le peu d’enthousiasme étatique à défendre la frontière commune avec Frontex, rapportés aux moyens mis en oeuvre par la seule Italie …

L’opération n’illustre d’ailleurs pas les clichés habituels. Si la Roumanie (tenue à l’écart de Schengen) ou la Slovénie et la Lettonie répondent présentes, tel n’est pas le cas de la Hongrie, pourtant consommatrice de crédits de l’Union dans ce registre, ou de l’Irlande et du Royaume Uni. Certes, le refus de ces derniers de participer à l’espace Schengen est connu mais on sait tout autant qu’une partie importante de ces demandeurs de protection se retrouvera en fin de compte à Calais, dans l’espoir d’un passage … En attendant, c’est un navire islandais, le Tyr, qui est au rendez vous du canal de Sicile.

Passé les mots de l’émotion, le cynisme l’emporte donc largement. L’opposition à Mare Nostrum était ouvertement menée au moyen d’un argument glaçant de réalisme : sécuriser le passage en sauvant les naufragés serait un appel d’air au commerce des passeurs … L’augmentation actuelle du nombre de naufragés alors que cette opération est précisément terminée témoigne de l’erreur d’appréciation commise, son incompatibilité évidente avec la morale et le droit de la mer ne suscitant aucun doute.

Les attitudes individuelles ne sont guère plus glorieuses. Les envolées françaises sur le droit d’asile, tradition de notre pays, et les déclarations martiales du chef de l’Etat appelant à régler des « questions devenues insupportables » ne dissimulent pas le double langage.

Celui par exemple des résistances de la diplomatie française lorsqu’il fallut, en 2014, réglementer le cadre de la surveillance des frontières maritimes extérieures conformément aux grands principes. Pas davantage que n’est infirmé le bien fondé des remarques de la Cour des comptes et du Sénat sur le projet en discussion relatif au droit d’asile qui prétend faire mieux en n’octroyant aucun moyen nouveau …

D’autant que le couplet habituel sur une France « terre d’asile » appelle modestie : quatrième Etat européen à enregistrer des demandes d’asile (62.000), nous sommes devancés par l’Allemagne (plus de 200.000), la Suède et l’Italie, en 2014. Et pour ce qui est de leur acceptation, nous ne dépassons pas 15.000 dossiers … trois fois moins que l‘Allemagne, autant que les Pays Bas qui sont bien moins sollicités, 20% qui se situent largement au dessous de la moyenne européenne.

C’est bien là que le bât blesse : comment l’Union européenne peut-elle sérieusement prétendre à une solidarité quelconque quand l’essentiel de la pression pèse sur un dixième de ses membres, 3 Etats seulement ? Que font les autres ?

2. L’inconsistance de l’Union européenne       

Continue reading “L’Union européenne et la crise de l’immigration en Méditerranée : le bal des hypocrites”

La crise de l’immigration dans l’Union : vivre et laisser mourir ?

ORIGINAL PUBLISHED HERE 23 MARS 2015

 par Henri Labayle, CDRE

Une fois encore, la presse se fait justement l’écho de la crise migratoire frappant l’Union européenne, superlatifs à l’appui. Les mêmes mots, il y a quelques semaines, relataient déjà les mêmes inquiétudes et proféraient les mêmes contre-vérités. Avant que l’actualité ne les chasse comme des nuages que l’on sait programmés pour revenir, à la prochaine marée.

La publication du rapport trimestriel de Frontex en est la cause, rendant ainsi un hommage indirect aux efforts de transparence d’une Agence de l’Union souvent injustement décriée. Elle s’ajoute auxtravaux du Bureau européen d’asile et à ceux d’Eurostat. Cette publicité coïncidant avec la reprise des débats internes à l’Union mérite un éclairage particulier.

Les mois qui passent ne se ressemblent pas nécessairement sur le front migratoire et l’examen des faits est instructif, quitte à ce que leur mise en perspective avec les efforts de l’Union ne révèle les carences de celle-ci.

1. Des faits et des chiffres

La réalité est têtue : la pression migratoire sur l’Union européenne est sans précédent. Cette pression s’inscrit dans un contexte international particulièrement préoccupant comme en témoignent lescris d’alarme du Haut Commissariat aux Réfugiés et des ONG. Examiner l’importance des flux de demandeurs de protection relevant de la compétence du HCR permet, sinon de relativiser la gravité de la situation de l’Union européenne, du moins de mettre cette pression en perspective.

Ainsi, actuellement, pratiquement 4 millions de réfugiés syriens se trouvent aujourd’hui en Turquie, au Liban, en Jordanie, en Iraq et en Égypte, sans perspective aucune de retour dans leur pays d’origine dans un proche avenir. Leur présence fait peser sur ces Etats d’accueil une contrainte politique, économique et sociale hors du commun et, en tous cas, hors de propos avec celle subie par l’Union. Continue reading “La crise de l’immigration dans l’Union : vivre et laisser mourir ?”

Mediterranean Humanitarian Crisis: if not now, then when will the EU  trigger the “temporary protection” mechanism ?

by Emilio De Capitani

According to a joint press release the Foreign and Home Affairs Council have decided today to submit a Ten point action plan  of immediate actions to be taken by the European Council, which will meet next Thursday (23 April), in response to the crisis situation in the Mediterranean.

The ten points are the following:
“1. Reinforce the Joint Operations in the Mediterranean, namely Triton and Poseidon, by increasing the financial resources and the number of assets. We will also extend their operational area, allowing us to intervene further, within the mandate of Frontex;
2. A systematic effort to capture and destroy vessels used by the smugglers. The positive results obtained with the Atalanta operation should inspire us to similar operations against smugglers in the Mediterranean;
3. EUROPOL, FRONTEX, EASO and EUROJUST will meet regularly and work closely to gather information on smugglers modus operandi, to trace their funds and to assist in their investigation; (NDR JOT MARE ?)
4. EASO to deploy teams in Italy and Greece for joint processing of asylum applications;
5. Member States to ensure fingerprinting of all migrants;
6. Consider options for an emergency relocation mechanism;
7. A EU wide voluntary pilot project on resettlement, offering a number of places to persons in need of protection;
8. Establish a new return programme for rapid return of irregular migrants coordinated by Frontex from frontline Member States;
9. Engagement with countries surrounding Libya through a joined effort between the Commission and the EEAS; initiatives in Niger have to be stepped up.
10.Deploy Immigration Liaison Officers (ILO) in key third countries, to gather intelligence on migratory flows and strengthen the role of the EU Delegations.(emphasis added)

Frankly all these measures are much less than what one would reasonably expect in response to  the growing number of displaced persons trying to reach the European shores.

When even FRONTEX (the EU Agency which evaluates the pressure on the EU external borders) considers that between half and one million people might try to cross the Mediterranean in the coming months, it is more than likely that the EU will face “a massive inflow” of displaced persons requiring a common system of temporary protection (art.78 p2 lett c TFEU).

But if this is the case then for the first time the European Union will have to implement the provisions of the Temporary Protection Directive (2001/55/EC) which was adopted at the time of the Kosovar crisis.

The very objective of the Directive  deals with mass influx of “third-country nationals or state-less persons who have had to leave their country or region of origin, or have been evacuated, in particular in response to an appeal by international organisations, and are unable to return in safe and durable conditions because of the situation prevailing in that country, …in particular: (i) persons who have fled areas of armed conflict or endemic violence; (ii) persons at serious risk of, or who have been the victims of, systematic or generalised violations of their human rights;” (art. 2 Lett C Directive 2001/55/EC)

First and foremost this Directive is the only case where Schengen Member States have to comply with a BINDING mechanism of solidarity as art 8 of the Directive requires EU Member States, if necessary, to provide ‘persons to be admitted to their territory for the purposes of temporary protection with every facility for obtaining the necessary visas, including transit visas’.

According to Article 5 of the Temporary Protection Directive “The existence of a mass influx of displaced persons shall be established by a Council Decision adopted by a qualified majority on a proposal from the Commission, which shall also examine any request by a Member State that it submit a proposal to the Council”.

Why doesn’t Italy  formally ask the Commission to submit such a proposal ?

Already in 2011 the European Commission (MEMO/11/226, Press release, Brussels, 8 April 2011) declared that it “would also be ready to consider proposing the use of the mechanism foreseen under the 2001 Temporary Protection Directive (2001/55/EC), if the conditions foreseen in the directive are met. Consideration could only be given to taking this step if it is clear that the persons concerned are likely to be in need of international protection, if they cannot be safely returned to their countries-of-origin, and if the numbers of persons arriving who are in need of protection are sufficiently great. Resort to this mechanism would allow for the immediate protection and reception in the territory of EU Member States for persons concerned, as well as offering a “breathing space” for the national asylum systems of the Member States most directly affected.”

Moreover  in 2013, the European Parliament listed the application of the Temporary Protection Directive among the possible measures to be taken to address the Syrian crisis.

Unlike the vague terms (“pilot project”, “consider options”…)of the “Ten point plan” debated today by the EU Ministers,  Directive 2001/55 could, at last, establish a binding mechanism as“The Council Decision shall have the effect of introducing temporary protection for the displaced persons to which it refers, in all the Member States, in accordance with the provisions of this Directive. The Decision shall include at least:
(a) a description of the specific groups of persons to whom the temporary protection applies;
(b) the date on which the temporary protection will take effect;
(c) information received from Member States on their recep-tion capacity;
(d) information from the Commission, UNHCR and other rele-vant international organisations.
4. The Council Decision shall be based on:
(a) an examination of the situation and the scale of the move-ments of displaced persons;
(b) an assessment of the advisability of establishing temporary protection, taking into account the potential for emergency aid and action on the ground or the inadequacy of such measures;
(c) information received from the Member States, the Commission, UNHCR and other relevant international organisations.” (art. 5 p 3 and 4 Dir. 2001/55/EC)

Fifteen years ago the death of 54 Chinese irregular migrants who suffocated in a lorry opened the way for the first EU measures dealing with smugglers and the trafficking of human beings. Won’t  the European Council after several thousands  deaths, now take this occasion to implement a Treaty provision and ask for the implementation of an already existing EU legislation ? Unfortunately this looks like a rhetorical question..

TEXT of the Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof
(emphasized by me)

THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular point 2(a) and (b) of Article 63 thereof,
Having regard to the proposal from the Commission(1)
Having regard to the opinion of the European Parliament(2),
Having regard to the opinion of the Economic and Social Committee(3),
Having regard to the opinion of the Committee of the Regions(4),
 

Whereas:
(1) The preparation of a common policy on asylum, including common European arrangements for asylum, is a constituent part of the European Union’s objective of establishing progressively an area of freedom, security and justice open to those who, forced by circumstances, legitimately seek protection in the European Union.
(2) Cases of mass influx of displaced persons who cannot return to their country of origin have become more substantial in Europe in recent years. In these cases it may be necessary to set up exceptional schemes to offer them immediate temporary protection.
(3) In the conclusions relating to persons displaced by the conflict in the former Yugoslavia adopted by the Ministers responsible for immigration at their meetings in London on 30 November and 1 December 1992 and Copenhagen on 1 and 2 June 1993, the Member States and the Community institutions expressed their concern at the situation of displaced persons.
(4) On 25 September 1995 the Council adopted a Resolution on burden-sharing with regard to the admission and residence of displaced persons on a temporary basis(5), and, on 4 March 1996, adopted Decision 96/198/JHA on an alert and emergency procedure for burden-sharing with regard to the admission and residence of displaced persons on a temporary basis(6).
(5) The Action Plan of the Council and the Commission of 3 December 1998(7) provides for the rapid adoption, in accordance with the Treaty of Amsterdam, of minimum standards for giving temporary protection to displaced persons from third countries who cannot return to their country of origin and of measures promoting a balance of effort between Member States in receiving and bearing the consequences of receiving displaced persons.
(6) On 27 May 1999 the Council adopted conclusions on displaced persons from Kosovo. These conclusions call on the Commission and the Member States to learn the lessons of their response to the Kosovo crisis in order to establish the measures in accordance with the Treaty.
(7) The European Council, at its special meeting in Tampere on 15 and 16 October 1999, acknowledged the need to reach agreement on the issue of temporary protection for displaced persons on the basis of solidarity between Member States.
(8) It is therefore necessary to establish minimum standards for giving temporary protection in the event of a mass influx of displaced persons and to take measures to promote a balance of efforts between the Member States in receiving and bearing the consequences of receiving such persons.
(9) Those standards and measures are linked and interdependent for reasons of effectiveness, coherence and solidarity and in order, in particular, to avert the risk of secondary movements. They should therefore be enacted in a single legal instrument.
(10) This temporary protection should be compatible with the Member States’ international obligations as regards refugees. In particular, it must not prejudge the recognition of refugee status pursuant to the Geneva Convention of 28 July 1951 on the status of refugees, as amended by the New York Protocol of 31 January 1967, ratified by all the Member States.
(11) The mandate of the United Nations High Commissioner for Refugees regarding refugees and other persons in need of international protection should be respected, and effect should be given to Declaration No 17, annexed to the Final Act to the Treaty of Amsterdam, on Article 63 of the Treaty establishing the European Community which provides that consultations are to be established with the United Nations High Commissioner for Refugees and other relevant international organisations on matters relating to asylum policy.
(12) It is in the very nature of minimum standards that Member States have the power to introduce or maintain more favourable provisions for persons enjoying temporary protection in the event of a mass influx of displaced persons.
(13) Given the exceptional character of the provisions established by this Directive in order to deal with a mass influx or imminent mass influx of displaced persons from third countries who are unable to return to their country of origin, the protection offered should be of limited duration.
(14) The existence of a mass influx of displaced persons should be established by a Council Decision, which should be binding in all Member States in relation to the displaced persons to whom the Decision applies. The conditions for the expiry of the Decision should also be established.
(15) The Member States’ obligations as to the conditions of reception and residence of persons enjoying temporary protection in the event of a mass influx of displaced persons should be determined. These obligations should be fair and offer an adequate level of protection to those concerned.
(16) With respect to the treatment of persons enjoying temporary protection under this Directive, the Member States are bound by obligations under instruments of international law to which they are party and which prohibit discrimination.
(17) Member States should, in concert with the Commission, enforce adequate measures so that the processing of personal data respects the standard of protection of Directive 95/46/EC of the European Parliament and the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data(8).
(18) Rules should be laid down to govern access to the asylum procedure in the context of temporary protection in the event of a mass influx of displaced persons, in conformity with the Member States’ international obligations and with the Treaty.
(19) Provision should be made for principles and measures governing the return to the country of origin and the measures to be taken by Member States in respect of persons whose temporary protection has ended.
(20) Provision should be made for a solidarity mechanism intended to contribute to the attainment of a balance of effort between Member States in receiving and bearing the consequences of receiving displaced persons in the event of a mass influx. The mechanism should consist of two components. The first is financial and the second concerns the actual reception of persons in the Member States.
(21) The implementation of temporary protection should be accompanied by administrative cooperation between the Member States in liaison with the Commission.
(22) It is necessary to determine criteria for the exclusion of certain persons from temporary protection in the event of a mass influx of displaced persons.
(23) Since the objectives of the proposed action, namely to establish minimum standards for giving temporary protection in the event of a mass influx of displaced persons and measures promoting a balance of efforts between the Member States in receiving and bearing the consequences of receiving such persons, cannot be sufficiently attained by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved at Community level, the Community may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives.
(24) In accordance with Article 3 of the Protocol on the position of the United Kingdom and Ireland, annexed to the Treaty on European Union and to the Treaty establishing the European Community, the United Kingdom gave notice, by letter of 27 September 2000, of its wish to take part in the adoption and application of this Directive.
(25) Pursuant to Article 1 of the said Protocol, Ireland is not participating in the adoption of this Directive. Consequently and without prejudice to Article 4 of the aforementioned Protocol, the provisions of this Directive do not apply to Ireland.
(26) In accordance with Articles 1 and 2 of the Protocol on the position of Denmark, annexed to the Treaty on European Union and to the Treaty establishing the European Community, Denmark is not participating in the adoption of this Directive, and is therefore not bound by it nor subject to its application,

HAS ADOPTED THIS DIRECTIVE:
 
CHAPTER I General provisions

Article 1
The purpose of this Directive is to establish minimum standards for giving temporary protection in the event of a mass influx of displaced persons from third countries who are unable to return to their country of origin and to promote a balance of effort between Member States in receiving and bearing the consequences of receiving such persons.
 

Article 2
For the purposes of this Directive:
(a) “temporary protection” means a procedure of exceptional character to provide, in the event of a mass influx or imminent mass influx of displaced persons from third countries who are unable to return to their country of origin, immediate and temporary protection to such persons, in particular if there is also a risk that the asylum system will be unable to process this influx without adverse effects for its efficient operation, in the interests of the persons concerned and other persons requesting protection;
(b) “Geneva Convention” means the Convention of 28 July 1951 relating to the status of refugees, as amended by the New York Protocol of 31 January 1967;
(c) “displaced persons” means third-country nationals or stateless persons who have had to leave their country or region of origin, or have been evacuated, in particular in response to an appeal by international organisations, and are unable to return in safe and durable conditions because of the situation prevailing in that country, who may fall within the scope of Article 1A of the Geneva Convention or other international or national instruments giving international protection, in particular:
(i) persons who have fled areas of armed conflict or endemic violence;
(ii) persons at serious risk of, or who have been the victims of, systematic or generalised violations of their human rights;
(d) “mass influx” means arrival in the Community of a large number of displaced persons, who come from a specific country or geographical area, whether their arrival in the Community was spontaneous or aided, for example through an evacuation programme;
(e) “refugees” means third-country nationals or stateless persons within the meaning of Article 1A of the Geneva Convention;
(f) “unaccompanied minors” means third-country nationals or stateless persons below the age of eighteen, who arrive on the territory of the Member States unaccompanied by an adult responsible for them whether by law or custom, and for as long as they are not effectively taken into the care of such a person, or minors who are left unaccompanied after they have entered the territory of the Member States;
(g) “residence permit” means any permit or authorisation issued by the authorities of a Member State and taking the form provided for in that State’s legislation, allowing a third country national or a stateless person to reside on its territory;
(h) “sponsor” means a third-country national enjoying temporary protection in a Member State in accordance with a decision taken under Article 5 and who wants to be joined by members of his or her family.
 

Article 3

  1. Temporary protection shall not prejudge recognition of refugee status under the Geneva Convention.
  2. Member States shall apply temporary protection with due respect for human rights and fundamental freedoms and their obligations regarding non-refoulement.
  3. The establishment, implementation and termination of temporary protection shall be the subject of regular consultations with the Office of the United Nations High Commissioner for Refugees (UNHCR) and other relevant international organisations.
  4. This Directive shall not apply to persons who have been accepted under temporary protection schemes prior to its entry into force.
  5. This Directive shall not affect the prerogative of the Member States to adopt or retain more favourable conditions for persons covered by temporary protection.

 

CHAPTER II Duration and implementation of temporary protection
 

Article 4

  1. Without prejudice to Article 6, the duration of temporary protection shall be one year. Unless terminated under the terms of Article 6(1)(b), it may be extended automatically by six monthly periods for a maximum of one year.
  2. Where reasons for temporary protection persist, the Council may decide by qualified majority, on a proposal from the Commission, which shall also examine any request by a Member State that it submit a proposal to the Council, to extend that temporary protection by up to one year.

 

Article 5

  1. The existence of a mass influx of displaced persons shall be established by a Council Decision adopted by a qualified majority on a proposal from the Commission, which shall also examine any request by a Member State that it submit a proposal to the Council.
  2. The Commission proposal shall include at least:

(a) a description of the specific groups of persons to whom the temporary protection will apply;
(b) the date on which the temporary protection will take effect;
(c) an estimation of the scale of the movements of displaced persons.

  1. The Council Decision shall have the effect of introducing temporary protection for the displaced persons to which it refers, in all the Member States, in accordance with the provisions of this Directive. The Decision shall include at least:

(a) a description of the specific groups of persons to whom the temporary protection applies;
(b) the date on which the temporary protection will take effect;
(c) information received from Member States on their reception capacity;
(d) information from the Commission, UNHCR and other relevant international organisations.

  1. The Council Decision shall be based on:

(a) an examination of the situation and the scale of the movements of displaced persons;
(b) an assessment of the advisability of establishing temporary protection, taking into account the potential for emergency aid and action on the ground or the inadequacy of such measures;
(c) information received from the Member States, the Commission, UNHCR and other relevant international organisations.

  1. The European Parliament shall be informed of the Council Decision.

 

Article 6

  1. Temporary protection shall come to an end:

(a) when the maximum duration has been reached; or
(b) at any time, by Council Decision adopted by a qualified majority on a proposal from the Commission, which shall also examine any request by a Member State that it submit a proposal to the Council.

  1. The Council Decision shall be based on the establishment of the fact that the situation in the country of origin is such as to permit the safe and durable return of those granted temporary protection with due respect for human rights and fundamental freedoms and Member States’ obligations regarding non-refoulement. The European Parliament shall be informed of the Council Decision.

 

Article 7

  1. Member States may extend temporary protection as provided for in this Directive to additional categories of displaced persons over and above those to whom the Council Decision provided for in Article 5 applies, where they are displaced for the same reasons and from the same country or region of origin. They shall notify the Council and the Commission immediately.
  2. The provisions of Articles 24, 25 and 26 shall not apply to the use of the possibility referred to in paragraph 1, with the exception of the structural support included in the European Refugee Fund set up by Decision 2000/596/EC(9), under the conditions laid down in that Decision.

 

CHAPTER III Obligations of the Member States towards persons enjoying temporary protection

 
 em>Article 8

  1. The Member States shall adopt the necessary measures to provide persons enjoying temporary protection with residence permits for the entire duration of the protection. Documents or other equivalent evidence shall be issued for that purpose.
  2. Whatever the period of validity of the residence permits referred to in paragraph 1, the treatment granted by the Member States to persons enjoying temporary protection may not be less favourable than that set out in Articles 9 to 16.
  3. The Member States shall, if necessary, provide persons to be admitted to their territory for the purposes of temporary protection with every facility for obtaining the necessary visas, including transit visas. Formalities must be reduced to a minimum because of the urgency of the situation. Visas should be free of charge or their cost reduced to a minimum.

 

Article 9
The Member States shall provide persons enjoying temporary protection with a document, in a language likely to be understood by them, in which the provisions relating to temporary protection and which are relevant to them are clearly set out.
 

Article 10
To enable the effective application of the Council Decision referred to in Article 5, Member States shall register the personal data referred to in Annex II, point (a), with respect to the persons enjoying temporary protection on their territory.
 

Article 11
A Member State shall take back a person enjoying temporary protection on its territory, if the said person remains on, or, seeks to enter without authorisation onto, the territory of another Member State during the period covered by the Council Decision referred to in Article 5. Member States may, on the basis of a bilateral agreement, decide that this Article should not apply.
 

Article 12
The Member States shall authorise, for a period not exceeding that of temporary protection, persons enjoying temporary protection to engage in employed or self-employed activities, subject to rules applicable to the profession, as well as in activities such as educational opportunities for adults, vocational training and practical workplace experience. For reasons of labour market policies, Member States may give priority to EU citizens and citizens of States bound by the Agreement on the European Economic Area and also to legally resident third-country nationals who receive unemployment benefit. The general law in force in the Member States applicable to remuneration, access to social security systems relating to employed or self-employed activities and other conditions of employment shall apply.
 

Article 13

  1. The Member States shall ensure that persons enjoying temporary protection have access to suitable accommodation or, if necessary, receive the means to obtain housing.
  2. The Member States shall make provision for persons enjoying temporary protection to receive necessary assistance in terms of social welfare and means of subsistence, if they do not have sufficient resources, as well as for medical care. Without prejudice to paragraph 4, the assistance necessary for medical care shall include at least emergency care and essential treatment of illness.
  3. Where persons enjoying temporary protection are engaged in employed or self-employed activities, account shall be taken, when fixing the proposed level of aid, of their ability to meet their own needs.
  4. The Member States shall provide necessary medical or other assistance to persons enjoying temporary protection who have special needs, such as unaccompanied minors or persons who have undergone torture, rape or other serious forms of psychological, physical or sexual violence.

 

Article 14

  1. The Member States shall grant to persons under 18 years of age enjoying temporary protection access to the education system under the same conditions as nationals of the host Member State The Member States may stipulate that such access must be confined to the state education system.
  2. The Member States may allow adults enjoying temporary protection access to the general education system.

 

Article 15

  1. For the purpose of this Article, in cases where families already existed in the country of origin and were separated due to circumstances surrounding the mass influx, the following persons shall be considered to be part of a family:

(a) the spouse of the sponsor or his/her unmarried partner in a stable relationship, where the legislation or practice of the Member State concerned treats unmarried couples in a way comparable to married couples under its law relating to aliens; the minor unmarried children of the sponsor or of his/her spouse, without distinction as to whether they were born in or out of wedlock or adopted;
(b) other close relatives who lived together as part of the family unit at the time of the events leading to the mass influx, and who were wholly or mainly dependent on the sponsor at the time.

  1. In cases where the separate family members enjoy temporary protection in different Member States, Member States shall reunite family members where they are satisfied that the family members fall under the description of paragraph 1(a), taking into account the wish of the said family members. Member States may reunite family members where they are satisfied that the family members fall under the description of paragraph 1(b), taking into account on a case by case basis the extreme hardship they would face if the reunification did not take place.
  2. Where the sponsor enjoys temporary protection in one Member State and one or some family members are not yet in a Member State, the Member State where the sponsor enjoys temporary protection shall reunite family members, who are in need of protection, with the sponsor in the case of family members where it is satisfied that they fall under the description of paragraph 1(a). The Member State may reunite family members, who are in need of protection, with the sponsor in the case of family members where it is satisfied that they fall under the description of paragraph 1(b), taking into account on a case by case basis the extreme hardship which they would face if the reunification did not take place.
  3. When applying this Article, the Member States shall taken into consideration the best interests of the child.
  4. The Member States concerned shall decide, taking account of Articles 25 and 26, in which Member State the reunification shall take place.
  5. Reunited family members shall be granted residence permits under temporary protection. Documents or other equivalent evidence shall be issued for that purpose. Transfers of family members onto the territory of another Member State for the purposes of reunification under paragraph 2, shall result in the withdrawal of the residence permits issued, and the termination of the obligations towards the persons concerned relating to temporary protection, in the Member State of departure.
  6. The practical implementation of this Article may involve cooperation with the international organisations concerned.
  7. A Member State shall, at the request of another Member State, provide information, as set out in Annex II, on a person receiving temporary protection which is needed to process a matter under this Article.

 

Article 16

  1. The Member States shall as soon as possible take measures to ensure the necessary representation of unaccompanied minors enjoying temporary protection by legal guardianship, or, where necessary, representation by an organisation which is responsible for the care and well-being of minors, or by any other appropriate representation.
  2. During the period of temporary protection Member States shall provide for unaccompanied minors to be placed:

(a) with adult relatives;
(b) with a foster-family;
(c) in reception centres with special provisions for minors, or in other accommodation suitable for minors
(d) with the person who looked after the child when fleeing.
The Member States shall take the necessary steps to enable the placement. Agreement by the adult person or persons concerned shall be established by the Member States. The views of the child shall be taken into account in accordance with the age and maturity of the child.
 

CHAPTER IV Access to the asylum procedure in the context of temporary protection

 
Article 17

  1. Persons enjoying temporary protection must be able to lodge an application for asylum at any time.
  2. The examination of any asylum application not processed before the end of the period of temporary protection shall be completed after the end of that period.

 

Article 18
The criteria and mechanisms for deciding which Member State is responsible for considering an asylum application shall apply. In particular, the Member State responsible for examining an asylum application submitted by a person enjoying temporary protection pursuant to this Directive, shall be the Member State which has accepted his transfer onto its territory.
 

Article 19

  1. The Member States may provide that temporary protection may not be enjoyed concurrently with the status of asylum seeker while applications are under consideration.
  2. Where, after an asylum application has been examined, refugee status or, where applicable, other kind of protection is not granted to a person eligible for or enjoying temporary protection, the Member States shall, without prejudice to Article 28, provide for that person to enjoy or to continue to enjoy temporary protection for the remainder of the period of protection.

 

CHAPTER V Return and measures after temporary protection has ended

 
Article 20
When the temporary protection ends, the general laws on protection and on aliens in the Member States shall apply, without prejudice to Articles 21, 22 and 23.
 

Article 21

  1. The Member States shall take the measures necessary to make possible the voluntary return of persons enjoying temporary protection or whose temporary protection has ended. The Member States shall ensure that the provisions governing voluntary return of persons enjoying temporary protection facilitate their return with respect for human dignity.

The Member State shall ensure that the decision of those persons to return is taken in full knowledge of the facts. The Member States may provide for exploratory visits.

  1. For such time as the temporary protection has not ended, the Member States shall, on the basis of the circumstances prevailing in the country of origin, give favourable consideration to requests for return to the host Member State from persons who have enjoyed temporary protection and exercised their right to a voluntary return.
  2. At the end of the temporary protection, the Member States may provide for the obligations laid down in CHAPTER III to be extended individually to persons who have been covered by temporary protection and are benefiting from a voluntary return programme. The extension shall have effect until the date of return.

 

Article 22

  1. The Member States shall take the measures necessary to ensure that the enforced return of persons whose temporary protection has ended and who are not eligible for admission is conducted with due respect for human dignity.
  2. In cases of enforced return, Member States shall consider any compelling humanitarian reasons which may make return impossible or unreasonable in specific cases.

 

Article 23

  1. The Member States shall take the necessary measures concerning the conditions of residence of persons who have enjoyed temporary protection and who cannot, in view of their state of health, reasonably be expected to travel; where for example they would suffer serious negative effects if their treatment was interrupted. They shall not be expelled so long as that situation continues.
  2. The Member States may allow families whose children are minors and attend school in a Member State to benefit from residence conditions allowing the children concerned to complete the current school period.

 

CHAPTER VI Solidarity

 
Article 24
The measures provided for in this Directive shall benefit from the European Refugee Fund set up by Decision 2000/596/EC, under the terms laid down in that Decision.
 

Article 25

  1. The Member States shall receive persons who are eligible for temporary protection in a spirit of Community solidarity. They shall indicate – in figures or in general terms – their capacity to receive such persons. This information shall be set out in the Council Decision referred to in Article 5. After that Decision has been adopted, the Member States may indicate additional reception capacity by notifying the Council and the Commission. This information shall be passed on swiftly to UNHCR.
  2. The Member States concerned, acting in cooperation with the competent international organisations, shall ensure that the eligible persons defined in the Council Decision referred to in Article 5, who have not yet arrived in the Community have expressed their will to be received onto their territory.
  3. When the number of those who are eligible for temporary protection following a sudden and massive influx exceeds the reception capacity referred to in paragraph 1, the Council shall, as a matter of urgency, examine the situation and take appropriate action, including recommending additional support for Member States affected.

 

Article 26

  1. For the duration of the temporary protection, the Member States shall cooperate with each other with regard to transferral of the residence of persons enjoying temporary protection from one Member State to another, subject to the consent of the persons concerned to such transferral.
  2. A Member State shall communicate requests for transfers to the other Member States and notify the Commission and UNHCR. The Member States shall inform the requesting Member State of their capacity for receiving transferees.
  3. A Member State shall, at the request of another Member State, provide information, as set out in Annex II, on a person enjoying temporary protection which is needed to process a matter under this Article.
  4. Where a transfer is made from one Member State to another, the residence permit in the Member State of departure shall expire and the obligations towards the persons concerned relating to temporary protection in the Member State of departure shall come to an end. The new host Member State shall grant temporary protection to the persons concerned.
  5. The Member States shall use the model pass set out in Annex I for transfers between Member States of persons enjoying temporary protection.

 

CHAPTER VII Administrative cooperation

 
Article 27

  1. For the purposes of the administrative cooperation required to implement temporary protection, the Member States shall each appoint a national contact point, whose address they shall communicate to each other and to the Commission. The Member States shall, in liaison with the Commission, take all the appropriate measures to establish direct cooperation and an exchange of information between the competent authorities.
  2. The Member States shall, regularly and as quickly as possible, communicate data concerning the number of persons enjoying temporary protection and full information on the national laws, regulations and administrative provisions relating to the implementation of temporary protection.

 

CHAPTER VIII Special provisions

 
Article 28

  1. The Member States may exclude a person from temporary protection if:

(a) there are serious reasons for considering that:
(i) he or she has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
(ii) he or she has committed a serious non-political crime outside the Member State of reception prior to his or her admission to that Member State as a person enjoying temporary protection. The severity of the expected persecution is to be weighed against the nature of the criminal offence of which the person concerned is suspected. Particularly cruel actions, even if committed with an allegedly political objective, may be classified as serious non-political crimes. This applies both to the participants in the crime and to its instigators;
(iii) he or she has been guilty of acts contrary to the purposes and principles of the United Nations;
(b) there are reasonable grounds for regarding him or her as a danger to the security of the host Member State or, having been convicted by a final judgment of a particularly serious crime, he or she is a danger to the community of the host Member State.

  1. The grounds for exclusion referred to in paragraph 1 shall be based solely on the personal conduct of the person concerned. Exclusion decisions or measures shall be based on the principle of proportionality.

 

CHAPTER IX Final provisions

 
Article 29
Persons who have been excluded from the benefit of temporary protection or family reunification by a Member State shall be entitled to mount a legal challenge in the Member State concerned.
 

Article 30
The Member States shall lay down the rules on penalties applicable to infringements of the national provisions adopted pursuant to this Directive and shall take all measures necessary to ensure that they are implemented. The penalties provided for must be effective, proportionate and dissuasive.
 

Article 31

  1. Not later than two years after the date specified in Article 32, the Commission shall report to the European Parliament and the Council on the application of this Directive in the Member States and shall propose any amendments that are necessary. The Member States shall send the Commission all the information that is appropriate for drawing up this report.
  2. After presenting the report referred to at paragraph 1, the Commission shall report to the European Parliament and the Council on the application of this Directive in the Member States at least every five years.

 

Article 32

  1. The Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 31 December 2002 at the latest. They shall forthwith inform the Commission thereof.
  2. When the Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such a reference shall be laid down by the Member States.

 

Article 33
This Directive shall enter into force on the day of its publication in the Official Journal of the European Communities.
 

Article 34
This Directive is addressed to the Member States in accordance with the Treaty establishing the European Community.

Done at Brussels, 20 July 2001.
For the Council
The President

  1. Vande Lanotte

 
NOTES
(1) OJ C 311 E, 31.10.2000, p. 251.
(2) Opinion delivered on 13 March 2001 (not yet published in the Official Journal).
(3) OJ C 155, 29.5.2001, p. 21.
(4) Opinion delivered on 13 June 2001 (not yet published in the Official Journal).
(5) OJ C 262, 7.10.1995, p. 1.
(6) OJ L 63, 13.3.1996, p. 10.
(7) OJ C 19, 20.1.1999, p. 1.
(8) OJ L 281, 23.11.1995, p. 31.
(9) OJ L 252, 6.10.2000, p. 12.
 

ANNEX I
(..)

ANNEX II
The information referred to in Articles 10, 15 and 26 of the Directive includes to the extent necessary one or more of the following documents or data:
(a) personal data on the person concerned (name, nationality, date and place of birth, marital status, family relationship);
(b) identity documents and travel documents of the person concerned;
(c) documents concerning evidence of family ties (marriage certificate, birth certificate, certificate of adoption);
(d) other information essential to establish the person’s identity or family relationship;
(e) residence permits, visas or residence permit refusal decisions issued to the person concerned by the Member State, and documents forming the basis of decisions;
(f) residence permit and visa applications lodged by the person concerned and pending in the Member State, and the stage reached in the processing of these.
The providing Member State shall notify any corrected information to the requesting Member State.