Category: 7.2 Irregular immigration

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

by Steve Peers Professor of Law, Law School, University of Essex  

Introduction

When the EU Charter of Fundamental Rights was first adopted, in its initial non binding form, in 2000, many asked what certain of the rights contained in the Charter had to do with the EU at all.

Most notably, why mention the right to life, when the EU did not carry out its own death penalty, or have coercive forces which killed anyone? Of course, it would seem odd to have a human rights charter without including the right to life, and the EU had already developed a detailed foreign policy strategy opposing the death penalty worldwide.

Subsequently the right to life also became relevant to the development of the Common European Asylum System. But more strikingly, the significant death toll of migrants in the Mediterranean has widely been blamed on EU policies – whether those policies are carried out by the Member States’ authorities alone, or by those authorities as coordinated by the EU’s borders agency, Frontex, which began operations in 2005. Moreover, the national authorities and Frontex have often been blamed for ‘push-backs’: the forced return of migrants’ vessels to unsafe countries, which were condemned by the European Court of Human Rights in its 2012 judgment in Hirsi v Italy.

The response to these criticisms was the adoption of rules governing maritime surveillance operations coordinated by Frontex, first of all in the form of a Council measure implementing the Schengen Borders Code. A majority in the European Parliament (EP) voted against this measure, but they did not constitute a majority of the Members of the EP (MEPs), some MEPs being absent. So the EP instead sued to annul the Council’s measure before the Court of Justice of the European Union (CJEU), and won its case, on the grounds that a measure concerning human rights and coercive measures had to be adopted by means of the EU’s legislative process.

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

However, these Member States relented, and the European Parliament also pressed to retain and improve upon the Commission’s proposal. The result was that the EP and the Council (made up of Member States’ ministers) both agreed on their respective positions on the proposal in December 2013, and then both agreed on a joint deal on the legislation by February 2014.

The legislation will therefore be formally adopted in April this year, before the EP elections in May. The crucial question is therefore whether the EU will then be doing enough to address the loss of life and push-backs in the Mediterranean.

The new Regulation

The previous Decision contained binding rules on interception, and non-binding rules on search and rescue and disembarkation. However, the CJEU said that even the latter category of rules was binding.

As noted above, a group of Member States wanted to water down (as it were) most of these rules in the new Regulation, but was ultimately unsuccessful.

There are new rules on search and rescue, which retain (at the EP’s behest) the Commission’s detailed proposal on this issue, including particularly the definition of whether vessels can be considered in a state of alert, uncertainty or distress.

Provided that sinking vessels are detected in time and that these rules are properly applied, the Regulation should therefore ensure that migrants are rescued from drowning wherever possible.

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

The focus of this analysis is therefore upon those rules – followed by an assessment of the issue of the accountability of Frontex.

Protection and disembarkation rules

Continue reading “Steve PEERS:New EU rules on maritime surveillance: will they stop the deaths and push-backs in the Mediterranean?”

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

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”

Conference: Which Integration Policies for Migrants? Interactions between the EU and its Member States”

Please find in the link below information regarding the Conference entitled “Which Integration Policies for Migrants? Interactions between the EU and its Member States” to be held in Brussels the 28 and 29 October 2010
link: http://www.ulb.ac.be/assoc/odysseus/IntegrationE.html

Trafficking of human beings: towards a more protective regime?

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

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

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

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

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

  • the act
  • the method
  • the purpose

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

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

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

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

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

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

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

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

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

adopts the following Opinion.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[3] Para 187.

[4] Para 281.

[5] Para 282

[6] Para 284.

[7] Para 286.

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

[9] Para 288.

[10] Para 289.

[11] Para 285.

Readmission agreement with Pakistan: international human rights norms respected?

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

Agreements in force with visa facilitation

Albania

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

Bosnia&Herzegovina

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

Fyrom

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

Moldova

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

Montenegro

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

Ukraine

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

Serbia

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

Russia

Agreements with no Visa facilitation

Hong Kong

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

Macao

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

Sri Lanka

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

Pakistan

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

Negotiations with visa facilitation

Georgia

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

See also:

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

Leda Bargiotti

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

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

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

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

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

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

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

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

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

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

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

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

Right to legal aid

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

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

–       the weaker the user and

–       the higher the nature of the right at stake

the higher the legal assistance .

Right to appeal

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

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

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

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

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

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

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

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

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

3. Detention of asylum seekers

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

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

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

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

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

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

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

4. Identification of asylum seekers with special needs

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Also EU secondary law establishes such obligations:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Accession to the Geneva Convention

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

European Asylum Support Office

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

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

European Asylum Court

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

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

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

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

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

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

LB

Action Plan on the Stockholm Programme released by Statewatch

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

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

http://www.statewatch.org/


Towards a European regime of sea border rescue operations?

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

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

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

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

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

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

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

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

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

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

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

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

(*)From the SCHENGEN CODE
Article 12

Border surveillance

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

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

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

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

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

Article 13

Refusal of entry

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

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

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

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

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

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

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

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

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