29.03.2013. “Joint operations outside EU waters must not lead to the circumvention of European fundamental rights safeguards”
The EU Fundamental Rights Agency (FRA) has published this week a report on fundamental rights at the EU’s Southern sea borders. The report provides an in-depth examination of practices in Greece, Italy, Malta, Spain and Cyprus in border surveillance and disembarkation procedures for intercepted migrants, and studies the fundamental rights challenges related to EU funding and Frontex operations.
The ECRE Weekly Bulletin spoke to Adriano Silvestri, Head of FRA’s Asylum, Migration and Borders Sector, about policies and practices that have an impact on migrants trying to reach Europe by sea as well as the measures needed to better protect their lives and fundamental rights, including the right to seek asylum.
What priorities have emerged from your research for the protection of the fundamental rights of migrants at sea?
The most fundamental rights of an individual, the right to life and the prohibition of refoulement, are at stake at sea. According to UNHCR estimates, over 1,500 people went missing or died in the Mediterranean in 2011 alone. A great deal of effort is being made to save the lives of migrants at sea, including cases where officers put their own lives at risk to go out in rough seas and rescue people. There is also a lot of valuable work being done by NGOs and international organisations, in Italy and Spain for example. But there’s still more that could be done. First of all, rescue operations have to be initiated immediately when information about a boat in distress at sea is received: good coordination between the various national rescue coordination centres is very important to avoid delays.
In connection with this, there is a need to have clear rules about where to bring the intercepted or rescued migrants, because a lack of clarity about where to disembark them may also lead to delays. It is therefore important that Council Decision 2010/252/EU, which contained guidelines for Frontex-coordinated operations, but which was recently annulled by the Court of Justice, is soon replaced by a new instrument with strong protection safeguards.
Furthermore, all officers and institutions entrusted with border surveillance duties must be made aware that push-backs at sea are not allowed. This would lower the risk of refoulement.
Finally, cooperation with third countries should not lead to a situation in which European rights safeguards deriving from the European Convention on Human Rights are circumvented when operational tasks are undertaken outside of EU waters, i.e. in third countries’ territorial waters or on the high seas.
What can be done to assure the right to claim asylum at EU borders?
Firstly, it is extremely important that timely and effective information is provided about the right to seek asylum and about the procedures for doing so. Our research found that this is more effective where NGOs and international organisations are involved. The Praesidium project in Lampedusa, where a number of international humanitarian organisations cooperate with the authorities in managing arrivals, is an example of promising practice, as are the information sessions on asylum to new arrivals in Malta.
“All officers and institutions entrusted with border surveillance duties must be made aware that push-backs at sea are not allowed”
Secondly, there is a clear duty for all officers involved to refer asylum applications to the competent authorities. This should also be the case for officers deployed through Frontex or in joint operations.
There is also a need for those officers to know what an asylum request is. Without proper training it may not be easy to identify an asylum application, particularly where the word ‘asylum’ or ‘refugee’ is not used explicitly. During the interview with the police to identify the person who has just arrived, questions should be phrased in a way that allows migrants to say why they have left their own countries. And, of course, the interviews should be carried out with basic procedural safeguards in place, such as having an interpreter. From what we saw during our research, however, this is not always guaranteed.
Finally, the presence of NGOs and international organisations at the points of arrival is important for creating the trust that is necessary for migrants to come forward with their real concerns. For example, in Spain, upon disembarkation, all women and girls are first taken to the Red Cross offices, where they are given clean clothing, can take a shower, and have the opportunity to speak to a woman before police officers interview them. This creates at least a little bit of trust, especially in cases where the migrants have difficult or traumatic stories to tell.
The procedures employed after disembarkation are not only relevant for the right to seek asylum, but also for the identification of other categories of people who are at risk. In addition to identifying asylum seekers, it is also important to adapt the systems currently in place to identify suspected victims of human trafficking and unaccompanied or separated children, as well as victims of serious crimes. Particularly in Spain, we have seen a relatively high number of women and girls who were victims of very serious criminal acts before coming to the country. A recent report by MSF in Morocco has also documented the violence that migrants are subjected to there.
What potential does the EUROSUR package have, in your view, to increase fundamental rights protection at sea, and what are the potential dangers of the legislation?
EUROSUR allows to link the information that is collected through surveillance at the national level and by Frontex. The system presents the opportunity to offer more and earlier information on people in distress at sea and encourages collaboration between various responsible national agencies and authorities. But there are also potential risks. First of all, the lifesaving potential of EUROSUR may not in effect be fully exploited. Secondly, Member States may share information contained in EUROSUR with third countries. If a Member State shares information about a group of persons trying to leave to seek safety with a country from outside the EU, and that country intervenes and stops them from reaching safety, the action by the Member State would in practice prevent individuals from seeking asylum.
“The lifesaving potential of EUROSUR may not in effect be fully exploited.”
Finally, there have to be some checks and balances imposed to make sure that personal data is not inadvertently shared, including in the form of pictures or videos. The proposed regulation has a number of safeguards: for example, it forbids the sharing of information with third countries if this could be used to violate the basic fundamental rights of the individual concerned. However, we need to see how these safeguards are implemented. The evaluation of EUROSUR should definitely also include a fundamental rights perspective.
What are the possible pitfalls involved in collaboration with third countries in border control operations at sea?
Third countries, with the exception of Turkey, are not bound by the European Convention on Human Rights or by EU law. So the countries from which the migrant boats usually depart operate under different legal standards. This has to be borne in mind during the planning of such cooperation.
Collaboration with third countries can take different forms. Sometimes it is about donating equipment or assets. If donated assets are used to violate human rights, that should certainly have implications for future donations. In addition, though, such incidents should also be followed by a dialogue between the donating EU state and the third country.
Collaboration with third countries can also mean sharing intelligence. If information on migrant flows is shared, there need to be controls or guarantees that this information will not be used by that third country to take action at odds with the migrants’ fundamental rights.
However, it is the practical aspect of collaboration with third countries that is most problematic. Just because these joint operations take place outside EU Member States or EU waters, they must not lead to the circumvention of European fundamental rights safeguards.
“[Following the Hirsi case] immigration cooperation with third countries to prevent migrants from leaving in the first place is likely to increase”
Do you believe that readmission agreements thus far concluded with third countries include sufficient safeguards for migrants?
The 13 readmission agreements concluded at EU level do not involve the countries from which the boats depart. Some EU agreements contain specific human rights clauses, but not all. In 2011, the Commission undertook an evaluation of the EU readmission agreements, suggesting a number of safeguards that should be included in the future; one example would be a system of suspension in the case of persistent or serious violations of the human rights of readmitted persons.
Agreements concluded by EU Member States are often informal; arrangements that are not necessarily made public, are not accessible and thus not under public scrutiny. It is therefore very difficult to know what sort of safeguards, if any, are incorporated, and that, in our view, is one of the areas where more work is necessary.
What impact do you think the ECtHR judgement on the Hirsi case will have on border controls and return operations of the EU Member States, whether they act under the aegis of FRONTEX or not?
I believe that it will become more difficult for States that are party to the ECHR to carry out push-backs at sea as they were carried out by Italy to Libya in 2009. I also believe that immigration cooperation with third countries that looks at ways of preventing migrants from leaving in the first place is likely to increase.
It has been reported that Syrians who have applied for visas from the region to travel to European countries to re-join relatives and escape the war have had their request denied. Due to the impossibility for these families to legally seek and access protection, they will resort to illegal means of entry through procurement of false documentation and often dangerous routes, including by sea. What are your recommendations to reduce the need for people to take such a dangerous journey?
Just as during the civil war in Libya back in 2007, most Syrian refugees are remaining in their own region.
However, it is true that there have been incidents at sea involving Syrians. For example, last September a boat with 60 migrants, including children, capsized near Izmir with fatal consequences, and these incidents are of course a very dangerous sign.
“Fishermen are afraid that they could be subject to prosecution for facilitating irregular entry if they bring migrants to shore without first obtaining permission from the authorities.”
What are the obligations and the disincentives for shipmasters to render assistance or rescue migrants at sea?
The duty to render assistance to people in distress at sea applies to everybody. Refusal to assist is a criminal offence for every shipmaster in the countries covered by our research. Overall, in our interviews with shipmasters and fishermen, we got a very clear message that the duty to render assistance is seen as a humanitarian tradition and, as such, extremely important.
At the same time, there are also disincentives for fishermen to intervene. Firstly, there is a financial cost associated with assisting people in distress at sea, as the fishermen usually are requested by the authorities to wait near the people they have rescued until the rescuers arrive, and that causes them to lose time when they would otherwise be working. Secondly, fishermen are afraid that they could be subject to prosecution for facilitating irregular entry if they bring migrants to shore without first obtaining permission from the authorities. This is an issue I think that should be followed up more closely and, at EU level, a revision of the 2002 Facilitation Directive should be considered. Finally, rescue operations are very dangerous. Fishing boats and other boats may jeopardise their own safety when attempting to take a large group of migrants onto their boat, so these can sometimes prevent an immediate rescue operation from taking place, particularly under rough sea conditions.
“joint processing of asylum applications could contribute to ease tensions on where to disembark migrants intercepted or rescued at sea”
Do you think expert teams from the European Asylum Support Office (EASO) should be involved in Frontex maritime operations in order to ensure the right to claim asylum?
I think there is definitely scope for more collaboration at European level between Frontex and EASO. First of all, EASO has the potential to provide support to the asylum and reception systems in third countries, and hence to lower the risk of abuse, exploitation, and the lack of recourse to justice there.
Secondly, resources permitting, EASO and Frontex could certainly collaborate more closely, particularly in briefing Frontex officers before they start asylum operations. EASO could also provide operation-specific guidance on certain risk factors: how to identify asylum applications, where these should be referred, how to access interpreters and so on.
Finally, it would be interesting to start exploring the possibility of jointly processing asylum applications in the EU, as these could contribute to ease tensions on where to disembark migrants intercepted or rescued at sea. EU Member States collaborate in the field of issuing visas; experience gathered by consulates could be a starting point for exploring joint processing of asylum claims. If the European Union would go in this direction, an enhanced role for EASO could also be envisaged. Clearly, joint processing of asylum applications would only be a first step which would need to be accompanied by solidarity mechanisms to share responsibility for persons found in need of international protection as well as for persons who, after a fair procedure, have been channelled into return procedures.