Category Archives: News

Interview with Frontex Director Laitinen

Several months ago the Finnish newspaper Fifi Voima published an interview with Frontex Director Ilkka Laitinen.  It is an interesting article if you read Finnish or use a translator (unfortunately Google translate does not handle Finnish well).

One interesting point from the article is Director Laitinen’s clear insistence that Frontex is not legally capable of violating human rights.  This is not a new position on the part of Frontex, but the Director is very emphatic in his position.  When asked about who could be held responsible for rights violations that might occur during Frontex coordinated joint operations, the Director indicated that Frontex is of the opinion that the operation and any potential human rights violations taking place are the responsibility of the Member States, not Frontex .

[Kenen vastuu?

Frontex koordinoi EU:n jäsenmaiden yhteisiä operaatioita maalla, merellä ja ilmassa. Käytännössä kyse on siitä, että esimerkiksi suomalaiset rajavartijat partioivat Välimerellä ja saksalaiset Kreikan ja Turkin rajalla paikallisten mukana. Kunkin operaation johdossa on yksi EU-valtio.

Frontexin kanta on, että operaatiosta ja niissä tapahtuvista mahdollisista ihmisoikeusloukkauksista ovat vastuussa jäsenmaat, ei Frontex.

Ilkka Laitinen ei esimerkiksi anna takuita siitä, etteikö hänen johtamansa viraston koordinoimissa operaatioissa ole käännytetty laittomasti siirtolaisveneitä Välimerellä. Hän perustelee tätä sillä, että vastuu toimista on jäsenmailla.]

Click here for link to article “Miehemme rajalla.”

 

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EU Mediterranean States Oppose Provisions of Proposed Frontex Sea Borders Regulation Relating to Rescue and Disembarkation

[16 Oct. UPDATE: The document from the six states opposing the proposed Regulation is available here.]

One week ago Commissioner Cecilia Malmström called for an “extensive Frontex search and rescue operation that would cover the Mediterranean from Cyprus to Spain.” Yesterday the ANSA news service reported that all six EU Mediterranean states (Cyprus, Greece, Italy, Malta, France and Spain) have voiced opposition to the proposed Frontex Sea Borders Regulation (COM(2013) 197 final) and specifically to Articles 9 and 10 relating to “Search and Rescue Situations” and “Disembarkation.” ANSA reported that the six member states “expressed disapproval of the draft and called it ‘unacceptable for practical and legal reasons’.”  The six countries have reportedly taken the position that there is no need for further regulations pertaining to rescue at sea or post-rescue places of disembarkation since other international laws already “deal ‘amply’ with the matters.”

As you may recall, the earlier version of the Frontex Sea Borders Rule in the form of a Decision was adopted by the European Council in 2010 (Decision 2010/252/EU).  The Decision was subsequently annulled by the Court of Justice of the European Union on the ground that it introduced new essential elements into the Schengen Borders Code by way of the provisions on interception, rescue and disembarkation and that such substantive changes required the consideration and approval of the European Parliament. (European Parliament v Council of the European Union, Case C-355/10, 5 Sept. 2012). The proposed replacement for the annulled Decision is in the form of a Regulation but is fairly similar in content.

While the ANSA report does not identify the specific reasons why the six states are opposing the proposal, one can speculate that the objections to Art. 9, Search and Rescue Situations, may be based on a perception that it would expand the obligation to rescue under certain circumstances.  For example the Article requires that even in the absence of a distress call, a rescue operation might still be required if other factors are present, including:

  • the seaworthiness of the ship and the likelihood that the ship will not reach its final destination;
  • the number of passengers in relation to the type and condition of the ship;
  • the availability of necessary supplies such as fuel, water, food to reach a shore;
  • the presence of passengers in urgent need of medical assistance;
  • the presence of deceased passengers;
  • the presence of pregnant women or children.

The objections by the six states to Art. 10 regarding places of disembarkation are most likely due to the states’ conflicting positions regarding where disembarkation should occur.  While Art. 10 creates a procedure for decisions regarding places of disembarkation to be made by participating member states in advance of joint operations, its provisions identify circumstances under which disembarkation in member state may occur when that state is not participating in the joint operation.  Malta and Italy in particular have long disagreed on where disembarkations are to occur.  This long standing disagreement obviously contradicts the claims made by the six opposing states that existing international laws already deal “amply” with the disembarkation issue.

Click here for ANSA article.

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Filed under Aegean Sea, Cyprus, European Union, France, Frontex, Greece, Italy, Malta, Mediterranean, News, Spain

24,000 Migrants Reach Italy by Sea Over Past 12 Months

Italian Interior Minister Angelino Alfano reported that 24,277 migrants have landed in Italy from 1 August 2012 to 10 August 2013.  8,932 persons have landed in the past 40 days – 1st July until 10th August 2013.

Click here , here  (IT), and here (EN) for articles.

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Italy Diverts Additional Commercial Ships to Rescue Migrants

The Italian news agency AGI reported that Italian search and rescue authorities yesterday diverted two commercial ships, the Patroclus, a Maltese oil tanker, and the Cdry White, an Italian cargo ship, to assist with the rescue of two groups of migrants.  The first group of approximately 76 migrants was rescued about 40 miles from Tripoli by an Italian coastguard vessel; the group was then transferred to the Cdry White.  The Patroclus appears to have directly rescued a group of approximately 97 migrants south of Lampedusa.  AGI reported that the two commercial ships are sailing to Trapani and Pozzallo in Sicily to disembark the rescued migrants.

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PACE Calls for Urgent Measures to Assist Greece and Turkey With Mounting Migratory Tensions in Eastern Mediterranean

PACE, the Council of Europe’s Parliamentary Assembly, adopted a Resolution on 24 January 2013 calling for “firm and urgent measures [to] tackle the mounting pressure and tension over asylum and irregular migration into Greece, Turkey and other Mediterranean countries.”  The Resolution noted that Greece, with EU assistance, has enhanced border controls, particularly along its land border with Turkey and while “these policies have helped reduce considerably the flow of arrivals across the Evros border with Turkey, they have transferred the problem to the Greek islands and have not helped significantly in dealing with the situation of irregular migrants, asylum seekers and refugees already in Greece.”

The Resolution makes recommendations to the EU, Greece, and Turkey and calls on CoE members states to “substantially increase their assistance to Greece, Turkey and other front-line countries” in various ways, including:

  • provide bi-lateral assistance, including by exploring new approaches to resettlement and intraEurope relocation of refugees  and asylum seekers;
  • share responsibility for Syrian refugees and asylum seekers via intra European Union relocation and refrain from sending these persons back to Syria or third countries;
  • maintain a moratorium on returns to Greece of asylum seekers under the Dublin Regulation.

The Resolution was supported by a Report prepared by Ms Tineke Strik, Rapporteur, PACE Committee on Migration, Refugees and Displaced Persons.

Click here for full text of Resolution 1918(2013), Migration and asylum: mounting tensions in the Eastern Mediterranean.

Click here for PACE press statement.

Click here for Report by Rapporteur, Ms Tineke Strik, Doc. 13106, 23 Jan 2013.

Here are extensive excerpts from the Rapporteur’s Report (which should be read in its entirety):

Summary -  Greece has become the main entry point for irregular migratory flows into the European Union, while Turkey has become the main country of transit. [***]

Europe must drastically rethink its approach to responsibility sharing to deal with what is a European problem and not one reserved to a single or only a few countries. Member States are called on to substantially increase their support for Greece, Turkey and other front-line countries to ensure that they have a realistic possibility of dealing with the challenges that they face. In this the Council of Europe also has a role to play, for example through exploring resettlement and readmission possibilities, assisting States in dealing with their asylum backlogs and putting forward innovative projects to alleviate growing racism and xenophobia towards migrants, refugees and asylum seekers.

[***]

C. Explanatory memorandum by Ms Strik, rapporteur

1. Introduction

[***]

2. Greece is facing a major challenge to cope with both the large influx of mixed migratory flows, including irregular migrants, refugees and asylum seekers, and the current economic crisis. That said it is not the only country struggling to cope in the region. It is impossible to look at the situation of Greece without also examining that of Turkey, which is the main country of transit to Greece and is also having to shoulder responsibility for over 150 000 Syrian refugees.

3. In the light of the foregoing, it is necessary to examine the extent of the migration and asylum challenges at Europe’s south-eastern border, taking into account Turkey and Greece’s policy reactions. Two further elements have to be added to this, namely the social tensions arising within Greek society due to an overload of financial and migratory pressure and also the issue of shared responsibility in Europe for dealing with European as opposed to simply national problems.

2. The storm at Europe’s south-eastern border

2.1. Greece under pressure: irregular migration challenge and economic crisis

4. In recent years, hundreds of thousands of irregular migrants, asylum seekers and refugees crossed the Greek land, river and sea borders with many travelling through Turkey. In 2010, the large majority of mixed migratory flows entered the European Union through the Greek-Turkish border. This situation brings major challenges in terms of human rights and migration management.

5. According to statistics provided by the United Nations High Commissioner for Refugees (UNHCR), in 2010, more than 132 000 third-country nationals were arrested in Greece, including 53 000 in the Greek-Turkish border regions. During the first ten months of 2012, over 70 000 arrests occurred, including about 32 000 at the borders of Turkey.  People came from 110 different countries – the majority from Asia, including Afghanis, Pakistanis and Bangladeshis, as well as from Iraq, Somalia, and the Middle-East, especially Palestinians and an increasing number of Syrians.

6. Most migrants and asylum seekers do not want to stay in Greece and plan to continue their journey further into Europe. Many of them are however stuck in Greece, due to border checks and arrests when trying to exit Greece, the current Dublin Regulation, and the fact that many irregular migrants cannot be returned to their country of origin.

7. The context of the serious economic and sovereign debt crisis aggravates the situation and reduces the ability for the Greek Government to adequately respond to the large influx. [***]

2.2. Syria: a bad situation could get worse

8. In its Resolution 1902 (2012) on “The European response to the humanitarian crisis in Syria”, the Parliamentary Assembly condemned “the continuing, systematic and gross human rights violations, amounting to crimes against humanity, committed in Syria”. It described the humanitarian situation as becoming “more and more critical” for the estimated 1.2 million internally displaced Syrians and the 638 000 Syrians registered or awaiting registration as refugees in neighbouring countries.

[***]

11. By October 2012, 23 500 Syrian nationals had applied for asylum in EU member States, including almost 3 000 applications in September 2012 alone, and over 15 000 in Germany and Sweden.  Compared to neighbouring countries, asylum seeker numbers in the European Union currently remains manageable. However the number of Syrians trying to enter Greek territory in an irregular manner reached a critical level in July 2012, when up to 800 Syrians were crossing the Greek-Turkish land border every week. In the second half of 2012, more than 32% of sea arrivals to the Greek Islands were Syrian nationals.

2.3. Regional implications of mixed migratory arrivals

12. In recent years, Spain, Italy and Malta were at the forefront of large-scale sea arrivals. According to the UNHCR, in 2012, 1 567 individuals arrived in Malta by sea. 75% of these persons were from Somalia. The UNHCR estimates however that less than 30% of the more than 16 000 individuals who have arrived in Malta since 2002 remain in Malta.

13. Spain and Italy have signed and effectively enforced readmission agreements with North and West African countries cutting down on the mixed migration flows. These agreements have provided the basis for returning irregular migrants and preventing their crossing through increased maritime patrols and border surveillance, including in the context of joint Frontex operations.

14. As a consequence of shifting routes, migratory pressure at the Greek-Turkish border increased significantly and Greece became the main gate of entry into the European Union from 2008 onwards, with an interval in 2011 when the Arab Spring brought a new migratory flow to Italy and Malta. To give an idea of how much the routes have changed, Frontex indicated that in 2012, 56% of detections of irregular entry into the European Union occurred on the Greek-Turkish border.

15. Turkey, by contrast, has become the main transit country for migrants seeking to enter the European Union. Its 11 000-km-long border and its extensive visa-free regime make it an easy country to enter. An estimated half a million documented and undocumented migrants currently live in the country. This has brought a whole new range of challenges for Turkey and meant that it has had to develop a new approach to migration management and protection for those seeking asylum and international protection.  It has also faced problems in terms of detention of irregular migrants and asylum seekers. As with Greece, the conditions of detention have been highly criticised and steps are being taken to build new centres with the assistance of funding from the European Union.

16. Until recently, the traditionally complex Greek-Turkish political relations did not allow the pursuit and consolidation of an effective readmission policy with Turkey. Although Greece, for example, signed a readmission protocol with Turkey which goes back to 2001, the implementation of this was only agreed on in 2010. It is important that this bilateral agreement between Greece and Turkey functions effectively and this will be a challenge for both countries.

3. Shielding Greece through border management and detention: does it work?

3.1. Enhanced border controls at the Greek-Turkish land border (Evros region)

17. The unprecedented numbers of irregular migrants and asylum seekers attempting to cross the Greek-Turkish border in recent years put the existing capacities and resources of Greece under severe strain. To remedy this situation, the Greek authorities have adopted the “Greek Action Plan on Asylum and Migration Management”, which is the basis for reforming the asylum and migration management framework in Greece.

18. In this context, considerable efforts were undertaken to reinforce Greece’s external borders and particularly the Greek-Turkish border in the Evros region. This was done notably through building up operational centres, using electronic surveillance and night vision devices, and by deploying patrol boats to strengthen river patrols. The surveillance technology used is part of the efforts under the European Border Surveillance System (Eurosur).

19. The so-called operation “Aspida” (“shield”), initiated in August 2012, aims to enhance border controls, surveillance and patrolling activities at the Greek-Turkish land border. Approximately 1 800 additional police officers from across Greece were deployed as border guards to the Evros region.

20. Increased border controls in the context of this operation have not been without criticism. There have been worrying reports about migrants, including refugees and asylum seekers from Syria and other countries, being pushed back to Turkey over the Evros river.  Two incidents reportedly took place in June and October 2012, when inflatable boats were intercepted in the middle of the Evros river by Greek patrol boats and pushed back to Turkey before their boat was sunk, leaving people to swim to the Turkish shore.

21. In addition, the Greek authorities completed a barbed wire fence at the 12.5-km-land border in December 2012. The barrier which was criticised by EU officials when announced  and built without EU funding, cost an estimated 3 million euros.

22. As a consequence of these actions, the numbers of irregular land border crossings dropped from over 2 000 a week in the first week of August to below 30 a week in the second half of September. According to the regional governor of Eastern Macedonia and Thrace, they are now close to zero.  While the Greek authorities claim that these actions have resulted in a more than 80% decrease of irregular entries,  one can observe that migrants’ routes have shifted from the Greek-Turkish land border mainly to the sea border between both countries. This shift has been recognised by the Greek authorities.

23. Increased numbers of migrants are now arriving on the Greek Aegean islands of Lesvos, Samos, Symi and Farmkonissi. Between August and December 2012, 3 280 persons were arrested after crossing the Greek-Turkish sea border,  compared to 65 persons in the first seven months of 2012.

24. There has also been an increase in the number of deaths at sea. In early September 2012, 60 people perished when their boat sank off the coast in Izmir.  On 15 December 2012, at least 18 migrants drowned off the coast of Lesvos while attempting to reach the island by boat.

25. The spill over effect of new routes opening are now being felt by neighbouring countries, such as Bulgaria and some of the Western Balkans.

3.2. Systematic detention of irregular migrants and asylum seekers

26. Together with increased border controls, administrative detention remains the predominant policy response by the Greek authorities to the entry and stay of irregular migrants.  [***]

[***]

29. Particularly worrying are the conditions in the various detention centres and police stations where irregular migrants and asylum seekers are held, and which have frequently been criticised. The European Court of Human Rights has found Greece to be in violation of the right to freedom from inhuman or degrading treatment in several cases in recent years.  In addition, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment and Punishment (CPT) has regularly criticised the poor detention conditions of irregular migrants and asylum seekers and the structural deficiencies in Greece’s detention policy as well as the government’s persistent lack of action to improve the situation.  See also: CPT, Report on its visit from 19 to 27 January 2011, published on 10 January 2012, at: www.cpt.coe.int/documents/grc/2012-01-inf-eng.pdf, together with the reply by the Greek authorities, at: www.cpt.coe.int/documents/grc/2012-02-inf-eng.pdf. The conditions of detention in one centre in Greece were found to be so bad that a local court in Igoumenista acquitted, earlier this year, migrants who were charged with escaping from detention stating that the conditions in the centre were not in compliance with the migrants’ human rights.

[***]

3.3. Impediments in accessing asylum and international protection

35. Despite the current efforts by the Greek authorities to reform the asylum and migration management framework, the country still does not have a fair and effective asylum system in place. The Greek Action Plan on Migration and Asylum, which was revised in December 2012, sets out the strategy of the Greek Government. It foresees the speedy creation of a functioning new Asylum Service, a new First Reception Service and a new Appeals Authority, staffed by civil servants under the Ministry of Public Order and Citizens Protection, disengaging the asylum procedure from the police authorities. However problems in finding sufficient financial resources and qualified staff still give rise for concerns on the implementation of the plans.

[***]

4. Social tensions within Greek society

4.1. The social situation of migrants and asylum seekers

41. Greece’s efforts to deal with the influx of irregular migrants and asylum seekers suffers from there being no comprehensive migration policy. [***]

4.2. Discrimination, xenophobia and racist attacks against migrants

46. The mounting social tensions and the inadequate response by the State to address the difficult social situation of migrants, asylum seekers and refugees have led to an increase in criminality and exploitation of this group. In addition, migration has become a key confrontational political issue. This in turn has contributed to an increasingly wide-spread anti-immigrant sentiment among the Greek population.

47. Over the last two years there has been a dramatic increase in xenophobic violence and racially motivated attacks against migrants in Greece, including physical attacks, such as beatings and stabbings, attacks on immigrants’ residences, places of worship, migrants’ shops or community centres.  The Network for Recording Incidents of Racist Violence documented 87 racist incidents against migrants and refugees between January and September 2012.  Half of them were connected with extremist groups.

48. Members and supporters of Golden Dawn have often been linked with recent violent attacks and raids against migrants and asylum seekers. By using blatantly anti-migrant and racist discourse, often inciting violence, Golden Dawn gained 7% of the popular vote during the June 2012 parliamentary elections and support seems to be growing, according to recent polls. In October 2012, the Greek Parliament lifted the immunity from prosecution of the two Golden Dawn MPs who participated in the violent attacks against migrants in September.

49. The Council of Europe Commissioner for Human Rights has called on Greece to examine whether the “most overt extremist and Nazi party in Europe” is legal. It seems that Golden Dawn aims at political and societal destabilisation and gains by the failing policy regarding refugees and irregular migrants. In December 2012, the European Commission against Racism and Intolerance (ECRI) expressed its “deep concern” about the rise of Golden Dawn and asked the Greek authorities to “take firm and effective action to ensure that the activities of Golden Dawn do not violate the free and democratic political order or the rights of any individuals”.

5. The European responsibility for a European problem

5.1. European front-line States under particular pressure

50. This is not the first time that the Parliamentary Assembly expresses its concern on the particular pressure that European front-line States are confronted with. Resolution 1521 (2006) on the mass arrival of irregular migrants on Europe’s Southern shores, Resolution 1637 (2008) on Europe’s “boat people”: mixed migration flows by sea into southern Europe and Resolution 1805 (2011) on the large-scale arrival of irregular migrants, asylum seekers and refugees on Europe’s southern shores.

51. Despite the fact that most European Union countries have stopped returning asylum seekers to Greece under the Dublin Regulation following the judgment of the European Court of Human Rights in the case M.S.S. v. Belgium and Greece,  there are still some reports of returns from some countries based on this regulation.

52. The final agreement between the Council and the European Parliament on the revision of the Dublin Regulation still allocates responsibilities for asylum seekers to a single EU member State and does not present a more fundamental reform of the rules. European Union member States also rejected the idea of a mechanism to suspend transfers to those EU countries which were unable to manage the influx of asylum seekers into their territory, preferring to adopt an “early warning mechanism”.

5.2. Greece: A test case for European solidarity

53. This migratory pressure Greece is confronted with comes at a moment when the country is suffering as no other European country does from the current economic and social crisis. In response to these difficulties, the European Union has provided financial and technical assistance.

54. During the period of 2011-2013, Greece received 98,6 million euros under the Return Fund, 132,8 million euros under the External Border Fund and 19,95 million euros under the European Refugee Fund. The focus of funding was thus on border control and detention measures, to the detriment of the protection measures.

55. Frontex Joint Operation “Poseidon Land” was launched in 2010 at the borders between Turkey and Greece and between Turkey and Bulgaria. EU member States currently have 41 police officers and equipment deployed to the Evros border region in Greece.  They also support the Greek and Bulgarian authorities with the screening and debriefing of irregular migrants, and tackling irregular migratory inflows and smuggling networks towards Greece. In addition, Frontex has recently strengthened its patrols in the coastal waters in the Eastern Aegean between Greece and Turkey in the context of Joint Operation “Poseidon Sea”. European Union member States have deployed additional maritime surveillance assets at the sea border between Greece and Turkey. The joint operation was extended to also cover the West coast of Greece and today is Frontex’s main operational activity in the Mediterranean region.

56. Furthermore, the European Asylum Support Office (EASO) provides technical support to Greece and other EU member States whose asylum and reception systems are under particular pressure. Following the request by the Greek Government in February 2011, EASO started giving assistance and training in building up a new asylum system, improving reception conditions of asylum seekers in Greece and clearing the backlog of outstanding asylum claims. To do this they have deployed over 40 Asylum Support Teams of experts to the country.

57. While EU member States are ready to provide financial and technical assistance to help Greece in managing and controlling its borders, with a focus on both forced and voluntary returns as a policy solution, they are not keen on sharing the reception and processing of mixed migratory flows arriving at the European Union’s external border. According to the Greens/European Free Alliance of the European Parliament, “[m]igration will not be stopped by reinforcing border control, border management measures and forced returns; the current approach only reinforces human rights violations”.

58. As rapporteur I would largely agree with this statement, although I would add that while such policies may be able to solve a problem in one country, it then simply “passes the buck” to another. Should it be possible to seal Greece’s border, this would undoubtedly then put even greater pressure on Turkey and Bulgaria and then up the eastern borders of the European Union. This is an issue which will be the subject of a separate report by the Committee on Migration, Refugees and Displaced Persons.

59. The European Union response to the economic and financial crisis in Greece has been a massive bail out. Similar solidarity is however necessary with regards to the current social and humanitarian crisis in the field of migration and asylum. Europe is however doing too little, too late. A shared asylum policy that takes into account that the migratory pressures are not the sole responsible of one or a few European States, but a European problem, is even more essential in a time when the region is facing major instability. This instability will only increase further if the up and coming Golden Dawn party succeeds in exploiting the immigrant issue. Europe cannot afford to look away.

60. Increased migratory flows to European front-line States requires a fundamental rethink on solidarity and responsibility sharing. This includes swift solutions that go beyond mere financial and technical assistance and show greater solidarity in receiving refugees and asylum seekers and developing resettlement, especially currently for Syrian refugees from the neighbouring countries of Syria, and intra-EU relocation programmes, in particular where children and families are concerned. Assembly Resolution 1820 (2011) on asylum seekers and refugees: sharing responsibility in Europe provides meaningful recommendations in this respect.

6. Conclusions

61. The pressure of mixed migratory flows currently unfolding at the European Union’s external borders in the eastern Mediterranean requires rethinking of the entire solidarity system with the European Union and the Council of Europe. Greece, Turkey or other neighbouring countries should not be left with the primary responsibility of dealing with the mounting mixed migratory pressure from the South and East. A shared asylum and migration policy is even more essential at a time when the region is facing major economic and social instability.

62. Stricter border control, prolonging migrants’ and asylum seekers’ detention or constructing new detention facilities in Greece all contribute to further human rights violations taking place. They are not the way out of the problem and they do not persuade people fleeing from poverty or violence in their countries of origin to remain at home.

63. The recent efforts by the Greek authorities to introduce a more effective and humane system addressing the large number of irregular migrants and asylum seekers entering Greece is a welcome step in the right direction. Greece however faces a Herculean task in building up an efficient, fair and functioning system providing international protection to those in need.

64. Europe urgently needs to join forces to deal with the Syrian refugee problem, offering resettlement and relocation to relieve the burden falling on neighbouring States of Syria as well as its southern European States, and ensuring that Syrian refugees are not sent back.

65. The challenges are great but not insurmountable for Europe. Left to individual States they are.

[***]”

Click here for full text of Resolution 1918(2013), Migration and asylum: mounting tensions in the Eastern Mediterranean.

Click here for PACE press statement.

Click here for Report by Rapporteur, Ms Tineke Strik, Doc. 13106, 23 Jan 2013.

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Filed under Aegean Sea, Analysis, Council of Europe, Frontex, Greece, News, Reports, Syria, Turkey, UNHCR

UNHCR: Record Number of Migrants and Refugees Crossed Gulf of Aden in 2012

The UNHCR reported on 15 January 2013 that “[a] record 107,500 African refugees and migrants made the dangerous journey from the Horn of Africa to Yemen in 2012. This is the largest influx into Yemen since 2006 when UNHCR began compiling these statistics. The previous record high was in 2011 when more than 103,000 people arrived in Yemen by sea.”  UNHCR estimates that 80% of the persons making the crossing are Ethiopian and the remainder Somali.   UNHCR estimates that approximately 100 persons drowned in 2012.  “Boats crossing to Yemen are often packed beyond capacity and smugglers, in order to avoid the Yemeni coast guard, force passengers into the water, often far from the shores and with tragic consequences.”

Click here for full UNHCR press release.

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Filed under Data / Stats, Ethiopia, Gulf of Aden, News, Somalia, UNHCR, Yemen

UNHCR Reports 55 people missing or drowned off northern Somali coast

UNHCR Press Release:

“Fifty-five people are drowned or missing after an overcrowded boat capsized off the Somali coast on Tuesday night (18 December). UNHCR is greatly saddened by this latest tragic incident – the biggest loss of life in the Gulf of Aden since February 2011 when 57 Somali refugees and migrants from the Horn of Africa drowned while attempting to reach Yemen.

According to five of the survivors – all young Somali men – the boat was overcrowded and ran into trouble almost immediately after leaving the port of Bosasso in northern Somalia on Tuesday. It capsized just 15 minutes into its journey, spilling all 60 passengers into sea. Those on board were Ethiopians and Somalis.

To date, 23 bodies have been recovered, including those of 14 women, eight men, and a boy said to be less than four years of age. Five of the dead are confirmed to have been Ethiopians. The thirty-two remaining passengers are presumed to have drowned.

‘The tragic loss of so many lives is a new and stark reminder of the risks Somali refugees are taking as they flee their country’ said UNHCR Representative for Somalia, Bruno Geddo. ‘Without doubt, the Gulf of Aden is now the deadliest route for people fleeing conflict, violence and human rights abuses in the Horn of Africa.’

100,000 people have crossed the Red Sea and the Gulf of Aden this year, despite warnings from UNHCR and other aid agencies about the risks such trips involve. In addition to using unseaworthy and overcrowded boats, those fleeing the Horn of Africa region often fall prey to unscrupulous smugglers, in whose hands they can face exploitation, extortion and even death.

With the latest deaths, 95 people have drowned or gone missing in the waters between Somalia and Yemen this year. UNHCR and other agencies, through the local Migration Response Centre (MRC) in Bosasso are currently providing support and services to the survivors and assisting the local authorities with the ongoing recovery operations.

END

Further info: Andy Needham, UNHCR Somalia PI Officer +254 733 120 931 needham@unhcr.org

Andy Needham Public Information Officer UNHCR Somalia First Floor, Lion Place, Waiyaki Way 43801-00100 Nairobi, Kenya

Somalia Displacement Portal: https://data.unhcr.org/horn-of-africa/somalia.php

m: +254 733 120 931 d: +254 20 420 2103 o: +254 20 420 2000

needham@unhcr.org www.unhcr.org www.takeaction.unhcr.org “

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Filed under Gulf of Aden, News, Somalia, UNHCR, Yemen

At Least 20 Persons Dead After Migrant Boat Capsizes in Aegean Sea

A migrant boat attempting to sail from Turkey to Greece reportedly capsized near the Greek island of Lesvos on Thursday or Friday.  The boat was carrying about 28 persons.  At least 20 bodies have been recovered.  Only one survivor has been located.  Media reports describe the migrants as Iraqis or “of Asian origin.”  The boat’s captain was reportedly Turkish.

Click here (EN), here (EN) and here (GR) for articles.

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Filed under Aegean Sea, European Union, Frontex, Greece, News, Turkey

Guardian: Report of Syrians Having Been Turned Back on Evros River by Greek and Possibly Frontex Border Guards

A Guardian article today describes an incident which occurred earlier in the year which, if accurate, would indicate that Greek border guards and possibly border guards operating under Frontex Joint Operation Poseidon Land have returned Syrian asylum seekers (and migrants of other nationalities) to Turkish territory without registering and screening the migrants.

Excerpt: “This summer two people smugglers left 25 Syrian refugees to cross the Evros alone at night. There were two rubber dinghies. The first disappeared across the river into the night. The second …capsized. Most of the men, women and children could not swim. Some survived … The bedraggled Syrians who made it ashore [were detained].  After [irregular migrants are arrested], they are usually detained in administrative holding centres by the EU border police, Frontex, which has been deployed a few miles from the border since 2010. However, the group of Syrian refugees who made it across the Evros that night were not registered. Instead, they were arrested by officers in ‘blue uniforms’ and driven back to the river. ‘There were between 100 to 150 people by the river,’ said Farouk (not his real name), a 29-year-old from the Qamishli region in northern Syria. ‘They were of many nationalities, mainly Syrian. Some tried to make problems: they had paid a lot of money to get that far. When that happened, the police beat them. The police kicked and slapped them, including the women, they picked up children and threw them into the boat.’  The officers put people in small plastic boats, which they tied to larger, motorised boats, and returned them to Turkish territory.  … A UN High Commissioner for Refugees source said the organisation could not comment on Farouk’s story or illegal push-backs by Greek police in general. However, they acknowledged hearing similar accounts. ‘People say that there is a situation where people may enter the territory but are not registered as persons who are arrested in Greek territory. They are returned through use of force at night through the river. We think that these operations have been eliminated in the last two years.’ … Pasxalis Syritoudis, police chief of the northern Evros region, denied that his officers operated a push-back policy. … However, Syritoudis admitted that his main goal was to ‘prevent people entering Greek soil’. This meant sometimes his officers used boats to block migrants in dinghies from crossing the border. ‘We have 10 boats patrolling the river all the time. The boats are used to block people from crossing – to stop them getting to Greek territory.’…”

Click here for article.

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UN Special Rapporteur on HR of Migrants expresses concern over Italy-Libya cooperation on migration

The UN Special Rapporteur on the human rights of migrants, Prof. François Crépeau, for the past six months has been conducting “a one-year comprehensive study to examine the rights of migrants in the Euro-Mediterranean region, focusing in particular on the management of the external borders of the European Union.”  The Special Rapporteur will present a thematic report on the human rights of migrants at the borders of the European Union to the UN Human Rights Council in June 2013.  To date he has concluded official visits to EU offices in Brussels, Tunisia, Turkey, and Italy; a nine-day visit to Greece began on 25 November.  The Special Rapporteur has issued preliminary conclusions at the end of each completed mission.  One common concern is that various actions of the EU and neighbouring countries are resulting in human rights considerations being overshadowed by migration control and security objectives.

At the conclusion of the most recent mission to Italy (30 September – 8 October 2012), the Special Rapporteur expressed concern over Italy’s (and the EU’s) ongoing cooperation with Libya:

“Another matter of paramount importance are the bilateral cooperation agreements negotiated between Italy and its neighbours on the question of migration. Although the EU has negotiated a number of EU wide readmission agreements, the absence of a clear regional framework for such agreements, including a lack of minimum human rights standards, has led to the creation of a number of bilateral readmission agreements between Italy and its neighbours which often do not appear to have human rights at their core.  Of particular concern is the Italy-Libya bilateral cooperation on migration. The 2008 agreement formalised cooperation to strengthen Libya`s capacity to intercept irregular migrants on Libyan territory or territorial waters, even though Libya’s record at effectively protecting the human rights of migrants was poor and reports of human rights abuses of migrants in Libya were frequent. In line with the decision of the European Court of Human Rights pronounced in the Hirsi case that such ‘push-backs’ by Italian authorities towards Libya were not acceptable, the agreement is currently suspended and the Hirsi-defined push-backs appear to have ceased. However, Italy-Libya migration cooperation was recently reinforced through a 2012 processo verbale. This new political framework however, contains very little concrete information on strengthening Libya’s normative framework and institutional capacities regarding the human rights of migrants.”

The Special Rapporteur also expressed concern that the current technical assistance in Search and Rescue capability being provided by Italy to Libya is in effect disguised migration control assistance:

 “Moreover, I have learnt of increased bilateral cooperation between Italian and Libyan authorities regarding search and rescue operations, including the provision of logistical and technical support to Libyan coast guards. Whilst increased search and rescue capacity in the Mediterranean is undoubtedly of paramount importance, I have observed that there appears to be a strong focus on strengthening the capacities of the Libyan authorities to intercept migrants hoping to reach Europe, on both their territory and in their territorial waters, and return them to Libya. In this context, I warn EU member states against a progressive ‘externalisation’ of border control. In particular, considering the on-going difficulties of the Libyan authorities and the reports of human rights abuses against migrants on Libyan territory, this migration cooperation with Libya should not lead to any migrant being returned to Libyan shores against their will, either by Italian coast guards or Guardia di Finanza, or by Libyan coast guards with the technical or logistical support of their Italian counterparts.”

While acknowledging the important support provided to Italy by Frontex, the Special Rapporteur expressed concern over certain Frontex activities in Italy:

“[  ] I am aware that the key focus of FRONTEX remains information and intelligence gathering. In Italy FRONTEX thus works predominantly with the Guarda di Finanza and the Border Police to combat irregular migration, migrant smuggling and other migration related crimes. I remain concerned that these security objectives still appear to overshadow human rights considerations. For example, I have learned that FRONTEX officers conduct interviews with migrants in Italian detention facilities in order to gather information on their journeys. However these interviews are conducted without any external supervision. It is thus essential that effective human rights standards be integrated into all departments and agencies related to border management.”

The Special Rapporteur made the following “Preliminary Recommendations to the Italian government”:

  • “Ensure that migration cooperation with Libya does not lead to any migrant being returned to Libyan shores against their will, either by Italian authorities, or by Libyan authorities with the technical or logistical support of their Italian counterparts.
  • Prohibit the practice of informal automatic “push-backs” to Greece.
  • Guarantee the full access by international organisations, including UNHCR and IOM, civil society organisations and lawyers to all areas where migrants are held or detained to identify protection concerns
  • Develop a nation-wide regulatory framework, with respect for human rights at its core, for the organisation and management of all migrant detention centres.
  • Develop a simpler and fairer appeal system for expulsion and detention orders that integrates human rights considerations at each procedural step.
  • Develop a speedier identification system, including commencing the identification of foreign inmates whilst in prison, in order to make sure that detention of migrants for identification purposes is limited to the shortest time possible, with a maximum of 6 months.”

Similar concerns were expressed by the Special Rapporteur after his missions to Tunisia and Turkey:

Tunisia, 8 June 2012: “… Nevertheless, I learned that a large majority of regional migration initiatives coming from the EU continue to be focused on issues of border control, and do not consider important issues such as the facilitation of regular migration channels. Thus I encourage the European authorities to develop, in the context of the Migration and Mobility Partnership currently being negotiated, and in conjunction with bilateral agreements of the Member States of the Union, a more nuanced policy of migration cooperation with Tunisia, which moves beyond security issues to develop new initiatives in consultation and in real partnership with Tunisian authorities, which place at their core the respect, protection and promotion of the human rights of migrants….”

Turkey, 29 June 2012:  “… While the EU and Turkey have developed a close cooperation on migration issues, which has led to some notable positive developments, the assistance offered to Turkey regarding migration management appears to focus largely on securitising the borders and decreasing irregular migration to the European common territory through focusing on projects related to the detention and removal of migrants in Turkey and the increased monitoring of the Turkish border. Often neglected from the equation, is an equivalent emphasis on the human rights of those most vulnerable and most affected by the migration process: the migrants themselves….”

The Special Rapporteur will likely issue preliminary observations at the conclusion of the current mission to Greece on or after 3 December.

Click here (Italy), here (Tunisia), and here (Turkey) for the Special Rapporteur’s statements.

Click here for the web site for the UN Special Rapporteur on the human rights of migrants.

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EU Court of Justice Annuls Frontex Sea Borders Rule – EU Parliamentary Approval Required (28.11.2012 update)

[UPDATE 28 November 2012: The European Commission intends to present a legislative proposal in early 2013 to replace the annulled Frontex sea border operations rule (Council Decision 2010/252/EU).  See EC’s “Second biannual report on the functioning of the Schengen area” covering the period 1 May 2012-31 October 2012.  (COM(2012) 686 final, 23.11.2012)]

The EU Court of Justice, Grand Chamber, issued a judgment on 5 September 2012 annulling Council Decision 2010/252/EU of 26 April 2010 supplementing the Schengen Borders Code as regards the surveillance of the sea external borders in the context of operational cooperation coordinated by [Frontex] (OJ 2010 L 111, p. 20), i.e. the Frontex Sea Borders Rule.  ECJ Advocate General Paolo Mengozzi issued an Opinion on 17 April 2012 recommending that the Court annul the Rule.

The Court concluded that the provisions of the contested rule were not minor, non-essential provisions, but instead “constitute[d] a major [new] development in the [Schengen Borders Code] system” and which therefore required the consideration and approval of the European Parliament.

The Court stated that the Schengen Borders Code (“SBC”) as it currently stands “does not contain any rules concerning the measures which border guards are authorised to apply against persons or ships when they are apprehended….”  The contested rule “lays down the measures which border guards may take against ships [authorising] ships to be stopped, boarded, searched and seized…”  The contested rule “lays down rules on the disembarkation of the persons intercepted or rescued …stating that priority should be given to disembarkation in the third country from where the ship carrying the persons departed.”

The Court said the adoption of such rules conferring “enforcement powers on border guards …entails political choices falling within the responsibilities of the European Union legislature, in that it requires the conflicting interests at issue to be weighed up on the basis of a number of assessments. Depending on the political choices on the basis of which those rules are adopted, the powers of the border guards may vary significantly, and the exercise of those powers require authorisation, be an obligation or be prohibited, for example, in relation to applying enforcement measures, using force or conducting the persons apprehended to a specific location. In addition, where those powers concern the taking of measures against ships, their exercise is liable, depending on the scope of the powers, to interfere with the sovereign rights of third countries according to the flag flown by the ships concerned. Thus, the adoption of such rules constitutes a major development in the SBC system.”

The Court also noted that “the powers conferred in the contested [rule] mean that the fundamental rights of the persons concerned may be interfered with to such an extent that the involvement of the European Union legislature is required.”

For these reasons the Court decided that the “contested [rule] must be annulled in its entirety because it contains essential elements of the surveillance of the sea external borders of the Member States which go beyond the scope of the additional measures within the meaning of Article 12(5) of the SBC, and only the European Union legislature was entitled to adopt such a decision.”

The Court ordered “the effects of the contested [rule] [to]  be maintained until the entry into force, within a reasonable time, of new rules intended to replace the contested decision annulled by the present judgment.”

Click here or here for Judgment.

Extensive Excerpts from Judgment:

THE COURT (Grand Chamber), composed of V. Skouris, President, A. Tizzano, J.N. Cunha Rodrigues, K. Lenaerts, J.-C. Bonichot and A. Prechal, Presidents of Chambers, R. Silva de Lapuerta, K. Schiemann, E. Juhász, G. Arestis, T. von Danwitz (Rapporteur), M. Berger and E. Jarašiūnas, Judges,

Advocate General: P. Mengozzi,

having regard to the written procedure and further to the hearing on 25 January 2012, after hearing the Opinion of the Advocate General at the sitting on 17 April 2012, gives the following Judgment

1. By its action, the European Parliament seeks the annulment of Council Decision 2010/252/EU of 26 April 2010 supplementing the Schengen Borders Code as regards the surveillance of the sea external borders in the context of operational cooperation coordinated by [FRONTEX] (OJ 2010 L 111, p. 20, ‘the contested decision’).

2. [***] The Parliament submits that the provisions of the contested decision ought to have been adopted by the ordinary legislative procedure and not by the comitology procedure based on Article 12(5) of the SBC [Schengen Borders Code].

I – Legal context

A – Decision 1999/468/EC

3.-7. [***]

B – The SBC

8.-16.[***]

C – Regulation (EC) No 2007/2004

17.-21.[***]

D – The contested decision

22.-29.[***]

II – Forms of order sought by the parties and the procedure before the Court

30. The Parliament claims that the Court should:

– annul the contested decision;

– order that the effects of the contested decision be maintained until it is replaced, …

31. The Council contends that the Court should:

– dismiss the Parliament’s action as inadmissible;

– in the alternative, dismiss the action as unfounded, …

32.[***] the Commission was granted leave to intervene in support of the form of order sought by the Council and, in its statement in intervention, it requests the Court to dismiss the Parliament’s action …..

III – The action

A – The admissibility of the action

33.-40.[***]

41. It follows from the above that the action for annulment must be declared to be admissible.

B – Substance

1. Arguments of the parties

42. [***]

(a) As regards the principles governing the implementing powers

43. The Parliament submits that the regulatory procedure with scrutiny can have as its subject-matter the modification or removal of non-essential elements of a basic instrument or the addition of new non-essential elements, but not the modification of the essential elements of such an instrument. [***]

44.-45.[***]

46. The Commission contends that [it has] the power to put flesh on the bones of the essential elements which the co‑legislators have chosen not to detail in extenso . It is authorised to supplement those elements and to regulate new activities within the scope of the essential subject-matter and of the essential rules.

(b) As regards the contested decision

47. Although the Parliament does not challenge the objectives of the contested decision, it takes the view that its content ought to have been adopted by means of a legislative act and not by an implementing measure. That decision goes beyond the scope of the implementing powers referred to in Article 12(5) of the SBC because it introduces new essential elements into that code and alters essential elements of the SBC as well as the content of the Frontex Regulation.

(i) Introduction of new essential elements into the SBC

48. As regards the introduction of new essential elements into the SBC, the Parliament submits that Parts I and II to the Annex of the contested decision lay down measures which cannot be considered to be within the scope of border surveillance as defined by the SBC or to be a non‑essential element of that code.

49. Thus, …, paragraph 2.4 of Part I to the Annex of the contested decision does not merely lay down detailed practical rules of border surveillance but grants border guards far‑reaching powers. The SBC is silent as to the measures which might be taken against persons or ships. However, the contested decision lays down far-reaching enforcement measures, yet does not ensure the right of persons intercepted on the high seas to claim asylum and associated rights, whereas, in accordance with Article 13 of the SBC, returning the persons concerned to the country from where they came can only arise in the context of a formal refusal of entry.

50. In addition, the rules relating to activities such as search and rescue and disembarkation in Part II to the Annex of the contested decision do not, in the Parliament’s view, fall within the concept of surveillance. Even though the title of Part II contains the word ‘guidelines’, Part II is binding and is intended to produce legal effects as against Member States which participate in an operation coordinated by the Agency, due to its wording, the fact that it is contained in a legally binding instrument, and the fact that it forms part of an operational plan provided for by the Frontex Regulation. The contested decision thus contains essential elements of the SBC and could not therefore be regulated in an implementing measure.

51. In addition, the Parliament submits that the contested decision exceeds the territorial scope of the SBC . In accordance with Article 2(11) of the SBC, surveillance is limited to the surveillance of borders between border crossing points and the surveillance of border crossing points outside the fixed opening hours, whereas, in accordance with paragraph 2.5 of Part I to its Annex, the contested decision applies not only to territorial waters, but also to contiguous zones and to the high seas.

52. [***]

53. [***] The Council contends that the argument alleging an extension of the territorial scope of the SBC is unfounded, since that code does not define the concept of a sea border, which must be understood as applying also to border surveillance carried out in the contiguous zones as well as on the high seas.

54. [***] Admittedly, helping ships in distress is not a surveillance measure in the narrow sense. However, if such a situation were to occur during a surveillance operation coordinated by the Agency, it would be indispensable to coordinate in advance how the search and rescue was conducted by various participating Member States. In those circumstances, the Council takes the view that the contested decision does not introduce new elements into the SBC.

55. The Commission contends that border surveillance is an essential element of the SBC, but that the essential rules governing that matter are found in Article 12 of the SBC which lays down provisions regarding the content as well as the object and purpose of the surveillance without serving to regulate that surveillance extensively and exhaustively. The co-legislators conferred on the Commission the power to supplement those essential elements. The power to regulate new activities allows the Commission to regulate the content of border surveillance and to define what that activity entails.

56. The Commission contends that the contested decision does not introduce new essential elements into the SBC. Surveillance must, in the light of its purpose, not only encompass the detection of attempts to gain illegal entry into the European Union but also extend to positive steps such as intercepting ships which are suspected of trying to gain entry to the Union without submitting to border checks. Article 12(4) of the SBC specifically mentions one of the purposes of surveillance as being to apprehend individuals. In order to assess whether ‘search and rescue’ falls within the concept of surveillance, it is important to take into consideration the factual circumstances in which attempted illegal entries arise. In many instances, the surveillance operation will prompt the search and rescue situation, and it is not possible to draw a sharp distinction between those operations. The issue of whether or not the guidelines are binding does not arise, given that the measures which they lay down fall within the concept of surveillance.

(ii) Modification of essential elements of the SBC

57. As regards the modification of the essential elements of the SBC, the Parliament contends, in particular, that the contested decision alters Article 13 of the Code. Since that article applies to any form of interception, persons who have entered illegally into the territorial waters and contiguous zones cannot be forced back or asked to leave without a decision pursuant to Article 13 of the SBC. However, paragraph 2.4 of Part I to the Annex of the contested decision confers on border guards the power to order the ship to modify its course outside of the territorial waters, without a decision within the meaning of Article 13 being taken or without the persons concerned having the possibility to challenge the refusal of entry.

58. In that connection, the Council and the Commission contend that Article 13 of the SBC does not apply to border surveillance activities so that the contested decision does not amend that article.

(iii) Amendment of the Frontex Regulation

59. As regards the amendment of the Frontex Regulation, the Parliament contends that Article 12(5) of the SBC does not grant the Commission the power to lay down rules which amend the powers and obligations set out by the Frontex Regulation for the operations co-ordinated by the Agency. The contested decision is not the appropriate legal instrument for creating obligations in relation to those operations or for modifying the provisions of the Frontex Regulation.

60. However, the contested decision is intended to apply only within the context of operations coordinated by the Agency and is obligatory not only for the Member States but also for the Agency, in light of the fact that its Annex forms part of the operational plan for each operation, whilst Article 8e of the Frontex Regulation determines the main elements of that plan. The mandatory inclusion in the operational plan of the rules and guidelines set out in the Annex of the contested decision significantly amends the list of necessary elements for the implementation of that plan, such as the roles of border guards, the participating units and the Rescue Coordination Centre, respectively.

61. In that connection, the Council contends that the contested decision does not amend the tasks of the Agency, even though the Annex of that decision forms part of the operational plan. [***]

62. According to the Commission, the contested decision does not affect the operation of the Frontex Regulation. The requirement in Article 1 of the contested decision that both Parts to the Annex are to be part of the operational plan imposes a requirement not upon the Agency, but rather the Member States as the persons to whom that decision is addressed and responsible for ensuring that the Annex forms part of that plan. In those circumstances, the contested decision does not amend the Frontex Regulation.

2. Findings of the Court

63.-68. [***]

69. As to whether the Council was empowered to adopt the contested decision as a measure implementing Article 12 of the SBC on border surveillance, on the basis of Article 12(5) of that code, it is first of all necessary to assess the meaning of that article.

70.-72.[***]

73. Although the SBC, which is the basic legislation in the matter, states in Article 12(4) thereof, that the aim of such [border] surveillance is to apprehend individuals crossing the border illegally, it does not contain any rules concerning the measures which border guards are authorised to apply against persons or ships when they are apprehended and subsequently – such as the application of enforcement measures, the use of force or conducting the persons apprehended to a specific location – or even measures against persons implicated in human trafficking.

74. That said, paragraph 2.4 of Part I to the Annex of the contested decision lays down the measures which border guards may take against ships detected and persons on board. In that connection, paragraph 2.4 (b), (d), (f) and (g) allows, inter alia, ships to be stopped, boarded, searched and seized, the persons on board to be searched and stopped, the ship or persons on board to be conducted to another Member State, and thus enforcement measures to be taken against persons and ships which could be subject to the sovereignty of the State whose flag they are flying.

75. In addition, paragraph 1.1 of Part II to the Annex of the contested decision lays down, inter alia, the obligation of the units participating in sea external border operations coordinated by the Agency to provide assistance to any vessel or person in distress at sea. Paragraph 2 of Part II lays down rules on the disembarkation of the persons intercepted or rescued, the second subparagraph of paragraph 2.1 stating that priority should be given to disembarkation in the third country from where the ship carrying the persons departed.

76. First, the adoption of rules on the conferral of enforcement powers on border guards, referred to in paragraphs 74 and 75 above, entails political choices falling within the responsibilities of the European Union legislature, in that it requires the conflicting interests at issue to be weighed up on the basis of a number of assessments. Depending on the political choices on the basis of which those rules are adopted, the powers of the border guards may vary significantly, and the exercise of those powers require authorisation, be an obligation or be prohibited, for example, in relation to applying enforcement measures, using force or conducting the persons apprehended to a specific location. In addition, where those powers concern the taking of measures against ships, their exercise is liable, depending on the scope of the powers, to interfere with the sovereign rights of third countries according to the flag flown by the ships concerned. Thus, the adoption of such rules constitutes a major development in the SBC system.

77. Second, it is important to point out that provisions on conferring powers of public authority on border guards – such as the powers conferred in the contested decision, which include stopping persons apprehended, seizing vessels and conducting persons apprehended to a specific location – mean that the fundamental rights of the persons concerned may be interfered with to such an extent that the involvement of the European Union legislature is required.

78. Thus, the adoption of provisions such as those laid down in paragraph 2.4 of Part I, and paragraphs 1.1 and 2.1 of Part II, of the Annex to the contested decision, requires political choices to be made as referred to in paragraphs 76 and 77 above. Accordingly, the adoption of such provisions goes beyond the scope of the additional measures within the meaning of Article 12(5) of the SBC and, in the context of the European Union’s institutional system, is a matter for the legislature.

79. In those circumstances, it must be found that, as the Advocate General observed in points 61 and 66 of his Opinion, Parts I and II to the Annex of the contested decision contain essential elements of external maritime border surveillance.

80. The mere fact that the title of Part II to the Annex of the contested decision contains the word ‘guidelines’ and that the second sentence of Article 1 of that decision states that the rules and guidelines in Part II are ‘non-binding’ cannot affect their classification as essential rules.

81.-83. [***]

84. In those circumstances, the contested decision must be annulled in its entirety because it contains essential elements of the surveillance of the sea external borders of the Member States which go beyond the scope of the additional measures within the meaning of Article 12(5) of the SBC, and only the European Union legislature was entitled to adopt such a decision.

85. Consequently, the Parliament’s arguments to the effect that the contested decision amends the essential elements of the SBC and also the Frontex Regulation do not require to be examined.

IV – The application for the effects of the contested decision to be maintained

86. The Parliament requests the Court, should it annul the contested decision, to maintain its effects, pursuant to the second paragraph of Article 264 TFEU, until that decision is replaced.

87. The Parliament submits that it is necessary to maintain the effects of the contested decision, in the light of the importance of the objectives of the proposed measures in the context of the European Union’s policy on border control operations.

88. [***]

89. The annulment of the contested decision without maintaining its effects on a provisional basis could compromise the smooth functioning of the current and future operations coordinated by the Agency and, consequently, the surveillance of the sea external borders of the Member States.

90. In those circumstances, there are important grounds of legal certainty which justify the Court exercising the power conferred on it by the second paragraph of Article 264 TFEU. In the present case, the effects of the contested decision must be maintained until the entry into force, within a reasonable time, of new rules intended to replace the contested decision annulled by the present judgment.

V – Costs

91. [***]

On those grounds, the Court (Grand Chamber) hereby:

1. Annuls Council Decision 2010/252/EU of 26 April 2010 supplementing the Schengen Borders Code as regards the surveillance of the sea external borders in the context of operational cooperation coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union;

2. Maintains the effects of decision 2010/252 until the entry into force of new rules within a reasonable time;

3. Orders the Council of the European Union to pay the costs;

4. Orders the European Commission to bear its own costs.

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Question Raised Whether Migrant Boat Sank Off Lampedusa Last Week

Italian authorities are questioning survivor reports that the boat on which they were sailing from Tunisia actually sank or capsized near Lampedusa on 7 September.  Authorities have raised the possibility that the survivors were intentionally landed on the small island of Lampione, approximately 20 km west of Lampedusa, by a trafficker’s “mother ship” and that the traffickers then returned to Tunisia.  Some of the 56 survivors who were rescued from Lampione reported that their boat sank and they were forced to swim to the island, but Italian authorities have not yet found sufficient debris, bodies, or other evidence that would indicate that their boat sank.  While two bodies have been recovered recently, the locations of the recovered bodies are not consistent with the location where the migrant boat is reported to have sunk.  Authorities think the two bodies may be from different incidents that may have taken place recently.

Click here, here, here, and here for articles. (IT)

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High Death Toll in Turkish Migrant Boat Sinking Likely Caused by Persons Trapped Below Deck

Last week’s sinking of a migrant boat off the Turkish coast took place about 50 metres from shore.  The high death toll of 61 persons, including 31 children and infants, seems to have occurred in part because many of the boat’s passengers were either trapped or locked below the main deck of the boat.  Some media reports describe the boat, the “Sailor”, as a small fishing boat, but pictures of the accident scene suggest that the boat was probably a pleasure boat.  The boat struck underwater rocks causing it to sink on 6 September.  The boat reportedly departed from Ahmetbeyli and had traveled approximately 25 km along the coastline when it sank near the village of Menderes.  The migrants on board included Syrians, Iraqis, and others.  At least 49 survivors were able to swim ashore.  The boat’s Turkish captain and at least one crew member have been arrested and charged with human smuggling and reckless homicide.  The crew reportedly made no efforts to assist the passengers as the boat was sinking.

Click here, here, here, here, and here for articles.

 

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Frontex to Increase Sea and Air Patrols in Aegean at Greece’s Request

Greek news reports say that Greek officials have made requests to Commissioner Malmström and Frontex for assistance to respond to “increasing migratory pressures on the islands of the Eastern Aegean.”  The Greek islands of Lesvos, Samos, Patmos, Leros and Symi in particular have reportedly seen an increase in the number of persons entering from nearby Turkish territory.  According to the media reports the assistance will include the deployment of “four aerial vehicle[s], four patrol boats, three mobile surveillance units and eight expert officers, whose costs will be covered by EU funds the agency and the European Commission.”

Click here and here for articles. (EL)

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140+ Feared Dead After Migrant Boat Sinks Off Indonesia

Six persons have been rescued after a boat believed to be carrying 150 asylum seekers attempting to reach Australia sank in the Sunda Strait between Java and Christmas Island.  The six survivors had been in the water for about 24 hours at the time of rescue by a merchant ship.  Given warmer water temperatures in may be possible to survive for 36-48 hours in the water.  Indonesian and Australian forces and private ships are searching for survivors.  The boat’s passengers included women and children are believed to have been Afghan asylum seekers.

Click here, here, and here for articles.

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