Tag Archives: Extraterritorial Immigration Control

Is Morocco Allowing More Migrant Boat Departures in Protest of CJEU Judgment Finding EU-Morocco Fisheries Agreement Not Applicable to Western Sahara?

An article in Sunday’s Diario de Cadiz by Encarna Maldonado discusses a moderate but noticeable increase in the number of migrant boats reaching Spain from Morocco and the possibility that the Moroccan government may be relaxing its migration patrols to protest last month’s Court of Justice of the EU judgment in Council v Front Polisario, Case C-104/16 P, 21 Dec 2016, where the CJEU concluded that the agriculture and fisheries agreements the EU has with Morocco are not applicable to the Western Sahara because Western Sahara has a status that is separate and distinct from Morocco. Morocco previously suspended diplomatic relations with the EU over its disagreement with an earlier judgment in the case by the General Court.

From Diario de Cadiz: “The arrival of migrants in small boats in Andalusia grew considerably since the start of 2016, almost coinciding with the [General Court’s] first statement (December 2015) supporting the complaint of the Polisario Front against the trade agreement that, among other things, allows part of the Spanish fishing fleet to fish in Moroccan waters. Although surveillance and rescue boats Andalusia recorded the less last year than in 2015 (354 vs. 491), the number of people traveling in these boats increased by 81% from 3,369 to 6,109 migrants. The appeal to the Court of Justice of the European Union and especially the judgment, issued on December 21, has coincided with a new surge in small boats to the Andalusian coast….”

The article also notes that some experts question whether the surge is related directly to the CJEU judgment.

Click here for article. [ES]

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Filed under CJEU, European Union, Judicial, Mediterranean, Morocco, News, Spain

Article: M Tondini, “The legality of intercepting boat people under search and rescue and border control operations with reference to recent Italian interventions in the Mediterranean Sea and the ECtHR decision in the Hirsi case”

A new article by Matteo Tondini, Ph.D., “The legality of intercepting boat people under search and rescue and border control operations with reference to recent Italian interventions in the Mediterranean Sea and the ECtHR decision in the Hirsi case”, has been published in Vol. 18 of the Journal of International Maritime Law (subscription required).

Here is the abstract: “This article briefly addresses the legal grounds for the interception of boat people on the high seas by military vessels, taking into account the Italian Navy’s [experience] on the matter. If interceptions are conducted within the framework of an `extraterritorial’ border control operation, their legality is hardly sustainable. Conversely, when interventions are implemented as search and rescue (SAR) operations, their legal basis is much wider, provided that intervening states’ obligations under the SAR legal regime are coupled with those stemming from the prohibition of refoulement under international refugee law. As a result, rescued migrants can only be disembarked to `safe third countries’, namely countries in which they do not run the real risk of being persecuted or returned to other countries `at risk’. According to some very recent international and national jurisprudence, including the European Court of Human Rights’ decision in the Hirsi, before disembarking migrants, intervening states should in principle carry out a positive assessment on the functionality of the recipient country’s asylum system. In order to assess clearly the legality per se of interceptions, this article supports the necessity of applying a prevalence criterion, according to which if the SAR character prevails over the objective of preventing irregular migration, the intervention in question should be considered an authentic and lawful salvage operation.”

Also of note by the same author is his October 2010 paper, “Fishers of Men? The Interception of Migrants in the Mediterranean Sea and Their Forced Return to Libya.”

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Filed under Analysis, European Court of Human Rights, Italy, Libya, Mediterranean, Tunisia

Heinrich Böll Foundation Study: Borderline- The EU’s New Border Surveillance Initiatives, Assessing the Costs and Fundamental Rights Implications of EUROSUR and the ‘Smart Borders’ Proposals

The Heinrich Böll Foundation released a study written by Dr. Ben Hayes from Statewatch and Mathias Vermeulen (editor of The Lift- Legal Issues in the Fight Against Terrorism blog) entitled “Borderline – The EU’s new border surveillance initiatives: assessing the costs and fundamental rights implications of EUROSUR and the ‘Smart Borders’ Proposals.”  The Study was presented to the European Parliament last month.  As Mathias Vermeulen noted in an email distributing the study, “the European Parliament is currently negotiating the legislative proposal for Eurosur, and the European Commission is likely to present a legislative proposal on ‘smart borders’ in September/October.”

Excerpts from the Preface and Executive Summary of the Study:

Preface

The upheavals in North Africa have lead to a short-term rise of refugees to Europe, yet, demonstrably, there has been no wave of refugees heading for Europe. By far most refugees have found shelter in neighbouring Arab countries. Nevertheless, in June 2011, the EU’s heads of state precipitately adopted EU Council Conclusions with far-reaching consequences, one that will result in new border policies ‘protecting’ the Union against migration. In addition to new rules and the re-introduction of border controls within the Schengen Area, the heads of state also insisted on upgrading the EU’s external borders using state-of-art surveillance technology, thus turning the EU into an electronic fortress.

The Conclusions passed by the representatives of EU governments aims to quickly put into place the European surveillance system EUROSUR. This is meant to enhance co-operation between Europe’s border control agencies and promote the surveillance of the EU’s external borders by FRONTEX, the Union’s agency for the protection of its external borders, using state-of-the-art surveillance technologies. To achieve this, there are even plans to deploy unmanned aerial vehicles (UAVs) over the Mediterranean and the coasts of North Africa. Such high-tech missions have the aim to spot and stop refugee vessels even before they reach Europe’s borders. A EUROSUR bill has been drafted and is presently being discussed in the European Council and in the European Parliament. [***]

EUROSUR and ‘smart borders’ represent the EU’s cynical response to the Arab Spring. Both are new forms of European border controls – new external border protection policies to shut down the influx of refugees and migrants (supplemented by internal controls within the Schengen Area); to achieve this, the home secretaries of some countries are even willing to accept an infringement of fundamental rights.

The present study by Ben Hayes and Mathias Vermeulen demonstrates that EUROSUR fosters EU policies that undermine the rights to asylum and protection. For some time, FRONTEX has been criticised for its ‘push back’ operations during which refugee vessels are being intercepted and escorted back to their ports of origin. In February 2012, the European Court of Human Rights condemned Italy for carrying out such operations, arguing that Italian border guards had returned all refugees found on an intercepted vessel back to Libya – including those with a right to asylum and international protection. As envisioned by EUROSUR, the surveillance of the Mediterranean using UAVs, satellites, and shipboard monitoring systems will make it much easier to spot such vessels. It is to be feared, that co-operation with third countries, especially in North Africa, as envisioned as part of EUROSUR, will lead to an increase of ‘push back’ operations.

Nevertheless, the EU’s announcement of EUROSUR sounds upbeat: The planned surveillance of the Mediterranean, we are being told, using UAVs, satellites, and shipboard monitoring systems, will aid in the rescue of refugees shipwrecked on the open seas. The present study reveals to what extent such statements cover up a lack of substance. Maritime rescue services are not part of EUROSUR and border guards do not share information with them, however vital this may be. Only just recently, the Council of Europe issued a report on the death of 63 migrants that starved and perished on an unseaworthy vessel, concluding that the key problem had not been to locate the vessel but ill-defined responsibilities within Europe. No one came to the aid of the refugees – and that in spite of the fact that the vessel’s position had been known. [***]

The EU’s new border control programmes not only represent a novel technological upgrade, they also show that the EU is unable to deal with migration and refugees. Of the 500,000 refugees fleeing the turmoil in North Africa, less than 5% ended up in Europe. Rather, the problem is that most refugees are concentrated in only a very few places. It is not that the EU is overtaxed by the problem; it is local structures on Lampedusa, in Greece’s Evros region, and on Malta that have to bear the brunt of the burden. This can hardly be resolved by labelling migration as a novel threat and using military surveillance technology to seal borders. For years, instead of receiving refugees, the German government along with other EU countries has blocked a review of the Dublin Regulation in the European Council. For the foreseeable future, refugees and migrants are to remain in the countries that are their first point of entry into the Union.

Within the EU, the hostile stance against migrants has reached levels that threaten the rescue of shipwrecked refugees. During FRONTEX operations, shipwrecked refugees will not be brought to the nearest port – although this is what international law stipulates – instead they will be landed in a port of the member country that is in charge of the operation. This reflects a ’nimby’ attitude – not in my backyard. This is precisely the reason for the lack of responsibility in European maritime rescue operations pointed out by the Council of Europe. As long as member states are unwilling to show more solidarity and greater humanity, EUROSUR will do nothing to change the status quo.

The way forward would be to introduce improved, Europe-wide standards for the granting of asylum. The relevant EU guidelines are presently under review, albeit with the proviso that the cost of new regulations may not exceed the cost of those in place – and that they may not cause a relative rise in the number of asylum requests. In a rather cynical move, the EU’s heads of government introduced this proviso in exactly the same resolution that calls for the rapid introduction of new surveillance measures costing billions. Correspondingly, the budget of the European Asylum Support Office (EASO) is small – only a ninth what goes towards FRONTEX.

Unable to tackle the root of the problem, the member states are upgrading the Union’s external borders. Such a highly parochial approach taken to a massive scale threatens some of the EU’s fundamental values – under the pretence that one’s own interests are at stake. Such an approach borders on the inhumane.

Berlin/Brussels, May 2012

Barbara Unmüßig

President Heinrich-Böll-Stiftung

Ska Keller

Member of the European Parliament

Executive Summary

The research paper ‘Borderline’ examines two new EU border surveillance initiatives: the creation of a European External Border Surveillance System (EUROSUR) and the creation of the so-called ‘smart borders package’…. EUROSUR promises increased surveillance of the EU’s sea and land borders using a vast array of new technologies, including drones (unmanned aerial vehicles), off-shore sensors, and satellite tracking systems. [***]

The EU’s 2008 proposals gained new momentum with the perceived ‘migration crisis’ that accompanied the ‘Arab Spring’ of 2011, which resulted in the arrival of thousands of Tunisians in France. These proposals are now entering a decisive phase. The European Parliament and the Council have just started negotiating the legislative proposal for the EUROSUR system, and within months the Commission is expected to issue formal proposals for the establishment of an [Entry-Exit System] and [Registered Traveller Programme]. [***]

The report is also critical of the decision-making process. Whereas the decision to establish comparable EU systems such as EUROPOL and FRONTEX were at least discussed in the European and national parliaments, and by civil society, in the case of EUROSUR – and to a lesser extent the smart borders initiative – this method has been substituted for a technocratic process that has allowed for the development of the system and substantial public expenditure to occur well in advance of the legislation now on the table. Following five years of technical development, the European Commission expects to adopt the legal framework and have the EUROSUR system up and running (albeit in beta form) in the same year (2013), presenting the European Parliament with an effective fait accomplit.

The EUROSUR system

The main purpose of EUROSUR is to improve the ‘situational awareness’ and reaction capability of the member states and FRONTEX to prevent irregular migration and cross-border crime at the EU’s external land and maritime borders. In practical terms, the proposed Regulation would extend the obligations on Schengen states to conducting comprehensive ‘24/7’ surveillance of land and sea borders designated as high-risk – in terms of unauthorised migration – and mandate FRONTEX to carry out surveillance of the open seas beyond EU territory and the coasts and ports of northern Africa. Increased situational awareness of the high seas should force EU member states to take adequate steps to locate and rescue persons in distress at sea in accordance with the international law of the sea. The Commission has repeatedly stressed EUROSUR’s future role in ‘protecting and saving lives of migrants’, but nowhere in the proposed Regulation and numerous assessments, studies, and R&D projects is it defined how exactly this will be done, nor are there any procedures laid out for what should be done with the ‘rescued’. In this context, and despite the humanitarian crisis in the Mediterranean among migrants and refugees bound for Europe, EUROSUR is more likely to be used alongside the long-standing European policy of preventing these people reaching EU territory (including so-called push back operations, where migrant boats are taken back to the state of departure) rather than as a genuine life-saving tool.

The EUROSUR system relies on a host of new surveillance technologies and the interlinking of 24 different national surveillance systems and coordination centers, bilaterally and through FRONTEX. Despite the high-tech claims, however, the planned EUROSUR system has not been subject to a proper technological risk assessment. The development of new technologies and the process of interlinking 24 different national surveillance systems and coordination centres – bilaterally and through FRONTEX – is both extremely complex and extremely costly, yet the only people who have been asked if they think it will work are FRONTEX and the companies selling the hardware and software. The European Commission estimates that EUROSUR will cost €338 million, but its methods do not stand up to scrutiny. Based on recent expenditure from the EU External Borders Fund, the framework research programme, and indicative budgets for the planned Internal Security Fund (which will support the implementation of the EU’s Internal Security Strategy from 2014–2020), it appears that EUROSUR could easily end up costing two or three times more: as much as €874 million. Without a cap on what can be spent attached to the draft EUROSUR or Internal Security Fund legislation, the European Parliament will be powerless to prevent any cost overruns. There is no single mechanism for financial accountability beyond the periodic reports submitted by the Commission and FRONTEX, and since the project is being funded from various EU budget lines, it is already very difficult to monitor what has actually been spent.

In its legislative proposal, the European Commission argues that EUROSUR will only process personal data on an ‘exceptional’ basis, with the result that minimal attention is being paid to privacy and data protection issues. The report argues that the use of drones and high-resolution cameras means that much more personal data is likely to be collected and processed than is being claimed. Detailed data protection safeguards are needed, particularly since EUROSUR will form in the future a part of the EU’s wider Common Information Sharing Environment (CISE), under which information may be shared with a whole range of third actors, including police agencies and defence forces. They also call for proper supervision of EUROSUR, with national data protection authorities checking the processing of personal data by the EUROSUR National Coordination Centres, and the processing of personal data by FRONTEX, subject to review by the European Data Protection Supervisor. EUROSUR also envisages the exchange of information with ‘neighbouring third countries’ on the basis of bilateral or multilateral agreements with member states, but the draft legislation expressly precludes such exchanges where third countries could use this information to identify persons or groups who are at risk of being subjected to torture, inhuman and degrading treatment, or other fundamental rights violations. The authors argue that it will be impossible to uphold this provision without the logging of all such data exchanges and the establishment of a proper supervisory system. [***]”

Click here or here for full text of Study.

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Filed under Analysis, European Union, Frontex, Mediterranean, Reports

AI Report: S.O.S. Europe – Human Rights and Migration Control

Amnesty International today has released a report, “S.O.S. Europe: Human Rights and Migration Control,” examining “the human rights consequences for migrants, refugees and asylum-seekers that have occurred in the context of Italy’s migration agreements with Libya.”

The Report is accompanied by the “the launch of Amnesty International’s ‘When you don’t exist campaign‘, which … seeks to hold to account any European country which violates human rights in enforcing migration controls. When you don’t exist aims to defend the rights of migrants, refugees and asylum-seekers in Europe and around its borders. …  Today, Europe is failing to promote and respect the rights of migrants, asylum-seekers and refugees. Hostility is widespread and mistreatment often goes unreported. As long as people on the move are invisible, they are vulnerable to abuse. Find out more at www.whenyoudontexist.eu.”

Excerpts from S.O.S. Europe Report:

WHAT IS EXTERNALIZATION?

Over the last decade, European countries have increasingly sought to prevent people from reaching Europe by boat from Africa, and have “externalized” elements of their border and immigration control. …

European externalization measures are usually based on bilateral agreements between individual countries in Europe and Africa. Many European countries have such agreements, but the majority do not publicize the details. For example, Italy has co-operation agreements in the field of “migration and security” with Egypt, Gambia, Ghana, Morocco, Niger, Nigeria, Senegal and Tunisia,2 while Spain has co-operation agreements on migration with Cape Verde, Gambia, Guinea, Guinea-Bissau, Mali and Mauritania.3

At another level, the European Union (EU) engages directly with countries in North and West Africa on migration control, using political dialogue and a variety of mechanisms and financial instruments. For example in 2010, the European Commission agreed a cooperation agenda on migration with Libya, which was suspended when conflict erupted in 2011. Since the end of the conflict, however, dialogue between the EU and Libya on migration issues has resumed.

The European Agency for the Management of Operational Co-operation at the External Borders of the Member States of the EU (known as FRONTEX) also operates outside European territory. FRONTEX undertakes sea patrols beyond European waters in the Mediterranean Sea, and off West African coasts, including in the territorial waters of Senegal and Mauritania, where patrols are carried out in cooperation with the authorities of those countries.

The policy of externalization of border control activities has been controversial. Critics have accused the EU and some of its member states of entering into agreements or engaging in initiatives that place the rights of migrants, refugees and asylum-seekers at risk. A lack of transparency around the various agreements and activities has fuelled criticism.

This report examines some of the human rights consequences for migrants, refugees and asylum seekers that have occurred in the context of Italy’s migration agreements with Libya. It also raises concerns about serious failures in relation to rescue-at-sea operations, which require further investigation. The report is produced as part of wider work by Amnesty International to examine the human rights impacts of European externalization policies and practices.

[***]

AGREEMENTS BETWEEN ITALY AND LIBYA

[***]

The implementation of the agreements between Libya and Italy was suspended in practice during the first months of the conflict in Libya, although the agreements themselves were not set aside. While the armed conflict was still raging in Libya, Italy signed a memorandum of understanding with the Libyan National Transitional Council in which the two parties confirmed their commitment to co-operate in the area of irregular migration including through “the repatriation of immigrants in an irregular situation.”8 In spite of representations by Amnesty International and others on the current level of human rights abuses, on 3 April 2012 Italy signed another agreement with Libya to “curtail the flow of migrants”.9 The agreement has not been made public. A press release announced the agreement, but did not include any details on the measures that have been agreed, or anything to suggest that the present dire human rights predicament confronting migrants, refugees and asylum-seekers in Libya will be addressed.

[***]

HUMAN RIGHTS OBLIGATION BEYOND BORDERS

Human rights and refugee law requires all states to respect and protect the rights of people within their jurisdiction: this includes people within the state’s territorial waters, and also includes a range of different contexts where individuals may be deemed to be within a certain state’s jurisdiction.

[***]

States must also ensure that they do not enter into agreements – bilaterally or multilaterally – that would result in human rights abuses. This means states should assess all agreements to ensure that they are not based on, or likely to cause or contribute to, human rights violations. In the context of externalization, this raises serious questions about the legitimacy of European involvement – whether at a state-to-state level or through FRONTEX – in operations to intercept boats in the territorial waters of another state, when those intercepted would be at a real risk of human rights abuses.

A state cannot deploy its official resources, agents or equipment to implement actions that would constitute or lead to human rights violations, including within the territorial jurisdiction of another state.

CONCLUSION

Agreements between Italy and Libya include measures that result in serious human rights violations. Agreements between other countries in Europe and North and West Africa, and agreements and operations involving the EU and FRONTEX, also need to be examined in terms of their human rights impacts. However, with so little transparency surrounding migration control agreements and practices, scrutiny to date has been limited.

[***]

RECOMMENDATIONS

Amnesty International urges all states to protect the rights of migrants, refugees and asylum-seekers, according to international standards, This report has focused on Italy.

THE ITALIAN GOVERNMENT SHOULD:

  • set aside its existing migration control agreements with Libya;
  • not enter into any further agreements with Libya until the latter is able to demonstrate that it respects and protects the human rights of refugees, asylum seekers and migrants and has in place a satisfactory system for assessing and recognizing claims for international protection;
  • ensure that all migration control agreements negotiated with Libya or any other countries are made public.

EUROPEAN COUNTRIES AND THE EU SHOULD:

  • ensure that their migration control policies and practices do not cause, contribute to, or benefit from human rights violations;
  • ensure their migration control agreements fully respect international and European human rights and refugee law, as well as the law of the sea; include adequate safeguards to protect human rights with appropriate implementation mechanisms; and be made public;
  • ensure their interception operations look to the safety of people in distress in interception and rescue operations and include measures that provide access to individualized assessment procedures, including the opportunity to claim asylum;
  • ensure their search-and-rescue bodies increase their capacity and co-operation in the Mediterranean Sea; publicly report on measures to reduce deaths at sea; and that Search and Rescue obligations are read and implemented in a manner that is consistent with the requirements of refugee and human rights law.”

Click here (EN), here (EN), or here (FR) for Report.

See also www.whenyoudontexist.eu

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Filed under Eastern Atlantic, European Union, Frontex, Italy, Libya, Mediterranean, Reports

2012 Frontex Annual Risk Analysis

Frontex posted its 2012 Annual Risk Analysis (“ARA”) on its website on 20 April.   (The 2012 ARA is also available on this link: Frontex_Annual_Risk_Analysis_2012.)  The stated purpose of the ARA is “to plan the coordination of operational activities at the external borders of the EU in 2013. The ARA combines an assessment of threats and vulnerabilities at the EU external borders with an assessment of their impacts and consequences to enable the Agency to effectively balance and prioritise the allocation of resources against identified risks….”

Highlights include:

  • 86% of the detections of irregular migrants in 2011 on the EU’s external borders occurred in two areas, the Central Mediterranean (46%) and the Eastern Mediterranean, primarily on the land border between Greece and Turkey (40%);
  • The 64 000 detections in 2011 in the Central Mediterranean were obviously linked directly to the events in North Africa.  The flow of Tunisians was reduced by 75% in the second quarter of 2011 as a result of an accelerated repatriation agreement that was signed between Italy and Tunisia;
  • There is a very high likelihood of a renewed flow of irregular migrants at the southern maritime border.  Larger flows, if they develop, are more likely to develop on the Central Mediterranean route because of proximity to Tunisia, Libya, and Egypt;
  • Irregular migration in the Western Mediterranean towards Spain remains low, but has been steadily increasing and accounted for 6% of the EU’s detections in 2011;
  • Cooperation between Spain and Mauritania, Senegal, and Mali, including bilateral agreements and the presence of patrolling assets near the African coast, are the main reasons for the decrease in arrivals on the Western African route in recent years.  The situation remains critically dependent of the implementation of effective return agreements between Spain and western African countries.  Should these agreements be jeopardised, irregular migration is likely to resume quickly;
  • The land border between Greece and Turkey is now an established illegal-entry point for irregular migrants and facilitation networks;
  • According to intelligence from JO Hermes, women embarking from North Africa to the EU are in particular danger of being intimidated by their smugglers and forced into prostitution;
  • Austerity measures being implemented by Member States are likely to adversely affect operational environments of border control by reducing resources and by exacerbating corruption;
  • There is an intelligence gap on terrorist groups active in the EU and their connections with irregular-migration networks.  The absence of strategic knowledge may constitute a vulnerability for internal security.

Selected excerpts from the ARA:

“Executive Summary

[***] Looking ahead, the border between Greece and Turkey is very likely to remain one of the areas with the highest number of detections of illegal border-crossing along the external border. More and more migrants are expected to take advantage of Turkish visa policies and the expansion of Turkish Airlines, carrying more passengers to more destinations, to transit through Turkish air borders and subsequently attempt to enter the EU illegally. [Turkey reported an increase in 2011 of 26% in air passenger flow. See p. 12 of ARA.]

At the southern maritime borders large flows are most likely to develop on the Central Mediterranean route due to its proximity to Tunisia, Libya and Egypt, where political instability and the high unemployment rates are pushing people abroad and where there is evidence of facilitation networks also offering facilitation services to transiting migrants. [***]

There is an increasing risk of political and humanitarian crises arising in third countries which may result in the displacement of large numbers of people in search of international protection towards the land and sea borders of the EU. [***]

Various austerity measures introduced throughout Member States may result in increasing disparities between Member States in their capacity to perform border controls and hence enable facilitators to select those border types and sections that are perceived as weaker in detecting specific modi operandi. Budget cuts could also exacerbate the problem of corruption, thus increasing the vulnerability to illegal activities across the external borders. [***]

3. Situation at the external borders

[***] 3.2 Irregular migration

[***] Consistent with recent trends, the majority of detections [in 2011] were made in two hotspots of irregular migration, namely the Central Mediterranean area and the Eastern Mediterranean area accounting for 46% and 40% of the EU total, respectively, with additional effects detectable across Member States.  [***]

Central Mediterranean route

[***] Initially, detections in the Central Mediterranean massively increased in early 2011, due to civil unrest erupting in the region, particularly in Tunisia, Libya and, to a lesser extent, Egypt. As a result, between January and March some 20 000 Tunisian migrants arrived on the Italian island of Lampedusa. In the second quarter of 2011 the flow of Tunisian migrants was reduced by 75% following an accelerated repatriation agreement that was signed between Italy and Tunisia. … Since October 2011, the situation has eased somewhat due to democratic elections in Tunisia and the National Transitional Council successfully gaining control of Libya. However, the situation remains of concern, with sporadic arrivals from Tunisia now adding to arrivals from Egypt. There are also some concerns that the flow from Libya may resume. [***]

Eastern Mediterranean route

[***]Undeniably, the land border between Greece and Turkey is now an established illegal-entry point for irregular migrants and facilitation networks. [***]

Western Mediterranean route (sea, Ceuta and Melilla)

Irregular migration across the Western Mediterranean towards southern Spain was at a low level   through most of 2010. However, pressure has been steadily increasing throughout 2011 to reach almost 8 500 detections, or 6% of the EU total. A wide range of migrants from North African and sub-Saharan countries were increasingly detected in this region. It is difficult to analyse the exact composition of the flow, as the number of migrants of unknown nationality on this route doubled compared to the previous quarter. This may indicate an increasing proportion of nationalities that are of very similar ethnicity and/or geographic origin.

The most common and increasingly detected were migrants of unknown nationality, followed by migrants local to the region, coming from Algeria and Morocco. There were also significant increases in migrants departing from further afield, namely countries such as Côte d’Ivoire, Guinea, Nigeria and Congo.

In 2011, two boats were intercepted in the waters of the Balearic Islands with Algerians on board, having departed from the village of Dellys (Algeria) near Algiers. However, most migrants prefer to target the southern coast of the Iberian Peninsula.

Western African route

The cooperation between Spain and key western African countries (Mauritania, Senegal and Mali), including bilateral agreements, is developing. They are one of the main reasons for the decrease in arrivals on the Western African route over the last years, as is the presence of patrolling assets near the African coast. Despite a slight increase at the end of 2010, detections on this route remained low in 2011, almost exclusively involving Moroccan migrants.[***]

3.3.4 Trafficking in human beings

[***] According to information received from Member States, the top nationalities detected as victims of human trafficking in the EU still include Brazilians, Chinese, Nigerians, Ukrainians and Vietnamese. In addition, victims from other third countries like Albania, Ghana, Morocco, Moldova, Egypt, Indian, the Philippines and the Dominican Republic have also been reported, illustrating the broad geographical distribution of the places of origin of victims. Most THB cases are related to illegal work and sexual exploitation in Europe.

In some cases, the distinction between the smuggling of migrants and THB is not easily established because some of the migrants are initially using the services of smugglers, but it is only later, once in the EU, that they may fall victim to THB. According to intelligence from JO Hermes, this is particularly the case for women embarking for illegal border-crossing from North Africa to the EU. Once in Europe, some of them are intimated by their smugglers and forced into prostitution.

A worrying trend reported during JO Indalo is the increasing number of detections of illegal border-crossing by minors and pregnant women (see Fig. 15), as criminal groups are taking advantage of an immigration law preventing their return. Although it is not clear whether these cases are related to THB, women and children are among the most vulnerable. Most of these women claimed to be from Nigeria, Côte d’Ivoire and Cameroon and were between the fifth and ninth month of pregnancy. Minors were identified as being from Nigeria, Algeria and Congo.

Another modus operandi is for the criminal groups to convince their victim to apply for international protection. Such modus operandi was illustrated by the verdict of a Dutch court case in July 2011, when one suspect was convicted for trafficking of Nigerian female minors. The asylum procedure in the Netherlands was misused by the criminal organisation to get an accommodation for the victims. The victims were forced to sexual exploitation in several Member States. [***]

5. Conclusions

[***] 1. Risk of large and sustained numbers of illegal border-crossing at the external land and sea border with Turkey

The border between Greece and Turkey is very likely to remain in 2013 among the main areas of detections of illegal border crossing along the external border, at levels similar to those reported between 2008 and 2011, i.e. between 40 000 and 57 000 detections per annum. [***]

Depending on the political situation, migrants from the Middle East may increasingly join the flow. In addition, migrants from northern and western Africa, willing to illegally cross the EU external borders, are expected to increasingly take advantage of the Turkish visa policies, granting visas to a different set of nationalities than the EU, and the expansion of Turkish Airlines, to transit through the Turkish air borders to subsequently attempt to enter the EU illegally, either by air or through the neighbouring land or sea borders. As a result, border-control authorities will increasingly be confronted with a wider variety of nationalities, and probably also a greater diversity of facilitation networks, further  complicating the tasks of law-enforcement authorities.

This risk is interlinked with the risk of criminal groups facilitating secondary movements and the risk of border-control authorities faced with large flows of people in search of international protection. [***]

3. Risk of renewed large numbers of illegal border-crossing at the southern maritime border

The likelihood of large numbers of illegal border-crossing in the southern maritime border remains very high, either in the form of sporadic episodes similar to those reported in 2011 or in sustained flows on specific routes originating from Africa.

Irregular-migration flows at the southern maritime borders are expected to be concentrated within one of the three known routes, i.e. the Central Mediterranean route, the Western Mediterranean route or the Western African route. Larger flows are more likely to develop on the Central Mediterranean route than on the other two routes, because of its proximity to Tunisia, Libya and Egypt, where political instability and high unemployment rate among young people is pushing people away from their countries and where there is evidence for well-organised facilitation networks.

On the Western Mediterranean route, the situation remains of concern because of the increasing trend of illegal border-crossing reported throughout 2011. According to reported detections, the situation on the Western African route has been mostly under control since 2008 but remains critically dependant of the implementation of effective return agreements between Spain and western African countries. Should these agreements be jeopardised, irregular migration pushed by high unemployment and poverty is likely to resume quickly despite increased surveillance.

The composition of the flow is dependent on the route and the countries of departure, but includes a large majority of western and North Africans. Mostly economically driven, irregular migration on these routes is also increasingly dependent on the humanitarian crisis in western and northern African countries. Facilitators are increasingly recruiting their candidates for illegal border-crossing from the group that are most vulnerable to THB, i.e. women and children, causing increasing challenges for border control authorities.

4. Risk of border-control authorities faced with large numbers of people in search of international protection

Given the currently volatile and unstable security situation in the vicinity of the EU, there is an increasing risk of political and humanitarian crises in third countries resulting in large numbers of people in search of international protection being displaced to the land and sea borders of the EU. The most likely pressures are linked to the situation in North Africa and the Middle East. In addition, the situation in western African countries like Nigeria may also trigger flows of people in search of international protection at the external borders. [***]

6. Risk of less effective border control due to changing operational environment

At the horizon of 2013, the operational environments of border control are likely to be affected, on the one hand, by austerity measures reducing resources, and on the other hand, by increased passenger flows triggering more reliance on technological equipment.

Austerity measures have been introduced throughout Member States in various forms since 2009. The most obvious examples are found in Greece, Ireland, Portugal, Spain and the Baltic countries. These measures could result in increasing disparities between Member States in their capacity to perform border controls and hence enabling facilitators to select border types and sections that are perceived as weaker in detecting specific modi operandi.

Budget cuts could also exacerbate the problem of corruption, increasing the vulnerability to illegal activities across the external borders.

Austerity measures will inevitably impact on the efficacy of border-control authorities in detecting and preventing a wide array of illegal activities at the borders, ranging from illegal border-crossing through smuggling of excise goods to THB. [***]

8. Risk of border-control authorities increasingly confronted with cross-border crimes and travellers with the intent to commit crime or terrorism within the EU

[***]There is an intelligence gap on terrorist groups that are active in the EU and their connections with irregular-migration networks. The absence of strategic knowledge on this issue at the EU level may constitute a vulnerability for internal security. Knowledge gained at the external borders can be shared with other law enforcement authorities to contribute narrowing this gap.”

Click here or on this link: Frontex_Annual_Risk_Analysis_2012, for 2012 Frontex ARA.

Click here for Frontex press statement on the 2012 ARA.

Click here for my post on the 2011 ARA.

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Hirsi v. Italy: Prohibition of Collective Expulsion Extends to Extra-Territorial Actions

Article 4 of Protocol No. 4 of the ECHR reads in its entirety as follows:  “Collective expulsion of aliens is prohibited.”

The provision was first defined by the European Commission of Human Rights in 1975 in Henning Becker v. Denmark (no. 7011/75, decision of 3 October 1975).  The Commission defined the “‘collective expulsion of aliens’ as being ‘any measure of the competent authority compelling aliens as a group to leave the country, except where such a measure is taken after and on the basis of a reasonable and objective examination of the particular cases of each individual alien of the group’.” [para. 166]

The Court has only once previously found a violation of the collective expulsion prohibition and that was in Čonka v. Belgium (no. 51564/99, ECHR 2002-I). [para. 183]

The majority of collective expulsion cases previously considered by the Commission and the Court have “involved persons who were on the territory at issue.”  [para. 167]  One extra-territorial exception involved the case of Xhavara and Others v. Italy and Albania ((dec), no. 39473/98, 11 January 2001) involving “Albanian nationals who had attempted to enter Italy illegally on board an Albanian vessel and who had been intercepted by an Italian warship approximately 35 nautical miles off the Italian coast. The Italian ship had attempted to prevent the parties concerned from disembarking on national territory, leading to the death of fifty-eight people….”  The Court however “rejected the complaint on the ground of incompatibility ratione personae, as [the applicants challenged an Italian law which] had not been applied to their case, and [the Court therefore] did not rule on the [extra-territorial] applicability of Article 4 of Protocol No. 4…”  [para. 168]

In Hirsi the Court “for the first time” considered the question of whether the prohibition of collective expulsion “applies to a case involving the removal of aliens to a third State carried out outside national territory.”  [para. 169]

Italy argued that the prohibition “came into play only in the event of the expulsion of persons [already] on the territory of a State or who had crossed the national border illegally” and therefore did not apply to the Hirsi applicants who had not entered on to Italian territory. According to Italy, “the measure at issue was a refusal to authorise entry into national territory rather than ‘expulsion’.” [para. 160]

The Court rejected Italy’s interpretation:

“173.  The Court does not share the Government’s opinion on this point. It notes firstly that while the cases thus far examined have concerned individuals who were already, in various forms, on the territory of the country concerned, the wording of Article 4 of Protocol No. 4 does not in itself pose an obstacle to its extra-territorial application. It must be noted that Article 4 of Protocol No. 4 contains no reference to the notion of ‘territory’, whereas the wording of Article 3 of the same Protocol, on the contrary, specifically refers to the territorial scope of the prohibition on the expulsion of nationals. Likewise, Article 1 of Protocol No. 7 explicitly refers to the notion of territory regarding procedural safeguards relating to the expulsion of aliens lawfully resident in the territory of a State. In the Court’s view, that wording cannot be ignored.

[***]

175.  It remains to be seen, however, whether [an extra-territorial] application [of the prohibition] is justified. To reply to that question, account must be taken of the purpose and meaning of the provision at issue, which must themselves be analysed in the light of the principle, firmly rooted in the Court’s case-law, that the Convention is a living instrument which must be interpreted in the light of present-day conditions. [***] Furthermore, it is essential that the Convention is interpreted and applied in a manner which renders the guarantees practical and effective and not theoretical and illusory (see Marckx v. Belgium, 13 June 1979, § 41, Series A no. 31; [***]).

176.  A long time has passed since Protocol No. 4 was drafted. Since that time, migratory flows in Europe have continued to intensify, with increasing use being made of the sea, although the interception of migrants on the high seas and their removal to countries of transit or origin are now a means of migratory control, in so far as they constitute tools for States to combat irregular immigration.

The economic crisis and recent social and political changes have had a particular impact on certain regions of Africa and the Middle East, throwing up new challenges for European States in terms of immigration control.

177.  The Court has already found that, according to the established case-law of the Commission and of the Court, the purpose of Article 4 of Protocol No. 4 is to prevent States being able to remove certain aliens without examining their personal circumstances and, consequently, without enabling them to put forward their arguments against the measure taken by the relevant authority. If, therefore, Article 4 of Protocol No. 4 were to apply only to collective expulsions from the national territory of the States Parties to the Convention, a significant component of contemporary migratory patterns would not fall within the ambit of that provision, notwithstanding the fact that the conduct it is intended to prohibit can occur outside national territory and in particular, as in the instant case, on the high seas. Article 4 would thus be ineffective in practice with regard to such situations, which, however, are on the increase. The consequence of that would be that migrants having taken to the sea, often risking their lives, and not having managed to reach the borders of a State, would not be entitled to an examination of their personal circumstances before being expelled, unlike those travelling by land.

178.  It is therefore clear that, while the notion of ‘jurisdiction’ is principally territorial and is presumed to be exercised on the national territory of States (see paragraph 71 above), the notion of expulsion is also principally territorial, in the sense that expulsions are most often conducted from national territory. Where, however, as in the instant case, the Court has found that a Contracting State has, exceptionally, exercised its jurisdiction outside its national territory, it does not see any obstacle to accepting that the exercise of extraterritorial jurisdiction by that State took the form of collective expulsion. To conclude otherwise, and to afford that last notion a strictly territorial scope, would result in a discrepancy between the scope of application of the Convention as such and that of Article 4 of Protocol No. 4, which would go against the principle that the Convention must be interpreted as a whole. Furthermore, as regards the exercise by a State of its jurisdiction on the high seas, the Court has already stated that the special nature of the maritime environment cannot justify an area outside the law where individuals are covered by no legal system capable of affording them enjoyment of the rights and guarantees protected by the Convention which the States have undertaken to secure to everyone within their jurisdiction (see Medvedyev and Others, cited above, § 81).

[***]

180.  Having regard to the foregoing, the Court considers that the removal of aliens carried out in the context of interceptions on the high seas by the authorities of a State in the exercise of their sovereign authority, the effect of which is to prevent migrants from reaching the borders of the State or even to push them back to another State, constitutes an exercise of jurisdiction within the meaning of Article 1 of the Convention which engages the responsibility of the State in question under Article 4 of Protocol No. 4.

[***]

185.  In the instant case, the Court can only find that the transfer of the applicants to Libya was carried out without any form of examination of each applicant’s individual situation. It has not been disputed that the applicants were not subjected to any identification procedure by the Italian authorities, which restricted themselves to embarking all the intercepted migrants onto military ships and disembarking them on Libyan soil. Moreover, the Court notes that the personnel aboard the military ships were not trained to conduct individual interviews and were not assisted by interpreters or legal advisers.

That is sufficient for the Court to rule out the existence of sufficient guarantees ensuring that the individual circumstances of each of those concerned were actually the subject of a detailed examination.

186.  Having regard to the above, the Court concludes that the removal of the applicants was of a collective nature, in breach of Article 4 of Protocol No. 4. Accordingly, there has been a violation of that Article.”

Click here (EN) and here (FR) for the Grand Chamber’s Judgment.

Click here (EJIL: Talk!), here (ECHR Blog), here (UK Human Rights Blog), and here (Open Society Blog)  for more analysis of the Judgment.

Click here for my previous post “Hirsi v. Italy: The Issue of Jurisdiction Under ECHR Article 1.”

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Filed under Analysis, Council of Europe, European Court of Human Rights, Italy, Judicial, Libya, Mediterranean

ECtHR Grand Chamber to Deliver Judgement in Hirsi v Italy on 23 February

The decision in Hirsi and others v Italy, Requête no 27765/09, is scheduled to be released by the Grand Camber of the European Court of Human Rights next Thursday, 23 February.  The case was filed on 26 May 2009 by 11 Somalis and 13 Eritreans who were among the first group of about 200 migrants interdicted by Italian authorities and summarily returned to Libya under the terms of the Libya-Italy agreement which took effect on 4 February 2009.  The Applicants were intercepted on 6 May 2009 approximately 35 miles south of Lampedusa.   On 17 November 2009 the Second Section of the Court communicated the case and then subsequently relinquished jurisdiction in favour of the Grand Chamber.  The argument before the Grand Chamber occurred on 22 June 2011.

Today’s statement from the CoE web site:

“Human rights judges will soon deliver their judgement in a case which involved Italy intercepting Somalian and Eritrean migrants at sea and returning them to Libya.  The European Court of Human Rights’ Grand Chamber final judgment in the case of Hirsi Jamaa and Others v. Italy (application no. 27765/09), is expected at a public hearing scheduled for Thursday 23 February.

Principal facts

The applicants are 11 Somalian and 13 Eritrean nationals. They were part of a group of about 200 people who left Libya in 2009 on board three boats bound for Italy. On 6 May 2009, when the boats were 35 miles south of Lampedusa (Agrigento), within the maritime search and rescue region under the responsibility of Malta, they were intercepted by Italian Customs and Coastguard vessels. The passengers were transferred to the Italian military vessels and taken to Tripoli.

The applicants say that during the journey the Italian authorities did not tell them where they were being taken, or check their identity. Once in Tripoli they were handed over to the Libyan authorities.

At a press conference on 7 May 2009 the Italian Minister of the Interior explained that the interception of the vessels on the high seas and the return of the migrants to Libya was in accordance with the bilateral agreements with Libya that entered into force on 4 February 2009, marking a turning point in the fight against illegal immigration.

Complaint

The applicants consider that their case falls within the jurisdiction of Italy. Relying on Article 3 of the European Convention on Human Rights (prohibition of inhuman or degrading treatment), they argue that the decision of the Italian authorities to send them back to Libya exposed them to the risk of ill-treatment there, as well as to the serious threat of being sent back to their countries of origin (Somalia and Eritrea), where they might also face ill-treatment.

They also complain that they were subjected to collective expulsion prohibited by Article 4 of Protocol No. 4 (prohibition of collective expulsion of aliens) of the Convention. Lastly, relying on Article 13 (right to an effective remedy), they complain that they had no effective remedy against the alleged violations of Article 3 and Article 4 of Protocol No. 4.

The application was lodged with the European Court of Human Rights on 26 May 2009.

On 15 February 2011 the Chamber to which the case had been allocated relinquished jurisdiction in favour of the Grand Chamber. A hearing took place in public in the Human Rights Building, Strasbourg on 22 June 2011.

The following have been authorised to intervene as a third party (under Article 36 § 2 of the Convention):

– the Office of the United Nations High Commissioner for Refugees,

– the Office of the United Nations High Commissioner for Human Rights,

– the non-governmental organisations Aire Center, Amnesty International, and International Federation for Human Rights (FIDH),

– the non-governmental organisation Human Rights Watch, and

– the Columbia Law School Human Rights Clinic.”

Click here for CoE Statement.

Click here for Press Statement from ECtHR.

Click here for previous post on the argument before the Grand Chamber.

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Filed under Council of Europe, European Court of Human Rights, Italy, Judicial, Libya, Mediterranean, News