Tag Archives: Extraterritorial Immigration Control

UNHCR Issues Protection Policy Paper: Maritime Interception Operations and the Processing of International Protection Claims

The UNHCR has issued a Protection Policy Paper: “Maritime interception operations and the processing of international protection claims: legal standards and policy considerations with respect to extraterritorial processing.” (Nov. 2010).

The “paper outlines UNHCR’s views on extraterritorial processing of claims for international protection made by persons who are intercepted at sea.”  UNHCR’s position is that it is not possible to conduct a full and adequate RSD onboard a ship and therefore intercepted persons should in most circumstances be disembarked in the territory of the intercepting state to have their claims for protection considered in regular in-country RSD procedures.

The paper should be read in its entirety (17 pages).  Here are some excerpts (with most footnotes omitted):

“1. Governments in some regions have adopted, or are considering, measures to process certain claims for international protection outside of their territory.  This is particularly the case following maritime interception operations, 2  where asylum-seekers and migrants are prevented from reaching their destination while on the high seas or in the territorial waters of a third State. …

(Ftnt 2 There is no internationally accepted definition of interception, and its meaning is largely informed by State practice. A working definition is provided in Executive Committee Conclusion No. 97 (LIV) (2003) on Protection Safeguards in Interception Measures, available at http://www.unhcr.org/41b041534.html .)

4. If extraterritorial processing is part of a comprehensive or cooperative strategy to address mixed movements, the location of reception and processing arrangements is only one relevant element. With its 10-Point Plan on Refugee Protection and Mixed Migration, (‘10-Point Plan’), UNHCR has developed a tool that provides suggestions across a number of areas, … This paper should be read in conjunction with the 10-Point Plan, and related strategies for comprehensive State cooperation in this field.

[…]

9. The existence of jurisdiction triggers State responsibilities under international human rights and refugee law.  It is generally recognized that a State has jurisdiction, and consequently is bound by international human rights and refugee law, if it has effective de jure and/or de facto control over a territory or over persons….

(Ftnt 10 Some governments have argued that an intercepting State may not have jurisdiction under international law over persons located on parts of its territory that have been excised under domestic law (e.g. declared ‘international’ or ‘transit’ areas in airports, ports and border areas, or other parts of State territory including remote territories or islands), on high seas, or on the territory of a third State that is under the control of the intercepting State (e.g. because the intercepting State is responsible for a military base or reception centre). Such arguments are inconsistent with the notion of jurisdiction under international law. Domestic law is not determinative of the existence of jurisdiction as a matter of fact under international law: The Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 331, 8 I.L.M. 679, entered into force 27 January 1980, Article 27 (providing that a State may not invoke the provisions of its internal law as a justification for its failure to perform a treaty); see also Article 3 of ILC, Draft Articles on the Responsibility of States for International Wrongful Acts with Commentaries (2001).)

55. Processing onboard maritime vessels is generally not appropriate. In exceptional circumstances, that would need to be defined further, initial profiling or prescreening onboard the maritime vessel by the intercepting State may be one solution to ensure that persons with international protection needs are identified and protected against refoulement. Following profiling, those persons identified as having potential protection needs would need to be disembarked in the territory of the intercepting State to have their international protection claims considered in regular in-country RSD procedures….

56. In general the carrying out of full RSD procedures onboard maritime vessels will not be possible, as there can be no guarantee of reception arrangements and/or asylum procedures in line with international standards….”

(My thanks to Dr. Neil Falzon, former Head of UNHCR’s Malta Office, for bringing this to my attention over a week ago – and my apologies for being behind in email and updates. –nwf)

Click here for complete Paper.

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ECRE Critical of EU Migration Agreement with Libya

ECRE has posted a statement on its web site that is very critical of the recent EU-Libya Migration agreement.  Also posted is an interview with MEP Sylvie Guillaume (S&D, France) who is a member of the LIBE Committee where she discusses the human rights implications of the EU agreement.

Excerpts from ECRE’s Statement:  “It is difficult to understand why the EU is finalising a deal with the political dictatorship in Libya on issues that impact the fundamental rights of thousands of people. In June this year, Tripoli ordered the UN Refugee Agency, UNHCR, to close its offices in the country, a perfect illustration of Libya’s particular understanding of refugee protection and the unreliable nature of the regime under Colonel Gaddafi. Can we honestly think that refugees are safe in Libya? …

Through this ‘migration cooperation agenda’, the EU is trusting Libya to stop irregular migration towards Europe and to decide on the fate of those asylum seekers who will find it now even harder to reach safety in Europe. This follows last year’s highly questionable agreement between Rome and Tripoli to allow Italy to push back migrants to Libya without assessing their need for international protection. Since then, hardly any refugee has managed to reach Italy by sea. The EU Governments and the European Commission have so far turned a blind eye….

In particular, EU representatives have committed to assist Tripoli in reinforcing its capacity to prevent migrants from entering Libya through its Southern borders and in developing its patrolling capacities in its territorial waters and at high sea. The agreement also covers EU’s assistance to Libya in screening migrants in order to identify those in need of international protection. By setting up EU-sponsored asylum processing centres in Libya, EU States would evade their obligations to protect refugees and shift the responsibility to a country with an appalling human rights record….”

Click here for full statement.

Click here (EN) and here (FR) for interview with MEP Sylvie Guillaume.

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Filed under European Union, Italy, Libya, Mediterranean, Statements, UNHCR

Cecilia Malmström: Back From Libya

Commissioner Malmström writes her own blog, Cecilia Malmström Mitt Europa (My Europe).  Here is her most recent posting regarding her trip to Libya (translated from Swedish with Google Translate).  There are several points worth noting – and worrying about.  She notes that Libya is not a signatory to the 1951 Refugee Convention or 1967 Protocol.  (Though Libya is a signatory to the OAU Refugee Convention.)  She suggests that the new migration agreement between the EU and Libya will involve the UNHCR, but no insight is offered regarding whether or how the UNHCR might return to Libya.  She concedes that the European Commission does not know all of the details of the bi-lateral agreement between Italy and Libya which has resulted in the current push-back practice in the central Mediterranean.  And she seems to say that she was greatly troubled by what she saw when she visited one of the southern migrant detention centres in Libya during her official trip.

Translated excerpts:

“Just returned from Libya … I have been there to try to initiate a dialogue between the EU and Libya on issues relating to asylum, migration and international protection. … I believe it is necessary to have a dialogue with Libya.

Libya has not signed the Geneva Convention and the concept of asylum is not in Libyan law. … Since Italy and Libya signed an agreement, which we unfortunately do not know everything about, it has basically been that case that no boats are crossing the Mediterranean.

Against this background, I see it as progress that the first time we have agreed a text with Libya, a version of a plan for cooperation, which deals with issues of asylum and international protection…  Our aim is to identify people in need of international protection, while helping Libya to raise standards in the detention centres in order to provide decent conditions to people. We also address the issues of border control, labor migration and human smuggling in this plan for cooperation. From the EU side, we are prepared to put up 50 million euros over three years to support reforms. These will obviously not be given as a blank check to Libya but will be provided using the guidelines of the European Commission. For example, we support specific projects by various organizations, including the UNHCR.

Besides holding talks with Libyan ministers, I also visited Libya’s southern border in the middle of the desert, observed International Organisation for Migration activities in Libya, and visited one of the detention centres where many migrants have ended up. I had the opportunity to talk to some of the people there.  Several of these stories that I heard have kept both me and my staff awake at night. …”

Click here for the full posting.

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Filed under European Union, Italy, Libya, Mediterranean, News, UNHCR

RSQ Article: Refugees, Europe, Camps/State of Exception: “Into The Zone”, the EU and Extraterritorial Processing of Migrants, Refugees, and Asylum-seekers

The latest issue of Refugee Survey Quarterly has been released (2010; Vol. 29, No. 1).  An article by Dr. Carl Levy (Reader in European Politics, Department of Politics at Goldsmiths College, University of London) is of particular interest.

Here is the Abstract:  This article outlines the debate over extraterritorial processing in the European Union (EU) from the Treaty of Amsterdam (1997) to the Treaty of Lisbon (2009). It will briefly outline the historical precedents, the evolution of policy within the EU, and the role of other models (Australian, American, etc.). This article emphasizes the contested understandings of how these zones might be manifested in practice. It uses evidence from the political history and policy-making of the EU to question Giorgio Agamben’s concept of the state of exception. In fact, the promotion of extraterritorial zones was not merely sold as necessary, if unfortunate, choices. Likewise, the more sinister interpretation of these zones as a regression from the Liberal State to the universe of camps failed accurately to capture what was happening in reality. Firstly, supranational extraterritorial processing was beyond the constitutional or political capacity of the EU. Secondly, at times, the unintended consequences might have led to a liberalization of so-called “Fortress Europe” and caused certain politicians to become disenchanted precisely because the proposed form of extraterritorial processing threatened to institute a rigorous form of burden sharing.

Click here for link to Journal.  (Subscription required.)

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FRA Call for tender: Treatment of third country nationals at the EU’s external borders

The EU’s Fundamental Rights Agency has issued a call for tender.

From FRA:  The overall objective of the project is to examine the treatment of third-country nationals at the external borders of the European Union in light of the existing fundamental rights framework. The project will not cover all fundamental rights issues that may emerge in the context of management of external borders, but focus on 2 specific components.

The first component of the project focuses on the southern maritime borders of the European Union. The second component of the project will analyse the treatment of third-country nationals at border crossing points.”

The first part of the fieldwork (relating to interception and rescue at sea) will be carried out in Cyprus, Greece, Italy, Malta and Spain and the second part in 10 border crossing points to be identified among those with the highest number of entries of third country nationals into the Schengen area.

Duration: 23 months; Budget: 760.000,00 EUR;

Deadline for submission of proposals: 13 September 2010.

(Noted earlier today on the Migration and Law Network listserve.)

Click here for full information.

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ECtHR Decision in Medvedyev and Others v France

The Grand Chamber of the European Court of Human Rights issued its decision in Case of Medvedyev and Others v. France (Application no. 3394/03) on 29 March.  The applicants in the case were crew members on a Cambodian ship intercepted by the French Navy near Cape Verde.  The crew members were brought to France where they were convicted of drug smuggling.  Proceedings were then brought by the crew members before the ECtHR to challenge, among other things, the legality of their detention at sea.

An analysis of the decision by Douglas Guilfoyle, Lecturer in Law at University College London, is posted on EJIL: Talk! – “ECHR Rights at Sea: Medvedyev and others v. France.

From the Registrar’s Press Release:

“Article 1- The Court had established in its case-law that the responsibility of a State Party to the European Convention on Human Rights could arise in an area outside its national territory when as a consequence of military action it exercised effective control of that area, or in cases involving the activities of its diplomatic or consular agents abroad and on board aircraft and ships registered in, or flying the flag of, the State concerned. France had exercised full and exclusive control over the [ship] and its crew, at least de facto, from the time of its interception, in a continuous and uninterrupted manner. Besides the interception of the [ship] by the French Navy, its rerouting had been ordered by the French authorities, and the [ship’s] crew had remained under the control of the French military throughout the voyage to Brest. Accordingly, the applicants had been effectively within France’s jurisdiction for the purposes of Article 1.

Article 5 § 1 – The applicants had been under the control of the special military forces and deprived of their liberty throughout the voyage, as the ship’s course had been imposed by the French military. The Court therefore considered that their situation after the ship was boarded had amounted to a deprivation of liberty within the meaning of Article 5. The Court was fully aware of the need to combat international drug trafficking and could see why States were so firm in that regard. However, while noting the special nature of the maritime environment, it took the view that this could not justify the creation of an area outside the law. [***] Accordingly, the deprivation of liberty to which the applicants had been subjected between the boarding of their ship and its arrival in Brest had not been “lawful”, for lack of a legal basis of the requisite quality to satisfy the general principle of legal certainty. The Court therefore held by ten votes to seven that there had been a violation of Article 5 § 1.

Article 5 § 3 – The Court reiterated that Article 5 was in the first rank of the fundamental rights that protected the physical security of an individual, and that three strands in particular could be identified as running through the Court’s case-law: strict interpretation of the exceptions, the lawfulness of the detention and the promptness or speediness of the judicial controls, which must be automatic and must be carried out by a judicial officer offering the requisite guarantees of independence from the executive and the parties and with the power to order release after reviewing whether or not the detention was justified. While the Court had already noted that terrorist offences presented the authorities with special problems, that did not give them carte blanche to place suspects in police custody, free from effective control. The same applied to the fight against drug trafficking on the high seas. [***] At the time of its interception the [ship] had been off the coast of the Cape Verde islands, and therefore a long way from the French coast. There was nothing to indicate that it had taken any longer than necessary to escort it to France, particularly in view of the weather conditions and the poor state of repair of the vessel, which made it impossible for it to travel any faster. In view of these “wholly exceptional circumstances”, it had been materially impossible to bring the applicants before the investigating judges any sooner, bearing in mind that they had been brought before them eight or nine hours after their arrival, a period which was compatible with the requirements of Article 5 § 3. The Court therefore held by nine votes to eight that there had been no violation of Article 5 § 3.”

Click here for the EJIL: Talk! analysis by Douglas Guilfoyle.

Click here for the Press Release from the Registrar.

Click here (EN) or here (FR) for the Decision of the Grand Chamber.

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Filed under Eastern Atlantic, European Court of Human Rights, France, Judicial

New Book- Extraterritorial Immigration Control: Legal Challenges

A new book will soon be available: “Extraterritorial Immigration Control: Legal Challenges”, edited by Bernard Ryan (PhD from the European University Institute and Reader in Law at the University of Kent) and Valsamis Mitsilegas (Professor of European Criminal Law at Queen Mary, University of London and former legal adviser to the House of Lords Select Committee on the European Union).

The book is part of Brill’s “Immigration and Asylum Law and Policy in Europe” series.

Summary from the publisher:  “A central element of contemporary border regimes is their application to migrants before they reach a state’s territory. The main forms of this extraterritorial immigration control are visa requirements, pre-embarkation immigration controls and the interception of irregular migrants at sea. This work analyses the complex relationship of the law to these practices, as legal guarantees are potentially avoided, while the legality of control is often uncertain. It examines the international law framework, including the law of the sea and the extraterritorial application of principles of non-refoulement contained in the Refugee Convention and in international human rights law. The work also includes detailed case-studies of the legal challenges posed by extraterritorial immigration controls in Europe, Australia and the United States.”

Contents:

Part I: Overviews
1. Extraterritorial Immigration Control: What role for legal guarantees? – Bernard Ryan,;
2. Extraterritorial Immigration Control in the 21st Century: The individual and the state transformed – Valsamis Mitsilegas;

Part II: International law aspects
3. The Concept of State Jurisdiction and the Applicability of the Non-refoulement Principle to Extraterritorial Interception Measures – Anja Klug and Tim Howe;
4. The International Law of the Sea and Migration Control – Richard Barnes;
5. The Legal Framework Concerning the Smuggling of Migrants at Sea under the UN Protocol on the Smuggling of Migrants by Land, Sea and Air – Tom Obokata;

Part III: European Union aspects
6. Europe Beyond its Borders: Refugee and human rights protection in extraterritorial immigration control – Maarten den Heijer;
7. Extraterritorial Migration Control and Human Rights: Preserving the responsibility of the EU and its Member States – Evelien Brouwer ;
8. Extraterritorial Border Controls in the EU: the role of Frontex in operations at sea – Anneliese Baldaccini ;
9. The Transformation of European Border Controls – Elspeth Guild and Didier Bigo;

Part IV: State practice
Migration Control at Sea: The Italian case – Alessia di Pascale;
10. Extraterritorial strategies to tackle irregular immigration by sea: A Spanish perspective – Paula García Andrade;
11. Controlling Migration by Sea: The Australian case – Susan Kneebone;
12. US Migrant Interdiction Practices in International and Territorial Waters – Niels Frenzen;
13. The UK and Extra-territorial Immigration Control: Entry clearance and juxtaposed control – Gina Clayton.

Click here for link to the book on Publisher’s web site.

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