Tag Archives: Non-refoulement

by | 07 Mar 2016 · 05:36

NATO Expands Aegean Sea Migrant Patrols Into Turkish and Greek Territorial Waters – Rescued Migrants to Be Automatically Returned to Turkey

NATO announced on Sunday, 6 March, that its Aegean Sea patrols have been expanded to Greek and Turkish territorial waters. NATO patrols have been operating only in international waters. And while NATO says its ‘mission is not to stop or turn back those trying to cross into Europe’, NATO has made it clear that NATO ships will return rescued migrants directly to Turkey: ‘In case of rescue at sea of persons coming via Turkey, they will be taken back to Turkey.’ NATO’s plan to summarily return intercepted migrants is consistent with previous statements made by the British and German defence ministers who have said that the purpose of the NATO mission is to stop migrants and return them to Turkey.

NATO’s characterisation of its operation seems to be an attempt to draw a distinction between a push-back practice where any migrant boat, regardless of whether it is in need of rescue, would be intercepted and pushed back and a search and rescue operation providing assistance to migrant boats in need of rescue. This is meaningless distinction given the current situation in the Aegean where every migrant boat is in need of assistance or rescue.

NATO ships are subject to the same rescue at sea obligations imposed by the SOLAS and SAR Conventions as all other ships and are obligated to disembark rescued persons in a ‘place of safety.’ And while disembarking in Turkey is safer than disembarking in Syria or Libya, there are serious questions as to whether Turkey is a place of safety. See the recent Q&A issued by Human Rights Watch concluding that Turkey is not a ‘safe third country’ as defined by EU law. While the question of a ‘place of safety’ under the SAR Convention is not identical to the ‘safe third country’ question under EU law, the fact remains that rescued migrants should not in all cases be automatically returned to Turkey without adequate screening and processing. The failure to screen rescued migrants is a clear violation of the non-refoulement obligations of the individual EU and non-EU States operating under the NATO command.

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by | 03 Sep 2015 · 06:36

ECtHR: Italy’s Use of Summary Procedures to Return Tunisian Migrants Constituted Unlawful Collective Expulsion

The ECtHR, Second Section, issued a judgment on 1 September in Khlaifia et autres c. Italie (Requête no 16483/12) (official judgment in French) finding that the summary procedures used by Italy in 2011 to quickly return thousands of Tunisians who were reaching Italy by sea during the height of the Arab Spring violated the prohibition of collective expulsion of aliens contained in Art. 4 of Protocol 4 of the ECHR. (Judges SAJÓ and VUĊINIĊ did not find that collective expulsion had occurred and filed a dissenting opinion.) The Court also found violations of Art. 3, Art. 5, §§ 1, 2, 5, and Art. 13 (inhuman or degrading treatment, failure to promptly explain basis for detention, inability to challenge detention, lack of an effective remedy).

This is the fifth time that the ECtHR has found a violation of the collective expulsion prohibition. (See Čonka v. Belgium, no. 51564/99, § 62-63, ECHR 2002‑I; Georgia v. Russia (I) [GC], no. 13255/07, § 175, ECHR 2014;  Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 185, ECHR 2012; Sharifi and Others v. Italy and Greece, no. 16643/09, 21 October 2014.)

The Court acknowledged that unlike the applicants in Hirsi Jamaa, the Tunisian applicants in Khlaifia had been subjected to individualized identification and processing by Italian authorities, but under the circumstances the Court did not consider an identification procedure standing alone to be sufficient:

“156. [T]he Court is of the opinion that the mere implementation of an identification procedure is not sufficient to exclude the existence of collective expulsion. … [T]he expulsion orders did not contain any reference to the personal circumstances of the affected persons; the Government did not produce any document that could prove that individual interviews regarding the specific situation of each applicant would have occurred before the adoption of these [expulsion] orders; many people of the same origin experienced, at the time of the incriminating facts, the same fate as the applicants; [Italy’s] bilateral agreements with Tunisia … have not been made public and provided for the repatriation of irregular Tunisian migrants through simplified procedures, based on the simple identification of the person concerned by Tunisian consular authorities.”

The procedures at issue occurred during the 2011 Arab Spring when North Africa and the EU experienced significant movements of migrants and refugees. The Court took note of these exceptional circumstances but made clear that such circumstances do not excuse a state from complying with its obligations under the ECHR.  (See paras 127-128.)

The Court’s judgment should serve as a caution to the European Commission, EASO, Frontex, and EU member states as they consider new streamlined procedures to process the refugees and migrants reaching Europe; procedures must provide for meaningful individualized processing and individuals must be afforded a meaningful opportunity to challenge an expulsion order, among other requirements. The dissenting opinion of Judges SAJÓ AND VUĊINIĊ (in English), concluding that there had not been a collective expulsion, is well reasoned and reviews the history of the collective expulsion prohibition.

This is an excerpt from the Court’s judgment. The official version is only available in French, the English translation is mine:

“2. Appréciation de la Cour
2. Findings of the Court

153. La Cour observe qu’en l’espèce les requérants ont fait l’objet de décrets de refoulement individuels. Ces derniers étaient cependant rédigés dans des termes identiques, les seules différences étant les données personnelles des destinataires.

153. The Court observes that in this case the applicants were the subject of individual expulsion orders. They were, however, drafted in identical terms, the only differences being the personal information of the recipients.

154. La Cour a déjà précisé que le fait que plusieurs étrangers fassent l’objet de décisions semblables ne permet pas en soi de conclure à l’existence d’une expulsion collective lorsque chaque intéressé a pu individuellement exposer devant les autorités compétentes les arguments qui s’opposaient à son expulsion. La Cour a également jugé qu’il n’y a pas violation de l’article 4 du Protocole no 4 si l’absence de décision individuelle d’éloignement est la conséquence du comportement fautif des personnes intéressées (Hirsi Jamaa et autres, précité, § 184).

154. The Court has already held that the fact that multiple foreigners are subject to similar decisions does not in itself lead to the conclusion that there was collective expulsion when each person was individually able to present arguments against expulsion to competent authorities. The Court has also held that there is no violation of Article 4 of Protocol No. 4 if the absence of individual expulsion decisions is due to the wrongful conduct of the affected persons (Hirsi Jamaa and Others, cited above, § 184).

155. La Cour relève de surcroît qu’à la différence de l’affaire Hirsi Jamaa et autres (précité, § 185), en l’espèce, à l’instar des autres migrants débarqués sur l’île de Lampedusa en septembre 2011, les requérants ont fait l’objet d’une procédure d’identification. Le Gouvernement le souligne à juste titre (paragraphe 152 ci-dessus). Les requérants reconnaissent par ailleurs qu’immédiatement après leur débarquement à Lampedusa, les autorités de frontière italiennes ont enregistré leur identité et relevé leurs empreintes (paragraphe 149 ci dessus).

155. The Court further notes that, unlike the case of Hirsi Jamaa and Others (cited above, § 185), in this case, like the other migrants who landed on Lampedusa in September 2011, the applicants were the subject of an identification procedure. The Government rightly points this out (paragraph 152 above). The applicants also recognize that immediately after landing in Lampedusa, the Italian border authorities registered their identity and took their fingerprints (paragraph 149 above).

156. La Cour est cependant d’avis que la simple mise en place d’une procédure d’identification ne suffit pas à exclure l’existence d’une expulsion collective. Elle estime de surcroît que plusieurs éléments amènent à estimer qu’en l’espèce l’expulsion critiquée avait bien un caractère collectif. En particulier, les décrets de refoulement ne contiennent aucune référence à la situation personnelle des intéressés ; le Gouvernement n’a produit aucun document susceptible de prouver que des entretiens individuels portant sur la situation spécifique de chaque requérant auraient eu lieu avant l’adoption de ces décrets ; un grand nombre de personnes de même origine a connu, à l’époque des faits incriminés, le même sort des requérants ; les accords bilatéraux avec la Tunisie (paragraphes 28-30 ci dessus) n’ont pas été rendus publics et prévoyaient le rapatriement des migrants irréguliers tunisiens par le biais de procédures simplifiées, sur la base de la simple identification de la personne concernée de la part des autorités consulaires tunisiennes.

156. However, the Court is of the opinion that the mere implementation of an identification procedure is not sufficient to exclude the existence of collective expulsion. It considers moreover that several factors lead to the consideration in this case that the expulsion at issue was indeed of a collective nature. In particular, the expulsion orders did not contain any reference to the personal circumstances of the affected persons; the Government did not produce any document that could prove that individual interviews regarding the specific situation of each applicant would have occurred before the adoption of these orders; many people of the same origin experienced, at the time of the incriminating facts, the same fate as the applicants; the bilateral agreements with Tunisia (see paragraphs 28-30 above) have not been made public and provided for the repatriation of irregular Tunisian migrants through simplified procedures, based on the simple identification of the person concerned by Tunisian consular authorities.

157. Cela suffit à la Cour pour exclure l’existence de garanties suffisantes d’une prise en compte réelle et différenciée de la situation individuelle de chacune des personnes concernées (voir, mutatis mutandis, Čonka, précité, §§ 61-63).

157. This is sufficient for the Court to rule out the existence of sufficient guarantees of a genuine and differentiated consideration of the individual circumstances of the persons involved (see, mutatis mutandis, Čonka, cited above, §§ 61-63).

158. Au vu de ce qui précède, la Cour conclut que l’éloignement des requérants a revêtu un caractère collectif contraire à l’article 4 du Protocole no 4. Partant, il y a eu violation de cette disposition.

158. In view of the foregoing, the Court concludes that the expulsion of the applicants took on a collective character contrary to Article 4 of Protocol No. 4. Accordingly, there has been a violation of this provision.
[***]”

 

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by | 11 May 2015 · 04:58

Amnesty International Report: ‘Libya is Full of Cruelty’ – Stories of Abduction, Sexual Violence and Abuse from Migrants and Refugees

Amnesty International has released a new report entitled: “’Libya is Full of Cruelty’ – Stories of Abduction, Sexual Violence and Abuse from Migrants and Refugees.” (also available here.)  2015-05-11_Amnesty Intl_Report_Libya_Libya_is_full_of_cruelty COVER

Key points include (see formal AI recommendations below):

  • “Widespread abuses by armed groups, smugglers, traffickers and organized criminal groups in Libya as well as systematic exploitation, lawlessness and armed conflicts are pushing hundreds of thousands of migrants, asylum-seekers and refugees to risk their lives by attempting to cross the Mediterranean Sea”;
  • “In many cases, migrants and refugees attempting to cross the Mediterranean Sea have been subjected to prolonged beatings in [detention] facilities following their interception and arrest by the Libyan coastguard or militias acting on their own initiative in the absence of strong state institutions”;
  • “While Amnesty International welcomes the EU’s commitment to increase resources for search and rescue operations, it is also concerned that some of the proposed measures, in particular plans to ‘systematically identify, capture and destroy vessels before they are used by traffickers’ would effectively contribute to migrants and refugees being trapped in Libya and expose them to a risk of serious human rights abuses”;
  • “As more people are drowning in the Mediterranean Sea, the priority for the international community must be to dramatically expand search and rescue operations and take effective steps to urgently address human rights abuses and serious violations of international humanitarian law in Libya. EU governments must also increase the number of resettlement places, humanitarian admissions and visas for people in need of international protection”.

“Amnesty International makes the following recommendations:

To European governments

  • Urgently ensure the deployment of naval and aerial resources at a scale commensurate with foreseeable departure trends and which should patrol the high seas along the main migration routes. Whether such deployment occurs within the framework of Frontex Joint Operation Triton or through other agreements, it is crucial that ships and aircraft are delivered promptly and deployed in the area where most of calls for assistance come from and a great number of shipwrecks occurs;
  • To reduce the numbers of those risking their lives at sea, increase the number of resettlement places, humanitarian admissions and visas for people in need of international protection and ensure that refugees have effective access to asylum at land borders;
  • Ensure that any action against smugglers and traffickers is addressed through law enforcement measures, governed by human rights law and standards, and that it does not contribute to migrants and refugees being trapped in Libya without any means of escaping the violence;
  • Ensure that human rights abuses and violations of international humanitarian law, including against migrants, asylum-seekers and refugees in Libya, are addressed as part of the political dialogue aimed at ending the ongoing conflicts, and that a mechanism is put in place to monitor the human rights situation on the ground following any subsequent settlement. EU governments must also insist that Libyan authorities, armed groups and militias end the systematic indefinite detention of migrants and refugees based on their immigration status; all refugees and asylum-seekers and migrants detained for immigration purposes must be released.;
  • Investigate and bring to justice in fair trials those involved in trafficking of persons.

To the governments of Tunisia, Egypt and Algeria:

  • Keep the borders open to all individuals in need of international protection regardless of whether they have valid travel documents or meet visa requirements.

To governments along the smuggling route:

  • Ensure that any regional co-operation aimed at addressing irregular migration and dismantle smuggling networks fully complies with international law and standards, and does not infringe upon the rights and safety of asylum-seekers and refugees, with particular regard to the right to freedom of movement, the right to asylum, and the absolute prohibition on refoulement.

To militias, armed groups and Libyan authorities:

  • Release anyone detained solely on the basis of their immigration status, nationality, race, religion or ethnicity;
  • Make clear to all those under your command that torture or other ill-treatment, rape and sexual assault will not be tolerated under any circumstances. Remove from the ranks anyone suspected of such abuses;
  • Facilitate visits by independent organizations to immigration detention centres and other places of detention;
  • Ensure that all those deprived of their liberty can communicate regularly with their families and have access to adequate medical care.”

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by | 24 Mar 2014 · 05:27

Statewatch Analysis – “New EU rules on maritime surveillance: will they stop the deaths and push-backs in the Mediterranean?”

Statewatch last month released a new Analysis of the EU Regulation for Frontex-coordinated surveillance of external sea borders which is scheduled for a plenary vote in the European Parliament in April.  The Analysis, written by Prof. Steve Peers, Univ. of Essex Law School, reviews the enhanced protections to be afforded to intercepted or rescued migrants relative to the earlier Council Decision which was annulled by the CJEU.  The Analysis also highlights concerns with various provisions within the Regulation, including:

  • One significant concern with the Regulation is due to the fact that “the Regulation does not contemplate the scenario of migrants being intercepted in the territorial waters of third States.”  (Frenzen’s Note: This raises a serious concern in regard to the push-back and interception practices which have been carried out for many years within the territorial waters of Mauritania and Senegal within Frontex’s Operation Hera.  Additionally, prior to the Libyan revolution, Libya authorised Italy to conduct joint maritime patrols within Libyan territorial waters.  It is safe to assume that Frontex and some EU Member States will continue to seek the ability to intercept migrant boats within the territorial waters of third States.);
  • While the Regulation requires that migrants intercepted in the territorial sea or contiguous zone of an EU Member State be disembarked in that Member State, “this [requirement] is subject to a crucial exception: it is possible under the Regulation that a vessel that has made it this close to a Member State could still be ordered to alter course towards another destination.”;
  • While the bulk of the EU’s asylum legislation does not apply [to interceptions which occur outside of the territorial sea of a Member State,] the EU’s qualification Directive does – since there is nothing in the text of that Directive to limit its territorial scope. But the wording of the Regulation is confusing in this regard, since it does not refer to the detailed text of that Directive but rather to general standards on non-refoulement, which are different from that Directive in some respects….”;
  • Member States are required to “use all means” to identify intercepted migrants, assess their particular circumstances, and inform them of the intended place of disembarkation, in order to give the migrants the opportunity to assert a non-refoulement claim.  The Regulation states that the Frontex operational plan, “where necessary,” must provide for interpreters and legal advisors on shore. “[T]he Council Presidency points out the ‘wiggle room’ granted by the words ‘where necessary’ and ‘use all means.’”

Click here or here for Statewatch Analysis.

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by | 07 Dec 2012 · 19:28

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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by | 28 Nov 2012 · 05:32

European Commission’s Second Biannual Report on Schengen Area

The European Commission released its “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 first reporton the Schengen area was released in May of this year.  (COM(2012) 230 final, 16.5.2012)

Here are a few excerpts from the 8 page document:

The Commission intends to present a legislative proposal in early 2013 to replace the Frontex sea border operations rule (Council Decision 2010/252/EU) that was annulled by the Court of Justice on 5 September 2012;

Subsequent to the issuance of a letter of formal notice to Greece in October 2009 in response to “allegations of serious difficulties faced by migrants in applying for asylum and ill-treatment of asylum-seekers, including the turning back of persons who may face serious harm or persecution”, the Commission is continuing to analyse the situation “in the light of constant developments, such as the progress made in the implementation of the Greek National Action Plan.”;

Subsequent to a Commission request to Italy in July 2009 “to provide information on the measures to avoid the risk of refoulement” and the February 2012 European Court of Human Rights decision in the Case of Hirsi v. Italy, “[a]gainst this background, the Commission is now analysing the implications of this ruling on border surveillance operations at sea and on the asylum acquis.

Click  here or here for Second Report.

Click here for First Report.

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by | 13 Jun 2012 · 05:28

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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by | 26 Feb 2012 · 22:49

Hirsi v. Italy: The Issue of Jurisdiction Under ECHR Article 1

The Court found that ECHR Article 1 jurisdiction existed because “the applicants were under the continuous and exclusive de jure and de facto control of the Italian authorities” from the point in time when the applicants’ boats were intercepted and the applicants were transferred to the Italian ships up until the point when the applicants were turned over to Libyan authorities in Tripoli. [para. 81]

The Court noted that the jurisdiction of a State is essentially territorial and therefore “the Court has accepted only in exceptional cases that acts of the Contracting States performed, or producing effects, outside their territories can constitute an exercise of jurisdiction by them within the meaning of Article 1 of the Convention (see Drozd and Janousek v. France and Spain, 26 June 1992, § 91, Series A no. 240; Bankoviç, decision cited above, § 67; and Ilaşcu and Others, cited above, § 314).” [para. 72].

“73.  [***] In each case, the question whether exceptional circumstances exist which require and justify a finding by the Court that the State was exercising jurisdiction extra-territorially must be determined with reference to the particular facts, for example full and exclusive control over a prison or a ship (see Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, § 132 and 136, 7 July 201; Medvedyev and Others, cited above, § 67).

74.  Whenever the State through its agents operating outside its territory exercises control and authority over an individual, and thus jurisdiction, the State is under an obligation under Article 1 to secure to that individual the rights and freedoms under Section 1 of the Convention that are relevant to the situation of that individual. In this sense, therefore, the Court has now accepted that Convention rights can be ‘divided and tailored’ (see Al-Skeini, cited above, § 136 and 137; compare Banković, cited above, § 75).”

The Court rejected Italy’s jurisdictional arguments.  While Italy acknowledged that the events in question took place on board its military ships, Italy asserted that due to the nature of the operation, the military ships and their personnel never exercised “absolute and exclusive control” over the applicants. [para. 64] Italy argued that its actions constituted a “rescue on the high seas of persons in distress” and therefore “could in no circumstances be described as a maritime police operation.” [para. 65] Italy argued that the UN Convention on the Law of the Sea obligated it to rescue persons in distress and that carrying out its obligations under the Convention on the Law of the Sea  “did not in itself create a link between the State and the persons concerned establishing the State’s jurisdiction.” [para. 65]

The Court concluded that Italy “[could not] circumvent its ‘jurisdiction’ under the [ECHR] by describing the events at issue as rescue operations on the high seas.”   The Court took note of the events in the case of Medvedyev and Others where French military personnel intercepted a vessel flying the flag of a third State and took control of crew members who remained on board the intercepted vessel. [para. 80]

“81.  The Court observes that in the [Hirsi] case the events took place entirely on board ships of the Italian armed forces, the crews of which were composed exclusively of Italian military personnel. In the Court’s opinion, in the period between boarding the ships of the Italian armed forces and being handed over to the Libyan authorities, the applicants were under the continuous and exclusive de jure and de facto control of the Italian authorities. Speculation as to the nature and purpose of the intervention of the Italian ships on the high seas would not lead the Court to any other conclusion.

82.  Accordingly, the events giving rise to the alleged violations fall within Italy’s ‘jurisdiction’ within the meaning of Article 1 of the Convention.”

In some respects, the Article 1 jurisdictional issue was easier to address because the applicants were removed from their vessels and taken on board the Italian military vessels.  The Court noted that under “relevant provisions of the law of the sea, a vessel sailing on the high seas is subject to the exclusive jurisdiction of the State of the flag it is flying” [para. 77] and further that this principle is contained within the Italian Navigation Code. [para. 78]  The Court accordingly found that de jure control had been exercised over the applicants after they were transferred from their boats to the Italian ships.

It seems clear that Italy intends in the future to resume some sort of bi-lateral immigration control measures with Libya.  It remains to be seen whether Italy will try to implement some modified form of the push-back practice that has now been condemned by the Court.  One of the provisions in one of the bi-lateral agreements between Italy and Libya mentioned in the Hirsi judgment provides for the deployment of

“maritime patrols with joint crews, made up of equal numbers of Italian and Libyan personnel having equivalent experience and skills. The patrols shall be conducted in Libyan and international waters under the supervision of Libyan personnel and with participation by Italian crew members, and in Italian and international waters under the supervision of Italian personnel and with participation by the Libyan crew members.”  Additional Protocol of 4 February 2009 [para. 19]

The question arises whether Italy could evade jurisdiction and circumvent its Convention obligations by lessening its control over a new push-back scheme.  How would the Court have viewed the push-back events had they occurred, as the operational protocol above contemplates, “in … international waters under the supervision of Libyan personnel and with participation by Italian crew members”?

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.

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by | 26 Feb 2012 · 07:03

Oxford Migration Law Discussion Group Seminar: A discussion on Hirsi v Italy (Oxford, 27 Feb)

“The Migration Law Discussion Group at the University of Oxford is holding a meeting Monday, 27 Feb. 2012, to discuss the Grand Chamber judgment delivered by the Strasbourg Court on the case of Hirsi v Italy. The session will start with a presentation by UNHCR (third party intervener in the case) and provide ample opportunity for discussion afterwards.  The details are as follows:  MLDG SEMINAR: ‘How far does non-refoulement go? A discussion on Hirsi v Italy’;  SPEAKER: Madeline Garlick, Head of Unit, Policy and Legal Support, UNHCR Europe;   ABSTRACT:  The European Court of Human Rights, on 23 February 2012, has handed down its judgment in the matter of Hirsi & Ors v Italy. This case, brought to the court by a group of migrants intercepted at sea and returned to Libya by Italy in 2009, raises important questions around the scope and application of the principle of non-refoulement. This includes notably the extent of States’ protection obligations when exercising jurisdiction over individuals outside their territory. The decision is ground-breaking and should lead to a dramatic change in the way border controls are conducted in Europe, affording protection to migrants and refugees in an unprecedented way.  The speaker, who represented UNHCR before the Court in the case, will examine key points of interest in the judgment and convey the perspective of UNHCR as a third party intervener. Participants at the event will be invited to discuss the judgment and its wider implications.

DATE: Monday, 27 February 2012
VENUE: Seminar Room 2, Refugee Studies Centre – Queen Elizabeth House, 3 Mansfield Rd – Oxford OX1 3TB
TIME: 5h30 pm”

(From Migration and Law Network listserve.)

Click here for more information.

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by | 23 Feb 2012 · 16:59

ECtHR Grand Chamber: Italy’s Maritime Push-Back Practice Amounts to Collective Expulsion and Exposes Migrants to Risks of Torture and Ill-Treatment

The Grand Chamber of the European Court of Human Rights issued a unanimous judgment earlier today in the case of Hirsi Jamaa and Others v. Italy (application no. 27765/09) holding that “There had been two violations of [ECHR] Article 3 (prohibition of inhuman or degrading treatment) … because the applicants had been exposed to the risk of ill-treatment in Libya and of repatriation to Somalia or Eritrea; There had been a violation of Article 4 of Protocol No. 4 (prohibition of collective expulsions); There had been a violation of Article 13 (right to an effective remedy) taken in conjunction with Article 3 and with Article 4 of Protocol No.4.”

More to follow once I have had a chance to closely read the 80+ page judgment.

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

Click here (EN) and here (FR) for Press Statements from the Court Registry.

Click here, here, and here for UNHCR press statements.

Click here for Amnesty International statement.

Excerpt from the Registry Press Release:

“Decision of the Court

The question of jurisdiction under Article 1

Only in exceptional cases did the Court accept that acts of the member States performed, or producing effects, outside their territories could constitute an exercise of jurisdiction by them. Whenever the State, through its agents operating outside its territory, exercised control and authority over an individual, and thus its jurisdiction, the State was under an obligation to secure the rights under the Convention to that individual.

Italy did not dispute that the ships onto which the applicants had been embarked had been fully within Italian jurisdiction. The Court reiterated the principle of international law, enshrined in the Italian Navigation Code, that a vessel sailing on the high seas was subject to the exclusive jurisdiction of the State of the flag it was flying. The Court could not accept the Government’s description of the operation as a “rescue operation on the high seas” or that Italy had exercised allegedly minimal control over the applicants. The events had taken place entirely on board ships of the Italian armed forces, the crews of which had been composed exclusively of Italian military personnel. In the period between boarding the ships and being handed over to the Libyan authorities, the applicants had been under the continuous and exclusive de jure and de facto control of the Italian authorities. Accordingly, the events giving rise to the alleged violations had fallen within Italy’s jurisdiction within the meaning of Article 1.

Article 3 – Risk of suffering ill-treatment in Libya

The Court was aware of the pressure on States resulting from the increasing influx of migrants, which was a particularly complex phenomenon when occurring by sea, but observed that this could not absolve a State of its obligation not to remove any person who would run the risk of being subjected to treatment prohibited under Article 3 in the receiving country. Noting that the situation in Libya had deteriorated after April 2010, the Court decided to confine its examination of the case to the situation prevailing in Libya at the material time. It noted that the disturbing conclusions of numerous organisations (2)  regarding the treatment of clandestine immigrants were corroborated by the report of the Committee for the Prevention of Torture (CPT) of 2010 (3).

Irregular migrants and asylum seekers, between whom no distinction was made, had been systematically arrested and detained in conditions described as inhuman by observers (4), who reported cases of torture among others. Clandestine migrants had been at risk of being returned to their countries of origin at any time and, if they managed to regain their freedom, had been subjected to particularly precarious living conditions and exposed to racist acts. The Italian Government had maintained that Libya was a safe destination for migrants and that Libya complied with its international commitments as regards asylum and the protection of refugees. The Court observed that the existence of domestic laws and the ratification of international treaties guaranteeing respect for fundamental rights were not in themselves sufficient to ensure adequate protection against the risk of ill-treatment where reliable sources had reported practices contrary to the principles of the Convention. Furthermore, Italy could not evade its responsibility under the Convention by referring to its subsequent obligations arising out of bilateral agreements with Libya. The Court noted, further, that the Office of the UNHCR in Tripoli had never been recognised by the Libyan Government. That situation had been well-known and easy to verify at the relevant time. The Court therefore considered that when the applicants had been removed, the Italian authorities had known or should have known that they would be exposed to treatment in breach of the Convention. Furthermore, the fact the applicants had not expressly applied for asylum had not exempted Italy from its responsibility. The Court reiterated the obligations on States arising out of international refugee law, including the “non-refoulement principle” also enshrined in the Charter of Fundamental Rights of the European Union. The Court attached particular weight in this regard to a letter of 15 May 2009 from Mr Jacques Barrot, Vice-President of the European Commission, in which he reiterated the importance of that principle (5).

The Court, considering that the fact that a large number of irregular immigrants in Libya had found themselves in the same situation as the applicants did not make the risk concerned any less individual, concluded that by transferring the applicants to Libya the Italian authorities had, in full knowledge of the facts, exposed them to treatment proscribed by the Convention. The Court thus concluded that there had been a violation of Article 3.

Risk of suffering ill-treatment in the applicants’ country of origin

The indirect removal of an alien left the State’s responsibility intact, and that State was required to ensure that the intermediary country offered sufficient guarantees against arbitrary refoulement particularly where that State was not a party to the Convention. The Court would determine whether there had been such guarantees in this case. All the information in the Court’s possession showed prima facie that there was widespread insecurity in Somalia – see the Court’s conclusions in the case of Sufi and Elmi v. the United Kingdom (6) – and in Eritrea – individuals faced being tortured and detained in inhuman conditions merely for having left the country irregularly. The applicants could therefore arguably claim that their repatriation would breach Article 3 of the Convention. The Court observed that Libya had not ratified the Geneva Convention and noted the absence of any form of asylum and protection procedure for refugees in the country. The Court could not therefore subscribe to the Government’s argument that the UNHCR’s activities in Tripoli represented a guarantee against arbitrary repatriation. Moreover, Human Rights Watch and the UNHCR had denounced several forced returns of asylum seekers and refugees to highrisk countries. Thus, the fact that some of the applicants had obtained refugee status in Libya, far from being reassuring, might actually have increased their vulnerability.

The Court concluded that when the applicants were transferred to Libya, the Italian authorities had known or should have known that there were insufficient guarantees protecting them from the risk of being arbitrarily returned to their countries of origin. That transfer accordingly violated Article 3.

Article 4 of Protocol No.4 – Admissibility of the complaint

The Court was required, for the first time, to examine whether Article 4 of Protocol No. 4 applied to a case involving the removal of aliens to a third State carried out outside national territory. It had to ascertain whether the transfer of the applicants to Libya constituted a collective expulsion within the meaning of Article 4 of Protocol No. 4. The Court observed that neither the text nor the travaux préparatoires of the Convention precluded the extraterritorial application of that provision. Furthermore, were Article 4 of Protocol No. 4 to apply only to collective expulsions from the national territory of the member States, a significant component of contemporary migratory patterns would not fall within the ambit of that provision and 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. The notion of expulsion, like the concept of “jurisdiction”, was clearly principally territorial. Where, however, the Court found that a State had, exceptionally, exercised its jurisdiction outside its national territory, it could accept that the exercise of extraterritorial jurisdiction by that State had taken the form of collective expulsion. The Court also reiterated that the special nature of the maritime environment did not make it an area outside the law. It concluded that the complaint was admissible.

Merits of the complaint

The Court observed that, to date, the Čonka v. Belgium (7) case was the only one in which it had found a violation of Article 4 of Protocol No. 4. It reiterated that the fact that a number of aliens were subject to similar decisions did not in itself lead to the conclusion that there was a collective expulsion if the case of each person concerned had been duly examined. In the present case the transfer of the applicants to Libya had been carried out without any examination of each individual situation. No identification procedure had been carried out by the Italian authorities, which had merely embarked the applicants and then disembarked them in Libya. The Court concluded that the removal of the applicants had been of a collective nature, in breach of Article 4 of Protocol No. 4.

Article 13 taken in conjunction with Article 3 and with Article 4 of Protocol No.4

The Italian Government acknowledged it had not been possible to assess the applicants’ personal circumstances on board the military ships. The applicants alleged that they had been given no information by the Italian military personnel, who had led them to believe that they were being taken to Italy and had not informed them as to the procedure to be followed to avoid being returned to Libya. That version of events, though disputed by the Government, was corroborated by a large number of witness statements gathered by the UNHCR, the CPT and Human Rights Watch. The applicants had thus been unable to lodge their complaints under Article 3 of the Convention and Article 4 of Protocol No. 4 with a competent authority and to obtain a thorough and rigorous assessment of their requests before the removal measure was enforced.

Even if a remedy under the criminal law against the military personnel on board the ship were accessible in practice, this did not satisfy the criterion of suspensive effect. The Court reiterated the requirement flowing from Article 13 that execution of a measure be stayed where the measure was contrary to the Convention and had potentially irreversible effects. Having regard to the irreversible consequences if the risk of torture or ill-treatment materialised, the suspensive effect of an appeal should apply where an alien was returned to a State where there were serious grounds for believing that he or she faced a risk of that nature. The Court concluded that there had been a violation of Article 13 taken in conjunction with Article 3 and Article 4 of Protocol No. 4.

Article 41

Under Article 41 (just satisfaction), the Court held that Italy was to pay each applicant 15,000 euros (EUR) in respect of non-pecuniary damage and EUR 1,575.74 to the applicants jointly in respect of costs and expenses.

2 International bodies and non-governmental organisations; see paragraphs 37 – 41 of the judgment.

3 Report of 28 April 2010 of the Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) of the Council of Europe after a visit to Italy.

4 The UNHCR, Human Rights Watch and Amnesty International.

5 Paragraph 34 of the judgment.

6 Judgment of 28.06.2011.

7 Judgment of 05.02.2002.”

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

Click here (EN) and here (FR) for Press Statements from the Court Registry.

Click here, here, and here for UNHCR press statements.

Click here for Amnesty International statement

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by | 15 Feb 2012 · 16:20

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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by | 30 Jan 2012 · 06:23

Libya Asks EU to Assist with Renovation of Migrant Detention Centres

At a press conference held last week, Libyan Interior Minister Fawzi Abdelali asked the European Union for assistance in dealing with new immigration flows and specifically requested assistance to renovate 19 existing migrant detention centres.  (Global Detention Project identified 27 dedicated immigration detention centres in Libya as of late 2009.)

Libyan officials have said recently that irregular migration flows are resuming.  AFP reported that Libyan interior ministry spokesman General Abdelmonem al-Tunsi said on 19 January “that illegal immigration had resumed since the end of the anti-Kadhafi revolt” and “thousands of people from … Syria were also entering through the Massad terminal on the border with Egypt, apart from Africans infiltrating through the southern borders.”

Italian Prime Minister Mario Monti traveled to Tripoli on 21 January to meet with the Libyan NTC.  Prior to his trip Amnesty International sent Monti a letter urging him to address numerous matters with the Libyans, including the eradication of torture, reforming the criminal justice system, and ratifying the Refugee Convention.

Amnesty also called upon Italy not to resume push-back operations at sea and to refrain from cooperating with Libya on other migration control practices until appropriate reforms are instituted within Libya.  There are fears that Italy is moving towards resuming coordination with Libya on immigration control matters.  Italian Interior Minister Anne Marie Cancellieri is reportedly scheduled to travel to Tripoli next month to discuss bilateral cooperation on immigration.

Translated excerpts from Amnesty’s press statement regarding the AI letter to PM Monti:

“With regard to cooperation on migration between Italy and Libya, Amnesty International calls on the Italian Government:

  • To desist from conducting any operation of ‘refoulement’ (deportation) at sea to Libya and cooperating with Libya to intercept migrants and reject them;
  • To set aside the Memorandum of Understanding on ‘migration control’, signed with the National Transitional Council (CNT) on June 17, 2011, until a thorough review is conducted of the impact on human rights agreements signed by the two countries in this area, and until the necessary changes have been introduced in order to ensure that the ‘immigration control’ is never carried out at the expense of human rights;
  • To ensure that all forms of cooperation with the Libyan authorities are absolutely transparent and subject to the commitment and ability of both parties to fully respect the human rights of asylum seekers, refugees and migrants, and are consistent with the international law of human rights and international refugee law….”

Click here for AI Letter. (IT)

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

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by | 08 Jan 2012 · 23:18

Statewatch Analysis: The EU’s self-interested response to unrest in north Africa: the meaning of treaties and readmission agreements between Italy and north African states

Statewatch released an Analysis by Yasha Maccanico entitled “The EU’s self-interested response to unrest in north Africa: the meaning of treaties and readmission agreements between Italy and north African states.”  The Analysis provides a description of Italy’s responses to the migrant arrivals in 2011 caused by the unrest in North Africa.

Excerpts:  “The ‘crisis’ reveals questionable practices and routine abuses – The measures adopted in response to the increasing number of migrants arriving from north African countries serve to highlight a number of practices that have become commonplace in Italy in recent years.

The first of these is a widening of the concept of ‘emergency.’ Calling an emergency gives the government a wider remit to derogate from specified laws so as to resolve situations that cannot be dealt with through ordinary measures….

Although the situation in north Africa was worrying, the emergency was called when slightly over 5,000 migrants had arrived. An analysis by Massimiliano Vrenna and Francesca Biondi Dal Monte for ASGI notes that the government has repeatedly called and extended states of emergency since 2002 to deal with immigration, which is treated as though it were a “natural calamity” even when there is a wholly predictable influx of people from third countries. The urgent need specified in decrees declaring a state of emergency is to conduct ‘activities to counter the exceptional – later referred to as massive – influx of immigrants on Italian territory’ (as happened on 11 December 2002, 7 November 2003, 23 December 2004, 28 October 2005, 16 March 2007, 31 December 2007, 14 February 2008 for Sicily, Calabria and Apulia and was extended to the whole nation on 25 July 2008 and 19 November 2009), stemming from a prime ministerial decree of 20 March 2002. Thus, Vrenna and Biondi Dal Monte’s observation that the emergency is ‘structural’ appears well-founded. It has serious repercussions for the treatment of migrants (see below) and the awarding of contracts outside of normal procedures, with the involvement of the civil protection department whose competencies have been expanding considerably.

The second practice involves the expulsion, refoulement or deportation of migrants outside the limits and procedures established by legislation for this purpose. The failure to identify people, to issue formal decisions on an individual basis to refuse them entry or expel them, or to give them the opportunity to apply for asylum or other forms of protection, was a key concern when boats were intercepted at sea and either the vessels or their passengers were taken back to Libya between May and September 2009, when 1,329 people were returned. These rights were also denied to people arriving from Egypt and Tunisia in application of readmission agreements in the framework of the fight against illegal migration. Their presumed nationality was deemed sufficient to enact expulsions to these countries, because ongoing cooperation and good relations with Italy appeared sufficient to indicate that they were not in need of protection, regardless of the situation in their home countries. ….

The third practice is the ill-treatment of migrants held in detention centres. Without dealing with this issue in depth, it is worth noting that what could be viewed as arbitrary detention is occurring on a large scale, in the absence of formal measures decreeing detention and without the possibility of appealing against decisions. In fact, after landing, migrants are summarily identified as either ‘illegal’ migrants or asylum seekers, largely on the basis of their nationality….”

Click here for Analysis.

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by | 31 Jul 2011 · 01:26

Office of Legal Counsel (US Dept of Justice) 1994 Legal Opinion, “Whether the Interdiction of Undocumented Aliens Within United States Territorial Waters Constitutes an Arrest Under Section 287(a)(2) of the Immigration and Nationality Act”

This post will be of little interest to most people, but I wanted to give an online home to this US Department of Justice Office of Legal Counsel (“OLC”) legal opinion issued on April 22, 1994 [22 April 1994 OLC Opinion] and which we obtained last month pursuant to a Freedom of Information Act request submitted to OLC in September 2009.

The legal opinion, “Whether the Interdiction of Undocumented Aliens Within United States Territorial Waters Constitutes an ‘Arrest’ Under Section 287(a)(2) of the Immigration and Nationality Act,” concludes that “[t]he interdiction within the territorial waters of the United States of illegal aliens entering or attempting to enter the United States is not an ‘arrest’ of such aliens within the meaning of INA § 287(a)(2).”

By concluding that an interdiction within US territorial waters does not constitute an arrest under US immigration laws, the 1994 legal opinion re-affirmed a 1993 OLC legal opinion that aliens interdicted within the 12 mile territorial sea zone are not entitled to hearings before an immigration judge which in turn means that such aliens are not able to seek protections under US immigration law, including protection against refoulement. The 1993 memo stated, inter alia, that “the State Department has advised us of its view that the United States’s international law obligations under the Protocol do not require it to provide … hearings to aliens who have merely arrived in its territorial waters.”

This rationale was extended by a 1996 OLC legal opinion to interdictions that occur within the “internal waters” of the US.  “Internal waters” under US law include such bodies of water as “the straits between the Florida Keys [and] portions of the Chesapeake Bay.”

Since 1992, the US has maintained the position that its obligation to apply Article 33 non-refoulement protection does not extend to persons encountered outside US territory in international waters.  While asserting it is not obligated to extend Article 33 protection to persons encountered in international waters, within the 12 mile territorial sea, or within internal waters, the US does extend Article 33 protection to interdicted migrants on a discretionary case-by-case basis.

Click on this link, 1994 OLC Opinion, for newly released 1994 OLC legal opinion: “Whether the Interdiction of Undocumented Aliens Within United States Territorial Waters Constitutes an ‘Arrest’ Under Section 287(a)(2) of the Immigration and Nationality Act,” Memorandum from Office of Legal Counsel, US Department of Justice (22 April 1994).

Click here for 1993 OLC legal opinion: “Immigration Consequences of Undocumented Aliens’ Arrival in United States Territorial Waters,” Memorandum from Office of Legal Counsel, US Department of Justice (13 October 1993).

Click here for 1996 OLC legal opinion: “Rights of Aliens Found in US Internal Waters,” Memorandum from Office of Legal Counsel, US Department of Justice (21 November 1996).

Click here for Executive Order No 12807 (29 May 1992) containing, inter alia, US interpretation of its Article 33 obligations in regard to persons encountered in international waters.

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by | 16 Jul 2011 · 16:50

NATO Transfers Rescued Migrants to Tunisia

According to information provided by the Spanish Ministry of Defence, the Spanish frigate Almirante Juan de Borbón sailed to Tunisia earlier this morning (16 July) and, while remaining outside Tunisian waters near Zarzis, transferred the remaining 106 rescued migrants to the Carthage, a Tunisian naval vessel.  114 migrants were initially rescued by the Spanish ship.  5 of the migrants were airlifted to Malta for medical reasons on 13 July.  On 11 July, shortly after the initial rescue of the migrant boat, 3 migrants were evacuated and turned over to Tunisian authorities.  The original 114 consisted of 88 men, 20 women (5 of whom are pregnant), and 6 children. The Defence Ministry said that the decision to transfer the migrants to Tunisian authorities was a NATO decision.

While the decision to disembark the migrants in Tunisia is better than sending them to eastern Libya (something I was fearful would occur), Tunisia is problematic for several reasons.  The migrant boat was reportedly carrying Tunisians.  To the extent that any of them may have had claims for international protection, the claims have been effectively eliminated.   It is not known whether any efforts were made to assess whether any of the Tunisians had claims for international protection.   And to the extent that any of the non-Tunisians have claims for international protection, Tunisia is clearly less able to handle such claims and less able to provide care for asylum seekers relative to Malta, Italy, or Spain (or any of the NATO countries participating in Operation Unified Protector).

[17 July update – NATO’s OUP Press Office informed me earlier today that any questions regarding who made the decision to transfer the migrants to Tunisia and whether any of the migrants were screened for claims for international protection had to directed to the Spanish Ministry of Defence.]

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

Click here for Spanish Ministry of Defence press statement and additional photos. (ES)

Photo Credit: Ministerio de Defensa de España (mde.es)

Photo Credit: Ministerio de Defensa de España (mde.es)

Photo Credit: Ministerio de Defensa de España (mde.es)

Photo Credit: Ministerio de Defensa de España (mde.es)

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