1. The Parliamentary Assembly is deeply concerned about the increasing
number of people who put their life and safety at risk by attempting to
enter the territory of Council of Europe member states on board unsafe and
overcrowded boats or hiding on board ships, secreted in containers, trailer
carriers or other facilities, travelling in conditions of extreme hardship
which sometimes result in their death.
2. The Assembly recalls its Recommendation 1467
(2000) on clandestine immigration and the fight against
traffickers, in which it voiced its shock at the death of fifty-eight
Chinese clandestine passengers who were found in a container in the port of
Dover, and affirms its dismay at the death of eight Turkish nationals of
Kurdish origin, including three children, found in a container in the port
of Wexford (Ireland) in 2001. To these dramatic deaths innumerable other
persons should be added who have lost their lives drowning in the Strait of
Gibraltar, the Adriatic, the Aegean and off the shores of Sicily, while
fleeing from hardship, extreme poverty, discrimination and persecution.
3. The Assembly reaffirms its recommendations designed to improve the
protection and treatment afforded to asylum-seekers, in particular its
Recommendation 1163 (1991) on the
arrival of asylum-seekers at European airports;
Recommendation 1236 (1994) on the right of asylum;
Recommendation 1309 (1996) on the
training of officials receiving asylum-seekers at border points;
Recommendation 1327 (1997) on the
protection and reinforcement of the human rights of refugees and
asylum-seekers in Europe; Recommendation 1374 (1998)
on the situation of refugee women in Europe; and
Recommendation 1440 (2000) on the
restrictions on asylum in the member states of the Council of Europe and the
European Union.
4. Despite statistics gathered by the International Maritime Organisation
(IMO), it is not possible to know how many people manage to gain clandestine
entry into Council of Europe member states by travelling on board ships or
unsafe craft, as shipping companies do not systematically report stowaway
and rescue incidents. However, the increasing number of those who are
apprehended while trying to do so, as well as the number of unfortunate
victims, show that this is not a negligible phenomenon.
5. Aware that this manner of entry can be used by genuine asylum-seekers
as well as other migrants, the Assembly reiterates that those in need of
international protection should neither be punished nor deprived of the
right to lodge an asylum application in compliance with the 1951 Geneva
Convention on the Status of Refugees on account of their clandestine manner
of entry or attempted entry.
6. The Assembly is concerned that effective access to the asylum
procedure for those who arrive at European seaports or coastal areas may be
hindered by legal and practical hurdles, including lack of independent legal
advice, limited availability of professional interpreters and inadequate
information on how to lodge an asylum application. In addition, in the case
of clandestine passengers, there is a concern that their effective access to
the asylum procedure may be impeded by an unclear and non-harmonised legal
framework applying to them as well as by the concurrent responsibilities of
several actors.
7. The Assembly regrets that often, especially in cases of large-scale
arrivals in coastal areas, the only interviews taking place before the
adoption of an expulsion order have the exclusive purpose of determining the
identity and the nationality of the person concerned, with the result that a
number of potential refugees may be returned in breach of the principle of
non-refoulement risking their lives and safety. On the contrary,
effective access to the asylum procedure should imply that every person
seeking entry into a Council of Europe member state should have the
possibility of expressing the reasons why he or she is trying to do so in
full, in an individual interview with the relevant authorities of the
country.
8. Similarly, the Assembly fears that the effective exercise of the right
of appeal against the refusal to receive an asylum application, or against
expulsion, may be nullified by expeditious or accelerated procedures that do
not allow sufficient time to lodge an appeal, by inadequate information,
lack of independent and free legal advice and representation and by the
limited availability of professional interpreters.
9. The Assembly also notes with regret that, despite the
large numbers of asylum-seekers and migrants arriving on European shores
every year, permanent reception facilities in the areas concerned are still
the exception, and that their material and humanitarian conditions are often
below acceptable standards.
10. The Assembly therefore recommends that the Committee of
Ministers:
i. instruct the relevant committees to review the law and practice of
Council of Europe member states regarding access to the asylum procedure
for people arriving at European coastal areas, especially in cases of
group or mixed arrivals, and on this basis, to make appropriate
recommendations to member states;
ii. instruct the relevant committees to review the law and practice of
Council of Europe member states applicable to clandestine passengers who
wish to lodge an asylum application, with a view to drafting a code of
good practice and, on this basis, make appropriate recommendations to
member states;
iii. call on member states to:
a. ensure that those who wish to apply for asylum at
seaports and coastal areas are granted unimpeded access to the asylum
procedure, including through interpretation in their language or, if
this is not possible, in a language they understand, and to free and
independent legal advice;
b. ensure that every person seeking entry at seaports or
coastal areas be given the possibility of explaining in full the reasons
why he or she is trying to do so, in an individual interview with the
relevant authorities;
c. set up a system to ensure the permanent availability of
independent and professional legal advice and representation in the
field of asylum and migration at seaports and coastal areas, and monitor
its quality;
d. take full responsibility for immigration control at
seaports, including through the investment in methods of prevention and
detection and, where necessary, the reinforcement of police and
immigration staff, working in partnership with private actors involved
in seaport activities;
e. improve international co-operation between police, judicial
and immigration authorities through the exchange of intelligence and
information with a view to dismantling networks of smugglers operating
at European and international level;
f. introduce harmonised criminal legislation to punish the
smuggling of migrants and the trafficking of human beings;
g. ensure that vulnerable persons, such as unaccompanied
minors and separated children, the elderly, the sick and pregnant women
who arrive at seaports or coastal areas, even if they do not apply for
asylum, be given appropriate assistance and accommodation pending their
being sent back or being granted legal status; in addition,
unaccompanied minors and separated children should be provided with
effective legal guardianship as soon as their presence comes to the
attention of the authorities of a member state;
h. establish appropriate and permanent reception structures in
coastal areas and near seaports, to provide accommodation for the new
arrivals, whether they apply for asylum or not;
i. accept responsibility for processing asylum applications of
clandestine passengers when the first port of call on the planned route
of the ship is on their national territory;
j. in the context of their responsibilities for immigration
control, conduct sea patrolling operations in such a way as to fully
comply with the 1951 Geneva Convention on the Status of Refugees and the
1950 European Convention on Human Rights, by avoiding sending
people back to countries where they would be at risk of persecution or
human rights violations;
iv. ask the Council of Europe Development Bank to give positive
consideration to funding requests from member states to build such
reception structures;
v. invite the United Nations High Commission for Refugees (UNHCR) to:
a. continue its work on the issue of clandestine passengers
who are in need of international protection;
b. continue co-operation with the international community and,
in particular, with the IMO and the European Union in the search for
effective solutions for clandestine passengers, including consideration
of the viability of a single legal instrument on the treatment of
clandestine passengers seeking asylum, rules on the determination of the
state responsible for processing their asylum applications, their
treatment on board ship and the maximum duration of custody on board
ship.
1. Assembly debate on 29 January 2004 (6th Sitting) (see
Doc.10011, report
of the Committee on Migration, Refugees and Population, rapporteur: Mr
Danieli).
Text adopted by the Assembly on 29 January 2004 (6th Sitting).
