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Europe’s “boat-people”: mixed migration flows by sea into Southern Europe

20 May 2008

Provisional version

Draft Report

Committee on Migration, Refugees and Population

Rapporteur: Mr Morten ØSTERGAARD, Denmark, Alliance of Liberals and Democrats for Europe

 

A. Resolution

1.         The large scale arrival of irregular migrants, refugees and asylum seekers on Europe’s southern shores has become a regular phenomenon with the number of arrivals climbing substantially in recent years. In 2006 these numbers reached a peak, although fell back in certain regions in 2007. In 2006 over 72,000 persons arrived in Spain, Italy, Greece and Malta and in 2007 over 51,000 persons arrived in these countries.

 

2.         The Assembly has in recent years monitored closely the plight of “Europe’s boatpeople” and recalls in this respect its recent Recommendation 1645 (2004) on access to assistance and protection for asylum-seekers at European seaports and coastal areas and Resolution 1521 (2006) on mass arrival of irregular migrants on Europe’s southern shores.

 

3.         Within this mixed migration flow are refugees and asylum seekers towards whom states have special responsibilities under international law, including the obligation to safeguard against refoulement.

 

4.         Many thousands of lives are lost as irregular migrants, refugees and asylum seekers take to sea in unseaworthy boats and undertake longer and more perilous journeys to reach Europe.  They leave for a multitude of different reasons including to escape violent conflicts, human rights abuses, persecution, abject poverty and environmental degradation. They lack legal avenues to enter Europe and often pass through countries which offer no effective international protection.

 

5.         The level of exploitation by traffickers and smugglers of persons seeking to enter Europe by irregular means is particularly worrying with, for example, regular reports from Libya of  private detention, systematic extortion of money, and sexual and other violence.

 

6.         There are an  increasing number of reports of ship’s masters ignoring distress signals from vessels in trouble. A particularly regrettable incident occurred in May 2007 when survivors from a sunken boat clung to the nets of a fishing boat for several days while the ship’s master refused to bring them on board and states argued over their respective responsibilities for rescue. Of further concern are allegations against the Maltese and Greek authorities that they have ignored distress calls and have at the same time pushed these boats away from their own shores or territorial waters.

 

7.         Southern Mediterranean countries, and in particular Malta, are struggling to meet the challenge of dealing with these mixed flows of migrants, refugees and asylum seekers. While these countries have the primary role in dealing with these flows, the European Union can provide assistance to ease the burden. The European Union’s external borders agency Frontex has a particularly important role to play, offering assistance in search and rescue and border controls, and providing rapid border intervention teams (RABITS) and training for European border guards.

 

8.         The Assembly calls on all member states of the Council of Europe to support Mediterranean countries receiving mixed flows of irregular migrants, refugees and asylum seekers. In particular, member states are encouraged to provide assistance in the fields of  search and rescue, reception, identification of origin country of origin of arrivals, organisation of returns and relocation of those with international protection needs. In this, member states should follow the example of the United States of America which has resettled a large number of those in need of international protection from Malta. Assistance could also be given in terms of joint return flights and/or contributions to search and rescue operations. Member states should also support countries of origin and transit in tackling the root causes of irregular migration and promote legal avenues of migration while raising awareness of the dangers of irregular migration.

 

9.         The Assembly calls on southern European Mediterranean member states of the Council of Europe receiving mixed flows of irregular migrants, refugees and asylum seekers to:

 

9.1.       comply fully, and when applicable enact into international and regional human rights law, including the European Convention on Human Rights, international refugee law, and European Union legislation, including Council Directives 2003/9EC (on minimum standards for asylum seelers’ reception), 2004/83/EC (“Refugee Qualification Directive”) and 2005/85/EC (“Refugee procedures Directive”);

 

9.2.       comply fully with international maritime obligations on search and rescue, and examine fully any allegations of breaches of these obligations, including allegations of boats being refused assistance and being “pushed-back”;

 

9.3.       progressively proscribe administrative detention of irregular migrants and asylum seekers, drawing a clear distinction between the two groups,  and in the meantime allow detention only if it is absolutely necessary to prevent unauthorised entry into the country or to ensure deportation or extradition, in accordance with the European Convention on Human Rights;

 

9.4.       ensure that detention be authorised by the judiciary and only if it is necessary and if there is no suitable alternative to detention. Furthermore detention must be for the shortest possible period of time.  Malta should re-examine its policy of systematic and excessive periods of detention which can be for up to 18 months for irregular migrants and 12 months for asylum seekers;

 

9.5.       comply fully with their obligation not to detain irregular migrants, refugees and asylum seekers with ordinary prisoners and to ensure that when detention takes place it is in a non carceral environment;

 

            9.6.       respect the principle that vulnerable persons should not be detained. Vulnerable persons include unaccompanied minors, pregnant women, families with minors, persons with medical or other special needs, the aged, victims of torture and sexual violence and victims of trafficking. In all circumstances adequate assistance must be granted to vulnerable persons and particular attention must be paid to the situation of unaccompanied minors in view of worrying reports concerning their treatment in Spain, Greece and other countries in the region;

 

9.7.       close unsuitable reception and detention centres, and construct new centres adequate and appropriate for the length of time irregular migrants and asylum seekers are detained. Detention facilities in Malta and Greece are in particular need of review, with many persons being accommodated in tents or in facilities totally unsuited for anything other than immediate urgent reception;

 

9.8.       ensure that all reception centres or detention centres provide:

 

9.8.1.    appropriate food and sufficient drinkable water;

 

9.8.2.    adequate clothing and change of clothing, bedding, blankets, toiletries, etc.;

 

9.8.3.        adequate furniture, such as beds, chairs and tables and lockers to allow private items to be stored and kept safely;

 

9.8.4.    separate accommodation and separate sanitation for men women and unaccompanied minors;

 

9.8.5.    adequate sanitation facilities which are kept clean and in serviceable operation;

 

9.8.6.    regular access to the outside for fresh air during substantial parts of the day;

 

9.8.7.        sufficient recreational activities (television, reading, exercise, games,

etc.);

 

9.9.       ensure that those in detention or reception centres have access to the outside world including access to family, civil society, in particular specialised NGOs dealing with the rights of migrants and asylum seekers, lawyers, the Red Cross and Red Crescent and international organisations such as UNHCR and IOM. Access should include both direct access and also telephonic access covering both outgoing and incoming calls;

 

9.10.     guarantee to irregular migrants, refugees and asylum seekers access to their fundamental rights and procedural rights, including:

 

9.10.1.  prompt provision of information on their rights and the relevant procedures applicable to them and prompt provision of information concerning their detention and the internal rules of the detention centre in which they are being held. Interpretation or translations should also be provided whenever necessary;

 

9.10.2.  effective access to the asylum process and any humanitarian status determination process, ensuring the quality and consistency of all decisions in these processes at all relevant levels. Turkey should withdraw the geographical limitation for non-European asylum seekers ;

 

9.10.3.  effective guarantees against refoulement of asylum seekers;

 

9.10.4.  automatic judicial control of detention and an effective remedy against deportation, with a suspensive effect before an independent and impartial authority;

 

9.10.5.  access to a lawyer when detention or deportation is challenged.  Free legal aid is required at least during the appeal process and the quality of this aid needs to be of an acceptable standard, which is often not the case in Spain and other countries;

 

9.11.     ensure that staff working in reception and detention centres are carefully selected and properly trained as well as fully respected in their work and that they have the support of a sufficient number of interpreters and cultural mediators to carry out their work;

 

9.12.     ensure that border staff are sufficiently trained and sensitised to deal with refugees, asylum seekers and their right to asylum;

 

9.13.     guarantee to irregular migrants, refugees and asylum seekers not only emergency health care, which includes essential treatment that cannot reasonably be delayed as well as necessary care such as vaccinations and follow up, but also basic health care, including essential dental health care. Psychological assistance should also be provided for those with particular needs, such as victims of torture and violence, including sexual violence;

 

9.14.     allow, when applicable, the monitoring of detention centres and reception centres by ombudspersons and national human rights commissions, parliamentarians and other national or international monitoring bodies. Where specialised monitoring bodies do not exist, they need to be created. Where they exist their members need to be selected and appointed carefully and they need to be trained in carrying out their functions. The media should also be granted reasonable access to detention centres from time to time to ensure transparency and accountability, but the right to privacy of detainees needs to be respected;

 

9.15.     implement UNHCR’s “Ten point plan of action for refugee protection and mixed migration” as a framework for addressing mixed migration flows in a comprehensive and collaborative way and invite UNHCR and IOM to expand their operations in the regions affected by these mixed migration movements;

 

9.16.     promote the use of assisted voluntary return programmes with the support of the International Organization for Migration and carry out forcible returns only in accordance with the 20 guidelines on forced return adopted by the Council of Europe’s Committee of Ministers in May 2005;

 

9.17.     continue efforts to negotiate readmission agreements with countries of origin and transit, taking into account the need to provide sufficient guarantees against refoulement, access to asylum procedures and effective protection in accordance with human rights standards;

 

9.18.     take steps to tackle intolerance, racism and xenophobia linked to the arrival of irregular migrants and asylum seekers. Malta in particular needs to take further steps in this respect;

 

9.19.     accede to the Council of Europe Convention on Action against Trafficking in Human Beings;

 

9.20.     make full use of European Union funding opportunities under the External Borders Fund, the European Refugee Fund, the European fund for the Integration of Third Country Nationals and the Return Fund;

 

9.21.     make full use of the opportunity for loans from the Council of Europe’s Development Bank for creating the necessary permanent reception structures for receiving irregular migrants, asylum seekers and refugees.

 

10.        The Assembly calls on the European Union, with the support of European Union member states,  to:

 

10.1      extend further the support given to member state receiving countries, in particular for projects seeking to improve search and rescue operations and reception and detention facilities;

 

10.2.     further develop the search and rescue operational capacities of Frontex as part of its border control mandate and ensure that the human rights implications of its work are fully monitored;

 

10.3      ensure that Frontex gives priority to creating a common curriculum for European border guards, taking into account the Council of Europe’s human rights standards and international refugee standards. Frontex should also be encouraged to increase its operational capacities for search and rescue as part of its border controls mandate;

 

11.        The Assembly calls on UNHCR and IOM to extend their presence in the regions affected by the large scale arrival of migrants, refugees and asylum seekers, repeating as appropriate the model of co-operation developed with the authorities in Lampedusa, Italy under the Praesidium Project.

 

12.        The Assembly invites the Council of Europe’s Commissioner for Human Rights to continue to monitor the situation in reception and detention facilities for irregular migrants, refugees and asylum seekers during his country visits and develop recommendations on good practice in detention and reception of these persons.

 

 

B. Recommendation

1. The Parliamentary Assembly refers  to its Resolution (2008) **on Europe’s “boat-people”: mixed migration flows by sea into Southern Europe.

 2. The Council of Europe has an important role to play in ensuring that the rights of irregular migrants, refugees and asylum seekers arriving on Europe’s southern shores are guaranteed and that their humanitarian needs are met.

3. Important work is already carried out in this respect by the European Committee for the Prevention of Torture (CPT) in the course of its visits to member states. The Council of Europe’s Commissioner for Human Rights has also put the issue of rights of irregular migrants and states’ special responsibilities towards refugees and asylum seekers under international law on his list of priorities and has carried out a number of visits to reception and detention centres.

4. Furthermore there is growing case-law of the European Court of Human Rights which has particular relevance for irregular migrants, refugees and asylum seekers.

5. Therefore, the Assembly recommends that the Committee of Ministers:

5.1.       prepare, with the assistance of the CPT, guidelines for minimum standards to be applied to the detention of irregular migrants and asylum seekers. European Prison Rules currently exist but they do not apply to detention of irregular migrants and asylum seekers, and they are based on carceral rather than non-carceral detention;

5.2.       instruct the European Committee on Migration (CDMG) and the Steering Committee for Human Rights (CDDH) to hold a round-table exchange of views with directors and high ranking officials of reception and detention centres receiving irregular migrants, refugees and asylum seekers in southern Europe. Priority should be given to exchanging experiences on reception conditions and access to legal rights and drawing on the expertise and findings of the CPT and the Council of Europe’s Commissioner for Human Rights;

5.3.       prepare a co-operation programme and assistance programme for directors of reception and detention centres to allow them the opportunity to visit and learn the experience of other directors of reception and detention facilities in other member states of the Council of Europe;

5.4.       develop further the systematic training of competent state organs, especially in border areas, as well as lawyers involved in asylum claims in view of the poor quality of advice and assistance in many member states. This training should include training on the European Convention on Human Rights and its relevance to asylum claims and training on international refugee law;

5.5.       invite the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) to continue to give priority to its visits to reception and detention facilities for irregular migrants, refugees and asylum seekers. The CPT should pay particular attention to these centres during large scale arrivals and cover centres, such as in Turkey, which have not been visited in the past;

5.6        consider the steps to be taken by the Council of Europe to tackle illegal criminal networks responsible for the trafficking and smuggling of irregular migrants, refugees and asylum seekers, including steps to protect victims of trafficking, informers, etc.

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