Doc. 10011

5 December 2003

Access to assistance and protection for asylum seekers at European seaports and coastal areas

Report

Committee on Migration, Refugees and Population

Rapporteur: Mr Franco Danieli, Italy, Liberal, Democratic and Reformers' Group

Summary

An increasing number of people put their 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 results in their death. This manner of travelling is the recourse of many people in need of international protection, as well as other migrants.

Evidence shows that effective access to the asylum procedure for those who arrive at European seaports or coastal areas is often 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 stowaways travelling by sea, 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.

Council of Europe member states should ensure effective access to the asylum procedure to people in need of international protection, irrespective of their way of travelling. They should conduct patrolling and other sea operations in such a way as to give priority to the physical safety of migrants and avoid falling short of their international obligations by returning people to countries where they would be at risk of persecution or human rights violations. Finally they should acknowledge the importance of achieving a common legal framework for the resolution of stowaway cases involving people in need of international protection.

I.       Draft recommendation

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 results 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 58 Chinese stowaways 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 embarkations 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 stowaways, 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 at risk of their life 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 s/he 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 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 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 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 on access to the asylum procedure for people arriving at European coastal areas, especially in cases of group or mixed arrivals and on this basis 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 stowaways 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 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 while s/he 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 increase 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/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 removal or the granting of legal status; in addition, unaccompanied minors/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 to the newly-arrived, whether they apply for asylum or not;

i. accept responsibility for processing asylum applications of stowaways when they are the first port of call of the planned route of the ship;

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 Refugee Convention and the 1950 European Convention on Human Rights, by avoiding that people are returned 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 stowaways who are in need of international protection;

b. continue co-operation with the international community and in particular with the International Maritime Organisation and the European Union in the search for effective solutions for stowaway cases, including consideration of the viability of a single legal instrument on the treatment of stowaway asylum seekers, including rules on the determination of the state responsible for processing the asylum application of stowaways, their treatment on board ship and the maximum duration of custody on board ship.

II.       Explanatory memorandum by Mr Franco Danieli (Italy, LDR)

1.       Acknowledgements

1.       The Rapporteur thanks the members of the ad hoc sub-Committee (Mr Aliyev (Azerbaijan, EDG), Mr Cilevičs (Latvia, SOC), Mr Gaber (Ukraine, SOC), Mr Gross (Switzerland, SOC), Mr Hancock (United Kingdom, LDR), Mrs Zwerver (Netherlands, SOC) and ex officio Mr Iwiński; substitutes: Mrs Vermot-Mangold (Switzerland, SOC) and Mrs Torrado (Spain, SOC). Mr Danieli (Italy, LDR) replaced Mr Gaber as from April 2002) established for the preparation of this report for their contribution in carrying out the visits to the seaports surveyed herewith, as well as the European Sea Ports Organisation (ESPO) for its assistance and cooperation.

2.       Introduction

2.       On 8 December 2001, 8 people were found dead inside a metal container in the port of Wexford (Ireland): four men, a woman and three children between four and ten years of age. Five survivors were found in a very critical state. The deaths were due to lack of oxygen to the brain. The stowaways were Turkish nationals of Kurdish origin, with the exception of two, one Albanian and one Algerian who both survived the ordeal. The container had left Milan (Italy) by rail on 30 November and arrived in Cologne (Germany) to be sent to the port of Zeebrugge (Belgium). The smugglers apparently thought that the container would be loaded on board a ferry bound for the south coast of the United Kingdom. Instead, the container was lifted into a cargo ship, the ‘MV Dutch Navigator’, bound for the south-eastern Irish town of Wexford. The group of 13 stowaways are believed to have entered the container on 4 December, just before it was loaded on board the vessel. The stowaways had paid smugglers to be taken to the port of Dover and thought that their journey in a closed container with only four very small air vents would last a few hours. Instead, the container was not opened until almost four days later. In March 2003, sentences against the smugglers were handed down by a Belgian court: the two ringleaders were sentenced to 10 years imprisonment and fined the sum of 10 000 euros. Two accomplices were sentenced to 6 and 8 years imprisonment, with a fine of 5 thousand euros. The other three persons involved received prison sentences up to two years each.

3.       Hundreds of people, including children, have lost their lives while trying to cross the sea to gain clandestine access to the country they wish to reach. The example reported above is just one of numerous tragic accidents which have occurred in recent years. The number of such accidents is unfortunately growing and it is not always possible to apprehend or bring to justice the smugglers.

4.       Most migrants trying to reach Europe by sea in a clandestine manner, however, do not travel as stowaways: thanks to the relatively short distances separating France, Greece, Italy and Spain from departure or transit countries, migrants often risk their lives on small embarkations, known as pateras in Spain or carrette del mare in Italy, in the hope of not being detected by the immigration authorities. Others pay huge sums to smugglers who hire bigger vessels, which they overload with a human cargo. In both cases fatal incidents are far from uncommon. One of the latest ones, and certainly not the last one, occurred in June 2003 off the shores of Tunisia. The vessel, departed from Libya, was carrying 250 people and edging towards Italy.

5.       One of the characteristics of clandestine migration flows by sea is that they are mixed: they include people who are in need of international protection because they are in fear of persecution in their countries of origin or come from war-torn areas, as well as others who flee poverty and hardship, and wish a better future for themselves and their families. This report will focus on the situation of people in need of international protection falling under one of the following categories: 1) they are stowaways leaving, transiting, departing or seeking entry into a seaport of a Council of Europe member state;2) they seek entry into a Council of Europe member states by travelling on small boats with a view to avoiding immigration control or vessels not having sufficient capacity, in both cases with the knowledge of the crew.

6.       Your Rapporteur is aware that travelling by sea in the above-mentioned manners is just one of the ways in which it is possible to gain clandestine access to a state, and that people may have recourse to this mode for a variety of reasons, not all necessarily implying fear of persecution in their country of origin. Your Rapporteur, however, is convinced that every migrant should be given the possibility of explaining why s/he is seeking entry into a Council of Europe member state and be received in decent conditions, in keeping with his/her age, health and particular situation, even where his/her stay in the country is temporary and limited to the time necessary to enforce an expulsion order. Whereas all migrants should be granted this treatment, however, people in need of international protection should be entitled to further protection and assistance measures, irrespective of their way of entry or their arrival in a mixed group of asylum seekers and economic migrants.

7.       As to the structure of the present report, it contains four parts: a first part giving an overview of the situation in coastal areas; a second one on seaports and stowaways; the third based mainly on the findings of field visits; and a fourth drawing conclusions and proposing recommendations.

3.       Coastal areas

8.       Large-scale or group arrivals of migrants on the European coastline are everyday news. In recent years there have been some famous cases, such as the one of the vessel East Sea carrying 908 Kurds, 480 of whom were children, which wrecked on the coast of Var (France) in February 2001. All of the passengers applied for asylum in France.

9.       These cases deserve the close attention of international humanitarian and human rights organisations for several reasons: first of all this way of travelling poses a serious threat to the safety and security of passengers. Often these vessels are not in good working conditions, they are loaded with people well beyond their capacity and conduct dangerous manoeuvres to avoid being intercepted by military or police units. As in the case of the East Sea, they transport children and women and navigate irrespective of bad sea or weather conditions.

10.       Secondly, it is not possible that these vessels - which sometimes travel for long stretches of sea - have gone unnoticed. Better international co-operation is necessary, also with non-European countries - to detect such vessels and ensure the safety of those onboard. Similarly, better co-operation should be established with a view to apprehending and bringing to justice the smugglers, who often purchase vessels, hire a crew and load passengers onboard without being questioned by port or other state authorities. Very often the smugglers themselves or the crew manage to avoid being apprehended by the authorities of the country of arrival by mingling themselves with the passengers. Afterwards, they disappear and go back to their lucrative business, knowing that the risk of being caught and punished is very limited, due to gaps in national legislation, lack of international co-operation and the connivance of those who are smuggled.

11.       Besides, once the vessel has reached a country of destination, a main concern is the effective access to the asylum procedure for those who wish to apply for protection. As mentioned in the introduction, vessels transporting a high number of migrants generally have a mixed composition: some passengers are in need of international protection under the 1951 Refugee Convention or because they come from countries with serious human rights violations or in war-like situations; others are not in need of protection but are just trying to reach a country where they could improve their economic situation. In international law, as well as in national law, these two categories of people have different rights and fall under different immigration rules.

12.       Your Rapporteur is concerned that due to the need for immigration or border staff to cope with large-scale arrivals and apply immigration legislation within a rapid time-frame, those who are in need of international protection do not manage to put forward in full their fear of being returned to their countries of origin.

13.       As a matter of fact, the need to process rapidly a high number of immigration cases implies that hardly ever passengers have the opportunity of making out in full the reasons why they are seeking entry into a Council of Europe member state. By contrast, there is a risk that the only interview that these migrants have with the authorities of the state of arrival has the purpose of ascertaining their identity and nationality, so that an expulsion or rejection order can be issued as quickly as possible. The persons concerned are not informed of the purpose of this interview. As a result, those who wish to apply for asylum do so only after the expulsion order has been issued, with the consequence that their credibility is affected or the application is considered as manifestly unfounded.

14.       A similar situation is liable to occur in cases of arrivals in small groups on small embarkations, as they often take place where there are short sea distances to cross, such as between Morocco and Spain, Albania and Italy, Turkey and Greece. Even if each boat counts a limited number of passengers, in one night there may be arrivals counting for over a hundred people. When these arrivals are detected, border authorities find themselves in a situation where they have to act promptly to apprehend the smugglers - if there are -, intercept the migrants and provide assistance to those in need.

15.       Your Rapporteur is aware that one of the main difficulties in applying immigration control at sea borders is due to the limited number of staff and resources and the length of coastline to be monitored. Immigration control is a fundamental right and duty of the state and sufficient resources should be employed to render the staff able to undertake such task. The correct implementation of immigration control, however, does not imply that all those trying to seek entry into a country illegally should be expelled or otherwise returned. Those in need of international protection should be given the effective possibility of lodging an asylum application. Furthermore, in your Rapporteur’s opinion, also those who are not in need of international protection should be given the possibility of explaining why they have tried to seek entry into a Council of Europe member state. Finally, special provisions should be introduced to differentiate the treatment accorded to unaccompanied minors/separated children and other vulnerable cases, including pregnant women, the sick and the elderly, be they seeking protection or not.

16.       In recent years, countries receiving a high number of arrivals by sea have increased their reception capacity by building reception centres in main arrival areas, along the coast or in its proximity. These reception centres are generally conceived to host migrants on a provisional basis, pending their deportation or their transfer to other reception centres if they lodge an asylum application.

17.       The advantage of these new premises is that they replace improvised reception facilities such as schools or dismissed military barracks. This shows governments’ political decision to tackle the phenomenon as a predictable feature of new migration flows rather than as isolated emergencies.

18.       Your Rapporteur encourages Council of Europe member states to pursue the building of reception centres in the proximity of main areas of arrival, with a view to providing a first shelter to migrants arriving after long or tiring journeys by sea. Some criteria, however, should be respected:

19.       Your Rapporteur is well aware that one of the main difficulties that member states face when deciding to set up permanent reception structures on the coast is that the routes used by smugglers or migrants are very flexible, and change according to various factors including reinforced immigration control, patrolling operations, etc. Therefore it can happen that despite a considerable financial effort to build facilities in a main area of arrival, this one loses its importance very rapidly. Despite this, your Rapporteur believes that a minimum threshold of reception capacity should be ensured through specific reception facilities.

20.       In the context of their functions of immigration control, national border guards and coastguards patrol the territorial waters. This is not always an easy task, especially when migration inflows are characterised by arrivals on small embarkations, or when vessels entering territorial waters are overcrowded with passengers.

21.       Your Rapporteur wishes to remind member states that the first concern of authorities having detected embarkations transporting potential illegal migrants in territorial waters should be the safety and security of the people on board. The second concern should be apprehending the smugglers and then of course implementing immigration rules.

22.       It is your Rapporteur's opinion that patrolling operations should not have the aim of diverting the vessel from the territorial waters before a screening has taken place to ascertain the nationality and identity of the passengers, as well as the reasons why they were seeking entry into a Council of Europe member state. Your Rapporteur believes that failure to do so would be an implementation in bad faith of member states' obligations under the 1951 Refugee Convention on refugee status: once a vessel is in the territorial waters of a state it is in that country. Therefore diverting the vessel outside territorial waters would imply refusing to receive potential applications for protection from those on board, and therefore returning potential refugees.

23.       Similarly, the interception of a vessel transporting potential illegal migrants to prevent its entry into territorial waters could be in contravention of Council of Europe member states' international obligations when there is a risk that, by so doing, those on board may be returned to a country where they could face persecution under the 1951 Refugee Convention or human rights violations under the European Convention on Human Rights. Besides, a situation which should be avoided in all circumstances is that the vessel is left 'in orbit', because no state accepts the entry of the vessel in its territorial waters and the subsequent screening of immigration applications, including potential asylum applications. This situation is in breach of fundamental principles of humanity and dignity of the human being.

24.       From what has been said above, two main conclusions can be drawn: first, the task of enforcing immigration control in coastal areas is often overwhelming for a single coastal state, given the high number of small arrivals; second, international co-operation is needed to ensure that there are no protection gaps, namely that a safe country can always be found to take responsibility over potential asylum applications from those on board.

25.       With these considerations in mind, the pilot-project Ulysses launched by some EU member states in January 2003 can be considered a substantial step towards a more concerted international action. Under this project Spain, France, Italy, Portugal and the UK have begun carrying out navy patrols of the Mediterranean to intercept vessels transporting irregular migrants. Any vessel intercepted should be escorted to the nearest member state to obtain information on the vessel, its crew and passengers. After 8 February 2003 the patrols were extended to the Canary Islands. The idea of joint patrolling operations was first put forward at the EU summit of Seville in June 2002. Ulysses is only one of the projects aimed at combating illegal immigration: there is another project consisting in a joint operation of France and Germany to carry out expulsions on board chartered airplanes, and a third to patrol the North Sea. In addition to the five above-mentioned countries taking part in Ulysses, Germany, Greece, Austria, Norway and Poland have sent observers.

26.       Your Rapporteur believes that initiatives such as Ulysses, as well as other future initiatives of joint patrolling, should be closely monitored to avoid that they are conceived as a sheer barrier to the entry of all those who try to seek entry into a country by sea in a clandestine manner, including potential asylum seekers. On the other hand, if the idea of joint sea patrolling operations is pushed further, this may lead to the acceptance of a common system of burden-sharing to deal with arrivals by sea, as well as a common legal framework to deal with their asylum applications.

27.       Other initiatives that require close monitoring from the Council of Europe are bilateral agreements under which a state conducts patrolling operations of the coast of another country in the latter's territorial waters or even seaport areas. These agreements are concluded when there is a clear pattern of migration from one country to another, such as between Italy and Albania, and have the aim of combating illegal immigration into one country while reserving some legal immigration quota for the nationals of the other. From a legal point of view, though, these agreements raise serious doubts as for their compatibility with international law and in particular the right of everyone to leave his country.

4.       Seaports and stowaways

28.       It is no surprise that clandestine migration movements across borders take place also via seaports. Commercial and passenger traffic by sea has become extremely widespread. A small number of clandestine migrants travel by sea from the country of departure to the country of their destination. Most of them, instead, travel by railway or road to reach a seaport with close ferry or cargo connections to the destination country of choice, and then hide on board a ship or, more often, in containers or trailers waiting to be loaded onto the ship. This operation is made easier by the difficulty and cost of constant monitoring of all potential points of unauthorised entry to sea ports, especially when their perimeters are open or extended.

29.       Your Rapporteur wishes to highlight that the problem of clandestine migrants and asylum seekers in European ports seems to be restricted to specific destinations. Ports which are most concerned are located in the United Kingdom and Ireland, Spain (which is confronted with clandestine migration from North Africa) and Italy (which can easily be reached via the Adriatic Sea), and in those other countries which have short, direct sea connections with them.

30.       Seaports are not characterised by equal inbound and outbound flows of clandestine migrants. On the contrary a clear distinction can be made between ‘departure seaports’ from which migrants travel on to a country of destination, and ‘destination seaports’, which are receiving an inflow of clandestine migrants.

31.       A certain number of migrants gain access to the port area via unauthorised points of entry and try to hide on board ferries or, more often, in containers and trailers waiting to be loaded. Most people, however, are already in the container when it arrives at the port. Some of them penetrate the container when the lorry driver stops for a break in open country. Generally those hiding in the lorry can rely on someone from outside to lock them in, and even to reseal the container. Clandestine migrants, briefed by smugglers, know when and where the lorry driver will stop to take his break. In some cases the involvement of lorry drivers in facilitating smuggling has been proved, with the subsequent arrest and sanction of those responsible. It can be estimated that some clandestine asylum seekers or migrants gain access to the container at the time of loading it, which implies the knowledge of the staff in charge with this operation.

32.       People hiding in containers generally travel in groups, consisting mainly of young men but on occasion including also children and women. In the vast majority of cases their journey has been ‘organised’ by smugglers who are paid several thousands euros to arrange the journey and sometimes also to provide false documents.

33.       There is clear evidence that smugglers operate in highly organised international networks, exploiting the lack of adequate national criminal legislation to sanction their activities and the lack of co-ordination among police and immigration authorities of different countries. These networks have proved to be extremely flexible, and will react to improved immigration control measures in one seaport by shifting their activities to others.

34.       Furthermore, evidence clearly indicates that clandestine migrants, including potential asylum seekers and people in need of international protection, have crossed a number of European countries, including those belonging to the Schengen area, before reaching a ‘seaport of departure’.

35.       Your Rapporteur is convinced that effective action against smuggling can be achieved only through co-operation at the European level. Besides, a European system of burden sharing to cope with the movement of clandestine migrants, including potential asylum seekers, is necessary to avoid that countries of final destination find themselves alone to deal with this responsibility, without the support of other European countries through whose territories migrants have transited prior to reaching their final destination.

36.       Port and State authorities have invested millions of euros in installing increasingly sophisticated methods of detection. These include CO2 detectors, which register the presence of CO2 exhaled by those within for example containers, gamma ray machines, which register sources of heat, sonic sensors, which detect the sound of heart-beats, X-ray machines and so on.

37.       Despite this complex and expensive security apparatus, smugglers continue to use seaports as points of transit, departure or arrival for their ‘clients’; at the same time clandestine migrants, including people in need of international protection, continue to use these methods, with the consequence that fatal incidents continue to occur.

38.       The means of detection currently in use are not infallible. The CO2 machine, for instance, can be used only with soft containers and not with rigid ones. Furthermore it detects not only human beings but any sort of organic material which produces CO2, such as paper and vegetables. Other machines have proved more successful, but cannot systematically be used to check every container because this would slow down the commercial activity of the port, with resulting unacceptable economic loss.

39.       It is absolutely clear that the issue of migrants attempting clandestine sea passage is a problem of immigration control that carries important consequences for commercial interests and industry.

40.       Seaport authorities should not be responsible for administering migration control nor for apprehending or detaining clandestine migrants caught in the port area. This is the responsibility of the State. Certain financial burdens and practical constraints, however, are imposed on seaports, such as installing sophisticated equipment to detect illegal migrants, erecting fences, providing office space and other facilities to immigration services, reinforcing security patrols, co-ordinating the activities of stevedores and police, and so on. One of the immediate consequences of this is the extension of turnaround times for ferry companies and delays in the release of containers.

41.       Your Rapporteur warns member States against abdicating from their responsibilities in the field of immigration control to discharge them on private actors operating at seaports. Migration control and the safety of people who find themselves under its jurisdiction are a duty and a prerogative of the state. Member states, therefore, should endeavour to do everything within their capacity to expand the means and resources available to enhance migration and safety control at seaports, including investment in detection equipment and increase and training of staff. Given the high number of actors involved in seaport activities in different capacities, they should all be systematically consulted in order to devise the best ways of ensuring efficient migration control without jeopardising competing interests.

42.       The fact that some seaports are clearly of destination while others are of departure bears important consequences also on the efficiency of migration control: given the limited resources available (limited staff and detection instruments) and the impossibility of checking all the containers without slowing down commercial traffic and therefore harming private interests, authorities of destination seaports concentrate their checks on inbound traffic, whereas authorities of departure seaports concentrate them on outbound traffic, to the exclusion of the inbound.

43.       If this is understandable given the lack of time and resources, it is nevertheless lamentable from the perspective of efficient immigration control, especially considering that European ‘seaports of departure’, such as Calais and Bruges which are typical departure ports for the United Kingdom, receive a high number of ships from outside Europe and therefore are often the first point of entry into the Schengen area. Pursuant to the Schengen agreement, states have undertaken to exert immigration control at the external borders of the Schengen area. From the evidence collected so far, your Rapporteur observes that this obligation is not always complied with, since immigration authorities of typical ‘departure seaports’ do not properly inspect inbound traffic, with the risk of not detecting illegal entries of migrants in the Schengen area.

44.       When detection methods are successful, clandestine migrants are intercepted during routine security checks in the seaport area. Since these security checks are generally performed by personnel employed by private actors operating at seaports, such as stevedores and port authorities, the first problem which arises relates to ‘apprehending’ the clandestine migrants.

45.       In general, the practice of those conducting checks on containers or trailers is to call the relevant police or immigration authorities as soon as the presence of clandestine migrants is discovered. It will then be the police or immigration authorities who open the container and ‘apprehend’ the intruders. This procedure is in compliance with the law, since private individuals would not have any power of apprehension (i.e. arrest).

46.       The main concern of your Rapporteur is that, at this stage of the process, those who wish to apply for asylum are given the opportunity of doing so.

47.       Consistent with Assembly Resolution 1309 (1996) and Recommendation No. R (98) 15 of the Committee of Ministers on the training of officials receiving asylum seekers at border points, your Rapporteur wishes to reiterate that to ensure unimpeded access to the asylum procedure by those seeking asylum, officials who first come into contact with asylum seekers need appropriate and adequate training on how to recognise requests for protection and handle specific situations in connection with asylum seekers.

48.       Your Rapporteur points out that all those who arrive at a border point, including seaports, irrespective of the clandestine manner of their arrival, should be given the practical possibility of expressing the reasons why they want to enter that country and, if they so wish, to lodge an asylum application. To this end, they should have access to interpretation in their own language or, if not possible, in a language they understand and, if they wish, access to independent legal advice. In this respect, your Rapporteur fully shares the recommendations made by the Council of Europe Commissioner for Human Rights concerning the rights of aliens wishing to enter a Council of Europe member State and the enforcement of expulsion orders. Your Rapporteur wishes to add that those who arrive, or are caught, in a group should be entitled to express the reasons why they want to enter the country in an individual interview with the authorities, in confidentiality, and receive an individual reply.

49.       These recommendations should apply as long as foreign nationals are under the jurisdiction of a member State, including when they are caught at a border point while in the process of leaving the country.

50.       Your Rapporteur wishes to cast a light on the situation of those who are in need of international protection but do not apply for asylum. This situation occurs very frequently in ‘departure seaports’, that is in seaports from where clandestine migrants, including potential asylum seekers, try to reach the country of destination of their choice. It should be noted that the ‘departure seaports’ are located in safe countries, such as Belgium or France, but a number of potential asylum seekers do not wish to apply for asylum there and try to reach other destinations, namely the United Kingdom.

51.       The first and fundamental problem is the legal status of those who are apprehended in ‘departure seaports’. They do not apply for asylum and formally, therefore, are illegal immigrants, liable to expulsion. Some of them are issued with expulsion orders and are instructed to leave the country within a given period. Before that date expulsion cannot be enforced. If they are expelled from a country belonging to the Schengen area, they are informed that they cannot enter any other Schengen country, which ironically reinforce their willingness to reach the United Kingdom. At that point they will try to leave the country in the same way that they were trying to do when they were apprehended, risking their lives in a container and relying on the help of smugglers.

52.       Others apprehended in departure seaports are issued expulsion orders which cannot be enforced, because they come from countries to where clandestine migrants are not returned due to the serious humanitarian situation or for practical reasons, such as lack of readmission agreements or interruption of flight connections.

53.       A last category includes those who do not apply for asylum, come from countries to which no removal is enforced and are not issued with expulsion orders. Sometimes their presence is not even recorded by the authorities, even if known. This was the case for many who transited through the reception centre of Sangatte, near Calais.

54.       Your Rapporteur is very concerned at the situation of migrants falling under these three categories. To different degrees, they do not have a legal status, even if some of them cannot legally be returned, and are subjected to the rules applying to illegal immigrants, which imply very limited assistance also in terms of health care and accommodation. Unfortunately some of them are vulnerable cases, such as young girls, unaccompanied minors or pregnant women.

55.       In most countries, the only possible assistance for clandestine migrants comes from the voluntary sector. Besides, the lack of public authorities in charge of providing them with general guidelines on how to find accommodation or having access to emergency health care results in an undue burden for immigration and police authorities who, out of a sense of humanity, end up acting as social workers. Finally, even if with the good will of some it would be possible to look for accommodation, it is not that easy to find it because reception centres in the proximity of seaports do not always have sufficient capacity and legal migrants would take precedence.

56.       Your Rapporteur is particularly concerned at the situation of unaccompanied minors who do not apply for asylum. Most Council of Europe member states have legal provisions to ensure child protection, but these measures present important practical and legal gaps, so that in the end they disappear avoiding any form of control or guardianship. In this respect, your Rapporteur wishes to recall Recommendation 1596(2003) on the situation of young migrants in Europe, which devotes paragraph 7 to the situation of unaccompanied minors and separated children, and hopes that a reply of the Committee of Ministers to such recommendation will be adopted with the shortest delay.

57.       Besides, your Rapporteur strongly urges member States to take responsibility for all those who cannot be expelled from their territory, acknowledging and registering their presence, giving them some form of legal status, setting out clearly which authorities should take them in charge, supporting and funding voluntary sector activities which may provide assistance to them, informing them on voluntary departure programmes and the risks of travelling in a clandestine manner, including by sea.

58.       Stowaways are people who are secreted on a ship, or in cargo which is subsequently loaded into a ship, without the consent of the ship owner or the master or any other responsible person and who are detected on board after the ship has sailed. Only a few stowaway cases come to the knowledge of the authorities: it is easier to catch potential stowaways before the ship has sailed or after the cargo is downloaded, when security checks are made. Even if a limited number of people are concerned, the treatment of stowaways raises important humanitarian and legal issues.

59.       States send periodic statistics on stowaway cases to the International Maritime Organisation (IMO), a UN agency based in London which has a long-standing commitment to contributing to a solution of stowaway cases with a view to facilitating international maritime traffic.

60.       According to IMO statistics, in the year 1999 545 stowaway cases were reported worldwide, involving 2 253 people. Of these, 10 were found dead, three managed to escape and, in one case, the disembarkation of three stowaways failed because they could not be identified. Only three cases of asylum applications were reported. In the year 2000, 385 stowaway cases were reported worldwide, involving 1 259 people. From the information that IMO received, it emerged that 44 stowaways were found in trucks and trailer carriers, 11 in containers, 11 on deck, three in lifeboats and three in refrigerated bulkhead installations. Three stowaways were found dead, four others managed to escape and nine applied for asylum. In 2001 the total number of reported stowaway cases was 583, as opposed to 485 in 2002.

61.       As to the European area, in the year 2000 117 stowaways embarked in Belgium (2 in Antwerp, 45 in Ostende and 70 in Zeebrugge), 32 in Croatia (Dubrovnik), 390 in Calais (France), 25 in Greece (16 in Patras and 9 in Piraeus), 16 in Italy (2 in Genoa, 10 in La Spezia, 4 in Livorno), 43 in Turkey (35  in Istanbul, 6 in Izmir, 2 in Nemrut), 11 in the United Kingdom (9 in Dover, 1 in Liverpool, 1 in Gibraltar). These figures are evidence that some seaports have substantially improved security checks since the year before: in 1999 424 stowaways had embarked in Zeebrugge (Belgium), 698 in Calais (France), 169 in Patras (Greece), 22 in Italy. This trend is confirmed by IMO statistics for the following years. For instance, 47 stowaways have been reported to have embarked in Zeebruge in 2001 and only 19 in 2002. On the other end, these figures also show the flexibility of smugglers, who divert their clients to other ports when security checks make a certain route too difficult: in 1999 there 81 stowaway cases were recorded in Rotterdam (Netherlands) against zero the following year, and only 6 in Turkey against 43 in 2000.

62.       For the year 2000, the main countries of attempted disembarkation were the United Kingdom (32 cases), Belgium (11), France (8), Spain (7). The importance of the United Kingdom as the main European country of attempted disembarkation was confirmed in 2001 (32 cases) and 2002 (25 cases). In 1999, instead, the European record belonged to Italy, with 46 attempted disembarkations in the port of Ancona.

63.       Worldwide, Moroccan nationals represented the highest proportion among stowaways in recent years (137 in 2000, 112 in 1999), followed by Turkish (69 in 2000, 181 in 1999), Iraqis (62 in 2000, 233 in 1999) and Afghans (55 in 2000, 129 in 1999). Since 2001, however, Turkish stowaways represent the biggest group (81 cases reported in 2001 and 74 in 2002).

64.       There are no clear or reliable data on the number of stowaways who apply for asylum or express the wish to apply for asylum. From a humanitarian and human rights perspective, the United Nations High Commissioner for Refugees (UNHCR) has worked on the issue of stowaway asylum seekers, producing a series or recommendations and guidelines which, unfortunately, are not binding. Conclusion No. 53 (XXXIX) on stowaway asylum seekers, adopted by the Executive Committee in 1988, recommends states to allow disembarkation of stowaway asylum seekers at the first port of call, whenever possible, and have there asylum application determined by the authorities. In 1992 UNHCR produced internal practical guidelines relating to stowaway asylum seekers: an interview of the stowaway should be arranged as soon as possible upon disembarkation, to identify the main facts of the case. Where a country is adamant in refusing the disembarkation of the stowaway, arrangements should be made for the interview to take place on board. Under no circumstances should the identity or any other details concerning the stowaway asylum seeker be revealed to officials of an embassy, consulate or other representation of his/her country of origin.

65.       An international convention relating to stowaways was signed in Brussels in 1957, but has not entered into force and is unlikely to do so. In recent years, however, the problem of stowaways has increased and it is generally recognised that there is an urgent need for an international agreement on the allocation of responsibilities to enable the successful resolution of stowaway cases.

66.       The International Maritime Organisation has recognised the need for an internationally binding instrument dealing with stowaways. As a result of the meeting of the IMO Facilitation Committee in January 2002, some provisions on stowaways have been incorporated into the Convention on Facilitation of International Maritime Traffic (FAL Convention).

67.       Your Rapporteur commends the International Maritime Organisation for this achievement, but believes that the action of the international community should go further: it is necessary to develop a European binding instrument to deal with cases of potential stowaway asylum seekers in a harmonised manner. Such an instrument should include provisions on fair and humane treatment of stowaways while on board: member States should require masters of ships entitled to fly their flag to take appropriate measures to ensure the security, general health, welfare and safety of any stowaways while on board, including providing him with adequate provisioning, accommodation, proper medical attention and sanitary facilities.

68.       Other provisions should be included to ensure that ships’ personnel are not put in the position to act as quasi-immigration or law enforcement officials, since this responsibility should remain with state authorities.

69.       Given the nationalities of stowaways, your Rapporteur finds it unusual that the number of asylum applications is so low and is concerned that this may be due to practical and legal obstacles to lodging the application. A European instrument on stowaways should include provisions on determining the State responsible for processing asylum applications of stowaway asylum seekers and should state the principle that all hurdles to lodging asylum applications should be removed.

70.       Out of a genuine humanitarian concern which applies to all stowaways, whether potential asylum seekers or not, your Rapporteur considers it unacceptable that they are often kept on board for months since it is not possible to find a state that would authorise disembarkation. According to the statistics provided by the International Maritime Organisation, in the year 2000 112 stowaways disembarked the same day of their embarkation, but the remaining 190 stayed on board for a period ranging to 1 to 150 days (for the remaining 83 stowaway cases this information was not communicated to IMO). In 2001 90 stowaways disembarked the same day, 66 stayed on board from 1 to 10 days, 51 from 11 to 20 days, 21 from 21 to 30 days, 5 from 36 to 50 days, 3 from 51 to 100 days and 1 from 100 to 150 days. Your Rapporteur is of the opinion that all appropriate measures should be taken to avoid that stowaways are kept on board for prolonged periods. An international instrument on stowaways should therefore aim to reduce the time that the stowaway spends on board after being discovered, setting the principle of disembarkation at the first scheduled port of call.

71.       Your Rapporteur also wishes that more emphasis be placed on preventive measures: ships should be thoroughly searched for stowaways on leaving high-risk ports and measures to prevent stowaways secreting themselves on board ought to be tightened. State and port authorities, ship owners and their representatives as well as shipmasters should enhance cooperation to prevent stowaway incidents. The new provisions incorporated into the Convention on Facilitation of Maritime Traffic stipulate that contracting governments shall require ships entitled to fly their flag to undergo a thorough search when departing from a port where there is a risk that stowaways may have boarded; regular patrolling of port areas should be conducted and special storage facilities should be established for cargo which is particularly susceptible to stowaway access. In addition, a list of minimum security arrangements should be implemented when a ship calls at a port at risk of stowaway embarkation.

5.       Situation in selected countries

72.       The main port concerned with movements of clandestine migrants in Belgium is Zeebrugge, where in the year 2001 3 093 illegal immigrants were caught. This port is particularly targeted due to its direct ferry lines with Dover. Besides, Zeebrugge can be easily reached by train or road from all continental Europe. Apparently one route is from Italy via Germany, while another one goes from eastern Europe via Poland and Germany. Zeebrugge is a typical example of a ‘seaport of departure’: clandestine migrants reach this port through different means, often crossing many Council of Europe member States including Schengen countries. They do not intend to stay in Belgium: the port of Zeebrugge is a convenient departure point for the United Kingdom.

73.       The main nationalities among clandestine migrants caught in Zeebrugge were Afghan, Turkish, Iranian, Yugoslav, FYROM, Sri Lankan, Albanian and Iraqi. Most of them, after being apprehended, did not apply for asylum. Some of them already had a pending asylum application in Belgium or even held refugee status.

74.       The detection of clandestine migrants in the port of Zeebrugge presents some difficulties, due to its extension and to the fact that it is an open port, crossed by an important commercial road. These characteristics make it challenging to monitor access to the port area constantly. Some migrants reach the port area just walking along the beach and then hide in containers waiting to be loaded. Others are already in the container before it arrives at the port.

75.       As in other seaports of departure, given the high number of containers that need checking and the limited number of staff only outbound containers are checked, to the exclusion of the inbound ones. One out of four containers are checked before loading.

76.       The port authority of Zeebrugge has already spent 2.85 million euros to build fences and install other security measures to prevent access or detect clandestine migrants. Its main concern is to have an effective migration control system which does not interfere with commercial activity. The port authorities of Ostende and Zeebrugge have issued a joint Declaration asking for the financial support of Belgium for the investment in security measures. Informal attempts to involve the European Union have not proved successful since the EU argues that, in compliance with the principle of subsidiarity, the issue falls within the competence of national authorities. Your Rapporteur does not share this opinion since there are organised transnational networks involved in the smuggling of migrants and a co-ordinated effort is necessary to combat them. This is a problem involving all European countries, even if each country is involved in a different way.

77.       Security checks on containers and trailers waiting to be loaded are conducted by staff employed by the stevedores, using the machinery available. As soon as they suspect, from the fact that the seal is broken or because the CO2 machine indicates a human presence, that someone is hiding in a container or a trailer, they call the maritime police. There is a police station in the port area but the staff is limited and, given the size of the port, sometimes is busy patrolling or apprehending clandestine migrants in other areas. In any case the waiting period is just a matter of minutes.

78.       Those apprehended by the police are taken to the police station where they are given a form, which is available in different languages, that they should fill in with their details, including nationality. No interpreter is available at this stage. The interpreter is provided only if the person concerned applies for asylum or when the police think that useful information could be obtained with a view to identifying the smugglers.

79.       Less than 1% of those who are caught in the port of Zeebrugge apply for asylum. In such cases, police inform the Ministry of Interior that an asylum application has been lodged, asking for instructions. The Ministry of Interior generally replies in 3 or 4 hours. In the meantime people wait in the police station. Those who apply for asylum in Zeebrugge have access to the ordinary asylum procedure and to the attached socio-economic rights.

80.       Those who do not apply for asylum are served with an order to leave the country in 5 days. In the expulsion order it is explicitly mentioned that they cannot go to any other Schengen country. Then they can leave the police station. This is a very delicate stage: some people would be in need of protection but do not apply for asylum in Belgium because their aim is to reach the UK and apply for asylum there. Others are not in need of protection but definitely need assistance, such as young pregnant women. Those who do not apply for asylum in Belgium are not entitled to any form of assistance. Public authorities cannot provide accommodation. There are NGOs which could provide accommodation in reception centres in the proximity of the port, but their capacity is very limited. The consequence is that, out of a sense of humanity, the police sometimes offer accommodation to expellees. In these cases accommodation is provided with some mattresses in the changing room of the police station itself, and access to bathroom and showers is assured.

81.       Your Rapporteur is sympathetic towards law enforcement officials who are faced with compassionate cases and, in the absence of any authorised form of assistance, find themselves to act as social workers, contacting NGOs or hospitals in search for accommodation or providing accommodation in their premises. However, even if going beyond their duties police officers provide accommodation, this accommodation is not adequate and deprives police staff of the use of their own facilities. Besides, it is a responsibility of the State to respond to an emergency situation, and appropriate institutions should be identified to take it in charge.

82.       Greece is characterised by the arrival of a high number of clandestine migrants travelling on small embarkations. According to the Minister for Merchant Marine, in 2002 a total of 3,945 irregular migrants were intercepted at sea while attempting to enter Greece illegally. Continuous small arrivals are made relatively easy by the difficulty of ensuring effective border control along the extensive coastline and the numerous Aegean islands, as well as by the geographical proximity of a main departure and transit country such as Turkey. In addition, the intensive commercial activity of Greek ports make them vulnerable to the presence of stowaways.

83.       There are no official figures on the number of clandestine migrants who, arriving by sea, apply for asylum in Greece, but Greek NGOs lament the difficulty for potential asylum seekers to have their application registered by the authorities. The Greek authorities stress that every apprehended person can, if she or he wishes so, submit an application. However, the Rapporteur has concluded from his meetings that no sufficient information is given to those intercepted about their rights to seek protection. Furthermore, neither UNHCR nor NGOs are warned if a vessel is intercepted. To the contrary, the immigration officers complained that NGOs encourage illegal migrants to lodge applications for asylum even if – in officers’ opinion – they did not qualify for the status. It should be also borne in mind that for many migrants, including people in need of protection, Greece is only a transit country on the way to their final destination in Europe or America.

84.       The reception of new arrivals is conducted on an ad hoc basis. In general, coordination between local actors is effective in providing emergency reception for those rescued or apprehended and reception conditions meet minimum standards. The Rapporteur visited a reception centre in Kos. The living conditions left much to be desired, but food was correct and medical care provided.

85.       Lack of legal advice, interpretation and sufficient information on rights of potential asylum seekers seem to be one of the major concerns. These deficiencies may considerably impede access to asylum procedure for people in need of protection.

86.        According to the Minister for Merchant Marine, in 2002 the Greek coastguard prevented 51 vessels carrying irregular migrants from landing on Greek shores, forcing them to return to their Turkish ports of departure.

87.       The Greek practice relating to the treatment of stowaway asylum seekers is not in line with UNHCR and IMO recommendations. In a prominent case involving 5 Afghan stowaways who arrived in the port of Piraeus in November 2002 and submitted an asylum application, the Greek authorities refused disembarkation as well as to receive the applications. Their argument was that the asylum applications should be processed by Malta, which was the state of the flag of the vessel. Such a position was confirmed in another stowaway case occurred in 2003 and involving two Iraqi asylum seekers.

88.       Italy is a main country of arrival - and often transit - for clandestine migrants travelling by sea in different manners: since the Albanian financial crisis of 1997 and until not long ago, the southern region of Puglia has been the destination of dozens of small motorboats transporting migrants from the Albanian coastline. Among the passengers there were not only Albanian citizens looking for better economic opportunities but nationals from the former Yugoslavia, Iraqis, Afghans, Kurds from Iraq and Turkey, Sri Lanka, Pakistan. At the moment this inflow has come to a halt thanks to a policy mix consisting of better patrolling operations along the coastline, co-operation between Italian and Albanian immigration authorities through the patrolling by Italian forces of Albanian ports and coastal areas, and an agreement by which a quota of Albanian nationals is admitted to Italy every year with a temporary residence permit for work reasons.

89.       In addition Italy is the destination of bigger boats which are hired or bought by smugglers' networks for the transport of clandestine migrants. These boats are always overcrowded and passengers travel in very difficult conditions. The practice of the Italian authorities has been dictated by humanitarian principles and the willingness to ensure the safety of those on board. Vessels of this kind, once intercepted, are accompanied to the closest harbour. Those who wish to apply for asylum can do so. Legal advice and assistance is provided by lawyers working for specialised NGOs, who in some coastal areas and seaports have a permanent presence due to special agreements with the local authorities or the Ministry of the Interior. By contrast, the availability and quality of interpretation is not always of the highest standards.

90.       To have an idea of the numbers, according to information provided by the Ministry of the Interior, from 1 January to 15 August 2002, 14 949 clandestine migrants disembarked on the Italian coastline, which represented an increase of 33% when compared to the same period in the previous year. Among the most targeted regions are Sicily, Calabria and Puglia. The Italian response to this phenomenon is based on the success of the Albanian model mentioned above: agreements have been concluded with main countries of departure, such as Tunisia and Libya, to improve sea patrolling operations, facilitate readmissions and foster regular migration under special yearly quotas.

91.       Finally, Italy is a country of destination for a - much more limited -number of stowaways hiding on board ships. The practice of the Italian authorities is not always consistent. In some cases, NGO lawyers have been allowed to go onboard and receive a statement from the stowaway with the main elements of his/her asylum application, after which disembarkation has been authorised.

92.       Also Spain, like Greece and Italy, is afflicted by arrivals of a large number of clandestine migrants who risk their lives to reach its extensive coastline on board small embarkations. In addition, a few stowaway cases are reported every year but according to the information collected none of them has applied for asylum.

93.       In 2002, 16 504 boat migrants were apprehended while trying to reach Spain illegally by sea, either along the country’s southern coast or by disembarking on one of the Canary Islands, that is an average of 46 boat migrants per day, a decrease of about 11% when compared to 2001. During the same period, a total of 35 bodies were discovered at sea, compared to 86 in 2001. These figures concern only the numbers of bodies actually found in Spanish territorial waters and does not reflect the real figure of the number of boat migrants drowned while attempting to reach Spain by sea.

94.       As already mentioned, migration flows change very quickly their route according to various elements, including reinforced security and patrolling by the coast guard. As a result, in 2002 a shift from the traditional route reaching Tarifa to another route based on the Canary Islands was observed. That year, the number of boat migrants apprehended for trying to disembark clandestinely on the Canary islands rose from 2410 in 2000 to 9756. At the same time, those caught trying to disembark along Spain’s southern coast fell from 12 785 in 2000 to 6748 in 2002. The authorities were able to repatriate only 4283 of those caught near or on the Canary Islands; the others disappeared.

95.       Despite the numerous arrivals, the proportion of those who apply for asylum is very low. Several reasons can be put forward for this. Obviously, not all those who arrive are in need of international protection: many of them are economic migrants looking for a better standard of living. It should be recalled, however, that many come from war-torn areas of sub-Saharan Africa, or Asia. For instance, in May 2002 only 10 residents of the reception centre for immigrants and asylum seekers of the enclave of Ceuta were sub-Saharan, whereas the main nationalities were Indian, Pakistani, Iraqi and Bangladeshi. Among the reasons to explain the low number of asylum applications by them there is that they may prefer to apply for asylum once they are on the Spanish territory or in a big city but also - as it has been argued by some NGOs - that there are practical obstacles to the lodging of asylum applications.

96.       Under Spanish law, the authorities should make a decision whether to admit an alien to the territory within 72 hours from arrival. The person concerned should be informed of such a decision in writing and at the presence of a lawyer made available by the Bar. In practice, given the high number of small arrivals each night, these legal safeguards are nullified: if, for instance, in one night the total number of arrivals in Tarifa amounts to 100 people, the authorities have to complete the admission or non-admission procedure within 72 hours for all of them. The interview that these migrants have with the authorities is a formal one, where they decline their name and nationality but do not have time to explain the reasons why they wished to come to Spain. Similarly, the interview that they have with the lawyer - often one person for the entire group - only lasts a few minutes, after which the lawyer signs the form stating that s/he has been present at the notification of the decision. From a formal point of view the procedure is implemented lawfully, but it is doubtful that each illegal entrant has been given legal advice referring specifically to his/her situation. In addition, if someone applies for asylum after receiving a decision of non-admission to the territory and an expulsion order, such application will be considered as manifestly unfounded. Qualified lawyers working for refugee NGOs, though willing to assist, do not have a permanent presence in the main places of arrival, and often intervene at the request of humanitarian NGOs or when paying periodical visits to reception centres.

97.       The rapid change of smugglers' routes has important implications also for the reception capacity. In May 2002 Mr Yáńez-Barnuevo (Spain, SOC) visited the reception centre of the Isla de las Palomas, near Tarifa, which had just been renovated to cope with the continuous arrivals of pateras in the area. The centre had a total capacity of 300 people but on average hosted 60-80 inmates per night. At the time of the visit, though, Tarifa had lost its importance as a site of arrival, on behalf of the Canary Islands.

98.       Finally, the situation of unaccompanied minors/separated children is a matter of concern. The Spanish authorities have denied proceeding to the expulsion of minors without ascertaining that in the country of return there are families or appropriate structures to receive them, but this issue has been constantly raised by reputed NGOs. Your Rapporteur wishes to reiterate Recommendation 1598 (2003) on the situation of young migrants in Europe, and the particular provisions relating to minors (paragraph 7).

99.       Turkey is a country of destination, transit and origin of migrants. The main feature of migration to and from Turkey is its irregular nature with nearly 100 000 clandestine migrants intercepted each year in 2000, 2001 and 2002. Each year, an estimated 200 000 to 300 000 irregular migrants enter Turkey. Major migration flows come from Iraq, Afghanistan, Pakistan and Iran. While most of them cross terrestian borders in order to get to Turkey, many leave from coastal areas to pursue their final destination in one of the European Union countries.

100.       In 2001, as many as 19 vessels were intercepted at sea near Turkish coasts, and in 2002, they were 70 with over 1000 people on the board.

101.       During his meetings with representatives of the Foreign Affairs and Internal Affairs Ministries, as well as NGOs, the Rapporteur got somewhat contradictory information. On the one hand he was assured that any person intercepted at sea has got access to status determination procedure, and he or she may lodge an asylum application. However, this rule does not seem to be applied to the people trying to leave Turkey by boat, and who constitute an absolute majority of those intercepted at sea. The Rapporteur has got serious concerns about people sent back to their country of origin (continuously including Afghanistan, Iraq, Iran, Pakistan) without being given an opportunity to lodge an application. Thus the mere fact that the intercepted people have already been in Turkey prevents them from being considered by the Turkish authorities as potentially in need of protection and exposes them to refoulement.

102.       Furthermore, according to the reports from the non-governmenatl organizations, lack of access to legal advice, interpretation and extensive information on the rights of potential asylum seekers are the main concerns as far as access to asylum procedure is considered.

103.       Among more general concerns there are: geographical limitation to the 1951 Geneva Convention; some restrictions imposed on the right to asylum; time limit for the presentation of application, living conditions of asylum seekers and refugees.

104.       On the positive side should be noted some progress accomplished by Turkey in recent years in the legislative field regarding migratory policies and administrative practice, as well as an increasing cooperation with international agencies, in particular UNHCR and NGOs.

105.       It can be estimated that from 94 to 97% of asylum seekers who reach the UK are ‘facilitated’ by smugglers. In average, asylum seekers pay the equivalent of 3000 British pounds for the journey and sometimes false documentation.

106.       The Port of Dover receives a massive amount of freight vehicles. 50-70% of them are not secured and can therefore easily be used by smugglers to conceal people. After the increase of interceptions and the increase of cases that have been prosecuted the percentage of vehicles which are better secured has improved.

107.       The Immigration authorities of the Port of Dover have introduced a wide range of detection measures, such as the CO2 machine, which is effective and inexpensive, the gamma ray machine, which is the most effective, and acoustic detectors, which register the sound of heart throb.

108.       The British authorities try to co-ordinate as much as possible with the French authorities who conduct the checks on the other side of the Channel, in order to avoid checking twice the same containers, trailers or vehicles.

109.       Most of those who arrive to the port of Dover in a clandestine manner apply for asylum at the port when they are caught. There are no problems in having access to the asylum procedure. Some ethnic groups, such as Chinese and Indians, follow different patterns: they prefer to reach areas where they have strong community support and apply for asylum at a later stage.

110.       The first step consists of a screening interview, conducted with the assistance of an interpreter. All clandestine migrants arriving at Dover undergo this screening. Fingerprints and photographs are taken. The aim is to determine the identity and nationality of the person concerned and assess whether there is a risk that s/he would absconds. The screening interview takes place within roughly 6 hours from arrival. There is no screening to assess the health of those who arrive. If there are problems or vulnerable cases the medical officers are called.

111.       Those who are not detained are sent to an ‘induction centre’, where asylum seekers receive information about accommodation and other socio-economic rights they have pending the examination of the asylum application. The induction centre will find temporary accommodation for 14 days in Kent or, if not possible, in the South East. After this period, asylum seekers will be transferred again given accommodation under the dispersal system.

112.       Less than 1% of asylum seekers are detained. In general, the categories who are detained include those who are at a high risk of absconding, people whose identity is not established and multiple applicants.

113.       The detention centre in the port of Dover has a capacity of 47 people. Family units are kept together. There is a common recreation room with television. Inmates can use the phone and receive external calls. Three hot meals are served a day. The average period of detention is 2/3 days. The detention centre hosts those who have just arrived as well as those who are waiting for enforcement of removal.

114.       The case of Dover shows the importance of partnership among immigration authorities, with a view to, exchanging intelligence, detection instruments and techniques. It is a fact that smugglers shift their activities to ports where there is less control, but acting in partnership it should be possible to shift the detection equipment to respond to the situation of crisis.

5.7.       Germany

115.       The main ports concerned with arrival of clandestine migrants in Germany are Hamburg and Bremen. However, in 2002, only fewer than 20 clandestine migrants were apprehended. The insignificant number of interceptions is not a result of low efficiency of German guards. However, as compared to the ports in Belgium and the United Kingdom, both Hamburg and Bremen seem to be of relatively low importance in respect of movements of clandestine migrants.

116.       Both Bremen and Hamburg are destinations for migrants coming from the countries emerged from the former Soviet Union and Asia. The main nationalities among clandestine migrants intercepted in both ports also are Afghan, Turkish, Iranians, Bangladeshi.

117.       Those apprehended by the police are taken to the police station. They are provided with a possibility to submit a request for asylum. If needed, there are interpreters and lawyers at their disposal. Asylum seekers can contact UNHCR or any NGO of their choice.

118.       The officials who first come into contact with intercepted migrants and throughout the status determination procedure, receive special training.

6.       Conclusions and recommendations

119.       The initial idea of drafting a report on asylum seekers at European seaports and coastal areas was to make a parallel with the report prepared by Mr Gross (Switzerland, SOC) on the arrival of asylum seekers at European airports. The first comment which can be made is that it is not possible to draw an analogy between the two situations:

120.       As in the case of airports, however, at seaports and coastal areas there is still a lack of transparency of procedures and very limited access to the permanent monitoring of NGOs or other human rights organisations.

121.       Your Rapporteur has included his main recommendations in the preliminary draft Recommendation attached to this memorandum. As a final remark, though, your Rapporteur considers important to reaffirm that the first concern of the authorities of Council of Europe member states should be to ensure the physical safety of all migrants, however they travel. The duty to render assistance to those in distress at sea is firmly rooted in international law and is based on elementary considerations of humanity. Situations like the one of the Tampa ship have never happened in Europe and Council of Europe member states should ensure that they do not occur in the future. For this reason they should adhere to a common legal framework to establish the state responsible for processing asylum applications in similar cases. In addition, and also with reference to the recent and future developments within the European Union, your Rapporteur urges that all sea patrolling operations be conducted in such a way as to avoid that member states fall short of their international obligations by returning people who are at risk of persecution under the 1951 Refugee Convention or human rights violations under the 1950 European Convention on Human Rights.

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Reporting Committee: Committee on Migration, Refugees and Population.

Reference to committee: Doc. 8861, Ref. No. 2551 on 9.11.2000.

Draft recommendation unanimously adopted by the Committee on 21 October 2003.

Members of the Committee: Iwiński (Chairperson), Einarsson (1st Vice-Chairperson), Bušić (2nd Vice-Chairperson), de Zulueta (3rd Vice-Chairperson), Akgün, Akhvlediani, Alibeyli, Arabadjiev, de Arístegui (alternate: Fernández-Aguilar), Arzilli (alternate: Riccardi), Bernik, Bousakla, Branger, Braun, Brinkel (alternate: Duivesteijn), Brînzan, Brunhart, Cabrnoch, Çavusoğlu, Christodoulides, Cilevičs, Dačič, Danieli, Debarge, Debono Grech, Dmitrijevas, Dokle, Donabauer, Err, Filipiová, Freiherr von und zu Guttenberg, Frimannsdóttir, Grzesik, Grzyb, Gülçiçek, Hagberg, Hancock, Higgins (alternate: Daly), Hoffmann, Ilaşcu, Jovašević, Lord Judd, Karpov, Kósá-Kovács, Kulikov, Kvakkestad, Lambert, Le Guen, Liapis, Loutfi, Matviychuk, Nabholz-Haidegger, Naro, Nasufi, Nessa, Olin, Popa, Prijmireanu, Puche, Raguž, Rakhansky, Reymann, Saks, Shakhtakhtinskaya, Slutsky (alternate: Fedorov), Soendergaard, Stoisits, Stübgen, Szabo, Tekelioğlu, Tkáč, Torosyan, Vera Jardim, Verivakis, Vermot-Mangold, Vieira, Wilkinson, Wray (alternate: Etherington), Yáńez-Barnuevo (alternate: Agramunt), Zavgayev (alternate: Tulaev), Zhirinovsky (alternate: Gamzatova).

N.B. The names of those members present at the meeting are printed in italics.

Secretariat of the committee: Mr Lervik, Mrs Nachilo, Mrs Sirtori-Milner, Mrs Entzminger