[Documents/Docheader.htm]Access to assistance and protection for asylum seekers at European seaports and coastal areas
Recommendation 1645 (2004)Doc. 10367
29 November 2004Reply from the Committee of Ministers
adopted at the 904th meeting of the Ministers’ Deputies (17 November 2004)
1. The Committee of Ministers has considered Parliamentary Assembly Recommendation 1645 (2004) on access to assistance and protection for asylum seekers at European seaports and coastal areas and forwarded it to the governments of its member states. It has also forwarded it to the Ad hoc Committee of Experts on the Legal Aspects of Territorial Asylum, Refugees and Stateless Persons (CAHAR), the European Committee on Migration (CDMG), the Steering Committee for Human Rights (CDDH), the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) and the Council of Europe Development Bank for information and comments; the Committee of Ministers has taken them into account when preparing this reply.
2. The Committee of Ministers understands the reasons for the Parliamentary Assembly’s concerns regarding the issue of arrival of asylum seekers at seaports and coastal areas. This is a growing phenomenon in Europe. In this respect, the Committee of Ministers wishes to stress that the Migration Management Strategy (adopted by the European Committee on Migration at its 42nd meeting in May 2000) and the Helsinki Declaration (2002) (Final Declaration of the 7th Conference of Ministers responsible for Migration Affairs (Helsinki, 16-17 September 2002) encourage European countries to develop channels of legal migration as well as to provide potential migrants with all the necessary information and assistance.
3. The problems of irregular migration remain a priority for the Committee of Ministers’ Steering Committee on Migration (CDMG). The CDMG has created an Ad Hoc Working Group on Irregular Migration in 2003 and a report is expected in 2004. In addition, the CDMG has recently published a report on “Preventing illegal immigration: juggling economic imperatives, political risks and individual rights”, and a report undertaken on irregular migration was presented at its September 2004 meeting.
4. The question of illegal arrival of asylum seekers at seaports or coastal areas raises the question of an effective access to the asylum procedure in these places. Indeed, the existing policies and practices related to the reception of the asylum seekers in the coastal areas of the Council of Europe member states need to be regularly followed and, when appropriate, improved.
5. With respect to an effective access to the asylum procedure for those asylum seekers arriving at seaports or coastal areas, the Committee of Ministers would like to recall its own Recommendation No. R (98) 15 to member states on the training of officials who first come into contact with asylum seekers, in particular at border points, which describes the training to be provided for two types of officials: those who are required to refer asylum seekers to the competent asylum authority, and those whose responsibility it is to receive and process asylum applications, and/or to take a decision. The provisions of this Recommendation do apply to all officials who first come into contact with asylum seekers, including immigration or border staff in seaports or in coastal areas. A proper implementation of this Recommendation would greatly contribute to guaranteeing an effective access to asylum procedures for the asylum seekers concerned. In this respect, the Committee of Ministers would like to inform the Assembly that the CAHAR will also forward to all its members a questionnaire on the implementation of this Recommendation, which will include specific references on training of officials in seaports or in coastal areas.
6. Also, the Committee of Ministers recalls its Recommendation No. (94) 5 to member states on the arrival of asylum seekers at European airports. It provides guidelines based on the fundamental principles in the field of human rights to inspire the practices of member states with regard to the examination of asylum requests as well as the reception of asylum seekers arriving at airports. These guidelines contain a number of guarantees which are also referred to in Parliamentary Assembly Recommendation 1645 (2004), such as: the right for asylum seekers to have their requests examined in compliance with the international obligations of each state; the possibility of sending an asylum-seeker to a third country, subject to respect of the provisions of the Geneva Convention, in particular its Article 33, and in compliance with Article 3 of the European Convention on Human Rights; the right to the assistance of a qualified and impartial interpreter; the right to contact a legal counsellor or a lawyer; medical and social assistance; sufficient accommodation and food in reception facilities.
7. Concerning the absence of suspensive effect of the appeal proceeding against the refusal to receive an asylum application, or against expulsion, denounced in the Recommendation, the Committee of Ministers would like to recall its Recommendation No. R (81) 16 to member states on the harmonisation of national procedures relating to asylum, that provides for the suspensive effect of an appeal or review procedures against a decision on an asylum request. Also, according to the Committee of Ministers’ Recommendation No. R (98) 13 to member states on the right of rejected asylum seekers to an effective remedy against decisions on expulsion in the context of Article 3 of the European Convention on Human Rights, the execution of the expulsion order is suspended until a decision by an independent authority having the competence to decide on the existence of the conditions provided for by Article 3 of the Convention, is taken.
8. With regard to paragraph 10.iii.j of the Recommendation, which calls on member states to conduct sea patrolling operations in such a way that persons are not returned to countries where they would be at risk of persecution or human rights violations, the Committee of Ministers would like to draw the Assembly’s attention to the ongoing work of the CAHAR on the drafting of guidelines on forced return.
9. The Committee of Ministers would add that experience shows that, on arrival in a country or at a later stage in procedure, many asylum-seekers risk being deprived of their liberty. In this connection it draws attention to the work, at member countries’ land, sea and air arrival points, by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), involving visits to places of detention (border police posts, border holding centres, etc.), and to the views the CPT was expressing as early as 1997 regarding the standard of treatment of people detained under aliens entry and residence legislation and the basic safeguards they must be given, also bearing in mind the risk of ill-treatment in the return country (see the 7th General Report on the CPT’s activities, CPT/Inf(97)10).
10. In this context the Committee of Ministers further draws attention to the CPT’s recent guidelines on deportation of foreign nationals by air (see 13th General Report on the CPT’s activities, CPT/Inf(2003)35), which might be relevant to asylum-seekers whose applications have been refused and whom it is intended to deport by air (instead of by ship or land).
11. As for the Assembly's recommendation inviting the Council of Europe Development Bank (CEB) to give positive consideration to funding requests from member states wishing to establish appropriate and permanent reception structures in coastal areas and near seaports, the Committee of Ministers recalls that the search for appropriate effective and respectful of human rights solutions to the problems faced by the member states because of the management of population flows, lies at the very heart of the CEB’s mandate.
12. According to Article II of its Articles of Agreement, aid to migrants, refugees and IDPs represents a priority field of intervention for the Bank. The membership of the CEB encompasses countries of destination of population flows as well as countries of origin or transit, and the Bank strives to provide solutions adapted to the different situations and needs. Between 1956 and 2002 the CEB devoted € 4.3 billion to finance projects providing for the construction or rehabilitation of permanent reception centres or contributing to set up the basic infrastructure required for the immediate needs of populations victims of exceptional situations, but also supporting the long term integration of migrants and refugees in reception countries such as construction of housing for and professional training of poorly qualified immigrant workers, or the stabilisation of the population flows in rural areas in countries of origin. Over the last five years, the CEB has responded to the requests made by several member states, such as most recently Croatia and Lithuania, for projects targeting refugees and IDPs, making available a total amount of € 71 million in loans approved.
13. With a view to reinforcing its action in this field, a framework for cooperation with the UNHCR is under preparation. In March 2004, the Administrative Council approved two donations for a project in Bosnia and Herzegovina and another one in Serbia and Montenegro, for an amount of USD 300,000 and USD 704,000, respectively. Both projects aim at ensuring the voluntary return or the integration in the local communities of refugees and IDPs still living in reception centres.
14. The Committee of Ministers is confident that, building on this experience, the CEB is certainly ready to partner its member states in their effort to ensure appropriate reception structures in the areas most concerned by the arrival of migrants or refugees, help identify new possible projects in this area, examine the loan requests submitted by member states to that effect and give to them priority of consideration at the time of approval.