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Report | Doc. 11304 | 13 June 2007
Assessment of transit and processing centres as a response to mixed flows of migrants and asylum seekers
(Former) Committee on Migration, Refugees and Population
Summary
The massive flow of irregular migrants into Europe has brought with it a growing recognition of the need for innovative and more effective approaches to mixed flows of migrants and asylum seekers.
A concept which has been proposed in various forms is to establish transit or processing centres for irregular migrants and asylum seekers within European Union countries, or outside the borders of the European Union but within Europe, or in countries outside of Europe.
A number of arguments have been put forward in support of such centres, including that they can contribute to burden-sharing, they may facilitate harmonising of asylum processing, they can assure that migrants and asylum seekers are processed closer to countries of origin and they may offer better levels of protection than currently on offer in a number of countries of transit and destination.
The proposals that have been discussed to date, however, raise many concerns, in particular from a human rights perspective. This report seeks to highlight these concerns in order that they be taken into account in any future discussions about creating such centres.
Of primary concern is the issue of responsibility for such centres. Should such centres be established, states should not be allowed to transfer their responsibilities and obligations under the European Convention on Human Rights and other human rights treaties or under the 1951 Geneva Convention relating to the Status of Refugees. Major concerns also arise linked to the impact that such centres might have on national policies and practices, procedures and facilities. Any steps taken to establish such centres should not undermine these. Furthermore, concern is raised that if such centres are established they should be part of a comprehensive approach to tackling the asylum-migration nexus, involving countries of origin, transit and destination.
The degree of concern in relation to the establishment of such centres varies greatly depending on whether proposals are made for these to be established within the European Union or outside of the European Union (greater Europe or outside of Europe). If centres are to be established, they should be created first within the European Union before extending the experiment outside the frontiers of the European Union or outside of Europe.
A. Draft resolution
(open)1. The number of asylum seekers in Europe continues
to fall and has reached its lowest level since 1988. However, the
number of persons seeking to enter Europe illegally is on the increase,
with some estimates of as many as 500 000 additional irregular migrants
in Europe entering or overstaying every year. Some estimates indicate
that there may be up to 5.5 million irregular migrants in the European
Union with estimates of a further 8 million irregular migrants in
Russia alone.
2. There are increasing concerns across Europe as to how best
to tackle this mixed flow of irregular migrants and asylum seekers.
The United Nations High Commissioner for Refugees (UNHCR) in 2006 developed
a 10-Point Plan of Action to address mixed migratory movements.
Countries such as Spain, Italy, Malta and Greece, experiencing mass
arrivals of irregular migrants and asylum seekers over the summer
of 2006, have called for new initiatives and new approaches to tackle
these mixed flows and to develop a more equitable system of burden-sharing
among countries of origin, transit and destination.
3. There are also increasing concerns as to the human and humanitarian
costs of the movement of large numbers of irregular migrants and
asylum seekers into and out of Europe. The number of people drowning, suffocating,
dying of exposure or being blown up in minefields while trying to
enter Europe continues to grow at an alarming rate. Those that make
it to Europe have often spent large sums of money, travelled in
dangerous and difficult circumstances and face numerous problems
and potential exploitation when they reach Europe.
4. New approaches to tackling mixed flows of migrants and asylum
seekers are therefore essential, not only to ensure that the protection
needs of asylum seekers are met, but also to stem the flow of irregular migration
and the exploitation, trafficking, deaths and suffering that accompany
it.
5. These approaches need to be comprehensive in nature and implicate
countries of origin, countries of transit and countries of destination.
There are examples in the past of initiatives that have sought to
deal with refugee and irregular migrant flows in a comprehensive
fashion. Reference can be made to the International Conference on
Assistance to Refugees in Africa (ICARA) in the mid-1980s as well
as to the Comprehensive Plan of Action for Indo-Chinese Refugees
(CPA) in the late 1980s which provided a solution to the flow of Vietnamese
boat people.
6. In recent years, a number of new approaches for processing
mixed flows of migrants and asylum seekers have been put forward.
In a discussion paper on the “three prongs” of a European Union
asylum policy the UNHCR put forward a proposal to the European Union
for joint processing within the Union. Other proposals which were,
however, more controversial included processing outside the borders
of the European Union but within Europe (as in the United Kingdom’s
“New Vision” paper) and processing outside of Europe in North Africa
(as in the former German Interior Minister Otto Schilly’s proposal).
7. These proposals were not entirely novel as there were past
precedents in other parts of the world. In the early 1990s, Haitians
intercepted at sea were taken to the United States Naval Base at
Guantánamo Bay in Cuba for processing. Another example concerned
Australia and the setting up of processing centres in Nauru and
Papua New Guinea.
8. The Assembly considers it important to take into account positive
and negative past experience together with past proposals with a
view to formulating recommendations that can be taken into account
in future discussions relating to the processing of mixed flows
of migrants and asylum seekers. In this respect, the Assembly notes
that the European Commission plans to launch a feasibility study
on internal and external territorial processing in the second half
of 2007.
9. The Assembly is particularly concerned by some of the proposals
for creating transit or processing centres. These are centres where
persons are processed after having arrived in a country, been intercepted on
their way to a country, been returned to a country through which
they have transited, or been sent to a country where processing
takes place. The level of controversy has varied according to whether
the proposals have related to transit or processing centres within
the European Union, outside of the European Union but still within
Europe, or outside of Europe (for instance in North Africa). The
level of controversy is also affected by whether centres are envisaged
as transit centres where only pre-screening or clearing takes place,
or if centres are envisaged as full processing centres.
10. The Assembly recognises that there may be valid reasons for
considering such transit or processing centres. For example, depending
on the type of arrangements envisaged, they may contribute to burden-sharing,
they may facilitate harmonisation of asylum processing, they may
ensure that migrants and asylum seekers are processed closer to
countries of origin, they may offer better levels of protection
than currently on offer in a number of countries of transit and
destination, they may ensure that resources are more efficiently shared
and used.
11. The Assembly recognises, however, that there are many open
questions concerning transit or processing centres. The Assembly
notes that it is very difficult to examine, in the abstract, transit
and processing centres without answers to some of the following
questions:
11.1. Who would be responsible
for the centres? Would responsibility remain with the state transferring the
persons concerned, would it transfer to the country where the centre
is established or would there be shared responsibility between the
transferring state and the country where the centre is established? Would
the UNHCR also share responsibility and in what form? What legal
regime would apply? What responsibility would the European Union
have and under what legal framework would it act?
11.2. Who would the centres be for? Those arriving in countries
where the centres are situated, those intercepted en route to a
European country, those who have previously transited through the
countries where centres are situated, those who have arrived in
a European country but who are then transferred to a country with
a centre?
11.3. What would happen after the refugee status determination
procedure? How would burden-sharing operate in relation to settlement
or resettlement or organisation of return? What would happen to
those whose country of origin could not be identified? What would
happen to those who could not be returned?
11.4. Where should the centres be located?
11.5. What conditions should persons be held in? Should these
be open centres or closed centres and what level of reception conditions
and accommodation should be offered?
12. The establishment of transit or processing centres raises
a number of practical and legal issues and concerns, including human
rights and refugee rights issues and concerns, which must be taken
into account in any future discussions concerning the establishment
of such centres.
13. The Assembly therefore calls on the competent authorities
of all member states to take into account the following issues and
concerns in any future discussions concerning the establishment
of such centres:
13.1. centres should
not replace national wellestablished asylum procedures in European
destination countries but should be seen as just one possibility
of many to deal with migration and refugee movements;
13.2. centres should not undermine national policies and practices
and determination procedures and facilities in the countries where
centres might be established;
13.3. centres should only be considered as part of a comprehensive,
proactive approach that includes focusing on countries of origin,
neighbouring countries, countries of first asylum, transit countries
and countries of destination. In this connection, the positive experience
and lessons learned from the Comprehensive Plan of Action (CPA)
for Indo-Chinese Refugees can serve as a useful point of reference;
13.4. in the event of such centres being established and proving
successful, any extension of such centres outside the European Union
must fully comply with all human rights and refugee standards;
13.5. any transfer to centres cannot absolve the responsibility
of European states to guarantee nonrefoulement under
the 1951 Geneva Convention relating to the Status of Refugees or
their human rights obligations under the European Convention on
Human Rights and other human rights treaties;
13.6. there must be no transfer from one country to another
without express agreement between the states concerned and only
on the condition that effective protection can be guaranteed. Such
transfer cannot, as mentioned above, absolve a state from all responsibilities;
13.7. the relative merits and drawbacks of clearing centres
as opposed to full processing centres needs to be examined in detail;
13.8. the UNHCR must be fully consulted in any discussions concerning
such centres and should such centres be established, the UNHCR should
be guaranteed a presence as well as a role in the refugee determination
procedures adopted, subject to its agreement;
13.9. in their operation and functioning, centres must comply
with all relevant human rights and refugee law standards. In the
event that they are closed centres and operated under the responsibility
or partial responsibility of Council of Europe member states or
the European Union, they would need to be open to monitoring by
the European Committee for the Prevention of Torture (CPT). They
would also need to be open to NGOs providing advice and assistance
to migrants and asylum seekers;
13.10. centres should provide all necessary protection facilities
for particularly vulnerable persons, including minors and in particular
unaccompanied minors;
13.11. centres should only be considered as transitional measures
which should not affect the goal of building up legal and institutional
capacities in all relevant countries whether they be countries of
transit or destination;
13.12. steps also have to be taken to tackle root causes of migration
and asylum in countries of origin with the aim of identifying more
long-term, comprehensive and holistic solutions to the asylum-migration nexus;
13.13. should such centres be established, until they have been
proven to function within the European Union in full compliance
with all human rights and refugee law standards, there should be
no consideration of extending the concept of such centres outside
of the territory of the European Union.
14. The Assembly calls on the European Union to take into account
the concerns raised in relation to the creation of transit or processing
centres in any future discussions or proposals on this issue, including
in the proposed feasibility study on internal and external territorial
processing of mixed flows of migrants and asylums seekers, scheduled
for the second half of 2007.
15. The Assembly calls on the Council of Europe Commissioner for
Human Rights to follow developments in this field and respond accordingly
to any future proposals put forward where human rights concerns
are at issue.
16. The Assembly considers that new and innovative measures are
required to handle the mixed flow of irregular migrants and asylum
seekers and considers that this issue merits further discussion
within the Assembly and within its Committee on Migration, Refugees
and Population.
B. Draft recommendation
(open)1. The Parliamentary Assembly refers to its Resolution
… (2007) on an assessment of transit and processing centres as a
response to mixed flows of migrants and asylum seekers.
2. The Assembly is concerned about the practical and legal implications,
in particular human rights and refugee rights implications, for
the viability and nature of transit and processing centres and wishes
to ensure that in any discussions relating to such centres the concerns
of the Assembly are taken into account together with all human rights
standards of the Council of Europe and other human rights and refugee
standards.
3. Therefore, the Assembly recommends that the Committee of Ministers
call on the Steering Committee for Human Rights to follow closely
future proposals for transit and processing centres, and in particular
human rights implications arising from the creation and running
of such centres within member states of the Council of Europe for
member states of the Council of Europe or for those of the European
Union.
C. Explanatory memorandum, by Mrs Corien Jonker
(open)1. Introduction
1. There is growing recognition that new, innovative
and more effective approaches to migration flows and flows of refugees
need to be devised. The mass arrival of irregular migrants and asylum
seekers on Europe’s southern shores during the course of 2006 and
now in 2007 provides evidence of the scale of the problem.
2. A number of proposals have been made in the past to tackle
these flows. One idea which has surfaced in the past is to establish
transit centres or processing centres in order to receive, process
and settle or return irregular migrants and asylum seekers entering
Europe. These proposals have taken different forms, ranging from
the establishment of such centres within the European Union, on
the frontiers of the European Union but within Europe, or outside
of Europe.
3. The proposals that have been made to date have not received
widespread support and raise a number of serious concerns, including
human rights concerns and concerns over state responsibilities for
dealing with irregular migrants and asylum seekers.
4. The aim of this report is to examine the different proposals
that have been made to date to set up transit centres or processing
centres and also look at examples of where similar initiatives have
been set up in the past. Having examined these different proposals
and examples, the report examines some of the main concerns and
criticisms linked to the creation of such transit or processing
centres.
5. While the issue of creating transit centres or processing
centres is no longer highly visible on the European agenda, the
situation is likely to change in the near future. The European Commission
will, for example, launch a feasibility study on internal and external
territorial processing centres in the second half of 2007. Furthermore,
as naval patrols by the European Agency FRONTEX are stepped up in
2007 in the Mediterranean and off the west coast of Africa, an increasing
number of boat people will be intercepted in the high seas, leaving
open the question as to where these intercepted persons are to be
taken and processed. It is therefore important for the Parliamentary
Assembly to provide input into any ongoing or future discussions. In
this, the Assembly should highlight its concerns about transit centres
or processing centres. It should, however, be ready, at the same
time, to make proposals and support new, innovative and more effective approaches
to migration flows and flows of refugees.
6. Your rapporteur in preparing this report has received valuable
assistance from Mr Alexander Betts, from St Antony’s College, University
of Oxford (United Kingdom) and Dr Peter van Krieken (Vientiane),
Webster University/Röling Foundation. She would like to thank both
of them for their expert assistance.
1.1. Context
7. As was noted in Parliamentary Assembly Resolution 1521 (2006) on
mass arrival of irregular migrants on Europe’s southern shores,
there is a growing concern across Europe at the number of irregular
migrants and asylum seekers arriving on its southern shores. Spain,
for example, saw the number of arrivals on the Canary Islands rise
from 4 700 in 2005 to around 34 000 in 2006. Italy, by contrast,
received over 22 000 arrivals by sea, and countries such as Malta,
Cyprus, Greece and Turkey also had to shoulder the burden of arrivals.
8. These attempts to reach Europe are accompanied by a significant
loss of life, with deaths by drowning, exposure and dehydration,
and violence by boat operators being reported. The number of confirmed
deaths of those seeking to reach Spain in 2006 is 1 167, but it
is estimated that probably in the region of 7 000 
people died.
This means that one in five people died in attempting to reach Spain.
people died.
This means that one in five people died in attempting to reach Spain.9. The countries that are on the front line of this flow of migrants
and asylum seekers are finding it increasingly difficult to shoulder
the burden of these arrivals and are increasingly seeking some form
of burden-sharing in Europe and calling for new, innovative and
effective approaches to managing this mixed flow of migrants and
asylum seekers.
10. It should be recognised that while the problem is particularly
visible on Europe’s southern shores, there are also important flows
of irregular migrants and asylum seekers reaching and crossing Europe’s
eastern and other frontiers.
11. It is in order to deal with this mixed flow of irregular migrants
and asylum seekers that proposals have been put forward to establish
transit centres or processing centres.
1.2. Definition
12. The proposals for transit centres or processing centres
have varied in both substance and the degree to which the ideas
have been formalised in written documents. Nevertheless such centres
can be broadly defined as closed or open centres located in transit
or destination countries, inside the European Union, outside the European
Union but within Europe, or outside of Europe. They may be centres
at which claims for asylum are to be assessed, refugees to be resettled
and non-refugees (including irregular migrants) to be returned or offered
other alternatives. They may be centres at which pre-screening or
clearing takes place before persons are taken to another country
for processing or return.
1.3. Purpose
13. Proposals for transit or processing centres have
a primary purpose of tackling what has been referred to as the “asylum-migration
nexus” or “mixed flows of migrants and asylum seekers”. This is
a process where refugees and migrants use the same routes to reach
Europe and have overlapping motives for flight. They often move
between different migrant categories and use similar means, such
as smuggling and trafficking routes, to reach Europe.
14. The purpose of creating such centres is therefore to reconcile
migration control, on the one hand, with a fair and efficient asylum
process, on the other. A number of arguments are put forward in
favour of such centres. In this respect it is argued that they can
contribute to burden-sharing between European states and that they
can facilitate harmonisation of asylum processing and improve the
quality of decision making. It is also argued that they can, depending
on where centres are established, ensure that processing takes place
as close as possible to countries of origin, obviating in some circumstances
the need for lengthy and dangerous trips. It is also argued that
such centres may reduce the cost of asylum processing, allow states
to share resources, and serve as a deterrent to irregular migration.
1.4. Impetus from the European Union (EU)
15. Following the Tampere European Council’s (1999) elaboration
of the need to develop a common EU asylum policy, the Seville European
Council (2002) recognised the importance of developing co-operation
with third countries in the areas of asylum and migration as a means
to better manage irregular migration while simultaneously ensuring
access to international protection for those in need of international
protection. The Hague Programme adopted by the Brussels European
Council (2004) provided
more concrete proposals concerning transit or processing centres.
It called for a study on the feasibility of establishing what it
called extraterritorial processing. The Action Plan to
implement the Hague Programme adopted on 2 June 2005, however, proposed
“Studies on the implications of joint processing of asylum applications
– within and outside the Union”, without setting a policy in the
direction of extraterritorial processing. The Hague Programme, however,
also emphasised the need to improve protection in regions of origin,
and to a certain extent in regions of transit, inter alia, through the regional
protection programmes (RPPs) of the EU. Within this context, a range of
approaches and proposals have been suggested by individual member
states and by the European Commission. These have focused on developing
partnerships with countries in refugees’ regions of origin or transit
countries en route to the EU as a means to ensure access to effective
protection within the region of origin or, alternatively, to locate
asylum processing beyond the EU’s external border. The concept of
transit centres or processing centres has been part of this wider
debate. In the second half of 2007 the European Commission plans
to launch a feasibility study on internal and external processing
of mixed flows of migrants and asylum seekers.
provided
more concrete proposals concerning transit or processing centres.
It called for a study on the feasibility of establishing what it
called extraterritorial processing. The Action Plan to
implement the Hague Programme adopted on 2 June 2005, however, proposed
“Studies on the implications of joint processing of asylum applications
– within and outside the Union”, without setting a policy in the
direction of extraterritorial processing. The Hague Programme, however,
also emphasised the need to improve protection in regions of origin,
and to a certain extent in regions of transit, inter alia, through the regional
protection programmes (RPPs) of the EU. Within this context, a range of
approaches and proposals have been suggested by individual member
states and by the European Commission. These have focused on developing
partnerships with countries in refugees’ regions of origin or transit
countries en route to the EU as a means to ensure access to effective
protection within the region of origin or, alternatively, to locate
asylum processing beyond the EU’s external border. The concept of
transit centres or processing centres has been part of this wider
debate. In the second half of 2007 the European Commission plans
to launch a feasibility study on internal and external processing
of mixed flows of migrants and asylum seekers.2. Precedents
2.1. The United States and Guantánamo Bay
16. During the early 1990s, Haitians intercepted at sea
by the United States navy were taken to the United States naval
base at Guantánamo Bay in Cuba, where their asylum claims were processed
by the United States Immigration and Naturalization Service (INS).
Those adjudged to have a credible fear of persecution were transferred
to the United States where they were allowed to have their asylum
claims formally assessed. The United States Government also briefly
screened Haitian asylum claimants at sea, on-board the USNS Comfort. The majority of Haitians
were returned to their country of origin in 1994 when the policy
came to an end and the political situation in Haiti changed.
2.2. Australia and the “Pacific solution”
17. Following the refusal of the Australian Government
to allow a Norwegian freighter (Tampa),
which had rescued 438 people off Christmas Island, to land in 2001,
the government transported the asylum claimants from the boat to
Nauru and Papua New Guinea. The Tampa incident
led to legislation formalising offshore processing within these
states. In each country, the Australian Government funded processing
centres, which were managed by the International Organization for
Migration (IOM), providing social and humanitarian services, and
at which refugee status determination was conducted by Australian
immigration officials in close co-operation and with the support
of the Office of the United Nations High Commissioner for Refugees (UNHCR).
Those granted refugee status were resettled in six countries. Those
resettled in Australia were given temporary protection visas (TPVs).
Almost 500 persons returned voluntarily to seven countries. It can
be noted that recent (summer 2006) Australian proposals to automatically
send most categories of asylum applicants to Nauru for processing
purposes have not met with success.
2.3. Indo-Chinese Comprehensive Plan of Action (CPA)
18. The Indo-Chinese CPA of 1989 attempted to address
a “mixed flow” of refugees and other migrants leaving the Socialist
Republic of Vietnam and crossing international territorial waters
to ASEAN states and Hong Kong. The initiative
was underpinned by an international agreement between the country
of origin, the countries of first asylum in the region and third
countries beyond the region. In particular, the countries of first asylum
– notably Thailand, Malaysia, Indonesia, the Philippines and Hong
Kong – agreed to continue to host and carry out the screening of
asylum claimants rather than forcibly returning them without access
to refugee status determination. They did so on condition that third
countries outside of the region – notably the United States, Australia
and European states – agreed to resettle all of those recognised
as refugees who had arrived after a cut-off date, and that the country
of origin agreed to readmit and reintegrate (with some international support)
those refused refugee status.
The initiative
was underpinned by an international agreement between the country
of origin, the countries of first asylum in the region and third
countries beyond the region. In particular, the countries of first asylum
– notably Thailand, Malaysia, Indonesia, the Philippines and Hong
Kong – agreed to continue to host and carry out the screening of
asylum claimants rather than forcibly returning them without access
to refugee status determination. They did so on condition that third
countries outside of the region – notably the United States, Australia
and European states – agreed to resettle all of those recognised
as refugees who had arrived after a cut-off date, and that the country
of origin agreed to readmit and reintegrate (with some international support)
those refused refugee status.19. Under this plan of action the procedures and facilities established
within the countries of first asylum sought to address a similar
dilemma to the current transit proposals. Namely, it sought to distinguish
refugees from other migrants through refugee status determination
within the region of origin. However, in contrast to the other past
precedents, screening within these countries only took place once
a prior agreement had been reached on the role of the different
groups of states, ensuring that by 1996 all of the Vietnamese refugees
or migrants had either been resettled or returned. This type of
clear multilateral agreement involving countries of origin, resettlement
countries and the host states offers the potential to limit the
prolonged de facto detention associated with Australia’s offshore
centre in Nauru, for example. Although the conditions of detention
and return were frequently criticised and there were problems in
the resettlement of a number of recognised refugees, the approach,
based on international co-operation, led to the resolution of a
situation which might be viewed as analogous to the contemporary
asylum-migration nexus across the Mediterranean.
3. Relevant proposals
3.1. United Kingdom New Vision paper
20. In March 2003, the so-called “United Kingdom proposals”
emerged, proposing “regional protection zones” (RPZs) and transit
processing centres (TPCs). The
former related to strengthening protection capacity in the region
of origin, and the latter to extraterritorial processing centres.
With respect to the transit centre component, it was envisaged that
the EU would finance and run centres outside of the EU. Those intercepted en
route to the EU or identified as having a “manifestly unfounded”
claim upon arrival within the EU would be sent to the centres to
have their asylum claims assessed. The proposal suggested that those
found to be in need of international protection would receive refugee
status in the EU, possibly to be allocated amongst EU states on
the basis of an EU-wide burden-sharing mechanism. Those who were
not refugees would then be returned to their country of origin on
the basis of readmission agreements. The United Kingdom initially proposed
Croatia as a location for a TPC pilot. The approach was supported
by the governments of Denmark and the Netherlands which had collaborated
with the United Kingdom in developing the ideas underpinning the proposals
within an intergovernmental consultations context. However, following
sustained criticism from NGOs and academics regarding the practical
and legal limitations of the New Vision, the
proposals were rejected by other EU states at the Thessaloniki European
Council in June 2003.
The
former related to strengthening protection capacity in the region
of origin, and the latter to extraterritorial processing centres.
With respect to the transit centre component, it was envisaged that
the EU would finance and run centres outside of the EU. Those intercepted en
route to the EU or identified as having a “manifestly unfounded”
claim upon arrival within the EU would be sent to the centres to
have their asylum claims assessed. The proposal suggested that those
found to be in need of international protection would receive refugee
status in the EU, possibly to be allocated amongst EU states on
the basis of an EU-wide burden-sharing mechanism. Those who were
not refugees would then be returned to their country of origin on
the basis of readmission agreements. The United Kingdom initially proposed
Croatia as a location for a TPC pilot. The approach was supported
by the governments of Denmark and the Netherlands which had collaborated
with the United Kingdom in developing the ideas underpinning the proposals
within an intergovernmental consultations context. However, following
sustained criticism from NGOs and academics regarding the practical
and legal limitations of the New Vision, the
proposals were rejected by other EU states at the Thessaloniki European
Council in June 2003. 3.2. The UNHCR’s three prongs
21. In 2003, coinciding with the United Kingdom New Vision
proposal, the UNHCR produced a discussion paper on the three prongs
of an EU asylum policy – relating to, first, improving protection
and solutions in regions of origin, second, improving domestic asylum
procedures and, third and most significantly its “EU prong”. The
EU prong proposed a joint processing mechanism for the whole of
the EU, with an EU-wide burden-sharing mechanism. The EU prong element
suggested that EU reception centres would facilitate a common and
more equitable EU asylum policy. However, in contradistinction to
the “United Kingdom proposals”, the EU prong argued that these should
be located within the EU’s external boundary to ensure the existence
of common legal standards. The proposal is of relevance because
it highlights the UNHCR’s concern that transferring refugee status
determination to the territories of states with less developed legal
structures might compromise protection obligations and hence refugees’
rights.
The
EU prong proposed a joint processing mechanism for the whole of
the EU, with an EU-wide burden-sharing mechanism. The EU prong element
suggested that EU reception centres would facilitate a common and
more equitable EU asylum policy. However, in contradistinction to
the “United Kingdom proposals”, the EU prong argued that these should
be located within the EU’s external boundary to ensure the existence
of common legal standards. The proposal is of relevance because
it highlights the UNHCR’s concern that transferring refugee status
determination to the territories of states with less developed legal
structures might compromise protection obligations and hence refugees’
rights.22. The UNHCR has in 2006 continued to express concern about the
mixed flow of migrants and asylum seekers and has in this context
developed a 10-Point Plan of Action addressing mixed migratory movements. While
this plan of action does not put forward proposals for establishing
transit or processing centres, it does highlight the need for co-operation
among key partners as one of the key points in the plan.
3.3. Otto Schily’s proposals
23. In July 2004, the then German Interior Minister Otto
Schily proposed the establishment of EU-funded “safe zones” or camps
in North Africa. He argued at the Justice and Home Affairs (JHA)
Council in Brussels that the centres would be used for those people
in transit countries in the Maghreb destined for the Mediterranean.
Those found to be in need of international protection would be admitted
to the EU and those found to be “illegal migrants” would be either
returned to their countries of origin by the North African hosts
with the assistance of the EU or, alternatively, given information
relating to alternative migratory channels.
24. The proposals received support from the then Italian Interior
Minister Pisanu and the then EU Commissioner for Justice and Home
Affairs-designate (Mr Buttiglioni). The Schily proposals were discussed
at the German Bundestag and the JHA Council. However, it was not
until September 2005 that his ideas emerged in a public document.
In this context, the proposals were clarified in a document entitled
“Effective Protection for Refugees, Effective Measures against Illegal
Migration”. The written proposals included the ideas, first, for interception
in the Mediterranean and return to extraterritorial processing centres
and, second, that the centres would not provide formal refugee status
determination but simply a form of pre-screening, whereby those adjudged
to be in need of protection would either be transferred to “safe
countries in the region of origin” or to the EU, initially on the
basis of some kind of humanitarian status.
3.4. Libya
25. In the aftermath of the Cap
Anamur events, Italy
entered into an agreement with Libya in August 2004 to co-operate
on the issue of “illegal migration”. As part of this, it is believed
that Italy has also concluded a significant bilateral readmission
agreement with Libya. Although this has been officially denied and
relations between the two states are shrouded in secrecy, the large
numbers of persons returned from Lampedusa suggests at least an
informal agreement. An Italian parliamentary report on public accounting
revealed the disbursement of considerable funding to Libya including
budget items relating to additional financial support in relation
to migration. Indeed, the then Italian Interior Minister Pisanu
claimed that Italy will go ahead with establishing offshore processing
centres in Libya. It is at the time of writing not known how the
new Italian Government will look into these issues.
Italy
entered into an agreement with Libya in August 2004 to co-operate
on the issue of “illegal migration”. As part of this, it is believed
that Italy has also concluded a significant bilateral readmission
agreement with Libya. Although this has been officially denied and
relations between the two states are shrouded in secrecy, the large
numbers of persons returned from Lampedusa suggests at least an
informal agreement. An Italian parliamentary report on public accounting
revealed the disbursement of considerable funding to Libya including
budget items relating to additional financial support in relation
to migration. Indeed, the then Italian Interior Minister Pisanu
claimed that Italy will go ahead with establishing offshore processing
centres in Libya. It is at the time of writing not known how the
new Italian Government will look into these issues.26. Led by Italy, the EU organised a 10-day mission to Libya in
December 2004 for a group of Commission and member state experts.
In January 2006, the Commission proposed €2 million in AENEAS funding
to be allocated to IOM to “strengthen Libya’s capacities to address
illegal transit migration in a humane and orderly manner”. Irrespective
of whether an extraterritorial processing centre will or should
be established in Libya, it should be noted that Libya has hitherto
not acceded to the 1951 Refugee Convention. Note has also been taken
of the apparent return by Libya of asylum seekers to countries like
Egypt and Eritrea without the necessary procedures as to the determination
of their status having been properly followed.
Irrespective
of whether an extraterritorial processing centre will or should
be established in Libya, it should be noted that Libya has hitherto
not acceded to the 1951 Refugee Convention. Note has also been taken
of the apparent return by Libya of asylum seekers to countries like
Egypt and Eritrea without the necessary procedures as to the determination
of their status having been properly followed. 4. Types of centres
27. Given the variation in the past precedents and recent
proposals, there are a number of important ways in which transit
centres or processing centres may differ which have significant
legal and practical implications.
28. It can be emphasised that a transit centre or a processing
centre may be a centre at which asylum seekers either in transit
to or within Europe may have their claim assessed. It could also
be a centre which would serve as a processing centre for asylum
seekers who may have applied in a European country, but who may
thereupon be transported to this centre, inside the European Union
or outside (within greater Europe or outside of Europe). It may
also be a centre for those applying for asylum outside of Europe.
Furthermore, the centre may be only a clearing centre where pre-screening
takes place and may not be a full-scale processing centre. Moreover,
it needs to be stressed that a centre may either be envisaged under
the responsibility of the country where the centre is located, or
be a shared responsibility (the country of location, the European
country involved, the EU as an entity and/or the UNHCR), or under
the sole responsibility of the EU or the European country concerned
(amounting to a centre with diplomatic status and the relevant levels
of immunity).
4.1. Who runs the centres?
29. If the centres were to be initiated by the EU or
individual EU member states, there is the question concerning exactly
who would have responsibility for running the centres and the extent
to which different functions would be devolved by European states
to host states or other agencies. Would it be the EU (as in the United
Kingdom proposals), international bodies such as the IOM and the
UNCHR (as in the Pacific Solution) or the host country (as in Italy’s
relationship with Libya) that run the centres? What role should
the UNHCR play in overseeing refugee status determination or alternative
forms of “screening”? These are important questions because they
have implications for which legal system would apply, which states
would have what legal obligations, and which rights would be available
to asylum seekers and migrants. Moreover, it will also have an impact
on various member states’ national laws, as the latter may need
to be amended to allow the authorities to embark on extraterritorial
processing and/or transferring responsibility over and above Dublin
2. The legal framework of the EU may also need to be re-examined
if the EU is to take responsibility for running such centres.
4.2. Who are the centres for?
30. In the recent proposals there are also variations
according to the groups of migrants for whom the centres would cater.
On the one hand, the United Kingdom proposals and Schily’s written
proposal imply that people who were in transit could be intercepted
en route and returned to the countries from which they had transited
for extraterritorial processing. The same could apply for those
who had manifestly unfounded cases and who had come from a transit
country. On the other hand, the centres might simply be used for
those arriving on the territory of the transit country. This distinction
is significant because it changes whether a transfer is part of
the process and also whether European states are likely to incur
obligations of non-refoulement towards
the asylum claimants by virtue of them reaching the EU or being
intercepted at sea. Once migrants have reached the EU or been intercepted
in the Mediterranean, for example, the relevant EU member state
would have both a direct and indirect legal obligation to ensure
that those individuals were not returned to face torture or persecution.
4.3. What happens after the refugee status determination procedure?
31. It is likely that after screening or refugee status
determination, at least four groups will be identified, for which
there will be different options: refugees who have not found effective
protection elsewhere; refugees who have moved on secondarily having
already found effective protection; those who could have found protection elsewhere
as they had been in countries where protection would in principle
have been available; and non-refugees. In the first instance, those
identified as having a well-founded fear of being persecuted or
falling under the subsidiary protection notion of the EC directive
concerned (2004/83/EC, the “qualification” directive) could be allowed
to be resettled to the EU as part of an EU-wide burden-sharing system
(as in the United Kingdom proposals or the three-prongs approach),
allowed to be resettled to their original intended destination country,
or sent to a “safe third country” (as in the Schily proposals).
In the second instance, those who have moved on secondarily might
be either returned to their first country of asylum or allowed to
remain in the transit country or given humanitarian status in the
EU. In the third instance, non-refugees could be returned to their country
of origin if indeed the claimant’s correct country of origin could
be identified. The difficulty arises when the authorities of the
country of origin refuse to allow the claimant to re-enter (return),
or if the centre cannot identify a claimant’s nationality or route.
Alternatively, non-refugees might be offered information about alternative
migration channels.
4.4. What conditions?
32. There are a number of different approaches the centres
could adopt, which vary in the levels of, for example, freedom of
movement and temporary access to the labour market they accord transit
migrants. Centres may be closed or open, but should always offer
the basic services and opportunities as per the EC directive concerned.
The majority of the current proposals and past precedents opt for
closed centres. Processing within such centres should be based on
a sound legal basis including the use of or reference to the relevant
EC/EU directives (like 2003/9/EC of 27 January 2003, laying down
minimum standards for the reception of asylum seekers), a right
to appeal, a right to legal counsel, and so on. Similarly, the standards outlined
by the European Committee for the Prevention of Torture (CPT) should
also be guaranteed. Indeed all efforts would need to be undertaken
to ensure that these centres are run in accordance with accepted
legal standards. In fact, in view of the risks and sensitivities
involved, the standards should be well above the minimum standards.
Also in this regard, transparency, accessibility and accountability
should stand central.
4.5. Where located?
33. The majority of the proposed transit centres or processing
sites proposed have been in countries on the EU’s external border,
either in North Africa, the Balkans, or former Soviet republics.
Significantly, the proposed states have varied according to the
extent to which they have been signatories of the 1951 Geneva Convention on
the status of refugees and other relevant human rights treaties.
Your rapporteur also notes, however, that the UNHCR under its three-prongs
discussion paper put forward proposals for centres within the European Union.
5. Legal issues
34. The setting up of transit centres or processing centres
entails a number of legal issues, all of which deserve to be addressed
in a transparent and constructive manner. It concerns issues like
the transfer of responsibility and the various modalities, the need
to stick to relevant human rights treaties like the European Convention
for the Prevention of Torture and Inhuman or Degrading Treatment
or Punishment, the European Convention on Human Rights (ECHR) as
well as its relevant jurisprudence, and also the need to address
the procedural and practical requirements and the issue of closed
as opposed to open centres. In this regard it is recalled that the
EC directive concerned (see above) indicates (Article 7.3) that
when it proves necessary, for example for legal reasons or reasons
of public order, member states may confine an applicant to a particular place
in accordance with their national law.
5.1. Transfer of responsibility
35. Articles 33 and 1a of the 1951 Refugee Convention
imply the obligation to refrain from the refoulement of
refugees to countries where they are likely to face a well-founded
fear of being persecuted. These obligations implicitly impose procedural
obligations upon states to engage in refugee status determination
rather than arbitrarily returning asylum seekers. Erika Feller of
the UNHCR has argued, in relation to extraterritorialising protection
or processing: “If an individual makes a claim in your state to
your protection and you are a state party to the Convention it is
incumbent on you to ensure that that person has access to protection, whether it is in your country or somewhere
else.” In
the latter case, the state concerned needs to keep its commitments
vis-à-vis the other states parties in due account. Other states
may be of the opinion that a state exposing asylum seekers to extraterritorial
processing is not acting in accordance with the provisions of the 1951
Refugee Convention. Such a divergence of views needs to be taken
seriously and deserves serious debate among the states parties to
the 1951 Refugee Convention.
In
the latter case, the state concerned needs to keep its commitments
vis-à-vis the other states parties in due account. Other states
may be of the opinion that a state exposing asylum seekers to extraterritorial
processing is not acting in accordance with the provisions of the 1951
Refugee Convention. Such a divergence of views needs to be taken
seriously and deserves serious debate among the states parties to
the 1951 Refugee Convention.36. Yet this does not necessarily imply that responsibility where
it concerns refugee protection or asylum processing cannot be transferred
from one state to another. The “safe third country” concept indeed
suggests that a state can transfer a refugee or an asylum seeker
to another state provided that all parties agree that the “third
country” acts in accordance with the 1951 Refugee Convention provisions.
In the EU, “Dublin 1” and “Dublin 2” are products of this line of
thinking. It
has been duly noted that both the validity of the “third safe country
concept” and the idea of “outsourcing” human rights obligations
have been contested by some respected international human rights
lawyers. However, the UNHCR September 2003 three-prongs approach working
paper would appear to indicate that extraterritorial processing
should not be prima facie excluded. Moreover, a transfer of asylum
seekers for processing purposes to other states could be accomplished
under three different models:
It
has been duly noted that both the validity of the “third safe country
concept” and the idea of “outsourcing” human rights obligations
have been contested by some respected international human rights
lawyers. However, the UNHCR September 2003 three-prongs approach working
paper would appear to indicate that extraterritorial processing
should not be prima facie excluded. Moreover, a transfer of asylum
seekers for processing purposes to other states could be accomplished
under three different models:a. the “full” transfer of responsibility for the processing of applications;
b. the extraterritorial processing of applications with the responsibility remaining with the state where the application was submitted in the first place; or
c. processing taking place on the basis of shared responsibility, in which the relevant (EU) country where asylum had been applied for, together with, for example, the UNHCR and the country of actual processing share responsibility for the procedure and the outcome.
5.2. Jurisdictional responsibility
37. As has been indicated above, responsibility for processing
may: a. be transferred to
the country where the centre is to be established; b. remain with the European country
where the application concerned was filed; c. be
with a shared responsibility, possibly including the UNHCR.
38. In this context, regard should be had to the European Convention
on Human Rights and its related jurisprudence as to this issue.
No action should be undertaken that might be in violation of the
obligations under the Convention.
39. Furthermore, it is acknowledged that Protocol No. 7 to the
European Convention on Human Rights, aiming at providing aliens
with the same (procedural) safeguards as Council of Europe citizens,
has not been acceded to by some important Council of Europe member
states, like Germany, Belgium and the Netherlands. In any case,
this very protocol underlines that not all (procedural) safeguards
as contained in the European Convention on Human Rights are automatically
extended to aliens/non-citizens: that was why this Protocol No. 7
was needed in the first place.
6. Practical issues
6.1. Ensuring legal obligations
40. The analysis above highlights that while establishing
transit centres or processing centres is not likely to be a violation
of international refugee or human rights law per
se, European states have significant practical challenges
in order to make such centres compatible with their domestic legislation
and international commitments (at EU level, Council of Europe level
and UN level). With respect to those asylum seekers and refugees
who have already reached Europe or been intercepted by a European
state en route to Europe, transferring responsibility for processing
or protection is highly challenging because it places a burden on
the transferring state to ensure credible assurances that all of
the obligations to which that individual would have been entitled
to within the transferring state will be met extraterritorially.
This applies whether individuals are being pre-screened and then
sent on to another country for final determination or whether the
full determination process is being carried out in the centre. Meanwhile,
with respect to asylum seekers intercepted by European states, these
states are likely to maintain significant ongoing jurisdictional
responsibilities, in so far as they are implicated in the running
of the centres.
41. Fulfilling these obligations is likely to be quite challenging
on a practical level. The way the transfer has been carried out,
the question whether the centre is open or closed, the right of
appeal, the issue of ensuring migrants’ legal access, the need to
build up the transit state’s legal capacity to meet these human
rights obligations, ensuring access to “effective protection” for
those recognised as refugees, and the need to ensure the oversight
of the facilities and the humane treatment of all migrants through
diplomatic assurances and monitoring will pose serious practical
challenges, again depending to a great extent on the level of transfer
of responsibility and the actual “format” of the processing (by
the state of residence, the state of arrival, by the UNHCR or by
a combination of these three).
6.2. Costs
42. A major premise of many of the proponents of transit
centres or processing centres is that they are likely to be economically
more “efficient” because they reduce all of the costs associated
with the legal procedures and care and maintenance of spontaneous
arrivals of asylum seekers within Europe. This was, for example, an
explicit premise of the United Kingdom proposals, which argued that
the cost of processing could be reduced through the creation of
such centres. However, the Australian experience of offshore processing highlights
that running detention centres on Nauru and Manus Island has been
far more expensive than onshore processing. For example, the majority
of the 1.2 billion Australian dollars (AUD) refugee budget increase
in 2002-03 was allocated to offshore processing, with AUD 430 million
being allocated to processing in third countries in the Pacific
(Nauru and Papua New Guinea) and AUD 455 million on processing in Australian
offshore locations (Christmas Island and the Cocos Islands) over
the period 2002-03 to 2005-06. A further AUD 219 million was allocated
for the construction of facilities and AUD 75 million for transit
costs. In terms of the comparative efficiency of domestic and offshore
processing, the average cost to the taxpayer of offshore processing
was AUD 293 per day on Christmas Island and AUD 236 on the Cocos
Islands, against AUD 87 per day at Port Hedland, AUD 65 per day
in Sydney, and AUD 102 per day at Woomera, for example. The
time needed for processing and implementing the outcome will hence
prove crucial in this respect.
The
time needed for processing and implementing the outcome will hence
prove crucial in this respect.6.3. What to do with those who are not recognised as refugees
43. A serious practical concern relating to the viability
of transit centres or processing centres is what to do with those
asylum seekers who are denied refugee status. This may pose a particular
problem where readmission agreements do not exist with countries
of origin or where there is uncertainty or disagreement concerning
a migrant’s country of origin. The case of Nauru exemplifies the
protracted nature of stay in offshore centres at which neither return
nor resettlement are available to detainees. At the very least,
alternatives are needed for such people so that they do not remain
detained indefinitely. Whilst it is acknowledged that readmission
agreements will facilitate the return of rejected asylum seekers,
such an agreement is no conditio sine
qua non. All countries are obliged under international
law to take their own citizens back. A greater problem exists in
agreeing on how to handle the return of third country nationals
under readmission agreements. In these instances adequate human
rights safeguards in readmission countries is essential. Your rapporteur
considers that readmission agreements are an essential element of
dealing with mixed flows of asylum seekers and refugees and further
efforts are needed to negotiate such agreements, but only in so
far as human rights concerns are taken fully into account.
6.4. Effectiveness
44. In view of the complicated and often sensitive environment
in which such centres might function, there would be a need: a. to assure transparency, accessibility
and accountability; and b. to
regularly evaluate the functioning, outcome, effectiveness and other
related issues. Different bodies could have a role in this evaluation
including the European Committee for the Prevention of Torture (CPT)
and also the Parliamentary Assembly itself.
45. Moreover, it is quite possible that more people will be tempted
to avoid the asylum system altogether and will use traffickers to
reach Europe, after which they will try and settle as irregular
migrants. This means that the establishment of such centres should
not be looked into in isolation, but should also be linked to the issue
of illegal migration in general (and in particular access by such
(irregular) migrants to the labour market) as well as the issue
of smuggling and trafficking, in accordance with the 2000 Palermo
Convention and protocols on these and related issues.
6.5. Political consequences
46. The establishment of transit centres or processing
outside the EU could meet with substantial opposition from NGOs,
academics and also some authorities. It is with this in mind that
brainstorming in general, and the decision-making process in particular,
should be an all-inclusive exercise, enabling all parties to present
and share their views, and to make sure that all the relevant information
and arguments will be shared and discussed. In particular, the issue
of (shared) responsibility and the well above minimum level of human
rights standards to be adhered to, are in this respect of the utmost
importance. Similarly, efforts would need to be undertaken to ensure
that human rights commitments in states where such centres are established
would be strengthened rather than diminished.
47. It is clear such centres should be part of a wider effort
to support the countries faced with the true burden of refugees,
like those of the South.
7. Related issues
7.1. Comprehensive engagement in regions of origin
48. The challenge of tackling transit migration via the
Mediterranean lies largely in Sub-Saharan Africa. According to the
International Centre for Migration Policy Development (ICMPD), of
the 100 000 to 120 000 migrants who cross the Mediterranean illegally
each year, around 65 000 come from Sub-Saharan Africa. Meanwhile,
much of the transit migration via the Balkans and the Maghreb states
originates in the Middle East. Addressing the causes of transit
migration therefore relies upon developing a comprehensive approach
based on international co-operation which focuses simultaneously
on countries of origin, countries of first asylum and countries
of transit. Such comprehensive approaches might, for example, draw
precedence from the UNHCR’s Comprehensive Plan of Action (CPA) of
the late 1980s and early 1990s. In particular, the Indo-Chinese
CPA and the International Conference on Central American Refugees
(CIREFCA) represent examples of how international co-operation has
been developed between countries of asylum, countries of origin
and third countries beyond the region in order to address specific
regional refugee issues. Crucially, however, such an approach requires
a commitment by European states that goes far beyond a narrow focus
on transit or processing countries. Moreover, it should be acknowledged
that, although this document appears to focus on asylum seekers
rather than on migrants in general, those asylum seekers whose applications
have been rejected do not, de facto, differ from irregular migrants.
The solutions and procedures to be identified for rejected asylum
seekers will thus also be useful for irregular migrants.
Meanwhile,
much of the transit migration via the Balkans and the Maghreb states
originates in the Middle East. Addressing the causes of transit
migration therefore relies upon developing a comprehensive approach
based on international co-operation which focuses simultaneously
on countries of origin, countries of first asylum and countries
of transit. Such comprehensive approaches might, for example, draw
precedence from the UNHCR’s Comprehensive Plan of Action (CPA) of
the late 1980s and early 1990s. In particular, the Indo-Chinese
CPA and the International Conference on Central American Refugees
(CIREFCA) represent examples of how international co-operation has
been developed between countries of asylum, countries of origin
and third countries beyond the region in order to address specific
regional refugee issues. Crucially, however, such an approach requires
a commitment by European states that goes far beyond a narrow focus
on transit or processing countries. Moreover, it should be acknowledged
that, although this document appears to focus on asylum seekers
rather than on migrants in general, those asylum seekers whose applications
have been rejected do not, de facto, differ from irregular migrants.
The solutions and procedures to be identified for rejected asylum
seekers will thus also be useful for irregular migrants.7.2. Countries of first asylum
49. As part of the Irregular Secondary Movements (ISM)
strand of the UNHCR’s Convention Plus Initiative, the Swiss Forum
for Migration (SFM) survey on the irregular secondary movement of
Somali refugees showed that a major cause of onward movement for
Somali refugees has been the (perceived) inadequacy of protection and
assistance and the lack of access to livelihood opportunities and
durable solutions in host states of first asylum. This
represents the recognition that ensuring the availability of “effective
protection” within first countries of asylum and timely access to
durable solutions for refugees who have been in protracted camp situations
for a long period of time may partially reduce the need for the
onward movement of refugees towards Europe.
This
represents the recognition that ensuring the availability of “effective
protection” within first countries of asylum and timely access to
durable solutions for refugees who have been in protracted camp situations
for a long period of time may partially reduce the need for the
onward movement of refugees towards Europe. 50. In order to ensure that protection standards in countries
of first asylum meet the standards required by the 1951 Convention,
there is a need to support initiatives to strengthen protection
capacity in host states. Improving legal standards, ensuring adequate
access to food, shelter, social services, freedom of movement and
livelihood opportunities, and guaranteeing physical security are
amongst the factors which need to be strengthened in the countries
of first asylum in order to ensure that effective protection can
be found without the need for onward movement. The UNHCR’s Strengthening
Protection Capacity Project (SPCP) and the EU’s Regional Protection
Programme (RPP) need massive funding if they are to adequately address
these requirements.
51. In relation to protracted refugee situations, over 6 million
refugees have remained in “an intractable state of limbo”, often
confined to insecure camps for over five years. Working to achieve
durable solutions such as repatriation, local integration and resettlement
offer a means to mitigate the need for onward secondary movement.
European states can work towards this through expanding resettlement
programmes, supporting the UNHCR’s Development through Local Integration
(DLI) approach which has been used in states such as Zambia and
Serbia and Montenegro, and supporting post-conflict transition.
Supporting the UNHCR’s attempts to develop comprehensive plans of
action to address protracted refugee situations, such as the CPA
for Somali refugees, the Mexico Plan of Action, and the work of
the Afghanistan Comprehensive Solutions Unit (ACSU), offers a means
for enhancing the search for durable solutions.
52. In situations in which durable solutions are not immediately
available due to intractable conflict, for example, the concept
of Development Assistance for Refugees (DAR), developed by the UNHCR
within the framework of the Targeting Development Assistance (TDA)
strand of the Convention Plus initiative, offers a means to promote,
leverage and fund the self-reliance of refugees, pending the availability
of durable solutions. Through providing integrated development assistance,
which benefits both refugees and host communities, DAR offers a
means to promote freedom of movement, employment and integrated
social service provision for refugees, obviating the need and incentive
for onward movement. The approach has been applied most notably
in relation to Uganda’s Self-Reliance Strategy (SRS) and in Mexico’s
Yucatan Peninsula.
7.3. Countries of origin
53. The UNHCR has developed the concept of the 4Rs (repatriation,
reintegration, rehabilitation and reconstruction) as a means to
bridge the transition gap between relief and development and ensure
that refugee return is sustainable instead of resulting in a “revolving
door”, as has occurred in Somalia or Afghanistan, for example. Engaging
with improving the prospects for sustainable repatriation therefore
offers a means to reduce the “backflow” of refugee movements. Closing
the gap between relief and development, however, relies upon creating
greater policy coherence at not only the global level between the
UNHCR, the UNDP and the World Bank, but also at the EU level between
the Development DG, ECHO, the Justice and Home Affairs DG, and Common
Foreign and Security Policy (CFSP). It also needs a commitment over
and above the usual three to five years. Moreover, there is a need
for improved engagement in peace building as a means to address
the root causes of refugee flows. The EU is already engaged in such
activities through, for example, the work of ECHO and the Development
DG. For example, in the Democratic Republic of Congo, the EU has
committed soldiers to “Operation Artemis” to de escalate conflict.
However, again, greater policy coherence is required to link such
initiatives to a more comprehensive asylum and migration strategy.
54. With respect to addressing the root causes of other forms
of migration, it is important to recognise that in the context of
jobless growth in many parts of Sub-Saharan Africa, a significant
proportion of labour migration is driven by “push factors”. Numerous
surveys exploring the causes of transit migration from Sub-Saharan Africa
via the Maghreb reveal that many migrants leaving Nigeria, Senegal,
Cameroon, and Mali, for example, were doing so in response to poverty
and destitution. This
points to a need for targeted development assistance to create sustainable
livelihoods in areas from which migrants originate, as well as working
to ensure the sustainable reintegration of those who are returned
to their country of origin. It is needless to say that “pull-factors”
also play a role. One of those is related to a lack of tariff-free
trade and the continuation of farm subsidies. More often than not
Europe would appear to prefer an (irregular) tomato picker to tomatoes from
the picker’s country of origin.
This
points to a need for targeted development assistance to create sustainable
livelihoods in areas from which migrants originate, as well as working
to ensure the sustainable reintegration of those who are returned
to their country of origin. It is needless to say that “pull-factors”
also play a role. One of those is related to a lack of tariff-free
trade and the continuation of farm subsidies. More often than not
Europe would appear to prefer an (irregular) tomato picker to tomatoes from
the picker’s country of origin.8. Conclusions
55. While there is clearly a need for innovative and
more effective approaches to flows of migrants and asylum seekers,
the proposals that have been put forward to date for creating transit
centres or processing centres, raise a number of serious issues
and concerns.
56. Your rapporteur, while accepting such centres may not per se amount to a violation of
human rights law or refugee law, considers it important to highlight
the following major issues and concerns.
57. The first relates to the issue of responsibility and how to
ensure that no state avoids its responsibility under human rights
or refugee law if such centres are established.
58. The second is how to ensure that establishing such centres
would not replace well-established asylum procedures in European
destination countries.
59. The third is how to make sure that such centres do not undermine
national policies and practices and determination procedures in
the countries where they may be established.
60. The fourth is how to make sure that such centres, if established,
fit into a comprehensive plan for dealing with migrants and asylum
seekers taking into account the needs of the individuals concerned
and the needs of countries of origin, transit and destination.
61. Your rapporteur is well aware that there are very different
issues at stake depending on whether one considers establishing
transit or processing centres in an EU member state, within Europe
but outside of the EU, or in a country outside the borders of Europe.
While the establishment of a transit centre or processing centre
within the European Union may not raise insurmountable problems
(and indeed has been put forward as a proposal by the UNHCR in the
past), the creation of centres outside of Europe would, at this
moment in time, appear highly problematic. Your rapporteur is therefore
of the view that if centres are to be established they should first
of all be established within the European Union and transported
only as a model if shown to work satisfactorily.
62. The concerns raised in this report should be taken into account
in any future discussions, not just on setting up transit or processing
centres, but also in any debate on devising innovative and more
effective approaches to flows of migrants and asylum seekers.
63. There have been positive experiences in establishing transit
or processing centres and your rapporteur points to the example
of the Comprehensive Plan of Action (CPA) for Indo-Chinese Refugees
which provided a timely solution for the Vietnamese Boat People.
Its success lay in that it involved the country of origin, countries
of transit and countries of destination in a comprehensive approach
to the problem of a mixed flow of irregular migrants and asylum
seekers. This and other positive experiences are worth learning
from.
64. There is a need to look for innovative and more effective
approaches to the mixed flows of migrants and asylum seekers going
beyond the proposals for transit centres and processing centres
put forward to date. Your rapporteur therefore urges the Assembly
to take up the issue in a new report on innovative and more effective
approaches to handling mixed flows of migrants and asylum seekers.
* * *
Reporting committee: Committee on Migration, Refugees and Population.
Reference to committee: Doc. 10448 and Reference No. 3059 of 18 March 2005.
Draft resolution and draft recommendation unanimously adopted by the committee on 11 May 2007.
Members of the committee: Mr Mevlüt Çavus¸og˘ lu (Chairperson), Mr Jean-Guy Branger (1st Vice-Chairperson), Mr Doug Henderson (2nd Vice-Chairperson), Mr Ibrahim Özal (3rd Vice-Chairperson), Mrs Tina Acketoft, Mr Pedro Agramunt, Mr Küllo Arjakas, Mr Ryszard Bender (alternate: Mr Andrzej Grzesik), Mr Akhmed Bilalov, Mr Italo Bocchino, Mrs Olena Bondarenko, Mrs Mimount Bousakla, Mr Márton Braun, Lord Burlison, Mr Sergej Chelemendik, Mr Christopher Chope, Mr Boriss Cilevicˇs, Mrs Minodora Cliveti, Mr Ivica Dacˇ ic´, Mr Joseph Debono Grech, Mr Taulant Dedja, Mr Nikolaos Dendias, Mr Karl Donabauer, Mrs Lydie Err, Mr Valeriy Fedorov, Mr Oleksandr Feldman, Mrs Margrét Frimannsdóttir, Mrs Gunn Karin Gjul, Mrs Angelika Graf, Mr John Greenway, Mr Andrzej Grzyb, Mr Ali Riza Gülçiçek, Mr Michael Hagberg, Mrs Gultakin Hajiyeva, Mr Jürgen Herrmann, Mr Bernd Heynemann, Mr Ilie Ilas¸cu, Mrs Iliana Iotova, Mr Tadeusz Iwin´ ski, Mr Mustafa Jemilev, Mr Tomásˇ Jirsa, Mrs Corien W.A. Jonker, Mrs Eleonora Katseli, Mr Hakki Keskin, Mr Dimitrij Kovacˇicˇ, Mr Andros Kyprianou, Mr Jaako Laakso, Mr Geert Lambert, Mr Jean-Marie Le Guen, Mr Massimo Livi Bacci, Mr Younal Loutfi, Mr Jorge Machado, Mr Jean-Pierre Masseret, Mr Giorgio Mele (alternate: Mr Pasquale Nessa), Mrs Ana Catarina Mendonça, Mr Morten Messerschmidt (alternate: Mr Morten Østergaard), Mr Paschal Mooney, Mr Gebhard Negele, Mr Kalevi Olin, Mrs Vera Oskina, Mr Grigore Petrenko, Mr Leo Platvoet, Mrs María Josefa Porteiro Garcia, Mr Cezar Florin Preda, Mr Dusˇan Prorokovic´, Mr Gabino Puche, Mr Milorad Pupovac, Mr Marc Reymann, Mr Alessandro Rossi, Mr Richard Sequens (alternate: Mr Walter Bartosˇ), Mr Samad Seyidov, Mr Luzi Stamm, Mrs Terezija Stoisits, Mr Giacomo Stucchi, Mr Vilmos Szabó, Mrs Elene Tevdoradze, Mr Tigran Torosyan, Mrs Ruth-Gaby Vermot-Mangold (alternate: Mr Arthur Loepfe), Mr Andrej Zernovski, Mr Vladimir Zhirinovsky, Mr Emanuelis Zingeris.
NB: The names of the members present at the meeting are printed in bold.
These texts will be discussed at a later sitting.