In the last few weeks, some progress has been made on the temporary arrangements for disembarkation and relocation in the Mediterranean, first at a special meeting in Valletta and at the Justice and Home Affairs Council in Luxembourg on Tuesday. ECRE offers a cautious welcome to these developments: welcome because there are more positive than negative elements but cautious because undesirable points still find their way in. The agreement now needs to be finalised and expanded.
The Coalition and the Agreement
First, it should be emphasised that this is not an agreement in any formal sense. As the French Interior Minister explained after the JHA Council, this is not an international treaty that countries sign up to. We are way into the territory of political and practical cooperation and away from legal solutions – although a wide range of international law provisions still apply as is sometimes overlooked.
In terms of what is actually in place it is best to separate two elements: the coalition of the willing and the agreement. There is a group of European countries who are working together to manage the humanitarian consequences of the situation in the Mediterranean. By ECRE’s count, this now includes 17 countries. The coalition has fuzzy edges – a few countries have come in and out, such as Austria, invited to some meetings when it held the EU Presidency but even then present in person but not in spirit (an unwilling participant in the coalition of the willing and not one of the 17). In July, France referred to 14 countries in the preliminary agreement; on Tuesday they referred to 10 EU Member States who welcomed the Valletta developments.
The agreement is not the same as the coalition. Following the Malta meeting, it was announced that four countries had reached an agreement: France, Germany, Italy and Malta. This was the formal sign that Italy and Malta had joined the arrangement – their absence was a gaping hole at the July meeting but the change in the composition of the Italian government has enabled their involvement.
The agreement can be seen as encompassing these four countries which have signed up and also those who have demonstrated through their actions that they agree to the arrangements. The best indicator of being part of the agreement is involvement in relocation. To date there are 12 countries who have relocated people at some point in the last 18 months: Croatia, France, Germany, Ireland, Luxembourg, Lithuania, Netherlands, Norway, Portugal, Romania, and Spain. Then, Finland which has just started relocation following the appointment of a Green Minister of the Interior who changed their policy, and Belgium which has relocated people but is not currently involved as it doesn’t have a government. It would be unfortunate and unlikely if its new government withdrew definitively from collective efforts to manage a European challenge.
With Italy and Malta, that makes a core group of 15 operating the informal agreement out of a coalition of up to 17. Switzerland and Sweden have been in discussions but have not relocated people, so are best described as part of the coalition but not the agreement.
What has been agreed?
The content of the agreement is slightly clearer than its membership. Following the argument above, what has been agreed is the Malta Declaration but it is also the practical arrangements that are operating, as countries that are relocating have agreed to be part of something. Thus, as well as the text of the Malta Declaration, we also assess information on the informal arrangements that are apparently working.
On the positive side, there is now an agreement on relocation including some sort of quota system for relocation of rescued people. This is already being applied and features in the Malta Declaration (point 2).
The agreement on who to relocate is also positive, with a reference to asylum-seekers (point 2). A major sticking point has been some countries’ unwillingness to relocate those who – after brief nationality-based speculation – are presumed not to have protection needs. For political reasons, some may hang on to the idea that it only applies to the most manifestly founded but that is not what is stated or what is happening in practice.
The process set out tends towards the positive with a reference to Standard Operating Procedures (SOP), (point 4) which probably means the “Messina Model” developed by EASO for managing relocation. Having a SOP – and the involvement of EASO – is likely to reduce the risk of unlawful detention and denial of access to the asylum procedure which has followed some (reluctant) disembarkations. There are good references to fast relocation and to a four-week time limit.
On return, there is good and bad. Point 7 argues for return: ...of those not "eligible for international protection". This is presumably after the fast-track relocation and status determination, or for those not seeking asylum, so it may not imply changes in practice or procedure. As is de rigeur in any document on asylum and migration, there is a disproportionate emphasis on return. So long as that is not translated into new procedures, as per the hotspots, or yet more (un-spendable) resources, then it can be ignored.
Further difficulties in the agreement can be remedied either by adding or removing elements. First, it should cover all countries in the Mediterranean not just Italy. While the previous Italian government was in place, Member States supported wanted it to cover more countries so that it could not be presented as a victory for Salvini. Now, the scope seems to have narrowed again to only Italy. Partly in response, Bulgaria, Cyprus and Greece presented their own plan to the JHA Council. The actions suggested are not wholly clear nor adequate however the initiative is best seen as a call for help and a reminder that support should also apply to them, and rightly so. It follows previous proposals from Cyprus for relocation given increasing arrivals there.
Second, the declaration says that state-owned vessels should disembark in the flag state (point 1). This was not in the earlier drafts; it was presumably added as a condition for Italy and Malta to sign up. It is probably a dig at Germany. Tension has arisen in relation to major SAR NGOs registered in Germany or with prominent German staff members. Although the reference is to “state-owned” vessels, it echoes the Salvinian rhetorical approach of saying “Why don’t you take the ship?” when other governments urged Italy to allow vessels to dock.
Whatever the explanation, the suggestion is idiotic and contravenes numerous aspects of international law, and not least the Law of the Sea. As ECRE has previously discussed, there are different interpretations of the rules on the port of disembarkation, and not least key differences between Italy and Malta, which is one of the underlying reasons for the crisis. However, the rules could not possibly be stretched so far as to say that disembarkation should be in the flag state. For example, if Ireland sends ships to the region as it has done in the past, are they supposed to then disembark in Dublin port?
Other negative elements include the reference to the use of leverage on Countries of Origin in the context of return (point 7); the instructions to SAR providers to comply with commands from Regional Coordination Centers (which could include Libya) and not to "obstruct" coastguards including the Libyan Coast Guard (point 9); and a call on UNHCR/IOM to "encourage" support for disembarkation in North Africa (point 14).
These points should not be there but insofar as they call for actions from organisations and governments who are not be party to the agreement they are immaterial, if unwelcome.
Beyond the outright negative elements, there are weaknesses. There is no agreement on dividing responsibility for disembarkation – i.e. where should ships dock. The draft agreement included different options, including an “automatic rotation scheme”. Apparently this could not be agreed. ECRE has argued that two pieces are essential: as well as a relocation mechanism, there needs to be an agreement to divide responsibility for disembarkation without prejudice to the existing provisions of the Law of the Sea. Discussions should continue on this.
The Declaration calls for an increase in EU aerial surveillance but there is no reference to reinstatement of maritime operations. The Declaration and any related agreement has no status in the Member State deliberations on the future mandate of Operation Sophia or of Frontex operations, which take place in their own respective structures. However, it should be read as an indication that despite the end (or break from) Salvini, there is no plan to reinstate maritime operations. This would be a major error, and not just due to the humanitarian consequences. ECRE has commented on the problems of removing Operation Sophia’s naval assets (which had rescued +45,000 people just by being present). The related crackdown on SAR NGOs is not working – they continue to operate. (And not only: the Protestant church in Germany has just bought a rescue ship to operate in the Mediterranean.) But these efforts should not have to substitute for state/EU-operated SAR in the most deadly sea area in the world. In addition, without adequate SAR efforts merchant ships have to rescue people and this causes disruption to shipping.
Overall, this is important progress, and a cautious welcome is fair. Of course, the coalition of the willing model is far from ideal, but it is better than nothing. Those who object because it apparently undermines solidarity in the EU – cue spurious reference to Article 80 TFEU – should get their priorities straight. This is a humanitarian issue not an attempt to undermine the workings of the EU.
The numbers are adding up, with the coalition discussions bringing in more countries. As well as the four who have formally joined the agreement, another 10 have demonstrated that they are part of it through their actions, and specifically involvement in relocation. The countries outspokenly opposed to the agreement – Hungary and Denmark of course – look more and more isolated. Their tired and unfounded arguments about pull factors are even being challenged by the media.
As with the relocation programme, there is a risk that well-meaning people condemn any positive measure for not being enough. It’s not enough – obviously – but that doesn’t mean it’s without value. To say so, plays into the hands of those who would rather do nothing and give up on any kind of collective and halfway decent policy. Similarly, the criticism that this tentative agreement is not a “solution” misses the point – there is no such thing. Asylum and migration are complex policy issues which need to be tackled piece by piece. The overdue emergence of an agreement to deal with one particular humanitarian mess is but one necessary measure. The long-term flaws that provoked the situation remain to be tackled, and there will be no shortage of other short-term challenges to manage.
Editorial: Catherine Woollard, Secretary General for the European Council on Refugees and Exiles (ECRE)
On Tuesday, Greece, Cyprus and Bulgaria announced the launch of the Eastern Mediterranean Migration Route Initiative (EMMI). They called upon the EU to make further resources available to countries along the route and to implement a relocation mechanism. The joint initiative comes amid concern over Turkish operations in Northern Syria sparking an increase of arrivals over the Eastern Mediterranean.
Interior ministers of Cyprus, Greece and Bulgaria presented a document with their “Joint Position and Recommendations on Migration Pressures in the Eastern Mediterranean” to the EU Justice and Home Affairs Council held in Luxembourg. While the discussion of EU interior ministers were focusing on a relocation and disembarkation arrangement for the Central Mediterranean, the new joint initiative calls for an effective mechanism for relocation from the Eastern Mediterranean, the establishment of a functioning common European return mechanism and the provision of adequate support and allocation of resources to affected countries.
The initiators underlined that the Eastern Mediterranean, due to geopolitical factors in the Middle East, receives the overwhelming majority of arrivals of refugees. In the course of the council meeting, ministers and EU officials expressed concerns that Turkey’s impending operations in northeast Syria might cause more people to flee Syria and push some of the four million refugees hosted in Turkey to move on to the EU.
Although current levels of arrivals only represent a fraction of numbers in 2015, humanitarian conditions in receptions centers on Greek islands continue to be critical. Last weekend, Greek authorities transferred around 570 “vulnerable” people, including families, single women with children and unaccompanied children, from the refugee camp Moria on the island of Lesvos to the mainland to cope with overcrowding.
From January until September 2019, at least 24,052 migrants and refugees arrived to Spain, 9,508 to Italy and Malta and 48,518 to Greece according to data from the UN Refugees Agency, UNHCR.
For further information:
- ECRE, Greece: Overhaul of Asylum Legislation in the Aftermath of Tragic Incident in Moria, October 2019
- ECRE, Commission Express Commitment to Turkey Agreement as Situation Continues to Worsen in Greece, September 2019
- ECRE, Slight Increase of Arrivals to Greece Adds to Humanitarian Crisis, September 2019
- ECRE, Greece: Death of 15-year-old Following Failure to Implement Safeguards for Children, August 2019
- AIDA, Country Report Greece, 2018 Update, March 2019
- Greek Ministry of Citizen Protection: Πρωτοβουλία Ελλάδας, Κύπρου, Βουλγαρίας για τη μεταναστευτική οδό της Ανατολικής Μεσογείου, October 2019
Shipwreck off Lampedusa leaves dozens dead amid limited progress in talks on relocation and disembarkation.
The bodies of 13 women been recovered while eight children are still missing after a boat carrying about 50 people capsized in rough seas off the Italian island of Lampedusa on Sunday night. According to an initial reconstruction of events, all the people on board moved to one end of the vessel causing it to overturn when an Italian patrol boat arrived to transfer them. Italian authorities have rescued 22 people from the boat. The shipwreck comes six years after a shipwreck in the same area left 366 people dead. The civilian rescue vessel Ocean Viking supported Italian authorities in their search for those still missing and now proceeded to the central Mediterranean to monitor for boats in distress.
44 people rescued by the NGO vessel Open Arms on Sunday were allowed to disembark in Malta on Tuesday morning. The group was transferred from the Open Arms to a patrol boat of the Armed Forces of Malta (AFM). In an tweet, the founder of the NGO Proactiva Open Arms operating the vessel, Oskar Camps, stated that Malta's Armed Forces had encouraged the NGO to leave people adrift at sea if they were not acutely in distress.
Greek coast guards report that they rescued 104 refugees and migrants in three separate operations in the eastern and south-eastern Aegean on Sunday.
At a meeting of EU interior ministers in Luxemburg on Tuesday, seven Member states declared their willingness to commit to a plan for disembarking and relocating people rescued by NGO vessels in the Central Mediterranean. The proposal was launched by Malta, Italy, France and Germany at a meeting in September and foresees that participating parties take in a fixed quote of those rescued at each incident for a period of six months. Luxemburg, Portugal and Ireland are ready to join the coalition of the willing.
According to Missing Migrants, at least 1071 have died trying to reach Europe via the Mediterranean in 2019.
For further Information:
- ECRE, Med: At 6th Anniversary of Lampedusa Shipwreck Death Toll Reaches 1000, October 2019
- ECRE, Operation Sophia: Ships Remain Suspended while Support of Libyan ‘Coast Guard’ Continues, September 2019
- ECRE, Mediterranean: Over 400 Rescued while Deaths Continue, September 2019, September 2019
- ECRE, Stand-offs Continue at the Mediterranean Despite New Government in Italy, September 2019
- ECRE, MED: Silver Lining Looms on the Horizon while NGOs Endure Salvini’s ‘Final Blow’, September 2019
- ECRE, Deaths and Standoffs on the Med Reinforce Calls for State-led SAR, August 2019
- ECRE, Mediterranean: Deaths, Rescues and Political Manoeuvres Continue, June 2019
- ECRE, UN Agencies Raise Alarm over Libya on Land and Sea, June 2019
- ECRE, Interception and Return of 170 Refugees to Libya, May 2019
- ECRE, From Bad to Worse for Migrants Trapped in Detention in Libya, May 2019
- ECRE, Last Breath of Operation Sophia Should Push Coalition of the Willing, March 2019
- ECRE, A Contingency Plan for Disembarkation and Relocation, January 2019
On October 7 EU signed an agreement on border cooperation with Montenegro allowing the European Border and Coast Guard Agency (Frontex) to carry out joint operations and deploy teams in the country. It is the second signed status agreement with a non-EU country following an agreement with Albania in October 2018. Additional agreements in the Balkan region are pending finalization.
The Status agreements gives Frontex the mandate to assist neighboring third countries in border management including through operational engagement and deployment of personnel in the regions of Montenegro bordering the EU, provided Montenegro approves such missions. The agreement between EU and Montenegro will be concluded once the European Parliament has given its consent.
European Commissioner for Home Affairs and Citizenship, Dimitris Avramopoulos underlined the regional strategy of the EU: "Today, we are further strengthening our border cooperation with Montenegro, taking yet one more step towards bringing the Western Balkan region closer to the EU…”.
Beyond Albania, where the first mission under the agreement has been launched in May, and Montenegro, agreements with North Macedonia, Serbia and Bosnia and Herzegovina are pending finalisation. According to the press release on the agreement from the Commission: “Cooperation with third countries is an important element of the European integrated border management concept. This concept is applied through a four-tier access model which includes: measures in third countries, measures with neighbouring third countries, border control measures and measures within the Schengen area.”
Previously, ECRE raised concern over the potentially extensive powers conferred to Frontex team members under Status agreements. These could be used to prevent irregular migration towards the EU, beyond the EU’s physical borders, without independent oversight.
For further information:
On October 4 the Italian government signed a decree establishing a list of countries designated as “safe countries of origin”. The concept was introduced for the first time in the Italian asylum procedure following the 2018 legislative reform and its implementation comes as part of a plan by the Minister of Foreign Affairs to facilitate the return of asylum seekers to their countries of origin.
The list consists of countries considered safe on the grounds of the current legal system and the general political situation and includes thirteen states: Algeria, Morocco, Tunisia, Albania, Bosnia and Herzegovina, Kosovo, North Macedonia, Montenegro, Serbia, Ukraine, Ghana, Senegal and Cape Verde.
According to the latest available statistics, Ukraine (1,090) was the sixth main nationality of asylum seekers in Italy, followed by Morocco (894), Senegal (843) and Albania (791) during the period 1 January to 2 August 2019. Data released on October 4 (the day of the signing of the decree) by the Italian Ministry of Interior reveals that so far in 2019, 28% of the citizenships declared upon arrival by sea were Tunisian (the highest), while 10% were Algerian and 2% were Moroccan.
According to the Minister of Foreign Affairs, Luigi Di Maio, the list represents the first step to reduce the examination process from two years to four months and accelerate deportations to the countries of origin. For the individual asylum seekers coming from one of the designated “safe countries of origin” the quality of the examination of their claims has decreased and the burden of proof shifted. They may be subject to an accelerated procedure, whereby Territorial Commissions decide on their application within five days unless they can invoke serious grounds to believe that the country concerned is not safe in their particular case. Territorial Commissions can reject such applications as manifestly unfounded if they deem that no risk of persecution or serious harm exists. The border procedure, applicable in the southern and north-eastern regions of Italy according to a recent decree, can also be applied to nationals of these countries.
Di Maio further announced a strengthening of the relationship with Morocco and Tunisia and an increase in funds for return from 4 to up to 50 million.
For further information:
EUROPEAN COURTS AND INTERNATIONAL MECHANISMS
The European Court of Human Rights ruled this week that refusing a journalist access to report on living conditions in a reception centre for asylum seekers is a violation of freedom of expression.
In this case, a journalist requested access to Debrecen Reception Centre in Hungary to conduct interviews and report on the living conditions of the facility. The request was rejected by national authorities on the basis that media interest in reception centres would interfere with the private lives of individuals accommodated there. The journalist raised a complaint that this restriction prevented first hand reporting on the circumstances of asylum seekers in reception centres, and violated his right to freedom of expression. Moreover, the applicant argued that the scope of Article 10 ECHR should not be limited to the sharing of information that the government has explicitly deemed permissible to reveal.
The Court ruled that while this restriction was lawful, the justifications provided by authorities were insufficient. It reiterated that a fundamental role of the press is to produce and disseminate research, and by restricting access to reception centres, journalists may be discouraged from sharing accurate and reliable information that is in the public interest. The Court therefore ruled that the interference amounted to a violation of the applicant’s freedom of expression.
In ruling, the Court added that the public interest in such matters is particularly relevant when reporting on the situation of vulnerable groups. Indeed, the purpose of research was not to sensationalise the circumstances, but to corroborate other available information regarding reception centre living conditions to ensure the most accurate and reliable information is available. Denying access to such facilities would prevent the press playing a vital role as “public watchdogs” able to report on the actions and conduct of authorities.
ECRE Member the Hungarian Helsinki Committee (HHC), who intervened in the case of Mr Szurovecz, commented: “For years now, authorities have been consistently refusing access to domestic and foreign media to reception facilities, open and closed ones, including the transit zones. This practice not only served the dehumanisation of asylum-seekers but deprived the public of information of the shocking consequences of the legal changes to the Hungarian asylum system that took place since 2015. Journalists thus far were unable to directly report on such serious issues as the deprivation of food or the effects of the indefinite de facto detention of children in the transit zones but had to rely on HHC’s reports and court decisions. We welcome the Court’s decision and hope that it puts an end to the outrageous practice of hiding asylum-seekers and their living conditions in Hungarian facilities. Journalists should once again have the chance to gain first-hand knowledge by witnessing the lives of and talking to those at the heart of this matter: people seeking protection in Hungary.”
For further information:
- ECRE, Hungary: Government Extends the “State of Crisis due to Mass Migration”, September 2019
- AIDA, Hungary: New police department takes over responsibility for asylum, 19 June 2019
- ECRE, Hungarian Helsinki Committee Update Reveals Continued Violations in Transit Zones, April 2019
- AIDA, Country Report Hungary, 2018 Update, March 2019
- ECRE, Hungary Gives Afghan Families ‘an Offer You Can’t Refuse’, May 2019
- ECRE, Hungary: Constitutional Court fails to give sufficient protection to people and organisations working to protect the rights of asylum seekers, March 2019
- HHC/ECRE, Crossing a Red Line: How EU Countries Undermine the Right to Liberty by Expanding the Use of Detention of Asylum Seekers upon Entry, 8 February 2019
REPORTS & NGO ACTIONS
ECRE has published a Policy Note identifying key implementation priorities and recommendations for EU measures in order to make the Common European Asylum System function.
The stalemate in the negotiations on the reform of the Common European Asylum System (CEAS) over the past three years has demonstrated the inability of European Union (EU) Member States to find common ground on asylum policies. The persistent blockage in the Dublin IV and Asylum Procedures Regulation proposals in particular is caused by a proliferation of competing Member State interests with more divisions than in previous negotiations. Against that backdrop, withdrawal of the proposals is an increasingly likely move from the new European Commission.
ECRE maintains that the 2016 proposals tabled by the Commission constituted a worrying lowering of protection standards and were based on a flawed vision of outsourcing responsibility for refugees to regions outside Europe. ECRE therefore supports withdrawal of most of the proposals. The focus needs to be compliance not reform, with two exceptions: First, while Dublin IV should be withdrawn, ultimately legislative reform of the Dublin system is needed. Second, a new legal base for EASO and its transformation into the EU Asylum Agency (EUAA) remains necessary.
Real reform of Dublin is needed for the EU to break away from the intrinsically unfair, unworkable, and expensive mechanism for allocating responsibility among Member States. In the short to medium term, however, the CEAS will continue to operate under the existing legislative framework, including the Dublin III Regulation (604/2013). The law in force should be read and implemented in compliance with refugee and human rights law in order for EU countries to develop functioning asylum systems and to avoid the risk of a perpetual state of political crisis on refugee protection. The Commission holds the institutional power and responsibility to support for promotion of compliance. In this Policy Note, ECRE suggests the actions need to refocus resources and attention on compliance, rather than unnecessary reform.
ECRE suggests concrete actions of monitoring compliance with the acquis, evaluation of legislation, guidance to support compliance, enforcement and infringement procedures, and outlines a set of immediate and mid-term recommendations to the European Commission:
(I) Withdraw the legislative proposal for a Dublin IV Regulation, the proposal for a recast Eurodac Regulation, the proposal for a recast Reception Conditions Directive, the proposal for a Qualification Regulation, and the proposal for an Asylum Procedures Regulation.
(II) Finalise and publish reports on the implementation of the recast Asylum Procedures Directive and the recast Reception Conditions Directive and reports on the application of the Dublin III Regulation and the recast Eurodac Regulation.
(III) Publish guidance on the suspension of transfers and assumption of responsibility for asylum applications pursuant to Articles 3(2) and 17(1) of the Dublin III Regulation where a country cannot guarantee that an applicant will be treated in line with the asylum acquis or is facing particular pressure. To ensure compliance with human rights, guidance should include the circumstances under which Member States should obtain individual guarantees from their counterparts before performing a transfer, and the content of such guarantees.
(IV) Re-orient action towards compliance with the CEAS, rather than legislative reform (with exceptions of Dublin, where a reform will ultimately be required, and the EUAA proposal). Invest sufficient resources in compliance.
Choose Respect: Together We Can Tackle Anti-Migrant Hate Speech. Hate speech against migrants and refugees is all too common, both online and in the real world. But it isn’t always easy to know how to react effectively – and it’s even harder to respond in a way which changes attitudes. In the run-up to elections, politics is a frequent topic of debate. But if the discussion turns nasty – either around the dinner table or on your social media feed – here are some tips to help you make a constructive contribution to a more positive discourse.
- 21-22 October 2019, Brussels, SHARE Network Conference: Expanding Resettlement across Europe: From Policy to Practice
- 23-24 October 2019, Brussels, ECRE Annual General Conference
- 24-25 October 2019, Brussels, International Conference: "Public opinion and forms of mobilization concerning asylum seekers and refugees in anti-immigrant times. Global challenges and local solutions", Université Libre de Bruxelles, ULiège, KU Leuven
- 24-25 October 2019, Helsinki, European Conference : From Tampere 20 to Tampere 2.0, Odysseus Network
- 28 October 2019, The Hague, Farewell Lecture Tineke Strike, T.M.C. Asser Institute
- 8-9 November 2019, Sevilla, Advanced ELENA Course on International protection in Europe: persistent challenges and litigation opportunities, ECRE, registration by 26 September 2019
- 26 November 2019, Sydney, Kaldor Centre Annual Conference 2019 Good decisions: Achieving fairness in refugee law, policy and practice, UNSW Sydney
CALLS FOR PAPERS & OPEN CALLS