Disembarkation
107. We heard about the difficulties facing Member
States in the policing of their maritime external borders, especially
in relation to the practical management of rescue operations and
the disembarkation of intercepted persons. Under the current UN
Guidelines, the Government responsible for the Search and Rescue
(SAR) region in which survivors are recovered is responsible for
providing a place of safety or ensuring that a place of safety
is provided. This is a place where the survivor's life or safety
is no longer threatened, where basic human needs (food, shelter
and medical) can be met, and where arrangements can be made for
transport to the next or final destination.[53]
These Guidelines are useful, but the issue is highly complex.
"All Member States are subject to the same international
legal framework but it is certainly true that differences in practical
application and interpretation of that framework can be different
from one country to another and those differences may have an
impact on the effectiveness of operations, particularly when vessels
from different Member States are acting within the framework of
the same operation."[54]
108. Assessments as to whether a migrant will
be safe in a particular country (like Libya) may vary. The Guidelines
leave unanswered the question of what is to be done when attempts
are made to disembark in one state persons rescued outside the
SAR region of that state. In the case of the Royal Navy, "if
there was a scenario where a rescue was required the way that
we would interpret the law of the sea would be to discharge the
individuals who were rescued at the nearest port. That would typically
be a port in the Mediterranean."[55]
109. Immigrants who reach the Canaries or Lampedusa,
or their SAR regions, become the responsibility of, respectively,
Spain and Italy. Given the numbers involved this causes those
countries considerable problems, but these are insignificant compared
to the problems faced by Malta: we have already explained in paragraph
38 how, on the basis of the size of the country, one immigrant
in Malta equates to nearly a thousand immigrants in Italy. For
this reason Malta will generally not accept the disembarkation
in Malta of persons recovered outside the Maltese SAR region unless
there are overriding humanitarian considerations. It is this which
has led to very unfavourable media coverage in a number of cases.[56]
110. The first rule must plainly be that nothing
should be done to endanger life at sea. But subject to this, the
present situation cannot be allowed to continue. It seems to us
that there are four questions to which the Member States must
find an answer:
- guidelines on disembarkation for
Frontex operations;
- financial support to share the disproportionate
burden falling on Malta;
- a sharing of the burden posed by the immigrants
themselves; and
- consideration of possible changes to the rules
on asylum.
111. Until now, as Major Mallia told us, the
question of guidance regarding disembarkation has been handled
on an ad hoc basis. For a particular joint Frontex operation the
participating countries discuss the operational plan which, among
other things, will address this issue of disembarkation, and a
practical solution will be agreed. But it will be a working arrangement
for that particular operation, and not based on principle (Q 397).
Nor, as M .Gérard Deprez MEP said, should it be the
responsibility of the Master of the vessel which rescues persons
to decide where they should be disembarked (Q 92).
112. It should not be the responsibility of
those planning individual Frontex operations to decide the rules
on disembarkation for those operations. Rules must be formulated
which will apply to all Frontex maritime operations. This question
must be addressed by the working group developing general guidelines
about the law of the sea as it relates to EU States and illegal
migration.
113. Malta is already receiving financial assistance
from EU funds. Mr Byrne told us that financial burden sharing
was important (Q 484). We agree, but we believe that a
fairer method must be found of calculating and granting financial
assistance to those states which bear a disproportionate share
of the burden of illegal immigration.
114. More important than the financial burden
is the burden of the immigrants themselves: their temporary presence
if they are to be refused entry and returned to their country
of origin, or their permanent presence if they are granted asylum.
115. Mr Byrne's view was: "The way
we interpret burden sharing is that we do not think we should
be moving people around. We think that would create an enormous
pull factor that would compound the problem rather than solve
it" (Q 484). Major Mallia, while welcoming offers for
the resettlement of refugees by other countries, such as the Netherlands
and the United States, also warned that there was a danger that
this might start "to generate a pull factor" (Q 384).
116. Article 63(2)(b) of the TEC already requires
the Council to adopt measures "promoting a balance of effort
between Member States in receiving and bearing the consequences
of receiving refugees and displaced persons". This provision
would be amended by the Treaty of Lisbon so that Article 80[57]
of the Treaty on the Functioning of the European Union would read:
"The policies of the Union set out in this
Chapter [i.e. the Chapter on Policies on Border Checks, Asylum
and Immigration] and their implementation shall be governed by
the principle of solidarity and fair sharing of responsibility,
including its financial implications, between Member States. Whenever
necessary, the acts of the Union adopted pursuant to this Chapter
shall contain appropriate measures to give effect to this principle."
We do not think the Member States need wait until
1 January 2009, when it is planned that this provision will come
into force, before giving effect to its principles.
117. The movement of immigrants cannot be divorced
from the processing of asylum claims. The Regulation known as
Dublin II[58] governs
which state should be responsible for the processing of an asylum
application lodged in one of the Member States by a third country
national. Generally speaking, the state in which a person first
arrives is the state with jurisdiction to decide the asylum application.
But this rule does throw the main burden on the border States,
and again the burden on Malta is disproportionate; Major Mallia's
view was that it should not necessarily be the State of disembarkation
which would have exclusive jurisdiction to determine any subsequent
asylum claim, particularly where interception of migrants occurred
outside that State's SAR region (Q 384).
118. Ms Patricia Coelho, speaking on behalf of
the European Council on Refugees and Exiles (ECRE), told us: "…
the EU has a role to play in brokering some agreements between
EU states in terms of responsibility sharing ... we would go along
the lines of reforming the Dublin II regulation ..." (Q 420).
Both the ECRE and the UNHCR are on record as wishing to see Dublin
II reformed for other reasons as well.
119. It is possible that some flexibility in
Dublin II would be beneficial. However any examination of this
is a wide topic with profound political implications. It is a
matter only peripheral to Frontex, and hence to our inquiry. But
we believe that the fairness and effectiveness of the Dublin
II system is something which must be addressed in the second stage
of the work on a Common European Asylum System.
Operational cooperation by the
United Kingdom
120. Article 12 of the Regulation, entitled "Cooperation
with Ireland and the United Kingdom", provides:
"The Agency shall facilitate operational
cooperation of the Member States with Ireland and the United Kingdom
in matters covered by its activities and to the extent required
for the fulfilment of its tasks set out in Article 2(1)."
121. It is on the basis of this provision that
the United Kingdom has participated very fully in a number of
operations, as is clear from Appendix 4. The United Kingdom has
no right to participate; in the case of each operation, participation
has to be decided by the Management Board. This is done by written
procedure, but is nevertheless cumbersome. General Laitinen's
summary was that the United Kingdom was "very active in participating
in joint operations" (Q 232).
122. These operations include two which (with
others) the United Kingdom hosted. Operation Torino involved a
number of experts stationed at airports around Europe advising
on documents in connection with the Winter Olympics in Turin in
February 2006; one of these was an Italian border guard stationed
at Heathrow who advised on Italian documents and visas, specifically
those in relation to the Olympics. Operation Agelaus, in February
2007, was prompted by a United Kingdom officer stationed full-time
in Frontex. It dealt with unaccompanied minors illegally entering
the Member States, and involved the collection of information
at a number of airports including Heathrow, Gatwick and Manchester.[59]
Nevertheless the legal position remains that Frontex operations
cannot take place on United Kingdom territory; those operations
that do take place here can be planned, organised and executed
in parallel with the respective Frontex operations, but they have
to be construed as separate United Kingdom operations.[60]
123. The United Kingdom has also participated
in three Border Management Conferences aimed at promoting third
country cooperation, and also in pilot projects, and has been
"very, very active" on the return operations side, compiling
best practices and training border guards handling returns (Q 232).
124. The United Kingdom has a seat on the Management
Board, but only with observer status. However Mr Dowdall,
the United Kingdom representative, explained that the only decisions
which, up to October 2007, had been decided by vote were the appointment
of the Executive Director and the Chairman of the Board itself.
United Kingdom operations were well respected; the United Kingdom
view was sought and listened to, and influenced the decisions
taken by the Board (Q 144). The United Kingdom participates
fully in the preparations for operations, and General Laitinen
thought that "in terms of risk analysis and also the joint
operations, we do not see any difference between our UK colleagues
and the others" (Q 222). However the United Kingdom
is involved in funding Frontex only in respect of its share of
the cost of those operations in which it participates; in 2006
this amounted to €0.2m, equivalent to just 1.2 % of the budget
of Frontex.
125. The United Kingdom has great experience
of controlling sea and air borders, and recent experience of controlling
the land border with the Irish Republic. This country has much
to offer Frontex and the Schengen States. We hope that the Government
will share their experience with them, and that they will make
full use of it.
126. Improved coordination of border management
of the Schengen States will be of direct benefit to the United
Kingdom. The Government should make clear to the other Member
States that they wish to play as full a part as possible in operations,
and should commit resources to them for this purpose. The Management
Board should not just allow, but should encourage, United Kingdom
participation.
46 Byrne supplementary evidence, p 149. Back
47
Commission Communication of 13 February 2008: Report on the evaluation
and future development of the FRONTEX Agency, doc. 6664/08, COM(2008)67
final, paragraph 9 and ADD 3. Back
48
Home Office written evidence, p 34, and further information supplied
subsequently. Back
49
Ibid. Back
50
Home Office supplementary evidence, p 148. Back
51
Ibid. Back
52
Frontex Press Kit, volume 2/11, issue 1. Back
53
Extracted from the UN Guidelines on the Treatment of Persons Rescued
at Sea, adopted by the Maritime Safety Committee by Resolution
MSC.167(78) in May 2004. Back
54
Faull Q 50. Back
55
Byrne Q 480. Back
56
Mallia Q 389. Back
57
This is Article 63b in the Treaty of Lisbon, but will be Article
80 in the numbering in the consolidated text. Back
58
Council Regulation (EC) 343/2003 of 18 February 2003. Council
Regulation (EC) 343/2003 of 18 February 2003 establishing
the criteria and mechanisms for determining the Member State responsible
for examining an asylum application lodged in one of the Member
States by a third-country national (OJ 2003 L 50/1) Back
59
Dowdall Q 172. Back
60
Supplementary written evidence from Frontex, p 68. Back
