House of Lords - European Union

Select Committee on European Union Written Evidence

Memorandum by Immigration Advisory Service

INTRODUCTION

The Immigration Advisory Service (IAS) is the UK's largest charity providing representation and advice in immigration and asylum law. We are independent from the Government. Our asylum and immigration advice is provided confidentially.

The IAS' main role is that of providing community legal advice and representation to immigrants and asylum seekers. Many of the clients we represent have had to pass through borders in very difficult circumstances, and our legal staff hear the detailed accounts of these clients. While there is an understandable concern about the numbers involved in what is termed illegal or irregular migration, we would wish to emphasise the importance of looking after the interests and safety of the migrants involved with due understanding to the serious problems many of them face. These concerns should not be overlooked by focusing on enforcing a strict regime of immigration controls and restrictions (in some instances arguably effectively criminalising the seeking of refuge by rigorous entry and application procedures). Adequate resources and access to proper advice and representation (independent from government) are a vital part of safeguarding the rights of vulnerable migrants, many of whom are refugees.

The IAS is a member of the European Council on Refugees and Exiles (ECRE) and fully supports their position in collaboration with the Refugee Council.

The Sub-Committee F (Home Affairs) of the House of Lords Select Committee on the European Union inquiry into Frontex, the European Agency for the Management of Operational Cooperation at the External Borders of the EU Member States, is welcomed by the IAS; and it is hoped that our comments are duly considered.

The Sub-Committee has invited comments on a variety of aspects of Frontex, but IAS would particularly like to comment on the following issues:

— whether the institutional and legal framework ensures adequate accountability of Frontex activities;

— the legal framework for border guards' exercise of control and surveillance powers in the course of Frontex operations;

— whether and how international obligations with regard to search and rescue at sea affect the Agency;

— whether it is practical to retain a distinction at operational level between preventing irregular immigration and preventing crime;

— the number and nature of working agreements Frontex has in place with Member States, third countries, EU agencies and international bodies; and

— how the Agency's role should develop in the future.

Whether the institutional and legal framework ensures adequate accountability of Frontex activities

While it is advancing in the preparation of a legal framework to establish a Common European Asylum System within its Member States,[1] the European Union (EU) is making it increasingly difficult for refugees and people in need of protection against human rights abuses to access their basic human right to claim asylum,[2] particularly through the use of agencies such as Frontex.

There is uncertainty as regards the legal framework and mechanisms for holding Frontex accountable—politically and legally—for breaches of International, European, and Human Rights law that might occur during the operations that it coordinates.

The fundamental principle of non-refoulement,[3] obliges Member States to grant individuals seeking international protection access to the territory and to a fair and efficient asylum procedure. Compliance with this principle would be difficult in the course of current Frontex operations, given that targets are set around the number of people kept out of Europe's borders, and insufficient opportunity is given to migrants to have their protection issues addressed.

The Schengen Borders Code[4] states that refugees are exempt from the usual border control requirements, and must be served with a decision if they are still refused entry, against which there is a right of appeal. It is also stated that human dignity should be respected at all times. The asylum procedure directive[5] obliges Member States to guarantee access to the asylum procedure for those who arrive at the borders of its territories. Frontex operations span beyond these borders, but as an agency of the Member States, the jurisdiction of these States should still be respected.

There is also no doubt that the obligations stemming from the European Convention on Human Rights (ECHR) and the jurisdiction of the European Court of Human Rights (ECtHR) cover areas where, outside its territory, a State party exercises jurisdiction.[6]

The legal framework for border guards' exercise of control and surveillance powers in the course of Frontex operations

There is evidently concern about the legal framework that holds Frontex accountable for its actions. On the ground (or in the sea) these actions relate to the border guards' exercise of control and the surveillance powers used in the course of Frontex operations.

Frontex surveillance operations can take place in various territories:

— in the territory of an African country;

— in the territorial waters of an African country;

— in international waters; and

— in the territorial waters of a Member State.

HERA II was a joint sea surveillance operation, including vessels and aircraft, aimed at enhancing the control of the area between the West African coast and the Canary Islands. For the first time an operation was carried out in the territorial waters of Senegal and Mauritania, in close cooperation with their authorities. The 2006 Frontex Annual report does not provide any further details as to the legal basis for conducting an operation in third countries' territorial waters nor the exact role played by their authorities.

Although required by International, European and Human Rights law to address the issue of differing migrant flows, including refugees and people fleeing human rights abuses as well as economic migrants, there seems to be a blatant disregard for the former in this reporting.

Further incidents of heavy handed border control recorded mainly in the media include the following:

— In July 2006, three people were shot and killed in Melilla as they attempted to cross the fences into Europe. The details of the deaths on the border between Spain and Morocco have yet to be cleared up.

— Greece remains under suspicion of having thrown refugees into the sea in September 2006. At least six people died, according to statements by survivors, because officials of the Greek coastguard pushed around 40 people they picked up near the island of Chios back into the sea.

— At the EU's external eastern borders, virtually unnoticed by the public, Chechen refugees have been sent from Slovakia via Ukrainian internment camps back into the Russian Federation, the very state persecuting them.

It is concluded that interception operations like HERA II, which are conducted in the territorial waters of third country with a poor human rights record, risks exposing refugees and migrants equally to a risk of human rights violations. Similarly, such operations should not be performed where the third country does not have an asylum procedure in place of a standard equivalent to the procedures applied in Member States.

Whether and how international obligations with regard to search and rescue at sea affect the Agency

Under general international law, States have an obligation to render assistance to persons and ships in distress at sea wherever they encounter them in the course of navigation.[9] There also exists a SAR Convention[10] which obliges some Member States to coordinate search and rescue operations (including transport to a safe place[11]) of vessels in distress within a determined area along their coasts (the so-called SAR region).[12] However, the Frontex director Ilkka Laitinen has stressed that Frontex' role was to protect borders rather than to conduct search-and-rescue missions.

Earlier this month, 27 shipwrecked Africans said they had spent three days clinging to the tuna nets of a vessel in the Mediterranean while Malta and Libya argued over who should rescue them. The case prompted sharp criticism from Franco Frattini, the EU commissioner in charge of migration issues, who accused the tiny island nation of putting bureaucracy ahead of human life.[13]

Whether it is practical to retain a distinction at operational level between preventing irregular immigration and preventing crime

IAS believes that the issues of managing migration and fighting crime should be considered separately.

IAS' concern is that most refugees are forced to commit a crime by attempting to enter a safe country illegally in order to seek asylum there. The criminality of such acts also has negative impacts on their asylum claims where credibility is (in almost all claims considered) damaged as a result. The agencies of the European Union in relation to its border controls, of which Frontex is a main player, are forcing migrants and potential asylum seekers to enter Europe illegally and take greater risks in doing so.

We are also concerned that anti-smuggling and anti-trafficking instruments are applied by Frontex without taking account of the protection needs of migrants themselves. UN Protocols exist for both smuggling and trafficking[14] but they do not provide any guidance for dealing with refugees who are smuggled or victims of trafficking when they are intercepted before reaching a safe country. Nor do they provide for screening measures to determine if such persons may need international protection. IAS views human trafficking in terms of human rights violations as opposed to an immigration control issue,[15] and may well have valid asylum claim.

The number and nature of working agreements Frontex has in place with Member States, third countries, EU agencies and international bodies

IAS is concerned as to the number and nature of working agreement Frontex has in place, particularly those agreements with countries that do not subscribe to the ECHR or the Geneva Convention as they lack transparency and it is not clear whether or not they are even lawful.

In such cases, where the actual interception is carried out by African authorities (who are well paid for this "service" by Spain and the European Union), Frontex argues that the guarantees of internationally recognised border codes don't apply. It is submitted that these border controls are in conflict with the fundamental right that everyone shall be free to leave any country, including his own, as guaranteed by, among others, Article 12 of the International Covenant on Civil and Political Rights and Article 13 of the Universal Declaration of Human Rights.

In a cynical division of labour, non-EU countries like Libya, Morocco, Mauretania, Ukraine, Turkey, etc, are given the job of "bouncer" at the doors to "Fortress Europe". Morocco, for example: more than 400 sub-Saharan refugees and migrants were arrested between Christmas 2006 and the New Year and released on the Algerian border. There were cases of severe ill-treatment by Algerian and Moroccan security forces. Several women were raped during the police operation. A pregnant woman lost her baby. These violations of human rights form part of a chain of violence against people seeking protection in Morocco—whilst Europe remains silent and looks away.[16]

For example, the EU has intensified cooperation with Libya in recent months and is taking forward measures to reinforce Libya's border controls and to send Immigration Officers from EU member states to Libya to intercept irregular migrants and prevent them moving on to the EU. This cooperation is progressing despite the fact that Libya is not a signatory to the 1951 Convention, does not have an asylum law, and routinely violates and disregards its obligations towards refugees and asylum seekers, including by being responsible for refoulement.[17]

IAS believes that there is a pressing need for EU action to support third countries to meet their obligations towards refugees and asylum seekers, particularly where the EU and its Member States are supporting those countries to strengthen their borders and prevent onward movements to the EU.

The lack of transparency around Frontex' agreements, which are labelled as working arrangements or technical agreements, as well as the lack of democratic scrutiny of them, are not acceptable: all agreements, whether political or technical, which are liable to have an impact on the physical access to the EU for refugees and people in need of protection should be subjected to democratic oversight.

Whether there is, or should be, any involvement of, or assistance from, the military in Frontex operations

IAS strongly believes that there should be a reduced involvement of the military in Frontex operations as there already appears to be a degree of it in the spirit and management of the agency.

Frontex has received some highly controversial suggestions from a maritime squadron commander: Major Cauchi Inglott has written a paper suggesting radical measures for tackling the issue, such as confiscating fuel and turning boats back to Libya, which could be against international law.[18]

According to one media source there comes news, or rather accusation; that illegal immigrants have been put on board a Greek coastguard boat and thrown overboard in Turkish waters. Six—out of the 39—reportedly drowned in the incident. A private television station, NTV reports that the Turkish Foreign Ministry has expressed concern over the allegations, and the UNHCR representative in Ankara is said to be investigating.[19]

How the Agency's role should develop in the future

One gets the impression that the aim of the Common European Asylum Policy and in particular Frontex' operations, is not to protect refugees, but to protect Europe from refugees. The comments of Frontex Director Colonel Ilkka Laitinen "They aren't refugees, they're illegal migrants"[20] seems to epitomise the attitude of the current Frontex approach, and this attitude needs to be seriously addressed.

The EU has established the Frontex agency and implemented a plethora of border management measures. Such measures have not, however, been matched by efforts to identify and respond to the needs and entitlements of the proportion of irregular migrants who are refugees. Blunt instrument that do not distinguish between those fleeing persecution and irregular migrants seeking to enter a country for other purposes.

Of particular concern is the need to build within Accession States the capacity of NGOs (either existing or new) involved in providing legal advice and assistance and practical welfare help to asylum seekers and refugees. This is important not only so as to ensure that asylum seekers know their rights and are treated fairly by agencies such as Frontex but also are able to monitor whether such agencies are acting in conformity with human rights and other instruments. IAS is well positioned with its expertise to assist in this capacity building given appropriate funding and we hope that the Committee will advocate the strengthening of NGOs as we suggest.

CONCLUSIONS

— a more human rights based approach where refugees can be identified properly and given the opportunity to have their claims considered;

— a legal migration system into Europe to meet labour shortages and to take some of the pressure off EU borders; and

— NGO's strengthened and facilitated to operate in regions where EU funds may not reach.

There is much evidence that significant improvements are still required in relation to national asylum procedure, but in relation to this inquiry, of more pressing concern is the access to the EU for those in need of protection.

Miss Kathryn Warner

European Liaison Officer

6 September 2007

The Hague Programme Action Plan foresees the adoption of the proposal for the Common European Asylum System (CEAS) by 2010.