Annex 1
Letter to the European Parliament
PROPOSAL FOR A REGULATION ESTABLISHING A
MECHANISM FOR THE CREATION OF RAPID BORDER INTERVENTION TEAMS
AND AMENDING COUNCIL REGULATION (EC) NO 2007/2004 AS REGARDS THAT
MECHANISM (COM (2006) 401 FINAL)
The Standing Committee of experts on international
immigration, refugees and criminal law ("the Standing Committee")
has a number of concerns regarding the proposal for a regulation
establishing Rapid Border Intervention Teams. While the Standing
Committee agrees with the Commission that guarding the EU's external
borders is a common responsibility for the EU Member States, the
Committee is worried about current practices employed by a number
of Member States regarding pre-border checks and the processing
of illegal immigrants intercepted at sea. These practices include
the categorical refusal of entry into EU territory of third country
nationals, without granting access to a determination procedure
or the possibility to lodge an appeal against the refusal of entry.
As outlined in attached Comment, such practices run counter to
international law and principles of Community law. The Standing
Committee is worried that the adoption of the proposed regulation
will result in EU mandated teams of border guards being engaged
in these practices. Therefore, amendment of the proposal is necessary,
as will be explained hereunder.
PRE-BORDER
CONTROL AND
SURVEILLANCE
The Standing Committee is of the opinion that
access to durable solutions for asylum seekers is a fundamental
principle of International Human Rights Law, Refugee Law and Community
Law and that this principle should be adhered to in legislation
relating to external border controls of the EU. The present proposal
provides for an extremely speedy decision-making procedure with
regard to the deployment of Rapid Border Intervention Teams, without
prior approval for individual operations by either the European
Parliament or Member States who make border guards available to
the teams. While the management of external borders has been proclaimed
a common Union activity as a principal means to prevent illegal
immigration and human trafficking, which should, according to
the Council, include the "stepping up of pre-border checks
and joint processing of illegal immigrants intercepted at sea",
at present there is no Community framework laying down individual
rights of migrants subject to these policies, since the instrument
of pre-border controls falls outside the scope of the Schengen
border code (EC Regulation 562/2006) which entered into force
on 13 October 2006.
The risk of EU mandated teams of border guards
being engaged in practices of pre-border controls which run counter
to international and Community law is not mere academic, as evidenced
by the current border guard operation coordinated by the EU external
border guard agency Frontex under the header of operation Hera-II.
In this operation, in accordance with agreements concluded between
Spain and Mauritania, Senegal and the Cape Verde, border guards
from various Member States patrol the territorial waters of these
West-African countries in order to intercept illegal migrants
and send them back to shore without any form of screening procedure.
Only if the vessels are intercepted outside the 24-miles zone,
are the migrants being escorted to the Canary Islands and allowed
to lodge a claim for asylum. Currently, talks are under way between
the European Commission, Italy and Libya, in order to set up a
similar operation off the coast of Libya.
AMENDMENT OF
PROPOSAL
The Standing Committee is deeply concerned about
the proliferation of practices of pre-border controls and the
supporting role played by the EU in this regard without the existence
of a set of Community rules applicable to these controls. The
Standing Committee considers amendment of the current proposal
necessary, in order to explicitly guarantee that teams of EU border
guards will not participate in border policies employed by individual
Member States which amount to categorically refusing entry to
third country nationals without allowing them to lodge a claim
for asylum or an appeal against the refusal of entry.
This amendment should preferably take the form
of insertion of an additional subsection in Article 6 of the proposal:
5. When the tasks referred to in Articles
7 and 8 are carried out in operations of pre-border control and
surveillance, guest officers and members of the teams shall comply
with provisions applicable to regular external border controls,
in particular special provisions on refusal of entry and the right
of asylum. Guest officers and members of the teams shall under
all circumstances guarantee international protection in accordance
with the European Convention for the Protection of Human Rights
and Fundamental Freedoms and the Geneva Convention relating to
the Status of Refugees.
Additionally, the European Parliament could
consider inserting a provision explicitly requiring prior approval
for an individual operation agreed upon by Frontex and the host
Member State by the European Parliament and/or the home Member
State of guest officers.
COMMUNITY FRAMEWORK
REGARDING PRE-BORDER
CONTROLS
Moreover, the Standing Committee would highly
recommend the drafting of new EC legislation, and/or amendment
of the Schengen border code in order to lay down the conditions
under which the instrument of pre-border controls may be used
by Member States. These conditions should prevent Member States
from using the instrument of pre-border controls to circumvent
obligations applicable to regular border controls and include
the guaranteeing of access to a determination procedure in accordance
with provisions as laid down in the Common European Asylum System
and legal safeguards as already applicable to persons who are
refused entry at the EU's external borders (see especially Article
13 Schengen border code).
The Standing Committee is prepared to provide
you with further information on this subject.
24 October 2006
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