Annex 2
COMMENT ON 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)
1. INTRODUCTION
Although worded in terms of general applicability,
the proposal for a regulation establishing Rapid Border Intervention
Teams has clearly been prompted by the humanitarian crisis which
is currently going on along the West African migration route.
From January-September 2006 approximately 23.000 Africans have
reached the Spanish Canary Islands with an estimated number of
3.000 who have died during the journey. Back in 2003, the Civipol
research institute concluded that the West African migration route
became increasingly popular due to the increased deterrent effect
of improved surveillance mechanisms of the Spanish authorities
in the Strait of Gibraltar.[26]
The passage from Mauritania, the Cape Verde and Senegal towards
the Canary Islands is significantly longer and riskier. It can
be added here that a similar shift in migration routes has taken
place with regard to illegal migration from Libya towards Italy.
Increased surveillance of the Sicilian Channel has diverted illegal
migrants to the considerable longer passage through the Gulf of
Sirte.
The Standing Committee believes that guarding
the EU's external borders, as well as providing durable solutions
to asylum seekers, should be a common responsibility for the EU
Member States. At present, Mediterranean Member States (most notably
Italy, Spain, Malta, Greece and Cyprus) suffer a disproportionate
burden in taking in asylum seekers. Practices in these countries
show that individual Member States are insufficiently capable
of dealing with sudden influxes of large numbers of illegal migrants,
potentially leading to overcrowded reception facilities, rushed
determination procedures, collective expulsions and a lack of
judicial guarantees offered to asylum seekers.[27]
The Standing Committee therefore welcomes developments amounting
to a common approach, as long as they are undertaken within the
appropriate refugee protection and human rights framework.
The creation of Rapid Border Intervention teams
must be seen as supplemental to the creation, in 2004, of the
European Agency for the Management of Operational Cooperation
at the External Borders of the Member States of the European Union
(Frontex), by EC regulation 2007/2004. Frontex' main tasks exist
of coordinating Member State cooperation in the sphere of external
border controls and the supply of expertise and technical equipment
to individual Member States. The proposed regulation adds another
task to the Frontex mandate: the deployment of "Rapid Border
Intervention Teams to Member States requesting assistance when
faced with situations of particular pressure, especially the arrivals
at points of the external borders of large numbers of third country
nationals trying to enter illegally into the European Union."[28]
In summary, the rapid intervention teams consist
of a list of officers of national border guards whom Member States
put at the disposal of Frontex. They will be offered training
by Frontex and can be deployed "in circumstances requiring
increased technical and operational assistance at its external
borders" in the territory of a Member State at a temporary
basis. The tasks of the Rapid Border Intervention Teams consist
of both surveillance of external borders and the participation
in border checks. Art. 7 of the proposal lists the competences
relating to border checks, art. 8 lists the competences relating
to surveillance. Included in these competences are: (1) the check
of travel documents of persons crossing the border; (2) checking
that a person is not the object of alert for refusal of entry
in the Schengen Information System (SIS); (3) searching means
of transport and possessions of persons crossing the border and;
(4) preventing persons from illegally crossing external borders.
Art. 7 (3) stipulates that decisions to refuse entry shall be
taken by members of the teams only after consultation with, and
subject to the agreement of, a commanding officer of the border
guard of the host Member State. It is up to each Member State
to decide whether it wants to make officers available to the intervention
teams and, furthermore, the teams can only be employed in a Member
State at the latter's request.
The joint execution of external border controls
and the proliferation of EU activities in this field raises—at
least—two legal issues to which the Standing Committee would
like to draw attention. The first one is the question of State
responsibility for possible human rights violations emanating
from actions undertaken by members of multinational intervention
teams; the second one is the issue of pre-border checks and the
joint processing of illegal immigrants intercepted at sea.
2. LIABILITY
FOR CONDUCT
OF RAPID
BORDER INTERVENTION
TEAMS
According to the proposal, members of the Rapid
Border Intervention teams remain officers of the national border
guards of their Member States. They are allowed to wear their
own uniform and will be continued to be paid by their own State,
but must also wear a blue armband with the insignia of the European
Union. They shall perform activities as laid down in the operational
plan concluded between Frontex and the host Member State and fall
under the direct command of officers of the national border guard
of the host Member State. The members of the teams are bound to
comply with Community law and the national law of the host Member
State. Article 10 of the proposal holds that home Member States
are liable for any damages caused by their officers (civil
liability), although the host Member State shall compensate
this damage to the victims on behalf of the home Member State.
Art. 11 confers the criminal liability with respect to
offences committed against or by guest officers to the host Member
State. With regard to administrative liability, the proposal
envisages that appeals against decisions to refuse entry shall
be addressed to the authorities of the host Member State.
This approach serves the principle of effective
judicial protection and is in conformity with both the case law
of the European Court of Human Rights[29]
and the Articles on State Responsibility adopted by the International
Law Commission. Article 6 hereof holds that: "The conduct
of an organ placed at the disposal of a State by another State
shall be considered an act of the former State under international
law if the organ is acting in the exercise of elements of the
governmental authority of the State at whose disposal it is placed".
Since the proposed regulation envisages that guest officers will
operate under the direct command of the host Member State and
shall only take instructions from the host Member State, it is
appropriate to confer responsibility for actions of these guest
officers to the host Member State.
This does mean however, that, while wearing
the uniform of their own Member State and being continued to be
paid by the home Member State, the home Member State effectively
loses control over conduct undertaken by its border guards operating
abroad. Since the regulation stipulates that guest officers need
to comply with Community Law and the national law of the host
State, they are—a contrario—not bound to comply
with the national laws of their home State. Art. 4 (1) of the
proposal stipulates that members of the teams shall only
take instructions from the host Member State. This can result
in border guards practicing competences which they do not have
when active in their own State. This is potentially problematic,
especially when the host country conducts border policies which
run counter to principles adhered to in the home Member State.
In this regard, one cannot overlook current practices of pre-border
checks and the processing of illegal immigrants intercepted at
sea.
3. PRE-BORDER
CHECKS AND
THE (JOINT)
PROCESSING OF
ILLEGAL IMMIGRANTS
INTERCEPTED AT
SEA
At present, off the shores of Mauritania, Senegal
and the Cape Verde, Frontex is already coordinating a joint external
border operation under the header of operation Hera II—started
in May 2006. This operation takes the form of pre-border surveillance
and interception. In accordance with agreements made between Spain
and Mauritania, Senegal and the Cape Verde, patrol boats and planes
from Spain, Italy, Portugal and Finland patrol the continguous
zones of these West African countries (24 nautical miles) and
assist the local coast guard in intercepting illegal migrants
and sending them back to shore. Only if the vessels are intercepted
outside the 24-miles zone, are the boats being escorted to the
Canary Islands. Although the United Nations Convention on the
Law of the Sea normally does not authorize inspections outside
ones own territorial waters by a State other than the flag State,
the Convention makes an exception when the vessel has no nationality
or its nationality is in doubt, or when the flag State has consented
to the inspection (Article 110). The Hera II headquarters in Tenerife
has reported that the joint operation inside the continguous zones
of Mauritania, Senegal and the Cape Verde has resulted in approximately
1.250 people being returned to African shores in the period May-September
2006. 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. Already in July 2003, the Italian Ministry of
Interior issued a decree that enabled the Italian navy to intercept
ships carrying asylum seekers and migrants and, if possible, to
force the vessels back to the territorial waters of the countries
from which they came without consideration for identifying asylum
seekers.
The Programme of measures to combat illegal
immigration across the maritime borders of the European Union
adopted by the JHA Council in 2003 expressly calls for "International
cooperation between Member States, as well as between them and
non-member countries, which will in particular have to involve
stepping up `pre-border' checks and joint processing of illegal
immigrants intercepted at sea."[30]
Extraterritorial border enforcement activities of the EU and its
Member States raises refugee protection as well as broader human
rights concerns. The Standing Committee is particularly worried
about the practice of pre-border checks resulting in migrants
immediately send back to a third country without some form of
individual assessment, nor any possibility of access to a determination
procedure. Such a practice is, as will be underlined below, in
conflict with both international law and standards developed in
Community law.
Although the extra-territorial application of
the Refugee Convention is much disputed (eg US Supreme Court in
Sale, Acting Comr, Immigration and Naturalisation Service v
Haitian Centers Council Inc 509 US 155 (1993); Inter-American
Commission on Human Rights, Merits Report No 51/96, Case 10.675,
Haitian Boat People (United States of America), 13 March
1997; House of Lords, R. v. Immigration Officer at Prague Airport,
[2004] UKHL 55, 9 December 2004) and the Refugee Convention at
any rate seems to exclude persons from protection who are still
inside their country of origin, both the European Convention on
Human Rights and the International Covenant on Civil and Political
Rights do have extra-territorial effect. The ECtHR held in Loizidou
that " . . . the responsibility of Contracting Parties can
be involved because of acts of their authorities, whether performed
within or outside national boundaries, which produce effects outside
their own territory."[31]
In Issa, the ECtHR elaborated the reasoning behind the extra-territorial
application of the ECHR: "Accountability in such situations
stems from the fact that Article 1 of the Convention cannot be
interpreted so as to allow a State party to perpetrate violations
of the Convention on the territory of another State, which it
could not perpetrate on its own territory."[32]
In Xhavara and others v. Italy and Albania
(No 39473/98), the ECtHR considered a case of Albanian citizens
who were trying to enter Italy illegally when their boat sank
following a collision with an Italian warship whose crew was attempting
to board and search the vessel. The Italian operation took place
as a consequence of the wave of Albanian citizens immigrating
illegally into Italy, after which Italy decided to set up a naval
blockade and signed an agreement with Albania authorising the
Italian navy to board and search Albanian boats. Although the
ECtHR held that Italy did not act contrary to the right of a person
to leave one's country (art. 2(2) prot. 4), the ECtHR did rule
that the interception activities which extended to international
waters and to the territorial waters of Albania fell under Italian
jurisdiction and that Italy therefore, had to take "all the
necessary measures to avoid, in particular, drowning."
The extra-territorial application of the ECHR
and the ICCPR implies that, when dealing with illegal immigrants
at high seas, States must also comply with the principle of non-refoulement
as embedded in articles 2 and 3 of the ECHR and may not send back
immigrants without allowing those who make a credible showing
of political refugee status from access to a determination procedure.
In this respect, the current practice in West-African waters seems
to comply with international law: persons intercepted at the high
seas or in Spanish territorial waters are escorted to the territory
of Spain and allowed to make a claim for asylum.
With regard to the practice of intercepting
illegal migrants in the territorial waters of African countries
without allowing further passage towards the Canary Islands, the
following remarks can be made. The Refugee Convention seems to
exclude persons who are still inside their country of origin—albeit
in the territorial waters—from protection, since, according
to Article 1, a person can only fall under the refugee definition
when he is "outside the country of his nationality".
The UNHCR has interpreted this clause as "a general requirement
for refugee status that an applicant who has a nationality be
outside the country of his nationality. There are no exceptions
to this rule. International protection cannot come into play as
long as a person is within the territorial jurisdiction of his
home country."[33]
On these grounds, the House of Lords in a case concerning the
conduct of British immigration Officers operating at the airport
of Prague, whose main tasks consisted of not allowing Chech Roma
asylum seekers from boarding plains heading for the UK, ruled
that these asylum seekers could not invoke the Refugee Convention.
This reasoning, however, does not automatically
apply to the principle of non-refoulement as enshrined in the
ECHR and the ICCPR. Although this principle is commonly understood
as referring to the return, expulsion or extradition of persons
to a country where they face a real risk of suffering serious
harm, neither the ECHR nor the ICCPR explicitly makes a territorial
reservation analogous to the Refugee Convention. In fact, the
word "return" (or "refouler") is absent in
the relevant provisions in both the ICCPR and the ECHR. The ECtHR
has repeatedly stated that the absolute prohibition of torture
or inhuman or degrading treatment—which includes the prohibition
of refoulement—is an obligation which State parties have
to adhere to with regard to anyone who falls under their jurisdiction,
regardless of where this jurisdiction is asserted.[34]
This implies that the principle of non-exposure to prohibited
treatment is applicable to the handover of illegal migrants from
the jurisdiction of one State to the other, even if the handover
concerns an immigrant which has physically never left his country
of origin but who only temporarily has been brought under the
jurisdiction of a foreign State acting within his country of origin.
In these cases, the transferring State may not proceed with the
transfer without appropriate enquiry into the risk and seriousness
of the harm the claimant fears.[35]
In this regard, it must moreover be mentioned
that, contrary to the R. v. Immigration Officer at Prague Airport
case, not all immigrants intercepted within the continguous zones
of Mauritania, Senegal and the Cape Verde, hold the nationality
of these countries. The West African migration route is used by
persons coming from across the African continent and even beyond.
Late September it was reported that a ship of Asian asylum seekers,
mostly Pakistani, had managed to reach the Canary Islands. It
falls beyond dispute that these persons can invoke the Refugee
Convention and that, when asserting jurisdiction over these persons,
European countries are bound to adhere to the principle of non-refoulement.
Furthermore, the Standing Committee would like
to draw attention to Recommendations 1645 (2004) and 1737 (2006)
of the Parliamentary Assemblee of the Council of Europe, in which
the Committee of Ministers of the Council of Europe were invited
to call upon member states to:
(Recommendation 1645 (2004) Access to assistance
and protection for asylum-seekers at European seaports and coastal
areas)
a. ensure that those who wish to apply for
asylum at seaports and coastal areas are granted unimpeded access
to the asylum procedure, including through interpretation in their
language or, if this is not possible, in a language they understand,
and to free and independent legal advice;
b. ensure that every person seeking entry
at seaports or coastal areas be given the possibility of explaining
in full the reasons why he or she is trying to do so, in an individual
interview with the relevant authorities;
i. accept responsibility for processing asylum
applications of clandestine passengers when the first port of
call on the planned route of the ship is on their national territory;
j. in the context of their responsibilities
for immigration control, conduct sea patrolling operations in
such a way as to fully comply with the 1951 Geneva Convention
on the Status of Refugees and the 1950 European Convention on
Human Rights, by avoiding sending people back to countries where
they would be at risk of persecution or human rights violations;
(Recommendation 1737 (2006) (New trends and challenges
for Euro-Mediterranean migration policies)
8.3 comply to the letter with international
human rights protection conventions in all operations to prevent
or deal with illegal migration and, in particular:
8.3.1 guarantee the right to leave one's
country;
8.3.2 guarantee unimpeded access to asylum
procedures for people in need of international protection;
8.3.3 ensure that return measures are applied
in keeping with human rights standards and with due regard for
safety and dignity;
8.3.4 avoid returning irregular migrants
to countries where they would be at risk of persecution or human
rights violations;
8.3.5 avoid secondary migration movements
by sending back migrants to non-European countries, whose nationality
they do not have and by which they have merely transited;
8.3.6 examine and take account in all cases
of the root causes of these migration movements.
The Standing Committee would like to recall
that access to the asylum procedure is one of the cornerstones
of the Common European Asylum System as shaped by the asylum regulations
and directives adopted under title IV of the EC Treaty. Article
3 (1) of EC Regulation 343/2003 holds that "Member States
shall examine the application of any third country national who
applies at the border or in their territory to any one of them
for asylum". The Procedures Directive (2005/85/EC) obliges
Member States, with as controversial exception the "European
safe third countries concept", to allow for an individual
examination of asylum cases when employing either the safe country
of origin or the safe third country concept. These provisions
must be seen in the light of Article 18 of the Charter of Fundamental
Rights of the European Union which holds that Member States are
to "guarantee the right to asylum". Although this provision
cannot be read as obliging Member States to grant asylum themselves,
Member States must guarantee that durable solutions are available.[36]
The practice of refusing access without an individual
screening procedure or the possibility of a legal remedy against
such refusal also runs counter to the approach taken in the recently
revised Schengen border code (regulation EC No 562/2006), which,
with regard to the "Control of external borders and refusal
of entry" holds that:
"Persons refused entry shall have the right
to appeal. Appeals shall be conducted in accordance with national
law. A written indication of contact points able to provide information
on representatives competent to act on behalf of the third-country
national in accordance with national law shall also be given to
the third-country national (Article 13 (3))."
The Schengen border code furthermore stipulates
that all decisions of refusal of entry must be substantiated and
in written form (Article 13 (2)).
The Standing Committee is of the opinion that
the physical transfer of border controls towards the high seas
or the territories of third States may not be used as a means
to circumvent international obligations or norms laid down in
Community law with regard to border controls and asylum applications
lodged at the border or within EU Member States. The Standing
Committee regards the practice of pre-border checks and surveillance,
if amounting to categorically excluding groups of persons from
access to EU territory without an individual examination of asylum
claims or the possibility to lodge an appeal, as running counter
to (1) (the spirit of) the Refugee Convention (2) the ICCPR and
ECHR and (3) principles of Community law.
4. CONCLUSION
AND RECOMMENDATIONS
Although the Standing Committee welcomes increased
Member State cooperation in the sphere of external border controls,
the Committee notes that, at present, a clear Community framework
with regard to the practice of pre-border controls and surveillance
is non-existent. The Schengen border code narrowly defines the
EU's external borders as "the Member States' land borders,
including river and lake borders, sea borders and their airports,
river ports, sea ports and lake ports, provided that they are
not internal borders" (Article 2 (2)). The absence of explicit
provisions relating to the use of the instrument of pre-border
checks could lead to EU agencies and individual Member States
making use of this legal vacuum in Community law by engaging in
activities which run counter to International human rights law.
As a minimum, international human rights law applicable to the
instrument of pre-border controls should be defined in a Community
framework whenever the EU participates or condones Member State
participation in these controls.
The Standing Committee is worried that the setup
of Rapid Border Intervention Teams will lead to the participation
of border guards from across Europe in practices of pre-border
checks and surveillance, including the practice of sending back
potential refugees without a screening procedure. Therefore, either
(1) the proposed regulation should be amended or (2) new legislation
on EU level should be drafted which fully guarantees that in pre-border
situations potential refugees will never be denied access to a
determination procedure.
The draft proposal on Rapid Border Intervention
Teams does not contain a provision on express agreement granted
by the home Member State for the participation of its border guards
in an individual operation. The proposal provides an extremely
speedy decision-making procedure on the deployment of Rapid Border
Intervention Teams. Frontex has to decide on a request for deployment
by a Member State within five working days (Article 12 amending
Regulation 2007/2004 Article 8 f (2)). If Frontex decides to authorize
deployment, it has to draw up an operational plan together with
the requesting State immediately (amended Article 8 f (3)). The
Rapid Border Intervention team shall then be deployed no later
than five working days after the date of agreement of the operational
plan (amended Article 8 f (5)). The role of Member States whose
border guards are deployed in this decision-making procedure is
reduced to a minimum. Amended article 8 f (4) merely holds that
"As soon as the operational plan has been agreed, the Executive
Director [of Frontex] shall inform the Member States whose border
guard officers are to be deployed." With regard to the composition
of the teams, Frontex will take into account both the relevant
professional experience of the officers (in particular the knowledge
of languages) together with the circumstances the requesting Member
State is facing (amended Article 8 b), without any provision referring
to consultation or preferences of home Member States. This means
that, after the provision of a list of available officers for
joint operations to Frontex, participating member States effectively
lose control over the actual deployment of their officers and
the conditions under which they will operate.
The Standing Committee therefore recommends:
1. The drafting of EU legislation concerning
the use of the instrument of pre-border controls which guarantees
that the use of that instrument should not circumvent existing
obligations emanating from human rights treaties and Community
law. Access to durable solutions for asylum seekers must under
all circumstances be guaranteed. This legislation can also take
the form of amendment of regulation 562/2006 (Schengen Borders
Code) by inserting a chapter on "pre-border controls and
surveillance".
2. As long as legislation mentioned under
(1) does not exist, the current proposal on the establishment
of Rapid Border Intervention Teams should be amended by way of
insertion of a provision ensuring that access to durable solutions
for asylum seekers is under all circumstances guaranteed and that
activities engaged in by Rapid Border Intervention Teams shall
never preclude access to a determination procedure.
3. Additionally, the insertion of a provision
in the current proposal requiring explicit approval prior to the
deployment of Rapid Border Intervention Teams in a Member State
by the European Parliament and/or the home Member State whose
officers will be deployed in another Member State.
As a final note, the Standing Committee would
like to underline that although border patrols in itself can be
useful instruments in the fight against illegal migration, they
do not take away root causes for illegal migration and—as
long as these root causes exist—can realistically not be
expected to prevent the ongoing influx of illegal migrants into
the EU. Answers must be found in an integral approach, encompassing
issues of prevention, conditions for granting asylum, effective
return policies and the fight against human trafficking. In this
regard, not only further harmonization and coordination of policies
in the area of Justice and Home Affairs, but also an intensification
of cooperation with third countries is desirable; within the human
rights framework as provided by inter alia the European
Convention on Human Rights and the 1951 Refugee Convention.
24 October 2006
26 "Feasibility study on the control of the European
Union's maritime borders" by Civipol Conseil to the European
Commision, Doc. 11490/1/03, Rev. 1, FRONT 102, COMIX 458, 19 September
2003, at p. 15. Back
27
See eg Human Rights Watch report "Stemming the Flow: Abuses
Against Migrants, Asylum Seekers and Refugees", vol. 18,
no. 5(E), September 2006; Commissioner for Human Rights of the
Council of Europe, Country Report Italy, CommDH(2005)9, pp. 37-44. Back
28
Art. 12 (1) draft proposal. Back
29
Eg ECtHR 26 June 1992, Drozd and Janousek v. France and Spain
(Appl. 12747/87), ECtHR 14 July 1977, X and Y v. Switzerland
(joined appl. 7289/75 and 7349/76), DR 9, p. 57. Back
30
Doc. 13791/03, FRONT 146, COMIX 631, 21.10.2003), para. 26. Back
31
ECtHR 23 March 1995, Case 15318/89 (Loizidou v. Turkey),
par. 62. Back
32
ECtHR 16 November 2004, Case 31821/96 (Issa and Others v. Turkey),
par. 71. See with regard to the extra-territorial application
of the ICCPR eg HRC 29 July 1981, Case CCPR/C/13/D/52/1979 (Lopez
Burgos v. Urugay), par. 12.3. and HRC 29 July 1981,Case CCPR/C/13/D/56/1979,
(Celiberti de Casariego v. Uruguay), par. 10.3. Back
33
UNHCR Handbook on Procedures and Criteria for Determining Refugee
Status (1992). Back
34
Eg ECtHR 7 July 1989, case 14038/88 (Soering v. United Kingdom),
par. 88. Back
35
See also E Lauterpacht and D Betlehem, "The scope and content
of the principle of non-refoulement", in: Feller, Turk
and Nicholson (eds.), Refugee Protection in International Law,
Cambridge, 2003, at. para 67. Back
36
see also H. Battjes, European Asylum Law and International
Law, Leiden: Brill Publishers, 2006 at p. 114. Back
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