Italian Interior Minister Angelino Alfano reported that 24,277 migrants have landed in Italy from 1 August 2012 to 10 August 2013. 8,932 persons have landed in the past 40 days – 1st July until 10th August 2013.
Tag Archives: Maritime migration
A migrant boat attempting to sail from Turkey to Greece reportedly capsized near the Greek island of Lesvos on Thursday or Friday. The boat was carrying about 28 persons. At least 20 bodies have been recovered. Only one survivor has been located. Media reports describe the migrants as Iraqis or “of Asian origin.” The boat’s captain was reportedly Turkish.
On 10 October Frontex released its FRAN (Frontex Risk Assessment Network) Quarterly Report for the Second Quarter of 2012 (April-June). As is always the case, the 70 page report contains a significant amount of information, graphs, and statistical tables regarding detections of illegal border crossings (land, air, and sea), irregular migration routes, detections of facilitators, detections of illegal stays, refusals of entry, asylum claims, returns, information regarding other illegal border activities, and more. Here are some highlights (focusing on the sea borders):
Malta- There was a significant increase in the number of Somalis reaching Malta. “Taking into account the professional planning of the trips, it is assumed that the modus operandi has changed and that Malta is now targeted on purpose, thereby replacing Italy as the preferred destination country for this nationality. The reason for this change has not yet been confirmed; however, in the past Malta resettled some Somali migrants in the United States and in some EU Member States, which might be acting as a pull factor.”
Spain- “In this region there was a new modus operandi involving facilitators dropping off migrants in the Chafarinas Islands, a Spanish archipelago 2 nautical miles away from the Moroccan coastline.”
“As reported in the previous FRAN Quarterly, in February 2012 Moroccan and Spanish Ministers of Interior signed a police agreement to create two joint police stations in the Spanish (Algeciras) and Moroccan (Tangiers) territories to cooperate by exchanging operational information and best practices between different police services.”
Italy- “Throughout the quarter, Italy and Tunisia cooperated efficiently to repatriate Tunisian nationals and so most migrants typically arrived undocumented to delay readmission.”
Central Mediterranean- “[D]etections in the Central Mediterranean showed a seasonal increase but were much reduced (-86%) compared with the dramatic peak during the same period in 2011. Indeed, in the second quarter of 2012 detections in this region resembled the pre-Arab Spring levels reported during the summer of 2010. … The Central Mediterranean was recently affected by increased detections of Somalis, and a steady trend of Tunisians and Egyptians.”
“In Q2 2012, there were no Joint Operations running in the Central Mediterranean Sea, therefore Frontex and the FRAN community are unable to utilize intelligence obtained through the direct debriefing of migrants. However, valuable information has been obtained from interviews carried out by the Maltese authorities. Such preliminary interviews revealed that some of the Somali migrants arriving in Malta had been promised that they would be brought to Italy. They departed from an unknown location in Libya and travelled for up to three days in boats before either being intercepted by Maltese authorities or reaching the shore. The average fare was said to be around USD 1 000 per person.”
“Subsequent to the reporting period, JO Hermes 2012 was launched on 2 July and is currently planned to run until 31 October 2012 as a continuation of the deployment of JO Hermes Extension 2011, which ended just before the reporting period, on 31 March 2012. JO Hermes 2012 has been established to support the Italian authorities in tackling maritime irregular migration along the coasts of Sicily, Pantelleria and the Pelagic islands (Lampedusa, Linosa, Lampione).”
Western Mediterranean - “Detections in the Western Mediterranean were almost equally comparable to Q2 2011…”
“JO EPN Indalo 2012 started on 16 May and is currently scheduled to run until 31 October 2012. So far the number of irregular migrants apprehended in the operational areas is almost double that of the same period in 2011. Analysis of the information provided by the Spanish authorities also indicates a new increasing trend in the number of Algerian and Moroccan migrants per boat since the beginning of 2012.”
Western Africa – “[D]etections increased to a large degree, yet from lower bases, on the … Western African route (+29%).” “In the second quarter of 2012, there were just 31 detections of illegal border-crossing in this region, almost exclusively of Moroccan nationals.”
“As reported in previous FRAN Quarterlies, the Western African route from the north of Mauritania to the Western Sahara territory is being reopened by illegal migration facilitation networks. It has been inactive for years but recently an estimated 2 000 sub-Saharans (particularly from Senegal) settled in the Western Saharan coastal cities of El Aaioún and Dakhla and in the last few months ~20 000 Senegalese nationals have entered Mauritania along these routes to the north.”
“During the reporting period there was no Frontex operation relevant for the Western African Route.”
Eastern Mediterranean- “Subsequent to the reporting period (July 2012), JO EPN Aeneas 2012 was launched and is currently scheduled to run until the end of October 2012. There are two operational areas, Apulia and Calabria, covering the seashore along the Ionian Sea and part of the Adriatic Sea.”
Here are extensive excerpts from the Report with a focus on the sea borders:
Taken as a whole, in Q2 2012, detections of illegal border-crossing were reduced by nearly half compared to the same quarter in 2011 due to the simultaneous effects of the winding down of the Arab Spring and fewer Albanian circular migrants entering Greece. However, detections at the undisputed long-term hotspot for irregular migration – the Greek land border with Turkey – were some 25% higher than during the same period in 2011 due to increased detections of migrants from Bangladesh and particularly Syria. [***]
In the Central Mediterranean, where detections peaked in 2011 during the Arab Spring, migrants from Somalia were increasingly detected in Malta. Specifically, in May 2012 the arrival of Somali migrants in Malta increased significantly while Italy registered a decrease in the number of Somali migrants apprehended in Sicily and the Pelagic Islands. The detected Somalis were mainly young males many of whom had been imprisoned by police or military forces during their travels through Libya. Taking into account the professional planning of the trips, it is assumed that the modus operandi has changed and that Malta is now targeted on purpose, thereby replacing Italy as the preferred destination country for this nationality. The reason for this change has not yet been confirmed; however, in the past Malta resettled some Somali migrants in the United States and in some EU Member States, which might be acting as a pull factor. Also, there is some evidence that facilitation networks located in Malta have tried to forward migrants to Sicily. [***]
The Western Mediterranean route was apparently dominated by local migrants from Morocco and Algeria but with large numbers of unknown nationalities it is assumed that local migrants were also accompanied by long-distance migrants probably from sub-Saharan Africa. In this region there was a new modus operandi involving facilitators dropping off migrants in the Chafarinas Islands, a Spanish archipelago 2 nautical miles away from the Moroccan coastline. [***]
4.1 Detections of illegal border-crossing
Overall, in Q2 2012 there were 23 092 detections of illegal border-crossing at the EU level, which is a considerable if somewhat expected seasonal increase compared to the previous quarter, and a 44% decrease compared to the same period in 2011 amidst the influx of migrants during the Arab Spring. Taken as a whole, detections of illegal border-crossing in Q2 2012 were lower than in any other second quarter since FRAN reporting began. Most probably, the low number of detections was due to the overlapping effects of the end of the Arab Spring in its initial countries (Egypt, Libya, Tunisia) and far fewer detections of circular Albanian migrants in Greece. The vast majority of detections were at the EU external land border (77%). [***]
[***] Ranked third among border sections [after the Greece-Turkey land border and the Greece-Albania border section] in Q2 2012 was the blue border of Sicily, where Tunisians, Egyptians and Somalis were increasingly detected. [***]
Figure 2 shows the evolution of the FRAN Indicator 1A – detections of illegal border-crossing, and the proportion of detections between the land and sea borders of the EU per quarter since the beginning of 2008. The second quarter of each year is usually associated with improving weather conditions more favourable for approaching and illegally crossing the external border of the EU. Moreover, conditions that are more favourable for illegal border-crossing are also more favourable for detection. The combination of these two effects tends to produce the highest number of detections during the second quarter of each year. [***]
Without question, during the second quarter of 2012 the migrants that were detected with the most increasing frequency were those from Bangladesh (+35%), Somalia (+62%), Algeria (+88%) and Syria (+639%) (Fig. 5). In fact, more migrants from Syria were detected than ever before (2 024). Detections of most of these nationalities were concentrated at the Greek land border with Turkey, with the exception of Somalis, who were mostly detected in Malta. Indeed, Somalis were particularly notable in that their detections were distributed across a very wide range of locations; as well as Malta and the Greek land border with Turkey, they were also detected in Sicily, Lampedusa and the Slovakian land border with the Ukraine. [***]
[M]igrants from Algeria were not only increasingly detected at the Greek land bor[d]er with Turkey, but also in the Spanish maritime region of Almeria and at the Romanian land border with Serbia.The latter case is assumed to represent secondary movements through the Western Balkans region.
In 2011, detections of illegal border-crossing on the Central Mediterranean route peaked briefly during the period of turbulent sociopolitical developments in North Africa, known as the Arab Spring. In contrast, on the Eastern Mediterranean route, detections have followed a remarkably seasonal pattern over the last two years. Throughout 2011 detections in the Western Mediterranean (land and sea borders with Spain) steadily increased.
As illustrated in Figure 6, the Eastern and Central Mediterranean routes reported the most detections of illegal border-crossing in the second quarter of 2012, and were characterized with seasonal increases consistent with previous years, aside the Central Mediterranean region during the Arab Spring.
In Q2 2012, there were 14 125 detections of illegal border-crossing on the Eastern Mediterranean route, an increase of 27% compared to the same period in 2011 (Fig. 6) rendering this region the undisputed hotspot for illegal entries to the EU during the current reporting period. Elsewhere, detections in the Central Mediterranean showed a seasonal increase but were much reduced (-86%) compared with the dramatic peak during the same period in 2011. Indeed, in the second quarter of 2012 detections in this region resembled the pre-Arab Spring levels reported during the summer of 2010. Detections in the
Western Mediterranean were almost equally comparable to Q2 2011, whereas detections increased to a large degree, yet from lower bases, on the Eastern Borders route (+103%), Western Balkans route (+50%) and Western African route (+29%).
These routes not only differed in their magnitudes over time but also in the composition of detected nationalities. Consistent with previous periods, detections on the Eastern Mediterranean route were dominated by migrants from Afghanistan, and more recently Bangladesh, Algeria and Syria. The Central Mediterranean was recently affected by increased detections of Somalis, and a steady trend of Tunisians and Egyptians. [***]
[T]he Western Mediterranean route was apparently dominated by local migrants from Morocco and Algeria but with large numbers of unknown nationalities it is assumed that local migrants are also accompanied by other long-distance migrants probably from sub-Saharan Africa. The exception was the much less used Western African route, which was exclusively affected by local migrants from Morocco.
4.2.1. Eastern Mediterranean route
Since data collection began in early 2008, the Eastern Mediterranean has maintained its status as a major hotspot of irregular migration. Detections have followed a remarkably seasonal pattern invariably peaking in the third quarter of each year and concentrated at the border between Greece and Turkey, with a shift from the sea border to the land border visible in late 2009 (Fig. 7). Unusually, at the end of 2011 detections of illegal border- crossing on the Eastern Mediterranean rote remained almost constant between the third and final quarters of the year, resulting in the first recorded example of a sustained peak of detections at that time of year. This was due to an unexpected increase in detections at the Greek land border with Turkey, particularly in October. [***]
Italian Ionian Coast: For some time there has been a steady flow of Afghans and, to a lesser extent, Pakistanis arriving in the Southern Italian blue borders of Calabria and Apulia with some increases during Q2 2012.
Subsequent to the reporting period (July 2012), JO EPN Aeneas 2012 was launched and is currently scheduled to run until the end of October 2012. There are two operational areas, Apulia and Calabria, covering the seashore along the Ionian Sea and part of the Adriatic Sea.
According to Croatian open sources* in July, some 65 Asian and African migrants presumed to be heading to Italy were found drifting some 47 nautical miles south of Dubrovnik due to a broken engine (Fig. 12). They had been drifting for two days. The migrants, who had departed from Greece, did not want to be rescued by the Croatian authorities as they wanted to go to Italy. After several hours of negotiations, the authority for search and rescue towed the sailing boat to the nearest Croatian port.
There was also a recent increase in the numbers of Bangladeshis, Iraqis, Moroccans and Syrians arriving in Apulia from Greece but these detections were in much lower numbers than other nationalities. [***]
4.2.2. Central Mediterranean route
Irregular migration in the Central Mediterranean massively fluctuated in size and composition during 2011, largely due to the political and civil unrest across North Africa, particularly in Tunisia and Libya. Since Q4 2011, the situation has significantly improved following better cooperation between Italian and Tunisian authorities concerning the return of Tunisian nationals.
According to FRAN data, in Q2 2012 there were just 3 685 reported detections of illegal border-crossing on the Central Mediterranean route, a massive decrease compared to the peak in last year in Q2 2011 but an increase compared to late 2011 and early 2012. The increase was almost entirely due to more detections of migrants from Somalia (1 094) combined with a steady stream of migrants still arriving from Tunisia. Several nationalities previously detected in high numbers particularly in 2011 were not detected in significant numbers, including Bangladeshis (72) and Nigerians (19).
Migrants from Somalia – During May 2012, the arrival of Somali migrants in Malta increased significantly while
Italy registered a decrease in the number of Somali migrants apprehended in Sicily and the Pelagic Islands. In most cases, groups of males, females and minors (or families) were found on board rubber dinghies with outboard motors. A few of the boats were detected in Italian territorial waters in some distress after the migrants had called the Italian authorities for help using satellite telephones. The boats that recently headed for Malta were either intercepted by Maltese patrol boats or made it to the island without being intercepted.
Detected Somalis were mainly young males (aged 18–24) with secondary education and low or no income. The main reason for the migration was socio-economic, but in some cases it was military conflict. In Q2 2012, there were no Joint Operations running in the Central Mediterranean Sea, therefore Frontex and the FRAN community are unable to utilize intelligence obtained through the direct debriefing of migrants. However, valuable information has been obtained from interviews carried out by the Maltese authorities. Such preliminary interviews revealed that some of the Somali migrants arriving in Malta had been promised that they would be brought to Italy. They departed from an unknown location in Libya and travelled for up to three days in boats before either being intercepted by Maltese authorities or reaching the shore. The average fare was said to be around USD 1 000 per person.
Migrants from Tunisia – Most Tunisian migrants detected arriving in the Central Mediterranean Region were young (18–35 years) unmarried males with a primary level of education and low previous incomes (EUR 80–180 per month). All interviewed migrants declared to have relatives or friends already in the EU, especially in Italy, and they arrived on boats containing on average 20 migrants (Fig. 13).
Throughout the quarter, Italy and Tunisia cooperated efficiently to repatriate Tunisian nationals and so most migrants typically arrived undocumented to delay readmission. Subsequent to the reporting period, JO Hermes 2012 was launched on 2 July and is currently planned to run until 31 October 2012 as a continuation of the deployment of JO Hermes Extension 2011, which ended just before the reporting period, on 31 March 2012. JO Hermes 2012 has been established to support the Italian authorities in tackling maritime irregular migration along the coasts of Sicily, Pantelleria and the Pelagic islands (Lampedusa, Linosa, Lampione).
4.2.3. Western Mediterranean route
Irregular migration in the Western Mediterranean region increased throughout 2011 from just 890 detections in Q1 2011 to 3 568 detections in Q3. In Q2 2012, there were 1 549 detections which almost exactly corresponds to the number of detections the year before in Q2 2011 (1 569). As was the case a year ago, most detections were of Algerians followed by migrants of unknown nationalities (presumed to be sub-Saharan Africans) and Moroccans.
Recently, the size of the sub-Saharan population coming from Algeria has increased in different settlements adjacent to the Melilla border fence. Criminal networks operate more easily in this north eastern region of Morocco and the Spanish authorities treat a large-scale illegal crossing of the fence to the Spanish side as a real possibility. Attempts to cross have been made in the past involving groups of dozens or even hundreds.
JO EPN Indalo 2012 started on 16 May and is currently scheduled to run until 31 October 2012. So far the number of irregular migrants apprehended in the operational areas is almost double that of the same period in 2011. Analysis of the information provided by the Spanish authorities also indicates a new increasing trend in the number of Algerian and Moroccan migrants per boat since the beginning of 2012. The improvement of the weather and sea conditions during the reporting period impacted on the number of boats detected, with a gradual increase of the number of arrivals during the peak period, which according to data from the last two years is from May to October.
Migrants from Algeria – According to information gathered during interviews, most Algerians were single male adults aged 19–36 on average, but there were also a few females and minors in good health. Most migrants belonged to the lower middle class and, despite having a high level of education compared to sub-Saharan nationals, they suffered from a generalised lack of opportunities, welfare and access to public health services. Nearly all the Algerian migrants spoke Arabic with a few French and English speakers, but all were undocumented to avoid repatriation after arriving in Spain. The majority had relatives or friends in EU Member States, mainly in France and Spain, who could help them to find a job and settle within the ethnic communities already established in these countries.
4.2.4. Western African route
In the second quarter of 2012, there were just 31 detections of illegal border-crossing in this region, almost exclusively of Moroccan nationals.
As reported in the previous FRAN Quarterly*, in February 2012 Moroccan and Spanish Ministers of Interior signed a police agreement to create two joint police stations in the Spanish (Algeciras) and Moroccan (Tangiers) territories to cooperate by exchanging operational information and best practices between different police services. The goal of this cooperation is to strengthen the efforts and improve the results against organized crime operating on both sides of the Strait of Gibraltar involved in the smuggling of drugs, international terrorism, irregular migration and trafficking in human beings.
Following these developments, both International Police Cooperation Centres became operational during May 2012 (Fig. 14). The International Joint Police Stations are going to be integrated with National Police / Guardia Civil (Spain) and General Direction for National Security (Police) / Royal Gendarmerie (Morocco) staff for a rapid and effective exchange of information.
As reported in previous FRAN Quarterlies, the Western African route from the north of Mauritania to the Western Sahara territory is being reopened by illegal migration facilitation networks. It has been inactive for years but recently an estimated 2 000 sub-Saharans (particularly from Senegal) settled in the Western Saharan coastal cities of El Aaioún and Dakhla and in the last few months ~20 000 Senegalese nationals have entered Mauritania along these routes to the north.
During the reporting period there was no Frontex operation relevant for the Western African Route. [***]”
EU Court of Justice Annuls Frontex Sea Borders Rule – EU Parliamentary Approval Required (28.11.2012 update)
[UPDATE 28 November 2012: The European Commission intends to present a legislative proposal in early 2013 to replace the annulled Frontex sea border operations rule (Council Decision 2010/252/EU). See EC’s “Second biannual report on the functioning of the Schengen area” covering the period 1 May 2012-31 October 2012. (COM(2012) 686 final, 23.11.2012)]
The EU Court of Justice, Grand Chamber, issued a judgment on 5 September 2012 annulling Council Decision 2010/252/EU of 26 April 2010 supplementing the Schengen Borders Code as regards the surveillance of the sea external borders in the context of operational cooperation coordinated by [Frontex] (OJ 2010 L 111, p. 20), i.e. the Frontex Sea Borders Rule. ECJ Advocate General Paolo Mengozzi issued an Opinion on 17 April 2012 recommending that the Court annul the Rule.
The Court concluded that the provisions of the contested rule were not minor, non-essential provisions, but instead “constitute[d] a major [new] development in the [Schengen Borders Code] system” and which therefore required the consideration and approval of the European Parliament.
The Court stated that the Schengen Borders Code (“SBC”) as it currently stands “does not contain any rules concerning the measures which border guards are authorised to apply against persons or ships when they are apprehended….” The contested rule “lays down the measures which border guards may take against ships [authorising] ships to be stopped, boarded, searched and seized…” The contested rule “lays down rules on the disembarkation of the persons intercepted or rescued …stating that priority should be given to disembarkation in the third country from where the ship carrying the persons departed.”
The Court said the adoption of such rules conferring “enforcement powers on border guards …entails political choices falling within the responsibilities of the European Union legislature, in that it requires the conflicting interests at issue to be weighed up on the basis of a number of assessments. Depending on the political choices on the basis of which those rules are adopted, the powers of the border guards may vary significantly, and the exercise of those powers require authorisation, be an obligation or be prohibited, for example, in relation to applying enforcement measures, using force or conducting the persons apprehended to a specific location. In addition, where those powers concern the taking of measures against ships, their exercise is liable, depending on the scope of the powers, to interfere with the sovereign rights of third countries according to the flag flown by the ships concerned. Thus, the adoption of such rules constitutes a major development in the SBC system.”
The Court also noted that “the powers conferred in the contested [rule] mean that the fundamental rights of the persons concerned may be interfered with to such an extent that the involvement of the European Union legislature is required.”
For these reasons the Court decided that the “contested [rule] must be annulled in its entirety because it contains essential elements of the surveillance of the sea external borders of the Member States which go beyond the scope of the additional measures within the meaning of Article 12(5) of the SBC, and only the European Union legislature was entitled to adopt such a decision.”
The Court ordered “the effects of the contested [rule] [to] be maintained until the entry into force, within a reasonable time, of new rules intended to replace the contested decision annulled by the present judgment.”
Extensive Excerpts from Judgment:
THE COURT (Grand Chamber), composed of V. Skouris, President, A. Tizzano, J.N. Cunha Rodrigues, K. Lenaerts, J.-C. Bonichot and A. Prechal, Presidents of Chambers, R. Silva de Lapuerta, K. Schiemann, E. Juhász, G. Arestis, T. von Danwitz (Rapporteur), M. Berger and E. Jarašiūnas, Judges,
Advocate General: P. Mengozzi,
having regard to the written procedure and further to the hearing on 25 January 2012, after hearing the Opinion of the Advocate General at the sitting on 17 April 2012, gives the following Judgment
1. By its action, the European Parliament seeks the annulment of Council Decision 2010/252/EU of 26 April 2010 supplementing the Schengen Borders Code as regards the surveillance of the sea external borders in the context of operational cooperation coordinated by [FRONTEX] (OJ 2010 L 111, p. 20, ‘the contested decision’).
2. [***] The Parliament submits that the provisions of the contested decision ought to have been adopted by the ordinary legislative procedure and not by the comitology procedure based on Article 12(5) of the SBC [Schengen Borders Code].
I – Legal context
A – Decision 1999/468/EC
B – The SBC
C – Regulation (EC) No 2007/2004
D – The contested decision
II – Forms of order sought by the parties and the procedure before the Court
30. The Parliament claims that the Court should:
– annul the contested decision;
– order that the effects of the contested decision be maintained until it is replaced, …
31. The Council contends that the Court should:
– dismiss the Parliament’s action as inadmissible;
– in the alternative, dismiss the action as unfounded, …
32.[***] the Commission was granted leave to intervene in support of the form of order sought by the Council and, in its statement in intervention, it requests the Court to dismiss the Parliament’s action …..
III – The action
A – The admissibility of the action
41. It follows from the above that the action for annulment must be declared to be admissible.
B – Substance
1. Arguments of the parties
(a) As regards the principles governing the implementing powers
43. The Parliament submits that the regulatory procedure with scrutiny can have as its subject-matter the modification or removal of non-essential elements of a basic instrument or the addition of new non-essential elements, but not the modification of the essential elements of such an instrument. [***]
46. The Commission contends that [it has] the power to put flesh on the bones of the essential elements which the co‑legislators have chosen not to detail in extenso . It is authorised to supplement those elements and to regulate new activities within the scope of the essential subject-matter and of the essential rules.
(b) As regards the contested decision
47. Although the Parliament does not challenge the objectives of the contested decision, it takes the view that its content ought to have been adopted by means of a legislative act and not by an implementing measure. That decision goes beyond the scope of the implementing powers referred to in Article 12(5) of the SBC because it introduces new essential elements into that code and alters essential elements of the SBC as well as the content of the Frontex Regulation.
(i) Introduction of new essential elements into the SBC
48. As regards the introduction of new essential elements into the SBC, the Parliament submits that Parts I and II to the Annex of the contested decision lay down measures which cannot be considered to be within the scope of border surveillance as defined by the SBC or to be a non‑essential element of that code.
49. Thus, …, paragraph 2.4 of Part I to the Annex of the contested decision does not merely lay down detailed practical rules of border surveillance but grants border guards far‑reaching powers. The SBC is silent as to the measures which might be taken against persons or ships. However, the contested decision lays down far-reaching enforcement measures, yet does not ensure the right of persons intercepted on the high seas to claim asylum and associated rights, whereas, in accordance with Article 13 of the SBC, returning the persons concerned to the country from where they came can only arise in the context of a formal refusal of entry.
50. In addition, the rules relating to activities such as search and rescue and disembarkation in Part II to the Annex of the contested decision do not, in the Parliament’s view, fall within the concept of surveillance. Even though the title of Part II contains the word ‘guidelines’, Part II is binding and is intended to produce legal effects as against Member States which participate in an operation coordinated by the Agency, due to its wording, the fact that it is contained in a legally binding instrument, and the fact that it forms part of an operational plan provided for by the Frontex Regulation. The contested decision thus contains essential elements of the SBC and could not therefore be regulated in an implementing measure.
51. In addition, the Parliament submits that the contested decision exceeds the territorial scope of the SBC . In accordance with Article 2(11) of the SBC, surveillance is limited to the surveillance of borders between border crossing points and the surveillance of border crossing points outside the fixed opening hours, whereas, in accordance with paragraph 2.5 of Part I to its Annex, the contested decision applies not only to territorial waters, but also to contiguous zones and to the high seas.
53. [***] The Council contends that the argument alleging an extension of the territorial scope of the SBC is unfounded, since that code does not define the concept of a sea border, which must be understood as applying also to border surveillance carried out in the contiguous zones as well as on the high seas.
54. [***] Admittedly, helping ships in distress is not a surveillance measure in the narrow sense. However, if such a situation were to occur during a surveillance operation coordinated by the Agency, it would be indispensable to coordinate in advance how the search and rescue was conducted by various participating Member States. In those circumstances, the Council takes the view that the contested decision does not introduce new elements into the SBC.
55. The Commission contends that border surveillance is an essential element of the SBC, but that the essential rules governing that matter are found in Article 12 of the SBC which lays down provisions regarding the content as well as the object and purpose of the surveillance without serving to regulate that surveillance extensively and exhaustively. The co-legislators conferred on the Commission the power to supplement those essential elements. The power to regulate new activities allows the Commission to regulate the content of border surveillance and to define what that activity entails.
56. The Commission contends that the contested decision does not introduce new essential elements into the SBC. Surveillance must, in the light of its purpose, not only encompass the detection of attempts to gain illegal entry into the European Union but also extend to positive steps such as intercepting ships which are suspected of trying to gain entry to the Union without submitting to border checks. Article 12(4) of the SBC specifically mentions one of the purposes of surveillance as being to apprehend individuals. In order to assess whether ‘search and rescue’ falls within the concept of surveillance, it is important to take into consideration the factual circumstances in which attempted illegal entries arise. In many instances, the surveillance operation will prompt the search and rescue situation, and it is not possible to draw a sharp distinction between those operations. The issue of whether or not the guidelines are binding does not arise, given that the measures which they lay down fall within the concept of surveillance.
(ii) Modification of essential elements of the SBC
57. As regards the modification of the essential elements of the SBC, the Parliament contends, in particular, that the contested decision alters Article 13 of the Code. Since that article applies to any form of interception, persons who have entered illegally into the territorial waters and contiguous zones cannot be forced back or asked to leave without a decision pursuant to Article 13 of the SBC. However, paragraph 2.4 of Part I to the Annex of the contested decision confers on border guards the power to order the ship to modify its course outside of the territorial waters, without a decision within the meaning of Article 13 being taken or without the persons concerned having the possibility to challenge the refusal of entry.
58. In that connection, the Council and the Commission contend that Article 13 of the SBC does not apply to border surveillance activities so that the contested decision does not amend that article.
(iii) Amendment of the Frontex Regulation
59. As regards the amendment of the Frontex Regulation, the Parliament contends that Article 12(5) of the SBC does not grant the Commission the power to lay down rules which amend the powers and obligations set out by the Frontex Regulation for the operations co-ordinated by the Agency. The contested decision is not the appropriate legal instrument for creating obligations in relation to those operations or for modifying the provisions of the Frontex Regulation.
60. However, the contested decision is intended to apply only within the context of operations coordinated by the Agency and is obligatory not only for the Member States but also for the Agency, in light of the fact that its Annex forms part of the operational plan for each operation, whilst Article 8e of the Frontex Regulation determines the main elements of that plan. The mandatory inclusion in the operational plan of the rules and guidelines set out in the Annex of the contested decision significantly amends the list of necessary elements for the implementation of that plan, such as the roles of border guards, the participating units and the Rescue Coordination Centre, respectively.
61. In that connection, the Council contends that the contested decision does not amend the tasks of the Agency, even though the Annex of that decision forms part of the operational plan. [***]
62. According to the Commission, the contested decision does not affect the operation of the Frontex Regulation. The requirement in Article 1 of the contested decision that both Parts to the Annex are to be part of the operational plan imposes a requirement not upon the Agency, but rather the Member States as the persons to whom that decision is addressed and responsible for ensuring that the Annex forms part of that plan. In those circumstances, the contested decision does not amend the Frontex Regulation.
2. Findings of the Court
69. As to whether the Council was empowered to adopt the contested decision as a measure implementing Article 12 of the SBC on border surveillance, on the basis of Article 12(5) of that code, it is first of all necessary to assess the meaning of that article.
73. Although the SBC, which is the basic legislation in the matter, states in Article 12(4) thereof, that the aim of such [border] surveillance is to apprehend individuals crossing the border illegally, it does not contain any rules concerning the measures which border guards are authorised to apply against persons or ships when they are apprehended and subsequently – such as the application of enforcement measures, the use of force or conducting the persons apprehended to a specific location – or even measures against persons implicated in human trafficking.
74. That said, paragraph 2.4 of Part I to the Annex of the contested decision lays down the measures which border guards may take against ships detected and persons on board. In that connection, paragraph 2.4 (b), (d), (f) and (g) allows, inter alia, ships to be stopped, boarded, searched and seized, the persons on board to be searched and stopped, the ship or persons on board to be conducted to another Member State, and thus enforcement measures to be taken against persons and ships which could be subject to the sovereignty of the State whose flag they are flying.
75. In addition, paragraph 1.1 of Part II to the Annex of the contested decision lays down, inter alia, the obligation of the units participating in sea external border operations coordinated by the Agency to provide assistance to any vessel or person in distress at sea. Paragraph 2 of Part II lays down rules on the disembarkation of the persons intercepted or rescued, the second subparagraph of paragraph 2.1 stating that priority should be given to disembarkation in the third country from where the ship carrying the persons departed.
76. First, the adoption of rules on the conferral of enforcement powers on border guards, referred to in paragraphs 74 and 75 above, entails political choices falling within the responsibilities of the European Union legislature, in that it requires the conflicting interests at issue to be weighed up on the basis of a number of assessments. Depending on the political choices on the basis of which those rules are adopted, the powers of the border guards may vary significantly, and the exercise of those powers require authorisation, be an obligation or be prohibited, for example, in relation to applying enforcement measures, using force or conducting the persons apprehended to a specific location. In addition, where those powers concern the taking of measures against ships, their exercise is liable, depending on the scope of the powers, to interfere with the sovereign rights of third countries according to the flag flown by the ships concerned. Thus, the adoption of such rules constitutes a major development in the SBC system.
77. Second, it is important to point out that provisions on conferring powers of public authority on border guards – such as the powers conferred in the contested decision, which include stopping persons apprehended, seizing vessels and conducting persons apprehended to a specific location – mean that the fundamental rights of the persons concerned may be interfered with to such an extent that the involvement of the European Union legislature is required.
78. Thus, the adoption of provisions such as those laid down in paragraph 2.4 of Part I, and paragraphs 1.1 and 2.1 of Part II, of the Annex to the contested decision, requires political choices to be made as referred to in paragraphs 76 and 77 above. Accordingly, the adoption of such provisions goes beyond the scope of the additional measures within the meaning of Article 12(5) of the SBC and, in the context of the European Union’s institutional system, is a matter for the legislature.
79. In those circumstances, it must be found that, as the Advocate General observed in points 61 and 66 of his Opinion, Parts I and II to the Annex of the contested decision contain essential elements of external maritime border surveillance.
80. The mere fact that the title of Part II to the Annex of the contested decision contains the word ‘guidelines’ and that the second sentence of Article 1 of that decision states that the rules and guidelines in Part II are ‘non-binding’ cannot affect their classification as essential rules.
84. In those circumstances, the contested decision must be annulled in its entirety because it contains essential elements of the surveillance of the sea external borders of the Member States which go beyond the scope of the additional measures within the meaning of Article 12(5) of the SBC, and only the European Union legislature was entitled to adopt such a decision.
85. Consequently, the Parliament’s arguments to the effect that the contested decision amends the essential elements of the SBC and also the Frontex Regulation do not require to be examined.
IV – The application for the effects of the contested decision to be maintained
86. The Parliament requests the Court, should it annul the contested decision, to maintain its effects, pursuant to the second paragraph of Article 264 TFEU, until that decision is replaced.
87. The Parliament submits that it is necessary to maintain the effects of the contested decision, in the light of the importance of the objectives of the proposed measures in the context of the European Union’s policy on border control operations.
89. The annulment of the contested decision without maintaining its effects on a provisional basis could compromise the smooth functioning of the current and future operations coordinated by the Agency and, consequently, the surveillance of the sea external borders of the Member States.
90. In those circumstances, there are important grounds of legal certainty which justify the Court exercising the power conferred on it by the second paragraph of Article 264 TFEU. In the present case, the effects of the contested decision must be maintained until the entry into force, within a reasonable time, of new rules intended to replace the contested decision annulled by the present judgment.
V – Costs
On those grounds, the Court (Grand Chamber) hereby:
1. Annuls Council Decision 2010/252/EU of 26 April 2010 supplementing the Schengen Borders Code as regards the surveillance of the sea external borders in the context of operational cooperation coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union;
2. Maintains the effects of decision 2010/252 until the entry into force of new rules within a reasonable time;
3. Orders the Council of the European Union to pay the costs;
4. Orders the European Commission to bear its own costs.
Greek news reports say that Greek officials have made requests to Commissioner Malmström and Frontex for assistance to respond to “increasing migratory pressures on the islands of the Eastern Aegean.” The Greek islands of Lesvos, Samos, Patmos, Leros and Symi in particular have reportedly seen an increase in the number of persons entering from nearby Turkish territory. According to the media reports the assistance will include the deployment of “four aerial vehicle[s], four patrol boats, three mobile surveillance units and eight expert officers, whose costs will be covered by EU funds the agency and the European Commission.”
Human Rights Watch released a briefing paper on 16 August entitled “Hidden Emergency-Migrant deaths in the Mediterranean.” The briefing paper, written by Judith Sunderland, a senior researcher with HRW, reviews recent events in the Mediterranean, provides updates on new developments, including the EUROSUR proposal and IMO guidelines that are under consideration, and makes recommendations for how deaths can be minimized.
Excerpts from the Briefing Paper:
“The death toll during the first six months of 2012 has reached at least 170. … Unless more is done, it is certain that more will die.
Europe has a responsibility to make sure that preventing deaths at sea is at the heart of a coordinated European-wide approach to boat migration, not a self-serving afterthought to policies focused on preventing arrivals or another maneuver by northern member states to shift the burden to southern member states like Italy and Malta.
With admirable candor, EU Commissioner Cecilia Malmström said recently that Europe had, in its reaction to the Arab Spring, ‘missed the opportunity to show the EU is ready to defend, to stand up, and to help.’ Immediate, concerted efforts to prevent deaths at sea must be part of rectifying what Malmström called Europe’s ‘historic mistake.’
Europe’s Response to Boat Migration
European countries most affected by boat migration—Italy, Malta, Greece and Spain—have saved many lives through rescue operations. But those governments and the European Union as a whole have focused far more effort on seeking to prevent boat migration, including in ways that violate rights. Cooperation agreements with countries of departure for joint maritime patrols, technical and financial assistance for border and immigration control, and expedited readmission of those who manage to set foot on European soil have become commonplace.
The EU’s border agency Frontex has become increasingly active through joint maritime operations, some of which have involved coordination with countries of departure outside the EU such as Senegal. Even though in September 2011 the EU gave Frontex an explicit duty to respect human rights in its operations and a role in supporting rescue at sea operations, these operations have as a primary objective to prevent boats from landing on EU member state territories. This has also prevented migrants, including asylum seekers, from availing themselves of procedural rights that apply within EU territory.
Italy had suspended its cooperation agreements with Libya in February 2011, and has indicated it will respect the European Court’s ruling and will no longer engage in push-backs. However, past experience suggests that an immigration cooperation agreement signed with the Libyan authorities in April 2012, the exact contents of which have neither been made public nor submitted to parliamentary scrutiny, is unlikely to give migrants’ human rights the attention and focus they need if those rights are to be properly protected.
Preventing Deaths in the Mediterranean
It may be tempting to blame lives lost at sea on unscrupulous smugglers, the weather, or simple, cruel fate. However, many deaths can and should be prevented. UNHCR’s recommendation during the Arab Spring to presume that all overcrowded migrant boats in the Mediterranean need rescue is a good place to start.
Recognizing the serious dimensions of the problem, specialized United Nations agencies such as the UNHCR and the International Maritime Organization (IMO), have been working to produce clear recommendations. These include establishing a model framework for cooperation in rescue at sea and standard operating procedures for shipmasters. The latter should include a definition of distress triggering the obligation to provide assistance that takes into account risk factors, such as overcrowding, poor conditions on board, and lack of necessary equipment or expertise. UNHCR has also proposed that countries with refugee resettlement programs set aside a quota for recognized refugees rescued at sea.
The IMO has also been pursuing since 2010 a regional agreement among Mediterranean European countries to improve rescue and disembarkation coordination, as well as burden-sharing. The project, if implemented successfully, would serve as a model for other regions. A draft text for a memorandum of understanding is under discussion. Negotiations should be fast-tracked with a view to implementation as quickly as possible.
If Europe is serious about saving lives at sea, it also needs to amend the draft legislation creating EUROSUR. This new coordinated surveillance system should spell out clearly the paramount duty to assist boat migrants at sea, and its implementation must be subject to rigorous and impartial monitoring. Arguments that such a focus would create a ‘pull factor’ and encourage more migrants to risk the crossing are spurious. History shows that people on the move, whether for economic or political reasons, are rarely deterred or encouraged by external factors.
From the HRW press statement:
The “briefing paper includes concrete recommendations to improve rescue operations and save lives:
- Improve search and rescue coordination mechanisms among EU member states;
- Ensure that EUROSUR has clear guidelines on the paramount duty of rescue at sea and that its implementation is rigorously monitored;
- Clarify what constitutes a distress situation, to create a presumption in favor of rescue for overcrowded and ill-equipped boats;
- Resolve disputes about disembarkation points;
- Remove disincentives for commercial and private vessels to conduct rescues; and
- Increase burden-sharing among EU member states.”
Click here for HRW press statement.
1000+ Migrants / 44 Boats Reach Andalusian Coast in First Half of 2012; Frontex JOs Indalo and Minerva Underway
Europa Press reported that 1,037 migrants on board 44 boats have been detected arriving on the Andalusian coast from 1 January 2012 to 9 July 2012. Most of the arrivals have occurred in the provinces of Granada and Almeria. Frontex’s 2012 Joint Operation Indalo, which began in May , is focused on detecting irregular migration in the Western Mediterranean and specifically on migration from Morocco and Algeria towards Andalusia. The ABC newspaper reported that some Spanish officials are again concerned that the Frontex enforcement efforts will divert migrant boats further north along the coast of Alicante. The first boat of the year was detected arriving on the Alicante coast on 9 July. ABC reported that a source with the Guardia Civil predicted that the numbers of boats attempting to reach Alicante would be less this year due to the stabilizing of conditions in North Africa and the poor Spanish economy. Frontex’s Joint Operation Minerva will launch on 13 July and is focused on increased surveillance and inspection of passengers arriving in Spain by ferry from Morocco and arrivals in Ceuta.
The EU Observer reported two weeks ago that Cyprus “is worried that Syrian refugees could arrive en masse in the island-nation and in the EU more broadly if the conflict gets worse [and that Cyprus] is drawing up plans in case Syrian boat refugees arrive on its coast, a Cypriot source told this website.” What these plans may consist of is not clear, but during a recent visit to Malta, Cypriot President Demetris Christofias said that Cyprus and Malta shared “’common worries and interests’ over irregular migration … ‘We’re not racists but we must defend the rights of our countries’.”
While it is conceivable that Syrian refugee boats could head for Cyprus if the number of people forced to flee Syria continues to rise, but, as was the case with Libya, most will likely continue to flee across land borders to neighbouring countries and will not take to the sea. The UNHCR estimates that as of early this month, over 81,000 people have fled to Jordan, Lebanon, Turkey and Iraq and that there are approximately 400,000 internally displaced persons within Syria. To the extent that some may flee Syria by sea, the portion of the island of Cyprus closet to Syria is the northeastern area which is controlled by Turkey.
Cyprus assumes the EU presidency on 1 July.
Click here for UNHCR Syria Regional Refugee Response Information Sharing Portal.
The decision in Hirsi and others v Italy, Requête no 27765/09, is scheduled to be released by the Grand Camber of the European Court of Human Rights next Thursday, 23 February. The case was filed on 26 May 2009 by 11 Somalis and 13 Eritreans who were among the first group of about 200 migrants interdicted by Italian authorities and summarily returned to Libya under the terms of the Libya-Italy agreement which took effect on 4 February 2009. The Applicants were intercepted on 6 May 2009 approximately 35 miles south of Lampedusa. On 17 November 2009 the Second Section of the Court communicated the case and then subsequently relinquished jurisdiction in favour of the Grand Chamber. The argument before the Grand Chamber occurred on 22 June 2011.
Today’s statement from the CoE web site:
“Human rights judges will soon deliver their judgement in a case which involved Italy intercepting Somalian and Eritrean migrants at sea and returning them to Libya. The European Court of Human Rights’ Grand Chamber final judgment in the case of Hirsi Jamaa and Others v. Italy (application no. 27765/09), is expected at a public hearing scheduled for Thursday 23 February.
The applicants are 11 Somalian and 13 Eritrean nationals. They were part of a group of about 200 people who left Libya in 2009 on board three boats bound for Italy. On 6 May 2009, when the boats were 35 miles south of Lampedusa (Agrigento), within the maritime search and rescue region under the responsibility of Malta, they were intercepted by Italian Customs and Coastguard vessels. The passengers were transferred to the Italian military vessels and taken to Tripoli.
The applicants say that during the journey the Italian authorities did not tell them where they were being taken, or check their identity. Once in Tripoli they were handed over to the Libyan authorities.
At a press conference on 7 May 2009 the Italian Minister of the Interior explained that the interception of the vessels on the high seas and the return of the migrants to Libya was in accordance with the bilateral agreements with Libya that entered into force on 4 February 2009, marking a turning point in the fight against illegal immigration.
The applicants consider that their case falls within the jurisdiction of Italy. Relying on Article 3 of the European Convention on Human Rights (prohibition of inhuman or degrading treatment), they argue that the decision of the Italian authorities to send them back to Libya exposed them to the risk of ill-treatment there, as well as to the serious threat of being sent back to their countries of origin (Somalia and Eritrea), where they might also face ill-treatment.
They also complain that they were subjected to collective expulsion prohibited by Article 4 of Protocol No. 4 (prohibition of collective expulsion of aliens) of the Convention. Lastly, relying on Article 13 (right to an effective remedy), they complain that they had no effective remedy against the alleged violations of Article 3 and Article 4 of Protocol No. 4.
The application was lodged with the European Court of Human Rights on 26 May 2009.
On 15 February 2011 the Chamber to which the case had been allocated relinquished jurisdiction in favour of the Grand Chamber. A hearing took place in public in the Human Rights Building, Strasbourg on 22 June 2011.
The following have been authorised to intervene as a third party (under Article 36 § 2 of the Convention):
- the Office of the United Nations High Commissioner for Refugees,
- the Office of the United Nations High Commissioner for Human Rights,
- the non-governmental organisations Aire Center, Amnesty International, and International Federation for Human Rights (FIDH),
- the non-governmental organisation Human Rights Watch, and
- the Columbia Law School Human Rights Clinic.”
Click here for CoE Statement.
Click here for Press Statement from ECtHR.
Click here for previous post on the argument before the Grand Chamber.
UNHCR: “Mediterranean takes record as most deadly stretch of water for refugees and migrants in 2011”
Full Text of UNHCR Briefing Note, 31 January:
“This is a summary of what was said by UNHCR spokesperson Sybella Wilkes – to whom quoted text may be attributed – at the press briefing, on 31 January 2012, at the Palais des Nations in Geneva.
According to UNHCR estimates, more than 1,500 people drowned or went missing while attempting to cross the Mediterranean to reach Europe in 2011. This makes 2011 the deadliest year for this region since UNHCR started to record these statistics in 2006. The previous high was in 2007 when 630 people were reported dead or missing.
Last year is also a record in terms of the massive number of arrivals in Europe via the Mediterranean, with more than 58,000 people arriving. The previous high was in 2008 when 54,000 people reached Greece, Italy and Malta. During 2009 and 2010, border control measures sharply reduced arrivals in Europe. The frequency of boat arrivals increased in early 2011 as the regimes in Tunisia and Libya collapsed.
Our teams in Greece, Italy, Libya and Malta, warn that the actual number of deaths at sea may be even higher. Our estimates are based on interviews with people who reached Europe on boats, telephone calls and e-mails from relatives, as well as reports from Libya and Tunisia from survivors whose boats either sank or were in distress in the early stages of the journey.
Survivors told UNHCR staff harrowing stories of being forced onboard by armed guards, particularly during April and May in Libya. The actual journey took place on unseaworthy vessels with refugee and migrant passengers often forced into having to skipper boats themselves. In addition, some survivors told UNHCR that fellow passengers beat and tortured them. Judicial investigations are ongoing in Italy following these reports.
The majority of last year’s arrivals by sea landed in Italy (56,000, of whom 28,000 were Tunisian) while Malta and Greece received 1,574 and 1,030 respectively. The vast majority arrived in the first half of the year. Most were migrants, not asylum-seekers. Only three boats landed from mid-August to the end of the year. In addition, according to Greek government figures, some 55,000 irregular migrants crossed the Greek-Turkish land border at Evros.
We are disturbed that since the beginning of 2012, despite high seas and poor weather conditions, three boats have attempted this perilous journey from Libya, with one going missing at sea. This boat, carrying at least 55 people raised the alarm on 14 January, warning of engine failure. Libyan coast guards informed UNHCR that 15 dead bodies, all identified as Somali, were found washed up on the beaches last week, including 12 women, two men and a baby girl. On Sunday, three more bodies were recovered. It was confirmed later that all those that perished were Somali residents of the makeshift site in Tripoli known as the Railway Project.
The other two boats that made it to Malta and Italy in January required rescuing. The first rescue of 72 Somali nationals by the Italian coast guard took place on 13 January. Those rescued included a pregnant woman and 29 children.
The second boat was rescued by the Maltese Armed Forces on 15 January with the support of the US Navy and a commercial vessel. In total 68 people were rescued from a dinghy found drifting some 56 nautical miles from Malta. A baby girl was born on one of the rescue vessels. Another woman reported a miscarriage during the voyage.
UNHCR welcomes the ongoing efforts of the Italian, Maltese and Libyan authorities to rescue boats in distress in the Mediterranean. We renew our call to all shipmasters in the Mediterranean, one of the busiest stretches of water in the world, to remain vigilant and to carry out their duty of rescuing vessels in distress.
For further information on this topic, please contact:
In Rome: Laura Boldrini on mobile +39 33 55 403 194
In Valetta: Fabrizio Ellul on mobile +356 99 69 0081
In Geneva: Sybella Wilkes on mobile +41 79 557 91 38”
Click here for link to statement.
The Frontex Risk Analysis Unit (RAU) released its 3rd Quarter Report (July-September) for 2011 on 18 January. (See also 2nd Quarter Report (April-June 2011) and 1st Quarter Report (Jan-March 2011).) The reports contain a significant amount of information, graphs, and statistical tables regarding detections of illegal border crossings, irregular migration routes, detections of facilitators, detections of illegal stays, refusals of entry, asylum claims, and more.
The Report is based on data provided by Member States. The Report states that “Frontex and the Member States are currently harmonising their illegal-migration data, a process that is not yet finalised. Therefore more detailed data and trends in this report should be interpreted with caution and, where possible, cross-referenced with information from other sources.”
Here are extensive excerpts from the Q3 Report:
“Executive summary – In Q3 2011 most indicators monitored within FRAN community increased compared to a year ago. For example, detections of illegal border-crossing and refusals of entry both reached much higher levels than in Q3 2010. Moreover, more applications for international protection were submitted than in any other quarter since data collection began in 2008. Consistent with recent years, the majority of illegal border-crossings were limited to a small number of hotspots of irregular migration such as the Eastern and Central Mediterranean routes, accounting for 50% and 33% of the EU total, respectively. However, in Q3 2011 there was also a rise in the importance of the Western Mediterranean route, now representing nearly 10% of the EU total. At the EU level, the most commonly detected migrants were from Afghanistan, yet due to the recent increases in the number of migrants from Pakistan and Nigeria (by seven and ten times compared to Q3 2010, respectively) these nationalities have moved to the second and third position.
In Q3 2011 there were 19 266 detections of illegal border-crossing in the Eastern Mediterranean, a seasonal increase to a level almost exactly comparable with the same period in 2010. As was the case throughout 2010, detections were concentrated at the Greek land border with Turkey, where Afghans accounted for nearly half of all detected migrants. However, at this border section detections of migrants from Pakistan increased massively compared to last year and now rank second….
In contrast to the consistent wave of irregular migration in the Eastern Mediterranean, the situation in the Central Mediterranean has been volatile in 2011, dependent on the political developments and civil unrest across North Africa. For example, civil unrest in this region, particularly in Tunisia, led to a dramatic increase in detections in the Central Mediterranean early in 2011. Consequently, in March 2011 some 14 400 Tunisian migrants arrived in the Italian island of Lampedusa. In April an accelerated repatriation agreement was signed between Italy and Tunisia, which resulted in a 75% reduction in the flow of Tunisians, but the region was then inundated by large numbers of sub-Saharan migrants arriving in Lampedusa, Sicily and Malta, many having been forcibly expelled from Libya by the Gaddafi regime. Since the National Transitional Council successfully gained control of Libya, this flow stopped abruptly in August. However, in Q3 2011 there were 12 673 detections of illegal border-crossing on this route, where Tunisian and sub-Saharan migrants, particularly Nigerians, are still arriving in significant numbers.
In Q3 2011 there were more detections in the Western Mediterranean (3 568) since mid 2008. A wide range of migrants from North African and sub-Saharan countries were increasingly detected in this region. However, it is difficult to analyse the exact composition of the flow as the number of migrants of unknown nationality on this route doubled compared to the previous quarter. This may indicate an increasing proportion of nationalities that are of very similar ethnicity and/or geographic origin.
The flows of migrants arriving in the EU had a significant effect on the number of applications for international protection submitted: in Q3 2011 there were a massive 64 801 applications submitted across Member States. The largest increases in submitted applications were reported by Italy and involved nationals of Nigeria, Ghana, Mali and Pakistan. However, the applications submitted by nationals of Pakistan and Afghanistan also increased across a wide range of other Member States, such as Germany and Austria. In contrast to increasing applications for international protection were fewer detections of facilitators of irregular migration than ever before. This widespread and long decline may be because organized crime groups are increasingly recruiting would-be migrants by offering them legitimate entry to the EU with false or fraudulently obtained documentation. This is less risky and carries lower detection probability for facilitators than, for example, accompanying migrants across the border….
4.1 Detections of illegal border-crossing – [ … ] The third quarter of each year is usually associated with weather conditions favourable for approaching and illegally crossing the external border of the EU. Correspondingly, conditions that are favourable for illegal border-crossings are also more conducive to detecting them. The combination of these two effects resulted in the highest number of detections in each of the last few years being reported in Q3 2011. In contrast, in 2011 detections were higher in the second than in the third quarter, because of exceptionally high detections in the first half of 2011, rather than particularly low detections in Q3 2011. At the sea border, there were 15 418 detections which is a 44% reduction compared to Q2 2011, but a fivefold increase compared to Q3 2010. In contrast, there were 23 079 detections at the land border which was a 68% increase compared to the preceding quarter, but a 22% reduction compared to Q3 2010. Hence, detections decreased at the sea border, particularly in Italy, and increased at the land border to a level comparable to 2010….
[… ] In the first half of 2011 the situational picture of irregular migration to the EU was dominated by illegal border-crossings reported by Italy. This influx was due to a surge of Tunisians in Q1 and sub-Saharan African migrants in Q2 arriving in the Italian island of Lampedusa in the wake of major civil unrest in North Africa (the so-called Arab Spring), which has now, to some extent, decipitated. Hence, in Q3 2011 detections in Italy halved compared to the previous two quarters yet remained some six times higher than during the same period last year.
At the EU level the most commonly detected migrants came from Afghanistan, constituting a quarter of all detections despite a 15% decrease compared to the previous year (Fig. 3). The majority of Afghan migrants were detected at the border between Greece and Turkey, with the remaining mostly detected at the southern Italian blue border. Throughout 2010 the most commonly detected migrants were from Albania (mostly circular migrants to Greece), representing 25–45% of the EU total, although in many cases individuals may have been detected several times within a given period. However, in Q3 2011 detections of Albanians fell to negligible levels following their visa-free status for travel to the EU granted in December 2010 (Fig. 3).
Without question, detections of migrants from Pakistan and Tunisia have increased more than any other nationality over the last year (Fig. 3). In the case of migrants from Pakistan, in Q3 2011 most were detected at the border between Greece and Turkey, followed by the southern Italian blue border. This detection profile almost exactly mirrors that of migrants from Afghanistan. In contrast, migrants from Tunisia are almost exclusively detected in Italy, followed by Greece. Although detections of migrants from Tunisia increased dramatically compared with a year ago, they fell massively compared to the peak in Q1 2011.
Another notable phenomenon is the increased rate of migrants from Nigeria detected at the blue border (Fig. 3) mostly in Italy, with some evidence for increasing numbers in southern Spain. In the former case most departed from Tunisia, while in Spain most departed from Morocco. This trend is related to the threefold increase in the number of asylum applications submitted by Nigerian migrants almost exclusively in Italy.
Routes – As illustrated in Figure 4, during the first half of 2011 detections of illegal bordercrossing on the Central Mediterranean route, which comprises the blue borders of Italy and Malta, dramatically increased and exceeded those reported from the Eastern Mediterranean route, which is made up of the land and sea borders of Greece, Bulgaria and Cyprus. However, in Q3 2011 detections on the Eastern Mediterranean route, by following a remarkably seasonal pattern, similar to that of 2010, once more exceeded detections on the Central Mediterranean route, where detections fell dramatically compared with the peak in the first six months of 2011.
These routes not only differed in their trends over time but also in the composition of detected nationalities. For example, detections on the Eastern Mediterranean route have, for the last year at least, comprised of large numbers of Asian, North African and sub-Saharan nationalities including increased detections of migrants from Pakistan. In contrast, nationalities detected in the Central Mediterranean have evolved throughout 2011. In Q1 2011 mostly Tunisians were detected after they had departed from their own country; in Q2 2011 reduced but still significant numbers of Tunisians were joined by mix of sub-Saharan Africans, many of whom were forcibly expelled from Libya. In the current reporting period detections of Tunisians remained stable, yet the number of sub-Saharan Africans decreased. Figure 4 also shows that in Q3 2011 detections on the Western Mediterranean route increased, mostly of migrants of unknown nationalities but also of Algerians and Nigerians.
4.1.1 Eastern Mediterranean route – Since data collection began in early 2008, the Eastern Mediterranean has maintained its status as a hotspot of irregular migration. Detections have followed a remarkably seasonal pattern invariably peaking in the third quarter of each year, being concentrated at the border between Greece and Turkey with a shift from the sea border to the land border in early 2010. Afghan migrants have consistently featured highly on the list of most detected nationalities. In 2010 there was an increase in Algerian migrants that has since subsided, but more recently there has been a massive increase in the number of migrants from Pakistan detected on this route.
In the current reporting period, detections of illegal border-crossing on this route increased seasonally and in line with previous years, almost exclusively due to a massive increase in detections at the Greek land border with Turkey, where detections increased from 10 464 to 18 509 over the same period. Based on seasonal pattern of detections in previous years, the increase in pressure on this route during Q3 2011 was not entirely unexpected and reached a level almost exactly comparable to that of a year ago. Indeed, according to data collected during JO Poseidon the average number of detections per day immediately subsequent to the current reporting period exceed that during the same period in 2010, immediately prior to the deployment of the first JO RABIT 2010….
4.1.2 Central Mediterranean route – Irregular migration in the Central Mediterranean has fluctuated in size and composition during 2011, depending on the political and civil unrest across North Africa. Initially detections in the Central Mediterranean massively increased in early 2011 due to civil unrest in the region, particularly in Tunisia, Libya and, to a lesser extent, Egypt. As a result, in Q1 some 20 000 Tunisian migrants arrived on the Italian island of Lampedusa. In Q2 2011 the flow of Tunisian migrants was reduced by 75% following an accelerated repatriation agreement that was signed between Italy and Tunisia. However, the region was then inundated by large numbers of sub-Saharan migrants detected across the region, many claiming to have been forcibly expelled from Libya by the Gaddafi regime. In the current reporting period irregular migration in the region has eased somewhat due to democratic elections* in Tunisia and the National Transitional Council successfully gaining control of Libya. However in Q3 2011 arrivals increased from Egypt and subsequent to the reporting period there was some indication that the flow from Libya has been reinstated.
According to the FRAN data, in Q3 2011 there were more than 12 500 reported detections of illegal border-crossing on the Central Mediterranean route, a 50% decrease compared to the ‘peak’ reported during the first and second quarter of 2011, but still massively increased compared to the background detections throughout all of 2010. Most detections in the Central Mediterranean region were reported from the Italian Pelagic Islands, where detections also fell by a half compared to the previous quarter. In some areas the decrease was even more marked. For example, in Sicily detections fell by 75% such that in Q3 2011 a stable trend of Egyptians and Tunisians constituted nearly all detections. Detections ell to an even greater extent in Malta.
4.1.3 Western Mediterranean route – Irregular migration across the Western Mediterranean towards southern Spain was at a low level through most of 2010 averaging just over a thousand detections per quarter. However, pressure has been steadily increasing throughout 2011 until the current reporting period when there were more than 3 500 detections of illegal border-crossing – an increase of two thirds compared to Q3 2010. As a result, the Western Mediterranean is now the third largest point of entry for illegal bordercrossing into the EU. The most common and the most increasingly detected migrants were of unknown nationalities, followed by migrants local to the region from Algeria and Morocco. There were also significant increases in migrants from further afield such as Côte d’Ivoire, Guinea, Nigeria and Congo.
4.1.4 Western African route – The cooperation and bilateral agreements between Spain and the rest of the Western African countries (Mauritania, Senegal and Mali) are developing steadily. They are one of the main reasons for the decrease in arrivals on this route over the last year, as is the presence of patrolling assets near the African coast. Despite a slight increase in Q4 2010, detections on this route remained low and totalled at just 50 detections of exclusively Moroccan migrants in Q3 2011.
Click here for Frontex Press Statement.
Click here for Q3 Report.
Click here for previous post on Q1 and Q2 Reports.
Statewatch Analysis: The EU’s self-interested response to unrest in north Africa: the meaning of treaties and readmission agreements between Italy and north African states
Statewatch released an Analysis by Yasha Maccanico entitled “The EU’s self-interested response to unrest in north Africa: the meaning of treaties and readmission agreements between Italy and north African states.” The Analysis provides a description of Italy’s responses to the migrant arrivals in 2011 caused by the unrest in North Africa.
Excerpts: “The ‘crisis’ reveals questionable practices and routine abuses – The measures adopted in response to the increasing number of migrants arriving from north African countries serve to highlight a number of practices that have become commonplace in Italy in recent years.
The first of these is a widening of the concept of ‘emergency.’ Calling an emergency gives the government a wider remit to derogate from specified laws so as to resolve situations that cannot be dealt with through ordinary measures….
Although the situation in north Africa was worrying, the emergency was called when slightly over 5,000 migrants had arrived. An analysis by Massimiliano Vrenna and Francesca Biondi Dal Monte for ASGI notes that the government has repeatedly called and extended states of emergency since 2002 to deal with immigration, which is treated as though it were a “natural calamity” even when there is a wholly predictable influx of people from third countries. The urgent need specified in decrees declaring a state of emergency is to conduct ‘activities to counter the exceptional – later referred to as massive – influx of immigrants on Italian territory’ (as happened on 11 December 2002, 7 November 2003, 23 December 2004, 28 October 2005, 16 March 2007, 31 December 2007, 14 February 2008 for Sicily, Calabria and Apulia and was extended to the whole nation on 25 July 2008 and 19 November 2009), stemming from a prime ministerial decree of 20 March 2002. Thus, Vrenna and Biondi Dal Monte’s observation that the emergency is ‘structural’ appears well-founded. It has serious repercussions for the treatment of migrants (see below) and the awarding of contracts outside of normal procedures, with the involvement of the civil protection department whose competencies have been expanding considerably.
The second practice involves the expulsion, refoulement or deportation of migrants outside the limits and procedures established by legislation for this purpose. The failure to identify people, to issue formal decisions on an individual basis to refuse them entry or expel them, or to give them the opportunity to apply for asylum or other forms of protection, was a key concern when boats were intercepted at sea and either the vessels or their passengers were taken back to Libya between May and September 2009, when 1,329 people were returned. These rights were also denied to people arriving from Egypt and Tunisia in application of readmission agreements in the framework of the fight against illegal migration. Their presumed nationality was deemed sufficient to enact expulsions to these countries, because ongoing cooperation and good relations with Italy appeared sufficient to indicate that they were not in need of protection, regardless of the situation in their home countries. ….
The third practice is the ill-treatment of migrants held in detention centres. Without dealing with this issue in depth, it is worth noting that what could be viewed as arbitrary detention is occurring on a large scale, in the absence of formal measures decreeing detention and without the possibility of appealing against decisions. In fact, after landing, migrants are summarily identified as either ‘illegal’ migrants or asylum seekers, largely on the basis of their nationality….”
Click here for Analysis.
UNODC yesterday released an Issue Paper entitled “Smuggling of Migrants by Sea.” The paper, drafted by Ms Marika McAdam under the supervision of Ms Morgane Nicot (UNODC), is based largely on “answers received to questionnaires and discussions that took place in the context of an expert group meeting held in Vienna, Austria on the 13th to the 15th of September 2011.”
Excerpts from UNODC statement: “While the smuggling of migrants by sea accounts for only a small proportion of the total number of migrants smuggled worldwide, it accounts for the highest number of deaths among smuggled migrants. … The paper covers the international legal framework relating to the smuggling of migrants by sea, current responses to and challenges posed by such smuggling and recommendations to strengthen responses. … It is hoped that the practical experiences of responding to the smuggling of migrants by sea, addressed by the issue paper from the perspectives of countries of origin, countries of transit and countries of destination, will help other Member States in formulating their responses to suit their local contexts.”
Executive Summary: “Smuggling of migrants is defined by Article 3 of the Migrant Smuggling Protocol supplementing the United Nations Transnational Organized Crime Convention (UNTOC), as ‘…the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a state party of which the person is not a national.’ The specific nature of the sea-based component of the smuggling journey resulted in a dedicated section on the issue in the Migrant Smuggling Protocol. While smuggling by sea accounts only for a small portion of overall migrant smuggling around the world, the particular dangers of irregular travel at sea make it a priority for response; though more migrant smuggling occurs by air, more deaths occur by sea.
The journey of the migrant smuggled by sea often starts a significant distance away from the coast of departure. Some journeys to the coast may take mere days, but others can take place over years during which the migrant must work en route to raise money for his passage. Arduous desert crossings and victimization by smugglers and other criminals en route mean that some do not survive overland journeys to the coast. Contrasted with these extreme experiences, economically empowered migrants can afford a higher level of smuggling service and may experience no particular hardship, simply travelling through various international airport hubs toward the coastal country from where their sea journey commences.
The type and size of vessel used to smuggle migrants by sea depends on the time, place and financial capacity of migrants undertaking the smuggling journey. In some countries, boats of only a handful of passengers are commonly intercepted by authorities, while in others vessels of several hundred people have been used. While voyages may be comfortable when conditions at sea are mild and the vessel is equipped with adequate food, water and sanitation, the journey is a harrowing one for the majority of migrants who report rough conditions, terrible cold and scarce food and water.
The nature of the crime and its relationship with smuggling of migrants by land and by air means that it is a successful crime type that yields high profits for smugglers with all the risks being borne by migrants. Indeed, migrant smuggling by sea can be understood as a criminal business, which is competitively run as such. Smuggling by sea is generally carried out by flexible criminal groups or individuals operating on the basis of repeated contractual arrangements, rather than by hierarchical organizations.
There are two methods used when vessels approach coasts of destination. One aims to reach land by evading detection by authorities, the other sets out to be detected and intercepted or rescued by authorities in territorial waters of destination coastal countries. In both situations, detecting smuggling vessels at sea is a key challenge for coastal states which may have limited resources and large search and rescue areas of responsibility.
Upon detecting vessels, the key challenge is to balance objectives with obligations at international law, including the Migrant Smuggling Protocol. Smugglers are generally well‐informed about states’ protection obligations and act to exploit them, instructing migrants what to do upon interception to increase their chances of gaining entry into and remaining in countries of destination. For instance, officials responsible for intercepting vessels at sea have been faced with situations of people sabotaging their own vessels to force authorities to carry out rescues. Suggestions made in respect of encountering migrant smuggling at sea include increased support of coastal states through joint patrols and provision of resources, and increased compliance with international legal standards and obligations in carrying out interceptions of smuggling vessels at sea.
While responding to the situation at hand and ensuring that persons on board are appropriately assisted, a key challenge is to seize evidentiary opportunities to investigate smuggling‐related crimes. The complex nature of migrant smuggling networks and their modus operandi means that smugglers cannot be identified purely by looking to smugglers who may be on board boats; the transnational criminal network itself must be traced from a smuggling vessel, back to the coast of embarkation, and from there back to countries of transit and origin. Suggestions made for improved investigation and prosecution of migrant smuggling by sea include harmonizing domestic legislation with the UNTOC and the Migrant Smuggling Protocol. Further it is suggested that sentences imposed for smuggling offences be publicized as a means of deterring would-be smugglers. Capacity building measures are also suggested so as to increase identification of smugglers on vessels, and to better link sea-based crimes with land-based smugglers.
Preventing migrant smuggling by sea requires states to balance their obligations in international law with their legitimate interests in protecting state sovereignty from violation by organized crime groups. But law enforcement efforts alone are not adequate to prevent migrant smuggling by sea; the Migrant Smuggling Protocol stresses that prevention efforts must address root causes that lead a person into the hands of smugglers in the first place. Suggestions made for preventing migrant smuggling at sea include raising awareness about the dangers of sea smuggling journeys and the criminality of smuggling. Suggestions are also made to raise awareness of those who influence political and policy decisions, so policies put in place protect state sovereignty, uphold international obligations, and are not vulnerable to exploitation by smugglers. Also emphasised is the responsibility of coastal states of departure to intercept smuggling vessels before they embark on sea journeys. Beyond this, comprehensive data collection, analysis and research are suggested to strengthen evidence-based responses.
Experts from countries of origin, transit and destination unanimously agree that the most essential ingredient for effective and comprehensive response to migrant smuggling by sea is strengthened international cooperation to remove areas of impunity for smugglers along smuggling routes. Suggestions made for cooperating in response to migrant smuggling at sea include aligning activities with the Migrant Smuggling Protocol and increasing the role of UNODC in facilitating cooperative response. The value of bilateral and regional cooperation arrangements is stressed, with emphasis on flexible cooperative networks for effective and efficient on-the-ground response. Regular coordination meetings and joint operations are suggested to improve strategic and operational interagency coordination, as is the empowerment of central designated authorities to address migrant smuggling by sea.
In short, while it is difficult to make generalizations about migrant smuggling by sea, two key points hold true around the world. Firstly, migrant smuggling by sea is the most dangerous type of smuggling for the migrants concerned, making it a priority concern for State response. Secondly, efforts to combat smuggling of migrants will be unsuccessful unless cooperation is strengthened not only between countries of sea departure and arrival, but also among the countries of origin, transit and destination along the entire smuggling route.”
Click here for Issue Paper.
Click here for UNODC statement.
A rubber dinghy carrying 69 sub-Saharan migrants landed on Saturday on Lampedusa without having been intercepted. The migrants are believed to be Somali. At least one media report states that the migrants are believed to have departed from Tunisia. Several of the boat’s passengers were hospitalized. The main migrant detention centre on Lampedusa remains closed.
ICMC Europe Report: “MAYDAY! Strengthening responses of assistance and protection to boat people and other migrants arriving in Southern Europe”
ICMC has released a 150+ page report entitled “MAYDAY! Strengthening responses of assistance and protection to boat people and other migrants arriving in Southern Europe.” I have just started reading the report and may post some additional excerpts in the coming days. Here is an excerpt from the Foreword and Introduction:
“In the first months of 2011 alone, more than 2,000 migrants have died crossing the Mediterranean Sea. More than 2,500 unaccompanied children arrived just on Italian shores. Tragic, chronic figures like these are urgent and continuous reminders of the need for another approach to human mobility that goes far beyond simple enforcement and fundamentally recognises the rights to life and protection for all.
It is not so much the arrivals of migrants and refugees that should be put to question, but rather the response mechanisms which very often fail as much in the fields of prevention and rescue as in the processes deciding where and how people are permitted to move, disembark, stay or return. Protection today is provided only for a limited number of boat people who need it, and governed by systems of access and identification that are far too limited. Correct identification, differentiation and referral systems are needed for all migrants in distress and from the very moment of their arrival, not only because they are human beings, but also because such approaches reflect the quality of our societies….”
“Scope of this report – Gathering the results of nearly a half thousand surveys of first responders and other actors as well as the migrants themselves, this report examines what happens—or does not happen— to identify migrants in need of protection and assistance upon their arrival in Europe. In particular, it sheds light on the mechanisms developed, and gaps both in practice and in policy in responses to boat people and other migrants arriving in mixed migratory movements in four countries at Europe’s Southern door: Greece, Italy, Malta and Spain.
Although rescue at sea at one end and voluntary or enforcement-related return at the other are highly relevant topics and areas of research per se, DRIVE has focused on the situation of migrants at point of arrival. As such, the project and this report look at first responses in the phase immediately upon and surrounding arrival, and then to identification, differentiation and referral mechanisms for legal protection and/or further assistance in subsequent phases following arrival.
The principal focus of the project was on boat arrivals, but the shift in routes in Greece during the project period and the sharp increase in land border crossings there compelled reflection upon responses to migrants crossing land borders as well as those arriving by sea. While the project maintained its focus on arrivals by sea, one of its findings is that most of the laws, policies, procedures and responses applicable to boat people pertain equally to those arriving across land borders—in particular, steps on identification, differentiation and referral for protection and assistance.
The DRIVE project set out to promote protection of the rights of all migrants in these situations, especially the most vulnerable, regardless of their immigration status. Nevertheless, the project has highlighted four groups whose members have come to be defined to a varying extent as having specific rights or special needs under international and European legal instruments: asylum seekers, victims of human trafficking, children, and victims of torture. It merits emphasising however, that other migrants also have special needs because of particular vulnerabilities,- notably people with serious health problems, disabled people, elderly people, pregnant women, single parents with minor children and persons who have been subjected to or witnessed torture, rape or other serious forms of psychological, physical or sexual violence.
Structure of this report – The report is composed of four main parts, plus annexes:
Part 1: Building policy responses to boat people and others arriving in mixed migration flows – Within this first part, Chapter 1 provides a brief history of the policy evolution and the organizations involved in the area of mixed migration. Chapter 2 gives an overview of legal obligations relating to the rights of the migrants composing these arrivals. The third chapter provides an analysis of the EU policy and legal framework with regards to mixed migration arrivals at its borders.
Part 2: A focus on post-arrival identification, differentiation and referral for assistance and protection – The first chapter explains what is meant and implied by “identification, differentiation and referral”in mixed migration contexts, the concept at the core of the DRIVE study. The second chapter seeks to focus on the legal obligations of member states to conduct identification of people in need of protection at the border, with in-depth legal analysis of the rights and state obligations that international and EU law articulate for asylum seekers, children, and victims of human trafficking and torture.
Part 3: What happens to people arriving irregularly by boat in Greece, Italy, Malta and Spain? – The first chapter gives a snapshot of the trends and figures of arrivals in the Mediterranean region. In Chapter 2, the summaries of the four country reports (each presented in its entirety in an annex) then provide a look at the procedures and practices on the ground for first reception, identification and referral. The third chapter presents the results of the extensive migrants surveys that the DRIVE project conducted in the four countries in an effort to give voice to the beneficiaries themselves. Chapter 4 concludes with a comparative analysis identifying the main gaps and challenges in those countries.
Part 4: Conclusions and recommendations – The focus on the four countries enabled consideration of practices and procedures which could either improve the quality of the process or prevent people from accessing protection and assistance. Recommendations therefore seek to address how identification, differentiation and referral can be improved in the Mediterranean, including how the international and European legal and policy framework can address this question in a more comprehensive manner.
Annexes: Detailed mapping of the situation in Greece, Italy, Malta and Spain are attached in the annexes, as well as a presentation of some relevant tools and guidelines….”
Click here for Report.