Migrant deaths in the Mediterranean: What can the EU do?

 

Steve Peers

The latest tragedies in the Mediterranean add to the enormous and growing death toll of migrants crossing that sea. Today EU ministers will consider the issue as a matter of urgency, and the Commission is due to propose an EU strategy next month. Here are some thoughts as to what parts of the EU response should be.

First of all, it is necessary to reinstate a major search and rescue operation. The EU’s ‘Triton’ operation which replaced the Italian ‘Mare Nostrum’ operation from the end of last year is obviously inadequate as regards saving lives – which is not its main purpose in the first place. Equally the assumption that the termination of Mare Nostrum would reduce the number of migrants willing to undertake the Mediterranean crossing – and die in the attempt – was obviously mistaken.

The new operation need not be an EU operation as such, due to legal questions about how much the EU as such can set up a search and rescue operation. Possibly the EU, or at least a large group of its individual Member States, can contribute toward the coordination and funding of a joint operation, rather than leave this entirely up to the Italian government as before.

Secondly, the EU has an established system for border surveillance, known as Eurosur. Its main focus in border control but it has a subsidiary role as regards detecting migrants in need of rescue. It could be focussed more on the humanitarian aspect, if necessary by means of a rapid amendment to the legislation establishing it – or alternatively, if there are legal doubts about this, by a parallel agreement among the Member States.  

Thirdly, the EU should address the important role of the private rescue of migrants. At present, the EU Directive prohibiting the smuggling of migrants specifies that any assistance to irregular migrants is prohibited – even if the person or organisation concerned is not acting for profit. There is only an option for Member States to exempt humanitarian assistance from the prohibition. This legislation should be amended as soon as possible to make this exception mandatory, clarifying that this also exempts private sea vessels which assist those in need (in accordance with the law of the sea) also benefit from the exception. Private vessels which lose money as a result of offering assistance (for instance, because they were diverted from catching fish) should be compensated by national or EU funds if necessary. This amendment could be fast-tracked, pending a more comprehensive review of the legislation to consider the best criminal law response to smugglers and traffickers.

Fourthly, there is a need to address the situation in countries of origin and transit, so that fewer people feel the need to make this risky journey in the first place. This also takes account of realpolitik: it’s not socially, economically or politically feasible for the EU to offer protection to everyone in the world that needs it. Of course, solving the conflicts and poverty that cause desperate people to flee in the first place is far easier said than done. But it would certainly be possible to fully review EU foreign policies and development aid funding with a view to addressing the root causes of migration.

In terms of a legal response, there are several other external aspects of EU migration policy. For those who have a need for international protection, many already receive support or protection in neighbouring and transit countries, and the EU could step up its contribution to such assistance.  A proportion of the people concerned are already resettled by Member States, and the EU could increase its support for this resettlement process. It might be useful to amend EU asylum legislation to confirm that the persons concerned have refugee status in the Member States concerned, in accordance with the EU’s ‘Qualification Directive’, upon arrival.

There’s also an existing legal framework for Member States to consider applications for asylum lodged at their consulates in third (non-EU) countries. At the end of 2013, the EU’s main court (the CJEU) already ruled in the Koushkaki case that the EU’s current visa code requires Member States to issue visas to applicants if the criteria for issue are met. The visa code mainly applies to short-term visas, not visas for people who need long-term international protection. However, the code also provides for rules on the issue of a short-term visa with ‘limited territorial validity’ (LTV). These visas are not valid in all Schengen states, but rather valid usually in only the single Schengen State which issues them.  

According to the current visa code, an LTV visa ‘shall be issued…when the Member State concerned considers it necessary on humanitarian grounds, for reasons of national interest or because of international obligations’. The important point is that an LTV visa can be issued where the usual conditions for issuing a visa are not met, for instance where there is insufficient evidence of an intention to return to the country of origin. Obviously, where a person has a genuine protection need, a reluctance to return to her country of origin is perfectly understandable; indeed, it is built into the very definition of refugee or subsidiary protection status (ie a well-founded fear of suffering persecution or serious harm in that country).

It’s arguable the 2013 CJEU ruling in the Koushkaki judgment also applies to LTV visas, in light of the word ‘shall’. Admittedly, that word is then qualified by the words ‘considers it necessary’. But arguably, at least in cases involving a potential international protection need, the EU Charter of Fundamental Rights requires that where a person applies for a visa from a (Schengen) Member State, the existence of such a need must be considered if it is alleged, and an LTV visa must be issued if such a protection need exists. It can hardly be denied that EU law (and therefore the Charter) applies whenever a third-country national applies for a visa from a Schengen Member State.

So the EU and its Member States could agree that this is the correct interpretation of the existing law, and take action to put it into effect, for instance adopting guidelines or standard rules for consulates on how to apply such obligations. EU funds could assist with any additional costs for Member States.

There’s also an immediate opportunity to address this issue by means of legislation, since proposed amendments to the visa code that would fully overhaul it are currently under discussion in the Council and the European Parliament (EP). These proposals raise many different issues, and the Council and EP are still at an early stage of discussing them. But it would be possible to split up the proposal and adopt an amendment to the LTV rules on a fast-track basis.

In a previous blog post, I suggested a simple amendment to the visa code to this end. This would simply amend the rules to state that an LTV visa ‘shall be issued…when it is necessary in order to ensure the international protection of the person concerned in accordance with Directive 2011/95 [the Qualification Directive], or when the Member State concerned considers it necessary…’.

In the longer term, other difficult and controversial aspects of an external protection policy could be developed. It would be possible to develop ‘joint external processing’ of asylum claims, as long as such processing in no way prejudices applications made at the border or on the territory of Member States, and entails the entry and stay of persons with international protection needs either on the territory of Member States, or on the territory of third countries which offer an equivalent level of protection. Nor should joint processing prejudice the resettlement of those groups of persons (such as Syrian refugees) whose need for international protection is obvious.

The problems associated with such joint processing should not deter the EU from taking the immediate steps outlined here that could reduce the death toll on the Mediterranean by stepping up rescue efforts and by giving more people with an established protection need a form of safe passage to the EU – either by means of resettlement of established refugees or assessment of asylum-seekers’ protection needs as an adjunct to the visa application process. There is a moral imperative for the EU to act swiftly and effectively to address the issue.

 

Photo credit: Daily Mail

Barnard & Peers: chapter 26

External processing of applications for international protection in the EU

Steve Peers

Last autumn's huge loss of lives near Lampedusa, when hundreds of migrants drowned in the Mediterranean, was one of the latest and most dramatic death tolls in the recent history of irregular crossing of that sea. It ought to have led to a complete rethink of EU policy toward border controls and visas, but did not - doubtless because of the belief that far-right parties would capitalise on the increased public concern about migration that would result.

Of course, irregular migration flows are 'mixed': they consist of some people with a legitimate need for international protection, as well as some people who don't have such a need. The former group has a right to enter and stay on Member States' territory, while the latter group in principle does not - although this obviously doesn't mean that such migrants should be left to drown.

While no potential solution to this dilemma is simple, or would solve all the related problems, a move towards greater external processing of asylum seekers would clearly be a step in the right direction. It would mean that at least some of those migrants with a legitimate need for international protection would be able to obtain safe passage to EU Member States' territory without having to risk crossing the Mediterranean in unsafe vessels, having had to pay unscrupulous smugglers a fortune to arrange their journey.

For the last decade, the idea of external processing of asylum applications was tarnished by its association with suggestions made by Tony Blair for a new approach to asylum seekers coming to Europe.  His ideas, which seemed to have been worked out on the back of an envelope, and were clearly inspired by Australia's 'Pacific solution' to refugees, envisaged external processing as the exclusive route for asylum seekers to obtain refuge in the EU.

They were incompatible with human rights obligations, and entailed a degree of cooperation from third countries which either would not have been offered, or should not have been accepted if it was. This approach might have entailed agreements with Khadafy's Libya, or Putin's Russia, to host refugees and asylum seekers. If Putin were currently in a position to release many thousands of refugees who wished to make their way to the EU, the Union's reaction to his annexation of Crimea and sabre - rattling in eastern Ukraine would be even milder than it is already - if that's possible.

A new approach

Blair's ideas have been kicked into the long grass several times by the EU. But certainly the idea of joint external processing in principle has merit, if it has completely different premises from his suggestions. In particular, such processing should in no way prejudice applications made at the border or on the territory of Member States, and must entail the entry and stay of persons with international protection needs either on the territory of Member States, or on the territory of third countries which offer an equivalent level of protection. Nor should joint processing prejudice the resettlement of those groups of persons (such as Syrian refugees) whose need for international protection is obvious.

However, the EU will need time to work out the details of joint processing, for instance how to allocate the beneficiaries of international protection between Member States. In the meantime, there is now a perfect opportunity to adopt rules on purely national external processing of asylum applications, in the form of the proposed amendments to the Schengen visa code.

This is the second of four posts on this blog dealing with these proposed amendments. The first post dealt with the impact of the proposals on EU citizens’ third-country national family members, and the remaining posts will deal with the substance of the proposals as regards short-term Schengen visas and the newly proposed ‘touring visa’.

The proposed amendments to the visa code retain the existing possibility for Member States to issue a short-term visa with ‘limited territorial validity’ (LTV), ie the visa is not valid in all Schengen states, but rather valid usually in only the single Schengen State which issues it. But admission to only one Member State is clearly better than facing a risk of harm outside the EU. Once the visa expires, the person concerned can be given a longer-term residence document; in fact, the EU’s qualification Directive requires that a recognised refugee or beneficiary of subsidiary protection must receive a residence permit, and the EU Directive on asylum procedures specifies that in principle asylum-seekers cannot be removed from a Member State’s territory before a decision is made on their application.

The new proposal would make no substantive changes to the current rules in the visa code on LTV visas (see Article 22 of the proposal, as compared to Article 25 of the current code). However, it would be open to the European Parliament and the Council to insist that changes ought to be made.

According to the current visa code, and the proposed amendments, an LTV visa ‘shall be issued…when the Member State concerned considers it necessary on humanitarian grounds, for reasons of national interest or because of international obligations’. The important point is that an LTV visa can be issued where the usual conditions for issuing a visa are not met, for instance where there is insufficient evidence of an intention to return to the country of origin. Obviously, where a person has a genuine protection need, a reluctance to return to her country of origin is perfectly understandable; indeed, it is built into the very definition of refugee or subsidiary protection status (ie a well-founded fear of suffering persecution or serious harm in that country).

It should be noted that the CJEU has recently ruled in the Koushkaki judgment that in principle an ordinary Schengen visa must be issued when the applicant satisfies the criteria to obtain one, subject to a wide degree of discretion for Member States’ authorities to assess whether those criteria are satisfied. Does the same rule apply to LTV visas? At first sight, it does, due to the word ‘shall’, although that is qualified by the words ‘considers it necessary’.

Arguably, at least in cases involving a potential international protection need, the EU Charter of Fundamental Rights requires that where a person applies for a visa from a (Schengen) Member State, the existence of such a need must be considered if it is alleged, and an LTV visa must be issued if such a protection need exists. The Member State’s Charter obligations would also be satisfied if it issues an LTV visa to the person concerned when the application for international protection is made, and considers the merits of the application while that person is on its territory. It can hardly be denied that EU law (and therefore the Charter) applies whenever a third-country national applies for a visa from a Schengen Member State.

The substantive law applicable to the consideration of the application would be the EU’s Qualification Directive, since that Directive does not limit its geographical application. However, the EU’s legislation on asylum procedures and reception conditions only applies to applications made at the border or on the territory of Member States. But since the EU Charter applies to applications for visas made on the territories of third States, it must follow that some basic standards compliant with the Charter would apply to the procedures and reception conditions would still be applicable. There would be no need to decide which Member State is responsible for considering the application, since the EU’s Dublin rules are subject to the same geographic limitations.

If this interpretation is correct, the current and proposed visa codes already include implicit rules covering those applying for international protection. However, it would be preferable to include express rules to this effect. There would be no need for elaborate provisions on this issue, since the details of such purely national forms of external processing of asylum applications do not need to be harmonised in great detail. It would be sufficient to provide that an LTV visa ‘shall be issued…when it is necessary in order to ensure the international protection of the person concerned in accordance with Directive 2011/95 [the Qualification Directive], or when the Member State concerned considers it necessary…’.

This would be a modest but important step towards reducing the appalling death toll of those migrants who cross the Mediterranean in search of a new life in the European Union.


Barnard & Peers: chapter 26