EU Immigration and Asylum Law and Policy Droit et Politique de l'Immigration et de l'Asile de l'UE

By Eleonora Frasca, PhD Candidate in EU Migration Law at UCLouvain and Francesco Luigi Gatta, Research Fellow at UCLouvain, members of EDEM (équipe droits européens et migrations) 

   

Introduction

 

On 23 September 2019 an informal “mini-summit” was held in Malta to find a solution to the long-standing controversy over Search and Rescue (SaR), disembarkation and relocation of migrants in the Mediterranean, which had become a burning political issue since the summer of 2018. It convened Interior Ministers of Italy and Malta, searching for solidarity and fair responsibility-sharing, Germany and France, seemingly willing to offer some support in this regard, representatives of the European Commission and Finland, holding the Presidency of the Council.

 

The result of the summit was a Joint declaration of intent on a controlled emergency procedure: a preliminary text concerning a predictable cooperation mechanism to be discussed and further developed at the following Justice and Home Affairs Council meeting of 7-8 October 2019, so as to encourage other Member States to participate in the initiative. The declaration, however, did not gather a major success in the Council. Despite the expectations raised by intense media coverage before and after the summit, and political statements released by European leaders involved, the Malta initiative received lukewarm attention. The Council Conclusions dedicate only throwaway remarks to the matter, laconically affirming that “over lunch” the state of play of migration was discussed, together with “the recent declaration (…) on temporary arrangements for disembarkation”. Despite the Council cutting the issue short, others have depicted the Malta declaration as a positive development, a first step or even a turning point towards a much-needed European common action. Few months after its launch, the future of this initiative remains still unintelligible, being in principle open to Member States’ participation, yet in absence of a clear picture of those willing to adhere.

 

Background: the long and winding road to the Malta declaration 

               

The Malta declaration appears as the umpteenth attempt to advance a solution that will potentially alleviate and, at best, protract the aftermath of the so-called migration crisis. The origins of the initiative lie in a number of incidents triggered by former Italian Interior Minister Salvini’s “closed doors” policy and his belligerent approach towards NGOs’ rescue vessels, banned from entering Italian ports and left wandering offshore for days. Several “crises” were settled with informal and government-driven negotiations which enabled, time after time, the identification of a place of safety for rescued migrants’ disembarkation and subsequent relocation. Overall, these arrangements concerned around 600 individuals (see here). 

 

These initiatives have mainly had an intergovernmental nature and a voluntary and ad hoc basis, falling outside the EU legal framework. The European Commission has increasingly played the role of “broker” in order to facilitate solutions to the “crises” provoked by the single rescue vessel blocked in the Mediterranean. Yet, its involvement, as well as that of EASO and Frontex – mobilised to provide support for disembarkation and relocation procedures – does not address the legal issues surrounding such arrangements, especially in terms of compliance with the principle of the rule of law. Such “ship-by-ship” arrangements, indeed, have been kept secretive, with no official data nor technical information available, so that their negotiating and adoption processes remain non-transparent. Implementation is equally problematic, especially in terms of accountability for potential violation of migrants’ fundamental rights during the disembarkation and relocation procedures (compliance with rule of law and human rights obligations is discussed here). The Malta declaration confirms and even reinforces a trend towards informal solutions, agreed outside the EU legal and procedural framework, which has been alarmingly common in the last years’ decision-making process on asylum and migration matters. 

 

Legal analysis of the Malta Declaration: complexity of form and content

 

The declaration presents a twelve-point preamble, made of acknowledgments and general statements. After stating that the document represents “a specific temporary arrangement”, the framework for its adoption is set: first, international instruments and obligations relating to SaR are recalled (however only generically, without being spelled out), highlighting that they remain fully in place and are not affected by the ad hoc arrangement at hand (as if an informal declaration could even change the scope of well-established international obligations). Second, concerning the scope and the context, the preamble recognizes the need to deal with the “situation in the Mediterranean” (addressing all the migratory routes or just the Central Mediterranean one?) and the challenges faced by frontline Member States (all of them or just Italy and Malta, parties to the “agreement”?).

 

Besides a mishmash of recurring and rhetorically proclaimed general goals – preventing loss of life at sea, fighting smugglers’ business, reducing irregular migration, improving swift returns – the preamble identifies the specific rationale of the “agreement” in the need to tackle the “uncertainties regarding the disembarkation, reception and swift relocation on those on board” (§VII). 

 

Before going into details of the content of the declaration, it is worth clarifying that, as for the legal nature, it does not constitute a EU legal act, nor an international agreement (see CEPS and ECRE). As a “joint declaration of intent”, it merely represents a non-legally binding instrument, although the terminology used may appear misleading, oscillating from words suggesting obligations (“commit to”, “shall”, “have to”) to ones implying non-binding actions (“can”, “should”, “on a voluntary basis”).

 

Everything must change so that everything can remain the same

 

The declaration includes a disorienting mix of political and programmatic statements, some addressing very general issues, others outlining more precise provisions. Opposite to Salvini’s confrontational political approach, the change in the Italian Government in August 2019 created a window of opportunity for dialogue (see here), however, the revamped spirit of “European” cooperation appears inspired by old logics and “obsessions” (fight against irregular migration, quick and effective return, leverages and cooperation with third-countries, pull factor). For the sake of clarity, reflections are grouped around three main points: disembarkation, relocation, Search and Rescue (SaR). Although, logically speaking, SaR takes place at first, we will follow the order in which topics are presented in the declaration.

 

 

• Disembarkation

 

 

The declaration first addresses the most pressing issue, at least in terms of “political urgency” and as a matter of dispute between States: where to disembark migrants rescued at sea? This issue, which is closely related to the concepts of “safe place” or “port of safety” for disembarking rescued individuals, is debated under international law (see a previous post on this blog) due to a number of factors including the stratification of complex legal regimes related to rescue and assistance obligations in the case of persons in distress at sea: encompassing older customary law of the sea and many international conventions (§2.1.10 of the International Convention on Maritime Search and Rescue (SAR), Article 98(1) of UNCLOS, Regulation 33 of the SOLAS Convention, as modified in 2004) often complemented by soft law instruments (such as the MSC Resolution 167(78) on Guidelines on the treatment of persons rescued at sea) – and the lack of coherence in States’ divergent practices and approaches to the matter (for an overview of the complex legal regime and its evolution see here and here; for a discussion of shipmaster’s rights and duties under international law here;). 

 

Under EU law, Regulation 656/2014 (“Sea Borders Regulation”) establishes rules for border surveillance activities carried out by Member States at external sea borders in the context of operational cooperation hosted by one Member State under the coordination of Frontex (for an analysis of the Sea Borders Regulation in light of international law, see here; in light of human rights obligations, see here; for an appraisal of the limits of the Regulation, as emerged in the case of Aquarius rescue vessel, see here). 

 

Interestingly, although the Sea Borders Regulation has been conceived “to overcome the different interpretations of international maritime law adopted by Member States and their diverging practices” (Commission Proposal COM(2013)197, p. 1), the Malta declaration makes no reference to this EU legal instrument. In particular, it does not mention the rules applicable to interception of vessels, depending on where they are located at the moment of interception (Articles 6 to 8 of the Regulation). Under Article 10, the Regulation distinguishes between vessels intercepted in the territorial sea (§1(a)) for which disembarkation shall take place in the coastal Member State, and those intercepted on the high sea (§1(b)) for which disembarkation may take place in the third country from which the vessel is assumed to have departed and, if that is not possible, in the host Member State. The latter has to cooperate with the national Maritime Rescue Coordination Centre to identify a place of safety and, when such place of safety is designated, disembarkation of the rescued persons shall be carried out rapidly and effectively (§1(c)). As a residual rule, in case that a place of safety cannot be agreed “as soon as reasonably practicable”, the national units participating in the SaR operation shall be authorised to disembark in the host Member State.

 

Ignoring the existing EU provisions on disembarkation, the Malta Declaration establishes the need to create a more “predictable and efficient temporary solidarity mechanism” to ensure the “dignified disembarkation” of migrants. One might wonder: how can a solidarity mechanism be entirely “predictable” if it is merely temporary and available on an ad hoc basis? Can it really be “efficient” having a non-binding nature and being purely based on a voluntary commitment of a small group of States? Leaving these questions open, point 1 identifies three criteria to locate the place of safety for disembarkation. 

 

1. First, a general open clause is set, providing that “every Member State can always offer an alternative place of safety”. This being, in principle, on a voluntary basis, the only duty is to inform the European Commission accordingly. This clause is redundant and does not entail any added value nor a useful solution: it is exactly because of the voluntariness and the Member States’ unwillingness to step in that disembarkation issues have arisen.

 

1. Second, it is established that, in case of a disproportionate migratory pressure in a frontline State, an alternative place of safety “shall” be proposed, also on a voluntary basis. Despite the emphasis on the voluntary character, it has to be recalled that, in the landmark judgement M.S.S. v. Belgium and Greece, the ECtHR ruled that States have to avoid transferring asylum seekers from one Member State to another on the basis of the Dublin Regulation when the absence or the shortfall of reception conditions would be equivalent to an inhumane or degrading treatment prohibited by Article 3 of the ECHR. The same can be said about disembarkation if a disproportionate migration pressure would lead to a situation contrary to Article 3 ECHR. This seems to be in line with the Malta declaration, whose main purpose is to ensure the “dignified disembarkation of migrants” (§1).      

 

1. Finally, the third criterion (the only one with no explicit reference to the voluntary basis) states that State-owned vessels “shall” disembark the rescued persons in the territory of their flag State. It has been argued that this criterion is just an opportunistic one, being invoked on a case-by-case basis, in recent times notably by Italy and Malta, and erratically emerging in the comments of politicians to sustain harbour closures and their “anywhere but here” policy. The flag State criterion, in effect, can hardly be taken as a clear point of law, as it may be combined with a panoply of several possible parameters that are indeed often opportunistically singled out, including the ownership of the vessel, the place of its registration, the nationality of the NGO involved, that of the crew on board. Moreover, its application seems unrealistic also in practical terms, if the flag State is very far away from the place of rescue (on the flag State criterion and its legal and practical unfeasibility, see here).

     

Actually, besides the above-recalled EU rules applicable to Frontex SaR operations, identification of “a place of safety” is generally up to the shipmaster with two important considerations: “the duty of non-refoulement and the compulsory choice of the closest safe harbour inasmuch as a swift disembarkation is demanded by necessity”. Concerning disembarkation, ultimately, what is advanced in the Malta declaration is a set of options which are either based on a purely voluntary assumption of responsibility (1st and 2nd criteria) or on the theoretically possible (but practically not easily feasible) link between the place of safety for disembarkation and the territory of the flag State (3rd criterion). At the end of the day, the place of safety will be essentially located in frontline States, unless other Member States offer an alternative. This may happen any time or in case of “disproportionate migratory pressure”, whose exact significance, however, remains unexplained: What means “disproportionate”? By comparison to what? Has the “pressure” to be determined “by a sudden inflow of nationals of third countries” as prescribed in Article 78(3) TFEU or will it be assessed otherwise? 

 

 

• Relocation

 

 

Rescued asylum seekers, once disembarked, will need to be relocated. According to the declaration, this shall happen swiftly (“within four weeks”, §2). The need for rapidity is reiterated, as the relocation should happen using “a fast track system” (§4) and achieved “as fast as possible” (§5), while those not eligible for relocation shall be “immediately” subjected to a “effective and quick return” (§§4 and 7). To ensure rapidity, relocation should take place on the basis of pre-declared pledges before disembarkation. The rationale of such pre-emptive and pre-arranged distribution lies in the willingness to avoid repeating the previous situation, with long and exhausting negotiations between European governments, while migrants were left on-board rescue vessels for long periods. The declaration, however, provides no details whatsoever about quotas, percentages and distribution keys (will they be those already used for the 2015 emergency relocation scheme for Greece and Italy?). Once again one may wonder which added value it brings.

 

As for the actors involved, the European Commission is in charge of coordinating the mechanism, while participating Member States receive EU financial (funds), operational (agencies) and technical (EURODAC) assistance. The relocation mechanism follows Standard Operating Procedures (SOPs) “building on and improving existing practices”, namely the Hotspot SOPs.

 

Regarding beneficiaries, point 2 refers to “asylum seekers rescued at sea”, implying that only those who have lodged an application for international protection will be relocated. A confirmation may be indirectly found in point 1, which, on the contrary, generically mentions the disembarkation of “migrants taken aboard, on the high seas”. Accordingly, disembarkation is for everyone, while relocation is only for those who apply for asylum. Point 7, indeed, establishes that, after disembarkation, persons not eligible for international protection will be returned, “as necessary” with the support of the EBCG and IOM. There are no further indications about eligibility criteria. 

 

The Member States of relocation take over responsibility for assessing the asylum claims. Will national authorities be able to cherry-pick persons to be relocated (with a risk to discriminate) based on their own preferences (e.g. specific profiles, nationalities, families)? Will individual family ties and vulnerabilities be taken into account? The declaration remains silent on that. 

 

Uncertainties surround also the implications for the much-needed but yet stuck Dublin reform. The declaration calls for a sustainable reform of the CEAS, “taking into consideration the imbalances of burden between Member States and their reception capacities” (§11). Accordingly, the Malta declaration has been seen as an occasion for a possible compromise on Dublin, a blueprint for a future, more structured system of redistribution, which it is obviously not. On the other hand, it has been highlighted that relocation and solidarity à la carte, besides being in contrast with Article 80 TFUE, undermine the overall coherence and effectiveness of the EU migration policy.

 

 

• Search and Rescue

 

 

In the past years, SaR activities in the Mediterranean have faced a growing number of obstacles, undermining their effectiveness both in qualitative and quantitative terms. This is a consequence of the EU-backed, obstructive strategy adopted by Italy based on the fuelling of a cloud of suspicion against NGO-led operations, the criminalisation of solidarity towards migrants, the above-mentioned “closed-door” practice and cooperation with Libya. The latter has been harshly criticised, yet it has benefited from direct national and EU funding under the EU Trust Fund for Africa. Within the Council of Europe, for example, the Commissioner for human rights has urged States to review their cooperation activities with the Libyan Coastguard and postpone any additional support in its favour until some progress on human rights-compliance is shown. An application against Italy is pending before the ECtHR (S.S. and Others v. Italy) for potential violations of the ECHR occurred in “rescue” operations concretely carried out by the Libyan Coastguard but authorised and encouraged by Italian maritime authorities.

 

Instead of refraining from cooperation with Libya, the EU persists on it. The Malta declaration keeps going down this road, mirroring the content of the controversial Italian Code of Conduct for NGOs undertaking activities in migrants’ rescue operation at sea, it requires them “not to obstruct the Search and Rescue operations by official Coast Guard vessels, including Libyan Coast Guard” (§9). 

 

Conclusion

 

The Malta declaration risks providing another quick-fix measure, neglecting the bigger picture and does not appear suitable to attain its proclaimed objectives. 

 

First of all, it does not represent a “common effort”. The mechanism is entirely structured on a voluntary basis, so that honouring the commitments of the declaration purely depends on the goodwill of a handful of Member States. Second, it is not a “predictable” nor “efficient” solidarity mechanism. The Malta declaration does not guarantee solidarity, which is a legal obligation, not an option: it is established under EU primary law (Articles 67(2) and 80 TFUE) and has been ascertained by the CJEU in the 2017 judgment on the relocation mechanism, unsuccessfully challenged by Hungary and Slovakia. This has been reiterated by the Advocate General Sharpston in the opinion recently delivered in the cases opposing Hungary, Poland and Czech Republic.

 

Part of the incertitude surrounding the Malta declaration lies with a modus operandi that has characterised many of the recent migration-related actions of EU Institutions and Member States. Replacing law-making with perpetual political “declaration of intent” not accompanied by follow-up actions, happens at the expenses of migrants, several of whom die at sea. More uncertainties surround the functioning of the mechanism: criteria for disembarkation and relocation are too vague, generic and unfeasible, being de facto relegated to non-transparent negotiations between national authorities, which poses not few doubts as to the respect of the principle of rule of law. Not addressing the need for a fully functioning EU-wide SaR system and yet cooperating with Libya makes the declaration highly problematic. Without a proper framework for implementation, elaborated in the context of a legitimate, transparent and EU-driven decision-making process, the Malta declaration is destined to belong to the already long list of EU (in)actions that are running countless in the history of European legal answers towards migrant dignity-seeking journeys in the Mediterranean.  

 

While the President of the European Commission Von der Leyen has correctly affirmed that “we need to move from case-by-case solutions to a more permanent answer”, the President of the European Parliament Sassoli has indicated the right way to do so, clarifying that “Europe can only move forward when it combines responsibility with respect for human dignity and the principle of solidarity”. This wish has also been expressed by the Advocate General Wathelet in his opinion delivered in the case Jawo (C-163/17), who underlined that the EU has still not yet adopted “a genuine policy on international protection by ensuring that the principle of solidarity and the fair sharing of responsibility between Member States enshrined in Article 80 TFEU is a reality for the benefit not only of Member States, but above all of the human beings concerned”(§145).