21 February 2014

The Committee on Civil Liberties, Justice and Home Affairs (LIBE) on 20 February 2014 voted overwhelmingly in support of the compromise text on a Regulation for Frontex-coordinated surveillance of external sea borders. Operations not co-ordinated by Frontex are not covered. The proposed Regulation establishes rules on interception, search and rescue in territorial waters and the high seas, disembarkation, and the protection of fundamental rights of migrants in distress at sea. The compromise will now be put to a plenary vote in the European Parliament in April 2014.

The rules impose a clear duty on units participating in Frontex operations to ensure the safety and human dignity of intercepted or rescued persons. The proposed Regulation  provides that any operational plans for Frontex-coordinated operations must contain procedures to ensure that persons with international protection needs, victims of trafficking, unaccompanied minors and other vulnerable persons are identified and provided with appropriate assistance.

Under Article 9, ‘Member States shall observe their obligation to render assistance to any vessel or person in distress at sea’. Moreover, a Recital to the proposed Regulation states that ‘the shipmaster and crew should not face criminal sanctions for the sole reason of having rescued persons in distress at sea and brought them to a place of safety’.

In addition, the proposed Regulation prohibits the disembarkation of intercepted or rescued persons in a country where they would risk serious harm. Before disembarkation, units must use all means to identify the intercepted or rescued persons, assess their personal circumstances, inform them of their destination in a way that those persons understand, and give them an opportunity to express any reasons for believing that disembarkation in the proposed place would be in violation of the principle of non-refoulement.

At the same time, the compromise allows for Member States to conduct vessels or persons on board intercepted on the high seas – waters beyond the territory of any state – to a third country. Member States can also alter the course of a vessel intercepted in the territorial sea of a Member State to a destination outside the territorial sea of that Member State. Both of these permissions potentially undermine the right to asylum. Subject to the principle of non-refoulement, disembarkation may take place in the third country from which the vessel is “assumed”to have departed, leaving considerable flexibility to Member States.

The operational plan to be adopted before the launch of each Frontex operation must include details on the availability of shore-based medical staff, interpreters, legal advisers and other relevant experts, but only “when necessary”. In the case of Hirsi Jamaa and Others v. Italy, the Grand Chamber of the European Court of Human Rights, in finding a violation of Article 13 ECHR (guaranteeing the right to an effective remedy), attached great importance to the fact that the applicants, who were returned to Libya without their asylum applications being examined, had no access to information, interpreters or legal assistance.

While Parliament and the Council of the European Union approve of the proposed rules, German NGO Pro Asyl argues that the Regulation jeopardises the rights of refugees. Pro Asyl also questions the LIBE Committee’s assertion that push-backs on the high seas are prohibited by the Regulation.

This article originally appeared in the ECRE Weekly Bulletin of 21 February 2014
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