Summit Needs Rights-Based Approach to Boat Migration, Syria Refugees
October 23, 2013
EU leaders should move beyond expressions of regret and commit to concrete actions to help prevent more deaths of migrants at sea. New proposals for increased monitoring of the Mediterranean need to focus on saving lives, not barring entry to the EU.
Judith Sunderland, acting deputy Western Europe director

(Brussels) – European Union heads of state meeting in Brussels on October 24 and 25, 2013, should urgently adopt measures to improve sea rescues of migrants and asylum seekers trying to reach Europe, Human Rights Watch said today. The summit should also pledge more measures to facilitate access for refugees from Syria and protect their rights as they increasingly turn to dangerous boat migration. 

EU leaders agreed to discuss boat migration in the Mediterranean at the already-scheduled European Council summit after more than 360 people, mostly Eritreans and Somalis, died when their boat sank off the Italian island of Lampedusa on October 3. Just over a week later, on October 11, another boat capsized in the Sicilian channel. At least 36 bodies were recovered, and 206 Syrians and Palestinians were rescued.

“EU leaders should move beyond expressions of regret and commit to concrete actions to help prevent more deaths of migrants at sea,” said Judith Sunderland, acting deputy Western Europe director at Human Rights Watch. “New proposals for increased monitoring of the Mediterranean need to focus on saving lives, not barring entry to the EU.”

The European Commission created a task force to study boat migration following the October 3 tragedy and the European Parliament is expected to adopt a resolution on the issue on October 24.

Though framed in terms of saving lives, many of the proposed policy responses reflect the EU’s preoccupation with preventing departure and barring entry, Human Rights Watch said. These responses have brought to the fore longstanding disputes among Mediterranean EU member countries about responsibilities for rescue operations, for determining where those rescued may land, and for processing migrants and asylum seekers.

Enhanced efforts to save lives at sea need to go hand-in-hand with respect for other fundamental human rights, such as the right to seek asylum and protection against torture and ill-treatment, Human Rights Watch said. In particular, EU leaders should consider the following steps:

  • Ensure that increased surveillance of the Mediterranean, including through the new EUROSUR system, is focused on the paramount duty of rescue at sea;
  • Broaden the circumstances in which a boat is considered to be in distress and its occupants in need of rescue;
  • Amend the proposed new regulations for Frontex, the EU border agency, to ensure that migrants intercepted or rescued at sea are taken  to the closest safe port of call in an EU country;
  • Adopt binding rules to avoid disputes about disembarkation points to ensure that migrants are taken to a safe port of call in the shortest possible amount of time;
  • Limit disincentives for private vessels to conduct rescues by ensuring that the people rescued will be allowed to land quickly and by ending the threat of prosecution on charges of abetting irregular immigration;
  • Ensure compliance with EU and human rights law against refoulement – that is, returning someone to a country where they face the risk of torture or persecution. Also ensure against returning people to countries where they face the risk of chain deportations to torture or persecution because the countries involved lack asylum systems or other effective remedies against refoulement.

The EU should also undertake longer term measures to address the problem of dangerous migration, for example by developing orderly and legal entry mechanisms for asylum seekers, Human Rights Watch said. Immigration cooperation with sending and transit countries should be guided by respect for human rights, such as the right to leave any country, the right to seek asylum, freedom from arbitrary detention, freedom from ill-treatment, and, of course, the right to life.

The summit is also an occasion for EU leaders to make a commitment to do more to offer protection to refugees from Syria, Human Rights Watch said. The increasing numbers of would-be asylum seekers from Syria attempting the dangerous sea crossing has contributed to higher numbers of boat arrivals during 2013. Syrians and Palestinians from Syria are among those who have died in these crossings, along with Eritreans, Somalis, and others. EU member states should therefore:

  • Ensure access for asylum seekers from Syria to a speedy, full, and fair examination of asylum claims, regardless of the first EU country of entry;
  • Suspend forced returns to Syria as long as there is an armed conflict that causes indiscriminate violence or to transit states that do not provide effective protection;
  • Increase pledges to resettle refugees from Syria who are in neighboring countries to meet the numbers needing resettlement, as identified by UNHCR, the United Nations refugee agency;
  • Provide adequate reception facilities;
  • Avoid detention except as a last resort and for the shortest time possible. Do not detain unaccompanied children and families with children, and provide them with safe reception accommodations;
  • Examine ways to facilitate legal access to EU territory for people who have fled Syria and are seeking protection, including permitting asylum application at embassies of EU member countries, relaxing transit visa requirements, and easing restrictions on family reunification.

“The EU has pledged a lot of money to support Syria’s neighbors who are hosting refugees from the conflict, but member states have been less generous when it comes to providing refuge here in Europe,” Sunderland said. “As Syrians take to the seas along with others in desperate attempts to reach sanctuary, the EU should do much more to ensure that Syrians and Palestinians from Syria can get the protection they need.”

Background

Deaths at Sea
On October 3, 2013, over 360 men, women, and children died when their boat caught fire and sank off the coast of Lampedusa, a small Italian island in the Mediterranean. Just over a week later, on October 11, at least 36 bodies were recovered and some 200 people rescued after another boat carrying migrants capsized in the Sicilian Channel. Over 500 people are estimated to have died trying to cross the Mediterranean to Europe so far in 2013. 

While most media reports suggest that the boat that sank on October 11 was carrying up to 250 people, some survivors told the UN High Commissioner for Refugees (UNHCR) that between 400 and 500 people were aboard, which would make the death toll much higher. The UNHCR also expressed concern that the hull of this boat was damaged by shots fired after it left Libya. On September 17, Egyptian forces fired on a boat headed to Italy carrying between 170 and 200 Syrians and Palestinians who had fled Syria, killing two people and injuring two others. Survivors were detained in Egyptian police stations, including 25 children and a one-month-old baby.

The EU Proposals
President François Hollande of France proposed in advance of the summit a policy based on “prevention, solidarity, and protection.” Reflecting the general EU approach, Hollande defined these as including collaboration with countries of origin and countries neighboring conflict zones, more support for “Arab spring” countries, increased border surveillance, and a crackdown on people smugglers.

EU Home Affairs Commissioner Cecilia Malmström has advocated strengthening Frontex to enable it to perform search and rescue operations throughout the Mediterranean “from Cyprus to Spain.” Italy, Malta, Greece, Spain, France, and Cyprus have objected to new guidelines for Frontex operations in the Mediterranean – proposed by the European Commission in April, before the Lampedusa disaster – that would give the agency greater responsibilities for search and rescue as well as for determining where rescued migrants would land, contending that this is a matter for national governments to determine.

Malmström and other EU officials have stated that the new EU sea borders surveillance system, EUROSUR, approved by the European Parliament on October 10 and due to become operational in December, will help track and assist boats in need. EUROSUR is aimed at improving coordination among the surveillance systems of EU member states and developing new tools and reporting systems at national and EU levels.

On October 14 Italy began Mare Nostrum, which it describes as a “humanitarian military operation,” with four Navy ships, helicopters, an amphibious command center, and drones to increase surveillance and rescue capacity in the Mediterranean. Interior Minister Angelo Alfano has stated that migrants rescued by Italian sea patrols will not necessarily be taken to Italian ports, though. That raises concerns that migrants might be returned to North African countries such as Libya, which lacks a functioning asylum system and has a record of abusing migrants.

Increased monitoring of the Mediterranean with the clear imperative of saving lives will be a positive step only if accompanied by efficient coordination among states and clear, binding, and enforceable guidelines for the rules of engagement, the concept of distress, and for determining where people who are rescued will land, as well as a clear commitment to respect the rights of migrants and asylum seekers. At present, EU member states have differing interpretations of their obligations, especially at sea.

The laws of the sea impose clear obligations to provide assistance to vessels in distress, but this duty is often interpreted as being triggered only when there are clear signals or requests for help, allowing ships to ignore dangerously overcrowded and ill-equipped migrant boats. The proposed new EU guidelines for Frontex rightly insist on a broader notion of distress, taking into account the general seaworthiness of the boat, the number of passengers in relation to the type of boat, the presence of qualified crew and command, the availability of necessary supplies, and weather and sea conditions, among other factors.

The obligation to assist applies to all vessels at sea, whether commercial or military, passenger or freight. Private ships may, however, face economic and legal disincentives to assisting vessels in distress. Disputes over safe ports of disembarkation for rescued people and the reluctance of European countries to accept responsibility for them can mean delays. The result can be significant costs for commercial activities as vessels that carry out rescues are unable to continue their operations until the people they rescue can land. In some European countries, like Italy, shipmasters and crew have faced criminal prosecution on charges of abetting irregular migration when they insist on allowing rescued migrants to land.

European Court of Human Rights jurisprudence has established that Council of Europe countries, including all EU members, can be subject to the European Convention on Human Rights when they have people in custody, even outside the Council of Europe territory, including on the high seas.

The court has ruled that the right to protection against return to a country where an individual faces the risk of torture or persecution – the nonrefoulement principle – and the right to an effective remedy against potential or actual human rights violations apply on the high seas. The EU Charter on Fundamental Rights contains similar provisions and explicitly guarantees the right to seek asylum.

Yet the proposed new Frontex guidelines under examination by the European Council and the European Parliament would allow for returns to third countries for people intercepted on the high seas following a cursory assessment of protection needs and the situation in the country to which they would be returned. That would raise the risk of refoulement following snap decisions on the high seas.

Boat Migration
People have been undertaking dangerous sea journeys to Europe for decades, either in search of economic stability or a safe haven from war and persecution. Arrivals by sea fluctuate from year to year, with a recorded high of over 60,000 in 2011, and between 1,500 and 1,800 deaths that year. Arrivals dropped in 2012, with around15,000 people making the crossing and at least 500 losing their lives in the attempt. But the numbers have increased significantly in 2013: over 35,000 people reached Italy and Malta in the first ten months of the year.

Calculations of deaths at sea are inherently unreliable, as many bodies are never recovered. Various sources estimate that between 20,000 and 25,000 people may have died in the Mediterranean over the past 20 years.

In a major study of EU border management published in April, François Crépeau, the  UN special rapporteur on the rights of migrants, criticized the EU’s focus on enforcement over respect for rights, and urged EU countries to decriminalize irregular entry and stay, refrain from detaining vulnerable migrants, and create more avenues for legal migration.

Refugees from Syria
EU border-enforcement measures and the lack of a common EU approach to asylum seekers from Syria mean that many people fleeing the conflict take dangerous sea journeys to enter the EU irregularly. Those who make it to Europe face a protection lottery due to the varying quality of asylum procedures and reception conditions among EU countries. The European Commission and the EU high representative for foreign affairs and security policy jointly acknowledged this problem in June, when they called for a “greater degree of convergence” among EU countries in their response to refugees from Syria.

The UNHCR has repeatedly called on the EU to facilitate safe access for people fleeing Syria through flexible and simplified family reunification, humanitarian and other visas, and increased resettlement quotas.

According to UNHCR data from September, 47,000 Syrians had applied for asylum in EU countries since April 2011. The actual number of Syrians in the EU could be much higher, as many may have been unwilling or unable to apply for protection, depending on where they are. Greece recorded the entry of 15,072 Syrian nationals between January 2011 and the end of September 2013, but only 833 asylum applications through the end of July.

Syrians have high protection rates across the EU, primarily in the form of subsidiary protection, based on risk of harm of indiscriminate violence, as opposed to refugee status. But due to restrictive rules on family reunification for those without permanent refugee or other status, many from Syria in Europe have little hope of reuniting with their loved ones, who may be in countries neighboring Syria, Syria itself, or even other EU countries.

Germany and Sweden have received the largest number of Syrian asylum seekers, two-thirds of the total for EU member states, as of July. In September, Sweden said it would grant permanent residency to people from Syria to whom it had granted temporary residency for humanitarian reasons.

The same month, Germany welcomed the first group of the 5,000 refugees from the Syria conflict it has pledged to resettle from countries neighboring Syria. France and Austria have committed to resettling 500 Syrian refugees each. But few other EU countries have made more than token resettlement offers, despite a joint recommendation on resettlement by the European Commission and the EU high representative in June.

Large numbers of people fleeing Syria are seeking to enter the EU by sea. Over 9,800 Syrians and Palestinians from Syria reached Italy in the first nine months of the year, over one quarter of the total estimated arrivals. With the Greece-Turkey land border virtually sealed due to increased patrols, including by Frontex, and the construction of a 12.5-kilometer fence, more and more asylum seekers and migrants of all nationalities are setting off from the Turkish coast to reach Greek islands in the Aegean Sea. 

According to official statistics, 8,052 people made this journey in the first nine months of 2013, compared with 1,329 during the same period in 2012. Arrivals to the islands between January and August 2013 showed an increase of 726 percent over the same period in 2012. Human Rights Watch, Amnesty International, and UNHCR have heard direct accounts of life-threatening maneuvers by the Greek Coast Guard to force boats back toward Turkey.

“Johnny Attasi,” a 26-year-old Syrian, told Human Rights Watch that a boat he believed was a Greek Coast Guard vessel intentionally rammed and punctured the boat he and some 45 others were traveling on in the Aegean Sea in mid-March. When Attasi’s boat did not heed the other boat’s call to stop, he said, it sped toward them: “They make their ship fast and came and crushed our boat. When we had the crush, we felt the water coming inside the boat. We looked and there was a small hole…. Then a mother took her baby and showed it to say, ‘Look we have kids,’ and they came and crushed [us] again.” Attasi said that all the passengers, including 15 Syrians as well as Afghans and Iranians, ended up in the water but arrived safely on the Greek island of Mytilene.

“Abu Mohamed,” a 38-year-old Syrian, told Human Rights Watch, that men wearing uniforms matching the description of those worn by the Greek Coast Guard beat him and other men after their dingy reached the Greek island of Samos on July 31. He alleged that the men pushed his wife, who was three months pregnant, against their speedboat. She subsequently began bleeding and ultimately lost the baby, he said. Abu Mohamed said the uniformed men forced the group of 41 people – two Somalis and the rest Syrian, including 10 children – into the dingy and towed them back to Turkey, leaving them without fuel and far from shore. They were rescued by Turkish forces.

The heightened security on the Greece-Turkey land border has also rerouted flows of refugees to Bulgaria, where an estimated 2,000 Syrians have entered in the past two years. Bulgarian authorities recently said they expected to have to accommodate up to 11,000 Syrians by the end of the year, while also announcing the government’s intention to build a fence along its border with Turkey, similar to that along the Greece-Turkey border, to block entries. Increased arrivals in Bulgaria have exacerbated existing shortcomings in the country’s asylum system, including obstacles to applying for asylum, insufficient capacity in reception centers, and detention of some asylum seekers in locked facilities. 

Despite formal steps toward harmonization of asylum procedures and reception standards with the approval of revised EU rules in June, asylum seekers, including from Syria, experience gaps in protection. Many, including unaccompanied children, have trouble applying for asylum and face poor reception conditions and even detention in some countries.

Greek authorities said in April that Syrians would no longer be detained for irregular entry. In practice, however, Syrians are being detained in Greece to determine whether they are Syrian, sometimes for weeks. And like other asylum seekers, they may be kept in detention if they apply for asylum after being detained.

In early October, the UNHCR said it knew of 724 Syrians in detention in Italy, including women and children, and expressed concern about getting access to the detained people. In Bulgaria, some asylum seekers, including Syrians, are being held in locked detention centers due to insufficient space in open reception centers.

The Dublin regulation – the recently revised EU rule that generally requires the first EU country of entry to process asylum claims – imposes further burdens on asylum seekers from Syria. As with other asylum seekers,  Syrians and Palestinians from Syria seeking asylum risk  being returned to the first EU country they entered if they have travelled on to another country,  even if that first country lacks a fully functioning asylum system and adequate reception conditions, or otherwise offers less protection.

Aware of these constraints, the vast majority of Syrians and Palestinians from Syria arriving in Italy by sea, for example, refuse to be fingerprinted. There are troubling reports in the media and by nongovernmental groups of Italian police using intimidation tactics and physical abuse to force migrants to submit to fingerprinting. The vast majority of those arriving in Italy are ultimately released, often after 24 to 48 hours – though some groups have been held for up to two weeks – and then travel north with the ultimate goal of reaching Germany or Sweden. Germany has complained to Italy about letting migrants travel north and is among the countries strongly opposing meaningful reform of the Dublin regulation.