December 12, 2010

II. Abuse and Detention at Borders

There’s a corner with a guard where they keep foreigners who are not permitted entry.  There is no bed, only metal chairs.  I was with Georgians, Indians, Africans, and a Kuwaiti.  People [officials] asked for money.  If you gave US$500 0r US$600 you could enter [Ukraine].  They didn’t give anything to eat and no water.  I drank from the toilet tap.  I didn’t eat for four days. They said, “If you have money, we will let you enter.”  I was deported to Tunisia.
—Tunisian man who was deported but returned to Ukraine where he lives without proper travel documents, June 10, 2010

Men, women, and children often risk their lives to cross borders and are frequently subject to abusive treatment while in grey areas: no-man’s lands between border checkpoints, on the high seas, and at international zones of airports.  Many countries have border control policies that are hostile, discriminatory, and flout international standards, particularly along frontiers at the margins of territories that often lie beyond the sight of media and other witnesses.  Governments—often in the form of border and coast guards—may fail to screen migrants to identify asylum seekers, trafficking victims, unaccompanied children, and other members of vulnerable groups, or subject them to violence, extortion, poor conditions in detention, and refoulement (forced return to torture or persecution).

Egypt and Israel

As of November 2010, Egyptian border guards in 2010 had shot dead at least 28 migrants attempting to cross the Sinai border into Israel.  A government official said in March that security forces had “only” killed 4 percent of those attempting to cross in 2009.  Egypt continues to detain refugees and migrants and charge them with illegal entry before military courts that do not meet international fair trial standards.

Many of those trying to cross into Israel at or near the Sinai border come from refugee-producing countries such as Eritrea and Sudan.  Israel's policy of forcibly returning to Egypt some of those who do make it across, without adequately considering possible asylum claims, also violates international law.  Migrants and refugees who Israel forcibly returns to Egypt face arbitrary arrest and detention, unfair trials before military courts, and forcible deportation without the chance to make asylum claims.

Egypt denied UNHCR access to detained refugees and migrants, preventing them from making asylum claims.  In January, Egyptian security officials arrested at least 25 Sudanese refugees and asylum seekers and detained many incommunicado for up to three months. Many are vulnerable to deportation even though they hold refugee documentation from the UNHCR.  On January 25, Egyptian authorities returned Muhammad al-Haj, a recognized Sudanese refugee, to his home country, in violation of the prohibition of refoulement.

Human Rights Watch recommends that the Egyptian government:

  • Order border police to use lethal force only as a proportional and necessary response to a threat to life, and conduct a thorough and impartial investigation into the killings of African migrants, make the results public, and prosecute responsible border police officers and officials with oversight responsibility.
  • Cease using military tribunals to try civilian migrants, refugees, and asylum seekers detained in the Sinai.
  • Guarantee UNHCR access to all migrants who have international protection needs in official custody.

Human Rights Watch recommends that the Israeli government:

  • Conduct no additional "coordinated returns" to Egypt of persons who cross the Sinai border until:
    • Israel institutes a system that ensures border-crossers the ability to present asylum claims, and
    • Egypt credibly guarantees that it will respect returnees' rights under international human rights and refugee law and not to return them to countries where they could face persecution.

Italy and Libya

Since May 2009, Italy has joined forces with Libya to patrol the waters from the coast of Libya to Italy’s Mediterranean territories, principally the island of Lampedusa.  Libya in 2010 operated patrol boats provided by Italy with Italian personnel on board to interdict boat migrants on the high seas and in Libyan waters and return them summarily to Libya with no screening to identify refugees, the sick or injured, pregnant women, unaccompanied children, victims of trafficking, or victims of violence against women.

All interdicted boat migrants are detained upon arrival in Libya in overcrowded and unsanitary conditions.  Libya is not a party to the 1951 Refugee Convention and has no asylum law or procedure.  In April, Libyan Foreign Secretary Moussa Koussa said his country “does not have any refugees but only illegal migrants who break the laws.”  In July the government said that there were 3 million irregular migrants in Libya. A new law on “Illegal Migration” criminalizes trafficking of migrants but does not mention protections for refugees. 

 In June, Libya closed the office of the UN High Commissioner for Refugees (UNHCR) in Tripoli and expelled its representative.   It later allowed the office nominally to reopen but only with highly restricted permission to work on behalf of refugees and asylum seekers whom it had registered prior to closing, and without access to newly detained migrants and asylum seekers.

On June 28, a group of detained Eritrean migrants tried to escape from a migrant detention center after Libyan officials allowed Eritrean embassy officials to take their photos and forced them to complete forms raising fear of deportation.  In response, Libyan authorities transported 245 Eritrean detainees from the Misrata detention on Libya’s northern coast to another detention center at al-Biraq, north of Sabha, in an apparent attempt to deport them. Some of these Eritreans were among those whom Italy had forcibly returned to Libya without giving them an opportunity to claim asylum.  After an international outcry, Libya released this group but did not provide them with any support or protection.  They remain in Libya.

Human Rights Watch recommends that the Libyan government:

  • Sign and ratify the 1951 Refugee Convention and its 1967 Protocol and establish asylum procedures in conformity with international refugee standards.
  • Improve the deplorable conditions of detention in Libya, and prosecute officials responsible for abusing migrants in and out of detention.

Human Rights Watch recommends that EU institutions and member states:

  • Refrain from concluding multilateral or bilateral readmission agreements with Libya until Libyan policies and practices with regard to migrants, refugees, and asylum seekers fully meet international standards.
  • Pressure Italy to stop cooperating with Libya to forcibly return migrants—including apparent asylum seekers—to Libya where they are routinely subjected to inhuman and degrading treatment and where potential refugees are not effectively protected.
  • Ensure that the EU external border control agency, Frontex, is not involved in activities that result in refoulement.

Hungary, Slovakia, and Ukraine

On January 1, 2010, a readmission agreement between the European Union and Ukraine came into force that provides for the return of third-country nationals who enter the EU from Ukraine.  Readmission agreements are a cornerstone of the EU’s so-called externalization strategy for asylum and migration, the core of which is to stop the flow of migrants and asylum seekers into the EU by shifting the burden and responsibility for migrants and refugees onto countries that neighbor the Union, in this case Ukraine.

Ukraine has a dysfunctional asylum system, and from August 2009 through August 2010, no government body had the mandate to recognize or provide protection to refugees.  Ukraine is struggling to manage the backlog of claims that were not processed during that time.  Not only has Ukraine been unable or unwilling to provide effective protection to refugees and asylum seekers, it has also subjected some migrants who returned from neighboring EU countries to torture and other inhuman and degrading treatment.  

Out of 161 interviews of refugees, migrants, and asylum seekers in Ukraine, Slovakia, and Hungary whom Human Rights Watch interviewed in June 2010, 48 said they had been returned from Slovakia or Hungary.  Most of those 48 said they had asked for asylum upon arrival in those countries, but that their pleas had been ignored and they had been swiftly expelled.  These practices breach the right to seek asylum contained in the binding EU Charter of Fundamental Rights.  Both Slovakia and Hungary also returned unaccompanied children to Ukraine in violation of their international obligations to protect them.

Human Rights Watch recommends that Slovakia, Hungary, and other EU member states:

  • Suspend the return of third-country nationals to Ukraine under the EU-Ukraine readmission agreement or bilateral readmission agreements until Ukraine meets international standards with respect to the human rights of returned migrants, particularly with regard to the practice of torture, inhuman or degrading treatment, and arbitrary detention and until Ukraine demonstrates willingness and the capacity to provide a fair hearing to asylum seekers and effective protection to refugees.

Human Rights Watch recommends that Ukraine:

  • Ensure that all migrant detainees in state custody are treated in a humane and dignified manner and that their detention fully complies with Ukraine’s international obligations governing the administrative detention of migrants.
  • Immediately investigate allegations of torture and abuse of migrants in State Border Guard Service custody, including at the time of apprehension and in all phases of detention and transfer.
  • Ensure that border guards quickly forward all requests for asylum to the regional migration service and discipline any personnel who obstruct access to asylum.

Greece and the European Union

In 2010, Greece was faced with 10,000 requests by other EU member states to return migrants and asylum seekers there under the Dublin II regulation, the instrument that assigns responsibility among EU states for examining asylum claims.  Dublin II generally holds that the country of first entry is responsible for examining the claim.  Greece was the entry point for about 75 percent of the 106,200 irregular migrants entering the EU in 2009; that percentage rose to 80 percent in the early months of 2010, according to The Economist. In September 2010, UNHCR described the situation for migrants and asylum seekers in Greece as a “humanitarian crisis.” 

Despite the government’s repeated commitments to overhaul its broken asylum system, restore appeal rights, ensure humane treatment for migrants, and police accountability for ill-treatment, it had made no progress in any of those areas by year’s end.  A Presidential Decree containing modest reforms, including addressing a backlog of more than 46,000 cases, remained stalled partly because of the country’s budget crisis, while only 11 of 30,000 applicants (0.04 percent) were granted asylum at first instance in 2009.

Migrants and asylum seekers continued to be detained in substandard conditions, with little or no assistance to unaccompanied migrant children and other vulnerable groups, many of whom live in destitution or on the streets, at risk of exploitation and trafficking. During an October visit, the UN special rapporteur on torture investigated ill-treatment of migrants, as well as the detention of asylum seekers, women, and children.  On October 20, he called on the EU not to transfer asylum seekers to Greece under the Dublin II regulation.

Human Rights Watch recommends that other EU member states:

  • Suspend all Dublin II transfers to Greece.

Human Rights Watch recommends that Greece:

  • Invite UNHCR to take over its asylum system as long as it is incapable of doing so.
  • Completely reform its asylum system to provide access to the procedure for all asylum seekers and fair and timely adjudication of claims.
  • Improve conditions of detention in all places of migration detention to meet international standards.

Spain

The Canary Islands government's decision to keep 200 unaccompanied migrant children in emergency shelters, which are not subject to normal care regulations, puts the children at risk and threatens their well-being.  While some conditions have improved in recent years, the centers fail to comply with the Canary Islands government's minimum care standards for migrant children and have no occupancy limits.  The approximately 100 children in the biggest and most secluded emergency center, La Esperanza, receive low-quality food, lack adequate heating, hot water, and blankets, and report exposure to frequent violence from other children.

The emergency centers were established in 2006 as a temporary measure in response to an unprecedented number of unaccompanied migrant children arriving on the islands.  Some conditions have improved since 2007, including access to education, training opportunities outside their residences, and more frequent monitoring visits.

Other serious concerns also persist in emergency centers.  These include the absence of a functioning mechanism to file confidential complaints, mixing of younger children with older peers in one emergency center, insufficient access to the asylum procedure, absence of occupancy limits, and limited opportunities to become integrated in the community.  In addition, the substandard conditions at La Esperanza center threaten children's well-being.

The Canary Islands government informed Human Rights Watch orally on June 15 that it plans to close down La Esperanza emergency center by December 2010 and move children to other centers, including the emergency centers at Tegueste and Arinaga.  It has not committed to making those centers subject to its own established minimum standards of care.

Human Rights Watch recommends that the government of the Canary Islands:

  • Close La Esperanza emergency center as a matter of priority and transfer all children to adequate care arrangements.
  • End the emergency regime as a whole and bring all centers for unaccompanied minors in line with Canary Islands minimum standards and occupancy limits for centers accommodating unaccompanied migrant children.