II. EU Externalization in Practice
Among the specific flaws in the externalization agenda is the EUs choice of countries to target as partners for cooperation and assistance in migration management.
Countries neighboring the EU in the east or in the south across the Mediterranean are experiencing increasing numbers of migrants and asylum seekers in transit trying to reach EU territory.15 The EU is pursuing partnerships with countries that have yet to implement systems for handling migrants and asylum seekers that provide necessary protections. Although they are not safe countries, it is expedient for the EU to characterize them as such. More and more migrants and failed asylum seekers are returned to these countries under readmission agreements.
Consequently, many of the EUs neighbors carry a heavy responsibility (in logistical, technical, and financial terms) for the identification, apprehension, detention, and eventual return of migrants, as well as responsibility for identifying asylum seekers and providing them with a full and fair asylum determination procedure.
Ukraine demonstrates the difficulties for newly independent or less developed states on the borders of the European Union seeking to balance what is essentially an agenda to prevent irregular migration to the EU with the need to respect the rights of the migrants, refugees, and asylum seekers on its territory.
Ukraine falls substantially short of its international obligations toward migrants and refugees. Notwithstanding recent legislative improvements and a proposal to develop a new state migration service under the ministry of interior, it has an inadequate system for dealing with asylum seekers, migrants, and refugees. Repeated institutional restructuring has led to periods of complete suspension of asylum procedures, and very strict application deadlines are difficult for many asylum seekers to meet. Problematic institutional policies, such as profiling particular national groups who are automatically refused the possibility to make an asylum claim, further undermine the system. Migrants and asylum seekers at the countrys western border with the EU face a significant risk of detention, and once in detention, border guards sometimes refuse to forward applications for asylum in Ukraine from detainees to regional migration services. There is ineffective protection against refoulement both for persons sent back from Poland, Hungary, and Slovakia after attempting to gain access to the EU, and for other asylum seekers in detention in the interior.16
Effective protection in Ukraine is limited by a series of factors: lack of prior experience in managing migratory flows, a judicial tradition in which administrative law is not thoroughly developed or functional, institutional structures that are lagging behind, limited resources for social support and integration due to a strained economy, no tradition of asylum, and the lack of a human rights culture.
Migrants and asylum seekers in Ukraine are routinely subjected to substandard conditions of detention, physical abuse, and verbal harassment. Severe overcrowding was a serious problem in most of the detention facilities visited by Human Rights Watch when researching our report about Ukraine, On the Margins, in early 2005.17 Many detainees were deprived of appropriate bedding and clothing, and access to exercise, fresh air, natural light, adequate food, and medical services. Those in detention lacked basic procedural rights, including access to counsel, doctors, and interpreters, the right to challenge effectively the lawfulness of their detention, and the opportunity to communicate with family, friends, and the outside world. Many migrants and asylum seekers we interviewed were not informed of the reasons for their detention nor told how long they were likely to remain in detention. Although Ukrainian law provides a limit on the length of immigration detention, those time limits had expired in many of the cases we researched.
The long periods of detention, combined with severely substandard conditions and lack of procedural guarantees, raise serious concerns that detention conditions in Ukraine for migrants amount to cruel, inhuman, or degrading treatment in violation of the European Convention on Human Rights.
In September 2006, a delegation from Human Rights Watch returned to Ukraine to determine what progress had been made with respect to rights protections for migrants and asylum seekers. Representatives from nongovernmental and intergovernmental organizations indicated that the conditions of detention and the problem of refoulement remain serious concerns. Ukraine thus cannot be considered a safe third country for the purpose of returns. In light of this, Human Rights Watch and other actors have advocated for a transition clause to be inserted into the EU-Ukraine readmission agreement, currently under negotiation and slated for adoption by the end of 2006. A transition or suspension clause would delay any returns of third country nationals from the EU to Ukraine until Ukraine can provide effective protection and guarantee the human rights of asylum seekers and migrants on its territory (see section below on readmission agreements).
The case of Libya
There are many parallels between conditions in Ukraine and Libya, but the latter presents some issues of specific concern. Pressure from the European Union that Libya should stem the flow of migrants transiting its territory has contributed to an all-out retreat from Libyas previous open door policy for foreigners. The Libyan government has toughened its border controls and in recent years has implemented a plan to arrest and forcibly return tens of thousands of migrants, refugees, and asylum seekers. In researching our recent report on Libya, Stemming the Flow,18 we found that the plan has led to arbitrary arrests, physical abuse, lengthy and arbitrary detention in poor conditions, and forced deportations without the opportunity to seek asylum, all of which violate Libyan and international law.
Libyan security officials typically arrest migrants, refugees and asylum seekers at or near the bordersentering or departing the countryor during urban sweeps. In both cases, migrants, refugees, and asylum seekers reported physical abuse by Libyan police and prison guards, sometimes allegedly resulting in deaths. They complained of overcrowding in detention facilities, poor sanitation and food, not knowing the reasons for their detention, and not having access to a lawyer or legal review. Some individuals who transited through Libya told Human Rights Watch that they witnessed Libyan security officers sexually abuse women in detention. In many cases, migrants, refugees, and asylum seekers reported that the police or guards let them go after they paid a bribe. Corruption in the form of collusion between authorities and people-smugglers was also alleged by some of the migrants interviewed by Human Rights Watch.
Our report on Libya also examines abuses during the deportation process, concluding that while the majority of people Libya has sent home in recent years were economic migrants, some were refugees who faced the risk of persecution. Libya has given foreigners in the deportation process no opportunity to seek international protectionLibya has no asylum law or procedure, has not signed the 1951 UN Convention relating to the Status of Refugees (although it has signed the OAU Convention Governing the Specific Aspects of Refugee Problems in Africa), and refuses to sign a formal agreement with UNHCR. Officials told Human Rights Watch that the introduction of an asylum law was being contemplated, but as of October 2006 no draft had been made public. Some government officials said that such a law was not necessary because all foreigners in Libya were economic migrants, but other officials were more candid, telling Human Rights Watch that introducing an asylum law would encourage foreigners to come like locusts.
Consistent with its reasoning that there are no asylum seekers in Libya, the Libyan government claims it is only returning unauthorized economic migrants, so they face no risk of torture. The Libyan government maintains it is incurring great expense to do such migrants a favor by preventing them from embarking on the dangerous sea route to Italy, on which hundreds of people die every year in overcrowded boats.19 However, according to some reports, deportees were sometimes left stranded and died along the way during deportations by the Libyan government back to their countries of origin. On April 14, 2005, the European Parliament passed a resolution that called on the Italian government to cease the collective expulsions of migrants and refugees to Libya due to that countrys recent massive repatriations of foreigners in conditions guaranteeing neither their dignity nor their survival. The resolution cited Libyan sources as reporting 106 alleged deaths resulting from these expulsions.
The Libyan and Eritrean governments apparently have an agreement for the return of Eritrean nationals, which puts Eritrean refugees in Libya at particular risk. Since 2002, Libya has deported hundreds of Eritreans, and some of them have faced serious abuse upon their return. A well publicized mass deportation took place on July 21, 2004, when Libya forcibly returned 109 Eritrean nationals on an Italian-funded Air Libia Tibesti chartered flight. According to human rights groups, the Eritrean government detained the deportees upon arrival and held them incommunicado in a secret prison. On August 27, 2004, the Libyan government attempted to forcibly return another group of seventy-five Eritreans, among them six children. Afraid of returning home, some of the Eritreans hijacked the plane and forced the pilot to land in Sudan, where sixty passengers sought asylum and were recognized as refugees by UNHCR.
In pursuit of good relations with the EU, neighboring states may not only seek to comply with EU external policy initiatives on migration and asylum, but also to emulate the worst of EU internal approaches to these issues, particularly with regard to detention and expulsion.
Ukraine illustrates this concern. The EU is Ukraines biggest donor, and has had a significant influence on its democratization and reform processes.20 Since 1998, relations between the EU and Ukraine have been based on a Partnership and Cooperation Agreement.21 The EU has not encouraged Ukraine to make a membership application, offering it instead a place in its European Neighbourhood Policy (ENP) framework. Given the strategic, political, and economic importance to Ukraine of its relationship with the EU, the government in Kyiv has a clear interest in cooperating with the EU on the management of migration and asylum flows on the EUs terms. The same could be said of many countries with which the EU is implementing or developing cooperation on migration and asylum. Ukrainian officials have stated, however, that cooperation on migration matters must benefit both the EU and Ukraine, and consequently have raised concerns over the EU-Ukraine proposed readmission agreements provisions for the return to Ukraine of third country nationals.22
Libyan officials who spoke to Human Rights Watch were critical of the levels of support their country receives from the EU on migration, and utterly rejected the idea of hosting offshore processing on behalf of the EU. Nevertheless, Libya appears eager to please and emulate its key bilateral European partners in migration matters. A January 17, 2006 press release by the Italian Ministry of Interior, concerning a meeting between Libyan leader Muammar al-Qadhafi and Italys then-Interior Minister Giuseppe Pisanu, stated that in just over one year Italian-Libyan cooperation had prevented 40,000 undocumented people from leaving Libya.23 Libyan officials told a delegation from the European Parliament visiting Libya the previous month that Libyas goal is to repatriate all illegal immigrants we receive from Italy.24 This summer, negotiations between the EU and Libya continued on joint naval patrols in the Mediterranean to interdict irregular boat migrants. In mid-September, Italy announced an agreement to deploy Italian police on Libyan territory to work with Libyan law enforcement in preventing people from leaving Libyas northern coast by boat.
The EU member states that receive the bulk of the transit migrants, refugees, and asylum seekers who pass through Libyanotably Italypresent the bad example of their own mandatory detention and unlawful expulsion practices. In bilateral cooperation to bolster Libyas interception capacities25 they have been unwilling to advocate for refugee and human rights protection including safeguards against arbitrary detention and risky expulsions from Libya. Such safeguards would impede the speedy removal (and hence disappearance from visible accountability) of persons whom they themselves have forcibly returned to Libya, or whom Libya has intercepted with their encouragement and assistance.
The EU is placing increasing emphasis on the use of readmission agreements as a mechanism to facilitate the return of migrants and asylum seekers to countries outside the borders of the EU.26 A readmission agreement is usually a bilateral arrangement that enables the return of undocumented persons from one state to another. Readmission agreements between the EU and a state function in exactly the same way.27
In theory, readmission agreements are not designed to interfere with the right to seek asylum. In practice, those subject to return under such agreements include not only irregular migrants and failed asylum seekers but also asylum seekers whose claims for asylum and protection needs have yet to be adequately determined. The agreements are also used to refuse admission at the border to asylum seekers without determining their protection needs.28 This approach undermines the right to seek asylum and conflicts with Article 31 of the 1951 Refugee Convention, which prohibits penalties against refugees for unauthorized entry.
UNHCR has expressed concern about the impact of readmission agreements on the right to seek asylum.29 In particular, UNHCR has questioned whether persons subject to return under such agreements will have access to effective and durable protection in the country of return, and has expressed concern about the use of such agreements to return third country nationals, emphasizing that transfers of responsibility for considering asylum applications should only be explored in cases where the applicant has a connection or close link with another State. 30
Negotiations on an EU-Ukraine readmission agreement began under the framework of the Partnership and Cooperation Agreement and the EU Justice and Home Affairs Action Plan.31 Ukraine already has long-standing bilateral readmission agreements with Hungary, Poland, and Slovakia. The three bilateral agreements cover not only Ukrainian nationals, but also citizens of third countries and stateless persons. The older agreements lack an express obligation to ensure that the returnees will have their asylum claims processed in a fair and effective manner upon readmission, do not include a prohibition on the return of asylum seekers, and do not require receiving states to put into place adequate procedural safeguards to protect against refoulement, including return to risk of torture. Nor are protection mechanisms provided for vulnerable groups or for victims of trafficking.
In light of the problematic impact of current readmission agreements, the agreement being negotiated between the EU and Ukraine raises concerns regarding the content of its guarantees, as well as its likely operation. It remains unclear whether the agreement will contain an effective mechanism to ensure that returnees will have their asylum claims processed in a fair and effective manner upon readmission. The fairness and effectiveness of the accelerated procedures under which the returns would take place remains unclear, including whether those subject to return would have the right to an appeal with suspensive effect against refoulement, including return to risk of torture.
Given that Human Rights Watch research indicates that Ukraine does not provide effective protection or access to asylum, and fails to protect the rights of migrants, any readmission agreement negotiated between the EU and Ukraine must include language that guarantees that persons subject to the agreement will not be readmitted to Ukraine in violation of their basic human rights, including the right of those within the EU to seek and enjoy asylum in the EU state responsible for examining their claim. Such an agreement must take into consideration the necessary resources and the timeframe required to amend Ukrainian migration and asylum legislation and upgrade reception and accommodation conditions in the country.32 The same concerns must apply to other agreements under negotiation between the EU and third states.33
The EU admitted Ukraine as a partner in its European Neighbourhood Policy framework as a state sharing a mutual commitment to common values principally within the fields of the rule of law, good governance [and] the respect for human rights. One of the first priorities identified under the ENP was cooperation in the area of justice and home (internal) affairs. The priorities for cooperation include: readmission and migration, border management [and] trafficking in human beings.34 The EU Action Plan on Justice and Home Affairswith Ukraine further defined the areas for cooperation in this field.
This cooperation may be setting Ukraine up to fail in its human rights obligations toward migrants and asylum seekers. Because it lacks much of the necessary legal and policy framework and the proper accommodation capacity required to provide protection to refugees, process asylum seekers, and respect the rights of migrants, Ukraine runs the risk of becoming a warehouse where asylum seekers and migrants are detained in conditions that flout international law. It remains to be seen whether Ukraines inclusion in a pilot Regional Protection Programme will address this.
The EU and the Ukrainian authorities expect the readmission agreement to be finalized by the end of 2006. Any agreement brokered in 2006, however, would require a transition or suspension clause, delaying the readmission of third country nationals to Ukraine from EU territory until such time as their protection needs and human rights could be guaranteed on the territory of Ukraine.
The cooperation between the EU and Libya is equally troubling. While it is not at this stage negotiating a readmission agreement, the EU is moving forward on cooperation with Libya without prioritizing protection, including negotiations on joint naval patrols, and with human rights conditionality more rhetorical than real. The EU Justice and Home Affairs Council, at a meeting on June 2-3, 2005, said that any cooperation with Libya on migration will be limited in scope and take place on a technical ad hoc basis as long as Libya has not fully integrated into the Barcelona Process. While this statement implies human rights conditionality,35 at the same time the EU Justice and Home Affairs Council indicated a willingness to move ahead on a series of such ad hoc measures.36
These measures include reinforcing systematic operational cooperation between agencies responsible for enforcing sea borders and developing common Mediterranean Sea operations involving the temporary deployment of EU member states vessels and aircraft;37 sending EU immigration liaison officers to Libyan seaports and Tripoli airport for interception purposes;38and training Libyan officials on immigration controls, as well as on asylum issues, and on best practices for removal of irregular immigrants.
The Conclusion endorsed at the June 2005 Justice and Home Affairs Council meeting also calls for launching exploratory discussions between the EU and Libya to develop concrete cooperation to tackle illegal migration in areas such as training, reinforcement of institution building, asylum issues, and public awareness of the dangers of illegal migration.39 Among the list of suggestions for these discussions in the short term is how to assist in the repatriation of failed asylum seekers after an independent asylum procedure in accordance with international standards.40 This is a curious short-term discussion item given that Libya has no asylum procedure. The same list of short-term items for discussion also includes intensified cooperation and capacity building for migration management and protection of refugees in cooperation with UNHCR,41 but the EU does not set as a precondition for cooperation either that Libya should sign and implement the 1951 Refugee Convention or that it enter into a formal agreement with UNHCR. In the absence of a clearly agreed role for UNHCR, the EU states interest in offering training on asylum issues and best practices for removal of irregular immigrants to Libya does not inspire confidence.
15 In 2004, 900,000 irregular immigrants were refused entry to the EU, 380,000 were arrested in unlawful situations and 200,000 were expelled, according to Justice, Freedom and Security Commissioner Franco Frattini. Inauguration speech of the Frontex Agency, 2nd meeting of the Management Board of the European Agency for the Management of Operational Cooperation at the External Borders of the Member States, SPEECH/05/401, Warsaw, June 30, 2005, http://europa.eu.int/rapid/pressReleasesAction.do?reference=SPEECH/05/401&format=HTML&aged=0&language=EN&guiLanguage=en (accessed July 7, 2005).
17 Human Rights Watch, Ukraine - On the Margins: Rights Violations against Migrants and Asylum Seekers at the New Eastern Border of the European Union, vol. 17, no. 8(D), November 2005, http://hrw.org/english/docs/2005/11/30/ukrain12097.htm.
18 Human Rights Watch, Libya Stemming the Flow: Abuses against Migrants, Asylum Seekers and Refugees, vol.. 18, no. 5(E), September 2006, http://hrw.org/reports/2006/libya0906/
19 Libyan officials told Human Rights Watch that between August 2004 and February 2005 the government spent $16 million on returns.
20 Total EU funding for Ukraine from 1991 to 2004 amounted to 1 billion. This amount is supplemented by contributions from Member States which reached 157 million in the period 1996-1999. Commission Staff Working Paper, European Neighbourhood Policy, Country Report, Brussels, 12.5.2004, SEC(2004) 566, (COM(2004)373 final).
21 Council and Commission Decision of 26 January 1998 on the conclusion of the Partnership and Cooperation Agreement between the European Communities and their Member States, of the one part, and Ukraine, of the other part, 98/149/EC, ECSC, Official Journal L 049, 19/02/1998 pp. 0001-0002, http://europa.eu.int/servlet/portail/RenderServlet?search=RefPub&lg=en&nb_docs=25&domain=&in_force=NO&year=1998&month=2&day=&coll=JOL&nu_jo=49&page (accessed September 12, 2005).
22 Andrew Rettman, EU-Ukraine Relations Hit Visa Bump, EU Observer, October 2, 2006.
23 Incontro a Sirte (Libia) tra il Ministro dell'Interno Giuseppe Pisanu e il leader della Rivoluzione Muhammar Gheddafi, Italian Ministry of the Interior press release, January 17, 2006.
24 EP delegation to Libya: Our goal is to repatriate all illegal immigrants we receive from Italy, say Libyan authorities, European Parliament press release, Brussels, December 7, 2005.
25 Libyan-Italian cooperation on irregular migration dates from incorporation of the issue in a December 2000 general bilateral agreement, and includes training and equipment for Libyan officials, Italian funding of charter flights from Libya to repatriate undocumented migrants, and the building of a reception centre for undocumented migrants in Libya and planning for two more.
26 See, Justice and Home Affairs Council Action Plan to Combat Illegal Migration and Trafficking in Human Beings in the European Union, OJ C 142, June 14, .2002, http://europa.eu.int/eur-lex/lex/LexUriServ/LexUriServ.do?uri=CELEX:52002XG0614(02):EN:HTML (accessed July 16, 2005), and, Justice, Freedom and Security Commissioner Franco Frattini, Speech before the Bundestag, The Commissions policy priorities in the area of Freedom, Security and Justice, SPEECH/05/93, Berlin, February 14, 2005.
27 In 1994, the Council adopted an EU specimen bilateral readmission agreement and a Recommendation concerning the adoption of a standard travel document for the expulsion of third country nationals. See Council Recommendation concerning a specimen bilateral readmission agreement between a Member State and a third country (OJ C 274, 19 September 1996); Council Recommendation concerning the adoption of a standard travel document for the expulsion of third country nationals (OJ C 274, September 19, 1996). Since 2000 European Community readmission agreements (applicable to all EU member states except Denmark, where an abstention applies) have been concluded with Hong Kong, Macau, Sri Lanka, Albania and Russia, and are presently being negotiated with four other countries: Pakistan, Morocco, Turkey and Ukraine.
28 Executive Committee of the UNHCR, Conclusion on the return of persons found not to be in need of international protection, No. 96 (LIV) 2003. See also UNHCR position on the EC readmission agreements with third countries, UNHCR Brussels, April 2003.
29 UNHCR Position on the EC Readmission Agreements with Third Countries, UNHCR Brussels, April 2003. See also Executive Committee of the UNHCR, Conclusion on the return of persons found not to be in need of international protection, No. 96 (LIV) 2003.
30 UNHCR Background Paper Number 3, Inter-state Agreements for the Readmission of Third Country Nationals, Including Asylum Seekers, and for the Determination of the State Responsible for Examining the Substance of an Asylum Claim, UNHCR, May 2001. UNHCR further clarified its position by stating that a meaningful link or connection would make it reasonable for an applicant to seek asylum in that State Mere transit through a third country does not generally constitute such a meaningful link. UNHCR Urges Caution as EU Negotiates Safe Country Concepts, UNHCR News, October 1, 2003.
31 The EU-Ukraine Action Plan was jointly adopted at a special Cooperation Council, February 21, 2005, http://europa.eu.int/comm/external_relations/ukraine/intro/index.htm (accessed July 1, 2005).
32 By way of example, the EUAlbania Bilateral Readmission Agreement includes a suspension clause that creates a buffer period of two years of preparation for Albania before enforcing the agreement. Agreement between the European Community and the Republic of Albania on the readmission of persons residing without authorisation Declarations, OJ L 124 , May 17, 2005, pp. 0022 0040.
33 According to the European Commission, as of October 5, 2005, the Council has so far approved the mandate for the Commission to negotiate Community Readmission Agreements with 11 third countries/entities: Morocco, Sri Lanka, Russia, Pakistan (September 2000), Hong Kong, Macao (May 2001), Ukraine (June 2002) and Albania, Algeria, China, Turkey (November 2002). Negotiations have been successfully completed with Hong Kong (November 2001), Macao (October 2002), Sri Lanka (May 2002) and Albania (November 2003). European Commission, Readmission Agreements, MEMO/05/351, October 5, 2005. http://europa.eu.int/rapid/pressReleasesAction.do?reference=MEMO/05/351&format=HTML&aged=0&language=EN&guiLanguage=en
34 Commission of the European Communities, Commission Staff Working Paper, European Neighbourhood Policy, Country Report, Brussels, May 12, 2004, SEC(2004) 566, (COM(2004)373 final), p. 11.
35 Libya has been mooted since 1999 as a partner in the EUs Barcelona Process, whereby partner states agree to act in accordance with the United Nations Charter and the Universal Declaration of Human Rights, to develop the rule of law and democratic political systems, and to promote respect for diversity and pluralism and to combat manifestations of intolerance, racism, and xenophobia. To date Libya remains far from meeting the standards of the Barcelona acquis.
36 Council of the European Union, 2664th Council Meeting, Justice and Home Affairs, Luxembourg, 2-3 June 2005, 8849/05, press release, http://ue.eu.int/ueDocs/cms_Data/docs/pressData/en/jha/85255.pdf (accessed March 7, 2006).
37 The EU hopes to define a search and rescue area for Libya, as one does not currently exist. The definition of Italian/International/Libyan territorial waters is also extremely complex in the Sicily Channel.
38 The EU Justice and Home Affairs Council on February 19, 2004, adopted a regulation on the creation of an immigration liaison officers network. It refers to the prevention and combating of illegal immigration, the return of illegal immigrants and the management of legal migration, but contains no reference to the right to seek asylum. Council of the European Union, 2561st Council Meeting, Justice and Home Affairs, Brussels, 19 February 2004, 5831/04, press release, http://ue.eu.int/ueDocs/cms_Data/docs/pressData/en/jha/79117.pdf (accessed March 1, 2006).
39 Council of the European Union, 2664th Council Meeting, Justice and Home Affairs, Luxembourg, 2-3 June 2005, 8849/05, press release.