Human rights implications of migration management policy in the European Union

    In 1939, Captain Gustav Schröder of the M.S. St. Louis crossed the Atlantic Ocean from Hamburg to Halifax, Nova Scotia seeking refugee for 937 German Jews on board.  The ship was turned away by the Canadians, the Americans and the Cubans, forcing it to return to Europe where almost half of its passengers died in concentration camps.  Since World War II, an extensive framework of international instruments and institutions has been established to protect refugees and asylees from such atrocities and to prevent and sanction nations that return them to be tortured or killed in their home countries or in third countries.

    In today’s Europe, refugees from the Maghreb and sub-Saharan Africa, the Middle East and elsewhere make dangerous crossings by boat across the Mediterranean Sea or by foot through the mountains on the border between Turkey and Greece.  Like the Jews on the M.S. St. Louis, these refugees are turned back, sometimes at sea before they have reached European shores.  They may also be remanded to detention centers in Europe or North Africa, where they are subjected to cruel and degrading treatment by their captors.

    As part of the move to increase integration in the European Union, member states in 1999 endeavored to establish an EU-wide asylum law system.  In 2003, the European Council enacted Council Regulation No. 343/2003, referred to as the Dublin Regulation.  The Dublin Regulation, amended in 2008, sets criteria by which EU member states may determine which among them is responsible for examining applications for asylum and refugee status.  While the goals of the Dublin Regulation and its successor Dublin II Regulation were to avoid duplication of efforts by different member states addressing the same application for asylum or refugee status, the application has had serious human rights implications.

    In addition to enacting legislation, the EU also developed a joint institution to manage the EU’s borders.  In 2004, the European Council enacted Council Regulation 2007/2004, establishing the European Agency for the Management of Operation at the External Borders of the Member States of the European Union (Frontex).  Frontex is an EU-wide border patrol agency with international staff and member state detailees which is designed to oversee and coordinate common border management operations.  Like the Dublin II Regulation, Frontex operations have had serious human rights impacts in recent years.

    The purpose of this post is to explore and discuss the implications of international standards for European migration law, in particular the application of the Dublin II Regulation and the operation of Frontex.  The paper will first give a broad overview of the international human rights law framework that applies to the European Union and to member states.  It will then examine the application of human rights law in the context of the Dublin II Regulation and Frontex by the European Court of Human Rights (ECtHR) in the 2011 case Belgium and Greece v. M.S.S. and the 2012 case Hirsi v. Italy.  Finally, the paper will explore the potential application of these two decisions to the set of facts described in the 2011 Human Rights Watch report The EU’s Dirty Hands:  Frontex Involvement in the Ill-Treatment of Migrant Detainees in Greece, specifically focusing on whether Frontex, an inter-governmental agency established by the EU, may be held liable for human rights violations resulting from its border control activities. 

General Human Rights Framework

    Human rights norms governing EU member states derive from both international and European sources.  Article 14 of the 1948 Universal Declaration of Human Rights recognizes the right of persons to seek asylum and refugee status.  This right is codified in the 1951 United Nations Convention related to the Status of Refugees and its 1967 Protocol.  The United Nations High Commissioner on Refugees (UNHCR) is tasked under the Convention and Protocol to monitor and supervise ratifying states’ application of refugee protection norms.#  According to UNHCR, a refugee is defined as someone who is unable or unwilling to return to their country of origin due to a well-founded fear of being persecuted for reasons of face, religion, nationality, membership in a particular social group or political opinion.#  A fundamental and non-derogable right set forth in the Convention is the principle of non-refoulement, whereby no one may expel or return a refugee against his or her will to a territory where he or she fears threats to life or freedom.#  Refugees and asylees are also entitled to minimum human rights standards, such as access to courts, primary education, work and the provision of documentation.
 
    The International Convention on the Protection of the Rights of all Migrant Workers and their Families went into force in July 2003, but few if any EU member states have signed or ratified this treaty.
 
    Within Europe, the human rights framework is multi-layered and complex, governed by instruments emitting from both the Council of Europe and the European Union.  The primary human rights instrument applicable to EU member states is the European Convention on Human Rights (ECHR) which entered into force in 1953.  The ECHR is applied, interpreted and implemented by the European Court of Human Rights (ECtHR).  The ECHR applies to all EU member states through individual ratification, as well as to a number of non-EU member European states.  The primary human rights instrument in the EU is the 2000 Charter of Fundamental Rights of the European Union (EU Charter).  Since the entry into force of the Lisbon Treaty in December 2009, the EU Charter constitutes binding law not only on member states but on EU bodies and agencies such as Frontex.#  In light of the status accorded to the EU as an independent entity by the Lisbon Treaty, the EU entered into discussions with the Committee of Ministers of the Council of Europe on May 26, 2010 to develop a legal instrument for the EU to accede to the ECHR.#  The most recent meeting of the working group was in October 2011.  Once the Parliamentary Assembly of the Council of Europe, the Court of Justice of the European Union (CJEU) and the ECHR have commented on and approved the accession agreement, it will be open for ratification by the EU.
 
    In addition to these two primary over-arching European human rights instruments, a number of EU Directives governing immigration matters such as the Reception Directive contain human rights norms that apply to immigrants.  These provisions, as well as general human rights provisions applicable to migrants in Europe, will be addressed in the context of their application in two recent ECtHR cases in the section below

Human Rights and EU Migration Law and Institutions:  Belgium and Greece v. M.S.S. and Italy v. Hirsi

    Since 2000, the EU has spent a significant amount of energy in the interception and exclusion of unauthorized immigrants from its territory.  Many among these migrants are refugees and asylees.  This process has been enhanced with the enactment of the Dublin Regulation in 2003 and the creation of Frontex in 2004.  The internationalization of migration law in the EU has created complexities in allocating responsibility for potential human rights violations arising from the operation of the Dublin Regulation and the activities of Frontex, an inter-governmental organization.  Furthermore, EU member states and Frontex have taken the additional step of entering into bilateral agreements with non-EU member states like Libya to assist them in intercepting and excluding foreign nationals.  Ska Keller et al. of Migreurop describe this process as the detrritorialisation of operations, noting that it is difficult to determine which entity should be held accountable for violations committed as the result of a bilateral partnership between Frontex and/or one or more member states with a third country such as Libya.#  Member states point to Frontex as the accountable entity, while Frontex points to the member states as the responsible entities.

The Application of Dublin II and Refoulement Within the EU:  Belgium and Greece v. M.S.S (2011)

    In 2008, M.S.S., an Afghan national who had served as an interpreter for foreign military forces, fleed his country and traveled to Belgium to seek asylum.  On his way to Belgium, M.S.S. entered the EU in Greece, where he was finger-printed, detained and released.  In early 2009, M.S.S. applied for asylum in Belgium.  Upon discovery that M.S.S. had entered Greece and been finger-printed there, Belgian authorities deported M.S.S. to Greece despite receiving no initial response from the Greek government to a request to take responsibility for M.S.S.’ asylum application. The Belgian action was taken pursuant to Article 10 § 1 of the Dublin Regulation, which allocates responsibility for administering the asylum application to the first country entered in the EU.  For geographic reasons, immigrants to Europe tend to arrive in the southernmost - and poorest - member states.  The ECtHR took note of a UNHCR report that 88% of the foreign nationals who enter the EU do so through Greece.#  In 2008, Greece granted 11 people refugee status and 18 people subsidiary protection out of over 12,000 asylum applications.#  Despite the high number of migrants who enter Greece and seek asylum, Greece has only 935 beds to house asylees.
 
    Upon arrival to Greece, M.S.S. was detained for several days, then released and told to show up for an appointment and apply for asylum in one day’s time.  M.S.S. was homeless and lived in a park with several other Afghans trying to apply for asylum in Greece.  M.S.S. missed his appointment so his application was denied.  For several months, M.S.S. was homeless with no food or money and no ability to earn a living.  He was detained by Greek authorities once again when he tried to leave the country.  The ECtHR took judicial note of reports made by UNHCR and reputable non-governmental organizations like Amnesty International and Human Rights Watch about the horrible conditions in Greek immigrant detention camps.  These conditions included housing men, women and children in the same over-crowded rooms indiscriminately, disgusting bathrooms, racial taunts, occasional beatings and no opportunity to go outside.

    The main issues before the ECtHR were whether deportation to Greece constituted refoulement in violation of the ECHR and international instruments and whether the conditions in Greek detention facilities constituted a violation of the ECHR prohibition against inhuman or degrading treatment or punishment.  The ECtHR concluded that the Government of Belgium was aware of the terrible conditions in Greek detention centers and the inadequate administration of asylum applications by Greek authorities, as well as the danger that M.S.S. might be deported from Greece to a third country like Turkey where it was highly likely that he would be in danger of violations to his  human rights and dignity.  In fact, in April 2009 UNHCR sent a letter pleading the Belgian government to stop transferring migrants to Greece.#  The Dublin Regulation contains a provision allowing member states to administer asylum applications without returning applicants to the state where they first entered the EU.  The ECtHR ruled unequivocally that when member states apply the Dublin Regulation, they, “must make sure that the intermediary country's asylum procedure affords sufficient guarantees to avoid an asylum seeker being removed, directly or indirectly, to his country of origin without any evaluation of the risks he faces from the standpoint of Article 3 of the Convention.”

Liability on the High Seas for Refoulement to a non-EU country:  Hirsi v. Italy (2012)

    The Hirsi v. Italy case arose as the result of an interdiction of Somalian refugees on boats in the Mediterranean Sea by the Italian Coast Guard and Tax Authorities.  In December 2007, Italy entered into bilateral agreements with Libya to coordinate immigration enforcement actions in the Mediterranean Sea.  Libya is not a signatory to the Geneva Convention relating to the Status of Refugees and has no administrative mechanism for addressing asylum applications.  Between 2007 and 2009, 9 joint immigration operations were undertaken on the high seas pursuant to the bilateral agreements.  On May 9, 2009, 35 potential asylees from Somalia were intercepted on the high seas, then transferred to ships owned by the Government of Italy but seconded to the Government of Libya.  Upon arrival in Libya after a 10-hour voyage, the Somalians were placed in Libyan detention centers.  Their personal documents were taken from them by Italian authorities and they were unable to apply for asylum in the EU.

    The main questions before the ECtHR were whether the Government of Italy’s action of interdicting and excluding the Somalians constituted a violation of Article 19 of the Charter of Fundamental Rights of the European Union to not engage in collective expulsions, and whether deporting the Somalians to Libya constituted refoulement and whether Italian authorities knew the Somalians would be subject to inhuman and degrading in Libya under Article 3 of the ECHR.  In its analysis of the application of ECHR Article 3 to the case, the ECtHR took judicial note of a number of reports about treatment of migrants within and outside of detention centers in Libya and the danger of deportation of refugees to Somalia and other unsafe countries.  The ECtHR also quoted with approval Resolution 1821 of the Parliamentary Assembly of the Council of Europe, which called on EU nations to to suspend entering into bilateral arrangements with nations in which rights are not adequately guaranteed.#  In addressing the issue of extraterritorial application of the ECHR and allotting accountability to Italy for inhumane and degrading treatment by Libyan authorities, the ECtHR noted that the Somalians were under the control of Italian authorities throughout the entire interdiction operation.  The ECtHR also found that Italian authorities must have been aware of conditions in Libya and Somalia when they deported the Somalian migrants to Libya, so must be held responsible for violating their rights under Article 3 of the ECHR, and that transfer of the migrants to Libya put them in foreseeable danger of being repatriated to the country they were fleeing.  Moreover, the ECtHR held that Italy cannot evade its responsibility by entering into a bilateral agreement with Libya.#  The ECtHR found, “in the present case substantial grounds have been shown for believing that there was a real risk that the applicants would be subjected to treatment in Libya contrary to Article 3. The fact that a large number of irregular immigrants in Libya found themselves in the same situation as the applicants does not make the risk concerned any less individual where it is sufficiently real and probable.”#  The ECtHR also found that by exercising extraterritorial jurisdiction, the Government of Italy effected a collective dismissal of the Somalians without affording them a real opportunity to apply for asylum. 

Frontex Liability for Human Rights Violations?  Potential Applicability of Recent Case Law to Frontex Involvement in the Ill-Treatment of Migrant Detainees in Greece

    Keller et al. have noted that Frontex has become a key player in the deployment of European asylum and immigration policy in the EU.#  In 2010, Frontex had a budget of €88 million, an 10-fold increase since 2004.#  Yet the European Parliament has found that despite Frontex pride over reducing the number of irregular migrants through maritime operations such as the one in Hirsi v. Italy, the agency does not offer sufficient respect for or guarantees of human rights.#  In its 2011 report The EU’s Dirty Hands Frontex Involvement in Ill-Treatment of Migrant Detainees in Greece, Human Rights Watch casts light on the role of Frontex and several EU member states in the detention of irregular migrants at the Turkish-Greek border in 2009 and 2010.  Due to the danger of sea crossings, more migrants have started making the border crossing by land.  In 2010, Frontex deployed 175 border guards contributed by Norway and various EU member states to Greece to assist in a "Rapid Border Intervention Team" (RABIT) migrant interception operation.#  The border patrol agents wore their respective national uniforms, an important fact to determining accountability for human rights violations.  Once they rounded up the migrants, the border patrol agents from various EU member states and Norway remanded them to Greek migrant detention facilities.  In these over-crowded facilities, men, women and children were housed indiscriminately together.  The bathrooms were so dysfunctional that sewage ran through the floors and Greek guards wore surgical masks when they entered in one facility in Fylakio.#  Asylum applications were to be administered by local Greek police officials operating small stations and migrant detention centers.

    The thrust of the 2011 Human Rights Watch report is that Frontex should be held accountable for placing the migrants in conditions that are inhumane and degrading in contradiction to obligations under the EU Charter, which since 2009 is applicable to EU institutions and agencies.  Alternatively, the report alleges facts that would make it possible for each of the EU member states and Norway which seconded border patrol authorities to the RABIT operation to be held accountable under Article 3 of the ECHR.  It is likely that such an argument would be accepted by the ECtHR under Belgium and Greece v. M.S.S.  While the ECHR is not yet applicable to Frontex, the CJEU would take ECtHR jurisprudence into account.  Moreover, in 2011 the CJEU ruled similarly regarding the human rights implications of exposing potential refugees and asylees to a serious risk of violation of fundamental rights, obliging member states to take this risk into account when applying the Dublin II regulation.#  The Human Rights Watch report recounts numerous instances showing that border patrol agents were aware of the abysmal conditions in Greek detention centers, as well as numerous public reports available to EU member state governments.  In light of the ruling that both Belgium and Greece were liable for human rights violations against M.S.S., it would not be much of a stretch to allocate responsibility to a number of EU member states in lieu of or in addition to allocating liability to Frontex itself.

    Yet not all irregular migrants to the EU are refugees or asylees.  Not addressed in the Hirsi and M.S.S. cases are the human rights abuses against irregular immigrants in the deportation actions coordinated by Frontex and organized by EU member states, or the numerous lacunae in human rights afforded to irregular migrants within the EU.  One of many examples raised by Keller et al. is the deportation of a man named Ricky from the Netherlands to Nigeria in March 2010.#  For the crime of entering and staying in the EU without a proper visa, Ricky was handcuffed and restrained by a BodyCuff while being transferred to his flight at Schiphol Airport, then unceremoniously dumped in the cargo area of the Lagos Airport after a 20 hour flight.#  The main targets of Frontex joint return operations are from Nigeria, Colombia and Ecuador - countries where there appears not to be a presumption of an asylee or refugee status.#  This leaves open the question of whether the principle of non-refoulement can apply to non-refugees and non-asylees in their deportation and indicates that the human rights of migrants in Europe will be a complex and active area in years to come.

References


United Nations High Commissioner on Refugees, Convention and Protocol relating to the Status of Refugees, Introductory Note, UNHCR, Geneva, Switzerland, 2011, available at http://www.unhcr.org/3b66c2aa10.html. 

Human Rights Watch, The EU’s Dirty Hands Frontex Involvement in Ill-Treatment of Migrant Detainees in Greece, Human Rights Watch, New York, New York, 2011, available at http://www.hrw.org/sites/default/files/reports/greece0911webwcover_0.pdf. 

Council of Europe, EU accession to the European Convention on Human Rights, Council of Europe, Strasbourg, Germany, available http://www.coe.int/what-we-do/human-rights/eu-accession-to-the-convention.

Keller, Ska, Ulrike Lunacek, Barbara Lochbihler and Hélène Flautre, Frontex Agency: Which Guarantees for Human Rights?, A study conducted by Migreurop (www.migreurop.org) on the European External Borders Agency in view of the revision of its mandate, European Free Alliance, Brussels, Belgium, March 2011, available at http://barbara-lochbihler.de/cms/upload/PDF_2011/GL_Frontex_E_1.pdf. 

European Migration Network, Court of Justice of the European Union ruling on the transfer of asylum seekers under the EU Dublin Regulation, http://www.emn.ie/index.jsp?p=100&n=105&a=205.