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Assessment of transit and processing centres as a response to mixed flows of migrants and asylum seekers

Report | Doc. 11304 | 13 June 2007

(Former) Committee on Migration, Refugees and Population
Rapporteur :
Ms Corien W.A. JONKER, Netherlands, EPP/CD


The massive flow of irregular migrants into Europe has brought with it a growing recognition of the need for innovative and more effective approaches to mixed flows of migrants and asylum seekers.

A concept which has been proposed in various forms is to establish transit or processing centres for irregular migrants and asylum seekers within European Union countries, or outside the borders of the European Union but within Europe, or in countries outside of Europe.

A number of arguments have been put forward in support of such centres, including that they can contribute to burden-sharing, they may facilitate harmonising of asylum processing, they can assure that migrants and asylum seekers are processed closer to countries of origin and they may offer better levels of protection than currently on offer in a number of countries of transit and destination.

The proposals that have been discussed to date, however, raise many concerns, in particular from a human rights perspective. This report seeks to highlight these concerns in order that they be taken into account in any future discussions about creating such centres.

Of primary concern is the issue of responsibility for such centres. Should such centres be established, states should not be allowed to transfer their responsibilities and obligations under the European Convention on Human Rights and other human rights treaties or under the 1951 Geneva Convention relating to the Status of Refugees. Major concerns also arise linked to the impact that such centres might have on national policies and practices, procedures and facilities. Any steps taken to establish such centres should not undermine these. Furthermore, concern is raised that if such centres are established they should be part of a comprehensive approach to tackling the asylum-migration nexus, involving countries of origin, transit and destination.

The degree of concern in relation to the establishment of such centres varies greatly depending on whether proposals are made for these to be established within the European Union or outside of the European Union (greater Europe or outside of Europe). If centres are to be established, they should be created first within the European Union before extending the experiment outside the frontiers of the European Union or outside of Europe.

A Draft resolution

1. The number of asylum seekers in Europe continues to fall and has reached its lowest level since 1988. However, the number of persons seeking to enter Europe illegally is on the increase, with some estimates of as many as 500 000 additional irregular migrants in Europe entering or overstaying every year. Some estimates indicate that there may be up to 5.5 million irregular migrants in the European Union with estimates of a further 8 million irregular migrants in Russia alone.
2. There are increasing concerns across Europe as to how best to tackle this mixed flow of irregular migrants and asylum seekers. The United Nations High Commissioner for Refugees (UNHCR) in 2006 developed a 10-Point Plan of Action to address mixed migratory movements. Countries such as Spain, Italy, Malta and Greece, experiencing mass arrivals of irregular migrants and asylum seekers over the summer of 2006, have called for new initiatives and new approaches to tackle these mixed flows and to develop a more equitable system of burden-sharing among countries of origin, transit and destination.
3. There are also increasing concerns as to the human and humanitarian costs of the movement of large numbers of irregular migrants and asylum seekers into and out of Europe. The number of people drowning, suffocating, dying of exposure or being blown up in minefields while trying to enter Europe continues to grow at an alarming rate. Those that make it to Europe have often spent large sums of money, travelled in dangerous and difficult circumstances and face numerous problems and potential exploitation when they reach Europe.
4. New approaches to tackling mixed flows of migrants and asylum seekers are therefore essential, not only to ensure that the protection needs of asylum seekers are met, but also to stem the flow of irregular migration and the exploitation, trafficking, deaths and suffering that accompany it.
5. These approaches need to be comprehensive in nature and implicate countries of origin, countries of transit and countries of destination. There are examples in the past of initiatives that have sought to deal with refugee and irregular migrant flows in a comprehensive fashion. Reference can be made to the International Conference on Assistance to Refugees in Africa (ICARA) in the mid-1980s as well as to the Comprehensive Plan of Action for Indo-Chinese Refugees (CPA) in the late 1980s which provided a solution to the flow of Vietnamese boat people.
6. In recent years, a number of new approaches for processing mixed flows of migrants and asylum seekers have been put forward. In a discussion paper on the “three prongs” of a European Union asylum policy the UNHCR put forward a proposal to the European Union for joint processing within the Union. Other proposals which were, however, more controversial included processing outside the borders of the European Union but within Europe (as in the United Kingdom’s “New Vision” paper) and processing outside of Europe in North Africa (as in the former German Interior Minister Otto Schilly’s proposal).
7. These proposals were not entirely novel as there were past precedents in other parts of the world. In the early 1990s, Haitians intercepted at sea were taken to the United States Naval Base at Guantánamo Bay in Cuba for processing. Another example concerned Australia and the setting up of processing centres in Nauru and Papua New Guinea.
8. The Assembly considers it important to take into account positive and negative past experience together with past proposals with a view to formulating recommendations that can be taken into account in future discussions relating to the processing of mixed flows of migrants and asylum seekers. In this respect, the Assembly notes that the European Commission plans to launch a feasibility study on internal and external territorial processing in the second half of 2007.
9. The Assembly is particularly concerned by some of the proposals for creating transit or processing centres. These are centres where persons are processed after having arrived in a country, been intercepted on their way to a country, been returned to a country through which they have transited, or been sent to a country where processing takes place. The level of controversy has varied according to whether the proposals have related to transit or processing centres within the European Union, outside of the European Union but still within Europe, or outside of Europe (for instance in North Africa). The level of controversy is also affected by whether centres are envisaged as transit centres where only pre-screening or clearing takes place, or if centres are envisaged as full processing centres.
10. The Assembly recognises that there may be valid reasons for considering such transit or processing centres. For example, depending on the type of arrangements envisaged, they may contribute to burden-sharing, they may facilitate harmonisation of asylum processing, they may ensure that migrants and asylum seekers are processed closer to countries of origin, they may offer better levels of protection than currently on offer in a number of countries of transit and destination, they may ensure that resources are more efficiently shared and used.
11. The Assembly recognises, however, that there are many open questions concerning transit or processing centres. The Assembly notes that it is very difficult to examine, in the abstract, transit and processing centres without answers to some of the following questions:
11.1 Who would be responsible for the centres? Would responsibility remain with the state transferring the persons concerned, would it transfer to the country where the centre is established or would there be shared responsibility between the transferring state and the country where the centre is established? Would the UNHCR also share responsibility and in what form? What legal regime would apply? What responsibility would the European Union have and under what legal framework would it act?
11.2 Who would the centres be for? Those arriving in countries where the centres are situated, those intercepted en route to a European country, those who have previously transited through the countries where centres are situated, those who have arrived in a European country but who are then transferred to a country with a centre?
11.3 What would happen after the refugee status determination procedure? How would burden-sharing operate in relation to settlement or resettlement or organisation of return? What would happen to those whose country of origin could not be identified? What would happen to those who could not be returned?
11.4 Where should the centres be located?
11.5 What conditions should persons be held in? Should these be open centres or closed centres and what level of reception conditions and accommodation should be offered?
12. The establishment of transit or processing centres raises a number of practical and legal issues and concerns, including human rights and refugee rights issues and concerns, which must be taken into account in any future discussions concerning the establishment of such centres.
13. The Assembly therefore calls on the competent authorities of all member states to take into account the following issues and concerns in any future discussions concerning the establishment of such centres:
13.1 centres should not replace national wellestablished asylum procedures in European destination countries but should be seen as just one possibility of many to deal with migration and refugee movements;
13.2 centres should not undermine national policies and practices and determination procedures and facilities in the countries where centres might be established;
13.3 centres should only be considered as part of a comprehensive, proactive approach that includes focusing on countries of origin, neighbouring countries, countries of first asylum, transit countries and countries of destination. In this connection, the positive experience and lessons learned from the Comprehensive Plan of Action (CPA) for Indo-Chinese Refugees can serve as a useful point of reference;
13.4 in the event of such centres being established and proving successful, any extension of such centres outside the European Union must fully comply with all human rights and refugee standards;
13.5 any transfer to centres cannot absolve the responsibility of European states to guarantee nonrefoulement under the 1951 Geneva Convention relating to the Status of Refugees or their human rights obligations under the European Convention on Human Rights and other human rights treaties;
13.6 there must be no transfer from one country to another without express agreement between the states concerned and only on the condition that effective protection can be guaranteed. Such transfer cannot, as mentioned above, absolve a state from all responsibilities;
13.7 the relative merits and drawbacks of clearing centres as opposed to full processing centres needs to be examined in detail;
13.8 the UNHCR must be fully consulted in any discussions concerning such centres and should such centres be established, the UNHCR should be guaranteed a presence as well as a role in the refugee determination procedures adopted, subject to its agreement;
13.9 in their operation and functioning, centres must comply with all relevant human rights and refugee law standards. In the event that they are closed centres and operated under the responsibility or partial responsibility of Council of Europe member states or the European Union, they would need to be open to monitoring by the European Committee for the Prevention of Torture (CPT). They would also need to be open to NGOs providing advice and assistance to migrants and asylum seekers;
13.10 centres should provide all necessary protection facilities for particularly vulnerable persons, including minors and in particular unaccompanied minors;
13.11 centres should only be considered as transitional measures which should not affect the goal of building up legal and institutional capacities in all relevant countries whether they be countries of transit or destination;
13.12 steps also have to be taken to tackle root causes of migration and asylum in countries of origin with the aim of identifying more long-term, comprehensive and holistic solutions to the asylum-migration nexus;
13.13 should such centres be established, until they have been proven to function within the European Union in full compliance with all human rights and refugee law standards, there should be no consideration of extending the concept of such centres outside of the territory of the European Union.
14. The Assembly calls on the European Union to take into account the concerns raised in relation to the creation of transit or processing centres in any future discussions or proposals on this issue, including in the proposed feasibility study on internal and external territorial processing of mixed flows of migrants and asylums seekers, scheduled for the second half of 2007.
15. The Assembly calls on the Council of Europe Commissioner for Human Rights to follow developments in this field and respond accordingly to any future proposals put forward where human rights concerns are at issue.
16. The Assembly considers that new and innovative measures are required to handle the mixed flow of irregular migrants and asylum seekers and considers that this issue merits further discussion within the Assembly and within its Committee on Migration, Refugees and Population.

B Draft recommendation

1. The Parliamentary Assembly refers to its Resolution … (2007) on an assessment of transit and processing centres as a response to mixed flows of migrants and asylum seekers.
2. The Assembly is concerned about the practical and legal implications, in particular human rights and refugee rights implications, for the viability and nature of transit and processing centres and wishes to ensure that in any discussions relating to such centres the concerns of the Assembly are taken into account together with all human rights standards of the Council of Europe and other human rights and refugee standards.
3. Therefore, the Assembly recommends that the Committee of Ministers call on the Steering Committee for Human Rights to follow closely future proposals for transit and processing centres, and in particular human rights implications arising from the creation and running of such centres within member states of the Council of Europe for member states of the Council of Europe or for those of the European Union.

C Explanatory memorandum, by Mrs Corien Jonker

1 Introduction

1. There is growing recognition that new, innovative and more effective approaches to migration flows and flows of refugees need to be devised. The mass arrival of irregular migrants and asylum seekers on Europe’s southern shores during the course of 2006 and now in 2007 provides evidence of the scale of the problem.
2. A number of proposals have been made in the past to tackle these flows. One idea which has surfaced in the past is to establish transit centres or processing centres in order to receive, process and settle or return irregular migrants and asylum seekers entering Europe. These proposals have taken different forms, ranging from the establishment of such centres within the European Union, on the frontiers of the European Union but within Europe, or outside of Europe.
3. The proposals that have been made to date have not received widespread support and raise a number of serious concerns, including human rights concerns and concerns over state responsibilities for dealing with irregular migrants and asylum seekers.
4. The aim of this report is to examine the different proposals that have been made to date to set up transit centres or processing centres and also look at examples of where similar initiatives have been set up in the past. Having examined these different proposals and examples, the report examines some of the main concerns and criticisms linked to the creation of such transit or processing centres.
5. While the issue of creating transit centres or processing centres is no longer highly visible on the European agenda, the situation is likely to change in the near future. The European Commission will, for example, launch a feasibility study on internal and external territorial processing centres in the second half of 2007. Furthermore, as naval patrols by the European Agency FRONTEX are stepped up in 2007 in the Mediterranean and off the west coast of Africa, an increasing number of boat people will be intercepted in the high seas, leaving open the question as to where these intercepted persons are to be taken and processed. It is therefore important for the Parliamentary Assembly to provide input into any ongoing or future discussions. In this, the Assembly should highlight its concerns about transit centres or processing centres. It should, however, be ready, at the same time, to make proposals and support new, innovative and more effective approaches to migration flows and flows of refugees.
6. Your rapporteur in preparing this report has received valuable assistance from Mr Alexander Betts, from St Antony’s College, University of Oxford (United Kingdom) and Dr Peter van Krieken (Vientiane), Webster University/Röling Foundation. She would like to thank both of them for their expert assistance.

1.1 Context

7. As was noted in Parliamentary Assembly Resolution 1521 (2006) on mass arrival of irregular migrants on Europe’s southern shores, there is a growing concern across Europe at the number of irregular migrants and asylum seekers arriving on its southern shores. Spain, for example, saw the number of arrivals on the Canary Islands rise from 4 700 in 2005 to around 34 000 in 2006. Italy, by contrast, received over 22 000 arrivals by sea, and countries such as Malta, Cyprus, Greece and Turkey also had to shoulder the burden of arrivals.
8. These attempts to reach Europe are accompanied by a significant loss of life, with deaths by drowning, exposure and dehydration, and violence by boat operators being reported. The number of confirmed deaths of those seeking to reach Spain in 2006 is 1 167, but it is estimated that probably in the region of 7 000Notepeople died. This means that one in five people died in attempting to reach Spain.
9. The countries that are on the front line of this flow of migrants and asylum seekers are finding it increasingly difficult to shoulder the burden of these arrivals and are increasingly seeking some form of burden-sharing in Europe and calling for new, innovative and effective approaches to managing this mixed flow of migrants and asylum seekers.
10. It should be recognised that while the problem is particularly visible on Europe’s southern shores, there are also important flows of irregular migrants and asylum seekers reaching and crossing Europe’s eastern and other frontiers.
11. It is in order to deal with this mixed flow of irregular migrants and asylum seekers that proposals have been put forward to establish transit centres or processing centres.

1.2 Definition

12. The proposals for transit centres or processing centres have varied in both substance and the degree to which the ideas have been formalised in written documents. Nevertheless such centres can be broadly defined as closed or open centres located in transit or destination countries, inside the European Union, outside the European Union but within Europe, or outside of Europe. They may be centres at which claims for asylum are to be assessed, refugees to be resettled and non-refugees (including irregular migrants) to be returned or offered other alternatives. They may be centres at which pre-screening or clearing takes place before persons are taken to another country for processing or return.

1.3 Purpose

13. Proposals for transit or processing centres have a primary purpose of tackling what has been referred to as the “asylum-migration nexus” or “mixed flows of migrants and asylum seekers”. This is a process where refugees and migrants use the same routes to reach Europe and have overlapping motives for flight. They often move between different migrant categories and use similar means, such as smuggling and trafficking routes, to reach Europe.
14. The purpose of creating such centres is therefore to reconcile migration control, on the one hand, with a fair and efficient asylum process, on the other. A number of arguments are put forward in favour of such centres. In this respect it is argued that they can contribute to burden-sharing between European states and that they can facilitate harmonisation of asylum processing and improve the quality of decision making. It is also argued that they can, depending on where centres are established, ensure that processing takes place as close as possible to countries of origin, obviating in some circumstances the need for lengthy and dangerous trips. It is also argued that such centres may reduce the cost of asylum processing, allow states to share resources, and serve as a deterrent to irregular migration.

1.4 Impetus from the European Union (EU)

15. Following the Tampere European Council’s (1999) elaboration of the need to develop a common EU asylum policy, the Seville European Council (2002) recognised the importance of developing co-operation with third countries in the areas of asylum and migration as a means to better manage irregular migration while simultaneously ensuring access to international protection for those in need of international protection. The Hague Programme adopted by the Brussels European Council (2004)Noteprovided more concrete proposals concerning transit or processing centres. It called for a study on the feasibility of establishing what it called extraterritorial processing. The Action PlanNoteto implement the Hague Programme adopted on 2 June 2005, however, proposed “Studies on the implications of joint processing of asylum applications – within and outside the Union”, without setting a policy in the direction of extraterritorial processing. The Hague Programme, however, also emphasised the need to improve protection in regions of origin, and to a certain extent in regions of transit, inter alia, through the regional protection programmes (RPPs) of the EU. Within this context, a range of approaches and proposals have been suggested by individual member states and by the European Commission. These have focused on developing partnerships with countries in refugees’ regions of origin or transit countries en route to the EU as a means to ensure access to effective protection within the region of origin or, alternatively, to locate asylum processing beyond the EU’s external border. The concept of transit centres or processing centres has been part of this wider debate. In the second half of 2007 the European Commission plans to launch a feasibility study on internal and external processing of mixed flows of migrants and asylum seekers.

2 Precedents

2.1 The United States and Guantánamo Bay

16. During the early 1990s, Haitians intercepted at sea by the United States navy were taken to the United States naval base at Guantánamo Bay in Cuba, where their asylum claims were processed by the United States Immigration and Naturalization Service (INS). Those adjudged to have a credible fear of persecution were transferred to the United States where they were allowed to have their asylum claims formally assessed. The United States Government also briefly screened Haitian asylum claimants at sea, on-board the USNS Comfort. The majority of Haitians were returned to their country of origin in 1994 when the policy came to an end and the political situation in Haiti changed.

2.2 Australia and the “Pacific solution”

17. Following the refusal of the Australian Government to allow a Norwegian freighter (Tampa), which had rescued 438 people off Christmas Island, to land in 2001, the government transported the asylum claimants from the boat to Nauru and Papua New Guinea. The Tampa incident led to legislation formalising offshore processing within these states. In each country, the Australian Government funded processing centres, which were managed by the International Organization for Migration (IOM), providing social and humanitarian services, and at which refugee status determination was conducted by Australian immigration officials in close co-operation and with the support of the Office of the United Nations High Commissioner for Refugees (UNHCR). Those granted refugee status were resettled in six countries. Those resettled in Australia were given temporary protection visas (TPVs). Almost 500 persons returned voluntarily to seven countries. It can be noted that recent (summer 2006) Australian proposals to automatically send most categories of asylum applicants to Nauru for processing purposes have not met with success.

2.3 Indo-Chinese Comprehensive Plan of Action (CPA)

18. The Indo-Chinese CPA of 1989 attempted to address a “mixed flow” of refugees and other migrants leaving the Socialist Republic of Vietnam and crossing international territorial waters to ASEAN states and Hong Kong.NoteThe initiative was underpinned by an international agreement between the country of origin, the countries of first asylum in the region and third countries beyond the region. In particular, the countries of first asylum – notably Thailand, Malaysia, Indonesia, the Philippines and Hong Kong – agreed to continue to host and carry out the screening of asylum claimants rather than forcibly returning them without access to refugee status determination. They did so on condition that third countries outside of the region – notably the United States, Australia and European states – agreed to resettle all of those recognised as refugees who had arrived after a cut-off date, and that the country of origin agreed to readmit and reintegrate (with some international support) those refused refugee status.
19. Under this plan of action the procedures and facilities established within the countries of first asylum sought to address a similar dilemma to the current transit proposals. Namely, it sought to distinguish refugees from other migrants through refugee status determination within the region of origin. However, in contrast to the other past precedents, screening within these countries only took place once a prior agreement had been reached on the role of the different groups of states, ensuring that by 1996 all of the Vietnamese refugees or migrants had either been resettled or returned. This type of clear multilateral agreement involving countries of origin, resettlement countries and the host states offers the potential to limit the prolonged de facto detention associated with Australia’s offshore centre in Nauru, for example. Although the conditions of detention and return were frequently criticised and there were problems in the resettlement of a number of recognised refugees, the approach, based on international co-operation, led to the resolution of a situation which might be viewed as analogous to the contemporary asylum-migration nexus across the Mediterranean.

3 Relevant proposals

3.1 United Kingdom New Vision paper

20. In March 2003, the so-called “United Kingdom proposals” emerged, proposing “regional protection zones” (RPZs) and transit processing centres (TPCs).NoteThe former related to strengthening protection capacity in the region of origin, and the latter to extraterritorial processing centres. With respect to the transit centre component, it was envisaged that the EU would finance and run centres outside of the EU. Those intercepted en route to the EU or identified as having a “manifestly unfounded” claim upon arrival within the EU would be sent to the centres to have their asylum claims assessed. The proposal suggested that those found to be in need of international protection would receive refugee status in the EU, possibly to be allocated amongst EU states on the basis of an EU-wide burden-sharing mechanism. Those who were not refugees would then be returned to their country of origin on the basis of readmission agreements. The United Kingdom initially proposed Croatia as a location for a TPC pilot. The approach was supported by the governments of Denmark and the Netherlands which had collaborated with the United Kingdom in developing the ideas underpinning the proposals within an intergovernmental consultations context. However, following sustained criticism from NGOs and academics regarding the practical and legal limitations of the New Vision,Notethe proposals were rejected by other EU states at the Thessaloniki European Council in June 2003.Note

3.2 The UNHCR’s three prongs

21. In 2003, coinciding with the United Kingdom New Vision proposal, the UNHCR produced a discussion paper on the three prongs of an EU asylum policy – relating to, first, improving protection and solutions in regions of origin, second, improving domestic asylum procedures and, third and most significantly its “EU prong”.NoteThe EU prong proposed a joint processing mechanism for the whole of the EU, with an EU-wide burden-sharing mechanism. The EU prong element suggested that EU reception centres would facilitate a common and more equitable EU asylum policy. However, in contradistinction to the “United Kingdom proposals”, the EU prong argued that these should be located within the EU’s external boundary to ensure the existence of common legal standards. The proposal is of relevance because it highlights the UNHCR’s concern that transferring refugee status determination to the territories of states with less developed legal structures might compromise protection obligations and hence refugees’ rights.
22. The UNHCR has in 2006 continued to express concern about the mixed flow of migrants and asylum seekers and has in this context developed a 10-Point Plan of Action addressing mixed migratory movements. While this plan of action does not put forward proposals for establishing transit or processing centres, it does highlight the need for co-operation among key partners as one of the key points in the plan.

3.3 Otto Schily’s proposals

23. In July 2004, the then German Interior Minister Otto Schily proposed the establishment of EU-funded “safe zones” or camps in North Africa. He argued at the Justice and Home Affairs (JHA) Council in Brussels that the centres would be used for those people in transit countries in the Maghreb destined for the Mediterranean. Those found to be in need of international protection would be admitted to the EU and those found to be “illegal migrants” would be either returned to their countries of origin by the North African hosts with the assistance of the EU or, alternatively, given information relating to alternative migratory channels.
24. The proposals received support from the then Italian Interior Minister Pisanu and the then EU Commissioner for Justice and Home Affairs-designate (Mr Buttiglioni). The Schily proposals were discussed at the German Bundestag and the JHA Council. However, it was not until September 2005 that his ideas emerged in a public document. In this context, the proposals were clarified in a document entitled “Effective Protection for Refugees, Effective Measures against Illegal Migration”. The written proposals included the ideas, first, for interception in the Mediterranean and return to extraterritorial processing centres and, second, that the centres would not provide formal refugee status determination but simply a form of pre-screening, whereby those adjudged to be in need of protection would either be transferred to “safe countries in the region of origin” or to the EU, initially on the basis of some kind of humanitarian status.Note

3.4 Libya

25. In the aftermath of the Cap Anamur events,NoteItaly entered into an agreement with Libya in August 2004 to co-operate on the issue of “illegal migration”. As part of this, it is believed that Italy has also concluded a significant bilateral readmission agreement with Libya. Although this has been officially denied and relations between the two states are shrouded in secrecy, the large numbers of persons returned from Lampedusa suggests at least an informal agreement. An Italian parliamentary report on public accounting revealed the disbursement of considerable funding to Libya including budget items relating to additional financial support in relation to migration. Indeed, the then Italian Interior Minister Pisanu claimed that Italy will go ahead with establishing offshore processing centres in Libya. It is at the time of writing not known how the new Italian Government will look into these issues.
26. Led by Italy, the EU organised a 10-day mission to Libya in December 2004 for a group of Commission and member state experts. In January 2006, the Commission proposed €2 million in AENEAS funding to be allocated to IOM to “strengthen Libya’s capacities to address illegal transit migration in a humane and orderly manner”.NoteIrrespective of whether an extraterritorial processing centre will or should be established in Libya, it should be noted that Libya has hitherto not acceded to the 1951 Refugee Convention. Note has also been taken of the apparent return by Libya of asylum seekers to countries like Egypt and Eritrea without the necessary procedures as to the determination of their status having been properly followed.Note

4 Types of centres

27. Given the variation in the past precedents and recent proposals, there are a number of important ways in which transit centres or processing centres may differ which have significant legal and practical implications.
28. It can be emphasised that a transit centre or a processing centre may be a centre at which asylum seekers either in transit to or within Europe may have their claim assessed. It could also be a centre which would serve as a processing centre for asylum seekers who may have applied in a European country, but who may thereupon be transported to this centre, inside the European Union or outside (within greater Europe or outside of Europe). It may also be a centre for those applying for asylum outside of Europe. Furthermore, the centre may be only a clearing centre where pre-screening takes place and may not be a full-scale processing centre. Moreover, it needs to be stressed that a centre may either be envisaged under the responsibility of the country where the centre is located, or be a shared responsibility (the country of location, the European country involved, the EU as an entity and/or the UNHCR), or under the sole responsibility of the EU or the European country concerned (amounting to a centre with diplomatic status and the relevant levels of immunity).

4.1 Who runs the centres?

29. If the centres were to be initiated by the EU or individual EU member states, there is the question concerning exactly who would have responsibility for running the centres and the extent to which different functions would be devolved by European states to host states or other agencies. Would it be the EU (as in the United Kingdom proposals), international bodies such as the IOM and the UNCHR (as in the Pacific Solution) or the host country (as in Italy’s relationship with Libya) that run the centres? What role should the UNHCR play in overseeing refugee status determination or alternative forms of “screening”? These are important questions because they have implications for which legal system would apply, which states would have what legal obligations, and which rights would be available to asylum seekers and migrants. Moreover, it will also have an impact on various member states’ national laws, as the latter may need to be amended to allow the authorities to embark on extraterritorial processing and/or transferring responsibility over and above Dublin 2. The legal framework of the EU may also need to be re-examined if the EU is to take responsibility for running such centres.

4.2 Who are the centres for?

30. In the recent proposals there are also variations according to the groups of migrants for whom the centres would cater. On the one hand, the United Kingdom proposals and Schily’s written proposal imply that people who were in transit could be intercepted en route and returned to the countries from which they had transited for extraterritorial processing. The same could apply for those who had manifestly unfounded cases and who had come from a transit country. On the other hand, the centres might simply be used for those arriving on the territory of the transit country. This distinction is significant because it changes whether a transfer is part of the process and also whether European states are likely to incur obligations of non-refoulement towards the asylum claimants by virtue of them reaching the EU or being intercepted at sea. Once migrants have reached the EU or been intercepted in the Mediterranean, for example, the relevant EU member state would have both a direct and indirect legal obligation to ensure that those individuals were not returned to face torture or persecution.

4.3 What happens after the refugee status determination procedure?

31. It is likely that after screening or refugee status determination, at least four groups will be identified, for which there will be different options: refugees who have not found effective protection elsewhere; refugees who have moved on secondarily having already found effective protection; those who could have found protection elsewhere as they had been in countries where protection would in principle have been available; and non-refugees. In the first instance, those identified as having a well-founded fear of being persecuted or falling under the subsidiary protection notion of the EC directive concerned (2004/83/EC, the “qualification” directive) could be allowed to be resettled to the EU as part of an EU-wide burden-sharing system (as in the United Kingdom proposals or the three-prongs approach), allowed to be resettled to their original intended destination country, or sent to a “safe third country” (as in the Schily proposals). In the second instance, those who have moved on secondarily might be either returned to their first country of asylum or allowed to remain in the transit country or given humanitarian status in the EU. In the third instance, non-refugees could be returned to their country of origin if indeed the claimant’s correct country of origin could be identified. The difficulty arises when the authorities of the country of origin refuse to allow the claimant to re-enter (return), or if the centre cannot identify a claimant’s nationality or route. Alternatively, non-refugees might be offered information about alternative migration channels.

4.4 What conditions?

32. There are a number of different approaches the centres could adopt, which vary in the levels of, for example, freedom of movement and temporary access to the labour market they accord transit migrants. Centres may be closed or open, but should always offer the basic services and opportunities as per the EC directive concerned. The majority of the current proposals and past precedents opt for closed centres. Processing within such centres should be based on a sound legal basis including the use of or reference to the relevant EC/EU directives (like 2003/9/EC of 27 January 2003, laying down minimum standards for the reception of asylum seekers), a right to appeal, a right to legal counsel, and so on. Similarly, the standards outlined by the European Committee for the Prevention of Torture (CPT) should also be guaranteed. Indeed all efforts would need to be undertaken to ensure that these centres are run in accordance with accepted legal standards. In fact, in view of the risks and sensitivities involved, the standards should be well above the minimum standards. Also in this regard, transparency, accessibility and accountability should stand central.

4.5 Where located?

33. The majority of the proposed transit centres or processing sites proposed have been in countries on the EU’s external border, either in North Africa, the Balkans, or former Soviet republics. Significantly, the proposed states have varied according to the extent to which they have been signatories of the 1951 Geneva Convention on the status of refugees and other relevant human rights treaties. Your rapporteur also notes, however, that the UNHCR under its three-prongs discussion paper put forward proposals for centres within the European Union.

5 Legal issues

34. The setting up of transit centres or processing centres entails a number of legal issues, all of which deserve to be addressed in a transparent and constructive manner. It concerns issues like the transfer of responsibility and the various modalities, the need to stick to relevant human rights treaties like the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, the European Convention on Human Rights (ECHR) as well as its relevant jurisprudence, and also the need to address the procedural and practical requirements and the issue of closed as opposed to open centres. In this regard it is recalled that the EC directive concerned (see above) indicates (Article 7.3) that when it proves necessary, for example for legal reasons or reasons of public order, member states may confine an applicant to a particular place in accordance with their national law.

5.1 Transfer of responsibility

35. Articles 33 and 1a of the 1951 Refugee Convention imply the obligation to refrain from the refoulement of refugees to countries where they are likely to face a well-founded fear of being persecuted. These obligations implicitly impose procedural obligations upon states to engage in refugee status determination rather than arbitrarily returning asylum seekers. Erika Feller of the UNHCR has argued, in relation to extraterritorialising protection or processing: “If an individual makes a claim in your state to your protection and you are a state party to the Convention it is incumbent on you to ensure that that person has access to protection, whether it is in your country or somewhere else.NoteIn the latter case, the state concerned needs to keep its commitments vis-à-vis the other states parties in due account. Other states may be of the opinion that a state exposing asylum seekers to extraterritorial processing is not acting in accordance with the provisions of the 1951 Refugee Convention. Such a divergence of views needs to be taken seriously and deserves serious debate among the states parties to the 1951 Refugee Convention.
36. Yet this does not necessarily imply that responsibility where it concerns refugee protection or asylum processing cannot be transferred from one state to another. The “safe third country” concept indeed suggests that a state can transfer a refugee or an asylum seeker to another state provided that all parties agree that the “third country” acts in accordance with the 1951 Refugee Convention provisions. In the EU, “Dublin 1” and “Dublin 2” are products of this line of thinking.NoteIt has been duly noted that both the validity of the “third safe country concept” and the idea of “outsourcing” human rights obligations have been contested by some respected international human rights lawyers. However, the UNHCR September 2003 three-prongs approach working paper would appear to indicate that extraterritorial processing should not be prima facie excluded. Moreover, a transfer of asylum seekers for processing purposes to other states could be accomplished under three different models:
a the “full” transfer of responsibility for the processing of applications;
b the extraterritorial processing of applications with the responsibility remaining with the state where the application was submitted in the first place; or
c processing taking place on the basis of shared responsibility, in which the relevant (EU) country where asylum had been applied for, together with, for example, the UNHCR and the country of actual processing share responsibility for the procedure and the outcome.

5.2 Jurisdictional responsibility

37. As has been indicated above, responsibility for processing may: a. be transferred to the country where the centre is to be established; b. remain with the European country where the application concerned was filed; c. be with a shared responsibility, possibly including the UNHCR.
38. In this context, regard should be had to the European Convention on Human Rights and its related jurisprudence as to this issue. No action should be undertaken that might be in violation of the obligations under the Convention.
39. Furthermore, it is acknowledged that Protocol No. 7 to the European Convention on Human Rights, aiming at providing aliens with the same (procedural) safeguards as Council of Europe citizens, has not been acceded to by some important Council of Europe member states, like Germany, Belgium and the Netherlands. In any case, this very protocol underlines that not all (procedural) safeguards as contained in the European Convention on Human Rights are automatically extended to aliens/non-citizens: that was why this Protocol No. 7 was needed in the first place.

6 Practical issues

6.1 Ensuring legal obligations

40. The analysis above highlights that while establishing transit centres or processing centres is not likely to be a violation of international refugee or human rights law per se, European states have significant practical challenges in order to make such centres compatible with their domestic legislation and international commitments (at EU level, Council of Europe level and UN level). With respect to those asylum seekers and refugees who have already reached Europe or been intercepted by a European state en route to Europe, transferring responsibility for processing or protection is highly challenging because it places a burden on the transferring state to ensure credible assurances that all of the obligations to which that individual would have been entitled to within the transferring state will be met extraterritorially. This applies whether individuals are being pre-screened and then sent on to another country for final determination or whether the full determination process is being carried out in the centre. Meanwhile, with respect to asylum seekers intercepted by European states, these states are likely to maintain significant ongoing jurisdictional responsibilities, in so far as they are implicated in the running of the centres.
41. Fulfilling these obligations is likely to be quite challenging on a practical level. The way the transfer has been carried out, the question whether the centre is open or closed, the right of appeal, the issue of ensuring migrants’ legal access, the need to build up the transit state’s legal capacity to meet these human rights obligations, ensuring access to “effective protection” for those recognised as refugees, and the need to ensure the oversight of the facilities and the humane treatment of all migrants through diplomatic assurances and monitoring will pose serious practical challenges, again depending to a great extent on the level of transfer of responsibility and the actual “format” of the processing (by the state of residence, the state of arrival, by the UNHCR or by a combination of these three).

6.2 Costs

42. A major premise of many of the proponents of transit centres or processing centres is that they are likely to be economically more “efficient” because they reduce all of the costs associated with the legal procedures and care and maintenance of spontaneous arrivals of asylum seekers within Europe. This was, for example, an explicit premise of the United Kingdom proposals, which argued that the cost of processing could be reduced through the creation of such centres. However, the Australian experience of offshore processing highlights that running detention centres on Nauru and Manus Island has been far more expensive than onshore processing. For example, the majority of the 1.2 billion Australian dollars (AUD) refugee budget increase in 2002-03 was allocated to offshore processing, with AUD 430 million being allocated to processing in third countries in the Pacific (Nauru and Papua New Guinea) and AUD 455 million on processing in Australian offshore locations (Christmas Island and the Cocos Islands) over the period 2002-03 to 2005-06. A further AUD 219 million was allocated for the construction of facilities and AUD 75 million for transit costs. In terms of the comparative efficiency of domestic and offshore processing, the average cost to the taxpayer of offshore processing was AUD 293 per day on Christmas Island and AUD 236 on the Cocos Islands, against AUD 87 per day at Port Hedland, AUD 65 per day in Sydney, and AUD 102 per day at Woomera, for example.NoteThe time needed for processing and implementing the outcome will hence prove crucial in this respect.

6.3 What to do with those who are not recognised as refugees

43. A serious practical concern relating to the viability of transit centres or processing centres is what to do with those asylum seekers who are denied refugee status. This may pose a particular problem where readmission agreements do not exist with countries of origin or where there is uncertainty or disagreement concerning a migrant’s country of origin. The case of Nauru exemplifies the protracted nature of stay in offshore centres at which neither return nor resettlement are available to detainees. At the very least, alternatives are needed for such people so that they do not remain detained indefinitely. Whilst it is acknowledged that readmission agreements will facilitate the return of rejected asylum seekers, such an agreement is no conditio sine qua non. All countries are obliged under international law to take their own citizens back. A greater problem exists in agreeing on how to handle the return of third country nationals under readmission agreements. In these instances adequate human rights safeguards in readmission countries is essential. Your rapporteur considers that readmission agreements are an essential element of dealing with mixed flows of asylum seekers and refugees and further efforts are needed to negotiate such agreements, but only in so far as human rights concerns are taken fully into account.

6.4 Effectiveness

44. In view of the complicated and often sensitive environment in which such centres might function, there would be a need: a. to assure transparency, accessibility and accountability; and b. to regularly evaluate the functioning, outcome, effectiveness and other related issues. Different bodies could have a role in this evaluation including the European Committee for the Prevention of Torture (CPT) and also the Parliamentary Assembly itself.
45. Moreover, it is quite possible that more people will be tempted to avoid the asylum system altogether and will use traffickers to reach Europe, after which they will try and settle as irregular migrants. This means that the establishment of such centres should not be looked into in isolation, but should also be linked to the issue of illegal migration in general (and in particular access by such (irregular) migrants to the labour market) as well as the issue of smuggling and trafficking, in accordance with the 2000 Palermo Convention and protocols on these and related issues.

6.5 Political consequences

46. The establishment of transit centres or processing outside the EU could meet with substantial opposition from NGOs, academics and also some authorities. It is with this in mind that brainstorming in general, and the decision-making process in particular, should be an all-inclusive exercise, enabling all parties to present and share their views, and to make sure that all the relevant information and arguments will be shared and discussed. In particular, the issue of (shared) responsibility and the well above minimum level of human rights standards to be adhered to, are in this respect of the utmost importance. Similarly, efforts would need to be undertaken to ensure that human rights commitments in states where such centres are established would be strengthened rather than diminished.
47. It is clear such centres should be part of a wider effort to support the countries faced with the true burden of refugees, like those of the South.

7 Related issues

7.1 Comprehensive engagement in regions of origin

48. The challenge of tackling transit migration via the Mediterranean lies largely in Sub-Saharan Africa. According to the International Centre for Migration Policy Development (ICMPD), of the 100 000 to 120 000 migrants who cross the Mediterranean illegally each year, around 65 000 come from Sub-Saharan Africa.NoteMeanwhile, much of the transit migration via the Balkans and the Maghreb states originates in the Middle East. Addressing the causes of transit migration therefore relies upon developing a comprehensive approach based on international co-operation which focuses simultaneously on countries of origin, countries of first asylum and countries of transit. Such comprehensive approaches might, for example, draw precedence from the UNHCR’s Comprehensive Plan of Action (CPA) of the late 1980s and early 1990s. In particular, the Indo-Chinese CPA and the International Conference on Central American Refugees (CIREFCA) represent examples of how international co-operation has been developed between countries of asylum, countries of origin and third countries beyond the region in order to address specific regional refugee issues. Crucially, however, such an approach requires a commitment by European states that goes far beyond a narrow focus on transit or processing countries. Moreover, it should be acknowledged that, although this document appears to focus on asylum seekers rather than on migrants in general, those asylum seekers whose applications have been rejected do not, de facto, differ from irregular migrants. The solutions and procedures to be identified for rejected asylum seekers will thus also be useful for irregular migrants.

7.2 Countries of first asylum

49. As part of the Irregular Secondary Movements (ISM) strand of the UNHCR’s Convention Plus Initiative, the Swiss Forum for Migration (SFM) survey on the irregular secondary movement of Somali refugees showed that a major cause of onward movement for Somali refugees has been the (perceived) inadequacy of protection and assistance and the lack of access to livelihood opportunities and durable solutions in host states of first asylum.NoteThis represents the recognition that ensuring the availability of “effective protection” within first countries of asylum and timely access to durable solutions for refugees who have been in protracted camp situations for a long period of time may partially reduce the need for the onward movement of refugees towards Europe.Note
50. In order to ensure that protection standards in countries of first asylum meet the standards required by the 1951 Convention, there is a need to support initiatives to strengthen protection capacity in host states. Improving legal standards, ensuring adequate access to food, shelter, social services, freedom of movement and livelihood opportunities, and guaranteeing physical security are amongst the factors which need to be strengthened in the countries of first asylum in order to ensure that effective protection can be found without the need for onward movement. The UNHCR’s Strengthening Protection Capacity Project (SPCP) and the EU’s Regional Protection Programme (RPP) need massive funding if they are to adequately address these requirements.
51. In relation to protracted refugee situations, over 6 million refugees have remained in “an intractable state of limbo”, often confined to insecure camps for over five years. Working to achieve durable solutions such as repatriation, local integration and resettlement offer a means to mitigate the need for onward secondary movement. European states can work towards this through expanding resettlement programmes, supporting the UNHCR’s Development through Local Integration (DLI) approach which has been used in states such as Zambia and Serbia and Montenegro, and supporting post-conflict transition. Supporting the UNHCR’s attempts to develop comprehensive plans of action to address protracted refugee situations, such as the CPA for Somali refugees, the Mexico Plan of Action, and the work of the Afghanistan Comprehensive Solutions Unit (ACSU), offers a means for enhancing the search for durable solutions.
52. In situations in which durable solutions are not immediately available due to intractable conflict, for example, the concept of Development Assistance for Refugees (DAR), developed by the UNHCR within the framework of the Targeting Development Assistance (TDA) strand of the Convention Plus initiative, offers a means to promote, leverage and fund the self-reliance of refugees, pending the availability of durable solutions. Through providing integrated development assistance, which benefits both refugees and host communities, DAR offers a means to promote freedom of movement, employment and integrated social service provision for refugees, obviating the need and incentive for onward movement. The approach has been applied most notably in relation to Uganda’s Self-Reliance Strategy (SRS) and in Mexico’s Yucatan Peninsula.

7.3 Countries of origin

53. The UNHCR has developed the concept of the 4Rs (repatriation, reintegration, rehabilitation and reconstruction) as a means to bridge the transition gap between relief and development and ensure that refugee return is sustainable instead of resulting in a “revolving door”, as has occurred in Somalia or Afghanistan, for example. Engaging with improving the prospects for sustainable repatriation therefore offers a means to reduce the “backflow” of refugee movements. Closing the gap between relief and development, however, relies upon creating greater policy coherence at not only the global level between the UNHCR, the UNDP and the World Bank, but also at the EU level between the Development DG, ECHO, the Justice and Home Affairs DG, and Common Foreign and Security Policy (CFSP). It also needs a commitment over and above the usual three to five years. Moreover, there is a need for improved engagement in peace building as a means to address the root causes of refugee flows. The EU is already engaged in such activities through, for example, the work of ECHO and the Development DG. For example, in the Democratic Republic of Congo, the EU has committed soldiers to “Operation Artemis” to de escalate conflict. However, again, greater policy coherence is required to link such initiatives to a more comprehensive asylum and migration strategy.
54. With respect to addressing the root causes of other forms of migration, it is important to recognise that in the context of jobless growth in many parts of Sub-Saharan Africa, a significant proportion of labour migration is driven by “push factors”. Numerous surveys exploring the causes of transit migration from Sub-Saharan Africa via the Maghreb reveal that many migrants leaving Nigeria, Senegal, Cameroon, and Mali, for example, were doing so in response to poverty and destitution.NoteThis points to a need for targeted development assistance to create sustainable livelihoods in areas from which migrants originate, as well as working to ensure the sustainable reintegration of those who are returned to their country of origin. It is needless to say that “pull-factors” also play a role. One of those is related to a lack of tariff-free trade and the continuation of farm subsidies. More often than not Europe would appear to prefer an (irregular) tomato picker to tomatoes from the picker’s country of origin.

8 Conclusions

55. While there is clearly a need for innovative and more effective approaches to flows of migrants and asylum seekers, the proposals that have been put forward to date for creating transit centres or processing centres, raise a number of serious issues and concerns.
56. Your rapporteur, while accepting such centres may not per se amount to a violation of human rights law or refugee law, considers it important to highlight the following major issues and concerns.
57. The first relates to the issue of responsibility and how to ensure that no state avoids its responsibility under human rights or refugee law if such centres are established.
58. The second is how to ensure that establishing such centres would not replace well-established asylum procedures in European destination countries.
59. The third is how to make sure that such centres do not undermine national policies and practices and determination procedures in the countries where they may be established.
60. The fourth is how to make sure that such centres, if established, fit into a comprehensive plan for dealing with migrants and asylum seekers taking into account the needs of the individuals concerned and the needs of countries of origin, transit and destination.
61. Your rapporteur is well aware that there are very different issues at stake depending on whether one considers establishing transit or processing centres in an EU member state, within Europe but outside of the EU, or in a country outside the borders of Europe. While the establishment of a transit centre or processing centre within the European Union may not raise insurmountable problems (and indeed has been put forward as a proposal by the UNHCR in the past), the creation of centres outside of Europe would, at this moment in time, appear highly problematic. Your rapporteur is therefore of the view that if centres are to be established they should first of all be established within the European Union and transported only as a model if shown to work satisfactorily.
62. The concerns raised in this report should be taken into account in any future discussions, not just on setting up transit or processing centres, but also in any debate on devising innovative and more effective approaches to flows of migrants and asylum seekers.
63. There have been positive experiences in establishing transit or processing centres and your rapporteur points to the example of the Comprehensive Plan of Action (CPA) for Indo-Chinese Refugees which provided a timely solution for the Vietnamese Boat People. Its success lay in that it involved the country of origin, countries of transit and countries of destination in a comprehensive approach to the problem of a mixed flow of irregular migrants and asylum seekers. This and other positive experiences are worth learning from.
64. There is a need to look for innovative and more effective approaches to the mixed flows of migrants and asylum seekers going beyond the proposals for transit centres and processing centres put forward to date. Your rapporteur therefore urges the Assembly to take up the issue in a new report on innovative and more effective approaches to handling mixed flows of migrants and asylum seekers.

* * *

Reporting committee: Committee on Migration, Refugees and Population.

Reference to committee: Doc. 10448 and Reference No. 3059 of 18 March 2005.

Draft resolution and draft recommendation unanimously adopted by the committee on 11 May 2007.

Members of the committee: Mr Mevlüt Çavus¸og˘ lu (Chairperson), Mr Jean-Guy Branger (1st Vice-Chairperson), Mr Doug Henderson (2nd Vice-Chairperson), Mr Ibrahim Özal (3rd Vice-Chairperson), Mrs Tina Acketoft, Mr Pedro Agramunt, Mr Küllo Arjakas, Mr Ryszard Bender (alternate: Mr Andrzej Grzesik), Mr Akhmed Bilalov, Mr Italo Bocchino, Mrs Olena Bondarenko, Mrs Mimount Bousakla, Mr Márton Braun, Lord Burlison, Mr Sergej Chelemendik, Mr Christopher Chope, Mr Boriss Cilevicˇs, Mrs Minodora Cliveti, Mr Ivica Dacˇ ic´, Mr Joseph Debono Grech, Mr Taulant Dedja, Mr Nikolaos Dendias, Mr Karl Donabauer, Mrs Lydie Err, Mr Valeriy Fedorov, Mr Oleksandr Feldman, Mrs Margrét Frimannsdóttir, Mrs Gunn Karin Gjul, Mrs Angelika Graf, Mr John Greenway, Mr Andrzej Grzyb, Mr Ali Riza Gülçiçek, Mr Michael Hagberg, Mrs Gultakin Hajiyeva, Mr Jürgen Herrmann, Mr Bernd Heynemann, Mr Ilie Ilas¸cu, Mrs Iliana Iotova, Mr Tadeusz Iwin´ ski, Mr Mustafa Jemilev, Mr Tomásˇ Jirsa, Mrs Corien W.A. Jonker, Mrs Eleonora Katseli, Mr Hakki Keskin, Mr Dimitrij Kovacˇicˇ, Mr Andros Kyprianou, Mr Jaako Laakso, Mr Geert Lambert, Mr Jean-Marie Le Guen, Mr Massimo Livi Bacci, Mr Younal Loutfi, Mr Jorge Machado, Mr Jean-Pierre Masseret, Mr Giorgio Mele (alternate: Mr Pasquale Nessa), Mrs Ana Catarina Mendonça, Mr Morten Messerschmidt (alternate: Mr Morten Østergaard), Mr Paschal Mooney, Mr Gebhard Negele, Mr Kalevi Olin, Mrs Vera Oskina, Mr Grigore Petrenko, Mr Leo Platvoet, Mrs María Josefa Porteiro Garcia, Mr Cezar Florin Preda, Mr Dusˇan Prorokovic´, Mr Gabino Puche, Mr Milorad Pupovac, Mr Marc Reymann, Mr Alessandro Rossi, Mr Richard Sequens (alternate: Mr Walter Bartosˇ), Mr Samad Seyidov, Mr Luzi Stamm, Mrs Terezija Stoisits, Mr Giacomo Stucchi, Mr Vilmos Szabó, Mrs Elene Tevdoradze, Mr Tigran Torosyan, Mrs Ruth-Gaby Vermot-Mangold (alternate: Mr Arthur Loepfe), Mr Andrej Zernovski, Mr Vladimir Zhirinovsky, Mr Emanuelis Zingeris.

NB: The names of the members present at the meeting are printed in bold.

These texts will be discussed at a later sitting.