B Explanatory
memorandum by Mr Rigoni, rapporteur
1 Introduction
1. The mixed flow of migrants, asylum seekers and refugees
is moving increasingly from the south of Europe towards the east.
As routes of irregular migration, smuggling and trafficking are
closed down, new ones open up, testing borders and the capacity
of States to deal with these problems.
2. Many member States of the Council of Europe are highly conscious
of these challenges. Those which are members of the European Union
are anxious to keep these mixed flows out of their area of jurisdiction. member
States beyond the European Union’s external borders find themselves
in a difficult position as they are increasingly becoming countries
of transit for those seeking to enter the European Union, as well
as countries of destination in their own right.
3. The aim of this report is to look at some of the main challenges
that these countries are facing, and to examine whether the countries
beyond the European Union’s eastern border are able and ready to
deal with them. If they are not, it is then necessary to examine
the steps that need to be taken to assist them in dealing with these
challenges while upholding human rights and asylum concerns. This
is a responsibility not only for countries beyond the European Union’s
eastern border but also for EU countries, which are the primary
pull factor for these mixed migration flows.
4. In my report I have decided to concentrate on four issues
linked to these mixed migration flows, two of which are essentially
human rights concerns.
5. The first issue is the challenge of identifying refugees and
other persons in these flows who have international protection needs.
6. The second issue is that of detention. The Parliamentary Assembly
has indicated on many occasions that detention of irregular migrants
and asylum seekers should be a measure of last resort and only after alternatives
to detention have been explored.
Note In reality, however,
detention is often used as a form of migration management and as
an automatic measure. The question therefore arises whether these
countries have the appropriate laws and practices in place to ensure
that detention complies with international legal standards, and
also whether they have the appropriate facilities for holding detainees,
or mechanisms in place to propose alternatives to detention.
7. The third issue is that of returns from the European Union
to these countries and the use of what are known as EU readmission
agreements for these returns. It is clear that any migration management
policy needs a returns policy and readmission agreements are often
part and parcel of such a policy. All returns have to be in conformity
with the Council of Europe’s Twenty Guidelines on Forced Return.
Keeping this in mind questions have to be asked about the fairness
of these agreements, in particular when pressure is put on non-EU
countries to take back third country nationals, for which EU member
States would otherwise be responsible. Furthermore, there are human
rights concerns that arise in the context of these agreements which
have previously been raised by the Assembly in its
Resolution 1741 (2010) on readmission agreements: a mechanism for returning
irregular migrants.
8. The fourth and final issue I would like to take up is that
of the support given by the European Union and the impact and effectiveness
of this support.
9. In collecting together information for this report, I had
the opportunity of visiting Ukraine and also Turkey. I am grateful
to the authorities of the countries concerned for their openness.
I am also grateful to all those who assisted and provided me with
further background information for my report. I am particularly
indebted to the United Nations High Commissioner for Refugees (UNHCR)
and its various offices in the region. They assisted me throughout
my time as rapporteur, including during the visits and in the preparation
of the report.
2 The scope
of the problem
10. The number of irregular migrants, asylum seekers
and refugees flowing into the countries under examination is constantly
increasing. In some cases these increases are substantial and are
in part due to events in North Africa, in particular Tunisia, Libya
and now Syria. They are also due to flows from former conflict zones
such as Afghanistan. However, one of the major reasons for these
increases is that the more traditional mixed migration routes in
the southern Mediterranean have been progressively closed down.
11. To give some specific statistics, in Turkey in 2010 there
were 9 230 asylum claims; in 2012, this figure was up to over 20 000.
This figure does not include the addition of 258 200 Syrian nationals
currently receiving temporary protection in Turkey. The figures
become even more worrying if one looks at the UNHCR’s projections
for the end of 2013, where they calculate that there could be as
many as 703 340 people of concern to them (586 000 of them Syrians)
Note.
12. Serbia registered over 2 499 asylum-seekers in 2012, a 500%
increase over a two-year period.
Note Croatia saw the number of claims it received
go up 180% between 2010 and 2011 (going up from 290 to 807 during this
period, with the figure climbing above 1 000 in 2012).
13. These are just three examples, but they show how quickly the
scale of the problem can change.
3 Are the asylum
systems in these countries ready and able to cope with future challenges
of mixed migration flows?
14. The asylum systems in the countries under consideration
are for the most part new. Furthermore, many of those responsible
for operating them are relatively inexperienced. The UNHCR has provided
substantial support to these countries to help them build up their
asylum systems and train the persons involved in managing them.
Additional targeted efforts are underway to assist States in the
Balkans in developing co-operative and protection-sensitive responses
to challenges raised by mixed movements, along the lines of the UNHCR’s
10-Point Plan of Action on Refugee Protection and Mixed Migration.
The European Union has also provided a great deal of support and
funding. The question remains however whether these countries are
able to cope and meet their international and European legal obligations?
3.1 Legislation
15. In terms of bringing legislation into line, most
of the countries have taken many, but not all steps necessary to
bring their legislation into line with international standards.
16. Croatia has amended its Asylum Act of 2007 bringing it into
line with international standards. This has been welcomed by the
international community. In 2002, the Republic of Moldova acceded
to the 1951 Convention relating to the Status of Refugees and its
1967 Protocol, and its new Law on Asylum entered into force in March
2009. The latter is also largely in line with international standards,
but still needs some amendments regarding its non-refoulement and
exclusion provisions.
17. In the Russian Federation, according to the UNHCR, legal protection
afforded to asylum-seekers and refugees has improved in recent years.
Note The country acceded
to the 1951 Convention relating to the Status of Refugees and its
Protocol in 1992 and in 1993 it adopted the Federal Law on Refugees.
Since then, a new draft Law on Refugees has been prepared by the
Federal Migration Service (FMS) in co-operation with the UNHCR.
Unfortunately, its consideration by the Duma is likely to be put
back to 2015. Pending approval of this new law, the FMS has filled
some of the gaps in the legislation through changes in regulations.
The UNHCR has been involved in this process, for example by giving
comments on issues such as the suspensive effect of appeals and
extending the validity of documentation during appeals procedures.
18. Turkey, although a signatory to the 1951 Refugee Convention,
maintains a geographic reservation. This means it only accepts as
refugees, persons coming from Europe. Those coming from outside
of Europe are currently dependent on the UNHCR granting them status
and organising for their resettlement in a third country. Turkey
is under pressure to remove the geographic reservation, but this
is tied up with negotiations for Turkey’s entry into the European
Union. It is, however, to be welcomed that Turkey is in the process
of adopting its first ever asylum law which will provide guarantees
of non-refoulement and grant
other rights to asylum seekers as well.
19. In Ukraine, there have finally been positive developments
in strengthening the legal framework for asylum, motivated in part
by the incentive of the European Union Action Plan on Visa Liberalisation
with Ukraine. A new Law on Refugees and Persons in Need of Complementary
or Temporary Protection in Ukraine came into force on 28 July 2011.
This introduces complementary protection for persons who cannot
return to their country of origin, and also provides for a unified
asylum-system certificate.
20. In Serbia, the legal framework would appear to be largely
in place following adoption of a Law on Asylum in 2007. However,
when one takes into account that the refugee recognition rate stands
at almost zero,
Note it is clear that there have been
major problems in guaranteeing international protection, including
asylum.
21. The last point leads me to the conclusion that while there
are many positive legislative developments in these countries, emphasis
now has to be placed on putting laws into practice. On the legislative
front, Turkey needs to be encouraged to continue its efforts to
adopt the new asylum law and take steps to remove the geographic
reservation to the 1951 Refugee Convention as soon as possible.
3.2 Practice
22. Passing legislation is one thing, but putting it
into practice is another. Keeping in mind that many of these countries
have new legislation and little experience in implementing this
asylum legislation and dealing with significant numbers of asylum
seekers, it is perhaps not surprising that most of the issues and
problems arise in terms of practice rather than of law.
23. Some of the most common problems I came across in preparing
this report revolve around the following issues:
- the structures that have been
set up to deal with asylum claims;
- the volume of claims;
- quality and consistency of asylum decisions;
- low recognition rates;
- the role of border guards;
- the training of all those involved in the asylum process
(border guards through to asylum officials, lawyers and judges);
- levels of staffing;
- financial resources;
- short time limits for claiming asylum;
- insufficient capacity of reception centres for asylum
seekers;
- unfair adjudication;
- failure to comply with judgments and interim measures
of the European Court of Human Rights;
- access to legal support;
- access to medical care, accommodation, social support,
employment;
- lack of specific safeguards for vulnerable asylum seekers;
- access to asylum procedures in detention.
In
this part of the report, I would like to concentrate on the issue
of the quality and consistency of asylum decisions, which englobes
many of the above issues.
3.2.1 Quality and consistency
of asylum decisions
24. A clear indicator of problems is the low recognition
rate of asylum seekers in many countries. In Serbia, no one has
received refugee status since 2008, and only five individuals have
received subsidiary protection. There are a host of reasons for
this, stemming in part from the organisation of the asylum process
and the consequences of having border police processing claims
in the asylum office as opposed to professional civilians.
Note As a result of this situation, many
asylum seekers simply abandon their asylum claims.
Note
Recognition data (2010 statistics)Note
|
Acceptance
rate/ Countries
|
Convention Status
|
Complementary protection status
|
Total applications
|
Acceptance rate
|
|
Albania
|
4
|
The value
is zero or not available
|
9
|
44.4%
|
|
Belarus
|
22
|
8
|
291
|
10.30%
|
|
Croatia
|
5
|
8
|
314
|
4.14%
|
|
“The
former Yugoslav Republic of Macedonia”
|
/
|
/
|
89
|
0%
|
|
Russian
Federation
|
124
|
1 040
|
4 104
|
28.3%
|
|
Serbia
|
/
|
1
|
614
|
0.1%
|
|
Turkey
|
6 485
|
/
|
10 827
|
59.9%
|
|
Ukraine
|
260
|
49
|
1796
|
17.2%
|
25. In Ukraine, there continue to be a range of problems
affecting the quality and consistency of asylum decisions. The UNHCR
has indicated that many persons do not have access to a lawyer before
a court hearing (in particular when they are detained), free legal
aid is not available and court hearings sometimes take place without
an interpreter or with an interpreter speaking a language the person
does not understand. Furthermore, asylum seekers do not always receive
copies of the decisions in their case which makes an appeal extremely difficult
in the short five-day limit provided. Another problem noted in Ukraine
was that following the reorganisation of the State Migration Service
in 2011, there was a large drop in the number of asylum seekers registered
due to a lack of institutional capacity (only 890 in 2011). This
indicates that new and redeployed personnel of the State Migration
Service need further training and guidance to ensure access to asylum procedures.
26. In Russia, the UNHCR has been working closely with the Federal
Migration Service on capacity building of the asylum system. One
problem which remains is the lack of free legal aid. While local
non-governmental organisations (NGOs) and the UNHCR have stepped
in to provide free legal aid wherever possible, this issue remains
a concern. Another major concern has been the risk of refoulement from within the country
but also at borders, including at international airports. There
have been a number of alleged incidents of refoulement and the
UNHCR has had to intervene on a number of occasions to prevent further refoulement taking place.
27. The problem of the quality and consistency of asylum decisions
will need additional investment from the countries in the region
and they will require further assistance from the European Union
and the UNHCR. In this respect, the systemic gaps in the asylum
system will need to be addressed using as a foundation an effective
asylum service, operating as an independent entity with its own
budget and sufficient well-trained staff.
28. To address this need, the UNHCR has just launched a two-year
regional asylum capacity-building project, focusing on national
refugee status determination (RSD) procedures, which is co-funded
by the European Union. Building on tested methodology of previous
projects in central and southern Europe, it aims to put in place
sustainable quality assurance mechanisms for national RSD procedures
in eastern Europe (Ukraine, Belarus, Republic of Moldova, Georgia,
Azerbaijan, Armenia and Russia as an observer). This will be done
by improving the quality of training, through promoting the European
Asylum Curriculum (EAC) as a standardised training tool, and introducing
a Russian version of the UNHCR’s REFWORLD database to facilitate
access to high-quality country of origin information for Russian-speaking
case adjudicators.
29. An issue which will also need attention across the region
are the consequences of accelerated asylum procedures and tight
deadlines, whether these be for claiming asylum or appealing decisions.
Without efficient functioning asylum systems, these deadlines and
accelerated asylum processes exacerbate the risk of the asylum process
failing persons genuinely in need of protection.
3.3 Conclusions
30. The question asked at the outset was whether the
countries’ asylum systems were ready and able to cope with the future
challenge of increased numbers of asylum seekers and refugees. The
answer is clearly no. While much has been done to bring legislation
into line with international refugee and human rights standards,
the practices do not yet follow. The statistics on acceptance rates
for asylum seekers attest to this situation.
31. These countries are increasingly becoming countries of destination
and not only countries of transit, but in the absence of fully functioning
fair asylum procedures, people will not stay and will choose or
be forced by circumstances to move on into the European Union looking
for protection.
4 Detention of irregular
migrants and asylum seekers
32. In looking at this issue, I would like to recall
Assembly
Resolution 1707
(2010) on the detention of asylum seekers and irregular migrants
in Europe. In this resolution, the Assembly makes it clear that
member States should not detain a migrant in an irregular situation
or an asylum seeker unless it is legally permissible. For this to
be so, States need to comply with Article 5.1 of the European Convention
on Human Rights (ETS No. 5, “the Convention”), which provides that
irregular migrants may only be deprived of their liberty either
when action is being taken with a view to deportation or in order
to prevent unauthorised entry into the country.
33. With increased mixed migration flows to and through the countries
on the European Union’s eastern border, there has been an increase
in the use of detention. This has led to a number of problems and
issues, including the legal basis for detention, general safeguards
and rights of detainees and the general conditions in detention.
4.1 Legal basis for
detention
4.1.1 International standards
34. International human rights law and international
refugee law provide the legal framework against unlawful and arbitrary
detention.
35. Article 5 of the European Convention on Human Rights prohibits
arbitrary and unlawful detention. The Assembly has sought to clarify
further the circumstances in which detention may be legally permissible.
This has been put forward in 10 guiding principles in its
Resolution 1707 (2010). These principles can be found in Appendix 1 of this
report.
36. Out of these 10 principles, I would like to highlight four
which are particularly relevant for my report, as they have come
up in a number of countries in the region as being problematic.
They are: detention should be exceptional and a last resort and
only after alternatives have been considered; detention should distinguish between
asylum seekers and irregular migrants; detention should be for the
shortest possible time; and, finally, as a general rule, vulnerable
people (children, pregnant women, etc.) should not be held in detention.
4.1.2 National legislation
37. The essential safeguard against arbitrary detention
is that all forms of detention must be adequately prescribed in
national law.
Note While
laws exist providing for detention of asylum seekers and migrants
in the countries concerned, they do not always provide all the necessary
safeguards.
38. The first problem, which appears to be common practice for
many countries,
Note is
that the countries concerned all too often automatically resort
to administrative detention of migrants and asylum seekers. Furthermore,
there is almost no consideration of alternatives to detention.
39. Another problem is that little distinction appears to be made
between asylum seekers and migrants. This is in part due to the
earlier problem, namely the almost automatic resort to detention.
40. A further problem is that detention should be for the shortest
possible time. Already in the European Union there has been much
criticism of the length of detention allowed under the “Return Directive”
2008/115 which effectively allows detention for six months and then
for it to be extended for a further 12 months (total of 18 months
Note).
As a result of heavy criticism, this period is in the process of
being reduced to 12 months. However, this still remains an extremely
long period to detain persons who have not committed any crime.
41. Looking at the situation in some of the countries in the Balkan
region: In Croatia and Serbia, national legislation has been brought
into conformity with the European Union Return Directive.
42. In Turkey, where a new draft law is awaiting adoption by the
parliament, migrants are detained on the basis of an administrative
ruling by the Ministry of Interior, and they cannot challenge the
decision on their detention. Persons often remain in detention more
than six months as there is no clear legislative definition of the
maximum period for the administrative detention of foreigners.
43. In Russia, administrative law sets the maximum term of detention
before expulsion at one year.
44. In the Republic of Moldova, where illegal
entry is considered a criminal offence and illegal stay an administrative
offence, asylum seekers are usually put into administrative detention
centres while asylum procedures are pending. Immigrants, including
those who did not have the chance to apply for asylum, are also put
into detention. Detention is for a period of up to six months.
45. In Ukraine, foreign
nationals can be expelled and/or placed in administrative detention
for a number of immigration-related infractions. These include attempting
to enter the country without proper documentation, staying in the
country irregularly and without registration, committing certain
categories of crimes, and posing a threat to security, public order
or health. Detention can be for a period of up to 12 months and
there are no alternatives to detention. Worryingly, the current
law allows for a person to be detained without a court order (for
example by a state border guard), whereas previously detention had
to be authorised by a court. A speedy review of the lawfulness of
detention is required by Article 5 of the European Convention on
Human Rights, and it is certain that problems will exist under the
Convention if this is not provided for.
46. It is clear from this short analysis that there is an increasing
tendency for States to rely on detention for relatively long periods
of time, without considering alternatives to detention. This tendency
needs to be reversed. Not only are such policies expensive for States
in terms of management of detention centres, but long periods of
detention have important human consequences for those detained.
These are exacerbated further when the conditions of detention are
substandard.
4.2 General safeguards
and rights of detainees
47. The Assembly has also made it clear in
Resolution 1707 (2010) what it expects in terms of safeguards and rights for
irregular migrants and asylum seekers. It has done this by highlighting
15 rules which need to be applied. These rules can be found in Appendix
2 of this report.
48. In this section, I have chosen to focus on four issues, analysing
some of the problems in respect of access to lawyers and procedural
rights, contacts with family members, the right to medical attention,
and protection of children as a vulnerable group. Another major
issue is that of access to asylum procedures in detention which
has already been mentioned above.
4.2.1 Right of access
to a lawyer and other procedural rights
49. All detainees should have access to a lawyer and
should benefit from an effective legal remedy to be able to challenge
their detention. They should also be informed of the reasons for
their detention, of their rights, and of the rules and complaints
procedure in detention.
50. While in theory these rights are accorded to detainees, in
practice the situation is often different. One of the problems I
have noted is that legal assistance is provided to detainees mostly
by specialised NGOs, and the authorities are largely, if not totally,
reliant on this assistance and do not foresee the creation of a
properly funded system of free legal aid. Sometimes, as observed
during my fact-finding visits to Turkey and Ukraine, detainees were
deprived of their liberty without being informed of the reasons
for their detention. Lack of interpretation exacerbates the problem
and makes it difficult for detainees to challenge the situation
they find themselves in. Notwithstanding that legal advice is left
to NGOs, these NGOs often do not have free access to the detention
centres which means that the detainees do not have effective access
to legal advice. This appears to be the case, for example, in Turkey,
Russia and Ukraine.
4.2.2 Right to medical
attention
51. When detainees arrive at a detention centre, they
should have the right to be examined by a doctor to evaluate their
state of physical and mental health. Depending on the results of
such an examination, the persons concerned may need special medical
care and be admitted to hospital. Detainees should also be able to
request a consultation with a doctor, although they may be asked
to cover the costs of such a consultation.
52. Not surprisingly, this right is not always respected in all
the countries concerned. The majority of countries do not have sufficient
resources to provide medical assistance in the detention centres
on a permanent basis.
53. In Serbia, for example, medical care for asylum seekers in
the reception centres is not free of charge and there is no clear
instruction from the Ministry of Health regarding the provision
of health care to asylum seekers and refugees. Basic health care
is currently provided by the Danish Refugee Council financed by
the UNHCR. The same situation was witnessed in Turkey and Ukraine.
4.2.3 Right to contact
with family members
54. It is important for detained persons to inform their
families and relatives of their current situation and have regular
contacts. Therefore, detainees should have the right to keep their
mobile phones or to have access to them or other means of contacting
their families.
55. In Ukraine and Turkey, detainees can purchase international
telephone cards. Nevertheless, this measure is limited to those
who have the financial resources to do so.
4.2.4 Unaccompanied children
56. The Assembly has been clear on the issue of unaccompanied
children. They should never be detained and under no circumstance
should they ever be detained with adults. There may, however, be
cases where children have to be detained with their parents, but
these should be exceptional and only when found to be in the child’s
best interests, in conformity with Article 3 of the Convention on
the Rights of the Child.
57. That said, there are still cases of unaccompanied children
being detained and placed in detention centres with adults in the
countries concerned. This happens, for example, when the authorities
ignore children’s declarations as to their age. As a consequence,
and in the absence of an adequate age assessment procedure, children
are registered as adults and may be detained for long periods of
time in an extremely vulnerable situation. This practice is contrary
to the United Nations Convention on the Rights of the Child and does
not reflect the overriding principle of the convention, namely the
best interest of the child.
58. I am pleased to note that the Government of Ukraine has attempted
to respond to this problem. In co-operation with international organisations,
it has sought to elaborate a reliable age assessment procedure which
could help prevent cases of the detention of children. However,
the problem of age-disputed asylum seekers in administrative detention
continues to exist for the moment in Ukraine, as in other countries.
4.3 Conditions of detention
59. As I stressed earlier, irregular migrants are not
criminals and their detention conditions should be humane, showing
respect for the inherent dignity of the person. The UNHCR has recently
published Detention Guidelines highlighting this.
Note In these guidelines, certain principles
are put forward, including: detention only on the basis of clear
and exhaustive legal grounds and judicial oversight of its legality;
detention only in officially recognised places of detention and
not in police cells; segregation of men and women; appropriate provision of
medical treatment, opportunity to conduct physical exercise and
practice their religion; provision of basic necessities and food
and access to reading materials; access to timely information, access
to education and vocational training, possibility to submit complaints,
etc.
60. These guidelines largely mirror those put forward by the Assembly
in its
Resolution 1707
(2010) and expanded upon in the related report of the Committee
on Migration, Refugees and Population.
Note
61. It is beyond the scope of this report to analyse the situation
of detention centres across all the countries concerned. The visit
reports of the European Committee for the Prevention of Torture
and Inhuman or Degrading Treatment or Punishment (CPT) and reports
written by Amnesty International, Human Rights Watch and others,
do, however, give a clear indication of a range of problems which
I was able to see for myself in visiting detention centres in Ukraine
and Turkey. I was fortunate in that I could visit one centre which
was newly built with substantial funding from the European Union,
and another much older centre which did not have such funding.
62. The comments that I can make from visiting these centres could
be applied to many institutions (new and old) in other countries
on the European Union’s eastern border (as well as to some within
the European Union). My visits to detention centres in Ukraine and
Turkey thus serve as case studies for this report.
Ukraine
63. In Ukraine, the conditions of detention of migrants
have improved over the last few years, with technical assistance
and support from the European Union. There are several types of
detention facilities and the State Border Guard Service operates
86 short-term holding facilities with a total capacity of 573 places.
There are 73 specially equipped premises, intended for stays of
up to three days, and 13 temporary detention facilities, which are
used to hold detainees for up to 10 days.
Note Furthermore,
the State Migration Service runs five temporary accommodation centres
for the detention of foreign nationals.
64. During my fact-finding mission to Ukraine, I visited the temporary
accommodation centre for foreigners and stateless persons in the
Chernihiv region. The centre, which can accommodate 208 people,
housed around 70 at that time. The centre occupied a large area,
was well equipped and had good sanitation facilities. The detainees
were provided with adequate health care, had access to a range of
social activities and could use mobile phones. The main problem
faced in the centre was that detainees arrived in poor health (including some
suffering from tuberculosis and a range of psychological problems)
and in many cases needed special health care in hospitals.
65. This was in many respects a model centre for Ukraine, and
represents the type of conditions that, if detention is required,
should be the type of facility provided. Unfortunately, however,
the conditions in this centre are not replicated throughout Ukraine
and there are many credible reports not only of the poor conditions in
detention but also of abuse by guards. The CPT has reported on overcrowding
and poor sanitation. The border guard facilities are particularly
criticised because of alleged abuse by the guards. Furthermore, insufficient
health-care conditions and a general lack of communication with
detainees due to language barriers would also appear to be a problem.
Note Reports from respected NGOs
such as Human Rights Watch have also been highly critical, raising
concerns about arbitrary detention, ill treatment at the hands of
border guards, corruption and ill-treatment of vulnerable persons,
including children.
Note
66. Ukraine is a good example to look at, because it shows two
sides. It shows how improvements are possible, but it also shows
that there remain many problems that need to be addressed by the
authorities which will need further assistance from the European
Union and the international community.
Turkey
67. According to the Turkish authorities, Turkey has
a capacity to accommodate 2 176 irregular migrants. In addition
to existing removal centres, there is an EU project for the building
of two additional removal centres. Furthermore, a removal centre
with a capacity to house 400 persons is being built in the Aegean
region and another two removal centres are being built in the eastern
part of Turkey with a capacity to take 1 000 people.
68. While I was in Turkey, I had the opportunity of visiting Kumkapi
detention centre in Istanbul, where I witnessed very poor detention
conditions. The centre was overcrowded and detainees had inadequate
bedding (20 people in one room, some rooms without windows), poor
hygiene, lack of access to fresh air and inadequate medical treatment.
Detainees also complained about the absence of information on legal procedures
and about the treatment they received from the police authorities.
69. Unlike the centre in Ukraine, this was not a centre that had
received substantial funding from the European Union and the conditions
reflected this. The challenges that Turkey faces at the moment are enormous
bearing in mind that it is one of the most important gateways for
irregular migration and that it is having to cope with a massive
influx of Syrian refugees.
70. Notwithstanding the new centres under construction and the
support of the European Union, Turkey needs more assistance, not
only with conditions in its detention centres, but also in looking
into alternatives to detention.
4.4 Conclusions
71. In addition to the issues raised in the two case
studies above, there is one additional matter I would like to highlight.
Some of the most serious problems involving inhuman and degrading
treatment occur at the early stages of detention, while persons
are held in police detention facilities before being sent on to
immigration detention centres. This is not just an issue in Ukraine
and in Turkey, but it is also one in other countries such as the
Republic of Moldova and Russia.
72. Part of the problem is that these places are highly dispersed,
difficult to monitor, poorly adapted for receiving irregular migrants
and asylum seekers and staff are not trained to deal with these
types of detainees. This will certainly be an area where much more
attention will be required in the future.
73. My first conclusion has to be that detention should be avoided
wherever possible and should be the last and not the first option.
Furthermore, the length of detention should be kept to a minimum.
This does not appear to be the general practice in the countries
concerned. Furthermore if persons are to be detained they should be
held in facilities adequate for this task. Notwithstanding the building
of a number of new facilities it is clear that many detention centres
are clearly substandard and should either not be used or be substantially upgraded.
74. Furthermore, access to a lawyer, interpreter and family members
as well as access to asylum and other legal procedures appears to
be a widespread problem. I am also concerned that not enough attention
is given to the needs of vulnerable persons, including children,
who should not in principle be detained.
75. Following my discussions with the authorities in detention
centres, I came to the conclusion that for the benefit of both detainees
and member States, detention centres should not be managed by the
police. They should rather be run by authorities whose training
and approach is adapted to dealing with non-criminals. In instances
where the police continue to be involved, they need to have the
necessary training to carry out a function which goes well beyond
simply guarding people.
76. In view of the many problems highlighted, it is essential
that organisations or bodies involved in monitoring places of detention,
such as the CPT and national monitoring structures, be allowed to
carry out their work. Others such as NGOs also have a role to play,
as do national parliamentarians, who should be allowed access to
these places of detention and encouraged to go there.
5 Readmission agreements
77. For any migration strategy to work there needs to
be an effective returns system for irregular migrants and failed
asylum seekers which respects the rights of persons being returned
and guarantees the principle of non-refoulement.
78. One of the mechanisms for promoting these returns are readmission
agreements. Historically, these were set up on a bilateral basis
between countries, but more recently the European Union has negotiated
a range of these on behalf of its member States, including with
countries on the European Union’s eastern border.
79. Currently, EU readmission agreements have been signed with
the Republic of Moldova, the Russian Federation, Serbia, Montenegro,
Bosnia and Herzegovina, “the former Yugoslav Republic of Macedonia”
and Ukraine,
Note as
well as other countries outside Europe. Croatia has no such agreement
with the European Union, but it has concluded 25 bilateral agreements
on returns, including with many EU member States. The readmission
agreement with Turkey was initialled in June 2012 but still needs
signing.
80. There have been a number of concerns raised about the negotiation
and use of these readmission agreements, including by the Assembly
in its
Resolution 1741
(2010) on readmission agreements: a mechanism for returning
irregular migrants.
Note
81. The problem is not so much the return of nationals of the
returnee countries, but the readmission of third- country nationals.
As the European Commission has itself recognised in a recent communication:
“All third countries hold a deep aversion to the third-country national
clause, arguing that they cannot be held responsible for citizens
of third countries and that they therefore do not have an obligation
to readmit such people.”
Note Paraphrasing
an NGO, States are being asked to manage the foreigners the European
Union does not want.
Note
82. It is important to understand this aversion, as those third-country
nationals sent back are the ones who find themselves returned to
the border, and then often put into detention before ultimately
being sent back or released if return is not possible. It is thus
essential that safeguards and human rights guarantees are in place for
these persons, and that the principle of non-refoulement is
respected.
83. I have five main concerns
Note about
these readmission agreements, which link into other issues raised
in this report.
84. The first is the lack of suspension clauses in these agreements
for persistent violations of human rights in third countries. Clearly
if there are major problems in any of these countries, the agreements
should not be used.
85. The second is that all the agreements should have clauses
requiring receiving countries to respect international human rights
and refugee law. This is particularly important for example in relation
to non-refoulement and to
detention. In addition, practical measures need to be in place to
ensure that these measures are applied in practice
86. The third concern is how these agreements are implemented
at the border. Some readmission agreements provide for “accelerated”
readmission processes – with no obligation to afford access to asylum procedures
if a person is apprehended within a certain limited time or distance
from the border. Such clauses/practices are at variance with international
refugee law. There is a clear danger that accelerated procedures using
readmission agreements become automatic or semi-automatic without
a proper individual examination of each returnee’s case and protection
needs.
87. The fourth concern is the lack of monitoring of the application
of the agreements and the situation of persons following their return.
While there are Joint Committees set up for discussing how the agreements
are functioning, they are not transparent. NGOs and international
organisations (particularly the UNHCR) should be involved in these
in the future. Furthermore, it is necessary to set up what has been
referred to as “post return” monitoring mechanisms to check on what
happens to returnees under the readmission agreements following
their return.
88. The fifth concern is the lack of explicit reference to asylum
obligations of signatory States in some cases (sometimes referred
to as “non-affection clause”), or inclusion of such clauses without
monitoring their observance.
89. While the above issues have been taken up both in Assembly
Resolution 1741 (2010),
as well as in the European Commission’s own communication (referred
to above), there has been little action on these fronts and the
Council of the European Union’s Conclusion defining the European
Union strategy on readmission in June 2011 did not go very far in
addressing these issues.
Note
90. In terms of conclusions on the use of readmission agreements,
it is accepted that they are needed, and furthermore, if they include
sufficient safeguards, they could facilitate safe return and access
to the asylum procedure. However, they need to be understood in
the context of competing interests between States that want to get
rid of a problem and States that are reluctant to take on a problem.
In this, there are people in the middle, seen as the problem, namely
the migrants and, on occasion, asylum seekers. The risk that human rights
become secondary to national interests are real, hence the need
to ensure human rights safeguards in these agreements and the monitoring
of the application of these agreements and of the situation of those
who are returned.
6 The role of the
European Union
91. One of the issues at the top of the European Union’s
agenda is dealing with the migratory pressures on the European Union
and in particular the issue of irregular migration.
92. Since 2005, the European Union has developed a Global Approach
to Migration (GAM). In 2007, this approach was extended to the countries
of eastern Europe and central Asia. In the 2009 Stockholm Programme,
which defined the political priorities of the European Union in
the area of migration and asylum for 2010-2014, the importance of
launching and developing new Regional Protection Programmes and establishing
a strategic partnership with the UNHCR was highlighted. The most
recent renewed Global Approach to Migration and Mobility (GAMM),
presented in 2011, supersedes the GAM and provides the overarching
framework of the EU External Migration Policy.
93. Furthermore, co-operation has been established between European
Union member States and the countries in eastern Europe through
different co-operation platforms, such as the EU Eastern Partnership Panel
for Migration and Asylum,
Note the Budapest
Process
Note and the Prague Process.
Note
94. In addition, since 2007, the European Commission has incorporated
questions relating to migration and asylum into its Thematic Programme
for Cooperation with Third Countries in the areas of Migration and Asylum.
A forthcoming new Multiannual Financial Framework – EU budget for
the period 2014-2020 will provide for successor programmes to the
Thematic Programme (ending in 2013).
95. It is through these thematic programmes that the intentions
of the Panel on Migration and Asylum, the Budapest and Prague processes
are put into practice. In 2011-2013, the main priorities in the
eastern European countries have been identified, namely to:
- support the implementation and
negotiation of readmission agreements;
- support international protection-related activities, in
particular in the framework of Regional Protection Programmes, and
with special focus on registration, reception and resettlement conditions,
as well as measures aimed at protecting refugees against exploitation
and mistreatment, racism and xenophobia;
- prevent and control irregular migration;
- provide special attention to the international protection
of asylum seekers and refugees and supporting the implementation
of Regional Protection Programmes.
96. To give some concrete example, in 2005, the European Commission
identified Ukraine, the Republic of Moldova and Belarus as target
countries for the first pilot Regional Protection Programme. This
programme provided funding to strengthen the international protection
of asylum seekers and refugees, and to provide durable solutions
in the form of repatriation, local integration and/or resettlement.
Note
97. A programme has also been launched entitled “European Union
border assistance to Moldova and Ukraine” (EUBAM).
Note This provides technical
assistance and advice to Moldovan and Ukrainian border guards. Furthermore,
under a twinning project named “Support to Turkey
’s Capacity in Combating Illegal
Migration and Establishing Removal Centers for Illegal Migrants”,
the European Union provided approximately €15 000 000 for the establishment
of two removal centres and the development of standards for their
management by 2012.
Note
98. These different programmes have undoubtedly provided a boost
to the countries concerned in bringing their asylum systems closer
into line with international norms and standards. They have also
certainly helped in terms of improving some of the detention centres,
as I witnessed for myself in Ukraine.
99. The scale of the problem, however, remains daunting, in particular
if one looks at the migratory and asylum pressures on the countries
on the European Union’s external eastern border, and it is clear
that much greater assistance will be needed by these countries if
they are expected to act as the buffer zone protecting the European
Union from irregular migration.
7 General Conclusions
100. Mixed migration flows are on the move eastwards.
Movements into and through Turkey are indicative of this and without
doubt these movements will continue to increase and move north up
the eastern borders of the European Union, putting the Balkans,
Ukraine and Russia under even greater pressure.
101. The European Union and its member States are aware of the
pressures being placed on its eastern neighbours and they have been
giving support to them to help them control this mixed flow of irregular migrants,
asylum seekers and refugees.
102. From what I have seen and learnt, this assistance is nowhere
near enough; these countries are not sufficiently well equipped
to deal with current challenges, let alone future challenges. The
European Union and its member States have to assist these countries
more. It should not be forgotten that the European Union is the
main pull factor for these mixed migration flows. Those countries
with a frontier with the European Union also have a responsibility
to do more and should not be over reliant on assistance for matters
for which they have responsibilities.
103. Recent history has shown how unprepared Europe is for large-scale
movements of people. It was not ready for the first wave of boat
people to Europe in the mid-1990s. It was not ready for the large-scale displacement
caused by the Libyan crisis. It was not ready for the large-scale
arrival of Syrians, even if Turkey has been doing a commendable
job in providing refuge for over 258 000 Syrians. Furthermore, Europe
has not been able to take the pressure off Greece which is buckling
under the strain of debt, austerity, mixed migration flows and xenophobia.
104. The call is therefore for much more to be done to support
the countries beyond the European Union’s eastern border.
