Migration Crisis: Recent Developments, Human Rights Standards, and European Court Decision
Political upheaval and human rights violations in parts of Africa and the Middle East, particularly in Eritrea, Kosovo, and Syria, are increasing migration flows to Europe at an unprecedented rate. While the European Union (EU) received approximately 626,000 applications for asylum in 2014, Germany alone is expected to receive 800,000 applications this year. [Financial Times: Germany] Europe has not yet responded to this crisis with a uniform and coherent approach. For example, the Council on Foreign Relations notes that while Greece implemented stricter border-control operations in 2013 and Italy phased out its sea rescue program in October 2014, Sweden, on the other hand, stated that it would offer permanent residency to all Syrian refugees in 2013. European ministers will participate in an emergency summit on September 14, 2015 in Brussels to develop a more unified response to the migration crisis. [WSJ]
Regardless of whether States accept migrants, they have an obligation to respect basic human rights in accordance with international and regional instruments; these obligations also apply in detention, as noted in the recent European Court of Human Rights (ECtHR) decision, Khlaifia and Others v. Italy. See See Yannis Ktistakis, Protecting Migrants Under the European Convention of Human Rights and the European Social Charter, 2013. See also ECtHR, Khlaifia and Others v. Italy, no. 16483/12, ECHR 2015, Judgment of 1 September 2015.
While not addressing the current crisis, the UN Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families (CMW) recently commenced its 23rd session, during which it will review four States’ compliance with the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICMW).
Background to the Migration Crisis
Political upheaval in parts of Africa and the Middle East are reshaping migration flows to Europe: for example, shortly after the start of the Arab Spring in 2011, Tunisians started to arrive on the Italian island of Lampedusa and Sub-Saharan Africans who had migrated to Libya began to migrate to Europe in 2011-2012 to flee the unrest following the overthrow of the Qadaffi regime. [NY Times: The Global Refugee Crisis; NPR: The Arab Spring; BBC: Tunisia migrants] Presently, Syrians are fleeing a civil war and Eritreans are fleeing domestic human rights violations. [BBC: Syria; BBC: Eritrean Migrants] An additional complication is that while Cyprus, Greece, Italy, Malta, and Spain serve as the main points of entry to Europe because of their geographic location, these States were also the hardest hit by the recent economic crisis and therefore less equipped to respond to the influx of migrants. [Washington Post]
In an effort to curb the number of migrants, some countries have taken drastic measures. For example, Hungary recently closed its train station and is building a wall along the Serbian border. [NPR: Hungary Closes Budapest Train Station; The Guardian: Hungary Border Fence] Britain also erected a two and half mile long fence, known as the National Barrier Asset, as part of its response to thousands of migrants who attempted to access the Eurotunnel terminal in Calais earlier this summer. [Financial Times: Britain]
Many of those who attempt to reach Europe lose their lives in the process. As of September 3, 2015, it was recorded that 2,701 deaths had occurred in the Mediterranean. [IOM]
For those migrants and refugees who do arrive in Europe, they are often detained in overcrowded and squalid facilities. For example, at the Moria detention center in Greece, there are power outages; overflowing toilets; dirty mattresses; and a lack of clothing, milk, sheets, and blankets. Syrian refugees are being housed in tents in a car park in Lesvos, Greece. [Amnesty International] Additionally, at the Ponte Galeria Camp in Italy, people live ten to a room in a caged area, where there is no water or heating at times, nor access to school or work; some detainees protested these conditions by sewing their lips shut with fishing wire for one week. [NPR: Italy Seeks New Approach]
States’ Rights and Obligations
The 1951 Refugee Convention defines a refugee as a person who has a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality, and is unable to, or owing to such fear, is unwilling to avail himself of the protection of that country.” The 1951 Refugee Convention and its 1967 Protocol, as well as other international and regional instruments, outline refugees’ rights and States’ responsibilities with respect to refugees, which include the principle of non-refoulement (not returning individuals to places where their lives would be threatened), the obligation to provide access to fair and efficient asylum procedures, and ensuring respect for basic human rights. [UNHCR]
In contrast, there is no clear, universally agreed upon definition of migrant. This term is interpreted broadly, as a person who “moves from his country of usual residence or nationality to another country.” See Yannis Ktistakis, Protecting Migrants under the European Convention of Human Rights and the European Social Charter, 2013, 9. In some circumstances, however, this term is interpreted more narrowly, for example as a person who moves from one country to another to seek employment, as noted in Article 1 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICMW).
While States have the authority to protect their borders, to determine whether to admit non-nationals, to detain migrants, and to remove non-nationals, they are obligated to do so in accordance with their obligations under international human rights law in order to “guarantee, ensure and protect the human rights of all persons within their jurisdiction, regardless of nationality.” See ECtHR Factsheet – Migrants in Detention Neither the European Convention on Human Rights nor the European Social Charter guarantee that a migrant can “enter and remain on to the territory of a Member State” or a right to asylum. See Ktistakis, Protecting Migrants under the European Convention of Human Rights and the European Social Charter, 17, 19, 23 .
In a recent decision, Khlaifia and Others v. Italy, the Court further discussed States’ obligations with respect to migrants. This case involved three Tunisian nationals who left Tunisia in 2011 on boats that were intercepted by Italian authorities, after which they were taken to the island of Lampedusa, and subsequently transferred to a “reception center” before they were expelled to Tunisia. The Court found that Italy had violated the Convention with respect to the petitioners’ rights to liberty and security (given that they were not allowed to leave the reception center, were under police surveillance, and were not allowed to communicate with the outside); the right to be informed promptly of the charge against them; the right to an examination of the lawfulness of their detention; the prohibition of inhuman or degrading treatment (with respect to the conditions of detention at the reception center); the right to an effective remedy (given that they were unable to complain of their detention conditions); and the prohibition of collective expulsions of aliens (given that their individual circumstances were not considered). See ECtHR, Khlaifia and Others v. Italy, no. 16483/12, ECHR 2015, Judgment of 1 September 2015. [ECtHR Press Release]
Europe’s Response to Migration Crisis
In 2013 the European Parliament endorsed the Common European Asylum System in an effort to ensure the fair and humane treatment of asylum seekers in Europe, regardless of the country in which they arrive. According to these rules, asylum seekers will not be transferred to EU countries where there is a risk of inhuman or degrading treatment, and only in exceptional conditions can an asylum seeker be detained. [European Commission: Cecilia Malmström] However, there are challenges regarding the implementation and enforcement of this policy among the twenty-eight EU countries; critics note that this new framework lacks clarity and gives too much discretion to Member States.
More recently, in April 2015, the EU adopted a ten-point plan to address “the crisis situation in the Mediterranean.” This plan includes tracking and investigating smugglers, sending teams to Italy and Greece to assist in the processing of asylum applications, fingerprinting all migrants, implementing an EU wide voluntary pilot project on resettlement, engaging with Libya’s neighbors, and gathering intelligence on migratory flows. [European Commission Press Release]
Additionally, German Foreign Minister Frank-Walter Steinmeier recently called for reforms to the Dublin Regulation, according to which the country that a migrant first enters is responsible for examining an asylum application. In the current crisis, some countries are forgoing this screening process and instead allowing individuals to travel onward to other European countries.
Finally, a recent European Commission proposal to put into place mandatory quotas for the resettlement of refugees was rejected by the EU’s interior ministers. [NY Times: Quotas of Migrants; Euractiv; NY Times: Europe’s Halting Response]
If Europe is unable to collectively respond to the migration crisis, some EU countries may reintroduce border controls in the free-movement Schengen zone, as France briefly did in 2011 in response to the number of migrants from Tunisian and Libya entering Italy. [RT; BBC: Schengen treaty] The Schengen zone is comprised of 26 European countries that have abolished internal border controls to further freedom of movement.
European ministers will participate in an emergency summit on September 14, 2015 in Brussels to discuss these issues and develop a more unified response to the migration crisis. [WSJ]
Responses from Human Rights Bodies and Organizations to the Migration Crisis
The United Nations High Commissioner for Refugees (UNHCR), UN Special Rapporteur on the human rights of migrants, Council of Europe’s Commissioner for Human Rights, and Human Rights Watch (HRW) have urged the EU to develop a collective, comprehensive human rights-based policy to respond to the current migration crisis. This sentiment has recently been echoed by German Chancellor Angela Merkel, who stated: “If Europe fails on the question of refugees, if this close link with universal civil rights is broken, then it won’t be the Europe we wished for.” [NY Times: Angela Merkel Calls for European Unity]
United Nations High Commissioner for Refugees
The United Nations High Commissioner for Refugees (UNHCR), António Guterres, has noted that Europe must formulate a collective response to the migration crisis that is more inclusive and responsible, with a focus on increasing the allocation of resources towards development cooperation and humanitarian assistance, particularly to address the root causes of the migratory flows. He has called upon Europe to accelerate its response and adopt proposals concerning relocation and resettlement. [UN News Centre: Formulate a Collective Response]
Melissa Fleming, a UNHCR representative, has urged States to “implement border management measures with humanity” and in accordance with international obligations, and has stressed that States should focus on family unity and the protection of those with specific needs. She has also emphasized the need for an equitable redistribution of refugees and asylum-seekers across the EU. [UN News Centre: Europe’s Response Not Working]
UN Special Rapporteur on the Human Rights of Migrants
Mr. François Crépeau, the UN Special Rapporteur on the human rights of migrants, recently urged the European Union to develop a coherent, comprehensive human rights-based migration policy, with a focus on the mobility of migrants, noting that this is the “only way…[for] the EU to reclaim its border, effectively combat smuggling, and empower migrants.” He recommended that the EU regain control from smugglers by providing official channels for migrants and asylum seekers to enter Europe; increasing migrants’ mobility; and supporting integration measures in European cities, including by engaging in a public discourse on diversity. [UN News Centre: Europe’s Response Not Working]
Additionally, he advocates opening the regular labor market by distributing “smart visas,” to incentivize migrants’ return to their home countries if they do not find employment, and enforcing this measure by sanctioning employers who exploit irregular migrants. [UN News Centre: Europe’s Response Not Working; The Guardian: François Crépeau]
Mr. Crépeau has also stressed the need for Europe to cooperate with other Global North countries, such as Australia, Canada, New Zealand, and the United States in establishing a massive resettlement program for Syrian refugees, which could protect one million refugees during the next five years. Mr. Crépeau also addressed the possibility of expanding this program in the future to include greater numbers of individuals or people of different nationalities, such as Eritreans. [The Guardian: François Crépeau]
Council of Europe’s Commissioner for Human Rights
Mr. Nils Muižnieks, the Council of Europe’s Commissioner for Human Rights, recently noted that the migration crisis is more of a political crisis than a refugee crisis and he has advocated reforming the Dublin Regulation, according to which the country that a migrant first enters is responsible for determining the asylum claim, thereby allocating much of the responsibility to countries such as Bulgaria, Greece, Hungary, Italy, Malta, and Spain. [Council of Europe]
Additionally, Mr. Muižnieks has emphasized that the pressure that the EU has exerted on the Western Balkan countries to reduce the number of asylum seekers has often led to unlawful measures such as ethnic profiling or the confiscation of travel documents, and noted that the EU should instead cooperate with these countries to help them to develop their asylum systems and their capacity to host refugees in accordance with EU standards. Finally, he has recommended that EU Member States ease restrictions on humanitarian visas and family reunification to provide refugees with more legal options. [Council of Europe]
Human Rights Watch
A recent report by Human Rights Watch (HRW) offers a number of recommendations aimed at EU leaders in order to create safe and legal ways for people to seek asylum or find a safe haven in the EU. These include: providing generous resettlement offers for refugees identified by UNHCR through established programs; easing existing restrictions on family reunification; increasing the number of humanitarian visas, either for a temporary period or while in the process of applying for asylum; and ensuring access to full and fair asylum procedures, which includes handling claims concerning violations of Article 3 (prohibition of torture) of the European Convention on Human Rights, and claims based on threats arising from indiscriminate violence during armed conflict. The recommendations also include ensuring that the EUNAVFOR Med anti-smuggling operation complies with guarantees as set out by the European Convention on Human Rights on the right to life, liberty, security, an effective remedy, and protection against refoulement, as well as adopting fingerprinting procedures that respect human rights and are only used in situations when doing so is necessary and appropriate.
With respect to children, Human Rights Watch notes that all children should have access to child-friendly, multi-disciplinary, and culturally sensitive asylum procedures, which should be based on the best interests of the child and result in prompt formal determinations about their status.
Human Rights Watch also stresses that the EU should never transfer migrants to the Libyan coast guard or Libya, where they are often the victims of violence and cannot lodge asylum claims. Additionally, the report recommends that the EU’s cooperation with third countries be monitored to ensure that people are not prevented from accessing fair asylum procedures or forced to return to places where they would be at risk of being subjected to persecution or to inhuman or degrading treatment.
The report also urges the EU to use its resources collectively and more effectively to address the causes of migratory flows, including systematic human rights violations, poverty, inequitable development, weak governance, and violent conflict.