Access to asylum (procedures) in the context of interception and rescue at sea International Conference: MIGRATIONS AT SEA: INTERNATIONAL PERSPECTIVES AND REGIONAL APPROACHES Ohrid, 6 OCTOBER 2015

Key points in presentation The EU/Mediterranean context By virtue of engaging State authorities at sea and not on land, migrants are deprived of exercising the right to seek asylum Try to show how EU law contains blind spots in terms of protection at sea Explore solutions to ensure access to asylum procedures in the maritime context

The right to asylum Charter of Fundamental Rights of the European Union, Article 18 : “The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty establishing the European Community.”

Charter right is guaranteed only “when implementing EU law” EU Charter of Fundamental Rights, Article 51: – EU institutions, bodies, offices and agencies – EU Member States – When implementing EU law However, are Member States implementing EU law when engaging migrants at sea?

“When implementing EU law” Quasi strict territorial scope of the EU asylum acquis: - Dublin III Regulation: “on territory, at border, or in transit zone” (Art. 3, (1)) - Asylum Procedures Directive: “on territory, in territorial waters, at border, or in transit zone” (Art. 3, (1)) - Schengen Borders Code: “when crossing (…) the external border” (Art. 3)

Blind spot? Extraterritorial border control by individual Member States (often on the high seas) Yet EU law doesn’t seem to apply there And thus States don’t seem to be implementing EU law in that scenario (exception: Frontex joint operations) Result: No protection under EU Charter at sea > NO RIGHT TO ASYLUM AT SEA

How still apply EU Charter? > ‘Stretching EU law’ Interpreting the territorial scope of the EU secondary legislation more broadly – Examples: - extra-territorial application of the SBCode: train stations, airports, or the territory of a third country. - Moreno-Lax (2011): “[M]aintaining a strict territorial basis for the applicability of the Schengen Borders Code seems unwarranted. It is the legal instrument itself that delineates its own scope of ratione loci as exceeding the territories of the EU Member States.” Interpreting the meaning of ‘when implementing EU law’ more broadly – Examples: - Fransson case law (CJEU) - “coincidence of subject matter between domestic measures and the objectives of EU law” (Moreno-Lax and Costello, 2014) Do not seem durable solutions: needs explicit recognition in EU law

“Plan B” (1) When the EU Charter does not apply at sea: Look at other rules of international law to protect the rights of asylum seekers at sea

“Plan B” (2) International law: - No ‘right’ to asylum - However: implied in the non-refoulement principle/collective expulsion prohibition? - European Court of Human Rights: Hirsi > Extraterritorial? Court: ‘Yes’ > Right to asylum? Court: ‘Silence’, Judge Albuquerque: ‘Sort of’

Concurring opinion Judge Albuquerque in Hirsi (2011): 1) reasonable time limit in which to submit the asylum application; 2) personal interview; 3) opportunity to submit evidence and dispute it; 4) written decision by independent 1st-instance body; 5) reasonable time limit to appeal the latter’s decision and automatic suspensive effect of this appeal; 6) full and speedy judicial review of the first instance decision; and 7) free legal advice and representation and, if necessary free linguistic assistance and access to UNHCR

Intermediary conclusion: International law requires at least that certain screening procedures for asylum seekers are put in practice NB: not the only legal argument for compulsory processing in mixed migration Even at sea Two possible avenues for practices at sea: 1) Processing of people on board 2) First disembarkation, then processing

Processing on board? Practices of the USA and Australia of assessing on board ‘Processing practices’ in other areas: – Piracy- and other crime control – Judicial arrest warrant / assistance of a lawyer in the Skype age – Example: Belgian criminal procedure code However: - ‘processing of a different nature’ - Dissuaded by UNHCR and others - IMO Guidelines (2004) and Principles (2009): ‘non- SAR issues after disembarkation’ - Cannot fulfil ‘Albuquerque’ requirements

Processing after disembarkation Disembarkation unto land is the inevitable if one wants to adhere to international and European human rights law But where to disembark?

The law of the sea doesn’t do the job (1)

Law of the sea doesn’t do the job (2) 1982 UNCLOS/1974 SOLAS Convention/1979 SAR Convention Amendments 2004 of the SOLAS and SAR Conventions: ‘SRR State primary for coord’ 2009 IMO Principles: ‘SRR State ultimately’ Newly proposed amendments : Spain/Italy v. Malta model Unreasonable pressure on SRR States

EU law as it stands doesn’t do the job either With the exception of Frontex Regulation, no rules on disembarkation - Frontex Regulation (2014): different scenarios with prescribed venues for disembarkation - No such rules for other scenarios of Member States engaging migrants at sea How make states accept disembarkation for processing and access to asylum procedures?

Exploring solutions (1): compulsory disembarkation in EU law? First ‘safe’ port of call (cf. Malta amendment) How provide incentives for EU coastal States to allow such system? Burden sharing: - Ports (list / operations plans) - Processing (EASO, IOM, UNHCR) - People (time ltd. guarantees of relocation) - Money (AMIF)

Exploring solutions (2): Delinking asylum- from SAR obligations UNHCR, 2014: “[D]e-link the disembarkation from the follow-up and … transfer those requesting asylum to a reception facility with the capacity to receive them, which would not necessarily be in the country of disembarkation.” Di Filippo, 2014: preliminary personal interview in EU State of disembarkation and relocation to second EU State through simplified procedure who completes the examination of the asylum claim Cf. Dublin III, Temporary Protection Directive

Conclusions 1) Discrepancies in protection (by land/over sea and frontex/ non-frontex) among asylum seekers  EU context: needs level playing field 2) International law requires procedural guarantees for asylum seekers  EU context: we shouldn’t rely on ‘plan B’, but provide for it properly in EU asylum acquis 3) Organizing these procedures requires disembarkation  EU context (1): provide incentives for States through burden sharing to accept a ‘first safe port of call’ principle  EU context (2): Rethinking Search and Rescue Regions obligations in the Mediterranean: an EU SAR Regulation?