6.3.2014   

EN

Official Journal of the European Union

C 67/32

1.1

Irregular immigration is a subject that has been examined by the EESC on many occasions from a number of angles (1). The phenomenon of irregular immigration is a very complex and multifaceted one which requires both short-term and long-term measures. The focus of this opinion will be on the points listed below:

1.2

In this context, the Committee is filled with profound sadness at the death of at least 311, and probably many more, African migrants off the coast of Lampedusa in two recent boat sinking incidents. Whilst there is no single cause to this tragedy, the Committee believes that these incidents are symptomatic of the wider problem of irregular immigration by sea into the EU, and that there is a causal link between these two incidents and the EU's apparent inability to establish satisfactory and coherent policies on irregular immigration based on solidarity, including policies on search and rescue and disembarkation. The Committee calls on the EU and its Member States to consider these incidents as a wake-up call and to act now on the recommendations in this opinion before another tragedy is allowed to occur. The tragedies of Lampedusa reinforce the absolute need for the EU to deal with irregular immigration and border supervision as a European issue.

1.3

Human rights: the Committee is concerned at rising intolerance, racism and xenophobia against immigrants, "the Other", in Europe, and fears that the social effects of the financial crisis will serve to nourish this. Politicians and others with influence in society, together with the media, must act with the utmost responsibility and set a clear political and social example in order to prevent such behaviour. The human rights of irregular immigrants must be upheld at all times, when they are saved or detained, when they are granted the status of protection, are in an irregular situation "undocumented", or are repatriated to their country of origin.

1.4

Saving lives at sea: anyone in danger at sea, or at risk, including irregular immigrants, must be rescued.

1.5

Disembarkation: the EU must adopt a disembarkation policy that does not increase the burden on those Member States that are already facing disproportionate influxes. The issue of disembarkation needs to be resolved, on the basis of the principle of disembarkation in the nearest safe place only so long as the country in question fully adheres to all international conventions concerning human rights and is monitored by human rights organisations.

1.6

The right to and granting of asylum: the principle of non-refoulement at the border must be guaranteed, and all persons requiring international protection must be able to submit an application in the EU. Such applications must be processed by the competent national authorities. In this context there is a need to create a more efficient system of examination of asylum requests. The EESC supports cooperation with third countries in order to strengthen their asylum arrangements and increase their compliance with international standards.

1.7

Repatriation of irregular immigrants the Directive on Return (2) provides a European framework of legal and procedural guarantees (3) which the EESC appreciates, such as the effective remedy to appeal against decisions related to return before a competent judicial or administrative authority or a competent independent body, as well as free legal representation and assistance, certain safeguards pending return and conditions of detention. The Committee proposes that European return policy should promote a voluntary approach and be based on the greatest possible regard for humanitarian values. The legitimacy and credibility of European immigration policy elsewhere in the world depends on this. Article 19 of the Charter of Fundamental Rights expressly prohibits collective expulsions and guarantees that no one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment – the principle of non-refoulement (Articles 4 and 19 of the Charter).

1.8

A comprehensive European policy on irregular immigration based on solidarity: the EESC considers that in order to ensure respect for fundamental rights, EU solidarity with those Member States that, because of their geographical location, have to deal with large numbers of victims of criminal trafficking/smuggling networks who arrive by irregular means, should be enhanced. The EU's borders, including the sea borders of EU Member States in the Mediterranean, are the borders of all EU Member States and as such responsibility for guarding them properly should be shared among all Member States, in accordance with the Treaties. This is not only about showing solidarity, but also about Member States taking up their responsibilities by means of mechanisms to share burdens brought about by irregular immigration. Therefore, Solidarity and support should also be shown with Member States that are located on the external borders of the EU by means of burden sharing mechanisms enabling intra-EU resettlement of asylum seekers . The EESC strongly supports the implementation of a European Distribution Key as described in the European Parliament's report on Enhanced intra-EU solidarity in the field of asylum (2012/2032 INI).

1.9

The drafting of agreements with third countries: the main aim of the EU Migration and Mobility Dialogues with third countries must be to make it easier for migration to take place legally and in an orderly manner, guarantee the international right to asylum, reduce irregular immigration and combat the criminal networks engaged in human trafficking. Cooperation with third countries is often essential as a precondition for effective implementation of repatriation procedures. This cooperation must be stepped up in order to achieve better results. At the same time assistance should be given to certain transit countries in order to enable them to manage their borders better and enable them to build the capacity to grant protection to those who need it.

1.10

The European borders agency - Frontex: Frontex should continue to be restructured into a genuine European external borders agency, with a broader coordinating role vis à vis joint EU action on the external borders of its Member States. In this regard more work is needed to implement the concept of European Border Guard Teams, as underlined in the European Parliament's report on Frontex (A7-0278/2011). Its scope for action should also be expanded so that it can put more effort into the area of prevention. It is clear that more and not fewer resources are needed if this agency is to play a more effective role. Joint operations coordinated by the Agency (and their repercussions on fundamental rights and administrative safeguards laid down in the Borders Code) must, however, be subject to democratic scrutiny by Parliament and the European Union's Fundamental Rights Agency (FRA).

1.11

EASO: the European Asylum Support Office began operating relatively recently. It is therefore expected to take up its duties at full capacity rapidly, with particular regard to its role in seeking sustainable solutions and being proactive on intra-EU solidarity, in line with its obligations in the EASO regulation. The EASO must be able to clearly identify the differences in asylum practices between the Member States, as well as the differences in their legislation, and to propose the necessary changes.

1.12

Preventing and combating people smuggling: the EESC also stresses that every possible effort must be made to combat organised crime vigorously. No resources should be spared in tracking down and bringing to justice the "facilitators" of people smuggling. In this regard it is essential that the assistance of third country governments be sought.

1.13

Funding: the EESC stresses that the issue as a whole of stemming and managing immigration flows is one for the European Union (EU), and that this fact must also be reflected in the distribution of the financial cost of the tools that are needed to apply an effective policy. The Committee has supported the Commission proposal for the Asylum and Migration Fund and the Internal Security Fund to be more flexibly managed as of 2014.

2.1

Common immigration policy must have a shared focus encompassing a range of aspects including the demographic situation and the labour markets; respect for human rights; equal treatment and non-discrimination; legislation on the admission of new immigrants; the situation of irregular immigrants; the reception and protection of asylum-seekers; measures against criminal people-trafficking networks; cooperation with third countries; European solidarity; and social policy and integration.

2.2

Recent years have seen a series of events, declarations and political decisions that the Committee is noting with mounting concern, as an ancient and familiar disease among Europeans is again on the rise across Europe – xenophobia and a form of nationalism that excludes others. Minorities and immigrants are belittled, insulted and targeted by aggressive, discriminatory policies.

2.3

The subject of irregular immigration is an especially serious and complex one, as demonstrated by the tables in the appendices at the end of the document. Furthermore, the issue as a whole is one for the EU and must be approached as such. Irregular immigrants that cross the southern borders invariably seek to settle in other countries of the EU.

2.4

Because there are no internal borders in the Schengen area, the issue of irregular immigration has implications for Europe as a whole and must be addressed by an effective, common European policy.

2.5

The EESC has studied the subject of irregular immigration thoroughly and has given its viewpoints in a series of opinions, adopted by broad majorities.

2.6

These opinions contain an analysis of the causes of irregular immigration to the ΕU, while noting the absence of a comprehensive EU policy on irregular immigration - that progress towards the EU achieving a common immigration and asylum policy and a high level of legislative harmonisation is very slow. Extensive reference is also made to the consequences of the problem and a series of solutions are proposed.

2.7

Thousands of the irregular immigrants enter the EU by sea. This means that the issue of irregular immigration by sea, which according to FRONTEX is centred mainly within the Euromed region, must be tackled specifically.

2.8

The main objective of the opinion is to examine the phenomenon of irregular immigration by sea, while also referring to some of the major issues associated with irregular immigration in general, so as to seek comprehensive solutions that will secure an immigration policy that is effective, humane and affordable.

3.1.1

The human rights of irregular immigrants must be upheld at all times, from when they are saved or detained to when they are granted protection or repatriated to their country of origin. Irregular migration by sea often results in the loss of life. In this respect, the EESC stresses the importance of upholding fundamental human rights at all times. The EESC has proposed that the Fundamental Rights Agency should also monitor the border control activities and operations of FRONTEX. The Committee supports the activities of the FRONTEX Consultative Forum and highlights its interest in collaboration

3.2.1

Member States and private vessels are obliged to rescue anyone who is in danger at sea. This would include immigrants or traffickers/smugglers who have taken deliberate risks. In many cases, the criminal networks trafficking/smuggling asylum seekers or irregular immigrants expose these people to great risks. Agencies and NGOs have pointed out that thousands of people die in such circumstances in the Mediterranean every year and that, in some cases, they have not received help from or been rescued by vessels passing close by.

3.3.1

Some legal and political controversies have arisen in recent years over rescues taking place in international waters in the Mediterranean which have put the lives of many at risk unnecessarily. The EESC stresses that the issue of disembarkation needs to be resolved on the basis of disembarkation at the nearest place of safety on the condition that the country in question adheres to all international conventions concerning human rights and is monitored by human rights organisations. In the case of Frontex missions, the EESC strongly disagrees that migrants should always be taken to the Member States hosting the missions. Such a policy gives rise to at least two problems: (i) it focuses even more migratory pressure on Member States that are already facing d heavy burdens, to the extent that it would no longer be viable for Member States that need Frontex most to host a Frontex mission; (ii) it is harmful to the people saved, as they would have to be transported all the way to the country hosting the Frontex mission, rather than to the place that would be most appropriate in the circumstances (usually the nearest place of safety).

3.4.1

The EESC urges the EU to continue adopting a common asylum system with a high level of legislative harmonisation. The Dublin Regulation establishes the responsibility of each Member State charged with examining asylum applications. The Committee has already pointed out that this system causes many problems. Each applicant should be asked which Member State he or she would like to examine their application. In its opinion on the Green Paper (4), the Committee proposed that "asylum seekers should be free to choose in which country to submit their asylum applications and that, for this reason, Member States should apply forthwith the humanitarian clause set out in Article 15(1) of the Regulation".

3.4.2

In the area of cooperation between Member States, a series of activities have begun which are carried out by EURASIL, a group of national experts over which the Commission presides. A financial solidarity instrument has also been set up, with the creation of the European Refugee Fund. The Immigration and Asylum Fund will enjoy additional funding and greater flexibility for emergencies as of 2014.

3.4.3

Asylum seekers' requests for protection must be examined against European legislation on asylum and granting of international protection. Those genuinely in need of protection should receive it.

3.4.4

The EESC notes again that the treatment and guarantees given to asylum-seekers at borders must be the same as those given to asylum seekers presenting a request on the territory of a Member State.

3.4.5

The Committee calls on the EU to demonstrate greater commitment in the fight against criminal networks trafficking in human beings, but considers that some policies to "combat irregular immigration" are producing a serious asylum crisis in Europe. The EESC has said in several opinions (5) that the fight against illegal immigration should not create new problems in relation to asylum, and that officials responsible for border control should receive appropriate training so as to guarantee the right to asylum.

3.4.6

The EESC supports the proposals made by UNCHR to set up teams of asylum experts to help in all border control operations in the EU.

3.4.7

It is especially important to point out that more than thousands of those entering the EU do not request asylum because they are economic migrants, and their main reason for entering the EU is to continue towards other European countries, rather than stay in the country where they first arrive.

3.4.8

The mobility partnerships should not mean that the partner countries must bear the full cost of asylum procedures for persons passing through their territory. The EU should show its support via the Asylum Fund. This fund should contribute to the establishment of mechanisms and structures to enable asylum applications to be examined and decided upon within reasonable timeframes in the framework of international legal guarantees.

3.4.9

The EESC urges the EU to continue adopting a common asylum system with a high level of legislative harmonisation. Asylum requests should be examined not only in the countries of entry, but also by the other Member States. Each applicant should be asked which Member State he or she would like to examine their application. In its opinion on the Green Paper (6), the Committee proposed that "asylum seekers should be free to choose in which country to submit their asylum applications and that, for this reason, Member States should apply forthwith the humanitarian clause set out in Article 15(1) of the Regulation" thus speeding up the examination of claims and relieving bureaucratic congestion in the countries of entry. The EESC is in favour of the EU working together with third countries to improve their asylum systems and bring them into line with international standards. In the external dimension of asylum, progress has been made in fields such as supporting third countries which have large numbers of refugees (the Regional Protection Programmes are particularly important) or resettling refugees in the EU.

3.5.1

The return of migrants that have entered the EU in an irregular manner must be handled very carefully. In this regard return agreements with third countries are crucial in ensuring that the rights of returning migrants are fully respected.

3.5.2

The mobility partnerships should provide for return procedures based primarily on voluntary return with support systems put in place (7). When forced return procedures are implemented, they must be conducted with the utmost respect for the human rights of the people being repatriated, in the light of the Council of Europe's recommendations (8).

3.5.3

The Committee calls for greater transparency concerning detention centres within and outside the EU, for the UNHCR to be kept informed of the situation of persons detained in them, and for such persons to be afforded appropriate assistance by NGOs. The EESC believes that pregnant women and minors should receive special protection and placed in appropriate facilities which should be set up with financial support from the EU.

3.6.1

The EESC stresses that the problem is a European one and not just that of the Mediterranean countries; not least since the existence of the Schengen Agreement means that immigration in the Mediterranean region has to be addressed by a common European effort. This is not only about showing community solidarity but about all the EU's Member States taking up their responsibilities, by means of a common European policy that should be proposed by the Commission and approved by the Council and the Parliament.

3.6.2

The borders of the Member States of the European Union, and this includes the sea borders of EU Member States located on the shores of the Mediterranean, are the borders of all the EU's Member States, and all the Member States should share responsibility for managing them properly.

3.6.3

In this regard all Member States should assist with and participate in: (i) provision of resources required for effective sea rescue and border control, (ii) the examination of asylum applications, within the framework of their responsibilities, (iii) extraordinary situations, the implementation of repatriation and expulsion procedures, (iv) intra-EU relocation of migrants from small Mediterranean Member States, and (v) the fight against organised crime and trafficking.

3.6.4

Relocation should be carried out on the basis of a permanent, established mechanism. In this context the Commission should submit a legislative proposal for a permanent and effective intra-EU Relocation Mechanism, on the basis of an EU Distribution Key for the relocation of asylum seekers, as described in the European Parliament report on enhanced intra-EU solidarity in the field of asylum (2012/2032 INI). In order to ensure that the mechanism is as effective as possible, this legislative proposal should also take into account the practical experience gained with the EUREMA Pilot Project for Malta (9).

3.7.1

The European Union should exercise all its political and economic influence, particularly in countries that benefit from significant EU funding, to convince them to cooperate on immigration issues. The Committee considers that MPs should incorporate the four pillars of the Global Approach: organising and facilitating legal migration and mobility; preventing and reducing irregular migration and trafficking in human beings; promoting international protection and enhancing the external dimension of asylum policy; and maximising the development impact of migration and mobility.

3.7.2

The solution to the problem must look beyond policing measures to preventive action to be taken in the third countries, placing greater emphasis on the development of cooperation programmes to support arable and livestock farming, SMEs, etc. The EU must demonstrate that it has the political leverage to work together with the countries which it is supposed to be cooperating and that receive high levels of funding to work together on the issues of security, organised crime and irregular immigration. The EESC welcomes the recent agreement with the Kingdom of Morocco and the initiative to establish Mobility Partnerships between the EU and Tunisia, Egypt and Libya. An independent study into the effectiveness and impact of existing Mobility Partnerships should, however, be carried out. The EESC supports the Commission's initiative to ensure that the Mobility Partnerships are equipped with an efficient evaluation mechanism. In addition, the Mobility Partnerships, which are joint policy declarations that are not legally binding upon the partner countries, should be converted into international agreements. The Committee believes that the EU and the Member States should conclude new agreements with other countries of the region. Given the EU's special relationship with Turkey, migration matters should be strengthened between both parties, particularly in relation to the fight against criminal networks.

3.7.3

To ensure that the administrative and legal procedures operate smoothly, it is crucial that the EU request the countries of origin of irregular migrants to provide the travel documents swiftly.

3.7.4

This matter should also be addressed within the framework of the Euro-Mediterranean conference, as a considerable number of the irregular immigrants enter the EU via third countries on the Mediterranean coast.

3.7.5

Assistance should be given to certain transit countries in order to enable them to manage their borders better, set up asylum structures and also enable them to build the capacity to grant protection themselves to those who need it.

3.8.1

Frontex should continue to be restructured into a genuine European external borders agency, with a broader mandate for coordination and prevention. To this end, it must be bolstered with adequate financial resources which will allow it to provide the required assistance to the southern Member States that are struggling to cope with immigration flows. At the same time, the number of staff (including border guards) must be increased and electronic monitoring and recording resources stepped up. In this regard more should be done to strengthen implementation of the concept of European Border Guard Teams as underlined in the European Parliament's report on Frontex (A7-0278/2011). Furthermore, serious consideration should now be given to Frontex using its new capacities (such as that of purchasing equipment).

3.8.2

The European Patrols Network providing regional border security should be reinforced, enabling the coordination of national resources and European measures, and bolstering cooperation at national and European levels.

3.9.1

The -EASO must be able to clearly identify the differences in asylum practices between the Member States, as well as the differences in their legislation, and to propose the necessary changes. It must also have the authority to draw up joint guidelines on the interpretation and application of the various procedural and substantial facets of the EU asylum acquis, as the Commission proposed in its Green Paper.

3.9.2

The Office could become an important centre for exchanging good practice, and for developing training activities on asylum, in particular for border officials. It could also be a centre for monitoring and analysing the results of the new measures that the EU is developing in relation to asylum. And it could be a place from where the joint teams of asylum experts could be set up and managed.

3.9.3

The EASO will have to practise networking, collaborate with EURASIL and maintain close ties with UNHCR and specialised NGOs.

3.9.4

The European Asylum Support Office began operating relatively recently. It is expected to take up its tasks at full capacity without further delay, with particular regard to its role in seeking sustainable solutions and ensuring that costs are distributed between the Member States, as described in the EASO regulation. At the same time EASO must also be proactive on intra-EU solidarity in line with its obligations in the EASO regulation.

3.10.1

Irregular immigration by sea is dangerous and puts people's lives at risk. Thousands of people have lost their lives while crossing the Mediterranean on unseaworthy vessels. These dangerous journeys are organised by criminal networks that cram hundreds of people (including women and children), without the appropriate equipment or supplies (not even life-saving equipment), into boats, the vast majority of which are not seaworthy. The resolution passed by the Parliamentary Assembly of the Council of Europe (Resolution 1872 (2012)) entitled "Lives lost in the Mediterranean Sea - Who is responsible?" describes the role played by migrant smugglers in organising dangerous crossings of the Mediterranean in a very detailed manner and should be taken into consideration for the purposes of understanding the gravity of the matter.

3.10.2

Criminal proceedings and sentencing for human traffickers and smugglers established by the Member States should be of the toughest kind with penalties including life imprisonment. Those exploited by traffickers should always be considered as innocent victims.

3.10.3

People smuggling fuels crime as the criminal networks organising the journeys collect fares for each person travelling, often through extortion and using inhumane means. The EESC underlines that the EU cooperate with the countries of departure and transit countries, with the aim of dismantling the criminal networks involved. The EESC also stresses that the EU must act in the most forceful way possible to stop people smugglers from operating and putting lives in danger.

3.10.4

The EU should also consider securing agreements with third countries on the creation of migrant reception centres and providing financial support for their establishment and running. The centres set up in these countries may operate in conjunction with other reception centres for the purposes of identification and care. The IOM, the UNHCR, the Fundamental Rights Agency and the specialised NGOs should monitor how these centres operate.

3.10.5

Furthermore, the EU must engage in information initiatives whereby potential irregular immigrants are dissuaded from entering the EU illegally by making them aware of the dangers and difficulties inherent in illegal immigration. Potential irregular immigrants must also be made aware of the enormous difficulties they will face in finding a job in Europe when entering without papers.

3.10.6

Organisations that work to raise public awareness in the countries of departure about the abovementioned issues, so as to dissuade potential migrants from attempting dangerous journeys, should be given moral and financial support.

3.10.7

The EESC would also call for attention to be given to addressing the deeper causes of the problem, which are related to living standards in the countries of departure. Specific programmes should be launched to this end. The subject as a whole should be on the agenda of the Euro-Mediterranean conference.

3.11.1

Financing is needed to prevent and stem irregular immigration flows. Care must be taken when planning detention centres to ensure that -irregular migrants are kept separate from refugees who are seeking asylum. Separate accommodation must also be provided for minors and vulnerable people within 15 days. According to an Italian study supplied by FRONTEX, the daily cost of an irregular immigrant is on average EUR 48. If that figure is multiplied by 100 000 for the number of immigrants that arrive every year (according to FRONTEX (10) and by 365 for every day, the total cost is over EUR 1.752 billion for every year that passes.

3.11.2

The EESC welcomes the Commission's efforts to simplify the financial instruments through the creation of two funds – the Asylum and Migration Fund (11) and the Internal Security Fund (12) – accompanied by a horizontal regulation laying down common rules on programming, information, financial management, control and evaluation (13). The EESC supports the Commission's proposal to set a basic amount and another variable or flexible amount when distributing financial resources amongst the Member States. With regard to the flexible amount, the EESC considers it crucial for each Member State to draw up their annual programme in line with the EU's priorities and including cooperation with other Member States. The Committee supports the fact that, as of 2014, the Immigration and Asylum Fund will enjoy additional funding and greater flexibility for emergencies.

3.11.3

The planned changes will overcome the current problems because EU migration flow management and detention centre establishment programmes are run on an annual basis. The same applies to funding and measures. It is however almost impossible to complete installations for reception and residence on the basis of an annual schedule. For this reason such programmes should be organised more flexibly.

3.11.4

Third countries situated along the migration route from the country of initial departure should be given funding to establish reception and residence centres.

Taking the above financial example into account, the EU budget should earmark funding for bolstering monitoring and prevention measures (patrol boats, coast guard stations, helicopters) and should see that Frontex and EASO have adequate annual budgets to deliver their tasks to the full. Funding must be secured to enable the countries of entry to effectively combat the criminal networks involved whilst also providing the right conditions for entering migrants.

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25.4.2002 on the "Communication from the Commission to the Council and the European Parliament on a common policy on illegal immigration" rapporteur: Mr Pariza Castaños (OJ C 221, 17.9.2002),

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29.1.2004 on the "Proposal for a Council Regulation establishing a European Agency for the Management of Operational Co-operation at the External Borders" rapporteur general: Mr Pariza Castaños (OJ C 108, 30.4.2004),

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27.10.2004 on the "Proposal for a Council decision amending Decision No 2002/463/EC adopting an action programme for administrative cooperation in the fields of external borders, visas, asylum and immigration (ARGO programme)" rapporteur: Mr Pariza Castaños (OJ C 120, 20.5.2005),

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12.3.2008 on the "Green Paper on the future Common European Asylum System", rapporteur: Ms Le Nouail-Marlière (OJ C 204, 9.8.2008).