Borders Immigration AsylumMediterranean sea

Rescue at sea and the right to asylum… UNHCR's responses

Migrant boat near the island of Lampedusa, July 3, 2013. (Italian Navy)
Migrant boat near the island of Lampedusa, July 3, 2013 (Archives – Credit: Italian Navy)

(BRUSSELS2 Interview) What happens to the many migrants recovered at sea if they request asylum? B2 asked Madeline Garlick, senior advisor at the Europe office of the United Nations High Commissioner for Refugees (UNHCR), for her opinion. An interesting opinion which puts “the church in the middle of the village” in the middle of the controversy over the reception of migrants and refugees in Europe and discussion on a possible major Frontex operation. This opinion is all the more crucial as this subject (migration) will be on the agenda of the European Summit next week…

• Once rescued on a boat, what becomes of the migrant?

All captains have an obligation, under international law of the sea (…), to come to the aid of a ship in distress and to rescue any person who may need it. They are then obliged to take her to a “safe place”. The sea is divided into [so-called] “search and rescue” zones, responsibility for which is assigned to different states – usually the state whose coastline lies near the zone. Since the State is responsible for the area in which the person is rescued, it is obliged to facilitate disembarkation on its own territory or in another neighboring State.

• If the migrant is picked up by a “state” ship, what happens in the event of an asylum request? 

If a person is rescued by a government vessel — whether by Coast Guard, Navy, etc. —, the State will be considered, in most cases, to have “jurisdiction” over the person. This means that he is required to ensure that she is not threatened with persecution again. In other words, if the person applies for asylum, the State is required to ensure that he (or she) has access to a territory where his or her asylum application can be examined. This right was confirmed by the European Court of Human Rights (NB: judgment Hirsi Jamaa and others against Italy in 2012).

• What if it is a private boat?

In this case it's slightly different. The ship's captain is still required to rescue and take the person to a safe port and close to the area. But the flag state of that vessel is not necessarily or automatically responsible. Because, on a private boat, he exercises neither his competence nor his control over people. Normally, it is the authorities of the country where the disembarkation takes place who should process the asylum application.. (…) This situation poses a problem in the case where the country of disembarkation does not have an asylum system and when there is no guarantee that fundamental rights are respected. This is the case in Libya. It is for this reason that the UNHCR opposes the disembarkation of survivors in this territory, when there is another option, that is to say a safer port, where those rescued can be assured that their rights are respected.

• During an operation coordinated by Frontex, can the migrant request asylum?

In such a case, States remain bound by all international and European obligations towards rescued refugees and asylum seekers. The “Frontex” agency is not a State and cannot therefore be held responsible, in law, for any breach of fundamental rights. Thus, captains of ships from participating Member States must act in accordance with their obligations, and must ensure that rescued asylum seekers can be disembarked. And, this, in a place where their asylum request can be determined and evaluated fairly.

• In what legal framework does Frontex fit then?

All operations and activities of Frontex are governed by its founding regulation, which is subject to European and international fundamental rights and the right to asylum, including the rights set out in the 1951 Convention relating to the Status of Refugees. The 1951 Convention binds all EU member states and is affirmed in its treaties.

The Frontex Rules Preamble, as amended in 2011, explicitly provides that the Rules: “respects fundamental rights and observes the principles recognized in particular by the TFEU and by the Charter of Fundamental Rights including (…) the right to asylum, the principle of non-refoulement, the principle of non-discrimination (…). Any use of force must comply with the national law of the host Member State, including the principles of necessity and proportionality. »

• Which means ?

That means that there is no conflict or competition between international and European obligations – Frontex and all States taking part in operations coordinated by the agency are required to fully respect the protection of refugees. This respect takes precedence over the border control provisions, specified by the “Schengen Borders Code” of the European Union.

(comment collected by Loreline Merelle)

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Loreline Merelle

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