Communication from the Commission to the Council - Reinforcing the management of the European Union's Southern Maritime Borders
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COM(2006) 733 final
COMMUNICATION FROM THE COMMISSION TO THE COUNCIL
Reinforcing the management of the European Union's Southern Maritime Borders
COMMUNICATION FROM THE COMMISSION TO THE COUNCIL
Reinforcing the management of the European Union's Southern Maritime Borders
1. Since the Tampere Programme of 1999 , the management of the external borders has been one of the cornerstones of the progressive establishment of the European Union as an area of freedom, security and justice. The Commission's Communication "Towards integrated management of the external borders of the Member States of the European Union" set out priorities for the development of integrated management of the external borders, focusing on a common body of legislation, operational cooperation between Member States and solidarity between Member States and the Community. The goals of the 2002 Communication have now broadly been reached with the entry into force of the Schengen Borders Code, the establishment of the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (FRONTEX) and the forthcoming adoption of the External Borders Fund which will enter into force in 2007.
2. The Hague Programme of 2004 builds upon the Tampere Programme, mapping the development of a "second generation" of measures designed to strengthen management of the external borders in general. In 2005, the European Council agreed on a Global Approach to Migration , including the management of the southern maritime external borders and setting out a set of priority measures which should be implemented before the end of 2006.
3. In its Conclusions of 5 October 2006 , the Council invites the Commission "with the cooperation of FRONTEX and taking into account the responsibilities of Member States, the feasibility study on the establishment of a Mediterranean Coastal Patrol Network (MEDSEA) and experience gained in joint operations, to present a Communication to the Council before the end of 2006 identifying those further operational measures that can be taken in the short-term to equip the Union with the necessary capacity to help assist in preventing and managing migration crisis situations".
4. Reinforcing the management of the southern external maritime borders is essential for further developing a European model for integrated border management . A number of general principles have been devised during the Finnish Presidency. In particular, the management of the European Union's external borders is based on the principles of solidarity, mutual trust and co-responsibility among Member States, founded on full respect for human rights. It is also stressed that Member States should develop and maintain operational and managerial resources for credible operational control of their borders and allowing for joint operations in cooperation with FRONTEX. Measures concerning maritime borders should also be seen in the wider context of the Green Paper on a future EU Maritime Policy concerning a broader rationalisation of EU Governments' off-shore activities and convergence of surveillance systems.
5. The pressure of illegal migration on the Member States of the European Union situated in the Mediterranean and Atlantic region in the last two years has reached an unprecedented high, requiring immediate and decisive action at both national and European levels, in order to safeguard the Schengen system and prevent further tragedy among illegal migrants who die in large numbers in attempting to reach the shores of the European Union.
6. In this context, it is of the utmost importance that all Member States of the Union continue to work together in a spirit of solidarity , not least to assist those southern Member States most affected by illegal migration from Africa, while taking into account the necessary steps already taken or to be taken in order to face the equally important migration challenges at the eastern and south eastern borders of the European Union.
Statistics on numbers of arrivals in Spain (Canary Islands), Italy and Malta during 2006 compared with 2005.The figures given below have been obtained in connection with operations HERA II and NAUITLUS and are the latest available. Figures for Greece and Cyprus are not available.
7. The steadily increasing migration pressure from sub-Saharan Africa means that the European Union is faced with a major challenge: on the one hand, there is a clear need to cooperate with African and Middle Eastern transit countries to deal with the issue of illegal migrants; on the other hand, the required levels of operational and political cooperation with those countries cannot be established overnight, although they are being gradually built on the basis of dialogue and cooperation on migration issues carried out in the framework of Euro Mediterranean Association Agreements and European Neighbourhood Policy (ENP) Action Plans.
8. As regards control of the maritime borders , it is therefore necessary for the European Union to adopt a two-pronged approach identifying a set of complementary measures which can be implemented separately:
9. Operational measures to fight illegal immigration, protect refugees and reinforce control and surveillance of the external maritime border which can be implemented immediately, and
10. Building on the existing relations and practical cooperation already established with the third countries, pursuing and strengthening our dialogue and cooperation with third countries on these operational measures in the context of the Association Agreements and ENP Action Plans as well as in the context of the Cotonou Agreement.
11. This Communication focuses on the first part of this two-pronged approach , setting out the Commission's main recommendations designed to improve the management of the southern maritime external borders.
12. As irregular maritime immigration at the European Union's southern maritime external borders is a mixed phenomenon , comprising both illegal immigrants with no particular protection needs and refugees in need of international protection, the response of the Union must be targeted accordingly. Asylum must be an important feature of the response, and an effective option for persons requiring international protection. To this end, it is necessary to ensure coherent and effective application of the Member States' protection obligations in the context of measures relating to the interception and rescue at sea of persons who may be in need of international protection, as well as the prompt identification of persons with protection needs at reception sites following disembarkation. It should be underlined, that third countries are, of course, under the same obligations in this respect.
13. Obviously, FRONTEX can play a crucial role in providing technical assistance aimed at strengthening the management of operational cooperation at the external borders while bearing in mind that the responsibility for control and surveillance of the external borders remain with the Member States. The Member States must thus also organise their services internally in the most efficient way, including by considering the establishment of national coordination centres for the purpose of strengthening inter-agency cooperation as suggested in the MEDSEA study. It should be borne in mind that the Agency will be able to deliver tangible results only if Member States are committed and determined to give FRONTEX the necessary human resources and technical assets for joint operations. The active participation of Member States in operational activities managed by FRONTEX is in itself a tangible measure of solidarity, putting the common responsibility for the management of the external borders into practice.
14. The operations coordinated and managed by FRONTEX, which have already taken place, notably HERA II and NAUTILUS, will be evaluated by the Agency in view of improving the efficiency of future operational activities of this type, thus taking into account the lessons learnt. It is already clear that FRONTEX has played a useful role in supporting operations as well as contacts with third countries. In this context, it will also be necessary to regularly review the situation of FRONTEX in terms of personnel and other resources relevant for the operational capacity of the Agency.
15. Finally the health dimension of migration should be given due consideration. Member States have responsibility for providing preventive care and medical treatment to migrant populations. The European Union has the obligation to ensure that all its policies – including migration policies – provide a high level of health protection.
MAXIMISING THE CAPACITY OF FRONTEX
16. Risk analysis is at the very heart of operational cooperation at the external borders and one of the key tasks of FRONTEX. To ensure a coherent management of the external borders in normal situations, but also to prevent and manage critical situations more efficiently, the Agency must have access to all relevant information sources for the purpose of producing both targeted and general risk analyses. Currently, FRONTEX does not have direct access to the information gathered in the framework of the Member States' Immigration Liaison Officers' ("ILO") networks . Accordingly, and in the context of the assessment of the ILO networks currently before the Council, the Commission proposes to amend Regulation (EC) No 377/2004 on the creation of the Immigration Liaison Officers' Network in order to give FRONTEX access to the information gathered by the liaison officers on a systematic basis and allow for the participation of FRONTEX, alongside the Commission, in meetings organised in the framework of the Immigration Liaison Officers' Network. The feasibility of enabling liaison officers deployed in third countries to carry out tasks directly for the relevant Institutions and bodies established under the EU/EC Treaties, in particular the Commission and FRONTEX, as well as for other Member States than their own, seems indispensable, but requires further consideration with Member States.
17. To facilitate the exchange of information between all relevant actors, the Commission has also concluded a Memorandum of Understanding with FRONTEX in order to grant it access to ICONet , thus enabling the Agency to supply to, and gather information from, the secure web-based Information and Co-ordination Network for Member States’ Migration Management Services. The objective of ICONet is to facilitate exchange of information on irregular migration, illegal entry and immigration and the return of illegal residents. This development should substantially contribute to an even more effective flow of information and operational co-operation between Member States and FRONTEX.
18. FRONTEX, together with Member States, should take the necessary steps to activate Article 7 of Regulation (EC) No 2007/2004 establishing FRONTEX. This provision allows for the pooling of technical equipment under FRONTEX management and constitutes an important solidarity measure, since the equipment can temporarily be put at the disposal of other Member States on their request and following a needs and risk assessment carried out by the Agency. However, the system established under Article 7 is based solely on voluntary contributions by Member States and thus depends on their goodwill and the availability of the equipment in question. The Council, in its conclusions of 5 and 6 October 2006 on reinforcing the southern external maritime borders, invites FRONTEX to activate Article 7 urgently and furthermore encourages Member States to contribute actively to the creation of an extensive central pool of assets and equipment available in particular for operational needs at the maritime borders by summer 2007. In order to respond to this invitation, the Commission considers that FRONTEX should report to the Council and the Commission on the implementation of Article 7 on a regular basis.
19. When Member States in the region are faced with a critical situation such as the mass influx of illegal immigrants, the capacity of the future Coastal Patrol Network (see section 3.1.) should be reinforced to deal with the situation. This can be done in the framework of the Commission's proposal for the creation of Rapid Border Intervention Teams as well as by stepping up the normal patrolling activities and improving the ability of Member States to identify persons and carry out an initial assessment of their situation.
20. For this purpose the Agency should establish at its headquarters the necessary facilities for the real time coordination between Member States, including communications with the proposed regional command centres at the southern external maritime borders, the Commission and relevant bodies of the European Union and the Community as well as possible external partners, such as the United Nations High Commissioner for Refugees (UNHCR) and the International Organisation for Migration (IOM). FRONTEX is encouraged to enter into technical cooperation with relevant European and Community agencies and bodies, including EUROPOL, the European Satellite Centre (EUSC), the European Defence Agency (EDA), The European Maritime Safety Agency (EMSA), the European Space Agency (ESA), and the European Centre for Diseases Control (ECDC), taking due account of the rules applicable to them.
21. The framework for cooperation between FRONTEX and the above-mentioned international organisations could be defined in a working arrangement as provided for by Article 13 of Regulation (EC) No 2007/2004 establishing FRONTEX. In the case of UNHCR and IOM, such arrangements could involve the appointment by UNHCR and IOM of contact points to the Agency, and should identify in particular the modalities and areas for cooperation and the tasks attributed to these contact points, while fully ensuring the confidentiality of information shared with or communicated to UNHCR and IOM.
22. As far as joint operations are concerned, FRONTEX should look into the feasibility of continuously carrying out control and surveillance operations at the southern maritime external borders in particular during the period from spring till late autumn 2007, thus covering the season during which most illegal immigrants attempt to come by boat to the European Union from Africa. Apart from leading to the interception of more boats with illegal immigrants on board and contributing to saving lives at sea, continuous operational activities will also act as a deterrent, thereby diminishing the pressure on this part of the external borders and prevent potentially critical situations from escalating to the levels registered this year.
23. This should be done taking into account the risks related to the re-routing of the flows and so the transfer of the migratory pressure to other Member States or third countries not prepared to face them. Experience shows that the constant pressure of illegal immigration will lead to displacement effects along the external borders: as soon as one illegal immigration route has been closed down, the smuggling networks will attempt to open new routes or use other methods and techniques. Consequently, it is also necessary to step up controls at, and surveillance of, other parts of the Union's external borders. Hence, the work of ILO's (see paragraph 13 above) is crucial in providing up-to-date information on migration routes to Member States, the Commission and FRONTEX.
New tools FOR THE NEXT GENERATION OF INTEGRATED BORDER MANAGEMENT
A Coastal Patrol Network
24. The feasibility study entitled "MEDSEA" presented by FRONTEX on 14 July 2006 as part of the implementation of the Global Approach to Migration points to the need for a permanent Coastal Patrol Network for the southern maritime external borders. The Commission believes that this patrol network would have a real added value, making it possible for Member States to coordinate their patrol schedules, pool their civilian and military assets and exchange strategic and tactical information in real time. The network should be established and managed by FRONTEX together with the Member States of the region as soon as possible. Although this could also be seen as a possible forerunner of a fully fledged European Coast Guard Service, this will need further consideration and the feasibility of establishing such a service is currently under examination by the Commission in a wider context, (Green Paper on a future Maritime Policy adopted by the Commission on 6 June 2006.)
25. To this end, serious consideration should be given to the feasibility of establishing several regional command centres at the southern maritime external borders staffed and equipped by Member States and coordinated by FRONTEX. In practical terms, the southern maritime external borders would be divided into a number of patrol zones covering the Canary Islands, the western, central and eastern Mediterranean Sea. These zones would be patrolled by Member States under the coordination of the regional command centre. The Agency may also consider in the longer term setting up a specialised branch for maritime borders in the region to manage these command centres. The regional centre structure would mainly be used for the day-to-day patrols, but could also play a role in the implementation of joint maritime operations managed by FRONTEX. When and where appropriate, neighbouring third countries in the region would be invited to participate in the patrol network. This model was in fact already proposed in the feasibility study prepared by CIVIPOL Conseil for the Commission in 2003 on the control of the maritime borders of the European Union and it could be applied mutatis mutandis , in particular taking into account the enlargement of the Union in 2004 and in 2007 and the establishment of FRONTEX.
Illustration of the proposed structure for a Coastal Patrol Network:
A European surveillance system
26. To improve further the surveillance of the southern maritime external borders a common European Surveillance System for Borders (EUROSUR) should be created following, in particular, the recommendations of the "BORTEC" feasibility study to be presented by FRONTEX before the end of 2006. EUROSUR could in a first stage focus on synergies created by linking the existing national surveillance systems currently in use at the southern maritime external borders. In a second stage, however, it should gradually replace national surveillance systems at land and maritime borders, providing a cost-efficient solution, including e. g. a combination of radar and satellite surveillance at European level, taking into account on-going developments realised in the framework of GMES (Global Monitoring for Environment and Security. EUROSUR will benefit from experience at national and European level with similar surveillance systems; possible synergies with existing European surveillance systems for other purposes should also be explored. In the maritime domain, the vessel monitoring system SafeSeaNet is currently under development together with the Member States. The system aims at providing information on ships' movements and their cargoes. EUROSUR might add to the effectiveness of SafeSeaNet, if the systems recognise each other and cooperate. Finally, the possibility for participation of neighbouring third countries in EUROSUR should be considered.
Improving the capacity to deal with mixed flows
27. One of the major challenges of effective management of large mixed migratory flows resides in the prompt initial assessment of individual cases at points of arrival, including the identification of persons who may seek international protection, or who may be returned to their countries of origin or transit, and the subsequent efficient handling of individual cases, including the assessment of the health conditions of immigrants and refugees as well as any related epidemiologic situation. . Such processing should also enable the authorities to address the specific situation of unaccompanied minors.
28. Member States facing particular strains on their capacities to perform this initial assessment should be able to make use of the expertise and manpower currently existing in other Member States. To this end, it is necessary to create a mechanism allowing for an efficient sharing of available resources, which are currently limited. Such a mechanism, based on a voluntary pooling of resources, would be an additional, tangible expression of solidarity between Member States.
29. The provision of rapid and well targeted operational assistance to the Member States concerned through the establishment and management of a pool of experts from Member States' administrations who can be made available for deployment at short notice could therefore be explored. The asylum expert teams that would be established from this pool would be called to assist on a temporary basis the requesting Member State in performing this initial profiling through the provision, in particular, of interpretation services, case working and country of origin expertise.
30. The composition of the pool of experts should be flexible, drawing on a wide range of skills and expertise so as to be able to effectively address the needs of requesting Member States. The participation of officials of relevant international organisations (e.g. UNHCR) in this pool of experts could also be envisaged.This expertise should cover health issues. In the context of identification of health related questions, strengthening communication mechanisms should be part of the proposed activities and mechanism of collaboration. Member States should implement in this context Decision No 2119/98/EC on surveillance of Communicable Diseases and its Early Warning and Response System (EWRS – Decision No 2000/57/EC) with the support of the ECDC.
31. In the short term, the Commission encourages Member States as well as international organisations to make use of relevant Community funding instruments to launch these teams on a project basis . Well planned projects of this kind could thereby play an important role in crisis preparedness. Accordingly, the deployment of asylum expert teams should in any case be coordinated with the operational activities of FRONTEX at the southern maritime external borders to ensure an efficient handling of critical situations. For the future, reflections should continue on the role which a possible European support office for all forms of cooperation between Member States relating to the Common European Asylum , as indicated in the Hague Programme, System could play for the setting up and coordination of such teams. The possibility of making use of the General Directors of Immigration Services Conference (GDISC) for the coordination of the teams in a transitory phase should also be considered in the coming months.
32. In this context, a more structured contribution by UNHCR to the activities and operations implemented under the coordination of FRONTEX should be explored in order to help ensure that protection obligations flowing from the EU acquis and international refugee and human rights law constitute a key element of all border management strategies and measures undertaken in this context. The various training activities for border guards and other immigration officials could benefit from a structural assistance by UNHCR. UNHCR experts could also be invited to participate in the asylum expert teams described above. Special guidelines for the participants in such asylum expert teams should be established.
THE OPERATIONAL IMPLEMENTATION OF THE INTERNATIONAL LAW OF THE SEA
33. As part of the follow-up to the Global Approach the Commission will publish a study on the international law of the sea with a particular focus on the Mediterranean. The study is essentially a gaps analysis identifying the issues that could be further explored. It is clear that the framework of international law does not allow for ad hoc or short term revisions having regard to the complexity and the number of countries and stakeholders concerned at a global level. The following are however the key issues the Commission would suggest addressing.
34. Of principal importance is that the Palermo Protocol against the smuggling of migrants by land, sea and air, supplementing the United Nations Convention against transnational organised crime , should be ratified by those Member States that have not yet done so, as well as by African states. On the basis of this Protocol the scope for bilateral and regional agreements allowing for operational arrangements to combat illicit trafficking of migrants should be explored.
35. Determining more accurately the correct modus operandi for the purpose of intercepting vessels carrying, or suspected of carrying, illegal immigrants bound for the European Union would improve the much needed efficiency of joint operations to prevent and divert illegal immigration by sea involving the forces of different Member States which do not always have a common understanding of how and when to carry out interceptions. In conducting joint operations, teamwork and synergies between Member States is the key to success. In this context regional agreements could define the right of surveillance and interception of vessels in the territorial waters of relevant countries of origin and transit, smoothing the way for the implementation of joint operations by FRONTEX as it would avoid the need for ad hoc agreements for each individual operation.
An issue that should benefit from further elaboration and clarification is the determination of the most appropriate port for disembarkation following rescue at sea or interception , and the closely related issue of allocation of protection responsibilities between States taking part in interception and search and rescue operations for intercepted or rescued people seeking international protection. Indeed, the determination of the appropriate place for disembarkation often engages, in practice, the responsibility of the state concerned for the examination of the protection needs of the asylum seekers amongst the persons rescued or intercepted.
36. Another issue which merits particular attention is the extent of the States' protection obligations flowing from the respect of the principle of non-refoulement, in the many different situations where State vessels implement interception or search and rescue measures . More specifically, it would be necessary to analyse the circumstances under which a State may be obliged to assume responsibility for the examination of an asylum claim as a result of the application of international refugee law, in particular when engaged in joint operations or in operations taking place within the territorial waters of another State or in the high sea.
On issues that would not be subject to bilateral or regional agreements the development of practical guidelines could be a way forward in order to bring more clarity and a certain degree of predictability regarding the fulfilment by Member States of their obligations under international law. The development of these guidelines should therefore be undertaken in close cooperation with the International Maritime Organisation (IMO) and UNHCR and draw on a broad range of expertise. The guidelines should be drawn up with careful consideration of the work done in the framework of the relevant committees of the IMO, which inter alia deals with the implementation of search and rescue obligations under international law.
37. The Commission will use any appropriate ad hoc fora to launch discussions of the above issues in order to support this process and take the dialogue further within the limits of its competencies.
MAXIMISING THE USE OF EUROPEAN COMMUNITY FINANCIAL MEANS
38. The budget of FRONTEX will be used to finance joint operations and pilot projects with Member States at the external borders, including the establishment of a Coastal Patrol Network, regional command centres and, if so decided by the Management Board of the Agency, the establishment and running costs of a specialised branch for maritime borders in the region. The costs associated with the deployment of the Rapid Border Intervention Teams are likewise covered by the Agency. The total budget of FRONTEX for 2007, taking into account the amendments of the European Parliament, will be 33,98 M€ (amount to be confirmed by final adoption of the 2007 budget).
39. An efficient and rapid use of the means to be provided by the new External Borders Fund will be essential for the implementation of the envisaged measures. This Fund foresees, subject to the final decision by the budgetary authority, a total of 1.82 billion € for the period 2007-2013, of which about 170 M € will be available in 2007 (to be confirmed by final adoption of the 2007 budget). While it is clear that payments under the Fund as concerns shared management will only be made in the beginning of 2008 at the earliest, the cost of actions undertaken already in 2007 can be eligible.
40. The strategic guidelines of this Fund will encourage Member States to devise their national programming in support of the implementation of the common integrated border management strategy and to develop a more long-term approach towards capacity building at national level in the interest of all. Sharing knowledge on programming priorities will create synergies between Member States and encourage convergence in the national choices as to the specific nature of the actions to be co-financed under the Fund. This should/could amount inter alia to a coordinated use of the resources allocated to the different Member States in order to fund the different components of EUROSUR.
41. The possibility of co-financing via the External Borders Fund supporting services to certain Member States in case of duly substantiated emergency situations requiring urgent action at their external borders should be taken into account for the overall integrated border management strategy and in particular for crisis management operations, notably involving detailed planning of how those funds would be deployed in case of a crisis situation surpassing the capacity of regular operations and surveillance in the relevant regions. Moreover, a yearly reserve of 10M € will be set aside to allow for the financing of actions by the individual Member States which would address weaknesses at strategic border points as identified by the Agency through the risk analysis. The facility will enable the Community to help particular Member States anticipate / prevent possible future emergencies, thus complementing the work of the Agency and the capacity-building efforts undertaken by Member States, in the context of the national programmes under the External Borders Fund.
42. With a view to the longer term, the Commission also foresees in its 7th Framework Programme for research and technological development, research for improved capabilities in the implementation of an integrated border management system, supporting the efforts of FRONTEX and of national authorities.
43. Against the background of the preliminary draft budget for 2007, the European Parliament approved a preparatory action in 2007 for "Migration management / solidarity in action" aiming at assisting Member States in coping with reception of irregular migrants arriving by sea. The budget allocated to this action together with return projects and information on conditions of immigration into the EU is 15 M€ (amount to be confirmed by the final adoption of the 2007 budget). Advance planning by Member States could be critical for the most efficient use of this action.
44. The Community actions of the European Refugee Fund (ERF) can cover the costs of projects setting up asylum expert teams as outlined in this Communication. From January 2008, with the ERF III, the possibility of deploying such expert teams due to an unforeseen emergency situation will be increased.
45. Also in the ERF III , a mechanism will be provided allowing Member States facing particular pressure situations to have rapid and easy access to emergency financial assistance from the Fund. This could increase their ability to provide adequate reception conditions and to conduct fair and efficient asylum procedures in compliance with the norms and standards set out by Community law. Activities such as those that the asylum expert teams will be called to perform fall within the scope of the actions eligible for such financial support.
46. There is a clear need to reinforce the management of the southern maritime external borders in view of improving the capacity of the Community and its Member States to deal with critical situations, such as the mass influx of illegal immigrants. The solutions pointed out in this Communication are mainly of a practical character reflecting the need for urgent action at the southern maritime external borders. However, some of the above suggestions are equally applicable to other types of external borders and in other regions of the European Union.
47. Cooperation with third countries , in particular as regards identification of persons and return of illegal immigrants, but also as regards the operational cooperation and the efforts to prevent illegal immigration, is of the utmost importance to the proper management of critical situations at the external borders. Such cooperation already exists, for instance in the context of the Association Agreements and ENP Action Plans, but should be further pursued, strengthened and extended.
48. In the framework of the external relations policy of the European Union, FRONTEX should therefore, on the basis of its risk analyses, provide technical assistance in identifying the third countries most relevant for cooperation on management of southern maritime external borders and itself conduct negotiations with these countries, at technical level, on working arrangements as provided for by Article 14 of Regulation (EC) No 2007/2004 establishing the Agency.
49. Operational activities designed to fight illegal immigration, protect refugees, and ensure a uniform application of the Schengen acquis on external borders cannot stand alone. This Communication should therefore be read in the wider context of the comprehensive approach to migration, where all aspects related to migration management are included. The relationship with third countries of transit and origin and how best to address the root causes of illegal immigration are dealt with in the Commission's Communication entitled "The global approach to migration one year on – Towards a comprehensive European migration policy".
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