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ITALY: Any hotspot to identify migrants at sea is illegal
09 June 2016
Asssociazione per gli Studi Giuridici sull'Immigrazione (ASGI), 19 May 2016
It will be impossible to effectively guarantee rights in an adequate manner on the high seas. ASGI asks the interior ministry and the Italian government to immediately abandon this course, considering the unlawful aspects listed below, and it invites UNHCR to carefully monitor the situation in order for effective access to the international protection system in Italy to be guaranteed.
The interior minister [Angelino Alfano] appears to envisage the possibility of creating hotspots to rescue and identify migrants at sea on board of Italian navy ships or platforms which are no longer in use.
Lots of details on the proposed measures are missing, but in any case it appears that they would be unlawful because they violate constitutional, international and European Union norms.
In two of its sentences, the European Court of Human Rights has condemned Italy for using ships to return or effectively detain migrants (the Hirsi Jamaa
sentence of 23 February 2012 and the Khlaifia
sentence of 1 September 2015), recalling that an Italian ship which rescues migrants at sea is Italian territory and that the placement of foreigners on board of ships from which they cannot disembark constitutes a restriction of personal freedom.
Hence, any ship which is used must disembark the migrants on the mainland in order for them to be assisted and correctly informed in a language they understand, as well as to enable them to enjoy a right to defence to allow a correct check on each of their individual positions. In this way, it may be possible to calmly verify the legal and human situations which apply to the people who have been rescued at sea, one by one.
The possible return enacted at sea against all the migrants who have not yet submitted an asylum application is deemed by the ECtHR to be a collective refoulement, which is forbidden by art. 4 of the 4th protocol to the European Convention on Human Rights. In any case, the Court recalls that migrants must be granted the possibility of resorting to an effective defence, and this must be before an independent judge who may carry out a rigorous exam of their situation and may even suspend a measure which has been adopted.
The measure in question would constitute a restriction of personal freedom: as such, in accordance with art. 13 of the Constitution, it must be provided for through a legislative norm and may only be issued on a case-by-case basis by the judicial authority.
Restricting migrants to closed areas for time which has not previously been established by law does not have any legal legitimation and it therefore violates art. 5 of the European Convention on Human Rights, in relation to which Italy has already been condemned (cf. ECtHR sentence in the Khlaifia
vs. Italy case).
The identification of foreigners and asylum seekers in accordance with EU norms (Directive 2013/32/EU on procedures to examine asylum applications and Directive 2013/33/EU on the reception of applicants for international protection) and the Italian legislation which enacts them (legislative decrees no. 25/2008 and no. 142/2015) must take place in centres for first assistance and reception (CPSAs), in centres for identification and expulsion (CIEs), in government-run centres of first assistance or in the local police chief's headquarters (questure). In these places, they have the right to be effectively informed of their rights and duties, including the possibility of submitting applications for international protection, and national and international protection bodies and lawyers must have a right of access to these centres to guarantee information and the right to legal defence.
It will never be possible to effectively guarantee the right to an interpreter who speaks a language they understand, the right to a legal defence and/or the right to complete information in an adequate way on the high seas even if representatives of UNHCR or other humanitarian organisations were on the ships. This is because it would impede migrants' possibility of undertaking these operations in a serene and detailed manner following the trauma they have suffered during the crossing and to turn to other organisations which safeguard human rights and lawyers who are on the mainland. It will obviously never be possible for the latter to reach the ships effortlessly.
Only on the mainland, in places which are also accessible to lawyers and organisations for the protection of human rights, would it be possible to guarantee everyone effective access to the right to asylum as is envisaged by art. 10 point 3 of the Constitution and to the right to a defence guaranteed by art. 24 of the Constitution.
The prescription that migrants and asylum seekers must be disembarked on the mainland is also detailed in the handbook for the rescue of migrants and refugees at sea drawn up by UNHCR in association with the International Maritime Organisation (IMO).
The guidelines on the treatment of people rescued at sea also provide that: "Any operations and procedures such as screening and status assessment of rescued persons that go beyond rendering assistance to persons in distress should not be allowed to hinder the provision of such assistance or unduly delay disembarkation of survivors from the assisting ship(s)" (par. 6.20, Resolution MSC.167(78) adopted in May 2004 by the Maritime Safety Committee alongside SAR and SOLAS amendments).
It is also unclear, in practice, how the repatriations of foreign citizens who are refused entry would be carried out, also because there are national and international norms (art. 19 of legislative decree no. 286/1998 and arts. 2 and 3 of the ECHR) which forbid sending foreign citizens to states where they could suffer concrete risks of persecution or to their lives, or risk experiencing inhumane and degrading treatment (for example to Libya, where a civil war continues, or to Egypt, whose government violates fundamental rights). Neither is it clear how other restrictions on the expulsion and refoulement of vulnerable categories such as minors and pregnant women could be respected.
The lack of places for the reception of asylum seekers can certainly not be resolved through an emergency measure like the creation of hotspots at sea, which would be unlawful even if it were envisaged in any future legislative norm. It can only be solved by creating new centres throughout the national territory with a plan for dignified reception for a realistic number of migrants and asylum seekers (unlike what has happened to date, using numbers which systematically underestimate arrivals) and by creating new channels for regular entry and residence.
The funds provided by the EU, also considering the recent review of Italian public expenditure, would make it possible to cover the necessary costs to establish a dignified and widespread system of centres for identification and to lend assistance to migrants and asylum seekers which respect security requirements and the indispensable guarantees for everyone's fundamental rights alike.
ASGI asks the interior ministry and the Italian government to immediately abandon this course, considering the unlawful aspects listed above, and it invites UNHCR to carefully monitor the situation in order for effective access to the international protection system in Italy to be guaranteed.
Unofficial translation by Statewatch
The original version "E' illegittimo qualsiasi hotspot per identificare i migranti in mare" (in Italian) is available on the Associazione per gli Studi Giuridici sull'Immigrazione's website