Friday

27th Apr 2018

Analysis

Italy's 'floating hotspot' idea to sink in legal waters

  • Migrants or asylum seekers cannot be deprived of their liberty. (Photo: Frontex)

A plan to process migrants in boats in the Mediterranean Sea in so-called floating hotspots will face big legal hurdles.

First proposed by Italy's interior minister Angelino Alfano in early May, it was not opposed by the European Commission.

Thank you for reading EUobserver!

Subscribe now for a 30 day free trial.

  1. €150 per year
  2. or €15 per month
  3. Cancel anytime

EUobserver is an independent, not-for-profit news organization that publishes daily news reports, analysis, and investigations from Brussels and the EU member states. We are an indispensable news source for anyone who wants to know what is going on in the EU.

We are mainly funded by advertising and subscription revenues. As advertising revenues are falling fast, we depend on subscription revenues to support our journalism.

For group, corporate or student subscriptions, please contact us. See also our full Terms of Use.

If you already have an account click here to login.

  • Italian interior minister Angelino Alfano first proposed floating hotspots early May (Photo: consilium.europa.eu)

Both the Brussels executive and EU border agency Frontex are waiting for Rome to send an in-depth analysis on the legal and operational challenges it poses before possibly making a proposal.

Giulio di Blasi, the EU commission official who cooked up the original idea of land-based hotspots, has refused to comment.

But case law at the European Court of Human Rights in Strasbourg will most likely sink the idea of sea-based hotspots.

Operational details for the floating hotspots are scant.

Italy's year-long Mare Nostrum rescue operation in 2013-2014 had included on-board ID checks.

But the latest plan from Rome is set to include initial health, security and identity checks on anyone plucked from the sea before they are brought to shore for further processing.

Alfano had also said the boats would be equipped with fingerprinting machines and police officers. People would be separated into those likely to get asylum and others would be sent home, he said.

The big boats were likely to be moored near the Italian coastline, although the same legal rules would apply in international waters. Italy's laws apply onboard Italian boats. The same goes for all EU states.

But case law at the Strasbourg court on detention and quality of conditions on the boats will complicate matters.

Detention and bad conditions

First there is detention.

People cannot be deprived of their freedom of movement under article 5 of the European Convention of Human rights, even if for only two or three days.

In 2002, the commander of a French frigate was ordered to intercept a merchant ship near Cape Verde. The boat, which was registered in Cambodia, was hauling cocaine.

Once caught, its crew was confined to their quarters under military guard while tugged back to France.

Eight years later, the Grand Chamber at the Strasbourg court ruled that France had violated article 5 of the Convention by confining the crew on the boat. The Chamber said France had taken legal jurisdiction over the boat when they apprehended it. It meant article 5 applies.

Another case is now being discussed that involves a Syrian who is stuck in a transit zone at a Russian airport since September.

The Russians argue his freedom is merely restricted and that this is not a violation of article 5. They say he can freely can go back to Syria. His lawyers argue the transit zone is under Russian jurisdiction, which means the Syrian has his rights.

The Russians are likely to lose. In 1996 the Court ruled in favour of Somali defendants under similar circumstances at the Paris-Orly international zone.

It means any migrant or asylum seeker taken on board a boat in the Italian floating hotspot cannot be deprived of his or her liberty.

Given that a person cannot jump into the water and swim to shore, any argument that a boat is only a restriction - not a deprivation - of the freedom of movement would likely be shot down by the above two cases.

On land, conditions are already bad and it is unlikely standards will be higher on a boat, far away from public scrutiny.

Existing hotspots on the Greek islands, for example, quickly turned into de facto detention centres. Aid agencies like Medecins Sans Frontieres (MSF), the International Rescue Committee (IRC), the Norwegian Refugee Council and Save the Children pulled out in protest in March.

Meanwhile, police are arbitrarily separating people in Italian hotspots against asylum rules, according to the Association for Juridical Studies on Immigration.

"People are restricted, there is no real effective right to get information, and what we are seeing is that people are screened just on the basis of their country," Lorenzo Trucco, president of the Florence-based NGO, told this website on Wednesday (1 June).

The second big issue is conditions on the boat, especially for children and pregnant women.

That some 13,000 people were rescued in one week earlier this month suggests how big the task would be.

The Strasbourg court in another case ruled against Greece for detaining a 15-year old boy from Afghanistan.

Aside from depriving his rights to liberty, he was kept in squalid conditions before being released on to the street and made homeless.

The upshot for Italy

The costs involved in launching such a naval operation are likely to be very large.

But the financial impact for Italy would probably be offset by other bigger “political benefits”.

The EU's key asylum law, the Dublin regulation, in most cases rules that the country of an asylum seeker's first entry has to handle the entire application claim.

"If it is a joint-operation, then the flag-bearing nation would have to process the asylum claim as the first point of entry under Dublin rules," said Chiara Favilli, a professor of European law at Florence University.

Dublin, recognised as a failed policy, is being reformed.

Should the EU commission's latest proposal on Dublin make it through the EU's co-legislative process, the distribution process would become automatic.

France tightens immigration law, sparking division

French lawmakers are cracking down on asylum seekers in a bid to send those rejected back home. Controversial measures they passed over the weekend will now be debated in the French senate in June.

Interview

Spanish NGO boat bosses face jail for rescuing Libya refugees

Spanish NGO Proactiva Open Arms had its rescue boat seized by Italian authorities in Sicily earlier this month. Three employees have been accused of migrant trafficking and face up to 15 years in jail and huge fines.

EU mulls coercion to get refugee kids' fingerprints

EU policy and law makers are ironing out final details of a legislative reform on collecting the fingerprints of asylum seekers and refugees, known as Eurodac. The latest plan includes possibly using coercion against minors, which one MEP calls "violence".

Opinion

Calling time on European-Turkish strategic relations

With an Erdogan-Putin summit on Tuesday, joined by Iran on Wednesday, it is time for Europe to face facts - Turkey's ties with the West are no longer strategic. When Europe goes hither, Turkey deliberately goes thither.

EU mulls coercion to get refugee kids' fingerprints

EU policy and law makers are ironing out final details of a legislative reform on collecting the fingerprints of asylum seekers and refugees, known as Eurodac. The latest plan includes possibly using coercion against minors, which one MEP calls "violence".

Stakeholders' Highlights

  1. European Jewish CongressCalls on Brussels University to Revoke Decision to Honour Ken Loach
  2. Sustainable Energy Week 2018"Lead the Clean Energy Transition"- Register and Join Us in Brussels from 5 to 7 May
  3. EU Green Week 2018Green Cities for a Greener Future. Join the Debate in Brussels from 22 to 24 May
  4. Nordic Council of Ministers12 Recommendations for Nordic Leadership on Climate and Environment
  5. Macedonian Human Rights MovementOxford Professor Calls for an End to the Anti-Macedonian Name Negotiations
  6. ACCAPeople Who Speak-Up Should Feel Safe to Do So
  7. Mission of China to the EUProgress on China-EU Cooperation
  8. Nordic Council of MinistersWorld's Energy Ministers to Meet in Oresund in May to Discuss Green Energy
  9. ILGA EuropeParabéns! Portugal Votes to Respect the Rights of Trans and Intersex People
  10. Mission of China to the EUJobs, Energy, Steel: Government Work Report Sets China's Targets
  11. Martens CentreJoin Us at NET@WORK2018 Featuring Debates on Migration, Foreign Policy, Populism & Disinformation
  12. European Jewish CongressKantor Center Annual Report on Antisemitism Worldwide - The Year the Mask Came Off

Latest News

  1. EU tells platforms to sort fake news by October or face new law
  2. Civil society chief: social media can't replace engagement
  3. The reality behind the €7 'Brexit bombshell visa'
  4. Commission wants bigger post-Brexit budget
  5. Whistleblowers could be enforcers of rule of law in Europe
  6. EU shelves Macron idea for 'European Darpa'
  7. Don't play EU 'games' with military HQs
  8. EU had a plan for Jordan - now it's time to make it work

Stakeholders' Highlights

  1. UNICEFCalls for the Protection of Children in the Gaza Strip
  2. Mission of China to the EUForeign Minister Wang Yi Highlights Importance of China-EU Relations
  3. Nordic Council of MinistersImmigration and Integration in the Nordic Region - Getting the Facts Straight
  4. Macedonian Human Rights MovementMacedonians in Bulgaria Demand to End the Anti-Macedonian Name Negotiations
  5. Counter BalanceThe EIB Needs to Lead by Example on Tax Justice
  6. ILGA EuropeTrans People in Sweden to be Paid Compensation for Forced Sterilisation
  7. International Partnership for Human RightsThe Danger of Standing Up for Justice and Rights in Central Asia
  8. Mission of China to the EUChina and EU Must Work Together to Promote Global Steel Sector
  9. Swedish EnterprisesEU Tax Proposal on Digital Services Causes Concern for Small Exporting Economies
  10. European Jewish CongressCondemns the Horrific Murder of Holocaust Survivor Mireille Knoll in Paris
  11. Mission of China to the EUAn Open China Will Foster a World-Class Business Environment
  12. ECR GroupAn Opportunity to Help Shape a Better Future for Europe