Tuesday

13th Nov 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.

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  • 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.

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