Regular Entry Procedures to Europe for Persons in Need of International Protection and the Willingness of European States to Prevent Deaths in the Mediterranean

  1. Introduction

The UN High Commissioner for Refugees (UNHCR) estimated that 51.2 million individuals worldwide were forced to leave their homes because of war, persecution, generalized violence and human rights violations by the end of 2013.1 This was the biggest flight movement since World War II.2 Out of them, 33.3 million were internally displaced persons, 16.7 million were refugees and 1.2 million asylum seekers. Over 50 percent of all refugees worldwide come from just three countries: Afghanistan, Syrian Arab Republic and Somalia. Most of the world’s refugees (86 %) were received by developing countries. Pakistan, the Islamic Republic of Iran and Lebanon have around 3.3 million refugees, thus they are the countries with the greatest amount of refugees in the world. In contrast to this, Europe as a region had approximately 1.8 million refugees by the end of 2013.3

During the ‘Arab Spring’ in 2011 around 70,000 refugees and migrants4 crossed the Mediterranean to find a safe haven. This peak was largely exceeded in 2014 when over 218,000 individuals fled over the Mediterranean Sea.5 In the same year around 714,300 persons lodged an asylum application in a European country6. Most of them came from the Syrian Arab Republic, Iraq, Afghanistan, Serbia/Kosovo and Eritrea.7

Many of the migrants and refugees are not lucky enough to reach European borders safely. Innumerable humans have drowned attempting to cross the Mediterranean. The Migrants Files8 estimates that since the year 2000 more than 29,000 people have died on their way to Europe.9 Hence, the sea route from the North African shores to Southern Italy is the most deadly one worldwide.10 After the dramatic increase of people drowning in 2011 and the tragic shipwreck on 3 October 2013, when 368 people died in the waters off Lampedusa, Italy launched the operation Mare Nostrum in order to identify boats that are at risk of capsizing, to rescue migrants and to bring human traffickers to justice.1112 According to UNHCR more than 3,500 women, men and children died or got lost in their journey over the sea in 2014.13 Still, Mare Nostrum saved the lives of more than 150,000 people in the time of its operation from 18 October 2013 to 31 October 2014.14 Nevertheless, Mare Nostrum as a search and rescue operation working also in international waters with a budget of EUR 9 million per month was put at stake because of being too expensive as Italy financed it without receiving support from the European Union (EU). Furthermore, it was argued by European politicians that this safety net would invite even more migrants to risk their lives at sea and would therefore cause a ‘pull-effect’.151617 Despite heavy criticism from Intergovernmental Organizations (IGO) and Non-Governmental Organizations (NGOs) Mare Nostrum was ceased in October 2014 without being replaced by a well-resourced (human and equipment) European search and rescue operation.18192021 Instead, under the coordination of Frontex a joint EU operation named Triton started its work on 1 November 2014 and was declared by UNHCR as a ‘woefully inadequate replacement for Italy’s Mare Nostrum’.22

Compared to Mare Nostrum, Triton operates with a much smaller budget of around EUR 2.9 million per month and its technical equipment is not comparable at all. The operational area covers mostly territorial waters of Italy and no international waters anymore. Additionally, the focus remains on border control and surveillance instead of search and rescue operations which however is still possible.2324 In the first quarter of 2015 almost 40,000 migrants and refugees crossed the Mediterranean Sea.25 In the same period around 24,000 persons have been rescued by Triton operations.26 In contrast Italian maritime forces, Coast Guard, Navy and several commercial ships rescued around 10,000 migrants in only six days from 10 April to 16 April 2015.27 Despite these search and rescue actions the International Organization for Migration (IOM) reported that more than 1,700 humans lost their lives in the first quarter of 2015 and expressed fears that the death toll could go beyond 30,000 by the end of 2015.28 On 19 April 2015 the deadliest incident happened in the Mediterranean when an estimated 800 people died. The incident occurred shortly after another horrible tragedy in which 400 humans lost their lives.2930 This ongoing dramatic situation in the Mediterranean made it very clear that people are not fleeing because they trust they will be rescued – as it was put forward as an argument to cease the operation Mare Nostrum – but that even without the hope of being rescued if shipwrecked, people were desperate enough to still risk their lives because of war and persecution.3132

The long-standing criticism that the EU and its Member States would turn a blind eye to the dramatic situation in the Mediterranean and would on the contrary enhance their border protection in order to prevent migrants and refugees from fleeing to Europe, increased dramatically after the innumerable loss of human lives in April 2015.33 Approximately half of the people who crossed the Mediterranean in 2014 came from the Syrian Arab Republic and Eritrea34 and were thus seeking refuge. These numbers are reflected in the data of the countries of origin of people lodging an asylum claim in the same year.35 Thus many of those crossing the sea come from countries with an appalling human rights record and are fleeing from war, civil war, persecution and generalized violence.36 As their home countries are not able or unwilling to protect them, they are likely to be in need of international protection as defined in the Convention Relating to the Status of Refugees37 and in the Qualification Directive38.

The question arises why people in need of international protection have to risk their lives by putting their fate in the hands of smugglers in order to reach European shores irregularly. Hence, in the first part of the paper the current EU Asylum and Migration policy will be described. Afterwards, in the second part of the paper, an overview is given of existing regular39 entry procedures to EU Member States and Schengen-associated countries. Furthermore, state practices shall answer the question to what extent such regular avenues are applied. In the third part the EU’s response to the dramatic incidents in 2015 in the Mediterranean Sea is shown. In the concluding part an assessment shall be given about whether the EU, its Member States and Schengen-associated countries are willing to adopt their migration policies by granting safe and regular channels to people in need of international protection and thus to prevent them putting their lives in peril by crossing the Mediterranean on unseaworthy ships.40

To approach all these issues, a desk-based documentary research and analysis of publications from United Nations (UN) bodies and its experts, from regional intergovernmental organisations both from the EU (European Parliament, European Council, Council of the EU and European Commission) and the Council of Europe (Parliamentary Assembly, Commissioner for Human Rights), from reports of international NGOs, academic publications and newspapers was undertaken.

This paper does not cover the issue of interceptions at sea and the obligations of border management authorities to safeguard core fundamental rights of migrants in need of protection accordingly.41

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