On April 12, the European Commission presented a proposal for a Regulation establishing rules for border surveillance in the context of joint operations at sea coordinated by the EU Borders Agency, Frontex. This instrument aims at replacing Council Decision 2010/252/EU annulled in September 2012 by the Court of Justice of European Union (CJEU) which concluded that the rules required the consideration and approval of the European Parliament.
Lack of agreement as to where migrants should be disembarked, has in the past resulted in the distress calls of boats carrying migrants going unheeded due to disputes among Member States over which country held the search and rescue responsibility, thus putting lives at risk.
The Commission proposes that when migrants are intercepted or rescued on the high seas, subject to respect for the fundamental rights of those on board, disembarkation will normally occur in the third country from which the ship departed. If returning migrants to the country they left from is not possible or would violate international law, disembarkation will take place in the Member State hosting the joint operation. In opposition to this principle, which was already included in the original 2010 Council Decision, Malta withdrew from hosting Frontex missions in 2010.
The proposal restates the applicable international human rights framework and incorporates some elements of the leading European Court of Human Rights’ ruling in Hirsi Jamaa and Others v Italy, as well as the N.S. and M.E. judgment by the Court of Justice for the European Union. In particular, the proposal establishes that, “No person shall be disembarked in, or otherwise handed over to the authorities of a country where there is a serious risk that such person would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment or from which there is a serious risk of expulsion, removal or extradition to another country in contravention of the principle of non-refoulement”.
The proposal also requires border guards participating in a sea operation to be trained with regard to relevant provisions of fundamental rights, refugee law and the international legal regime of search and rescue.