In a new report, ‘Access to Protection: Bridges Not Walls’, the Italian Council for Refugees (CIR) analyses the impact of the case of Hirsi Jamaa and others v. Italy and argues that the European Court of Human Rights (ECtHR) has established access to territory as a human right for those under the effective control of State authorities and when the refusal of access to the territory would result in refoulement. The report documents severe shortcomings as regards certain States’ respect of the principles reiterated in the Hirsi judgment, most notably that of non-refoulement, in particular at the Greek-Turkish border, the Bulgarian-Turkish border and the Spanish enclaves in North Africa, Ceuta and Melilla.
In its ruling condemning Italy for violating the European Convention on Human Rights by pushing migrants back to Libya, the Court elaborates on the scope and application of the principle of non-refoulement and clarifies the prohibition of collective expulsion of persons on the high seas. The Court finds that the authorities are under obligation to know whether those refused access to the territory would be exposed to treatment violating their human rights upon return. According to CIR, the Court’s decision also places legal obligation on States to make information and interpreters available for all migrants at any type of border or when they come under the effective control of State authorities. Moreover, States must ensure effective access to asylum procedures and an effective remedy against deportation. Without these remedies, the authorities cannot successfully establish whether deportation may violate a person rights under the European Convention Human Rights as interpreted in the Hirsi Jamaa case. In addition, CIR furthers that States are obliged to ensure the training of border guards so that they are aware of the rights of those who come under their control.
CIR urges the EU to use start infringement procedures against those Member States that persist in returning migrants and asylum seekers to third-countries where they may face persecution or serious harm or where they are at risk of being deported to their country of origin. Furthermore, CIR recommends the EU and Member States suspend the implementation of readmission procedures where there is a persistent and serious risk of violation of human rights of the readmitted persons. CIR also calls on Frontex to suspend all operations when there are serious allegations of collective expulsions and ill-treatment carried out by Member States. In such cases, Frontex should monitor that the allegations are promptly, effectively and independently investigated by the authorities of the Member States concerned. Frontex should also not engage in any operational cooperation with third countries for which independent reports indicate that they do not respect the fundamental rights of migrants and refugees.
This article originally appeared in the ECRE Weekly Bulletin of 7 November 2014. You can subscribe to the Weekly Bulletin here.