I TALIAN S ECURITY L AW AND T REATY P RACTICE ON UNAUTHORISED MIGRATION European University Institute – 17 June 2010

ITALIAN SECURITY LAW AND TREATY PRACTICE ON UNAUTHORISED MIGRATIONEuropean University Institute – 17 June 2010

TREATY PRACTICE ON UNAUTHORISED MIGRATION

The idea of involving the countries of origin and destination of migrants in pursuing the goal of containing irregular flows has been a key feature of Italian policy for over a decade.

Large number of agreements on police cooperation and re-admission (which envisage obligation on the States of origin, citizenship and transit to readmit migrants)


The Single Text of 1998 already provided for measures against illegal migration by sea, which were mainly focused on return policy and penal sanctions for smugglers;

These instruments were subsequently reinforced in 2002. Amendments have also paid increased attention to relations with third countries;

While such relationships should in principle not only aim at controlling and reducing migratory flows, but also at improving the administrative capacities of these countries, thereby reducing the causes at the origin of the migratory phenomenon and promoting legal migration channels, the repression of criminal activities and return of irregular migrants have played a key role.


The legal basis for this practice is clearly stated in the Consolidated Text

The Ministry of Foreign Affairs and the Ministry of the Interior promote the necessary steps, in agreement with the concerned countries, in order to accelerate the completion of the investigation and the release of any documents necessary to improve the effectiveness of the measures provided for in the Consolidated Text and mutual cooperation in order to fight illegal immigration. To this end, arrangements for collaboration may include the (free) transfer of movable goods and equipment (art. 11, para. 4, TU);

For these purposes, the Minister of the Interior shall establish one or more multi-annual programs of special measures for the acquisition of facilities and technical and logistical resources necessary to purchase goods or restore furniture and equipment to replace those supplied to the countries concerned, or to provide assistance and other ancillary services (art. 11, para. 5, TU).

The Ministry of the Interior, as part of the action to support preventive policies established to tackle illegal immigration in the countries of origin, contributes for the years 2004 and 2005 to the implementation in the territory of the countries concerned, of facilities relevant to contrast irregular flows of people migrating to the Italian territory (art. 11, 5-bis, TU).


These agreements may establish more favorable positions for citizens of the States interested in special cooperation programs to prevent or limit illegal immigration;

In processing and revising bilateral cooperation programs for assistance operations (except for humanitarian purposes in favour of non-EU countries,) the Government also takes account of the cooperation provided by the countries concerned in the prevention of illegal migration flows and the contrast of criminal organizations involved in illegal immigration, trafficking in human beings, exploitation of prostitution, trafficking in drugs, arms, as well as in judicial and penitentiary cooperation.

Programs of cooperation and assistance may be reviewed if the governments of the concerned States do not take appropriate surveillance measures to prevent illegal re-entry on the Italian territory of their nationals who have been expelled.


Model cooperation with Albania For the purpose of facilitating control at sea and

containing the flows arriving along the Apulia coasts, an agreement was signed in March 1997 followed by a protocol which detailed the enforcement procedures;

Italy led the “Operation Alba, multinational security force aimed at helping to restore order and secure safe elections, and hosted an international conference in Rome. Italy ensured strong bilateral action, through interventions focused on supporting many sectors (bilateral agreements);

Signature of readmission and police cooperation agreements.

The intensification of controls on both sides of the Adriatic, also through the Italian Navy, has progressively reduced the possibility of departing and reaching Italian coasts.


Strategic countries on the southern shore of the Mediterranean

Agreements with Morocco (1998), Tunisia (1998), Algeria (1999 e 2000), Egypt (2000), Libya (2000) and Nigeria (2000).

In 2003, when flows in the Sicily Channel increased it appeared appropriate to strengthen cooperation with Libya and to re-negotiate collaboration with Tunisia.

Attention was renewed after 2007 and led to the signature of new readmission agreements (Egypt, 2007) (Tunisia, 2009) and to formalization of collaboration against illegal migration (Libya, 2007 and 2008) and police cooperation (Nigeria, 2009).


The Single text envisages a preferential access for citizens of countries that cooperate in the management of migration flows. Agreements may provide that foreign workers who intend to enter Italy to carry out employment activity, even seasonal, are inserted in special lists.

While the quota mechanism was implemented immediately after the entry into force of the Single text, these provisions have only found application in recent years through the conclusion of a few agreements on work with Moldova, Morocco, and Egypt. An agreement is being negotiated with Tunisia.

The agreements were signed respectively in 2003 (Moldova) and 2005 (Morocco and Egypt).


Cooperation with Libya -Why is it so strategic? The beginning of cooperation between Italy and Libya may be dated

back to the signature of a bilateral agreement of 13 December 2000, in force since 22 December 2002;

In July 2003 an operational agreement between their police authorities was signed;

(Informal) agreement on readmission in 2004?; In January 2006, a memorandum was signed on a common engagement

in the fight against irregular migration and in December 2007, collaboration between the two countries culminated in the signature of a protocol of cooperation aimed at dealing with irregular migration;

At the end of August 2008, a treaty was signed between the two countries. It was meant to put an end to the dispute on claims relating to Italian colonialism and in this respect it provided for a $5 billion compensation package for the colonial era. Inter alia, Libya had to ensure a more effective engagement in containment of migration flows.

Pressures exercised on North African countries for the control of irregular movements has contributed to concentrating departures in Libya, thus making the relationship with this country a key issue for the management of sea migration flows.


Precedent - Collective expulsions – Italy was accused of carrying out collective expulsions from the island of Lampedusa to Libya between October 2004 and March 2005. UNHCR condemned the return of 180 people on 17 March

2005, saying that it was far from certain that Italy had taken the necessary precautions to ensure that it did not send genuine refugees back to Libya.

The EU Parliament adopted a resolution in December 2005 expressing concern: About the fate of the hundreds of asylum seekers returned to Libya, since the

country is not a signatory to the Geneva Convention on Refugees, has no functioning asylum system, offers no effective guarantee of refugee rights and practises arbitrary arrest, detention and expulsion; and whereas the people expelled are usually handcuffed and do not know what their destination is;

About the absence in Italy of a law on the right to asylum. The EU Parliament took the view that the collective

expulsions of migrants by Italy to Libya constitute a violation of the principle of non-refoulement and that the Italian authorities have failed to meet their international obligations by not ensuring that the lives of the people expelled by them are not threatened in their countries of origin.


Summer 2009 – collective push-backs Operations involving Italian naval units have

intercepted boats carrying migrants on the high sea and sent them back to their ports of departure, most notably Libya.

This practice has given rise to concerns over compliance with international asylum obligations and in relation to the circumstance that the migrants on board the intercepted boats may include refugees seeking international protection and the boats were turned back without ascertaining their individual status.


Arrivals from Libya: 2004: 13,594 people. 2005: 22,824 people 2006: 21,400 people. In these three years the majority of illegal

immigrants - those who cross borders without proper documentation - was largely composed of Egyptians, in 2004 and 2005, more than 50 % of immigrants were Egyptians . In 2006 however, the first country was Morocco.

2007: 16,875 people, a decrease due to improved surveillance of activities by Libya

2008: 34,540 people, an exponential growth. In 2008 the first nationality was Tunisia, while the second was Nigeria and then Eritrea.

In 2009 the new procedure of joint control by Libya and Italy came into force. Data from the beginning of the year to date. From January 1 to September 25,

2008: 22,932 people-2009, during the same period, ie from January 1 to September 25, 2009: 7418 people. The decline is evident.

If further analysis is carried out starting from the famous May 6, the starting date of the new procedure, until September 25, 2008, the figure is 17,546 people. This year, during the same period, ie from 6 May to 25 September 2009, the figure is 1078. There is actually a decrease of 90 %. As for push-back (riaccompagnamenti), from May 6 to September 7 1,005 people were taken back to Libya , 833 through the Libyan-Italian joint activity and 172 taken and brought back by Libyans themselves.


The position at the International level

UNHCR – In May 2009 sent a letter to the Italian government affirming its concern in relation to the policy implemented by Italy that undermines access to asylum in the European Union and carries with it the risk of violating the fundamental principle of non refoulement which is enshrined in the 1951 Convention relating to the status of refugees and in EU law as well as in other instruments of international human rights law. According to the UNHCR, the non refoulement principle does not carry with it any geographical limitation. States are obliged to respect this principle wherever they exercise jurisdiction, including on the high seas.

EU Commission – In July 2009 Mr. Barrot, former Commissioner for JLS, asked in a letter addressed to the Italian Government in July what steps had been taken to ensure that returned foreign nationals received adequate protection. The EU Commission pointed out that this practice could be in breach to EU law obligations.

Council of Europe Commissioner for Human Rights, Thomas Hammarberg, expressed his concern for this practice.


The position of the Italian Government: Once on the Italian ships no migrant expressed his/her

intention to apply for asylum; It is the opinion of Italian Authorities that according to

international and EU standards, there is no obligation during search and rescue operations to provide information on the possibility to apply for asylum;

Italian Authorities emphasised that the Police provides an ad hoc brochure when the application is submitted (Legislative Decree no. 25/2008, implementing EU Directive 85/2005/CE);

Italian authorities have stressed that when a migrant rescued at sea expresses his or her intention to apply for asylum or other forms of international protection on board an Italian vessel, they are not returned to the country of departure/transit but they are brought to Italy.


ECtHR

Addressing the issue of responsibility for acts committed outside a country’s territory, the Court has ruled that actions carried out by a state naval unit on the high seas are an example of the exercise of extra-territorial jurisdiction. As such they could result in the state concerned being deemed responsible [Al-Saadoon and Mufdhi v United Kingdom, 2009]

Recourse submitted before the ECtHR (No. 27765/09, Hirsi et others v. Italy ) on behalf of 11 Somali and Eritrean nationals intercepted in international waters and then taken back to Libya by the authorities of the Italian Guardia di Finanza last May 6, 2009. The plaintiffs argue that the Italian authorities committed a violation of Articles 3 (prohibition of inhuman and degrading treatment) and 13 (right to an effective remedy) of the European Convention on Human Rights and Article. 4 of Additional Protocol 4 to the ECHR (prohibition of collective expulsion).

According to the applicants, the presence of migrants on rejected boats from Somalia and Eritrea configured, firstly, a breach of Article 3 of the European Convention on Human Rights (prohibition of torture) and the related jurisprudence of the Court affirming that this prohibition includes the obligation of States Parties not to expel or return people to countries where they would be exposed to the risk of harmful practices on their psycho-physical integrity. In the opinion of the applicants, this would certainly be the case of Libya, where they would be exposed to risk of mistreatment in detention centers and, and of being repatriated to their countries of origin without having access to protection under the Geneva Convention on Refugees, to which Libya is not party. Further violations relate to Article 13 of the Convention (right to an effective remedy), since the Italian authorities had prevented the rejected migrants from submitting an application for asylum, and Article 4 of Additional Protocol IV to the Convention (prohibition of collective expulsion of foreigners), because immigrants were returned to Libya without being identified and without being subject to individual consideration.

Documents

I TALIAN S ECURITY L AW AND T REATY P RACTICE ON UNAUTHORISED MIGRATION European University Institute – 17 June 2010