A Typology of «Transit Zones»

BRIEFING PAPER

The term ‘transit zones’ can be broadly understood in member states as meaning designated places where rejected migrants are physically detained until they are returned to a state that is obliged to receive them back, including their country of origin. Non-EU nationals (eg people without documentation proving their identity, irregular migrants, asylum-seekers and unaccompanied minors) residing inside ‘transit zones’ are subject to the jurisdiction of the territorial state, which remains bound by its international obligations on human rights. However, they are treated in a different wayby comparison with the ordinary legal regime, at least in four aspects (a) detention or restriction of liberty and free movement is designed to prevent their irregular/unlawful entry into the territory, (b) less guarantees are available under the accelerated procedure concerning the substantial evaluation of ‘non-refoulement’ and asylum, (c) absence of publicity, and (d) physical conditions of accommodation are backward in general avoiding further «pull factor effect». In addition to the tough questions of burden-sharing, solidarity and human crisis management for islands as well as for the southern and eastern borders of the EU, transit zones may present the institutionalisation of temporariness as a form of radical social exclusion and marginalisation in modern society and a conservation of borders as dividing lines.

IP/C/LIBE/FWC/2005-22/SC2

This note was requested by: The European Parliament’s committee on Civil Liberties, Justice and Home Affairs.

This paper is published in the following languages: EN, FR.

Author: Judit Tóth, University of Szeged

Under the supervision of Professor Elspeth Guild

Manuscript completed in 16/07/2006

Copies can be obtained through: Tel: 32105

Fax: 2832365

E-mail: japap@europarl.europa.eu

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Brussels, European Parliament

The opinions expressed in this document are the sole responsibility of the author and do not necessarily represent the official position of the European Parliament.

A TYPOLOGY OF «TRANSIT ZONES»

Judit Tóth

What is a ‘transit zone’?

In the context of international migration, we can divide countries into those of destination and transit via which migrants intend to reach their country of destination. How this works out in practice depends on how the migrants in question consider the reasons for their decision to travel and their material circumstances. The traditional physical and territorial borders have experienced a process of transformation by which they have become a legal screening which separates the «lawful entry» and «unlawful, irregular or unofficial entry» regardless its venue at crossing. In this context, transit zones may theoretically be relevant in all member states in checking third country nationals. In fact, the geographical location of EU member states is a key factor in how far they are used as transit routes for irregular, poor or smuggled migrants. Islands and bordering countries from which many people are emigrating are very vulnerable in this sense.

The term transit can be defined as a toolkit of restrictions outside the ordinary structure of migration law. Transit zones cannot be considered as an extraterritorial exception from human rights obligations. People residing inside the transit zone are subject to the jurisdiction of the territorial state, which remains bound by its international obligations on human rights, [1] However, they are treated in a different wayby comparison with the ordinary legal regime, at least in four aspects (a) detention or restriction of liberty and free movement is designed to prevent their irregular/unlawful entry into the territory, (b) less guarantees are available under the accelerated procedure concerning the substantial evaluation of ‘non-refoulement’ and asylum, (c) absence of publicity, and (d) physical conditions of accommodation are backward in general avoiding further «pull factor effect».

Increasingly, it is not only rejected passengers and irregularly residing foreign nationals who are being detained in member states but also asylum applicants. As a result, there are a growing number of detention centres, transit centres or refugee centres. However these temporary reception institutions have the same purpose: to detain rejected migrants until they are returned to a state that is obliged to receive them back, including their country of origin. A small percentage of detainees, are given access to due process in the country to which they are returned. Transit zones can be understood as a broad term covering different domestic laws in EU member states. From a sociological point of view, camps or transit zones may present the institutionalisation of temporariness as a form of radical social exclusion and marginalisation in modern society and a conservation of borders as dividing lines [2].

Where are transit zones found?

There are two main locations for transit zones in member states:

International airports where temporary accommodation is provided for immigrants having pending decisions on whether they are to be allowed to enter the country or whether they are refused entry. Due to the growing amount of air traffic, more new airports are being opened, in particular in tourist areas in which minimal conditions for policing the EU’s common external borders and transit zones are often not in place.

Island areas belonging to the territory of the EU refer to temporary safe havens for people arriving by boat and who are intending to migrate to the mainland of the country or to another destination.

In addition, the southern and eastern parts of the EU will, in particular after the new ten member states have joined the Schengen regime, have to face the consequences of becoming the EU’s common external borders. This will involve more stringent border controls. These will in turn require internationally protected temporary accommodation and security measures towards third country nationals after they are refused entry, and while they are awaiting a decision on whether they can enter or not. In the near future, EU member state authorities will need to create a further division of tasks (burden sharing) at the external land borders between EU and non-EU countries, be that in terms of railway operators or road hauliers for example.

In the mid-1990s, the introduction of penalties for road hauliers shifted the responsibility for checking passengers and not allowing irregular migrants and asylum-seekers on board [3]. This shift in responsibility was implemented along similar lines in acceding states [4]. EU border countries receiving increasing numbers of poor, smuggled, irregular migrants and asylum-seekers have to cope with a growing humanitarian crisis and the maintenance of transit zones. Moreover, the forthcoming Regulation on local border traffic [5] and reduced or waived fees for Schengen visas may also contribute to what is already a high rate of families of minorities crossing at the eastward external borders [6]. The Regulation may also contribute to an unexpected increase in the number of irregular passengers refused entry to the state where their families are living meaning that they are kept in land border transit zones due to further readmission agreements concluded with Ukraine, Russia, Albania and west Balkan states. The balance between ensuring maximum security and preventing a ‘social iron curtain’ from emerging on the eastern borders of the EU has become an integral part of the EU decision-making process on border crossing policy, European Neighbourhood Policy and enlargement. [7]

In February 2005, a report by an independent committee set up by the Belgian Minister of the Interior to re-evaluate the techniques used in forcible deportations was published. The committee addressed a number of issues of concern, including the need to ensure transparency during forced removal for asylum-seekers denied entry into Belgian territory and held in a transit zone. Currently, the maximum period of detention is not defined and foreign nationals who resist forcible return can be detained until they abandon all resistance and can be expelled. Foreigners, including minors, continued to be confined to airport transit zones for extended periods and in conditions often amounting to inhuman and degrading treatment. In 2006, the United Nations High Commissioner for Refugees (UNHCR) criticised authorities that continue to detain minors both for detaining them and for the length of time that they are being detained in detention centres. [8]

A case of an Eritrean national [9] at the European Court of Human Rights has also raised general issues of concern about asylum application procedures at EU borders and admission to French territory. Fleeing from Ethiopia and Sudan, he arrived at Charles de Gaulle airport, Paris, on 29 June 2005 without ID and was placed in the ‘zone d’attente’ in Roissy. The first representative of OFPRA deemed that he should be allowed to enter the country but the second interview found his application manifestly unfounded. For this reason, on 6 July 2005 the Ministry of the Interior did not grant the applicant access to French territory and decided to expel him to Eritrea or to any other country where he could be legally admitted. His appeal to the Administrative Court, under the emergency procedure, was rejected as manifestly unfounded without any hearing or discussion on 8 July 2005. He was deprived of his liberty for 22 days instead of the 20 provided by the law. After the intervention of the European Court of Human Rights (Section 39 of its Rules of Procedure) he was allowed to enter French territory, thereby suspending his expulsion until 30 August, and granted the right to apply for asylum and residence. His refugee status was recognised by OFPRA. Despite the fact that this ‘happy-ending’ type of case is common in many countries, it entailed a violation of right to life, a prohibition of torture through expulsion and deprivation of liberty without an effective judicial review.

The European Ombudsman twice launched investigations into the implementation of international and constitutional standards in the transit zone at the Budapest airport. Complaints received from rejected passengers and the Hungarian Helsinki Committee referred to deprivation of liberty, poor living conditions and the unlimited period of time that they were kept in detention after being refused entry. As a direct result of the Hungarian Helsinki Committee’s first recommendation [10], a new transit accommodation unit consisting of one checking room, two bedrooms and two bathrooms was opened within the territory of the international airport in late 1998 and a law was passed setting out a means of deportation by air and a maximum period of pre-deportation detention of up to eight days. [11] The European ombudsman’s second investigation confirmed the dysfunctional operation of temporary orders, deprivation of liberty and inconsistent rules on accommodation, hygiene and nutrition, in particular for minors. The entry of a stateless family with minors from Switzerland via Budapest to Damascus (by EasyJet) was refused due to the absence of a Hungarian entry visa, although the family were not aware that they had to apply for formal entry rather than just apply for a transfer. The family had to spend a weekend in the transit unit waiting to be returned to Geneva in June 2005 while conditions were below standards of human dignity.

The European Ombudsman discovered new problems in connection with the increase in the number of cheap flight companies. Air companies offering cheap tickets neither have local representatives at each destination nor do they contract to use transit services at the airport, although there are more and more persons being transferred. For this reason more passengers are being refused entry into a genuine transit country. In addition, cheap flights have led to more new international airports being opened in the countryside but without proper transit accommodation units. In fact the establishment of transit units has not been added to the criteria for the opening and maintenance of these international airports either in contracts concluded with the operating companies or in legal rules for the national authorities. An additional conclusion of the investigation is that regular checks on human rights standards by authorities in transit zones are needed. These standards would include public health conditions, standards of hygiene and nutrition as well as publicly regulated domestic rules on movement and behaviour inside the transit zone. [12]

Since 2004, cases of collective expulsion to Libya emerged in the press and in the EU institutions. For instance, in October 2004 the Italian authorities expelled almost 1,500 boat people who had arrived on the island of Lampedusa. Italy has set up a system of frequent flights leaving the island to Libya, without giving would-be-immigrants the right to access the asylum process and without assessing them on the basis of the principle of non-refoulement [13]. The UNHCR condemned not only the Italian authority’s decision to refuse entry to the applicants but also the decision to return 180 people on 17 March 2005 although the Italian authority stated that there were no genuine refugees among them. On 6 April 2005, the European Court of Human Rights (ECtHR) demanded that Italy should provide information on the situation in Lampedusa following a complaint submitted by a group of expelled migrants. As a result of these events a Resolution was adopted [14] in which the European Parliament required that the arbitrary arrests and mass expulsions should be stopped, that the UNHCR should been given access to the reception centre and that proper guarantees against further deportation by the Libyan Italian authorities (which allegedly led to the death of 106 migrants) should be ensured. Moreover the Resolution called for a case-by-case examination under the principle of non-refoulement taking into account human rights for migrant in need of protection [15]. MEPs also called for the refugee qualification and status Directive to be quickly transposed into the national legislation. They called for a delegation to be sent to Lampedusa and Libya to assess the scale of the problem and to verify the legitimacy of the actions of the Italian and Libyan authorities. According to the visit [16], the transparency of the decision-making procedure was poor, its documentation was uncertain (how many people and on which facts were repatriated to the country of origin, transferred to the asylum centre in Crotone, or sent back to Libya), access to legal counselling and ways of personal identification were also weak. While refusal of entry means an administrative decision (by the questor) within some days, the non-repatriable migrant shall be expelled by a judicial decision and detention may be taken up to 60 days. The living conditions at the centre were makeshift and totally inadequate in view of the considerable flow of migrants to the island. While further unfortunate passengers are arriving «the authorities and population of the island can no longer cope with such a massive influx or plan normal conduct of economic activity, in particular tourism […] in order to prevent Lampedusa from becoming Europe’s leading port of entry for illegal migrants». [17]

Malta is not the final destination for people arriving in large numbers on its shores from war-stricken countries in Africa. They state that they want to enter other member states. Malta has a very limited capacity for receiving and accommodating migrants and asylum-seekers. One per cent of its national budget is spent on tackling this humanitarian emergency and managing detention or reception centres in which asylum seekers are detained for many months in conditions that fall far below internationally recognised standards. This was confirmed by the delegation of the Committees on Civil Liberties, Justice and Home Affairs visiting Malta on 24 March 2006. For these reasons, in its Resolution [18], the European Parliament urged for Regulation 343/2003/EC (Dublin II) to be revised by challenging its very principle, namely that the member state responsible for dealing with an asylum application is the first country that applicants reach, which puts an intolerable burden on the countries situated in the south and east of the EU, and by introducing a fair mechanism for sharing responsibilities among member states.

Spain is also facing an immigration crisis in the Canary Islands. For instance, about 15,000 Africans were reported to be ready to embark from Mauritania’s coasts to make the hazardous 800km crossing to reach the Canary Islands. [19] They believe that they have a good chance of being transferred to mainland Spain, where migrants will be released after 40 days of detention on the grounds that it is impossible to establish their nationality. This has already happened with about 3,500 irregular migrants since the beginning of the year. These persons can move in the Schengen area freely, in particular after they have been declared legal by the Spanish authorities. This migration pressure must be managed to prevent Spain from becoming another port of irregular entry to Europe and attracting at least 600,000 new irregular migrants per year through the possibility of their being declared legal (amnesty was given to 577,049 people in early 2006). [20]

Several irregular migrants who arrived on the island of Chios in April 2005 were detained in conditions that amounted to cruel, inhuman and degrading treatment, including being held in a metal container close to the island’s main harbour. On 19 April 2005 human rights activists on the island demonstrated against the use of the metal container to hold migrants. A similar case of would-be immigrants being rejected access to the asylum process occurred when 141 people were shipwrecked on Crete on 23 October 2005. They were expelled to Egypt within ten days along with 106 alleged Palestinians who landed in Crete on 1 April 2005. Although the latter group was detained in Attica while arrangements to meet a lawyer were being put in place, their asylum applications could not stop them from being put on a ship bound for Egypt within two weeks [21].

The EU’s ‘return policy’ aims at improving the management of the return of irregular migrants, including the enhancement of co-operation and solidarity among member states [22]. The planned Directive [23] prioritises voluntary over forced return, introduces the suspension of a return decision and/or a removal order, and limits temporary custody to those situations where there is a risk of the would-be immigrant absconding. Although the EU-financed programme RETURN amounts to 15,000,000 euro for the 25 member states [24], it contains no direct reference to tackling burning transit zone issues such as abolishing detention, the limited capacity of transit institutions or the problem of the of some member states being disproportionately burdened by large numbers of would-be immigrants due to their geographical location. The simplification of forced return, joint return operations and picking up the costs of temporary accommodation for ‘returnees’ have been inserted into the programme. These points have some effect in terms of spreading the burden but only to a limited extent. In addition to its low level of efficiency in terms of transit zones, accelerated asylum or return procedure requires further guarantees for human rights protection, as the Council of Europe has recognised [25].

Who stays in the transit zones?

It is not so easy to describe the composition of detainees due to the limited information and publicity. For instance, 100 journalists signed a petition to the Maltese Deputy Prime Minster and the Minister for Interior because access to detention centres for irregular migrants (for instance Hal Safi Barracks) was being regularly denied. [26] Excluding the media seems to be the government’s policy which suspends public control over the conditions, legality and procedure inside the centres without justified reasons. The delegation of the European Parliament could obtain only doubtful statistics on the number, the time spent and the nationality of the inmates accommodated in the Lampedusa centre in 2004. Accordingly, 4% of them were minors and 3% were women. Further on, there is no transparency regarding the rate and the costs of administrative detention of asylum applicants and pre-deportation custody of irregular migrants including accommodation, food, health care, upkeep of existing buildings, payroll expenditures for guards. [27] In this way the efficiency of «pushing factors» has never been tested. For instance, a UN report mentioned 4000 irregular migrants who had drowned between Morocco and Spain. [28] On the base of available data and regulation the following people reside in transit zones:

undocumented foreigners coming from third countries, such as boat people,

rejected passengers in absence of valid passport, visa, material cover, his/her name is on the list of unwanted persons (ban of entry and residence),

protection seekers including potential asylum-seekers, persons in need of temporary or substitute protection, refugees,

smuggled migrants, frequently apprehended by the authority in the border zone,

(un)accompanied minors and women. For instance, during the past five years about 80,000 migrants and asylum seekers have reached Italy by sea after a hazardous journey. Among them there have been hundreds of minors, including infants, and some unaccompanied children. They have come from Eritrea, Ethiopia, Somalia, Turkey and Iraq and other countries in the Middle East and North Africa. They are routinely detained, especially those seeking asylum and unaccompanied, accommodated in detention centres together with adults. Amnesty International published cases on a newborn baby living in barracks in hot summer, a 12 year old boy accommodated in a reception centre without a guardian after five months of his arrival, inaccurate age assessment and harsh conditions. [29]

These groups are almost overlapping. Arrival of migrants and asylum seekers to a small island or to crossing points represents certainly a heavy load for local community but - on the base of statistics – people coming from the sea are responsible for up to 10% of irregular migrants and up to half of asylum seekers. This is the case for instance in Italy. [30]

What law covers transit zones?

The protection of universal and regional human rights must be ensured without any discrimination. The derogatory term of «illegal migrant» should not be used as this term puts a criminal seal on the individual concerned. This process of criminalisation has far reaching consequences as the centre in Guantanamo clearly proves. This centre still operates despite the five UN human rights experts’ calling for closing it two times, hunger-strikes and suicides committed by inmates as reaction for inhuman treatment, isolation and absence of due process. The official justifications being given to the criticisms about its operability has been that: «inmates were detained not because of what they had done but for what they might do if released». Irregular migrants are detained for similar basis. Perhaps for this reason the Commissioner for Human Rights said: «The Guantanamo scandal is also our concern». [31] It would be important to apply alternatives to detention of asylum seekers and refugees in Member States as the UNHCR summarised. [32]

Human rights must be always respected in proceedings as provided in the human rights instruments which are legally binding for the EU Member States, such as the various regulations by the UN, the Council of Europe and the European Union. Moreover, and following the terminology of the EU return policy, a code of good conduct for expulsion procedures was defined as a non-binding instrument by the Council of Europe [33]. While the code only covers expulsions of irregularly residing immigrants, there are other major norms which are applicable to the refusal to enter in the national territory:

The Accession to an asylum procedure is provided by the 1951 Convention relating to the Status of Refugees due to rules of non-refoulement (Art 33). The fair procedure including judicial review and effective remedy is also stipulated by Art 6 of ECHR, 2005/85/EC Directive on minimum standards on procedures in Member States for granting and withdrawing refugee status. Without access to an asylum procedure Art 18 of the Charter of Fundamental Rights would be an empty reference in the field of refugee law.

A justified removal decision shall be based on all relevant available information from various sources (such as NGOs, UNHCR, etc) on the possibilities for the persons facing return to face a real risk of being persecuted (Art 33 of 1951 Convention), or being exposed to torture, inhuman or degrading treatment (Art.3 of ECHR, Art 3(1) of UN Convention against Torture, European Convention Preventing Torture, 1987) either by receiving state or by third states through chain-deportation, extradition or expulsion. The prohibition of removal extends to those situations where a person risks being condemned to death penalty (Protocol No.6 and 13 to the ECHR). Unjustified interference with the returnee’s right to respect for family and private life shall be also ensured (Art.8 of ECHR, Art 9-10 of Convention on the Rights of the Child).

The removal order (not allowed entry or stay) and the return decision (expulsion or readmission obligation) are two separate acts with different legal consequences. Therefore the necessary safeguards need to be in place in order to ensure that they are duly considered. (Art 6-7 of Draft Directive on common standards and procedures in Member States for returning irregularly staying third-country nationals). The prohibition of collective expulsion as stated in Art 4 of Protocol No.4 to the ECHR, Guidelines on Forced Return requires individualisation and respect for substantial and procedural rules (Art 1 of Protocol No.7 to ECHR), including access to reasons and a proper legal remedy.

Deprivation of liberty is legally restricted: detention shall be justified on the base of the exhausted list provided by Art 5 of the ECHR. Those immigrants who are rejected may be only detained to prevent him/her to carry out an unlawful entry into the country. Those persons against whom an action is going to be taken with a view to deportation or extradition also fall within this category. The ECtHR has held that confinement in an airport transit zone must be limited in time and nor be prolonged excessively neither be applicable to those who have not committed offences. As regards the restriction of the freedom of movement Art 2 of the Protocol No.4 to the ECHR and Art. 12(3) of the ICCPR make explicit reference to the public safety and the prevention of crime which are necessary in a democratic society. Asylum seekers’ freedom of movement may be limited to a «designated area» (Art 7(1) of the Directive 2003/9/EC laying down minimum standards for the reception of asylum seekers in Member States). It shall not affect the unalienable sphere of private life, and it needs to be based on public interest, public order, swift processing and effective monitoring of his/her application.

By way of conclusion, the use of the concept of a transit zone is a juridical category that is conceived to have very specific immigration-related consequences in keeping those individuals categorised by the authorities as belonging in such a zone from the full panoply of procedural rights which apply to immigration and asylum. It is our view that ‘transit zones’ must be zone where the respect for human rights and dignity of the person are properly guaranteed without the existence of any unlawful exceptions.

A Typology of «Transit Zones»