“I am outraged by the recent tragedy at sea with more than 500 people feared missing, including many children,” says FRA Director Michael O’Flaherty. “The EU and its Member States need to deliver on their primary obligation to protect and save lives at sea. In rising to the immediate and longer-term migration challenges, Europe can offer hope away from home while respecting refugee law and the right to life.”
European law provides many safeguards for the protection of migrants’ fundamental rights at borders, but these need to be better known, explained and applied.
FRA and the Council of Europe have issued various materials to support practitioners in applying these safeguards at borders and when carrying out investigations. Now, FRA is working on a joint note with the Council of Europe on the protection of migrant children, including at borders.
But problems persist in law, policy, practice and attitude when it comes to respecting and protecting the human and fundamental rights of all migrants and refugees, as FRA’s Director highlighted earlier this year in his speech ‘People on the move; their rights – our future’.
These include respect for international obligations to save lives; access to asylum across the EU; legal pathways to those in need of protection; and fundamental rights violations at borders.
National human rights institutions, civil society and international organisations all continue to report recurrent and systematic fundamental rights violations at the EU’s external borders. Monitoring of such violations must thus be strengthened. It should follow FRA's general guidance on how to set up national independent mechanisms to monitor fundamental rights compliance at the EU’s external borders.
This recent tragedy reminds us of the urgency for taking concrete measures. Joining the UN Secretary-General’s call for a prompt and in-depth investigation of the incident, FRA also calls for the following three broader actions:
First, save lives at sea through more effective protocols for search and rescue (SAR)
The right to life is one of the most fundamental of human rights. In the maritime context, it has been codified by the duty to render assistance to persons in distress at sea and by search and rescue obligations.
Government and private vessels have a duty to assist people and crafts in distress at sea. Commercial vessels, like fishing boats, should also be supported for helping to save lives. National pilot schemes could be set up to explore how this could work in practice.
Search and rescue at sea needs to be more effective to prevent tragedies as the most recent one.
This can be done by improving the protocols for SAR which, in their current practice, provide a too strict interpretation of what constitutes a situation of distress, as FRA already highlighted in 2013 examining the conditions at Europe’s southern sea borders.
Second, protect shipwreck survivors and recognise them as victims
The protection of shipwreck survivors should be better anchored in EU asylum and migration law.
Shipwreck survivors have specific needs. In most cases, they are victims of crime and are as such entitled to victims’ protection rights. And, of course, there are psychosocial and medical needs that must be responded to.
Greek law explicitly lists shipwreck survivors as one of the categories of people with specific needs that require particular attention.
Under EU asylum law, the open-ended list of vulnerable categories of people does not explicitly refer to them. This may result in giving them less priority. Consideration could be given to explicitly mentioning shipwreck survivors as a special category of people who need targeted support also in EU law.
This would be particularly important as discussions about stricter border procedures for asylum applicants are under way.
There is a protection imperative to treat shipwreck survivors with human dignity, providing the necessary care, including psychosocial care, and allowing for the identification of deceased family members. Future EU border procedures need to take this into account.
Third, offer accessible legal pathways for those in need of protection
There is a need to offer genuine access to asylum across the EU and accessible legal pathways for those in need of protection to avoid people having to resort to smugglers.
“Fulfilling the commitment to expanding and diversifying pathways for safe, orderly and regular migration is critical for preventing and addressing vulnerabilities throughout the migration journey,” as the UN Secretary-General, António Guterrez, underlines.
Moreover, this would render the right to asylum – protected by Article 18 of the EU Charter of Fundamental Rights – a reality for refugees and other persons in need of protection who are staying in a third country, and who often face risks to their safety.
In this endeavour, EU countries can draw inspiration from such good practices as the Humanitarian Corridors initiative. This is a safe and legal programme of transfer and integration in Europe of vulnerable people, such as children, older persons and people with disabilities fleeing the war in Syria, and conflicts in Lebanon, Sudan, Eritrea and Somalia.
Confronted by the scale of the challenges and its impact on human wellbeing, these proposals need to be accompanied by a sustained investment in policies that are globally engaged.
Ultimately, a better and more coherent EU-wide approach to migration will save lives and unlock the potential that migration can undoubtedly bring to Europe and its economy.
