Guest post by Annapaola Ammirati, Lucia Gennari and Adelaide Massimi. Annapaola is a specialist in immigration law. She has worked on surveys and monitoring projects regarding the implementation of European policies and laws on migration. She currently works with In Limine, a project led by the Association for Juridical Studies on Migration (ASGI). Lucia is a lawyer and activist based in Rome. She is part of the legal firm ‘Antartide’, which specializes in migration and asylum law. She is a member of the Association for Juridical Studies on Migration (ASGI). Adelaide is a specialist in migration law and politics. She has worked on surveys and research on migration policies. She currently works with the In Limine project (ASGI). This is the third instalment of the themed week on assessing border control practices in Italy. 

This post draws on a monitoring project carried out by ASGI in border areas of Sicily, as part of the In Limine project. The aim is to critically analyse the legal and political implications of ‘redistribution’ mechanisms concerning migrants who have disembarked in Italy after search and rescue (SAR) operations; retribution practices within the hotspot approach; and selection procedures and the use of detention in border areas.

The ‘hotspot system’ has only recently, and partially, been regulated by law in Italy (Art. 17, Law n. 46/2017). The lack of a legal framework has led to the proliferation of different practices and procedures in different hotspot facilities and over time. The hotspots have taken on different functions in response to priorities of migration containment policies. For example, the case of the hotspot of Taranto, which has been used since 2016 for the forced transfer and identification of people trying to cross the border between France and Italy. Seen as ‘flexible’ devices able to respond quickly to the ‘pressure’ of migratory flows at EU external borders, hotspots have currently become an indispensable tool to guarantee the effectiveness of the agreements for the ‘redistribution’ of people rescued in the Mediterranean, partly through the limitation of personal freedom. The agreements were designed to relocate foreign nationals disembarked after sea rescue to different member states, and have been used since July 2018 as an exception to the Dublin regulation to manage the arrival of foreign nationals in Italy and Malta in response to the ‘closed ports’ policy adopted by the former Italian government. 

These agreements are the result of long negotiations between European member states, coordinated by the European Commission, to address the refusal of states such as Italy and Malta to allow the disembarkation of people rescued at sea by civilian and sometimes even military vessels. As has been documented, this has led to shipwrecked persons remaining on board rescue ships for many days in violation of international laws, which, in turn, feeds the criminalisation against NGOs carrying out these operations. According to statements by representatives of the Italian and Maltese governments, this refusal aims to encourage other member states and European institutions to share responsibility for the management of migration within the European space. The procedures, which followed previous ‘disembarkation agreements’, were initiated by states on a voluntary basis and through negotiations which, as far as it is known, were mostly informal and ad hoc, raising concerns about the respect of individual rights of the people affected by relocation procedures. In fact, asylum seekers subject to these procedures do not have any right to decide if they want to be transferred to other member states, nor can they decide on the country of destination. The voluntary basis of the mechanism is confirmed by the Council's working paper published on the 12th June and by the recent Malta agreement of the 23rd September.

Abandoned boats at Lampedusa.

The case of Sea-Watch 3 and the redistribution procedures implemented in the hotspot of Messina in February 2019

Once disembarked in Catania on 31 January 2019, the 32 adults on board the Sea-Watch 3 were taken to the Messina hotspot, where they were informally detained for two days. During this time, they were unable to communicate with the outside world or meet the lawyer they had been appointed on board the ship.

Since then, procedures for redistribution have been initiated in France, Germany, Lithuania, Romania, Portugal and Luxembourg, with no clear criteria for the selection and without allowing the foreign nationals involved the opportunity to seek asylum in Italy.

EASO carried out a first interview aimed at ‘matching’ foreign citizens with member states, based on the languages spoken by the individuals and the presence of family members in other member states. Despite the involvement of this agency and the European Commission, once EASO had drafted the relocation list, each country organised the procedures autonomously, deciding if, how and when to conduct interviews with the foreign nationals who EASO assigned to them. The questions asked during the interviews by the French delegation concerned both the reasons for migration and persecution suffered in the country of origin and information concerning religious beliefs and culture. Questions were asked about the use of the veil, respect for the pillars of Islam, the number of daily prayers, the practice of female genital mutilation, in what appeared an assessment of 'cultural compatibility'. Some countries, such as Romania, on the other hand, did not arrange interviews and hosted those who had not already been ‘selected’ by other countries.

Once the ‘matching’ between applicants and member states was concluded, asylum seekers formalised their asylum application and the transfer was ordered by a measure of the Italian Dublin Unit issued under Art. 17 § 1 of the Dublin Regulation (sovereignty clause). According to this rule, each member state may decide to examine an asylum application even when it would not be entitled to do so according to the criteria set out in the Regulation. The taking over of the request does not follow a request by the applicant or the responsible State. The need for the consent of the individual to the transfer is not expressly provided for, which is a variance from the humanitarian clause. However, in the cases in question, asylum seekers signed a general declaration of consent before leaving Italy.

Abandoned boats at Lampedusa.

The main issues of current disembarkation/redistribution mechanisms

The agreement reached in Malta on the 23rd Semptember is meant to create a ‘more predictable’ system of shared responsibility, in order to avoid the need to negotiate specific agreements for each rescue operation. The text, shared between Germany, France, Italy and Malta, reaffirms the voluntary nature of relocation procedures. It includes a central role for the Commission and EU agencies (EASO and Frontex). The text allows for the paradoxical practice of disembarking rescued people in the territory of the flag state and establishes that the juridical basis of the transfers will be found in art. 17 § 2 (humanitarian clause). Moreover, it underlines the need to have standard operating procedures (SOPs) for the relocation process, which wouldn't actually solve the problem of the lack of guarantees concerning the respect of individual rights of foreign people involved. Indeed, thehe mechanism that seems to emerge from the procedures observed so far following the Joint Declaration involving Malta and from the guidelines published by the Council of the European Union in June 2019, contains a number of risks.

First of all, this mechanism seems to be closely linked to the use of hotspots as a system of detention for the ‘selection’ and classification of foreign nationals. It should be noted that, in previous cases, detention in Italian hotspots and Maltese centres took place outside the scope of any legislative provision. In Italy, detention can only be carried out in compliance with certain guarantees that have not been respected in the cases mentioned above, where persons have been de facto detained for days.

Secondly, the procedures for the ‘relocation’ of persons disembarked in Italy and Malta, which depend on the voluntariness of Member States, replace the procedures - albeit controversial - provided for in the Dublin Regulation. As a result, we are witnessing a paradigm shift in how migration is governed: from the level of rights - in which the possibility of defense for people involved is, at least formally, guaranteed - to an approach characterised by informality, ‘willingness’ instead of obligations, and access to ‘programs’ instead of rights.

Indeed, the absence of a legal basis for such agreements and the lack of transparency with regard to the procedures and criteria followed leads to the absence of effective remedies for the persons involved.

Finally, in these situations there is a double form of selection of foreign nationals in hotspots: on the one hand, persons are classified as asylum seekers or ‘economic migrants’; on the other hand, the matching procedures carried out by EASO and the selection procedures carried out by the delegations of member states aim at the selection of the ‘profiles’ which, for cultural, linguistic or working reasons, most closely meet the requests of different states, out of the European legal framework. It would appear that these are forms of access and inclusion that comply with non-formalised criteria that meet the cultural and economic needs of ‘willing’ member states. In these matching and selection processes, foreign citizens have no bargaining power, with the exception of the possibility - more formal than substantial - of not giving consent to the transfer. In turn, the working paper prepared on 12 June by the Council of the European Union asks EASO to develop objective matching criteria while simultaneously leaving member states free to define the profiles of the people they are willing to accept.

We believe that the efforts made by member states and European institutions to create new redistribution mechanisms directly connected to disembarkation may result in systems that are insufficiently formalised and burdened with the above critical issues, allowing a further slowdown in the process of reforming the Dublin Regulation and leading to the violation of the rights of persons rescued at sea, before and after their disembarkation.

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How to cite this blog post (Harvard style) 

Ammirati, A., Gennari, L. and Massimi, A. (2020). Forced Mobility and the Hotspot Approach: The Case of the Informal Disembarkation Agreements. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2020/02/forced-mobility (Accessed [date])