Navigating the Human Rights Trajectory of the EU Migration and Asylum Pact in Search and Rescue Operations (Part Two)

[Patricia Vella de Fremeaux is Professor and Head of the International Law Department of the Faculty of Laws, University of Malta. Dr Felicity G. Attard is a lecturer in the Department of International Law at the University of Malta.]

In Part One, an overview of the Pact was examined in order to set the context for the following discussion on maritime search and rescue aspects contained in the instrument as well as an analysis of the human rights considerations.

While the duties of SAR remain firmly within the Member State’s competence, bound by international law, the Pact aims to promote a more coordinated approach to SAR issues being based on principles of solidarity and fair sharing of responsibility. At the outset, it is to be noted that the definition of SAR in the various instruments making up the Pact reflects that found in the 1979 International Convention on Maritime Search and Rescue (e.g. Screening Regulation, Article 2(15), AMMR Article 2(23)).

Maritime SAR aspects within the context of the EU Pact are addressed in several instruments, reflecting the importance of this issue in managing migration via sea routes. The particular situations caused by regular disembarkations following SAR operations are specifically catered for in the EU Pact. A crucial instrument relating to SAR is the Regulation addressing situations of crisis and force majeurein the field of migration and asylum outlined above. There are however other instruments forming an integral part of the Pact which recognise the particular nature of such arrivals by sea following a SAR operation.

The AMMR aims to ensure that the processes related to the disembarkation of rescuees are clearly defined, thus integrating SAR considerations into broader migration management. It aims to balance the responsibilities among EU Member States and streamline the procedures for handling such cases. The AMMR recognises that an irregular entry following a disembarkation is different from other irregular entries (Article 33(1) and (2)). A similar recognition is noted in Chapter VI of the Eurodac Regulation which specifically deals with individuals disembarked following a SAR operation. The AMMR makes clear that Member States facing “recurring disembarkations” (AMMR, Preamble para 25 and Article 9(3)(xiii)) following SAR operations could benefit from derogations and solidarity measures due to the facing of migratory pressure.

It should be recalled that Article 11(3) of the AMMR states that “where during the past 12 months a Member State has faced large number of arrivals due to recurring disembarkations following search and rescue operations, the Commission shall consider that Member State to be under migratory pressure provided those arrivals are of such a scale that they create disproportionate obligations on even the well-prepared asylum, reception and migration system of the Member State concerned”. In such cases, these Member States under migratory pressure are entitled to a share of the Annual Solidarity Pool as established by the Commission (Articles 12(5) and 57(2)).

Linked to the EU Pact, the Recommendation (EU) 2020/1365 of 23 September 2020 on cooperation among Member States concerning operations carried out by vessels owned or operated by private entities for the purpose of search and rescue activities acknowledges the role of vessels owned or operated by private entities which has become a regular feature in SAR scenarios of the past years (Preamble, para 8), together with the crime of migrant smuggling by sea which exacerbates the already dire situation of loss of life at sea (Preamble, para 9). Following on from acknowledgment that:

Search and rescue operations in emergency situations require coordination and rapid disembarkation in a place of safety, and respect for the fundamental rights of rescued people, in conformity with the EU Charter of Fundamental Rights obligations, including the principle of non-refoulement, and with customary and conventional international human rights and maritime law, including the International Maritime Organisation (IMO) Maritime Safety Committee (MSC) Guidelines on the treatment of persons rescued at sea (Preamble, para 7).

The Recommendation urges cooperation amongst Member States in relation to SAR operations carried out by NGO vessels in order to reduce fatalities at sea, protect the safety of maritime navigation and aim for effective migration management (para 1). It is interesting to note that the flag and coastal State are expressly mentioned. While the coastal State clearly refers to the SAR State, the reference to the flag State is not commonly found in the legal regulation of places of safety for disembarkation. It is submitted however that it may signal a potential development in introducing flag State responsibility in such SAR/disembarkation scenarios. Close cooperation between the Member States and the Commission is encouraged, especially through its European Contact Group on Search and Rescue which was relaunched in 2023 (para 2), with Member States being exhorted to furnish the Commission with any relevant information regarding the implementation of this instrument annually (para 3).

The Commission is also providing Guidance on the effective implementation of EU rules on definition and prevention of the facilitation of unauthorised entry, transit and residence. The Guidance states that Article 1 of the Facilitation Directive must be interpreted in a manner in which humanitarian assistance which is a legal obligation “cannot and must not be criminalised” (Article 4(i)). Furthermore, the criminalisation of any NGOs or non-State actors carrying out maritime SAR operations amounts to a breach of an international obligation and is not permitted under EU law (Article 4(ii)).

Evaluating the Human Element

At the centre of any activity regulating migration is the human element providing for the safeguarding of human rights and principles of protection, including non-refoulement. These should be the guiding principles in the management of migration and asylum within the Union. This appears to be what President von der Leyen had envisaged in the State of the Union Address in 2020 launching the New Pact on Migration and Asylum: 

We will take a human and humane approach. Saving lives at sea is not optional. And those countries who fulfil their legal and moral duties or are more exposed than others, must be able to rely on the solidarity of our whole European Union… Everybody has to step up here and take responsibility.

Four years later, the EU Pact purports to have put into motion a procedure which provides both for efficient and effective migration management and full respect for asylum and individual rights.

With regard to the advocated “human and humane approach”, a number of instruments acknowledge such need, especially in so far as rescue at sea is concerned. Further to ensuring a dignified treatment of all asylum seekers, the Reception Conditions Directive seeks to improve the reception conditions aiming for a uniform approach. Furthermore, the Screening Regulation acknowledges the particularity of arrivals of individuals via disembarkation in the territory of a Member State (Article 1(a) and Article 8(3)) and provides for their screening at the external borders. Paragraph 2 of the Preamble to the Regulation provides that:

The rules governing border control of persons crossing the external borders of the Member States of the Union must be accompanied by additional measures which should address situations where third-country nationals are inter alia disembarked following search and rescue operations, .. It is essential to ensure that, in those situations, third-country nationals are screened, in order to facilitate a proper identification and to allow for them to be referred efficiently to the appropriate procedures…

The Screening Regulation recognizes the particular needs of vulnerable persons and attempts to treat all individuals with dignity, thus aligning with the EU’s commitment to a humane approach (Preamble, para 7 and Article 12). The inclusion of health and security assessments at the border helps in identifying and addressing any immediate risks, ensuring that the entry process is safe and orderly for both arrivals and State security interests.

The integrated border procedure aims to streamline and accelerate the asylum decision process, in order to reduce duration and consequent uncertainty for asylum seekers. However, while this is beneficial for their physical and mental well-being, there is a risk that rights might be violated during the fast tracked asylum procedures, with potential substandard procedures becoming the norm. A concern relates to short time frames for interviews, limited access to legal advice if any, and superficial assessments of vulnerability. Furthermore, individuals who travelled through “safe countries” prior to arrival in Europe face having their claim refused without adequate assessment, with the risk of return to countries where they face persecution. Beyond this, the possibility of different implementation across the Member States is a near certain reality.

Furthermore, where a Member State considers itself to be in a situation of crisis or force majeure, that Member State should be able to request authorisation to apply the derogations and solidarity measures provided for in the Crisis and Force Majeure Regulation (Chapter IV). Similarly, such temporary measures could be applied in the case of instrumentalization (Article 1). This permission for derogation from ordinary rules may have the effect of leading to a fragmented application of the responsibility sharing mechanism set up under the Pact and there is a concern that such measures may also lead to a reduction of human rights protection.

The main concern is that the border procedures envisage the detention of asylum seekers including vulnerable groups such as children and families, which raises significant human rights concerns. Detention, defined as “the confinement of a person by a Member State within a particular place, where such person is deprived of freedom of movement” (inter alia Screening Regulation, Article 2(12)) features in a number of instruments making up the EU Pact (AMMR, Articles 44 and 45, Screening Regulation, Article 8(7), Reception Conditions Directive, Article 8, Return Border Procedure Regulation, Article 5). Notwithstanding that detention must be used as means of last resort (Screening Regulation, Preamble, para 11) and that safeguards are put into place to ensure compliance with international and EU law, it remains a concern as to how commonplace detention will become in the new border procedure.

Another feature mentioned in von der Leyen’s quote is the duty of “saving lives at sea”. The commitment to SAR operations voiced in the 2020 quotation outlined above is a constant feature in the various instruments making up the EU Pact as was discussed in the previous section. These instruments emphasize the paramount importance of protecting life at sea.

Finally, the solidarity mechanism envisaged in 2020 seems to have progressed beyond the empty promises of solidarity present in previous attempts at cooperation and fair sharing of responsibility. The solidarity mechanism introduced by the AMMR aims to allow a fair distribution of responsibilities amongst Member States, especially in the case of those facing disproportionate pressure due large numbers of arrivals. It is augured that the aim of offsetting this imbalance will reduce State pushbacks and State failure to rescue at sea.

Supplementary initiatives are also aimed at addressing migration holistically. On the 15 November 2023, the EU Commission published its Skills and Mobility Package including within it a proposal for a regulation establishing an EU Talent Pool. The EU Talent Pool is designed to facilitate international recruitment and match the skills of migrants with labor market needs across the EU. This platform helps attract talent from outside the EU and supports their integration into local communities. The Pact provides added support for resettlement and humanitarian admission programs, encouraging Member States to pledge more places for resettlement. It also provides for complementary pathways to protection, featuring community sponsorship programs and humanitarian corridors. These legal pathways provide additional options for individuals in need of protection to reach safety in the EU, thus reducing the need to resort to criminal organisations. Linked to this are the legal migration channels called to be developed in cooperation with third countries as a pivotal element to effectively manage migration. The aim of addressing root causes of migration, ameliorating the situation in source countries and improving migration management generally is a promising proposal which could do much to reduce the need to migrate thus addressing the cause as opposed to fighting the symptoms.

Concluding Comments

President von der Leyen’s quote emphasizes a human and humane approach, saving lives at sea, solidarity, and responsibility sharing. The EU Pact incorporates many elements that reflect these principles. The integrated border procedure in the EU Pact aims to create a more efficient and streamlined process for managing asylum applications at the borders. However, certain aspects of the Pact raise concerns about the protection of migrant rights in implementing these procedures and thus may not fully align with the humane approach advocated by von der Leyen in 2020. Ultimately, the Pact represents a progressive development of the law in this area, in that it takes significant steps towards addressing migration through cooperation and development. Nevertheless, a number of challenges associated with these strategies will require the need for continuous monitoring and evaluation to ensure they respect the principles of human rights and effective migration management.