A/HRC/23/46
be at the disposal of member States in order to secure borders and prevent arrivals, rather
than a genuine life-saving tool.
45.
Moreover, even when certain safeguards with regard to human rights at the border
appear to be guaranteed in principle, the concern in relation to implementation remains,
especially with regard to specific needs of vulnerable migrants and asylum seekers. For
example, while the Stockholm Programme provides that the activities of Frontex and of the
European Asylum Support Office (EASO) should be coordinated when it comes to the
reception of migrants at the Union’s external borders, the Special Rapporteur notes that this
is presently not the case. In Greece – while Frontex screens migrants at the border, in order
to establish their nationality to facilitate their expulsion, EASO is not present , and the
European Union does not assist member States with the screening of migrants at the border
in order to identify protection needs. Similarly, in Italy, Frontex guest officers were
permitted to interview migrant detainees in detention centres, without any supervision. The
recent working arrangement between Frontex and EASO allows for the possibility of
establishing common or mixed teams of border managemen t and asylum experts. This
could be further explored as a way to mainstream effective and timely identification of
persons with international protection needs in Frontex operations, provided that such mixed
teams are subject to effective human rights monitoring and involve UNHCR.
46.
Furthermore, as the Mediterranean is a busy sea, private vessels could potentially
provide invaluable assistance to migrants in distress at sea. Border guards mentioned to the
Special Rapporteur that boats in distress are often sighted by private vessels prior to getting
into danger. However, the criminalization of migration has contributed to the reluctance of
private vessels in assisting migrants in distress. In particular, known difficulties in
disembarking migrants, the high costs associated with such intervention, and the lack of
cooperation by States with private entities seeking to provide such humanitarian assistance,
as well as the potential repercussions for private individuals, has resulted in the reluct ance
of private vessels to take responsibility for boats in distress, thus compounding the risk of
death at sea.
4.
Detention as a tool in border control
47.
At the outset, the Special Rapporteur recalls his doubt that detention is ever an
effective deterrent for irregular migration, and that in order not to violate international
human rights law, detention must be must be prescribed by law and necessary, reasonable
and proportional to the objectives to be achieved.14 However, in the context of his country
visits and his research, the Special Rapporteur has observed that, within the discourse of
securitization of migration and border control, the systematic detention of irregular
migrants has come to be viewed as a legitimate tool in the context of European Union
migration management, despite the lack of any evidence that detention serves as a deterrent.
Indeed, a notable increase in the use of immigration detention as a tool for European Union
border control over the past 10 years corresponds to the development of European Union
migration law in this area. In some senses, the harmonization of European Union law, and
in particular the passing of the Return Directive, can be said to have institutionalized
detention within the European Union as a viable tool in migration management.
48.
It should of course be noted that, in fact, the Return Directive stipulates that
detention should be a measure of last resort. Yet, in practice, few viable alternatives to
detention appear to be explored by the European Union institutionally and by European
Union member States individually. In the countries visited the Special Rapporteur
14
12
Report of the Special Rapporteur on the human rights of migrants, A/HRC/20/24.