Ministers’ Deputies
CM Documents

CM(2009)99 addendum1 10 June 20092
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1063 Meeting, 8 July 2009

6 Social cohesion

6.2 European Committee on Migration (CDMG)
b. Draft terms of reference of the Ad hoc Advisory Group on migrants who suffer injury, violence or trauma whilst crossing borders (MG-S-VT) – Background document

Item to be prepared by the GR-SOC at its meeting of 30 June 2009
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Introduction

1. This document revises an earlier text (document CM(2009)38 corr) prepared by the Secretariat following the exchange of views of GR-SOC at its meeting on 4 May 2009 on the draft terms of reference prepared by the Bureau of CDMG. This revised document takes account of the exchange of views held by CDMG at its 57th meeting on 28-29 May 2009.

2. The document explains the relevance and added value of the proposed activity as well as the rationale for its tasks and proposed structures and working methods. It supplements the information provided orally by the Secretariat during the meeting of GR-SOC on 4 May.

3. Revised draft terms of reference for the proposed activity as approved by CDMG at its meeting on 28-29 May appear in the abridged report of the meeting (document CM(2009)99, Appendix II).

4. It is worth noting that the proposed activity is part of a project (protecting the human rights and dignity of vulnerable migrants – project 1970) that has been the object of lengthy preparation by CDMG in order to ensure compliance with the criteria of the Committee of Ministers for launching new projects (CM(2006)101 final). The 2009 Programme of Activities establishes as a milestone for the year the development of draft advice to member states on providing humanitarian assistance to migrants who suffer injury or trauma whilst crossing borders or at sea.

5. Preparation of this specific activity proposal included the following stages:

- preliminary discussion by the Bureau of CDMG in January 2008 on the basis of a presentation by UNHCR and International Catholic Migration Commission (ICMC);

- a co-ordination meeting with external partners in Geneva (UNHCR, IOM, ICMC, International Federation of Red Cross and Red Crescent Societies) in April 2008;

- examination and approval of a detailed activity proposal by CDMG at its meeting in May 2008 following a process of e-mail consultation;

- inclusion of the activity proposal in the draft project submitted to the Committee of Ministers in the abridged report of the CDMG meeting and taken note of by the Committee of Ministers;

- preparation of the proposals relating to implementation of the activity (structures and working methods) by the Bureau of CDMG at its meetings in October 2008 and January 2009 including consultation by e-mail with the full committee;

- a review of the draft terms of reference by CDMG at its 57th meeting (Strasbourg, 28-29 May 2009) at the request of GR-SOC.

I. Relevance and added value of the activity

    (i) Human rights and impact in member states

6. In preparing this activity proposal, CDMG has been keen to respond to two concerns often expressed by delegations within the Committee of Ministers. Firstly, that its activities should pursue more closely the core values of the Council of Europe; and, secondly, that its activities should have concrete impact in the member states.

7. CDMG considers that the proposed activity is clearly focused on ensuring respect for human rights and that the proposed additional tasks relating to the training of responsible officials (including preparation of a training manual) are a recognised means of assisting member states in applying standards that have been agreed in the form of a Committee of Ministers recommendation.

    (ii) Scope of the proposed activity

8. The draft terms of reference have been revised in order to clarify the scope of the proposed activity.

9. The proposed activity is intended to cover migrants who have suffered injury, violence or mental trauma, whatever the cause, whilst seeking to cross borders of member states by land, sea or air. Examples of the causes of such injuries include road accidents, capsizing at sea, falling off moving trains, asphyxiation in container lorries, exploding land mines, acts of violence inflicted by smugglers, traffickers3 and criminal gangs or even, in some cases, by other migrants. The acts may be simple accidents, carelessness, negligence, or deliberate and/or criminal. By mental trauma is understood trauma caused by acts/events such as (i) serious injury, (ii) physical and sexual violence including death threats, and (iii) loss (death) of or serious injury to family members, other relatives or other migrants travelling in the same group of migrants.

10. Such incidents occur over a wide geographical area within the membership of the Council of Europe on land, within territorial waters and on the high sea. They concern, in particular, migrants who are prepared to put their lives at risk because they lack the necessary visas for either travel or admission. Although the majority of these migrants will be non-nationals of member states, some will be nationals.

11. The group of experts would be invited to prepare guidelines in terms of the appropriate care, support and assistance to be provided to injured or traumatised migrants once they have been rescued. The objective of the guidelines is to ensure that proper decisions can be taken by the appropriate authorities to address the humanitarian needs of affected migrants at this time and/or their admission or return. The guidelines would cover the period of immediate reception, needs assessment and initial recovery. They would be limited to the necessary action to be taken in terms of the injuries, violence or mental trauma suffered by the migrant.

12. The group of experts would also be invited to consider what, if any, measures might be proposed with a view to preventing migrants from taking risks of suffering injury, violence or trauma whilst crossing borders. These might involve pre-departure information campaigns and inter-state co-operation on action against smugglers and people traffickers.

13. The co-ordination of search and rescue operations at sea is excluded from the proposed activity as the principle of rescue is established in international law and practice and organisations such as the International Maritime Organisation are responsible for establishing rules on the relevant technical operations.

14. It is also not intended that the proposed activity should concern itself with the process of deciding the legal status of the migrant once s/he has received the care and assistance required by his or her injuries. Questions relating to status and/or return will be, therefore, excluded.

15. Furthermore, it is not the intention to create another class of migrant. Any instrument that results from the proposed activity would be intended to assist someone from any of the existing classes of migrants who, whatever their situation, suffers injury, violence or mental trauma.

    (iii) Pertinence of Council of Europe action

16. The protection of people arriving in, crossing or leaving member states is a natural concern for the Council of Europe. If these migrants are injured or traumatised, their lives or health should not be put further at risk. This legitimate interest is confirmed by the work of various organs and bodies of the Council of Europe. Some examples are given below.

17. In reply to Recommendation 1767 (2006) of the Parliamentary Assembly, the Committee of Ministers has urged the Committee for the Prevention of Torture and Inhuman or Degrading Treatment (CPT) to remain vigilant to the possible risks which may occur as a result of the rapidly increasing number of irregular migrants arriving at the borders of Council of Europe member states and to adapt its priorities as appropriate.4

18. The particular situation of migrants injured in transit has been raised on several occasions by the Parliamentary Assembly. For example:

- Recommendation 1467 (2000) on clandestine immigration and the fight against traffickers (reference to Chinese migrants found dead in a container in the port of Dover, UK).

- Recommendation 1645 (2004) on access to assistance and protection for asylum-seekers at European seaports and coastal areas (reference to Turkish nationals found dead in a container in the port of Wexford, Ireland, and deaths in the Mediterranean sea).

- Recommendation 1767 (2006) and Resolution 1521 (2006) on the mass arrival of irregular migrants in Europe’s southern shores. The resolution, in particular, calls on member states to support the Mediterranean countries by, inter-alia, providing assistance.5 It also calls on the countries concerned to ensure that adequate assistance is granted to vulnerable persons.6

- Recommendation 1850 (2008) and Resolution 1637 (2008) on Europe’s “boat-people”: mixed migration flows by sea into southern Europe. The recommendation, in particular, states that the Council of Europe has an important role to play in ensuring that the rights of irregular migrants, refugees and asylum seekers arriving on Europe’s southern shores are guaranteed and that their humanitarian needs are met.7

19. The Human Rights Commissioner has also recently drawn attention to the risk of death and injury to migrants in crossing mined areas in the Evros department in Greece.8

20. Moreover, migration flows change overtime, creating challenges for member states at different times. A common set of principles is, therefore, of benefit for member states facing particular challenges today and for other member states who may face the same or similar challenges in the future. One such example, relating to particular challenges faced by some member states in the late 1980s/early 1990s is Recommendation No. R (94) 5 of the Committee of Ministers to member states on guidelines to inspire practices of the member states of the Council of Europe concerning the arrival of asylum-seekers at European airports.

21. Furthermore, there should be shared responsibility for dealing with the humanitarian needs of migrants suffering injury, violence or mental trauma whilst crossing borders. The preparation of common guidelines in this area will translate important principles of solidarity and mutual support on which the intergovernmental co-operation of the Council of Europe is based. Once adopted, member states directly affected by the phenomenon, and without the necessary human and financial resources to adequately meet the challenges that it raises, should legitimately be entitled to expect support from other member states in the implementation of the guidelines.

22. Concerning the provision of assistance to foreigners irrespective of their position under national rules on the status of foreigners, the pertinence of Council of Europe action is confirmed by Recommendation No. R (2000 3 of the Committee of Ministers to member states on the right to the satisfaction of basic material needs of persons in situations of extreme hardship.9

23. The review of European Community Law and Council of Europe instruments on migration and the right to health (referred to during the meeting of GR-SOC on 4 May)10 does not identify any common standard or series of guidelines relevant to the situation of migrants injured whilst crossing borders. In citing recommendations of the Committee of Ministers and Parliamentary Assembly, the review appears to confirm the pertinence of Council of Europe action in this area and establish (through its absence) the need for a new, targeted instrument that might draw upon established principles in related areas in the field of health.

    (iv) Absence of common guidelines and avoidance of duplication

24. There is – to the knowledge of the Secretariat – no common set of guidelines on how member states should ensure respect for the human rights of migrants through action to provide care, support and assistance to migrants who have suffered injury, violence or mental trauma whilst crossing borders. An instrument of the Committee of Ministers, prepared by technical experts, would provide (i) an important collective standard on the appropriate action to be taken, (ii) guidance on how to achieve the standard, and (iii) an incentive to member states to pool their resources in providing mutual support.

25. Moreover, it is hoped that the proposed Committee of Ministers instrument would be adopted by other international organisations working to protect the human rights of vulnerable migrants.

26. The Secretariat has undertaken a brief review of the activities of other international organisations in this area. In its opinion, the review confirms the policy gap identified by CDMG.

International Maritime Organisation

27. The instruments and activities of the International Maritime Organisation (IMO) that are relevant to migrants are essentially concerned with maritime safety, rescue at sea and disembarkation procedures. Their overall objective is to ensure that the rescued person is delivered to a place of safety. They do not relate to land crossings and they do not specify the standards and form of assistance that should be given in a place of safety to migrants who have suffered injury, violence or trauma. In addition to Conventions on Safety of Life at Sea (SOLAS) and Search and Rescue (SAR) and their amendments, see for example.11

- a reporting procedure to keep track of incidents of unsafe practices associated with the trafficking and transport of illegal migrants by sea (Maritime Safety Committee, 2000);

- a circular of the Facilitation Committee establishing principles relating to administrative procedures for disembarking persons rescued at sea (22 January 2009);

- guidelines on the treatment of persons rescued at sea (Maritime Safety Committee);

- a leaflet jointly prepared with UNHCR for ships’ masters and owners, government authorities, insurance copies and other interested parties on guidance to relevant legal provisions and on practical procedures to ensure prompt disembarkation of survivors of rescue operations at sea.

28. Although rescue at sea operations would be excluded from the proposed activity, it may nonetheless be pertinent to include the IMO as an observer so as to harness their expertise and to minimise any risk of duplication.

United Nations

29. State Parties to the Protocol against the Smuggling of Migrants by Land, Sea and Air12 are required to provide appropriate assistance to migrants whose lives or safety are endangered by smugglers.13 However, no specific guidelines are given in the case of such persons suffering injury, violence or trauma.

European Union

30. The proposed EU Commission proposal for a pool of experts to provide a rapid reaction within the proposed European Asylum Support Office (EASO) is concerned about asylum (and harmonising asylum procedures). The proposed common standards for the care of migrant victims of trauma and injury might be a useful tool for them, but it could not duplicate their work.

31. The proposed activity would also not interfere with the work of FRONTEX which is concerned with border control, co-ordination of operational co-operation between EU member states and technical and operational assistance.

UNHCR

32. Concerned about properly identifying refugees within mixed migration flows, UNHCR has developed and is implementing a 10-Point Plan of Action (Refugee protection and mixed migration). So far as reception is concerned, it is limited to registration, provision of temporary documentation, identifying persons in need of international protection under the 1951 Convention relating to the Status of Refugees. The Action Plan was presented to the Executive Committee. It is a guide for field offices in their local co-operation with individual states. UNHCR considers the proposed Council of Europe activity to be complementary and offering an important international framework instrument. Moreover, it would imply recognition that some states suffer a higher burden and could provide a vehicle for channelling international support.

33. A background note to the UN High Commissioner for Refugees’ report in 2007 contains the conclusions to a series of 3 meetings on rescue at sea and refugee protection. These include a small section on reception standards, profiling and referral to differentiated procedures after disembarkation. Again, the focus is on separating mixed migration flows in order to better identify those in need of international protection under the Geneva Convention. On the content of specific care, in the case of victims of trafficking and other vulnerable groups, it says no more than that they will require specific assistance. No reference is made on how to care for injured or victims of trauma. This and the 10 point plan are, therefore, a long way from a normative Council of Europe instrument.

IOM

34. The Secretariat is not aware of any instrument of IOM on the topic of the proposed activity. The publication on Migration and the Right to Health (referred to in paragraph 23) includes a series of general recommendations relating to migrants and health care and formulated by the author in her personal capacity.14 Although partly relating to irregular migrants, they do not touch upon the topic of the proposed activity. Indeed, IOM has confirmed the importance of a set of Council of Europe guidelines in this area for its own work.

35. The complementary nature of the proposed activity has been confirmed through co-operation with external partners in its preparation (see paragraph 5 above). Moreover, their participation and of those other bodies indicated in the draft terms of reference will ensure that the proposed activity remains focused on achieving its specific purpose and ensuring that its outcomes form part of a co-ordinated framework of international protection. UNHCR, ILO, IOM, the UN Office for the Co-ordination of Humanitarian Affairs, ICMC, Churches Commission for Migrants in Europe (CCME) have already confirmed their interest in participating15.

II. Structures, tasks and working methods

    - The ad hoc advisory group, its size, number of meetings and use of a consultant

36. The goals of the activity (as described above) should not be confused with the means for implementing it. The means proposed by CDMG are envisaged by Res(2005)47, namely an ad hoc advisory group. CDMG considers this appropriate as there are not sufficient members within CDMG who have the necessary expertise. Moreover it is an established means of achieving a clearly defined objective.

37. The proposals to limit the number of experts and delete the reference to the possibility of engaging an independent consultant were considered by the Bureau at its meeting in January. Nonetheless, the Bureau considered that 9 experts are necessary to reflect the diversity of expertise within member states on this topic and to ensure an appropriate balance between the different disciplines (border control, asylum determination, medical and mental trauma experts) with an interest in this activity. Moreover, less than 9 experts would be unusual for a group of this type.

38. Furthermore, the proposed numbers would ensure that all interested parties could be represented in the technical work of the group and, thereby, ensure that all views and perspectives are fully taken into account. The possibility exists (subject to an invitation from the member states concerned) of holding expert group meetings in areas particularly affected by this phenomenon so as to hear the views of those working in the field.

39. On the number of meetings, the working methods have been considered in detail by CDMG and its Bureau. Four meetings are considered as necessary to produce the draft recommendation and explanatory report – this being a total of 8 days excluding possible additional days for hearings.

40. On the question of the independent consultant, the proposal is to only have recourse to such a person in order to prepare the training manual and lead the training sessions (if any). These are specific tasks which professionals working on policy or in the field rarely possess. In such cases, and as a general position, the Bureau considers that a consultant should be engaged in order to ensure the appropriate quality. In the case of the proposed activity, experts having the knowledge and skills required to prepare the draft recommendation are unlikely to be qualified trainers or have the time to write complex documents. Nonetheless, should GR-SOC still consider it inappropriate to engage a consultant, the revised terms of reference include a proposal that one of the experts of the group should have a training background.

    - Tasks

41. The proposal of one delegation to limit the tasks to the preparation of the draft recommendation was considered by the Bureau at its meeting in January. It, however, maintained its view that the additional tasks of preparing a training manual and organising (on request) training sessions for professionals working in the field would contribute to the practical impact of the recommendation should it be adopted by the Committee of Ministers.

42. Indeed, the need for training is clearly identified in the Report of the Parliamentary Assembly on Europe’s “boat-people”:16

The need for fully qualified staff is particularly important bearing in mind that many of the persons arriving on the boats are traumatised from their journeys, their experiences in their home countries or their experiences in countries of transit (…). Many have faced exploitation and violence, including sexual violence, and are in need of special assistance (para. 110).

43. Removing these additional tasks from the terms of reference would not prevent them being undertaken at a later stage. However, the break-up of the group, once the preparation of the draft recommendation has been completed, might result in a loss of expertise and involve additional efforts to reconstitute it.

Note 1 This document replaces the text set out in document CM(2009)38 corr.
Note 2 This document has been classified restricted at the date of issue; it will be declassified in accordance with Resolution Res(2001)6 on access to Council of Europe documents.
Note 3 The Council of Europe Convention on Action against Trafficking in Human Beings does include provisions on assistance to the victims of trafficking (article 12).
Note 4 Paragraph 8, document CM/AS(2007)Rec1767 final.
Note 5 Paragraph 7.
Note 6 Paragraph 9.6.
Note 7 Paragraph 2.
Note 8 Report of the Commissioner on Greece (8-10 December 2008).
Note 9 Paragraph 4 to the Appendix.
Note 10 International Migration Law N°12, compiled and edited by Paola Pace, IOM 2007.
Note 11 Information on IMO has been taken from its website on 4 May.
Note 12 Supplement to the UN Convention against Transnational Organized Crime.
Note 13 Article 16.
Note 14 pp 39-41.
Note 15 Relevant contact points in the Commission have been provided by the EC Ambassador. The participation of the Red Cross is assumed.
Note 16 Europe’s “boat-people”: mixed migration flows by sea into southern Europe, Document 11688 (11 July 2008).


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