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    10 October 2015

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See Statewatch Observatory: EU refugee crisis - a humanitarian emergency: For daily news and document updates

EU SUMMIT: European Council meeting 15-16 October 2015: European Council (15-16 October 2015) - Draft conclusions (pdf): "achieve concrete operational measures at the forthcoming Valletta Summit with African Heads of State or Government, focusing, in a fair and balanced manner, on effective return and readmission, dismantling of criminal networks and preventing illegal migration... See: Possible elements for the Outcome Document for Valletta - annotated version (LIMITE doc no 11534-15, pdf)

EU: Council of the European Union: Justice and Home Affairs Council, 8-9 October 2015: Final Press release: 8-9 October 2015 (pdf) including:

The future management of the EU external borders
The future of the return policy
Visa policy

Refugee crisis: latest news from across Europe (25 stories and documents, 9.10.15)

France says protect free movement with mass fingerprinting, face scans and entry-exit logs

France has proposed extending the EU's proposed "smart borders" systems from non-EU nationals to all EU nationals and residents as well, a move which would require fingerprinting, face scans, systematic database searches and entry and exit logging for everyone entering the EU. The smart borders proposals are one of many items on the agenda of the JHA Council meeting yesterday (8 October).

EU-USA "UMBRELLA" DATA PROTECTION AGREEMENT: European Parliament Study: A comparison between US and EU data protection legislation for law enforcement purposes (pdf)

"The proposed Judicial Redress Act will not solve the structural imbalance between the protection of US and non-US persons. The Draft Act has a limited scope, referring only to “covered records”.... Therefore, the Judicial Redress Act does not necessarily guarantee equal rights to EU and US persons....

A further indispensable point concerns the still ongoing collection of foreign intelligence in the framework of Section 702 of the FISA Amendment Act and Executive Order 12333. The FREEDOM Act did not bring about any major changes regarding these instruments with regards to the protection of EU citizens. A future instrument regulating data exchange should address these two issues, as serious questions on their compatibility with EU fundamental rights arise (see recent opinion of Advocate General Bot in the Schrems case)."

This is the first study carried out by the EP: The US legal system on data protection in the field of law enforcement. Safeguards, rights and remedies for EU citizens (pdf)

And see: European Ruling is Merely a Symbolic Victory for Privacy (NYT Editorial, link): "The Court of Justice is right to question whether the personal information of Europeans is being protected adequately in the United States. But mass surveillance by European governments is just as intrusive of privacy, and requiring data storage in Europe offers little comfort." Also Commission advice on Transfers Abroad: Currently there are other ways of tranferring data to a third states - by-passing the adequacy rule (link), though these may not hold when the judgments of the CJEU are taken into account.

Refugee crisis: latest news from across Europe (20 stories and documents, 8.10.15)

EU: Council of the European Union: Justice and Home Affairs Council, 8-9 October 2015: "B" Points agenda (for discussion, including some non-legislative items), "A" Points - legislative (adopted without discussion, pdf) and "A" Points -non-legislative (adopted without discussion, pdf) and see: Background Note (9 pages, pdf)

Agreed: Council conclusions on the future of the return policy (pdf)

See: Director of IOM: Swing Asks EU to Respect Rights of Vulnerable Migrants Arriving on its Shores (to be delivered later today at a high level EU conference in Luxembourg on refugees and migration flows through the Eastern Mediterranean and Western Balkans, link)

and Migrant crisis: EU considers faster deportations (BBC News, link) also: EU to step up deportation of economic migrants (euractiv, link): "European Union governments are set to agree today (8 October) to accelerate the repatriation of illegal immigrants among the hundreds of thousands who have failed to win asylum, as they try to cope with a surge in refugees from war-torn Syria. Diplomats say interior ministers meeting in Luxembourg should agree, among other things, to back the detention of those who may abscond before expulsion and exert more pressure on African and other poor states, including via aid budgets, to make them accept the return of citizens refused entry to Europe."

Greece’s Tsipras in Lesvos: Hiding the refugee crisis under the carpet (link): Greek Prime Minister Alexis Tsipras visited Lesvos on Tuesday, Oct. 6, accompanied by Austrian chancellor Werner Feymann, to ostensibly appraise the refugee crisis on the islands firsthand, but what they saw there did not correspond to the everyday reality. Journalist Sofia Christoforidou was at the Mytilene harbor and tweeted updates on the preparations there while waiting for the PM’s visit....

“Tsipras and Faymann came from the back entrance, saw few refugees, everything in order at port, and they departed.”... Boat arrivals in Lesvos’ northern beaches, which usually number in the dozens daily, practically stopped for the duration of the two leaders’ visit.... Hours after Tsipras’ visit, the boats came back, and the arrivals of refugees continued."

EU: Secret trilogue law-making: Giegold: I've no problem with livestreaming secret talks on EU law (euractiv, link):

"The lead MEP on a European Parliament transparency report has said that he was lobbied “all the time” during secret negotiations over EU law, and had better access to classified documents just because he is German. Sven Giegold exclusively told EurActiv he wouldn’t care if “trialogue” discussions were livestreamed and branded a European Commission push for better regulation an attack on parliamentary democracy.

I think that there is a problem of transparency and accountability, and that has to be changed. There’s also a problem of integrity. There’s a problem with transparency because there’s no minutes, because it is not clear when they take place, it is not clear who has participated.

There is also a lack of accountability, because it is not transparent about who has defended which position in the negotiations. Lastly, there is a problem with integrity. The documents that are meant to be secret are not secret. I’ve seen it very often that lobbyists have documents given to them through sources in the Parliament, or more often through the Council."

Refugee crisis: latest news from across Europe (39 stories and documents, 6-7.10.15)

EU-Africa: The 'Khartoum Process': beefing up borders in east Africa

The 'Khartoum Process' is intended to limit the number of people travelling to Europe via the "Horn of Africa migration route" and involves east African states, EU Member States, the European Commission and the African Union. Formally known as the 'EU-Horn of Africa Migration Route Initiative', it has been criticised by the human rights organisation AEDH as attempting "to arrange the material conditions to avoid that they [migrants and refugees] come to Europe, especially by establishing asylum processing centres" within African countries. The 'Process' foresees, amongst other things, the enhancement of law enforcement powers and border controls in east African states.

Secret EU plan to throw out thousands of migrants (The Times, link): " Hundreds of thousands of failed asylum seekers will be deported from Europe within weeks under secret plans leaked to The Times. Brussels will threaten to withdraw aid, trade deals and visa arrangements if countries such as Niger and Eritrea refuse to take back their economic migrants. The proposals also envisage EU states detaining thousands of migrants to prevent them from absconding to avoid deportation..... Tony Bunyan, the director of Statewatch, an EU civil liberties watchdog, said: “Refugees, who have fled from war, persecution and poverty, do not want to return to the country they have come from. The returns policy proposed is not going to work,” he said. “It cannot be seriously expected that Turkey would accept the return of hundreds of thousands of refugees.”

See: Council of the European Union: Draft Council conclusions on the future of the EU return policy (LIMITE doc no: 12420-15, pdf) for adoption at the Justice and Home Affairs Council on 8-9 July 2015

and EU ministers to fast-track migrant deportation (euobserver, link): "EU ministers are coming up with plans on how to best to use the deportation of failed asylum seekers as a deterrent for others. A leaked paper from the Council, representing EU member states, says some €800 million will be set aside on larger efforts to remove people without the proper paper work from the EU back to their home countries.... "The idea that returns can be fast-tracked through issuing EU laissez-passer to return refugees to third countries is reminiscent of the apartheid pass laws", said Statewatch director Tony Bunyan."


- Data deal with US must be immediately suspended and replaced by new, solid framework for data transfers, says Civil Liberties Committee Chair Claude Moraes (pdf): "The European Commission must immediately suspend the 'Safe Harbour' framework with the US and initiate a new, secure data protection framework that will guarantee the rights and privacy of European citizens, says the Chair of the European Parliament Civil Liberties Committee, Claude Moraes, following today's ruling of the European Court of Justice in the case regarding Facebook's transfer of EU citizens data to the US."

- Issued by the Article 29 Data Protection Working Party: The Court of Justice of the European Union invalidates the EU Commission Safe Harbor Decision (pdf): "The Working Party welcomes the fact that the Court’s decision reaffirms that data protection rights are an inherent part of the EU fundamental rights regime... For several years, the Working Party has been studying the impact of mass surveillance on international transfers and has on several occasions presented its concerns.

Today’s Court judgment confirms that due to in particular the existence of mass surveillance and the absence of possibility for an individual to pursue legal remedies in order to have access and to obtain rectification or erasure, serious questions exist regarding the continuity of the level of data protection when data are transferred to the United-States."

- First Vice-President Timmermans and Commissioner Jourová 's press conference on Safe Harbour following the Court ruling in case C-362/14 (Schrems) (pdf) Extraordinarily on the planned EU-USA "Umbrella" Agreement on the exchange of personal data for criminal offences (all offences however minor) Commissioner Vera Jourová seeks to claim: "The Umbrella agreement is something different than Safe Harbour. It does not itself enable data transfers." [emphais aded]

Whistleblower Edward Snowden hails 'Safe Harbor' data sharing verdict (DW, link): "US whistleblower Edward Snowden has praised the European Court of Justice's decision to invalidate a 15-year-old pact allowing data transfers between the US and EU. White House says it's "disappointed" by the verdict. "

EU Refugee crisis: Returns policy - unworkable

Council of the European Union: Draft Council conclusions on the future of the EU return policy (LIMITE doc no: 12420-15, pdf) for adoption at the Justice and Home Affairs Council on 8-9 July 2015. Including:

"The Council invites the Commission and the EEAS, and the Member States, in particular through their representations outside the EU, in close cooperation with the liaison officers mentioned in paragraph 9, to promote the EU laissez-passer (standard travel document for the expulsion of third-country nationals) which should become the travel document commonly accepted for return purposes by third-countries. Moreover, Member States commit to using more regularly the EU laissez-passer in return operations." (Point 14, emphasis added])

Tony Bunyan, Statewatch Director, comments:"The Commission and the Council have never understood that refugees, who have fled from war, persecution and poverty, do not want to return to the country they have come from. The idea that returns can be fast-tracked through issuing EU laissez-passer to return refugees to third countries is reminiscent of the apartheid pass laws.

This is compounded by the Council is relying on 1994 Recommendations as the legal basis for issuing these co-called EU laissez-passer return documents which were adopted before the European or national parliaments had any say. Furthermore these "Conclusions" are "soft law", non-binding but enabling two or more Member States to undertake operational measures - again parliaments have no say. Measures which will have such a profound effect on refugee's rights and freedoms should be the subject of formal EU legislative procedures."

EU: European Court of Justice: SAFE HARBOUR JUDGMENT: The Court of Justice declares that the Commission’s US Safe Harbour Decision is invalid (Press release, pdf): and Full-text-judgment (pdf)

"The Data Protection Directive provides that the transfer of personal data to a third country may, in principle, take place only if that third country ensures an adequate level of protection of the data..... The United States safe harbour scheme thus enables interference, by United States public authorities, with the fundamental rights of persons, and the Commission decision does not refer either to the existence, in the United States, of rules intended to limit any such interference or to the existence of effective legal protection against the interference."

See: Intial response from max schrems (pdf) and see his Facebook

Refugee crisis: latest news from across Europe (15 stories/documents: 5.10.15)

EU: Council of the European Union: The future management of the EU's external borders (LIMITE doc no: 12541-15, pdf): "How can the collective responsibility of Member States and Frontex evolve, e.g. for ensuring a better and at times compulsory allocation of border guards and equipment from low risk areas to those most affected by illegal migration?" [emphasis added]

EU: Council of the European Union: Justice and Home Affairs Council, 8-9 October 2015: Background Note (9 pages, pdf) Including "returns" policy.

EU: TURKEY: EU Action on Migratory Pressures - targeted update and the outcome of discussion on Turkey (LIMITE doc no: 9491-15, 15 pages, pdf):

"Turkey had the capacity to act as a significant transit point for migrants from the wider Middle East-North Africa region: migrants may legally enter Turkey but then illegally enter the EU. Along with Syrians, Moroccan, Tunisian, Libyan, Georgian, Jordanian, Lebanese and Iranian passport holders do not require a visa to enter Turkey."

EU: Council of the European Union: Accession to the ECHR: Accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) - State of play (Limite doc no: 12528-15, pdf): "On 18 December 2014 the CJEU declared the Draft Accession Agreement incompatible with the EU Treaties on a number of grounds.... [for example] entrust a judicial review of EU actions in (some) CFSP matters - for which the CJEU has no competence - to the European Court of Human Rights (ECtHR)."

EU: Council of the European Union: Exchange of personal data between law enforcement agencies & UNHCR

- Council agrees its negotiating position: Proposal for a Directive of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data by competent authorities for the purposes of prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties and the free movement of such data - General approach (pdf)

- Proposal for a COUNCIL DECISION on the position to be adopted, on behalf of the European Union, in the sixty-sixth session of the Executive Committee of the Programme of the United Nations High Commissioner for Refugees (pdf) and the detail in: Annex (pdf)

EU and Turkey to discuss plan to stem flow of migrants (, link): "Turkish President Tayyip Erdogan is due to meet with Juncker on Monday. A spokesman for the European Commission said the meeting was "precisely about seeing how to step up cooperation to jointly tackle the refugee crisis" and said any new announcements would be made at a news conference on Monday. Asked about the newspaper report, a spokeswoman for the German government said Merkel, Juncker and Austrian Chancellor Werner Faymann had held a phone call on Wednesday but she declined to comment on the content of their discussion."

See also: Erdogan brings Turkish election campaign to Strasbourg, Brussels (euractiv, link): "Supporters and foes gathered in Strasbourg on Sunday (4 October) on the occasion of a visit by Turkish President Recep Tayyip Erdogan, who has apparently turned his European tour into part of his election campaign..... The European Commission and Turkey have agreed on a plan to stem the flow of refugees to Europe by patrolling Turkey's frontier with Greece and setting up new camps, a newspaper cited sources in the Commission and the German government as saying yesterday.... However a senior EU official involved in the negotiations with Turkey told Reuters that the newspaper report went beyond what was currently under discussion between Brussels and Ankara. "It's a bit exaggerated," he said." and EU and Turkey have struck plan to stem flow of migrants - newspaper (Reuters, link)

EU and Turkey 'agree on refugee plan' (The, link): "The European Union and Turkey have agreed in principle to a plan of action to help ease the flow of migrants into the bloc, a German newspaper reported on Sunday.... Under the plan, Turkey would agree to stepped-up efforts to secure its frontier with the EU by taking part in joint patrols with the Greek coastguard in the eastern Aegean coordinated by EU border protection agency Frontex, the report said. Any migrants picked up would be taken back to Turkey, where six new camps for up to two million people would be built, co-financed by the EU."

Refugee crisis: latest news from across Europe (15 stories/documents: 3-4.10.15)

Frontex asks for 775 border guards - refugees to be "nationality" screened (link):

"This is the largest number of border guards Frontex has ever requested in the history of the agency. The officers are to assist mainly Italy and Greece in the registration and identification of migrants coming from Libya and Turkey. “Since the beginning of this year over 470 000 migrants arrived in Greece and Italy alone. No country can possibly handle such high migratory pressure at its borders by itself. It is crucial that all those arriving in the EU are properly registered and identified,” said Frontex Executive Director Fabrice Leggeri.

Frontex requested 670 officers – mainly screeners, debriefers and interpreters to be deployed in Italy and Greece, in addition to 105 officers to be deployed at various external land borders of the European Union. The screening officers play a key role in helping authorities to determine the nationality of the incoming migrants in order to identify and register them. Debriefers gather information about the activities of smuggling networks." [emphasis added]

"Screening officers" will be carrying out "nationality screening" (Frontex in European Parliament hearing on 23 September 2015), followed by registration and fingerprinting after which refugees will be divided into two groups, those destined for "return" to their country of origin to be held in closed camps and those to be relocated in the EU through asylum procedures in open camps.

Refugee crisis: latest news from across Europe (24 stories/documents: 2-10-15)

EU: Court of Justice of the European Union (CJEU): Data protection legislation of a Member State may be applied to a foreign company which exercises in that State, through stable arrangements, a real and effective activity (Press release, pdf) and Full text of Judgment (pdf) and: Persons whose personal data are subject to transfer and processing between two public administrative bodies must be informed in advance (Press release, pdf) and Full text of Judgment (pdf)

EU: Council of the European Union: Cybercrime evaluation & UK and SIS

- Interesting detailed report: Evaluation report on the seventh round of mutual evaluations "The practical implementation and operation of European policies on prevention and combating Cybercrime" - Report on Slovakia (Declassified document no: 9761/1/15 REV 1 DCL 1, 139 pages, pdf)

- Putting into effect of the provisions of the Schengen acquis on data protection and on the provisional putting into effect of parts of the provisions of the Schengen acquis on the Schengen Information System for the United Kingdom of Great Britain and Northern Ireland - State of play (pdf): "agreed inter alia on a set of recommendations addressed to the United Kingdom and considered that further proceedings were necessary in order to conclude the evaluation with a view to adopting an implementing decision setting the date for the final putting into effect by the United Kingdom of the provisions referred to in Article 1(a)(ii) of Decision 2000/365/EC, in so far as they relate to the functioning of the SIS."

EU: What is the role of "hotspots"? A European Commission official told the parliament's LIBE (Civil Liberties) Committee this morning (Thursday) that the 'hotspots' concept would mean:

"People may be placed in closed centres for the return procedure
For relocation people will be the possibility of centres - which are open to a degree are necessary
Attempts will be made to convince them to stay in the reception centre in order to be resettled
Centres: Hotspots for relocation would be open centers and closed centres for returns"

Tony Bunyan, Statewatch Director comments:

"How many people are going to be forced to "return" and held in closed camps? The pre-screening process will be carried out by Frontex and member state officals who will decide who is to be "returned" - prior to them being allowed to make an asylum application. Will refugees being vetted for return have interpreters and lawyers to help and represent them? And is there a right of appeal?"

And see ‘Hotspots’ for asylum applications: some things we urgently need to know (EU Law Analysis, link) Also: Italy: Sicily ‘hotspot’ to be prison-like centre (euractiv, link): "It will be one of Italy's brand new hotspots for identifying newly-arrived migrants -- but as the Pozzallo reception centre in Sicily prepares its fingerprinting kits, the EU-led plan for these facilities is still plagued with unresolved issues... When Pozzallo becomes an official hotspot at the end of November, new arrivals will instead be obliged to provide their fingerprints as part of an asylum request, or be taken to a detention centre to await expulsion from Italy. The hotspots will be closed-door centres, sharply reducing the chance that people can flee and head north off their own backs. Those very likely to win refugee status -- Syrians, Eritreans and Iraqis -- will be fast-tracked and taken to a separate centre, where they will be divided up and distributed to other countries within the European Union.... What will happen if Syrian or Eritrean nationals refuse to give their fingerprints, seeing as they cannot be expelled? Would they be kept in a detention centre until they change their minds?." Se also: Centro accoglienza Pozzallo primo hotspot in Italia (, link)

Refugee crisis: latest news from across Europe (25 stories and documents, 1.10.15)

EU: Council of the European Union: Council Decision regarding the Marrakesh Treaty to facilitate access to published works for persons who are blind, visually impaired or otherwise print disabled

- Presidency Compromise Proposal (LIMITE doc no: 7576-Rev-1-15, pdf)
- Previous version of above (LIMITE doc no: 7576-15, pdf)
- Guidance for further work (LIMITE doc no: 7321-15, pdf)
- Open Issues (pdf)  (LIMITE doc no: 5110-15, pdf)

EU: CALL AN END TO SECRET, CLOSED, TRILOGUES: NGO Letter to the Council, the Commission and the European Parliament (pdf):

"We, the undersigned organisations, hereby express our concern regarding the pervasive use of so-called "trilogue" negotiations within the EU decision-making process. It is our view that the trilogues have, regardless of intent, become a means for EU institutions to bypass democratic good practices, prevent public participation and are contrary to the principles of transparency and accountability recognised under the EU treaties, including citizens' right to access public documents....

In light of the outlined problems, we are calling for a major reform of the trilogue process in order to end this unacceptable democratic deficit in the EU decision-making. We call for the publication of all documents in a timely and systematic manner.

Further, we ask that disclosure not be limited to the multicolumn meeting documents, but also to public access to the meetings and access to any reports or notes discussed over the course of the process, in line with the procedures for normal Parliament committee meetings. There is an overriding public interest in the timely and systematic disclosure of these documents in order to enable proper public scrutiny of EU decision-making."

Signed by 16 EU NGOs including Statewatch

EU: European Parliament study: The European legal framework on hate speech, blasphemy and its interaction with freedom of expression (446 pages, pdf):

"this study provides an overview of the legal framework applicable to hate speech and hate crime on the one hand and to blasphemy and religious insult on the other hand. It also evaluates the effectiveness of existing legislation in selected Member States and explores opportunities to strengthen the current EU legal framework, whilst fully respecting the fundamental rights of freedom of expression and freedom of thought, conscience and religion. The study also provides the European Parliament with guidelines on dealing with hate speech within the EU institutions."

‘Hotspots’ for asylum applications: some things we urgently need to know (EU Law Analysis, link) by Frances Webber:

"Through the mechanisms it is setting up for the relocation of refugees from Italy and Greece, the EU is trying to regain control of refugee movement in the EU. The tough screening process it is setting up at points of entry into the EU seems designed as a crude instrument to separate out a minority of ‘good’ refugees from what EU ministers want to convince us are a majority of ‘bad’ economic migrants, and to dispatch the latter rapidly and efficiently. But life is not that simple, and the hotspots’ screening procedures could result in large numbers of people being returned to unsafe or unviable situations without proper consideration of their claims....

Frontex’s removal remit covers not just those whose claims are exhausted and so have no claim to remain on the territory, but also those who have not claimed protection. Does this mean that Frontex officials have a roaming mandate to go around Italy and Greece rounding up all those who have not registered a claim for asylum? The opportunity to claim international protection should be available at any time, up to the point of removal; but how will this right be guaranteed?

Without clear and robust safeguards in place, the EU's relocation package could turn out to be a figleaf for a quiet but massive removal operation against, rather than a protection operation for, those arriving on Europe's shores."

Top reports

See: Resources for researchers: Statewatch Analyses: 1999-ongoing

SECILE Project:

Borderline: The EU's New Border Surveillance Initiatives: Assessing the Costs and Fundamental Rights Implications of EUROSUR and the "Smart Borders" Proposals (pdf) A study by the Heinrich Böll Foundation. Written by Dr. Ben Hayes and Mathias Vermeulen: "Unable to tackle the root of the problem, the member states are upgrading the Union’s external borders. Such a highly parochial approach taken to a massive scale threatens some of the EU’s fundamental values - under the pretence that one’s own interests are at stake. Such an approach borders on the inhumane."

How the EU works and justice and home affairs decision-making (pdf)

Statewatch's 20th Anniversary Conference, June 2011: Statewatch conference speeches

TNI/Statewatch: Counter-terrorism, 'policy laundering' and the FATF - legalising surveillance, regulating civil society (pdf) by Ben Hayes

Statewatch publication: Guide to EU decision-making and justice and home affairs after the Lisbon Treaty (pdf) by Steve Peers, Professor of Law, University of Essex, with additional material by Tony Bunyan

Neoconopticon: the EU security-industrial complex (pdf) by Ben Hayes

The Shape of Things to Come (pdf) by Tony Bunyan

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