Coping with a fundamental rights emergency – The situation of people crossing the Greek border in an irregular manner 1. Migration trends at the southern EU borders In its 2010 World Migration Report, the International Organisation for Migration (IOM) 9 highlighted the global mismatch between labour supply and demand as one of the key reasons for irregular migration. The report notes the absence of adequate legal channels for migration especially for labour migration of both high and low skilled persons. As more people are moving to find work than the possibilities offered by labour mobility agreements, a number of them resort to crossing borders without authorisation. Another category of persons crossing borders irregularly concerns those fleeing persecution who face difficulties in obtaining travel documents from their national authorities, either because they would need to approach the very same authority which is responsible for their persecution or because events force them to leave the country at short notice. In addition, lengthy procedures or bureaucratic obstacles often make it impossible for asylum seekers to obtain legal permission to enter the European Union. They therefore often move along the same routes as migrants, using the same transport and the services of the same smugglers.10 This has been particularly the case at the EU’s southern borders and Greece is no exception to it. Persons entering Greece irregularly may belong to several different categories: arrivals include persons who are seeking international protection, unaccompanied and separated children, as well as irregular economic migrants. Different legal regimes apply to these categories which impact on the way they must be treated at borders. While economic migrants can be returned, persons seeking international protection have to be referred to domestic asylum procedures. Unaccompanied and separated children, in turn, require special protection measures. These different categories must be identified upon entry to avoid undifferentiated treatment which would violate basic fundamental rights enshrined in the EU’s Charter of Fundamental Rights, and other human rights instruments, such as the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, the UN Convention on the Rights of the Child, etc. Over the past five years, migration routes at the southern European border underwent an important shift. In 2006, the Spanish towns of Ceuta and Melilla, the Canary Islands, Sicily and the island of Lampedusa, as well as the Greek‐Turkish sea border were particularly affected by arrivals.11 Primarily as a result of closer cooperation between Spain and transit countries in West Africa, detections at the sea border of Spain decreased by 70% in 2007.12 Irregular movements shifted to the Italian and the Greek sea borders, a trend which continued in 2008.13 Following the return of almost 1,000 persons to Libya by the Italian authorities in summer 2009, arrivals in 9 10 11 12 13 IOM, World Migration Report 2010: The Future of Migration – Building Capacities for Change, 2010, p. 29, available at: http://publications.iom.int/bookstore/free/WMR_2010_ENGLISH.pdf. Ibid., p. 41. FRONTEX, Annual Report 2006, p. 7, available at: http://www.frontex.europa.eu/gfx/frontex/files/justyna/annual_report_2006%5B1%5D.pdf. FRONTEX, General Report 2007, p. 14, available at http://www.frontex.europa.eu/gfx/frontex/files/justyna/frontex_general_report_2007_final.pdf. FRONTEX, General Report 2008, p. 12, available at http://www.frontex.europa.eu/gfx/frontex/files/justyna/frontex_general_report_2008.pdf. 11