The recent tragedies in the Mediterranean Sea have added to the already significant number of migrant deaths. EU officials are responding to this urgent issue, and this is what their response should include.

First, a large-scale search and rescue operation is needed. The EU’s ‘Triton’ operation, which replaced the Italian ‘Mare Nostrum,’ is insufficient for saving lives. It was incorrectly assumed that ending ‘Mare Nostrum’ would deter migrants and reduce deaths.

While legal issues exist surrounding the EU’s direct involvement in search and rescue, the EU or its member states could provide coordination and funding instead of leaving the burden solely on Italy.

Second, the EU’s border surveillance system, Eurosur, primarily focused on border control but with a secondary role in migrant rescue, could prioritize its humanitarian function. This could be done through legislative amendments or agreements among member states.

Third, the EU should clarify the role of private rescue efforts. Current EU law prohibits aiding irregular migrants, even for humanitarian reasons, with only an option for member states to provide exemptions. This law should be changed to require this exemption, explicitly including private sea vessels, potentially with compensation offered for their assistance. This amendment could be expedited, with a broader review of laws addressing smugglers and traffickers to follow.

Fourth, conditions in origin and transit countries need to be addressed to reduce the need for risky journeys. This is a matter of practicality, as providing protection for everyone globally is not feasible for the EU. While challenging, a thorough review of EU foreign policies and development aid could address the root causes of migration.

The EU has several legal avenues regarding its external migration policy. Increased support could be provided for the existing support and protection offered to those in need in neighboring and transit countries. Increased support could also be provided for the resettlement of those already processed by Member States. EU asylum legislation could also be amended to confirm the refugee status of these individuals upon arrival, aligning with the EU’s ‘Qualification Directive.’

There’s an existing legal framework for Member States to process asylum applications at their consulates in non-EU countries. A 2013 ruling in the ‘Koushkaki’ case confirmed that the EU visa code mandates that Member States issue visas when applicants meet the criteria. While this primarily applies to short-term visas, the code also allows for visas with ’limited territorial validity’ (LTV) for humanitarian reasons or national interest, even if usual conditions aren’t met.

In cases of potential international protection needs, issuing an LTV visa is necessary, even if the usual requirement of intending to return to the country of origin isn’t met. This is because a reluctance to return is understandable given the fear of persecution or harm inherent in needing protection.

The 2013 ‘Koushkaki’ judgment could be interpreted as applying to LTV visas. While the term “shall” is used, it is qualified with “considers it necessary.” However, when a potential need for international protection exists, the EU Charter of Fundamental Rights mandates consideration, and if confirmed, an LTV visa should be issued. It is clear that EU law applies when someone applies for a visa from a Schengen member state.

The EU could agree on this interpretation of the law and adopt guidelines for consulates on applying these obligations. EU funds could cover additional costs for Member States.

Proposed amendments to the visa code, currently under discussion, offer an immediate opportunity to address this issue. While these proposals are broad and in early stages, the amendment concerning LTV rules could be fast-tracked.

A simple amendment to the visa code would be to state that an LTV visa ‘shall be issued…when it is necessary in order to ensure the international protection of the person concerned in accordance with Directive 2011/95 [the Qualification Directive], or when the Member State concerned considers it necessary…’.

Looking ahead, more complex aspects of external protection policy could involve ‘joint external processing’ of asylum claims, provided it doesn’t disadvantage applications made elsewhere and ensures entry and stay for those in need, either in Member States or countries with comparable protection. This shouldn’t hinder the resettlement of those with evident protection needs, such as Syrian refugees.

While challenging, these long-term goals shouldn’t prevent the EU from taking immediate action: increasing rescue efforts and offering safe passage to those in need through resettlement or efficient processing of asylum applications during the visa process. It is morally imperative for the EU to address this issue swiftly and effectively.