Statewatch article: RefNo# 33157
Frontex and fundamental rights: a love story? by Leila Giannetto
Statewatch Journal; vol 23 no 3/4 February 2014
The European agency in charge of the management of the EU’s external borders, Frontex, is facing harsh criticism for its lack of accountability in the field of migrants’ rights protection.

One after another, men struggle to climb three walls topped by barbed wire. This is one image of African migrants trying to reach the European Union (EU) at the border between Morocco and Spain (Melilla), captured by a high-tech camera on the night of 18 September 2013. [1] Every day, irregular migrants leave their countries on a deadly mission to reach the EU using every possible means of transport. They may be threatened, robbed and beaten along the way and are often left with nothing but their lives. [2] A high percentage of them – a number impossible to accurately estimate – are stripped of even that. [3] Every means is tried to reach a new shore and a new life.

Awaiting them at the EU’s borders are police forces, reception or detention centres and journalists eager to take the perfect picture of an invasion of boat people. Reductions in the flow of migrants, and in particular of irregular entries, are welcomed by the media as success stories. Frontex was established in 2004 in order to maintain these ‘successes’. The draconian border control policies of the EU and its Member States’ have been translated into law that stands in contrast to the principles declared in the European Charter of Fundamental Rights.

The impact of such policies can be seen in the Lampedusa tragedy. This small Italian island is where most of the migrants coming to Europe via the so called “Central Mediterranean Route” disembark. [4] On 3 October 2013, a boat from Libya carrying in excess of 500 passengers sank off the coast of Lampedusa. More than 359 people died. [5] 155 survivors were rescued from the Mediterranean Sea, first and foremost thanks to Lampedusa’s sailors who detected the shipwreck and alerted the authorities. The inhabitants of Lampedusa have become used to the continuous landings of people from Africa (both the living and the dead), and have become renowned for their welcoming attitude towards distressed migrants. [6] The same can be said for the thousands of organisations that fight for the better treatment of migrants, both within the EU’s borders and at its frontiers. [7]

Tragedies are repeatedly taking place at the EU’s borders, not only at sea but also on land. The Greek-Turkish land border is the most troubled example. Informal (and illegal) push-backs of migrants to Turkey have been reported by a number of civil society organisations including Human Rights Watch (2011), Amnesty International (2013), and more recently in a ProAsyl Report, released on 7 November 2013. [8] Moreover, the Greek asylum system has systemic problems; the constant threat of human rights violations for asylum seekers detained in Greece led to judgements by the ECHR and ECJ in 2011 suspending the removal of the claimants to Greece – a practice that is regulated by the controversial Dublin II Regulation.

In view of these tragedies and considering the significant role that Frontex acquired in 2011 [9] in the management of these borders, “including its fundamental rights dimension,” [10] it is crucial that civil society is aware of Frontex’s responsibilities and activities. This article first describes the agency and then questions how it is held to account by the EU’s democratic institutions, the judicial system, and civil society organisations defending migrants’ rights.

Frontex: facts and figures

Frontex is the EU’s agency in charge of “the management of the operational cooperation of the external borders of the Member States of the European Union”. Since its inception in 2004, [11] it has been a tool for the EU to reshape its external border management system. [12] Frontex Regulation 2007/2004 was set up to “facilitate the application of existing and future Community measures relating to the management of external borders,” leaving to Member States “the responsibility for the control and surveillance” of their own borders. This means that Frontex was not established to replace Member States’ national border management systems but to complement and reinforce them, by using intelligence tools. [13] Intelligence tools utilised by the agency include software designed to retrieve, analyse and report data and new technology that can detect irregular crossings at EU external borders, and which thus provides Member States with the most up-to-date knowledge in this field. As a matter of fact, Frontex is the core of the EU’s Integrated Border Management system, envisaged by the European Council during the Laeken process – better known as the process of constitutionalisation of the Union – in 2001.

Since 2004, Frontex has “experienced the most extensive upgrading in terms of financial and human resources.” [14] In particular, reform of the agency in 2011 enlarged its financial and human resources and recognised the new administrative and operative competences that it had already informally acquired. [15] Member States were given new duties to cooperate in the field of border management and two new bodies were created within the 2011 Frontex framework: the Human Rights Officer and the Consultative Forum. They were introduced in response to appeals by civil society organisations for greater accountability from the agency, particularly concerning the protection of migrants’ rights.

Frontex’s tasks and powers can be summarised as follows:

Joint Operations at land, sea or airports [16] in which Frontex coordinates Member States’ border guards and, from 2011, provides equipment and personnel in the form of European Border Guard Teams (EBGT).

Training for Member States’ border guards in order to promote common standards during operations.

Risk analysis and research into the ongoing situation at the EU’s external borders in order to plan future operations to tackle irregular migration and cross-border crime and provide border guards and Member States with the most advanced knowledge and technologies.

Assisting Member States in joint return operations, thereby organising flights to expel irregular migrants who entered the EU.

Developing and operating information systems enabling the exchange of data collected at the EU’s entry-exit points and keeping up to speed with the newest technologies in the field.

Activities carried out outside the EU (e.g. in international waters surrounding the Canary Islands), working “closely with border-control authorities of non-EU/Schengen countries - mainly those countries identified as a source or transit route of irregular migration - in line with general EU external relations policy” and signing working agreements with these countries.

Protection of human rights: what kind of accountability?

Frontex has relations with the European Parliament in terms of democratic accountability and the Court of Justice of the EU, the European Court of Human Rights (ECHR) and the European Ombudsman in terms of (quasi-) judicial accountability. The European Parliament has very limited control over Frontex, because it has difficulty establishing whether Frontex’s annual work programme has been correctly implemented. MEPs often do not have the expertise to understand Frontex’s operational management nor do they necessarily have the interest to do so. Only Home Affairs Ministries or the heads of national border guards have a direct competence and interest in this field, and they sit on Frontex’s Management Board. This leaves the agency with a minimal level of control from the EU’s democratic institution.

The Court of Justice of the EU also has a difficult task in evaluating Frontex’s work. Notwithstanding amendments to the first Frontex Regulation (2007/2004), the agency’s competences are still not clearly defined and are further blurred by the competences of Member States’ border guards. The 2011 Regulation makes clear that some military operations might be co-led by Frontex, which now has European Border Guard Teams. However, even the European Ombudsman, Nikiforos Diamandouros, [17] found it very difficult to understand how Frontex would implement the provisions of the Charter of Fundamental Rights because there is virtually no way in which Frontex staff or participating officers can be held responsible and prosecuted for any alleged violations of human rights. Operations at the Greek-Turkish border are a sad example of this unaccountable system. [18]

Greater accountability could possibly be achieved through increased scrutiny by civil society organisations. They could monitor Frontex’s activities, question its conduct and even lobby the European Commission (which is in charge of proposing amendments to the Frontex Regulation). Monitoring by the media could also have an effect on the agency’s reputation; the media, besides reporting sensational events such as the breaching of barbed-wired walls in Melilla, could play a positive role as an accountability enhancer, providing much more information regarding the agency, its activities and its misconduct. This could mobilise public opinion and draw greater attention to Frontex’s activities.

Proposed solutions for a long term relationship between Frontex and fundamental rights

Civil society monitoring contributed to the appointment of a Human Rights Officer and a Consultative Forum on Fundamental Rights operating within the agency. [19] The UNHCR, Amnesty International, ECRE, Migreurop and Statewatch all published reports proposing amendments to the 2007 Frontex Regulation and demonstrated the absence of a body charged with monitoring fundamental rights protection. However, neither body is endowed with powers to halt operations in the case of a grave breach of fundamental rights – this competence lies with the Executive Director – or to deal “with complaints on infringements of fundamental rights in all Frontex activities submitted by persons individually affected by the infringements and also in the public interest.” [20]

Another limited success is to be found in the critique by civil society organisations concerning the “lack of legal certainty in some Frontex capacities”. For example, Frontex’s involvement in and co-financing of return operations - which are highly sensitive and concern migrants’ individual liberties - were not clearly defined in Regulation 2007/2004. This resulted in difficult, if not impossible, judicial control. The Frontex Regulation of 2011 introduced amendments in this field in order to reduce the uncertainty. Under Article 33, for example, the agency’s activities are evaluated on the basis of the principles of the European Charter of Fundamental Rights, which might help to establish the jurisdiction of the ECHR. Frontex also responded positively to requests for clarification made by the European Ombudsman on the issue.

Debate was also sparked on the Agency’s other fundamental rights-related activities:

the processing of personal data.

the signing of working arrangements with third countries (also involving activities outside the EU territory).

the contribution to joint operations and in particular operations set up at the Greek-Turkish border (RABIT and Poseidon).

These issues are particularly opaque and require a higher degree of transparency in order to be monitored and evaluated. In particular, the competence of Frontex to sign working arrangements with third countries’ administrative bodies – to deploy liaison officers on their territory and even to organise operations with them conducted outside EU territory – is highly questionable. For instance, Operations Hera I and II off the Canary Islands, in Senegalese territorial waters, were deemed by Amnesty International and Sergio Carrera to be in breach of the non-refoulement principle. [21] A similar story can be told regarding the treatment of migrants at the land border between Greece and Turkey. In order to change these practices it is essential that Frontex be held directly accountable by civil society organisations working in the field of fundamental rights.

Conclusion

Frontex is in the spotlight once again due to the Lampedusa disaster. This time the criticism comes formally from a Member State, Italy, which has called for greater Frontex involvement in Mediterranean Sea operations. Members of the Italian government have gone so far as to accuse Frontex of spending large amounts of public money without providing the necessary services. But what kinds of services are being requested by Italian institutions? Not safer routes for migrants, or a legal channel for asylum seekers to access the EU, as proposed by civil society organisations. Member States are once again stressing the need for greater control of EU borders and calling for: increased sea patrols in order to detect boats carrying migrants at an earlier stage; a higher degree of collaboration with countries of origin and transit – such as Libya and Tunisia – through working arrangements; and greater efficiency in taking care of landed migrants through return operations or transfer towards reception/detention centres. All of these demands reinforce the same idea: the EU has to remain a fortress, no matter how many people die knocking on its doors. The main concern has shifted from a cry for the humane treatment of migrants to a demand to push them back as far as possible from EU shores.

When tragedies such as that at Lampedusa occur it is easy to look at the emergency but miss the bigger picture. But one question does need to be answered: who is responsible for the lost lives? This is the reason why it is fundamental to hold the agency in charge of the management of the external borders of the EU to account and to promote discourse over fundamental rights through effective control of Frontex by organisations concerned with fundamental rights issues.

UN High Commissioner for Refugees, António Guterres, commented on 4 October 2013, the day after the Lampedusa tragedy: “There is something fundamentally wrong in a world where people in need of protection have to resort to these perilous journeys. This tragedy should serve as a wake-up call. More effective international cooperation is required including a crack-down on traffickers and smugglers while protecting their victims. It shows how important it is for refugees to have legal channels to access territories where they can find protection.” [22]

Endnotes

[1] Euractiv, 18 September 2013: link

[2] A documentary on the sea travels of migrants, Closed Sea, can be found at: link (retrieved June 2013).

[3] For a detailed count of the acknowledged deaths at the borders of Europe see Gabriele Del Grande’s blog Fortress Europe: link

[4] In 2012, 10,380 irregular border crossings were detected on the coasts of Sicily, Pantelleria and the Pelagic Islands (Lampedusa, Linosa, Lampione) by Italian border guards and Frontex. By the end of September 2013, crossings in the area had doubled (see link, retrieved 2 October 2013). The Central Mediterranean Route is the second in importance for the number of crossings after the Eastern Mediterranean Route (for further reference see: link, retrieved 2 October 2013).

[5] Last update: 7/10/2013. In an attempt to escape the fire (lit as a distress signal) on one side of the boat, passengers gathered on the other side, causing the vessel to sink (for a complete description of the accident see in Italian, link and in English, UNHCR link, retrieved 5 October 2013).
The BBC reported the death toll as 366 on 8 November 2013. See link

[6] A petition to award next year’s Nobel Peace Prize to Lampedusa was launched on the day of the disaster (see: link).

[7] A new petition to secure a humanitarian corridor for asylum seekers who want to reach the EU was launched on the day of the last shipwreck; see: link

[8] Human Rights Watch (2011) The EU’s Dirty Hands. Frontex Involvement in Ill-Treatment of Migrant Detainees in Greece, retrievable at:
link

Amnesty International (9 July 2013) Frontier Europe: Human Rights Abuses on Greece’s border, retrievable at: link;
ProAsyl (7 October 2013) Pushed Back, retrievable at: link

More reports on the Greek situation can be found at: link

[9] Regulation (EU) No 1168/2011 of the European Parliament and the Council of 25 October 2011 amending Council Regulation (EC) No 2007/2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union, OJ 2011 L 304, p. 1.

[10] European Ombudsman (2013), Draft recommendation of the European Ombudsman in his own-initiative inquiry 0115/2012/BEH-MHZ concerning the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (Frontex), retrieved from: link, June 2013.

It refers to the provisions in Frontex’s 2011 Regulation stating that the European agency “shall fulfil its tasks in full compliance with the Charter of Fundamental Rights”, along with the respect of the non-refoulement principle and law of the sea’s search and rescue rules (introductory Paragraphs No. 17, 18, 19).

[11] Council Regulation (EC) No 2007/2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union. OJ 2004 L 349, p. 1–11.

[12] The so called Integrated Border Management (IBM) system.

[13] Frontex. (2012). Programme of Work. Warsaw.

[14] Pollak, J., & Slominski, P. (2009).
Experimentalist but not Accountable Governance? The Role of Frontex in Managing the EU’s External Borders. West European Politics , 32 (5), pp. 904-924.

[15] Statewatch. (2003). Cover-up! Proposed Regulation on European Border Guards hides unaccountable, operational bodies. London: Statewatch.

[16] The Joint Operation in Lampedusa, which started in 2012 and will conclude by the end of October 2013, is called Hermes 2012, while a European Patrols Network coordinated by Frontex is always active in the Mediterranean Sea. The notorious Frontex operations at the Greek-Turkish border are the various RABIT (RApid Border Intervention Team) and Poseidon operations, “Frontex’s biggest land border operation” (see: link).

[17] It is interesting to note that the European Ombudsman who launched an initiative inquiry on Frontex compliance with the European Charter of Fundamental Rights is a Greek national.

[18] Human Rights Watch. (2011). EU’s dirty hands. London.

[19] The Consultative Forum is currently made up of the representatives of six European agencies and governmental organisations and nine civil society organisations, for a total of 15 bodies, each with a different perspective and expertise on fundamental rights matters. They are: Amnesty International European Institutions Office; Caritas Europa; Churches’ Commission for Migrants in Europe; Council of Europe; European Asylum Support Office; European Council for Refugees and Exiles; European Union Agency for Fundamental Rights; International Catholic Migration Commission; International Commission of Jurists; International Organization for Migration; Jesuit Refugee Service; Office for Democratic Institutions and Human Rights; Platform for International Cooperation on Undocumented Migrants; Red Cross EU Office; United Nations High Commissioner for Refugees.

[20] European Ombudsman (2013), Draft recommendation of the European Ombudsman in his own-initiative inquiry 0115/2012/BEH-MHZ concerning the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (Frontex),

[21] Carrera, S. (2007). The EU Border Management Strategy. Frontex and the Challenges of Irregular Immigration in the Canary Islands. CEPS, p. 18.

Frontex, during the Hera operations, expressed its satisfaction that 100% of all intercepted migrants had been sent back to Senegal. At no point was the notion of asylum or international protection mentioned and it is surprising that none of the intercepted irregular migrants was in need of international protection.

[22] See: (retrieved 4 October 2013)

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