25 January 2022
A legal case alleging that Frontex was involved in an illegal deportation and the annual report of its Consultative Forum on Fundamental Rights, made up of NGOs and international organisations, show once again that fundamental rights are not at the top of the agency’s agenda.
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On 20 September 2021, an action for damages was launched against Frontex at the Court of Justice of the European Union (CJEU) over its alleged role in an illegal deportation, generally known as a refoulement. The incident is also the basis of a case against Greece. The CJEU case was filed as part of the Not on our Border Watch campaign, which also invites EU citizens to ask the European Commission to:
“…stop member states and Frontex violating the Common European Asylum System [and] to take the necessary steps to end these abuses of asylum seekers by Frontex, and uphold the rule of law”.
It was the second case brought last year that could see Frontex held accountable for fundamental rights violations. The first, an action for failure to act, calls on the Court to force Frontex to terminate its activities in the Aegean Sea.
The following month, the Frontex Consultative Forum on Fundamental Rights published its annual report for 2020 (pdf) – a turbulent year for the world in general, and the agency in particular. The new mandate was in force, an ambitious recruitment drive was initiated, and multiple allegations of involvement in pushbacks, corruption and mismanagement were made against the agency, giving the Forum a lot of ground to cover. The report focuses on what the consortium of NGOs and international bodies has recommended or requested to Frontex, but offers little focus on whether it received a satisfactory response from the agency.
The demands of the legal case and public campaign, and the often long-repeated and unheeded recommendations logged in the Consultative Forum’s report, clarify questions of accountability that have been dogging Frontex’s work for years. This analysis uses the case and the report to consider Frontex’s failures to take human rights seriously as an agency, and the unlikelihood of its being able to do so alongside the migration policies and practices of the states that it works with.
The legal case
The case is being brought by a Syrian family that includes three young children, aged between two and seven at the time, who were told they were being transported to from a Greek island to the mainland when they boarded a plane that was in fact bound for Turkey.
In the same year that a European Parliament working group formally investigating Frontex struggled to access information from the agency, the action for damages presents a uniquely well-documented case, as the pushback took place on a flight organised by Frontex. The question before the court now is whether Frontex bears responsibility for violations during this joint operation, when the operation itself was carried out at the request of a member state. The case, taken by immigration lawyers Flip Schuller and Lisa-Marie Komp, has three central complaints:
The events took place in October 2016, when Frontex was bound by its 2016 Regulation. Both this mandate and its 2019 replacement contain obligations to apply due diligence before, during and after operations to ensure compliance with human rights. During the complaint proceedings, the lawyers made repeated requests for documents to demonstrate such due diligence, but none were forthcoming from the agency.
All talk, no action?
Only the year before the facts of the case occurred, the European Ombudsman had issued a report on Frontex return operations, requiring in particular that Frontex check whether return decisions had been made and were enforceable before any return operation. The need for such checks is evident: in 2015, a women was deported to Nigeria on an Italian flight coordinated by Frontex, due to a failure by the national authorities to update her case file and a failure by Frontex to ensure that the information available was fully up-to-date.
In the case now before the court, the applicants spent more than three years following internal Frontex complaints procedure. The legal action is a response to Frontex’s conclusion that, while human rights violations had indeed taken place, the whole responsibility for the pushback lies with Greece, despite the agency having coordinated the return operation to Turkey.
Frontex’s individual complaints mechanism, included in the agency’s 2016 Regulation after a recommendation by the European Ombudsman, lacks accessibility, effectiveness and independence. In an own-initiative inquiry, the Ombudsman noted:
“The complaints mechanism can be an effective accountability mechanism only if it is accessible and has the means to conduct independent investigations which are prompt, thorough and transparent”.
The Statewatch report Deportation Union assessed the complaints mechanism as included in the 2019 Frontex Regulation, and concluded that despite some improvements "it is still not possible to consider the agency’s complaints mechanism as truly independent or effective."
In 2022, the Consultative Forum plans to assist with the revision of the complaints mechanism, as well as the Frontex Code of Conduct and the rules of implementation of the Fundamental Rights Office’s responsibility to investigate. The agency has committed to reforming its serious incident reports (SIR) mechanism following investigations into allegations of involvement in pushbacks. However, the Consultative Forum notes that it had “identified gaps and risks for both [the individual complaints mechanism and SIRs] and brought them to the attention of the Agency over recent years”. Despite internal awareness that the complaints and SIR mechanisms were deeply flawed, it took allegations of involvement in tragic incidents, and numerous internal and parliamentary inquiries, to elicit a commitment to change them.
What would it take to stop assistance with Hungary's deportations?
At the start of 2021 Frontex implemented Article 46 of the 2019 Regulation for the first time. This requires the suspension of the agency’s operations if the executive director “considers that there are violations of fundamental rights or international protection obligations related to the activity concerned that are of a serious nature or are likely to persist.” Executive director Fabrice Leggeri thus suspended border operations in Hungary following a CJEU judgement that the state’s laws on asylum were in breach of EU law and fundamental rights obligations. However, the agency is continuing its support to Hungary’s removal operations.
According to its report, the Consultative Forum had “repeatedly expressed concerns about the fundamental rights situation in Hungary”. Frontex can collect “information necessary for issuing return decisions, the identification of third-country nationals subject to return procedures and other pre-return, return-related and post-arrival and post-return activities.” Its role in the deportation procedure is thus to carry out the decisions of member state authorities.
The Not on our Border Watch case demands that Frontex ensure that the procedural steps of a return operation are followed correctly – that a return decision has been issued and that it is enforceable. The Ombudsman’s report supports this demand, but the Consultative Forum’s report puts forward a greater concern: would checking the procedural steps of Hungary’s return decisions, for example, really be enough to ensure fundamental rights compliance, in a state where the asylum procedure is not reliable?
Though the former Fundamental Rights Officer (FRO) had drafted a policy on due diligence for the implementation of Article 46 (in consultation with the forum), the Consultative Forum states in its report that Frontex’s “Executive Management plans to develop a separate policy or procedure concerning due diligence by the Agency”. Optimistically, the Forum notes that it “looks forward to being consulted on the development of such a crucial safeguarding policy”.
The report also notes that Frontex surveillance support is implicated in state violence. In light of reports of violent and intimidating pushbacks from Croatia to Bosnia and Herzegovina, the forum notes that it has “continued to question the implications of Frontex support to Croatian border authorities, particularly Frontex aerial surveillance activities which lead to the detection and interception of migrants”.
Frontex also provides multi-purpose aerial surveillance (MAS) over the Aegean Sea and the Central Mediterranean, also the sites of documented pushbacks. The report notes that:
“…concern has been also expressed by some Consultative Forum members over the role MAS has been playing in recent years in facilitating maritime interceptions by Libyan authorities in the central Mediterranean, even as SAR capacities have been drastically reduced”.
The report notes: “The Consultative Forum will step up its work related to aerial surveillance in 2021.” Presumably the results of thie endeavour will be detailed in the Forum’s annual report for 2021, expected this October.
Is Frontex listening?
In 2022, the Consultative Forum will also prepare to “launch an external impact assessment of Consultative Forum recommendations”. Frontex’s Management Board is not obliged to follow those recommendations, although the annual report suggests that, if they had, some of the disasters of 2020 may have been averted:
“The allegations of Frontex’s involvement in several pushback incidents at the EU’s external borders in 2020 further highlighted the numerous gaps and risks which the Fundamental Rights Officer and the Consultative Forum had already pointed out in previous years.”
Another suggestion of wilful ignorance is the reference to the fact that Frontex launched two Rapid Border Interventions (RBI) at the request of Greece in March 2020, “despite the serious concerns expressed by the Fundamental Rights Officer that they could lead to serious violation of fundamental rights or international protection obligations”.
The Forum explains that the FRO urged Frontex to reconsider the joint operation in Evros, in order to comply with Article 46 of the Regulation. The Forum requested information on the RBI deployments in light of Greece’s suspension of asylum registration and engagement in “unregistered returns” – that is, illegal pushbacks – and reports by forum member organisations and other organisations of human rights violations by Greek forces against migrants, as these “could lead to complicity in fundamental rights violations”. That complicity was indeed established by the European Parliament’s 2021 investigation into allegations of Frontex involvement in pushbacks that were made public in October 2020.
The agency’s senior management also ignored the Consultative Forum’s advice on the seniority of the new FRO, eventually appointed in 2021. The report notes that, despite its suggestions, the position was advertised at the same managerial level as the previous post, despite “significantly enhanced” managerial responsibilities. The Consultative Forum comments that this “does not reflect the enhanced role in responsibility… [and] does not correspond with the Agency’s equivalent managerial positions.”
The Forum even states that the agency's uneven recruitment priorities, with members of the 'standing corps' of border guards hired ahead of fundamental rights experts, “expands the existing monitoring gap and increases the risk of fundamental rights violations.” Furthermore, the rules introduced to guarantee the independence of the new FRO and their staff do not include the mandate to carry out unannounced visits, which the Forum sees as necessary for full, independent monitoring.
One member of the Forum, the Platform for International Cooperation on Undocumented Migration (PICUM), left in January 2021, having expressed concerns privately to the executive director over media allegations of rights violations and the working methods of the Forum. Concluding that the Forum’s methods “did not allow for meaningful participation” and that “our ability to provide inputs within the Forum was strongly limited by a very strict confidentiality clause,” PICUM noted that “Frontex often failed to acknowledge or consider the Consultative Forum’s comments.”
And who is watching?
The Consultative Forum report notes that while internal groups (such as the Management Board’s tongue-twisting ‘Working Group on Fundamental Rights, Legal and Operational Aspects of Operations’) have been set up, external oversight bodies “remain crucial to ensure a greater level of accountability and transparency.” This is especially crucial given that “significant delays” in the implementation of various measures to safeguard fundamental rights in the 2019 Regulation (including the recruitment of 40 Fundamental Rights Monitors (FRMs), the establishment of rules of independence for the FRO and their staff, and a due diligence procedure to implement Article 46) have led to “substantial gaps in fundamental rights monitoring.”
There are further delays: with the implementation of substantial reforms of the serious incident reporting (SIR) and individual complaints mechanism, and the supervisory mechanism for the use of force (which should have been established before the deployment of the standing corps, but which was only initiated later in 2020). The delay to the recruitment of FRMs, who should have all been in post by December 2020, was the subject of questions put to Leggeri during hearings in front of the LIBE Committee.
The resources and expertise are available for Frontex to ensure compliance with the fundamental rights safeguards included in its legal mandate, but it is not using them. As the Forum notes, while priority was given to new areas such as the standing corps, acquisition of technical equipment, and clarification of rules on the use of force and weapons, “the Agency’s focus on the equally-strongly mandated reinforcements to fundamental rights was less consistent.”
In a list of new safeguards to be implemented in 2020, just one of seven had been addressed by the agency – establishment of a supervisory mechanism to monitor the use of force, established by Management Board decision in January 2021. Recruitment of an independent Deputy FRO, recruitment of at least 40 Fundamental Rights Monitors, informing the Forum on follow-up to its recommendations (an obligation under the 2019 Regulation), establishing a procedure of application for Article 46, the establishment of a Fundamental Rights Guidance Board for the European Travel Information and Authorisation System (ETIAS), and including fundamental rights safeguards in Standing Corps training, were all outstanding. Notably, the Forum’s report notes that the executive director sat on the panel to appoint new members of the Consultative Forum, raising yet more questions about independence and influence.
This month, Frontex published its '2021 in brief' report, a 38 page document detailing the “excellent results” achieved by Frontex, and mentioning “fundamental rights” a total of five times. The single paragraph detailing the agency’s progress in this area counts within it the recruitment of the “new Fundamental Rights Officer and Fundamental Rights Monitors”. It neglects to mention that the recruitment, of half the number of monitors it is obliged to appoint, was a year late. True, there was more bad press about Frontex’s human rights compliance than good in 2021, so perhaps the agency is wise to keep quiet on this front. Quite possibly, given the political context in which Frontex operates, those drafting the report did not expect its readership to notice.
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