“Regaining control”: new powers for Frontex

Following the large-scale arrivals of refugees in Europe in 2015, the EU and its member states began what has now become a long-term process of significantly reinforcing the EU’s border security framework. Politicians located an extensive supply of hyperbole to accompany the situation – the Dutch prime minister, Mark Rutte, invoked the collapse of Rome and declared that “big empires go down if the external borders are not well-protected,”[1] while Donald Tusk, the president of the European Council, opined that “to save Schengen, we must regain control of our external borders.”[2]

Amongst a barrage of new measures, a new legal basis for Frontex was proposed by the European Commission in December 2015.[3] A text was approved “with breath-taking speed”,[4] in the words of the European Parliament, which struck a deal with the Council of the EU in June 2016.[5] Frontex – now also officially known as the European Border and Coast Guard Agency – was launched on 6 October 2016 at a lonely border checkpoint in Bulgaria.[6]

 

Support agency to super-agency: 2004-19

The 2004 Regulation that established Frontex gave the agency the mandate of assisting in the organisation of JROs, along with the possibility of financing them and identifying “best practices” on acquiring travel documents for individuals due to be deported.[7] A 2011 amendment to the rules gave the agency further powers.[8] At member states’ request it could “ensure the coordination or the organisation of joint return operations… including through the chartering of aircraft,” and finance those operations with its own budget as well as EU funds.[9]

The 2016 Regulation upgraded ‘return’ to one of the agency’s primary tasks,[10] with a whole section of the text on this topic introducing a range of new powers.[11] However, in September 2018, while the agency was still implementing the changes introduced in 2016, the European Commission published yet another proposal for upgrading Frontex’s legal basis.[12] This argued that “more remains to be done to ensure, as part of a comprehensive approach on migration, the effective control of EU external borders and to significantly step up the effective return of irregular migrants.” The proposal called for “a strengthened and fully operational European Border and Coast Guard in order to address citizens’ concerns regarding security and safety for the Union,” involving a “standing corps of 10,000 operational staff with executive powers for all its activities to effectively support member states on the ground.”[13]

A text was once again negotiated at unprecedented speed and a final compromise between the Council and the Parliament was approved in April 2019, with the Regulation coming into force in December of that year. Building upon the powers introduced in the 2016 Regulation, it provides Frontex with an extended set of tasks and activities related to deportations and brings aspects of the entire removal procedure – from the issuance of expulsion orders to engagement in “post-return” activities – into the agency’s remit. An internal agency programming document states that it also aims to work with the European Asylum Support Office (EASO) on “closing the gap between asylum and return procedures.”[14] The overall intention is to develop an “integrated system of return management,”[15] able to assist in the removal of people issued with expulsion orders through the lowered legal standards that the EU aims to introduce.

 

Primary tasks

The 2016 legislation gave Frontex the mandate to “coordinate at a technical and operational level return-related activities of the Member States, including voluntary departures,” with the ultimate aim of establishing “an integrated system of return management among competent authorities of the Member States” in which EU states, non-EU states and “other relevant stakeholders” would participate. The 2019 legislation makes more explicit the precise contours of this technical and operational assistance:

  • the collection of 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 of the Member States;
  • the acquisition of travel documents, including by means of consular cooperation;
  • the organisation and coordination of return operations and the provision of assistance in relation to voluntary returns in cooperation with the Member States; and
  • assisted voluntary returns from the Member States, providing assistance to returnees during the pre-return, return-related and post-arrival and post-return phases.[16]

The Regulation clarifies that the merits of individual return decisions “remain the sole responsibility of the Member States.” However, there is a legitimate concern that Frontex’s role could go beyond that permitted, as has happened with asylum admissibility interviews conducted by the European Asylum Support Office (EASO) in Greece.[17] Stringent oversight of Frontex’s activities in relation to “the collection of information necessary for issuing return decisions” will be necessary in this regard. This is especially so given the intention, as noted above, to close the “gap” between asylum and removal proceedings.

Fabrice Leggeri (left), Frontex's Executive Director, with Dimitris Avramopoulos, former European Commissioner for Migration and Home Affairs

 

Technical and operational assistance

A requirement to provide “technical and operational assistance to Member States experiencing challenges with regard to their return systems,” introduced in 2016, remains in the 2019 legislation. Assistance from the agency will come in the form of:

  • interpreting services;
  • practical information on “third countries of return”;
  • advice on the implementation and management of procedures carried out in accordance with the Returns Directive; and
  • advising on and assisting with the implementation of measures “to ensure the availability of returnees for return purposes and to prevent returnees from absconding.”[18]

There are some additional provisions in the 2019 text. Frontex will be able to analyse information on third countries of return, rather than merely provide it, potentially extending its influence over the way national authorities understand and interact with the states to which they are deporting people. The new text also makes clear that in doing so it should cooperate, “in particular”, with the European Asylum Support Office (EASO). In July 2019 Frontex and EASO signed a renewed cooperation plan for the 2019-21 period that foresees: “Cooperation and development of joint knowledge and information management activities in the area of return,” including potential interoperability between certain IT systems operated by the two agencies.[19]

Regarding measures intended to ensure that deportees are available for removal and do not abscond, Frontex is now obliged to provide “advice on and assistance in relation to alternatives to detention.” However, given that the proposed changes to the Returns Directive would, if approved, result in the automatic detention of far greater numbers of people than at present (see ‘A revamped Returns Directive: enforcement versus rights’), this change may be little more than cosmetic.

The 2019 legislation also introduces the possibility for Frontex to provide “equipment, resources and expertise for the implementation of return decisions and for the identification of third-country nationals,” as part of its technical and operational assistance to the member states. However, there is no further detail on what this may involve.

The text also gives new emphasis to the agency’s role in assisting with ‘voluntary’ returns, stating that it will provide technical and operational assistance to the member states for both voluntary returns and “assisted voluntary returns”.[20] In the case of the former, the ‘returnee’ is not provided with assistance of any sort; in the case of the latter, they may be “supported by logistical, financial and / or other material assistance.”[21] With regard to voluntary returns, Frontex must now provide “assistance to returnees during the pre-return, return-related and post-arrival and post-return phases, taking into account the needs of vulnerable persons.”[22] According to the agency’s roadmap for implementing the new Regulation, in early 2020 it will produce an “Action Plan on expanding Agency’s return support capacity for MS on post-arrival and post-return,” in the third quarter of 2020.[23]

 

Information hub

New provisions on national IT systems in the 2019 legislation give Frontex a far more interventionist role. Whereas previously the agency had to “coordinate the use of relevant IT systems,”[24] it will now develop “a non-binding reference model for national IT systems for return case management which describes the structure of such systems, as well as provide technical and operational assistance to Member States in developing such systems compatible with the model.”[25] This ties in with a further requirement – for the agency to “operate and further develop an integrated return management platform and a communication infrastructure” that interconnects the IT systems of Frontex and national authorities. These significant changes are discussed further in ‘A centralised deportations database’.

A requirement introduced in 2016 for Frontex to “organise, promote and coordinate” activities that allow the member states to exchange information and to identify and share “best practices in return matters” is maintained, as is a provision allowing Frontex to finance or co-finance all the activities referred to in the legislation’s section on return. The 2019 text also introduces the possibility for Frontex to reimburse national authorities with all the costs for adapting their national IT systems so that they can be connected to the “integrated return management platform”.

 

Taking over nationally-controlled networks

The new Regulation also requires Frontex to “aim at building synergies and connecting Union-funded networks and programmes in the field of return.” Although not explicitly mentioned in the legislation, the intention is for the agency to take over the management and coordination of a number of EU-funded projects currently managed by national authorities, such as EURLO (the European Return Liaison Officers Network), EURINT (the European Integrated Return Management Initiative) and potentially ERRIN (the European Return and Reintegration Network).

ERRIN “facilitates the return to countries of origin and provision of reintegration assistance to migrants who cannot, or no longer wish to, remain in Europe.” It is currently led by the Dutch Ministry of Justice and Security,[26] which is also responsible for coordinating the EURINT network. EURINT was launched in 2011; 27 member states and Frontex currently participate. Its purpose is to “develop and share European best-practices in the field of return, mainly focusing on non-voluntary return, from the moment of identification to the acquisition of travel documents required for a person to return to his or her country of origin.”[27] Both projects are currently funded by the EU’s Asylum, Migration and Integration Fund (AMIF). Frontex’s 2019 programming document foresees “full management” of the activities currently undertaken by EURINT from 2020 onwards;[28] by July 2022, there is supposed to be a “takeover of ERRIN into Frontex”.[29]

The 2019 programming document also outlines plans for Frontex to take over the management of EURLO by 2021, dependent on the outcome of a pilot project.[30] The network, which is led by Belgium and funded by the AMIF, “aims at stimulating country of origin-focused operational cooperation, notably through Return Liaison Officers in key countries.”[31] The Commission reported in 2017 that under the EURLO programme, “nine European Return Officers were deployed to countries relevant for readmission, for instance Afghanistan or Ethiopia, to provide support to all Member States on readmission issues.”[32]

Frontex itself has been able to deploy liaison officers to non-EU states since 2011, “to contribute to the prevention of and fight against illegal immigration and the return of illegal migrants,” by establishing contacts and cooperation with the authorities of those states.[33] This role was maintained in the 2016 rules and the 2019 Regulation includes further provisions, specifying that liaison officers may be either from Frontex’s own staff or “other experts,” and that they should provide “technical assistance in the identification of third-country nationals and the acquisition of travel documents.” Furthermore:

“In third countries where return liaison officers are not deployed by the Agency, the Agency may support a Member State in deploying a return liaison officer to provide support to the Member States, as well as to support the Agency's activities, in accordance with Article 48 [which sets out the tasks related to deportations].”[34]

Liaison officers deployed by Frontex – whether they are tasked to work specifically on return or not – will act as part of existing networks of national immigration liaison officers. Over 500 such officers are currently deployed, and EU rules governing their work were recently revised in order to enhance coordination and cooperation and to give the Commission the power to deploy its own officers.[35] Both those rules and the new Frontex Regulation make clear that liaison officers must act in compliance with EU law and fundamental rights. However, while the 2016 Regulation explicitly said that liaison officers will “only be deployed to third countries in which border management practices comply with minimum human rights standards,”[36] there is no such provision in the 2019 text. This may well facilitate the agency’s intention to have 10 liaison officers in non-EU states by 2020.[37]

 

Escorts, specialists and monitors

The 2016 legislation introduced new categories of officials in three return “pools”, consisting of monitors, escorts and specialists. The agency’s Management Board decided upon pools of 40 return specialists, 50 forced-return monitors and 600 forced-return escorts.[38] Return specialists were introduced to assist national authorities in carrying out “tasks such as identification of particular groups of third-country nationals, the acquisition of travel documents from third countries and facilitation of consular cooperation”.[39] The jobs of the latter two categories of official are more obvious – to monitor the compliance of operations with fundamental rights standards and to prevent deportees from attempting to foil their forced removal from the EU.

Under the 2019 rules, the pools of forced return escorts and return specialists introduced in 2016 will become part of the “standing corps”, itself made up of four different types of staff (see the table below).[40] It is not yet clear how many of each category will be required by the agency, but a decision taken by the Frontex Management Board in early 2020, based on a proposal from the agency,[41] defines the two roles as follows:

  • Forced Return Escort and Support Officer: an official of a competent national authority of an EU member state, a Schengen associated country, or a member of the agency’s statutory staff who undertakes “escorting” duties in forced return operations or provides “ground or on board support to voluntary and forced return operations”;
  • Return Specialist: an official of a competent national authority of an EU member state, a Schengen associated country, or a member of the agency’s statutory staff who “carries out tasks connected to return of third country nationals illegally staying on a territory of a Host [member state/Schengen Associated Country],” for example by reinforcing national authorities’ staff and supporting consular cooperation, operational data collection and “synergies with the integrated return management platform, use of operational return systems”.[42]

Forced return monitors, meanwhile, will come from a pool drawn from national monitoring authorities and Frontex’s statutory staff.[43] The 2019 legislation introduces a requirement for Frontex to recruit at least 40 fundamental rights officers by December 2020[44] and these staff may also be deployed as forced return monitors.[45] The size of the pool is to be determined by Frontex’s Management Board,[46] although a decision does not yet appear to have been taken. While these changes seem likely to result in the availability of a greater number of monitors than previously, the independence of the structure has been questioned – Frontex both funds and manages the pool, trains monitors, and selects those to be deployed on any particular operation (for more detail, see ‘Monitoring forced removals’).

Both types of monitor - those drawn from national authorities and those that are Frontex statutory staff – can be deployed either on stand-alone expulsion operations (i.e. JROs or CROs), as part of “migration management support teams”, or as part of “return interventions”. These provide new possibilities for Frontex and other EU agencies to take on operational roles in national territory, building on existing border control activities and on the ‘hotspots’ that have been introduced in Greece and Italy in recent years.

Migration management support teams have been introduced by the 2019 Regulation. They can be deployed when a member state faces “disproportionate migratory challenges at particular hotspot areas of its external borders characterised by large inward mixed migratory flows”. The member state in question must request support from the Commission, which shall forward the request to relevant EU agencies such as Frontex, Europol and EASO. Along with assistance in identifying, registering and debriefing people arriving in the member state, the teams will be able to provide “technical and operational assistance in the field of return… including the preparation and organisation of return operations.”[47] In the case of Frontex, officials deployed as part of these teams will come from the standing corps.

  Category 1 Category 2 Category 3 Category 4 Total for the standing corps
Statutory staff Operational staff for long-term secondments Operational staff for short-term deployments Reserve for rapid reaction
2021 1,000 400 3,600 1,500 6,500
2022 1,000 500 3,500 1,500 6,500
2023 1,500 500 4,000 1,500 7,500
2024 1,500 750 4,250 1,500 8,000
2025 2,000 1,000 5,000 0 8,000
2026 2,500 1,250 5,250 0 9,000
2027 3,000 1,500 5,500 0 10,000

Table 3: Planned development of the standing corps

Return interventions, meanwhile, were first introduced in 2016. These are designed to provide technical and operational assistance when a member state faces “a burden when implementing the obligation to return returnees.” They “may consist in the rapid deployment of return teams to the host Member State providing assistance in the implementation of return procedures and the organisation of return operations from the host Member State,” and can be deployed either on the agency’s initiative with the agreement of the member state in question, or at the request of the member state.[48] This is a change from the 2016 rules, which only allowed the deployment of a return intervention following a request from the member state. Furthermore, Frontex may now also launch a “rapid return intervention” when a member state is facing not just a “burden” but “specific and disproportionate challenges when implementing its obligation to return returnees.” The only apparent difference here is that the deployment of such an intervention must be “rapid”, although there are no timeframes specified.

 

New safeguards

Alongside these new powers and increased operational capabilities, the 2019 Regulation introduces further safeguards with regard to deportations. The 2016 text gave the agency the power to acquire travel documents through cooperation with the consulates of destination states. While it was already an obligation to do so “without disclosing information relating to the fact that an application for international protection has been made,” the 2019 Regulation also prohibits the disclosure of “any other information that is not necessary for the purpose of return.”[49]

Return teams must also now include “officers with specific expertise in child protection,” where this is necessary, although it is not specified whom is to decide when that expertise is necessary. However, the profile adopted by the Frontex Management Board for a ‘Forced Return Escort and Support Officer’ says that specific expertise in child protection and vulnerable groups “would be of advantage” for the role – it does not make it a requirement.[50]

As noted above, the agency is also like to have more forced return monitors at its disposal than previously, although the Management Board is yet to decide on the size of the ‘pool’ required. Furthermore, the new Regulation says that Frontex “should allow, subject to the agreement of the Member State concerned,” the Council of Europe’s anti-torture committee to monitor forced removal operations. This will require the signature of a working arrangement between Frontex and the Council of Europe,[51] although there is no mention of the signature of any new working arrangements in the agency’s Programming Document for 2020-22.[52] The issue of monitoring is discussed in depth in subsequent sections.

 

Suspending or terminating operations

The legislation also contains new provisions regarding the possibility to suspend or terminate activities due to violations of fundamental rights. Since 2011, the agency has been obliged to “suspend or terminate, in whole or in part,” activities at the external borders when there are fundamental rights violations “of a serious nature”.[53] The 2016 Regulation extended this to any of the agency’s activities, not all of which take place at the external borders of the Schengen area.[54] The 2019 Regulation introduces a requirement for the executive director, prior to the start of any activity or operation, to consider its potential impact on fundamental rights and “suspend or terminate” the action where “it could lead to violations of fundamental rights or international protection obligations of a serious nature.”[55] Such a decision must be based on consultation with the agency’s fundamental rights officer and a variety of other factors.[56]

To date, the agency has not suspended any operations and although it has made member states aware of concerns raised by its fundamental rights office regarding return decisions, no concrete measures have been put in place for acting on those concerns.[57] During a hearing in front of the European Parliament’s civil liberties committee, Frontex’s executive director said that the agency prevented the return of a pregnant women on one of its operations (a flight from Hungary to Afghanistan).[58] However, the agency has continued to cooperate with the Hungarian authorities, despite the ongoing infringement proceedings against the state for its non-compliance with EU asylum legislation.[59] Whether the new Frontex legislation will make a difference in this respect remains to be seen.

 

New oversight and accountability mechanisms

One factor that may influence such decisions are the new powers granted to the agency’s fundamental rights officer (FRO). Introduced by the 2016 Regulation, the FRO’s work has subsequently been hampered by Frontex’s failure to provide sufficient staff and resources.[60] The 2019 Regulation should, at least, address the staffing issue – there are now requirements set down in law for the provision of “sufficient and adequate human and financial resources” and, as noted above, for the appointment of 40 fundamental rights monitors (who may also be deployed as forced return monitors) by December 2020.[61] These officials will report directly to the FRO and, aside from acting as forced return monitors, will be responsible for ensuring and monitoring compliance with fundamental rights standards by providing advice and assistance on all the agency’s plans and activities, and carrying out visits to and evaluations of operations.[62]

The FRO, meanwhile, has been given an extended set of powers. As with the introduction of fundamental rights monitors, these were introduced to the text by MEPs during negotiations with the Council. The FRO was previously responsible for contributing to Frontex’s fundamental rights strategy and monitoring its compliance with and promotion of fundamental rights. Now, they will be able to monitor compliance by conducting investigations; offering advice where deemed necessary or upon request of the agency; providing opinions on operational plans, pilot projects and technical assistance; and carrying out on-the-spot visits. The executive director is now obliged to respond “as to how concerns regarding possible violations of fundamental rights… have been addressed,” and the management board “shall ensure that action is taken with regard to recommendations of the fundamental rights officer.”[63] The investigatory powers of the FRO are not, however, set out in the Regulation.

Some less-significant changes have also been introduced to the rules on the Consultative Forum on Fundamental Rights, an independent body made up of non-governmental and international organisations that was established by the 2016 Regulation and provides advice to the executive director and management board. The 2019 Regulation clarifies that there is no requirement for the executive director and management board to seek the advice of the Consultative Forum. However, it does introduce provisions that require Frontex to “inform the consultative forum of the follow-up to its recommendations,” and where a member state does not agree to a visit by the Forum to an operation, it must provide written reasons for doing so.

Finally, some new attempts at parliamentary accountability have been introduced by the 2019 Regulation. The European Parliament must be consulted on the agency’s work programmes and Frontex must provide a “thorough justification” if it decides to discard proposals made by the Parliament.[64] An “expert” of the European Parliament may (not shall) be invited to meetings of the Management Board.[65] The executive director, as well as being obliged to appear before the European Parliament, if requested, must now also answer questions from MEPs within 15 days and “shall report regularly to the appropriate bodies and committees of the European Parliament.”[66] The European and national parliaments may also cooperate in order to scrutinise Frontex’s activities.[67] This possibility also applies to Europol, whose work is examined twice a year by a ‘Joint Parliamentary Scrutiny Group’ (JPSG). There has so far been no formal assessment or evaluation of the effectiveness of this form of oversight. The Europol JPSG meets twice a year, can oblige relevant officials to appear before it, has access to certain classified information, but has no power to sanction Europol in any way. In this respect, it may well prove to be little more than a talking shop. Given the expansion of powers granted to Frontex by the new Regulation – not just in the field of expulsions, but more broadly – there is a need to evaluate the strengths and weakness of the Europol JPSG and consider what the most effective methods of parliamentary scrutiny would be in relation to Frontex.

 

What has changed?

The Commission’s proposal for the new Frontex Regulation was ambitious, but not everything made it through the legislative process. With regard to deportations, the proposal sought to allow Frontex to carry out expulsions from one non-EU state to another – for example, from Serbia to Afghanistan. Despite strong support from Hungary, Poland and Slovenia,[68] this was entirely removed from the text following opposition from the European Parliament.[69] Equally, the preference of the Council and Commission to give Frontex the power to assist in “the preparation of return decisions” did not make it through the negotiations; the term was replaced with “the collection of information necessary for issuing return decisions.”[70] What this means in practice remains to be seen.

It is nevertheless clear that the agency’s powers regarding deportations, as with its other areas of activity, have been extended significantly. Along with information-gathering, it will be able to cooperate more extensively with other EU agencies, provide “equipment, resources and expertise for the implementation of return decisions and for the identification of third-country nationals,” establish and integrate new databases and information systems, take over various networks dealing with deportation that are currently run by national authorities, and incorporate return escorts and specialists into the new ‘standing corps’.

These powers are counter-balanced by new safeguards: specific requirements prohibiting the disclosure of any information to non-EU states “not necessary for the purpose of return” and to include officials with child expertise protection in removal operations, “where necessary”; alongside more general requirements for the Executive Director to consider the impact of any activity on fundamental rights and to suspend any activity, rather than just those at the external borders, when there are serious fundamental rights violations; new powers for the fundamental rights officer; and new powers for the European and national parliaments.

If the agency is supplied with a sufficient budget, it is almost certain that these new powers will permit an increase in the number of deportations it carries out, as well as extending its role in the organisation and coordination of those operations. The new safeguards appear relatively extensive on paper, yet Frontex has consistently failed to prioritise fundamental rights in its work in the past and it has been argued that the new safeguards “do not correspond to the expansion of powers and competencies of the agency in any of the areas of its activity”.[71] Leaving aside the broader question of whether Europe’s migration and border control policies can every truly be implemented in respect of fundamental rights, it is clear that significant pressure from MEPs and civil society organisations, and commitment from the newly-appointed fundamental rights officials within the agency, will be required for it to prioritise these new legal requirements.

 

The European Centre for Returns

Figure 12: The structure of the European Centre for Returns

The new roles given to the agency by the 2019 Regulation will be implemented by the European Centre for Returns (ECRet), a unit set up following the entry into force of the 2016 Regulation. ECRet is part of the agency’s ‘Operational Response Division’ (ORD), which also includes the ‘Field Deployment Unit’ and the ‘Coast Guard and Law Enforcement Unit’. As of late 2018, the ORD had an overall annual budget of some €116 million[72] (with some €47.8 million devoted to expulsions[73]) and 130 staff divided between the three units. However, there has been a significant recruitment drive – it was expected that 200 staff would be employed in the ORD by the end of 2018. Furthermore, a “steady growth in staff and budget allocated to the Division is expected to continue until 2020. This growth reflects the upscaling of the Joint Operations – in particular activities aiming at returning irregular migrants,” according to a job advert posted by the agency.[74] An internal programming document produced by the agency and obtained by Statewatch sets out the changes introduced by the 2019 Regulation; it foresees an equivalent of 71 full-time staff dedicated to deportations, with a budget of almost €60 million.[75]

The purpose of the ECRet is to support member states in increasing the number of people removed and in making return management systems more efficient.[76] It consists of a ‘Pre-Return Assistance Sector’ (PRAS) and a ‘Return Operations Sector’ (ROS), with further sub-divisions in each. The former is concerned with the coordination of “various activities required to implement effective returns,” focusing on the work that must be done before an individual can be expelled: identification, acquiring travel documents and “overall Third Country cooperation in the area of return”. It also works on “streamlining national case management systems” and training activities. The latter unit, ROS, is concerned with coordinating the operations themselves.[77]

The ECRet also deploys return specialists to member states at the request of national authorities. As noted above, following the entry into force of the 2016 Regulation, Frontex sought to develop a pool of 40 return specialists.[78] In 2017, one was deployed in Greece; in 2018, a further two were deployed to Bulgaria and Greece. According to a Frontex presentation, their “main achievements” included recommendations on the management of subsequent last minute asylum applications (known as ‘SALMAS’); develop ping a new tool to identify non-EU nationals; and the deployment of interpreters and screeners in detention centres.[79] A presentation produced by Greece’s Return Coordination Office states that Frontex return specialists are expected to identify “possible bottlenecks” and offer support to consular cooperation and return operations by sharing experience, to share “any special knowledge and know-how for specific nationalities” and information on procedures followed in their home state.[80]

 

A centralised deportations database

The 2019 Regulation gives Frontex extensive new powers to develop and operate databases and IT systems that are supposed to facilitate cooperation and coordination on expulsions between Frontex and member states. Indeed, these new obligations are perhaps the most novel of those introduced by the 2019 Regulation with regard to deportations.

A requirement for Frontex to “coordinate the use of relevant IT systems” was introduced in 2016 and the 2019 Regulation builds upon this, introducing a requirement to develop “a non-binding reference model for a national IT return case management system” and to provide assistance with “developing such [national] systems compatible with the model.” The purpose is to facilitate connections between national systems and those operated by the agency.[81] The 2019 Frontex Regulation does not establish a legal obligation to establish those connections, but the Commission’s September 2018 proposal for a revamped Returns Directive did – were those provisions to become law, national return management systems would have to be “set up in a way which ensures technical compatibility allowing for communication with the central system.”[82]

Frontex is also now formally required to develop “an integrated return management platform,”[83] although it was in the process of doing so before the new legislation was even proposed. A note sent by Frontex to national delegations in the Council in January 2019 refers to a September 2017 report on a “mapping exercise with regards to Return Case Management Systems (RECAMAS).” The agency’s programming document for the 2019-21 period, produced in October 2018, outlines a plan to “coordinate the use of IT systems”. The intention is to offer all member states a “gap analysis” of their national return case management systems, based on a model system designed by Frontex. The agency will then provide funds for member states to implement the findings of its analyses, with the aim of bringing national systems “as much as possible into line with the model RECAMAS”. This will “digitalise the return process, which will lead to greater efficiency,” and member states will also be offered “interconnection between FAR [the Frontex Application for Return] and the national RECAMAS.”[84]

There are currently[85] two key systems operated by the agency with regard to deportations – the Irregular Migration Management Application (IRMA)[86] and the Frontex Application for Return (which is integrated into IRMA).[87]

IRMA, which was initially developed and operated by the European Commission but has now been handed over to Frontex, is concerned with enhancing the ability of the EU and the member states to coordinate and conduct deportations through the provision of general data. FAR aims to rationalise and ‘streamline’ the implementation of return operations through the management of the authorities, personnel and deportees. Put more simply, IRMA is concerned with the big picture, and FAR with individual cases. The overall aim is to “increase the efficiency of returns in the EU, in terms of numbers, time and cost.”[88] Once an individual has been identified and located – perhaps with the assistance of one or more of the EU databases examined previously – and issued with an expulsion order, these two systems will be used to administer their removal from the EU.

The 2016 Regulation introduced a requirement for the agency to produce a “rolling operational plan” on return, so that it could provide member states with “the necessary assistance and reinforcements.” FAR is used to implement this plan:

“The FAR application pulls together, in one easily accessible and user-friendly format, the planned return operations by Member States, the announcement of participation in those operations, and all communication relating to a Frontex coordinated return operations [sic] as well as pre-return assistance. The advantage of the FAR application is the provision of planning and implementation progress of return operations at the European level.”[89]

Dataset Purpose
3. Persons ready to be returned (with Travel Document + identified + documented + available) (stock) This dataset will allow IRMA Countries or the EBCGA to take the initiative for the organisation of joint return operations.
5a. Number of persons with a return decision, needing identification (stock) This data is useful in that it enables IRMA Countries, the EBCGA and EURINT to coordinate identification missions.
5b. Number of persons with verification/identification requests/requests for ETD submitted by MS (flow) Datasets 5b to 5g will give indication on the level of cooperation of third countries on return and readmission.
5c. Number of persons identified positively with no ETD issued (flow)
5d. Number of persons with ETD issued (flow)
5e. Number of persons for whom negative replies to the identification request were received
5f. Number of persons with pending replies to the identification requests / no replies received (stock)
5g. Number of identifications performed/travel documents issued within deadline (where applicable) (flow)
6. Number of persons with EU Travel Documents readmitted by the third country (flow) This dataset gives information on the acceptance by third countries to readmit returnees on the basis of the EUTD. In the case of third countries with which readmission agreements have been signed, this is also a possible indicator on the level of implementation of the agreement.
7. Number of persons whose readmission was refused at the border (flow) This dataset, even if the numbers will be limited, give a strong signal of eventual lack of cooperation of a third country on readmission and return.

Table 4: Irregular Migration Management Application (IRMA) – purposes of datasets. Source: Council of the EU, ‘Irregular Migration Management Application (IRMA) – Technical guidelines for Return Operational Data Collection – Encryption of exchanged files = Endorsement’, 5202/1/18 REV 1, 17 January 2018, p.1

FAR was approved by the European Data Protection Supervisor (EDPS) in late 2018, although neither the EDPS opinion, nor Frontex’s proposals, have been made public.[90] It is thus not currently possible to see what recommendations the EDPS made to the agency, nor to know if or how any recommendations were met.

Nevertheless, the overall context in which it has been implemented are clear. Under the 2019 Regulation, Frontex can include in the rolling operational plan “the dates and destinations of return operations it considers necessary, based on a needs assessment.” It may do so on its own initiative (with the agreement of the member state concerned), or at a member state’s request.[91] Assistance with the assessment process comes from IRMA, which enables the collection of data on activities at member state level concerning expulsion proceedings and decisions, which will “provide a close-to-real-time overview of the operational situation in the area of return in order to facilitate the management and return of irregular migrants at EU level.”[92]

As noted above, aside from generally improving coordination between the agency and national authorities, one aim of these systems is to give Frontex a proactive, rather than reactive, role in the organisation of JROs. A document distributed within the Council sets out the purpose of a number of the different IRMA datasets, summarised in the table above. It also highlights that the “‘IRMA Request’ module will allow MS but also the Commission or EBCGA [Frontex] to ‘trigger’ specific return support measures/actions,” such as “the launch of joint return actions,” the “organisation of identification missions” or “shared use of facilities”. Aside from providing insight into the need for particular operations or actions, it is clear that the data being gathered is also intended to inform policy and diplomatic initiatives concerning non-EU states – for example, to assist with decisions on whether to punish a country for failing to cooperate with the readmission of its own nationals.[93]

 

Restrictions on data protection rights

While it might be expected that national and EU agencies would seek to ‘digitise’ the deportation process in the hope of making it more efficient, an unnerving restriction on individual rights accompanies these developments – the rules on FAR include an exemption that can be invoked to prevent individuals accessing their personal data. Thus, if the agency is handed incorrect data by a member state, an individual facing deportation may have no way of rectifying it before it results in their removal.[94]

The exemption was first introduced in 2016 as part of the new provisions intended to significantly increase the agency’s role in deportations.[95] It is maintained in the 2019 Regulation,[96] which reiterates that restrictions will be applied “on a case-by-case basis as long as the application of those provisions would risk jeopardising return procedures.”[97]

A variety of data is entered into FAR by national authorities in the process of coordinating removal proceedings. According to the system’s data protection notice, it covers:

“name and surname, destination of departure and destination of arrival, date of birth, nationality, gender, country of origin, type and validity of travel document, whether the returnee is healthy or not, whether it is a voluntary or forced return and a security risk assessment.”[98]

The notice states that deportees have the right to rectification of inaccurate data; to request restrictions on processing; and to object to the processing of their personal data. However, the exercise of these rights is dependent on the individual’s right to access their data. On a “case-by-case basis” and “as long as the exercise of such right would risk to jeopardise the return procedure,” individuals can be denied access to their data “for reasons of national security, public security and defence of the Member States.”

EU data protection legislation does permit the application of restrictions to data subjects’ rights regarding issues such as national security, the investigation of criminal offences, the protection of judicial independence and “other important objectives of general public interest of the Union or of a Member State”, which includes the management of migration. Furthermore, during negotiations between the Council and Parliament, the text of what would become the 2019 Regulation was amended to take into account suggestions from the EDPS that made improvements to the original proposal.[99] Nevertheless, it remains unclear whether Frontex or the relevant national authority would be responsible for making the decision on applying the restriction, and while the internal rules may have been approved by the EDPS, that approval (and the justifications for the decision) have not been made public.

In the context of deportation proceedings, mistakes in decision-making can have extremely serious, even life-threatening, implications. Accurate personal data is essential for accurate decision-making. The UK Data Protection Act 2018 (which implemented the EU’s General Data Protection Regulation into domestic law) included an exemption restricting data subjects’ rights in the name of ensuring “effective immigration control”. This was challenged in court by Open Rights Group and the3million,[100] who argued that it would make it impossible to “properly challenge errors made by the [UK] Home Office. This could lead to applications relating to immigration statuses being wrongly refused or wrongful deportations taking place.”[101]

A court ruled against the challenge in early October 2019,[102] but the groups are seeking permission to appeal. In a statement issued in response to the judgement, they said:

“We still believe that the immigration exemption in the Data Protection Act 2018 as it stands breaches fundamental rights. It is a blunt instrument, poorly defined and ripe for abuse… This exemption removes [the] ability to correct errors, which could prove decisive in immigration decisions whether to allow a person to remain in the United Kingdom.”[103]

There are further curiosities in the FAR data protection notice. It also states: “Personal data are not transferred by Frontex to third countries and/or international organisations.” However, it is hard to see how it would be possible to ensure that the correct people are disembarked from a deportation flight, in the correct country, without checking their details with the ‘receiving’ authorities – whose cooperation is essential for any removal operation. Indeed, while the 2016 Frontex Regulation prohibited Frontex or the member states transferring personal data to “authorities of third countries or third parties, including international organisations,”[104] this prohibition did not apply with regard to “return activities”. The 2019 Regulation is even more permissive, permitting international transfers of personal data “insofar as such transfer is necessary for the performance of the Agency’s tasks,”[105] covering return and all other areas of activity. The original notification sent by Frontex to the EDPS concerning FAR made clear that lists of returnees would be handed over to the destination state.[106]

There is no specific requirement in the legislation for either Frontex’s data protection officer or the EDPS to have oversight of the processing of personal data in the context of Frontex’s expulsion operations, but this is an issue of the utmost importance. Enormous risks to individual rights arise from denying individuals the right of access to their data in immigration proceedings, where the accuracy of that data is crucial to ensuring they are treated fairly and correctly. Those risks begin at the national level – in particular in a country such as the UK that has introduced sweeping exemptions to individual rights – but are multiplied when an increasing number of deportations are coordinated by Frontex, which may also apply exemptions to data subjects’ rights.

 

Access to other systems

In order to enhance its ability to conduct a number of tasks – including expulsions – Frontex officials will be given access to a number of the databases and information systems discussed earlier in this report, such as the SIS and the VIS. The purpose of doing so is to facilitate the new tasks that have been afforded to Frontex in recent years; and to boost its longstanding information-gathering and analysis abilities.

Members of Frontex teams, migration management support teams and staff involved in “return-related tasks” will be able to consult information in the Schengen Information System (SIS) for carrying out border checks, border surveillance and forced removals,[107] “insofar it is necessary for the performance of their task and as required by the operational plan for a specific operation.”[108]

To do so, an interface providing direct connection to the Central SIS is to be established. Members of the teams (who are deployed ‘on the ground’ in the member states, rather than operating from Frontex’s headquarters in Warsaw), may only to act in response to ‘hits’ resulting from searches of the SIS under instructions from the authorities of their host state and, “as a general rule, in the presence of border guards or staff involved in return-related tasks of the host Member State in which they are operating.” However, this requirement can be waived by the host authorities.[109]

In relation to expulsions, one purpose of giving Frontex staff access to the SIS is to allow the examination of expulsion orders issued to deportees on Frontex-coordinated removal flights, to ensure that those orders remain in force[110] – a useful safeguard, if the national authorities ensure that the relevant information is up-to-date. It seems, however, that this is not always the case, with potentially disastrous consequences.[111] At the time of writing this report, Frontex was seeking a framework contract worth up to €5 million for an “effective ICT solution (i.e. A2SISII System) that will enable European Border and Coast Guard Agency teams to access to Schengen Information System in line with current Regulations”.[112]

If the Commission’s proposal on the Visa Information System is approved by the Council and Parliament, members of Frontex teams will also be given access for three purposes: conducting border checks; “verifying whether the conditions for entry to, stay or residence on the territory of the Member States are fulfilled,” and “identifying any person that may not or may no longer fulfil the conditions for the entry to, stay or residence on the territory of the Member States.”[113]

Under the proposed rules, members of Frontex teams would require authorisation from their host member state to conduct searches in the VIS. These searches would appear to take place through a rather convoluted procedure, given the potential deployment of Frontex officials at border crossings or elsewhere in national territory. The agency will have to establish a “central access point” to which team members will have to make requests to access the system. The intention is to presumably ensure that requests are duly authorised – but with members of Frontex teams making access requests to a unit at the Frontex headquarters in Warsaw, the agency will be authorising itself.[114] As with SIS, a requirement for team members to have authorisation from host authorities to act upon ‘hits’ in the VIS is included, but may be waived by those authorities.[115]

Frontex will also be given access to the Entry/Exit System (EES), with the aim of improving its provision of information to national authorities. A range of information held in the EES will be available to the agency for the purpose of conducting risk analysis and ‘vulnerability assessments’.[116] The former concerns “migratory flows towards the Union, and within the Union in terms of migratory trends, volume and routes, and other trends or possible challenges at the external borders and with regard to return.”[117] The aim of the latter is “to assess the capacity and readiness of Member States to face present and upcoming challenges at the external borders,” and to identify any states “facing specific and disproportionate challenges,” in order to inform operational response from the agency and national authorities.

Finally, the proposal to expand Eurodac would give officials of both Frontex and the European Asylum Support Office the power to take and transmit the fingerprints of applicants for international protection and individuals apprehended in connection with irregularly crossing an external border of the Schengen area. This would require the permission of the member state in which those officials were operating. Neither agency would have any powers to search the database.[118] Negotiations on the proposal are ongoing.

 


[1] Quoted in Angeliki Dimitriadi, ‘The European border guard: New in name only?’, European Council on Foreign Relations, 2 June 2016, http://www.ecfr.eu/article/commentary_the_european_border_guard_new_in_name_only_7035

[2] Quoted in Herbert Rosenfeldt, ‘Establishing the European Border and Coast Guard: all-new or Frontex reloaded?’, EU Law Analysis, 16 October 2016, https://eulawanalysis.blogspot.com/2016/10/establishing-european-border-and-coast.html

[3] European Commission fact sheet, ‘European Agenda on Migration: Securing Europe's External Borders’, 15 December 2015, http://europa.eu/rapid/press-release_MEMO-15-6332_en.htm

[4] European Parliament press release, ‘European Border and Coast Guard: Parliament and Council strike provisional deal’, 22 June 2016, http://www.europarl.europa.eu/news/en/press-room/20160621IPR33114/european-border-and-coast-guard-parliament-and-council-strike-provisional-deal

[5] The Regulation entered into force in September 2016. Section 4 (Articles 27-33) deals with the agency’s role in “return”. See: Regulation (EU) 2016/1624 of the European Parliament and of the Council of 14 September 2016 on the European Border and Coast Guard, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32016R1624

[6] Frontex, ‘European Border and Coast Guard Agency launches today’, 6 October 2016, https://frontex.europa.eu/media-centre/news-release/european-border-and-coast-guard-agency-launches-today-CHIYAp

[7] Council Regulation (EC) No 2007/2004 of 26 October 2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the member states of the European Union, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32004R2007

[8] Regulation (EU) No 1168/2011 of the European Parliament and of 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, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.L_.2011.304.01.0001.01.ENG&toc=OJ:L:2011:304:TOC. See also: Steve Peers, ‘The Frontex Regulation – Consolidated text after 2011 amendments’, http://www.statewatch.org/analyses/no-140-frontex-reg-text.pdf

[9]Article 27(4), 2016 Regulation

[10] Article 8(1) and 8(1)(l), 2016 Regulation: “The Agency shall perform the following tasks with a view to contributing to an efficient, high and uniform level of border control and return… assist Member States in circumstances requiring increased technical and operational assistance to implement the obligation to return returnees, including through the coordination or organisation of return operations”.

[11] Chapter II, Section 4, 2016 Regulation

[12] In the case of the new powers proposed by the Commission, the proposal was not accompanied by an impact assessment, despite this being a requirement for Commission initiatives “likely to have significant economic, environmental or social impact.” As the European Data Protection Supervisor noted, this made it impossible to properly assess the “benefits and impact, notably on fundamental rights and freedoms”.

[13] COM(2018) 631 final, 12 September 2018, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=COM:2018:631:FIN

[14] ‘Frontex Programming Document 2020-2022’, contained in Council document 5117/20, 9 January 2020

[15] This phrase was introduced in the 2016 Frontex Regulation and reflects the long-standing objective of developing a system of “integrated border management”. While it was referred to once in the 2016 Regulation, it appears four times in the 2019 text.

[16] Article 48, 2019 Regulation

[17] A European Ombudsman inquiry found “EASO is being encouraged politically to act in a way which is, arguably, not in line with its existing statutory role,” and that while “ultimate legal responsibility for decisions on individual asylum applications rests with the Greek authorities,” there are “genuine concerns about the quality of the admissibility interviews as well as about the procedural fairness of how they are conducted.” See: European Ombudsman, ‘Decision in case 735/2017/MDC’, 5 July 2018, https://www.ombudsman.europa.eu/en/decision/en/98711

[18] Article 48(2), 2019 Regulation

[19] ‘Frontex - New Cooperation Plan signed with EASO’, Statewatch News, 25 July 2019, http://www.statewatch.org/news/2019/jul/eu-frontex-easo.htm

[20] Article 48(1)(a)(iii) and (iv), 2019 Regulation

[21] European Commission, ‘Assisted voluntary return’, https://ec.europa.eu/home-affairs/what-we-do/networks/european_migration_network/glossary_search/assisted-voluntary-return_en

[22] Article 48(1), 2019 Regulation

[23] ‘'Roadmap' for implementing new Frontex Regulation: full steam ahead’, Statewatch News, 25 November 2019, http://www.statewatch.org/news/2019/nov/eu-frontex-roadmap.htm

[24] Article 27(c), 2016 Regulation

[25] Article 48(1)(c), 2019 Regulation

[26] ‘About ERRIN’, https://returnnetwork.eu/about-errin/

[27] European Commission, ‘Eurint network’, https://ec.europa.eu/home-affairs/what-we-do/networks/european_migration_network/expert-groups_en/eurint-network_en

[28] Frontex, ‘Programming Document 2019-2021’, 18 October 2018, p.29, https://frontex.europa.eu/assets/Key_Documents/Programming_Document/2019/Programming_document_2019-2021.pdf

[29]‘Frontex Programming Document 2020-2022’, contained in Council document 5117/20, 9 January 2020

[30] Ibid., p.88

[31] European Commission, ‘EU Action Plan on Return’, COM(2015) 453 final, 9 September 2015, footnote 22, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52015DC0453

[32] European Commission, ‘Report on the operationalisation of the European Border and Coast Guard’, COM(2017) 42 final, 25 January 2017, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=COM:2017:0042:FIN

[33] Article 14(4) in Steve Peers, ‘The Frontex Regulation – Consolidated text after 2011 amendments’, 2011, http://www.statewatch.org/analyses/no-140-frontex-reg-text.pdf

[34] Article 77, 2019 Regulation

[35] Regulation (EU) 2019/1240 of the European Parliament and of the Council of 20 June 2019 on the creation of a European network of immigration liaison officers, https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32019R1240. See also: European Parliament, ‘Revision of the immigration liaison officers network: Implementation Appraisal’, 16 May 2018, https://www.europarl.europa.eu/thinktank/es/document.html?reference=EPRS_BRI(2018)621810

[36] Article 55, 2016 Regulation

[37] Frontex, ‘Liaison Officers Network’, last accessed 10 December 2019, https://frontex.europa.eu/partners/liaison-officers-network/

[38] Article 2, ‘Management Board Decision 41/2016’, https://frontex.europa.eu/assets/Key_Documents/MB_Decision/2016/MB_Decision_41_2016_on_return_pools.pdf

[39] Article 31(1), 2016 Regulation

[40] Article 54(1), 2019 Regulation:

Category 1: statutory staff deployed as team members in operational areas (Article 55) and staff responsible for the ETIAS Central Unit. Category 2: staff long-term seconded from Member States to the Agency as part of the standing corps (Article 56). Category 3: staff from member states ready to be provided to the agency for short-term deployment as part of the standing corps (Article 57). Category 4: the reserve for rapid reaction consisting of staff from the member states ready to be deployed in accordance with Article 58 for the purposes of rapid border interventions in accordance with Article 39.

[41] As contained in the ‘Frontex Programming Document 2020-2022’, contained in Council document 5117/20, 9 January 2020

[42] ‘Management Board Decision 1/2020’, 4 January 2020, https://frontex.europa.eu/assets/Key_Documents/MB_Decision/2020/MB_Decision_1_2020_adopting_the_profiles_to_be_made_available_to_the_EBC....pdf

[43] Article 51, 2019 Regulation

[44] Article 110(6), 2019 Regulation. The European Parliament, which introduced this requirement during negotiations on the text, initially sought the appoint of 100 monitors.

[45] Article 110(2)(b), 2019 Regulation

[46] Article 51, 2019 Regulation

[47] Article 40, 2019 Regulation

[48] Article 53, 2019 Regulation; Article 33(1), 2016 Regulation.

[49] Article 48(1)(a)(ii), 2019 Regulation

[50] ‘Management Board Decision 1/2020 adopting the profiles to be made available to the European Border and Coast Guard Standing Corps’, 4 January 2020, https://frontex.europa.eu/assets/Key_Documents/MB_Decision/2020/MB_Decision_1_2020_adopting_the_profiles_to_be_made_available_to_the_EBC....pdf

[51] Article 68(1)(d) and 68(2), 2019 Regulation

[52] Contained in Council document 5117/20, 9 January 2020

[53] Article 3, Regulation 2007/2004, as amended

[54] Article 25, 2016 Regulation

[55] Article 46(5), 2019 Regulation

[56] Article 46(6), 2019 Regulation: “The decisions referred to in paragraphs 4 and 5 shall be based on duly justified grounds. When taking such decisions, the executive director shall take into account relevant information such as the number and substance of registered complaints that have not been resolved by a national competent authority, reports of serious incidents, reports from coordinating officers, relevant international organisations and Union institutions, bodies, offices and agencies in the areas covered by this Regulation. The executive director shall inform the management board of such decisions and provide it with justifications therefor.”

[57] Interview with Annegret Kohler, 21 May 2019

[58]

[59] European Commission press release, ‘Migration and Asylum: Commission takes further steps in infringement procedures against Hungary’, 19 July 2018, https://ec.europa.eu/commission/presscorner/detail/en/IP_18_4522

[60] ‘NGOs, EU and international agencies sound the alarm over Frontex's respect for fundamental rights’, Statewatch News, 5 March 2019, http://www.statewatch.org/news/2019/mar/fx-consultative-forum-rep.htm; ‘Frontex condemned by its own fundamental rights body for failing to live up to obligations’, Statewatch News, 21 May 2018, http://www.statewatch.org/news/2018/may/eu-frontex-fr-rep.htm

[61] Article 110(6), 2019 Regulation

[62] Article 110, 2019 Regulation

[63] Article 109, 2019 Regulation

[64] Article 102(1), 2019 Regulation

[65] Article 104(7), 2019 Regulation

[66] Article 106(2), 2019 Regulation

[67] Article 112, 2019 Regulation

[68] Council of the European Union, Draft REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the European Border and Coast Guard and repealing Regulations (EU) No 1052/2013 and (EU) 2016/1624 (first reading) Statements, 29 October 2019, https://data.consilium.europa.eu/doc/document/ST-13329-2019-ADD-2-REV-1/en/pdf

[69] Article 10(23) of the proposal would have permitted Frontex to “support third countries in the coordination or organization of return activities from other third countries, including the sharing of personal data for return purposes”. See: Nikolaj Nielsen, ‘Frontex set to help Balkan states deport migrants’, EUobserver, 28 March 2019, https://euobserver.com/migration/144521; ‘New roles for Frontex agreed by Council and Parliament - but externalised deportations excluded’, Statewatch News, 1 April 2019, http://www.statewatch.org/news/2019/
mar/eu-frontex-returns-non-eu.htm

[70] Article 48(1)(a), 2019 Regulation

[71] Mariana Gkliati, ‘The new European Border and Coast Guard: Do increased powers come with enhanced accountability?’, EU Law Analysis, 17 April 2019, https://eulawanalysis.blogspot.com/2019/04/the-new-european-border-and-coast-guard.html

[72] ‘Senior Coordinating Officer (Senior Team Leader) in European Centre for Returns (AD9)’, https://microsite.frontex.europa.eu/en/recruitments/RCT-2018-00073/422

[73] Frontex, ‘Budget 2018 N5’, 12 December 2018, https://frontex.europa.eu/assets/Key_Documents/Budget/Budget_2018_N5.pdf

[74] ‘Senior Coordinating Officer (Senior Team Leader) in European Centre for Returns (AD9)’, https://microsite.frontex.europa.eu/en/recruitments/RCT-2018-00073/422

[75] ‘Frontex Programming Document 2020-2022’, contained in Council document 5117/20, 9 January 2020

[76] https://frontex.europa.eu/assets/Publications/General/EU_Centre_For_Returns_2019.pdf

[77] ‘Coordinating Officer in European Centre for Returns – 2 posts’, https://microsite.frontex.europa.eu/en/recruitments/RCT-2018-00082

[78] Article 2, ‘Management Board Decision 41/2016 of 6 December 2016 adopting the profiles and the overall numbers of experts to be made available to the pools of forced-return monitors, forced-return escorts and return specialists’, https://frontex.europa.eu/assets/Key_Documents/MB_Decision/2016/MB_Decision_41_2016_on_return_pools.pdf

[79] Frontex, ‘Training for Return Specialists – 17-20 September 2018, Amsterdam, The Netherlands’, http://www.statewatch.org/docbin/eu-frontex-deportations-training-for-return-specialists.pdf

[80] ‘Training Course for Return Specialists – Presentation RCO, Amsterdam, 18 September 2018’, http://www.statewatch.org/docbin/eu-frontex-deportations-presentation-greece.pdf

[81] Article 48(1)(c) and (d), 2019 Regulation

[82] Article 14(2), Proposal for a Directive of the European Parliament and of the Council on common standards and procedures in Member States for returning illegally staying third-country nationals (recast), COM(2018) 634 final, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:52018PC0634

[83] Article 49(1) of the 2019 Regulation states that the agency must “operate and further develop… an integrated return management platform for processing information, including personal data, transmitted by the Member States’ return management systems, that is necessary for the Agency to provide technical and operational assistance.”

[84] Frontex, ‘Programming Document 2019 – 2021’, p.88, https://frontex.europa.eu/assets/Key_Documents/Programming_Document/2019/Programming_document_2019-2021.pdf

[85] More systems may be put in place. The 2019 Regulation also contains a further, extremely vague, provision in Article 49(2), which states that Frontex “shall develop, deploy and operate information systems and software applications allowing for the exchange of information for the purpose of return within the European Border and Coast Guard and for the purpose of exchanging personal data.”

[86] “A restricted and secure information exchange platform developed by the European Commission which connects EU Member and Schengen States, the European Commission, the European Border and Coast Guard Agency (Frontex) and the relevant EU funded programmes at operational, practitioner level and which facilitates the planning, organisation and implementation of return and readmission activities with the objective of making return procedures more effective.” The name ‘IRMA’ is used due to the original title: Integrated Return Management Application. The reason for the name change is unknown, although it suggests more ambitious plans for the platform than for simply dealing with expulsion operations. See: European Commission, ‘Irregular Migration Management Application (IRMA)’, https://ec.europa.eu/home-affairs/content/irregular-migration-management-application-irma_en

[87] FAR will allow Frontex “to better coordinate return operations, and better collect Member States’ needs for assistance. The Frontex Application for Return will be connected with the Integrated Return Management Application (IRMA) developed by the Commission. The combination of both applications will allow the Agency to actively contribute to achieving an effective exchange of return related information among all Member States and proactively propose return operations to Member States, as one of the possible measures to increase the number of returns.” See: Letter from the European Commission, C(2017) 5553 final, 2 August 2017, https://ec.europa.eu/transparency/regdoc/rep/3/2017/EN/C-2017-5553-F1-EN-MAIN-PART-1.PDF

[88]

[89] Frontex, ‘General Report 2015’, p.32, https://frontex.europa.eu/assets/Key_Documents/Annual_report/2015/General_Report_2015.pdf

[90] An initial notification was submitted to the EDPS in September 2017, but was subsequently withdrawn. It remains publicly-accessible on the EDPS website.

[91] Article 51(2), 2019 Regulation

[92] General Secretariat of the Council, ‘Irregular Migration Management Application (IRMA) – Technical guidelines for Return Operational Data Collection – Encryption of exchanged files = Endorsement’, 5202/1/18 REV 1, 17 January 2018, p.1, https://data.consilium.europa.eu/doc/document/ST-5202-2018-REV-1/en/pdf

[93] The EU’s recently-revised Visa Code includes a requirement for the Commission to monitor the level of cooperation of non-EU states with regard to return and readmission. If they are not deemed to be cooperating sufficiently, it will be possible to raise visa fees, require more documents to accompany visa applications, slow down processing times and/or limit the issue of multiple-entry visas as part of a ‘carrot and stick’ approach See: Steve Peers, ‘The revised EU visa code: controlling EU borders from a distance’, 17 April 2019, https://eulawanalysis.blogspot.com/2019/04/the-revised-eu-visa-code-controlling-eu.html

[94] Paragraph 100 of the preamble to the new Regulation states: “it is necessary for the Agency to be able to restrict certain rights of data subjects so as to prevent the abuse of such rights from impeding the proper implementation of return procedures and the successful enforcement of return decisions by the Member States or from preventing the Agency from performing its tasks efficiently. In particular, the exercise of the right to the restriction of processing could significantly delay and obstruct the carrying out of the return operations. Furthermore, in some cases, the right of access by the third-country national could jeopardise a return operation by increasing the risk of absconding should the third-country national learn that the Agency is processing his or her data in the context of a planned return operation. The right to rectification could increase the risk that the third-country national in question will mislead the authorities by providing incorrect data. In order to enable the Agency to restrict certain rights of data subjects, it should be able to adopt internal rules on such restrictions.”

[95] Article 28(2) of the 2016 Regulation, to be superseded by Article 51(2) of the 2019 Regulation.

[96] The European Data Protection Supervisor (EDPS) was extremely critical of the proposal for the 2019 Regulation. Aside from the fact that the EDPS was not formally consulted on the legislation, the organisation highlighted that there was – amongst other things - a lack of clear allocation and definition of responsibility between Frontex and the member states; a lack of clear identification of and distinction between the purposes of data processing, uncertainty regarding procedures and responsibility due to the impact on other EU rules; uncertainty regarding limits on data-sharing. See: Formal comments of the EDPS on the Proposal for a Regulation on the European Border and Coast Guard, https://edps.europa.eu/data-protection/our-work/publications/comments/formal-comments-edps-proposal-regulation-european-0_en

[97] Article 86(2) of the 2019 Regulation refers to restrictions to the application of Article 14 to 22, 35 and 36 of Regulation 2018/1725, https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX:32018R1725

[98] ‘Data protection notice for Frontex Application for Return (FAR)’, undated, https://frontex.europa.eu/assets/Data_Protection/Data_Protection_Notice_Returns.pdf. Frontex’s withdrawn notification to the EDPS went far beyond this. It proposed a “drop-down list” that would be included in FAR, containing the following: Not security risk; Criminal activity; Dirty protester; Disinhibited behaviour; Disruptive behaviour; Escapee; Food/Fluid refusal; Known suicide attempt; Known violent behaviour; Mental illness; National security; Serious criminal activity; Threat of self-harm.

[99] The EDPS highlighted that the text as proposed voided the data subject’s rights of any meaning and proposed a series of amendments, which were included in the final text. See: ‘Formal comments of the EDPS’, 30 November 2018, pp.15-16, https://edps.europa.eu/sites/edp/files/publication/18-11-30_comments_proposal_regulation_european_border_coast_guard_en.pdf

[100] The exemption states that individual rights to information, confirmation, erasure, restriction and objection set out in the GDPR do not apply if they would prejudice “the maintenance of effective immigration control” or “the investigation or detection of activities that would undermine the maintenance of effective immigration control”. See: ‘Immigration’ in Schedule 2, Exemptions etc. from the GDPR, Data Protection Act 2018, http://www.legislation.gov.uk/ukpga/2018/12/schedule/2

[101] ‘Campaign groups granted permission for judicial review of immigration exemption’, Leigh Day, https://www.leighday.co.uk/News/2019/January-2019/Campaign-groups-granted-permission-for-judicial-re

[102] Open Rights Group and the3million v Secretary of State for the Home Department, [2019]EWHC 2562 (Admin), 3 October 2019, http://www.statewatch.org/news/2019/oct/uk-org-3million-data-protection-exemption-case-judgment-3-10-19.pdf

[103] ‘Open Rights Group and the3million seek to appeal immigration exemption judgment’, Open Rights Group, 3 October 2019, https://www.openrightsgroup.org/press/releases/2019/open-rights-group-and-the3million-seek-to-appeal-immigration-exemption-judgment

[104] Article 45(4), 2016 Regulation

[105] Article 86(3), 2019 Regulation

[106] The notification, which was subsequently withdrawn, stated: “the returnees list, extract from the passengers list, is to be handed over to the Authorities of the Destination Country (DC), according to the readmission procedure and to readmission agreements when implemented, either by the OMS. [sic] The Destination Country can then initiate the relevant verifications before the handover of the returnees.”

[107] Article 17(3), Regulation 2018/1860, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32018R1860

[108] This concerns the rules on the SIS relating to return, border checks and police and judicial cooperation: Article 36(1), Regulation 2018/1861, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32018R1861; Article 50(1), Regulation 2018/1862, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32018R1862

[109] Article 36(3), Regulation 2018/1861

[110] Article 50(2), 2019 Regulation

[111] Report to the Italian Government on the visit to Italy carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 16 to 18 December 2015, http://hudoc.cpt.coe.int/eng?i=p-ita-20151216-en-2

[112] ‘Poland-Warsaw: Framework Contract for the Development of ICT Software Solution for EBCG Team Members Access to Schengen Information System (A2SISII)’, 14 February 2020, https://ted.europa.eu/udl?uri=TED:NOTICE:074107-2020:TEXT:EN:HTML

[113] Article 45d and 45e(5), Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Regulation (EC) No 767/2008, Regulation (EC) No 810/2009, Regulation (EU) 2017/2226, Regulation (EU) 2016/399, Regulation XX/2018 [Interoperability Regulation], and Decision 2004/512/EC and repealing Council Decision 2008/633/JHA, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:52018PC0302

[114] Ibid., Article 45e(1)

[115] Ibid., Article 45e(3)

[116] Article 63(1), Regulation (EU) 2017/2226 of the European Parliament and of the Council of 30 November 2017 establishing an Entry/Exit System (EES), https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32017R2226

[117] Article 29(1), 2019 Regulation. For an overview of the new powers of the agency concerning ‘internal’ surveillance, see: ‘Monitoring “hotspots” and “secondary movements”: Frontex is now an internal surveillance agency’, Statewatch Analysis¸ December 2019, http://www.statewatch.org/analyses/no-348-frontex-internal-surveillance.pdf

[118] European Commission, Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the establishment of 'Eurodac' for the comparison of fingerprints for the effective application of [Regulation (EU) No 604/2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person] , for identifying an illegally staying third-country national or stateless person and on requests for the comparison with Eurodac data by Member States' law enforcement authorities and Europol for law enforcement purposes (recast), https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:52016PC0272


 

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