20 July 2020
In February, three MEPs visited the Warsaw headquarters of Frontex, the EU’s border agency, to assess implementation of its new mandate, which entered into force in December last year. A report on their mission presents a snapshot of Frontex’s current operations, work on deportations and relations with non-EU states, research activities and fundamental rights issues.
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The delegation was made up of MEPs that sit on the European Parliament’s civil liberties committee (LIBE), from three different political groups: the Progressive Alliance of Socialists and Democrats (S&D), European Conservatives and Reformists (ECR), and the liberal Renew Europe group.
Of very high relevance to operations at sea and possible search and rescue activities, especially given recent pressure from Statewatch and other organisations across the world to prevent refoulements to Libya, Frontex’s own Fundamental Rights Office reported to the LIBE MEPs that they “advised against the disembarkation of rescued persons in third countries”.
The “game changer” of the agency’s standing corps of officers, currently being recruited, is also discussed, with hope that it will provide Frontex with an opportunity to improve fundamental rights standards and address the agency’s current gender imbalance. However, according to the mission report, “more resources would be needed to properly design and implement the training on fundamental rights”. The agency is also of the view that despite measures to encourage women to apply, “gender balance will … not be possible to achieve”.
The EU’s Staff Regulations, mentioned in the agency’s internal “state of play” report, were also discussed. Designed primarily for staff working in offices, the Regulations include a uniform retirement age and disciplinary proceedings. It seems that the expansion of the agency’s operational staff has been undertaken before agreement has been reached on how to manage physical demands on staff, or oversight of its own disciplinary procedure.
Obstacles to recruitment of sufficient staff, in terms of quality as well as quantity, lie in the lower remuneration available for posts based in Poland (compared to say, Brussels), and the “shortage of appropriate psychological assistance, which is essential for the staff to properly do their jobs”. These jobs involve, says the mission report, being “confronted with dying migrants and human misery while being on mission away from home”. The role of EU migration policies in creating situations in which such dangerous and miserable conditions arise does not feature in the report.
The Council Presidency has proposed a 43% reduction on original figures slated for the agency’s budget for the next seven years (under ongoing MFF proposals), which Executive Director Fabrice Leggeri considers a further fundamental obstacle to the build-up of the agency’s standing corps and transition to acquiring its own technical equipment.
Returns and relations with non-EU states
The report refers to preparation of a methodology currently underway to ensure that a fundamental rights perspective is considered when assessing Frontex’s work with non-EU countries. However, it is not clear whether it is Frontex itself, or an external partner developing this. According to the mission report, the agency provides training on fundamental rights to the relevant authorities of third countries, including to the Libyan coastguard.
The report also outlines concerns of Frontex’s Consultative Forum and Fundamental Rights Office that the agency’s own internal training is lacking in this subject area. The report says that “in view of the [Fundamental Rights] Office the curricula for training still need to better integrate fundamental rights aspects”.
The mission report discusses Frontex’s increased role in the area of deportations, and reveals that the agency will be collecting statistics to inform the implementation of the new Visa Code, in order to impose “certain restrictive measures against third countries that do not cooperate with the EU in the area of readmission”. This represents an intensification of attempts across EU policy and activities to make use of “leverages” in trying convince non-EU states to cooperate on readmission, as documented by Statewatch.
New work is foreseen for the agency in “supporting the integration of returnees in their home country” after they have been deported, though the mission report emphasises that member states’ expectations in this area may be higher than the agency can deliver. Post-arrival assistance will, according to the report, “require substantive resources” that may not be provided by the forthcoming 2021-27 MFF. However, within its budget, it is surely up to the agency to ensure spending is allocated so that the operations to which it gives priority, such as returns, do not put individuals in danger.
Regarding specific return operations, the mission report logs that the Consultative Forum has recommended to Frontex that it not support any return operations from Hungary, due to the agency’s “obligation to withdraw support in operations where fundamental rights are not respected.”
The mission report also summarises the progress of Status Agreements with states in the Western Balkans. Since the entry into force of the Agreement between the EU and Albania last year, 55 officials and nine items of technical equipment have been deployed by Frontex in Albania. As well as the planned entry into force of agreements with Bosnia and Herzegovina, Montenegro, North Macedonia, and Serbia, Frontex is increasing its presence in the area through the deployment of liaison officers (a new officer will be placed in Tirana, while one is already based in Belgrade) and a greater agency presence at the Croatian border with Bosnia and Herzegovina. According to the report, Frontex has proposed a joint operation at Croatia’s land border with Bosnia, but no such operation is currently underway.
As well as EU states and Serbia, liaison officers are posted in Turkey, Niger, and Senegal. There is no set role description for liaison officers – rather, they respond to the location and work on a range of areas such as facilitating return, implementing status agreements (in the Western Balkan states), preparing for operations on the ground, implementing training and carrying out research projects, information exchange and situational awareness (Niger). A new Regulation establishing a network of European immigration liaison officers, aiming for greater EU-level coordination of the officials deployed to non-EU countries for the purpose of monitoring migration flows, entered into force in May last year.
The report details sources of information used by Frontex for its comprehensive “situational awareness” – a term most people would better understand simply as “surveillance”. As well as media monitoring, planes, drones, satellite images, “humans”, vessel tracking systems and information exchange, the following passage of the report is particularly striking:
“Members were given as an example the monitoring of social media in order to be aware of groups of persons organising in order to move towards the EU external borders”.
In 2019, after an enquiry from the organisation Privacy International outlining data protection concerns, Frontex cancelled an invitation to tender for businesses to carry out such social media research. This tender was itself issued after EASO, the European Asylum Support Office, was banned by the European Data Protection Supervisor from undertaking social media monitoring because such a practice by the agency was illegal. It would appear that though the procurement is no longer public, it is still an area of high interest to Frontex.
The report presents numerous concerns in the area of fundamental rights, and work is underway to improve the agency’s outdated Fundamental Rights Strategy, which was last amended in 2011.
The LIBE report records representatives of the Consultative Forum stating that the ten staff working in the Fundamental Rights Office (FRO) are “definitely not enough despite repeated calls internally from them and from the European Parliament” for an increase, explaining:
“Ways have to be found out of the impasse of the past years during which the need for more staff was consistently raised while the Frontex management maintained that the number of staff was sufficient”.
Frontex’s new Regulation, which entered into force in December, requires that 40 fundamental rights officers be in post by the end of this year. Due to the current understaffing, the FRO cannot properly fulfil its role of supporting training for the standing corps, or ensure comprehensive fundamental rights training for return activities. The FRO is of the opinion that training as it stands needs to better integrate fundamental rights aspects.
The individual complaints mechanism is also under scrutiny, with just 18 complaints received in 2019, nine of which were admissible. Awareness-raising activities are increasing the number of incoming complaints, anda video that has been planned for at least a year is still in the making. According to the LIBE report, complaints can currently “only be made within the context of Frontex activity. However, the lines between Frontex and national activity can be very blurred,” which risks some complaints falling through the cracks. The Consultative Forum on Fundamental Rights further highlights that the low number of reports received cannot give a full indication of fundamental rights standards in Frontex operations, proposing that anonymous complaints also be admissible to increase use of the mechanism.
Nine serious incident reports (submitted by officials on Frontex operations) were received by the FRO last year. Most such reports currently concern member state authorities or staff (as the standing corps is not yet operational) and it can take member states a very long time to investigate them and update the FRO on any actions taken.
The mission report describes Frontex as “very data protection oriented”. The agency’s Data Protection Officer (appointed in accordance with Regulation (EU) 2018/1725 to ensure its internal application by the agency) is working on six implementing decisions on data protection, with input from the European Data Protection Supervisor. Further training is required in this area, as the report outlines that “one of the main challenges the Agency is faced with is to increase the awareness among border guards of the importance of data protection”.
The LIBE representatives acknowledge that a reduction of Frontex’s budget under the new MFF would impede the recruitment of the standing corps, and maintain Frontex’s current dependence on member states’ contributions for equipment.
Among other recommendations, the MEPs call on Frontex to ensure that fundamental rights principles are emphasised in the training of the category 1 staff of the standing corps, and that the recruitment of fundamental rights monitors be treated by the agency as of equal priority to the category 1 body.
Work is needed to ensure the complaints mechanism is accessible and well publicised, and to ensure that instructions given under the remit of Frontex activities comply with Union and international law, “including the principle of non-refoulement”.
European and national parliaments’ scrutinising role over the agency is established by Article 112 of the 2019 Regulation, as well as in national law and European treaties. To date, no mechanism has been set up on the basis of article 112. To improve parliamentary oversight of Frontex activities, on top of the annual activity reports and attendance by Frontex at certain national and European Parliamentary meetings (as mandated by Article 112), the MEPs propose “establishing a regular mechanism by which the Agency briefs Members about ongoing operations including about serious incidents and other reports about violence and non-respect of fundamental rights at the external border”. This seems to suggest a specific body, rather than the ad-hoc national or European oversight foreseen in article 112.
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