September 21, 2011

 I. Background: Frontex

© 2011 Human Rights Watch

 

History   

The European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union, known as Frontex (a contraction of the French “frontières extèrieures”) was established as an executive agency of the European Union (EU) on October 26, 2004.[1]

The EU did not conceive of the agency as a policy-making or enforcement body but rather as a platform for cooperation between EU member states on issues of border enforcement.[2] Today, in describing its mission, Frontex emphasizes coordination, research, and surveillance.[3] As Gil Arias Fernández, deputy executive director of Frontex, told Human Rights Watch in a meeting in the Greek town of Orestiada in December 2010:

We are always explaining what is sometimes difficult to explain. Our role is one of a coordinator. We act as a facilitator between states for resources. The operations are always led by the host state.[4]

There may be a good reason why Frontex’s role is “difficult to explain.” Although Frontex has insisted it is less “actor” than “coordinator,” it has quickly developed into a powerful actor that plays a key role in enforcing EU immigration policy.[5] The Frontex budget has grown exponentially in recent years, reflecting this development. From €6.2 million in 2004 (just under US$9 million), Frontex’s budget grew to more than €88 million (or over US$120 million) in 2010.[6] Frontex has a staff of 272 seconded national experts, temporary, auxiliary, and contract staff, according to its web page.[7]

Through the years, Frontex has become increasingly active through joint operations, in which it has organized European member states’ resources for operations along EU’s external borders and at airports.[8] It has also coordinated increasing numbers of joint maritime operations, some of which have involved coordination with countries of embarkation outside the EU, such as Senegal. Many joint maritime operations, such as Frontex’s Hera I, II, and III operations, which succeeded in dramatically reducing the number of boat arrivals in Spain’s Canary Islands, seem to have had the objective of preventing boats from landing on EU member state territories.[9] This has also prevented migrants—including asylum seekers—from availing themselves of procedural rights that apply within EU territory.[10]

In July 2007 the Frontex Regulation was supplemented by the RABIT Regulation, which created "Rapid Border Intervention Teams" aimed at stopping the massive arrival and entry of migrants.[11]The RABIT Regulation also authorized members of the teams to bear arms and to use force, with the consent of the host member state.[12] 

Frontex is now forming partnerships with national border-enforcement authorities in all participating states.[13] In Greece, Frontex not only has provided EU personnel and resources through the RABIT deployment, but also in 2010 established an office in the Greek coastguard headquarters in Piraeus seaport as the headquarters for all operations in the Eastern Mediterranean area, which coordinated two joint operations, Poseidon 2010 and Attica 2010.[14]

With the growing reliance on Frontex operations and increasing migratory pressures on the EU’s external borders in 2011, the Council of the European Union and the European Parliament moved to grant Frontex more authority. In September 2011 the European Parliament and Council are expected to adopt amendments to the Frontex Regulation that will widen Frontex’s mandate, in particular by giving it the authority to “initiate and carry out joint operations and pilot projects” in cooperation with the participating states.[15]

Legal Authority

There is a paradox at the heart of Frontex’s legal existence. On the one hand, the Frontex Regulation stipulates that “the responsibility for the control and surveillance of external borders lies with the Member States.”[16] On the other hand, the same regulation says that Frontex is a Community body with “full autonomy and independence”[17]with “legal personality and exercising the implementing powers, which are conferred on it by this Regulation.”[18]Frontex, therefore, exists both as a specter-like coordinating manager as well as an actor with legal autonomy. 

Frontex derives its legal authority from the Frontex Regulation, which, as it existed prior to proposed amendments expected to be adopted in September 2011, specifies that the agency’s main tasks are: 1) to coordinate operational cooperation between member states in managing external borders; 2) to assist member states in training national border guards; 3) to carry out risk analyses and surveillance of external borders; 4) to provide member states increased technical and operational assistance at external borders when necessary; and 5) to support member states by organizing joint return operations.[19]

The proposed amendments add additional responsibilities to Frontex’s mandate, including assessment of member state capacity to secure external borders; participation in control and surveillance of external borders; technical and operational assistance at external borders, including sea operations, especially in situations of specific and disproportionate pressures; setting up European Border Guard Teams for rapid deployment during operations; coordinating joint returns; developing coordinated information systems; and assisting in the development of European border surveillance and information-sharing systems.

As the amendments were being drafted, the European Parliament’s Committee on Foreign Affairs commented in early 2011 on the expansion of powers that the amendments would give Frontex:

This proposal would provide the Agency with a reinforced role in preparing, coordinating and implementing operations with special regard to the sharing of tasks with EU Member States, namely in terms of deployment of human resources and technical equipment. Besides, with this proposal, Frontex’s internal and external mandate and powers would be significantly enhanced. The Agency would be able to co-lead border patrol operations with EU Member States, deploy liaison officers in third countries, coordinate joint return operations, launch and finance pilot projects.[20] (Emphasis added).

In light of these possible developments, the committee expressed concern at the time about Frontex’s lack of transparency and accountability and questioned whether the proposal would provide sufficient oversight of Frontex, including its human rights performance:

The overall question of responsibilities between Member States’ officers, the host Member State border officers and Frontex’s personnel remains unclear and ambiguous in the Commission’s proposal and should be treated by the lead committee of Parliament together with open questions with regard to the component body for complaints in case of violations of human rights of migrants.[21]    

One of the amendments expected to be adopted in September 2011 places responsibility on home member states to discipline guest officers engaged in Frontex activities who violate fundamental rights or international protection obligations but also authorizes the executive director of Frontex to suspend joint operations or pilot projects if he “considers that violations concerned are of a serious nature or likely to persist.”[22]

Although the Frontex Regulation, as it existed prior to the amendments expected to be adopted in September 2011, did not include a provision that explicitly protected refugees and vulnerable groups, it did say that Frontex "respects the fundamental rights and observes…the Charter of Fundamental Rights of the European Union."[23] The expected approval of the proposed amendment to the Frontex Regulation in September 2011 will remedy this lacuna in Frontex’s explicit protection regime both by directing Frontex to draw up a “code of conduct” to guarantee respect of fundamental rights with particular focus on unaccompanied children and vulnerable persons,[24] and by directing that:

In accordance with Union and international law, no person shall be disembarked in, or otherwise handed over to the authorities of, a country in contravention of the principle of non-refoulement, or from which there is a risk of expulsion or return to another country in contravention of that principle. The special needs of children, victims of trafficking, persons in need of medical assistance, persons in need of international protection and other vulnerable persons shall be addressed in accordance with Union and international law.[25]

The code of conduct does not, however, address the consequences of non-compliance with the code, leaving an accountability gap.

As an EU agency, Frontex is bound by the Charter of Fundamental Rights of the European Union, including Article 1, providing that “Human dignity is inviolable. It must be respected and protected;” Article 4, providing that “No one shall be subjected to torture or to inhuman or degrading treatment or punishment;” and Article 18, providing that “the right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty establishing the European Community.”[26]

As early as the drafting of the Frontex Regulation, some predicted that the creation of a common border control agency would be problematic if it did not include proper European standards on protection as well. Thus, for example, Christian Ulrik von Boetticher, rapporteur for The European Parliament’s Committee on Citizens’ Freedoms and Rights, commented during the drafting process that “it is premature to set up such an operational structure without harmonized standards on for example the definition of the refugee.”[27] But for the EU, “harmonized” enforcement preceded “harmonized” protection.

While harmonized enforcement has certainly preceded harmonized protection, the EU is moving towards a common European asylum system with a harmonized refugee definition and procedures, but, as evidenced by Greece, implementation still lags behind formal harmonization. The inclusion of additional human and fundamental rights standards in the proposed amendments to the Frontex regulation indicate progress by making explicit rights guarantees that were previously implied.

Cooperation with Other EU Agencies

Although Frontex was not entrusted with a mandate to protect the human rights of migrants, to its credit, on May 26, 2010, the border enforcement agency signed a cooperation arrangement with the Fundamental Rights Agency (FRA).[28] The FRA is an advisory EU agency whose scope of activities includes “the fight against racism, xenophobia and related intolerance.”[29] A press release announced that FRA would “assist Frontex in further and comprehensively integrating the fundamental rights approach into its activities, as called for in numerous recent Council and Parliament communications.”[30]

The agreement between FRA and Frontex includes provisions allowing Frontex to obtain expert opinions from FRA on joint operations and envisions FRA training of border guards and Frontex staff.[31]FRA is also expected to provide guidelines on respecting rights during deportations.[32]The agreement does not grant binding force to any of FRA’s opinions that would control Frontex’s actions. The proposed amendments to the Frontex Regulation, expected to be adopted in September 2011, would, however, establish a Consultative Forum to advise Frontex on the development and implementation of its Fundamental Rights Strategy, and directs the agency to invite FRA, the European Asylum Support Office (EASO), UNHCR, and other relevant organizations to participate in the Consultative Forum.

The amendment, if adopted, will also create the position of Fundamental Rights Officer (FRO) to report directly to the Frontex Management Board and the Consultative Forum.[33] But the amendment does not authorize the FRO to take enforcement action if the FRO believes persistent and serious violations of fundamental rights are occurring during Frontex operations. This accountability gap would be addressed by amending the Frontex Regulation to allow the FRO to refer complaints to the European Commission for investigation and, where appropriate, infringement proceedings if, for example, the Frontex executive director has failed to suspend operations despite serious and persistent violations, or if actions by members states and their agents during Frontex operations violate the Charter.

On March 8, 2011, FRA released a critical report on the emergency situation in Greece, including an assessment of Frontex’s role in this emergency (see below: Greece Criticized).

Another EU agency relevant to the situation in Greece is the European Asylum Support Office (EASO), established in May 2010 to help coordinate and improve the implementation of asylum policies.[34] Although EASO had not yet become operational in Greece at the time of Frontex’s RABIT deployment, Kari Wahlström, head of the Frontex Operational Office in Greece, told Human Rights Watch that EASO would complement Frontex so that a balance between enforcement and protection would be maintained.[35]EASO has also indicated in its plan for 2011 that Greece will be a priority for the agency.[36]

On April 1, 2011, Cecila Malmström, EU Commissioner for Home Affairs, declared that EASO teams would be deployed in Greece. This would be the first deployment of agency teams since EASO was established.[37] Just as Frontex has been designed not to make administrative decisions, EASO too is not authorized to make determinations on asylum requests. Like Frontex, EASO does not have a specific mandate to intervene directly on detention conditions.[38] Refugee status determination procedures and detention responsibilities remain the responsibility of EU member states.

Because this report deals with the period of the RABIT deployment prior to the establishment of the EASO presence in Greece, it remains to be seen how the encouraging step of the EASO deployment will influence reform of Greece’s dysfunctional asylum system and whether its presence will have a salutary influence on improving conditions of detention even if this is not specifically within EASO’s mandate.

[1] Council Regulation (EC) No 2007/2004, October 26, 2004, establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2004:349:0001:0011:EN:PDF (accessed April 13, 2011) (Below: “ Frontex Regulation”). The agency’s program of work is set by a management board comprised of one representative from each EU member state and two representatives from the European Commission.

[2] The commission’s proposal suggests that the agency “shall simply assist Member States in implementing Community legislation in the fields of control and surveillance of the external borders and the removal of third-country nationals.” COM (2003) 687 final/2, p. 4.  Norway and Iceland joined Frontex as participating states through Council Decision 2007/511/EC of February 15, 2007; Switzerland and Liechtenstein joined as participating states through Council Decision 2010/490/EU of 26 July 26, 2010. The United Kingdom, Ireland, and Denmark did not participate in Frontex’s founding regulation and are not bound to or subject to its application.

[3] See Frontex’s Website, under “tasks”: http://www.frontex.europa.eu/origin_and_tasks/tasks/ (accessed April 3, 2011).

[4] Human Rights Watch interview with Gil Arias Fernández, deputy executive director of Frontex, Orestiada, December 3, 2010.  

[5] For example, on January 1, 2011, Frontex signed a cooperation agreement with Cape Verde. See: http://www.frontex.europa.eu/newsroom/news_releases/art88.html (accessed April 3, 2011).   

[6]  See breakdown of budget for 2005 at: http://www.frontex.europa.eu/gfx/frontex/files/2005_budget_mb_decision_of_30_jun_2005.pdf and breakdown of budget from 2010 at: http://www.frontex.europa.eu/gfx/frontex/files/budget/budgets/2010_budget_amendments_tbp.pdf (both accessed April 1, 2011).

[7]  Frontex’s Website: http://www.frontex.europa.eu/more_about_frontex/ (accessed July 7, 2011).

[8]  See Frontex’s explanation on “joint operations” at: http://www.frontex.europa.eu/structure/operations_division/joint_operations/ . See “examples of accomplished operations, including budget, objectives, and participating Member States, at: http://www.frontex.europa.eu/examples_of_accomplished_operati (both accessed April 3, 2011).

[9] “HERA II Operation to be Prolonged,” Frontex News Release, October 13, 2006, http://www.frontex.europa.eu/newsroom/news_releases/art3.html (accessed July 8, 2011).

[10]  Article 14 of the Frontex Regulation grants the agency the mandate for “facilitation of operational cooperation with third countries and cooperation with competent authorities of third countries.” 

[11]Regulation (EC) No 863/2007 of the European Parliament and of the Council of 11 July 2007 establishing a mechanism for the creation of Rapid Border Intervention Teams and amending Council Regulation (EC) No 2007/2004 as regards that mechanism and regulating the tasks and powers of guest officers, at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2007:199:0030:0039:EN:PDF (accessed August 16, 2011).

[12]  “Guest officers” are authorized to use force in the same way that the border guards of the host state are allowed to. Regulation (EC) No 863/2007, July 11, 2007, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32007R0863:en:NOT (accessed April 13, 2011), Art. 6(6).

[13]  Frontex letter to Human Rights Watch, May 19, 2011.

[14]  Frontex letter to Human Rights Watch, March 29, 2011.

[15] Proposed amendment of Article 3 of Council Regulation (EC) No 2007/2004 of October 26, 2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union. In addition to the more expansive powers, the proposed amendments included a provision that Frontex “shall fulfill its tasks in full compliance with the relevant Union law, including the Charter of Fundamental Rights of the European Union, international law, including the Convention Relating to the Status of Refugees of 28 July 1951 ("the Geneva Convention"), obligations related to access to international protection, in particular the principle of non-refoulement.” (Article 1.2) The amendments also include instructions for Frontex to create a code of conduct for all persons participating in Frontex activities to act according to the principles of the rule of law and respect of fundamental rights with particular focus on unaccompanied minors and vulnerable persons, as well as persons seeking international protection. (Article 2a)

[16]  Frontex Regulation, Article 1.2.

[17]  Ibid, Preamble, para. 16.

[18]  Ibid, Preamble, para. 14.

[19]  Frontex Regulation, Art. 2.

[20] See European Parliament, Opinion of Committee on Foreign Affairs, 2010/0039 (COD), January 18, 2011, p. 3 http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+COMPARL+PE-448.907+02+DOC+PDF+V0//EN&language=EN (accessed September 8, 2011).

[21] Ibid.

[22] Proposed amendment, Article 3a, of Council Regulation (EC) No 2007/2004 of October 26, 2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union.

[23]  Frontex Regulation, preamble, para. 22. 

[24] Proposed amendment 2a to Frontex Regulation.

[25] Proposed amendment 2.1b to Frontex Regulation.

[26]  Charter of the Fundamental Rights of the European Union, (2000/C 364/01), December 18, 2000, http://www.europarl.europa.eu/charter/pdf/text_en.pdf (accessed April 25, 2011).

[27]  See Report on the Proposal for a Council Regulation Establishing a European Agency for the Management of Operational Co-operation at the External Borders (COM(2003) 687 - C5‑0613/2003 – 2003/0273(CNS)), February 24, 2004, http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+REPORT+A5-2004-0093+0+DOC+XML+V0//EN (accessed April 3, 2011), p. 31.

[28]  Cooperation Arrangement between The European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union, May 26, 2010 http://fra.europa.eu/fraWebsite/attachments/Cooperation-Agreement-FRA-Frontex_en.pdf (accessed April 13, 2011) (Below: “Cooperation Arrangement”).

[29] Council Regulation (EC) No 168/2007 establishing a European Union Agency for Fundamental Rights, February 15, 2007, Article 5(b), http://www.fra.europa.eu/fraWebsite/attachments/reg_168-2007_en.pdf (accessed July 7, 2011). The same regulation says that FRA work should relate particularly to the Charter of Fundamental Rights (preamble, paragraph 9), which, in turn, makes no distinction, except specifically in Chapter 5 on Citizen’s Rights, with respect to the rights of non-citizens living in the EU.

[30] “Frontex Signs Cooperation Arrangement with Fundamental Rights Agency,” Fundamental Rights Agency press release, May 27, 2010, http://www.fra.europa.eu/fraWebsite/media/mr-270510_en.htm (accessed April 3, 2011).

[31]  Cooperation Arrangement, Articles 3, 5, and 8. 

[32]  Ibid., Art. 8

[33]  Proposed amendment, Article 26a, of Council Regulation (EC) No 2007/2004 of October 26, 2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union.

[34] Regulation (EU) No 439/2010 of the European Parliament and of the Council of May 19, 2010 establishing a European Asylum Support Office. The European Asylum Support Office is to strengthen practical cooperation on asylum by facilitating the exchange of information and experiences between European Union (EU) countries.

[35] Human Rights Watch interview with Kari Wahlström, February 15, 2011.

[36] Work Programme 2011, European Asylum Support Office, http://www.europarl.europa.eu/meetdocs/2009_2014/documents/libe/dv/easo_work_programme2011_/easo_work_programme2011_en.pdf (accessed September 9, 2011).

[37] Commissioner Malmström said: “I am aware of the very difficult conditions in which irregular migrants and asylum seekers are being detained in the Evros region. The humanitarian situation in these places of detention is a major concern. Third-country nationals held in detention for whatever reason should always be treated in a humane and dignified manner and I call upon the Greek authorities to take immediate action to remedy the situation. In this respect, I encourage Greece to make maximum use of emergency measures financed under the European Refugee Fund, to address immediate needs until Greece’s new national independent asylum agency is established. I equally welcome the cooperation of the Greek authorities with the UNHCR and its strategic involvement in the reform of the asylum system.” “Statement by Cecila Malmström, EU Commissioner for Home Affairs, on the Deployment of EU Asylum Support Teams in Greece,” European Commission Press Release, Memo/11/214, April 1, 2011, http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/11/214 (accessed April 4, 2011).

[38]  Regulation (EU) No 439/2010, May 19, 2010, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2010:132:0011:0028:EN:PDF (accessed April 4, 2011).