AYS Special: Frontex and Human Rights — How did we arrive here? PART 2 (2017–2019)
Working on an article about Frontex is not an easy task. Information and allegations about the agency are piling up on a daily basis. The purpose of this article is to give an overview of Frontex’s increasing role in EU border management — with no accountability or respect of fundamental rights in its operation.
This is the second part of the Frontex timeline, from the beginning of 2017 to the end of 2019, and starts with the most recent entry. Check out PART 1 and watch this space for PART 3.
2019
Personnel: 333
Budget: €750m
December 18: Both AYS and Matthias Monroy (published on November 11) report on the expansion of Frontex activities in the Western Balkans.
December 4: Adopted on November 13, the New EU Regulation of Frontex 2019/1896 comes into force. It repeals and substitutes the 2016 Regulation and incorporates the 2013 Regulation that established and governed EUROSUR. It is a further expansion of the mandate of the agency. As boasted in a press release, now “Frontex is the guardian of the Integrated Management of Europe’s Borders (IBM).” Refugee Support Aegean and Pro Asyl unpacked the new regulation in a report titled “The making of a super-agency”:
[It] aims to increase the agency’s autonomy and to reduce operational dependency of the agency on EU Member States (MS). For this purpose, the Regulation expands the agency’s capacity and mandate in three main respects.
◆ First, the agency will now be able to hire and deploy its own statutory staff. By 2027, such staff will create together with contributions of the MS a standing force of 10,000 border guards. [Annex I]
◆ […] Second, the Regulation also places Frontex at the core of the creation of an effective expulsion mechanism at EU level. The agency’s mandate expands significantly to include all aspects of return procedures. [Articles 48–53]
◆ […] Third, the new Regulation assigns the agency as the administrator of a set of surveillance and data systems in order to increase efficiency and interoperability of border control. EUROSUR, a system already administered by Frontex in Warsaw, created to provide near-live time operational oversight of EU’s external frontier, is now incorporated under the agency’s mandate. [Articles 18–23]
Frontex will play a bigger role “in the management of the growing flows of legitimate travellers across EU’s external borders, hosting the future central unit of The European Travel Information and Authorisation System (ETIAS) and supporting Member States with the deployment of the Entry-Exit-System” [Article 67]. As Statewatch highlights:
Previously, the agency’s surveillance role has been restricted to the external borders and the “pre-frontier area” — for example, the high seas or “selected third-country ports.” New legal provisions mean it will now be able to gather data on the movement of people within the EU. While this is only supposed to deal with “trends, volumes and routes,” rather than personal data, it is intended to inform operational activity within the EU. […] The new rules also provide a mandate for reporting on “unauthorised secondary movements” and goings-on in the “hotspots” [Articles 2(23), 24, 26].
The Commission’s proposal for the new Frontex Regulation was not accompanied by an impact assessment, which would have set out the reasoning and justifications for these new powers. The proposal merely pointed out that the new rules would “evolve” the scope of EUROSUR, to make it possible to “prevent secondary movements”.
Frontex has an expanded mandate in the field of cooperation with third countries [Articles 70–78], which further increases concerns related to the accountability of the agency. In particular, Article 73 sets out the direct cooperation between the agency and third countries, without the request of neighbouring EU member states. Such cooperation will be governed by specific Status Agreements drawn up between the EU and each third country:
It shall set out, in particular, the scope of the operation, provisions on civil and criminal liability, the tasks and powers of the members of the teams, measures related to the establishment of an antenna office and practical measures related to the respect of fundamental rights. [Art. 73].
RSA and Pro Asyl note that up until now, civil and criminal liability for actions taken in the framework of Frontex operation was to be sought with the contributing member state. “Using this loophole, Frontex was able to avoid for years issues regarding accountability by deferring the issue back to the corresponding capitals:”
The recruitment by Frontex of its own statutory staff that will also be deployed in extraterritorial operations (outside the EU) makes the issue of accountability more complicated. Additionally, a number of services are increasingly commissioned by the agency in Warsaw without the involvement of Member States, including drones and their operators, manned aerial surveillance flights and charter return flights.
Thus, the question occurs: how will potential violations of fundamental rights or civil and criminal offences committed by Frontex’s statutory staff and contractors delivering services be investigated and remedied in the future?
November 19: A Status Agreement is signed between the EU and Serbia “on actions carried out by the European Border and Coast Guard Agency in Montenegro”. Also in this case, Frontex officers are granted immunity for Serbian criminal, civil and administrative law [Article 7(2–3)].
October: Frontex tests for the first time “biometrics on the move” technology in a EU airport. The test takes place in Lisbon and entails facial recognition and touchless scanning of fingerprints.
October 7: A Status Agreement is signed between the EU and Montenegro “on actions carried out by the European Border and Coast Guard Agency in Montenegro”. As for the agreement signed with Albania earlier in February, Frontex officers are granted immunity from Montenegrin criminal, civil and administrative law [Article 7(3-4)].
German TV Arte publishes a video on the Frontex mission in Albania. In it, responding to accusations of pushbacks being carried out by Albanian authorities, Frontex spokesperson Izabella Cooper states: “Pushbacks are against the law. I would like to clarify that Frontex has not any legal power over the behaviour of the national border guards.” As pointed out in this BVMN report: “this statement leads to severe concerns about the Frontex procedure on the border, as it is not does not preclude their direct involvement in initiating a pushback via apprehension.”
September 27: Matthias Monroy publishes “Does Frontex arrange illegal push backs?” linking Frontex’s MAS (Multipurpose Aerial Surveillance) flights to pushbacks in the Central Med and on the Bosnian-Croatian border.
◆ Frontex does not bring refugees back to Libya itself, but leaves it to the coastguard there. However, this is aiding and abetting and thus a so-called „pull-back“, which in the opinion of international law experts is also prohibited. Frontex or the EU military mission EUNAVFORMED in the Mediterranean have „superior knowledge“ with air surveillance, without which the Libyan coastguard could not even take action.
◆ […] Frontex praises the real-time monitoring with the MAS flights as „high added value“ and writes that in 2018 more than 1,800 flight hours were carried out. These had not only contributed to the detection of irregular migration, but had also triggered criminal prosecution measures.
In this way, the EU Border Agency may also have contributed to illegal push backs by the Croatian border police, about which refugees and aid organisations have reported several times. Without the possibility of applying for asylum, migrants are sent back to Bosnia-Herzegovina by force across the border.
August 7: Frontex releases a press statement condemning any form of inhumane treatment and violence. The agency states that it fully adheres to the Charter of Fundamental Rights of the European Union and that fundamental rights are at the core of all the agency’s activities.
All reports related to potential violation of fundamental rights are immediately passed on to the agency and Fundamental Rights Office, an independent body established to advise the agency and monitor compliance with fundamental rights in all its activities.
Frontex officers did write such reports in the past and the agency immediately contacted the authorities of the countries concerned and informed the European Commission. It should be noted however that while the agency can suspend an officer deployed by Frontex, it does not have the authority over the national border police forces nor does it have the power to conduct investigations in the EU Member States.
August 6: BVMN receives a report of a pushback of 8 people from Croatia to Bosnia. According to the testimony the apprehension in Croatian territory was carried out by German officers, who then handed the 8 people over to the Croatia police, without filing any documents, and they were ultimately pushed back into Bosnian territory:
The respondents described how the officers wore green military t-shirts and trousers. On the sleeve was a German flag and a blue armband. According to the respondents, the transit group asked the officers where they came from, and the officers explicitly replied that they were from Germany.
[…] The transit group were held at the point of apprehension, staying approximately an hour waiting for another police team to come. While waiting, the officers from Germany asked them about several subjects. First they asked questions about their identity, but the officers did not write anything down.
July: The Border Violence Monitoring Network receive reports alluding to Frontex officers being present in pushbacks from Hungary to Serbia:
An Afghan person-in-transit observed two police officers at a Hungarian border station with the blue Frontex armband as well as Italian flags stitched to their uniforms.
BVMN’s reports reinforce the conclusions of the investigations of the Migration Newsroom at Lighthouse Reports, which cite Frontex internal documents revealed by freedom of information activists Arne Semsrott and Luisa Izuzquiza, which indicate that the organisation is aware of human rights violations by Hungarian, Bulgarian and Greek border officials, including undue amounts of violence and illegal cross-border pushbacks and further details confirming that Frontex has engaged in human rights violations itself by deporting unaccompanied minors.
July 15: Following the Croatian president statement, HRW sends a letter to Frontex Executive Director. Referring to a previous exchange, it states:
In your May 27 email response, you confirmed the existence of a European Border and Coast Guard Agency Multipurpose Aerial Surveillance (MAS) system since July 2018 on the Croatia-Bosnia Herzegovina border, and stated that no events that were indicative of human rights violations, including pushback operations, had been detected by European Border and Coast Guard Agency in the area.
Now that the Croatian authorities have confirmed that pushback operations have taken place, we urge you to take appropriate steps to ensure that the European Border and Coast Guard Agency mission on the Croatian-Bosnia Herzegovina border complies with its human rights mandate, including taking steps to ensure that European Border and Coast Guard Agency adequately monitors and documents human rights abuses and unlawful pushbacks.
July 9: During an interview with the Swiss channel SRT, Croatian president Kolinda Grabar-Kitarovic admits that the country’s border force carries out illegal pushbacks on the border with Bosnia and that ‘sometimes force is used’.
July 2: Refugee Rescue ‘Mo Chara’ and ‘Lighthouse Relief’ denounce a suspected illegal pullback carried out by Turkish Coast Guard in Greek waters, while “Dutch and Portuguese Frontex vessels were on scene, within visual distance, and stood by without interfering.”
June: In Serbia, as reported by BVMN ‘Illegal pushbacks and border violence report’:
volunteers from No Name Kitchen met with representatives from the UNHCR and the Frontex representative for the West Balkans, who expressed concern relating to the reports of border violence coming from Šid. The UNHCR representatives at the meeting discussed how slow change can often be when dealing with police practices. The Frontex representative encouraged volunteers conducting violence reports to file complaints about border violence through the Frontex complaint form.
June 20: The Community Code on Visas (Visa Code) is revised. Article 25(a) sets out the application of certain rules as a leverage to improve cooperation with a third country on returns and readmissions. In simpler terms, access to visas for Europe, and the fees for citizens of non-EU countries, will be dependent on the level of cooperation by the authorities with EU return policies.
May 21: Despite being present in the area in different forms for a number of years, Frontex launches its “first fully — fledged joint operation” in Albania, which is also the first joint operation outside the EU (within the Joint Operation COORDINATION POINTS). The Agency deploys “50 officers with 16 patrol cars and one thermo-vision van from 12 EU Member States to support Albania in border control and tackling cross-border crime.” This Operation is regulated by the Status Agreement signed between the EU and Albania on February 18.
May 7: UNHCR report that “two families, four adults and seven children, who had been detained since January in a transit zone on the Hungarian-Serbian border, were escorted to a border gate with Serbia [and] were presented with a choice of entering Serbia or being flown back to Afghanistan on a flight organised by Frontex.” In the end, Serbian authorities gave the families accommodation in a reception centre. UNHCR calls on Frontex “to refrain from supporting Hungary in the enforcement of return decisions which are not in line with International and EU law.”
March 29: The mandate of the EU military mission in the Mediterranean EUNAVFOR MED is renewed for 6 more months by the EU Council. For the duration of this new extensions, it is decided to “suspend temporarily the deployment of the Operation’s naval assets” in the Central Med.
In line with Frontex’s Risk Analysis and the reduction of SAR capacity of new Frontex Operation THEMIS, EUNAVFOR MED will continue to implement its mandate by “strengthening surveillance by air assets” and by “reinforcing support to the Libyan Coastguard and Navy in law enforcement tasks at sea through enhanced monitoring, including ashore, and continuation of training.”
The change in policies was suggestively described by the Lighthouse Reports team in their article for The Guardian: Once migrants on Mediterranean were saved by naval patrols. Now they have to watch as drones fly over:
Amid the panicked shouting from the water and the smell of petrol from the sinking dinghy, the noise of an approaching engine briefly raises hope. Dozens of people fighting for their lives in the Mediterranean use their remaining energy to wave frantically for help. Nearly 2,000 miles away in the Polish capital, Warsaw, a drone operator watches their final moments via a live transmission. There is no ship to answer the SOS, just an unmanned aerial vehicle operated by the European border and coast guard agency, Frontex.
This is not a scene from some nightmarish future on Europe’s maritime borders but a hypothetical which illustrates a present-day probability.
March 1: The sixth Annual Report (2018) of the Frontex Consultative Forum (CF) is published. The Forum reiterates that “Frontex’s ability to uphold its responsibilities in the area of fundamental rights continued to be compromised due to the inadequate staffing of the Agency’s Fundamental Rights Office” and due to the lack of independence of the said Office from the Frontex management board. A situation that further deteriorated in the second half of 2018, when the Fundamental Rights Officer took an extended period of sick leave. Following a proposal of the Executive Director, “an Advisor in the Executive Director’s Cabinet as Fundamental Rights Officer ad interim.” The CF notes that such an appointment raises issues under the EBCG Regulation.
In particular, the previous and future reporting expectations on the incumbent in relation to the Executive Director make it difficult to provide for the necessary conditions to ensure that the Fundamental Rights Officer ad interim and the Fundamental Rights Officer’s team maintain their independence in the performance of their duties and avoid potential conflicts of interest.
The CF also raised concerns about the accessibility of the Agency’s complaint mechanism and on the transparency and publicity of its working modalities.
Regarding return operations:
the Forum stressed the responsibility of officers to inform returnees about the possibility to lodge a complaint concerning alleged breaches of fundamental rights during forced return flights and readmission operations. It also highlighted the fact that the ability to lodge a complaint is a right, not a privilege, and encouraged the adoption of flanking measures to ensure that it can be exercised. This includes the development of tailored information for returnees, taking into consideration that:
◆ Information needs to be conveyed in a language that returnees with different language and cultural backgrounds can understand. Specific guidance for children should also be developed;
◆ Efforts need to be made to avoid raising unrealistic expectations about the scope and potential outcomes of the complaints procedure;
◆ Complaints-related material should be made available in at least the most common languages spoken by returnees.
Regarding operations at external borders, the Forum reiterates the request to suspend all Frontex activities at the Hungarian borders, and expresses concerns regarding the number of reported violations at the Greek-Turkish borders and at the Bosnian-Croatian border. The quantity of violations reported by external bodies clashes with the small number of ‘Serious Incident Reports’ filed within Frontex’s complaints mechanism, adding to the concerns about the effectiveness and availability of such mechanism.
Operation THEMIS is criticised for the reduction of its operational area in the Mediterranean, and for its role, within the most recent set of EU and member states policies, in increasing the likelihood of shipwrecks in the newly declared Libyan SAR zone.
February 18: A Status Agreement is signed between the European Union and the Republic of Albania “on actions carried out by the European Border and Coast Guard Agency in the Republic of Albania”. Article 6(2, 3) gives Frontex officers immunity from Albanian criminal, civil and administrative law”
February 8: Twenty one officers from Libya’s General Administration for Coastal Security (GACS) completed a training in Ostia (Italy), organised by Frontex, EUBAM (EU Border Assistance Mission in Libya) and Italian authorities.
Major Joint Operation:
◆ COORDINATION POINTS expand its scope to Albania.
Continuation of:
◆ FOCAL POINTS 2019-SEA (May 7 — January 29, 2020). It encompassed different activities. Among them, the Multipurpose Maritime Operation in the Black Sea (May 7 — June 15) included surveillance activity at the external sea borders, in the operational area established which included Romanian and Bulgarian territorial waters, contiguous zones and economic exclusive zones.
◆ POSEIDON 2019 (January 31 — January 29, 2020). The operational activities were carried out at the external sea border of Greece at the Eastern Aegean and Eastern Ionian Seas; additionally two maritime vigilance areas — North and South — were established in the Aegean Sea. Furthermore, in order to monitor secondary migration flows, Reporting points were established at the ports of Igoumenitsa and Patras
◆ THEMIS (March 1 — January 29, 2020). The operational area was established in the south of Italy (Puglia and Calabria) including Sicily, upper Adriatic coast, Sardinia and the Pelagic Islands.
◆ INDALO 2019 (March 1— May 20, 2020). The operational area was established in the Strait of Gibraltar, Western Mediterranean Sea and Alboran Sea and was divided into six zones covering Cadiz, Malaga, Granada, Almeria, Murcia and Alicante.
Returns: In total, Frontex coordinated, facilitated and organised the ‘return’ of 15,876 people.
25 member states carried out returns by scheduled flights with Frontex support returning 4,776 people (893 were escorted, 3,728 unescorted and 155 departed voluntarily). The number of partner airlines increased by 11.
Member states organised 330 return operations by by charter flights coordinated or organised by Frontex, returning 10,903 people. Of these operations, 142 were joint return operations, 64 collecting return operations and 124 national return operations.
36 Readmission operations from Greece to Turkey under the EU-Turkey deal were carried out, returning 197 people.
2018
Personnel: 320
Budget: €643m
General: Systematic abuses and illegal pushbacks at the Evros border are reported by several organisations:
◆ Human rights 360, Arsis and The Greek Council for Refugees, in a Report titled ‘The New Normality’, include 39 different testimonies. Among them, four detail pushbacks carried out by officers who spoke languages different from Greek, and wore different uniforms from their Greek colleagues;
◆ Human Rights Watch report of 24 pushbacks and of “people who have not committed a crime [being] detained, beaten, and thrown out of Greece without any consideration for their rights or safety;”
◆ Mobile Info Team report of 27 pushbacks.
◆ The systematic nature of pushbacks on the Evros border is corroborated by UNHCR “Desperate Journeys 2018”, which also received reports of pushbacks from Bosnia-Herzegovina,Croatia, the former Yugoslav Republic of Macedonia, Hungary, Romania, Serbia, Slovenia, Albania, Bulgaria, Montenegro, Spain and France.
◆ The Christian Science Monitor reported a testimony of the pushback of Jassem, a recognised refugee in Germany who went to Greece to find his younger brother with whom he had lost contact. According to Jassem, the pushbacks was carried out by German Frontex officials:
That’s when it all went wrong for Jassem. “Greek police grabbed me and handed me over to Frontex. They destroyed all my documents. They put eight of us on a boat and pushed us back to Turkey.”
He assumes that the officials responsible were Frontex because they were masked and spoke German rather than Greek. The police officers, he says, beat and insulted him. It took Jassem many months and several attempts to manage to cross back into Greece from Turkey. Now he hopes that Germany will take him back.
November 1: Elbit System, Israeli drone producers, announce that “it was awarded a framework contract to provide maritime Unmanned Aircraft System (UAS) patrol services to be provided by the European Maritime Safety Agency (EMSA) to countries in the European Union. The contract that will be executed in cooperation with [Portuguese company] CEiiA is for a two-year base period and two single year option periods. If fully ordered, the total contract value is €59 million”. Frontex will receive images from this patrol service thanks to the agreement signed with EMSA and EFCA in March 2017.
September 27: First trial of Remotely Piloted Aircraft Systems (RPAS) in Greece, Italy and Portugal. It is possible, security expert Matthias Monroy states, that information gathered through these surveillance drones will feed into Libyan coast guard activities in the central Mediterranean. According to “an earlier draft of the work programme for EU satellite surveillance … this is a pilot project for the use of two military drones from Italy and Israel; regular operations could start from 2019.”
In the 2017 Annual report on sea border operations, Frontex seek advice from EU institutions:
For the time being, Frontex Situation Centre shares the information collected by MAS (Multipurpose Aerial Surveillance)in real time with the neighbouring EU Member States. In particular there is no direct operational transmission from Frontex Situation Centre to Libyan Coast Guard forces. Given the fact that the Commission allocated 46 million euro for the creation of a Maritime Rescue Coordination Centre in Tripoli, that Italy was designated by the Commission as project leader while Frontex supports Italy with technical expertise in this project, Frontex seeks political guidance from the EU institutions: which EU institutional mechanism or political decision making process will one day notify Frontex that it is allowed to share sightings with the Maritime Rescue Coordination Centre of Tripoli for the purpose of Search and Rescue?
September 11: Refugee Info Bus and AYS report of violence towards people on the move at the Evros border between Greece and Turkey:
Over the past six weeks, RIB have been in contact with eight groups who, at separate times over a six weeks period have experienced extreme violence at the hands of officials working inside Greece’s Evros region — these have included various military and civilian personnel including, police, the army but also international officers, allegedly from Germany and elsewhere in Europe, as part of the EU’s Frontex operation.
August 14: The European Committee for the Prevention of Torture and Inhuman of Degrading Treatment or Punishment (CPT) carries out a visit during a national return operation from Germany to Afghanistan. The operation is co-ordinated by Frontex. The CPT report states:
One of these escort officers put his arm around the returnee’s neck from behind and used his other hand to pull the returnee’s nose upwards thus enabling his colleague to insert a bite protection into the returnee’s mouth.
The reaction of the returnee was to increase his resistance, and a second escort officer from the back-up team intervened pulling the returnee’s head down onto an adjacent seat and placing his knee on the returnee’s head in order to exert pressure and gain compliance while the returnee’s hands were tied behind his back with a Velcro strap.
[…] this sixth escort officer gripped the returnee’s genitals with his left hand and repeatedly squeezed them for prolonged periods to gain the returnee’s compliance to calm down.
The report of the CPT is presented confidentially only to the German authorities, and is made public only in May 2019. According to EU Observer, Frontex complained against the CPT because it did not inform “the escort leader or to the Frontex representative during the operation, as it would have led to immediate intervention”.
None of these actions were ever reported via the internal Serious Incident Reporting mechanism of the agency.
July 19: In a meeting with representatives of the EU, IOM and UNHCR regarding the situation at the border with Croatia, Denis Zvizdic, head of the Bosnia and Herzegovina Council of Ministers, announced stronger border control and invited Frontex to come and help.
July 18: A Frontex surveillance aeroplane starts monitoring the EU’s external borders in the Western Balkans area as part of Frontex Multipurpose Aerial Surveillance (MAS). MAS uses surveillance planes which stream video and other data directly to the Frontex Situation Centre where data is analysed to provide quick feedback to relevant national authorities. This is the first MAS operation on a land border.
[By the end of the year,] 635 irregular migrants are sighted by the MAS aircraft attempting to cross the EU external border from Bosnia and Herzegovina into Croatia. MAS reported 46 sightings, all of which were notified to relevant authorities. The single biggest detection took place on 22 August, when MAS aircraft sighted a group of 89 irregular migrants attempting to cross the border towards Croatia. The Croatian authorities were swiftly notified of the detection and an operational response on the ground followed.
June 28: Media report that the Libyan Search And Rescue (SAR) Region is operative. As described in a EUNAVFOR MED monitoring report on Libyan coast guard and navy:
Libyan authorities [had already] sent a letter to the International Maritime Organisation (IMO) declaring a Libyan search and rescue (SAR) region on the 10th of July 2017. This declaration was subsequently withdrawn on 6 December 2017 and replaced with a new communication to the IMO dated 14 December 2017 whereby Libyan authorities informed that the Libyan Government has considered the Tripoli flight information region (FIR) as the Libyan SAR region, which was communicated to and approved by the International Civil Aviation Organization (ICAO).”
NGOs, security experts and European Parliament members expressed concerns and doubts about the establishment of the SAR region and the lack of necessary safety standards needed for such an act (ability to carry out rescues, 24/7 surveillance, and place of safety, among others). As revealed in this interview to Frederick Kenney, director of legal and external affairs at the IMO, the organisation does not carry out evaluations on such criteria.
May: The Transnational Institute and Stop Wapenhandel publish the report “Expanding the Fortress”, which analyses — among other elements — the role of Frontex in the EU policies of border externalisation.
Frontex … increasingly works together with third countries. It started negotiations with countries neighbouring the EU on the possibility of joint operations on their territories. Cooperation on deportations has developed quickly. From 2010 to 2016 Frontex coordinated 400 joint return flights to third countries, 153 of which in 2016 … Next to this, EU member states increasingly invite third country delegations to identify ‘deportable’ persons as having their nationality. In several cases this has led to deported persons being arrested and tortured.
May 10: Frontex Consultative Forum (CF) publishes its fifth Annual Report (2017). It highlights the contrast between the progressive expansion of the agency’s budget and the constant understaffing of the Fundamental Rights Office, together with the unwillingness of Frontex in revising its Fundamental Rights Strategy:
As in previous years, Frontex continued to scale up its staffing with up to 208 new recruits in 2017. In this context, against the repeated recommendations made by the Forum, the European Commission and the European Parliament, Frontex maintained its reluctance to adequately capacitate the Fundamental Rights Office with the provision of sufficiently qualified staff to carry out its increased responsibilities … The lack of adequate staffing seriously hinders the Agency’s ability to deliver on its fundamental rights obligations including on key areas such as Frontex operational activities, the newly established complaints mechanism or the protection of children. Although foreseen in its programme of work, the Consultative Forum regrets that due to a delay on the side of Frontex, it has not received a draft of a revised Fundamental Rights Strategy for consultation during 2017.
The CF “continues to face challenges in being proactively and timely provided with access to the necessary information to carry out its mandate as set forth in the European border and coast guard regulation.”
Regarding operational contexts, the CF reiterates the recommendation to suspend operational activities at the Hungarian/Serbian border, highlighting the discrepancies between Frontex position — that its presence could play an active role in minimising “potential risks related to the use of force, as well as document[ing] circumstances on the ground” — and reality, which saw a worsening of conditions for people on the move, a deterioration of the national legislative framework and the implementation of ‘state of emergency’ measures at the border. It also reminded Frontex that the EU Commission “launched an infringement procedure against Hungary considering that asylum procedures, rules on return and reception conditions are incompatible with EU law” and the European Court of Human Rights (ECtHR) found the expulsion of two Bangladeshi nationals from the transit zones to Serbia, to be in violation of Article 3 of the ECHR. Also, CF request access to current operational activities in the area “was granted but the information provided, in particular the operational plans, were not complete.”
February 1: Joint Operation THEMIS begins, replacing operation TRITON, launched in 2014. THEMIS has an enhanced law enforcement focus, but the operational area in the central Mediterranean is smaller. As stated by Frontex:
Upon the request of the Italian authorities, the operational area of the JO Themis 2018 was readjusted from the operational area of JO Triton implemented in 2017, by reducing the operational area in the Central Mediterranean and enlarging the operational area in the Adriatic Sea.
Themis does not foresee specific disembarkation points, favouring EU policies of refusing ports of safety.
Major Joint Operations:
◆ THEMIS 2018 (February1 — February 28, 2019). The operational area was established in the south of Italy (Puglia and Calabria) including Sicily, Sardinia and the Pelagic Islands.
Continuation of:
◆ POSEIDON 2018 (February 1 — January 31, 2019). The operational activities were carried out at the external sea border of Greece at the Eastern Aegean and Eastern Ionian Seas; additionally two maritime vigilance areas — North and South — were established in the Aegean Sea. Furthermore, in order to monitor secondary migration flows, Reporting points were established at the ports of Igoumenitsa, Patras and Corfu (Kerkyra).
◆ HERA 2018 (August 16 — November 15). The operational area extended to the land area of the Canary Islands, to the territorial waters and Exclusive Economic Zone of Senegal, as well as its airspace.
◆ INDALO 2018 (February 6 — February28, 2019). The operational area was divided in five zones covering Cadiz, Malaga, Granada, Almeria and Murcia. Execution of joint operational activities in operational area took place covering Spanish and international waters from Cadiz, in the Atlantic Ocean side of the Strait of Gibraltar, going North-East along the coast of the Iberian Peninsula, until the coast of Alicante province’s eastern-most point.
Returns: In total, Frontex coordinated, facilitated and organised the ‘return’ of 14,044 people.
1083 return operations were carried out by member states using scheduled flights (as in regular flights by commercial airlines), returning 1477 people.
345 operations were carried out using charter flights coordinated or organised by Frontex, returning 12,245 people .
Out of all return operations by charter flights organised in 2018, 139 were joint return operations, 67 collecting return operations and 139 national return operations.
322 people were returned from Greece to Turkey under the framework of the EU-Turkey deal.
2017
Personnel: 302
Budget: €488m
November 20: Frontex organises, under its own framework contract, its first joint return operation to Afghanistan, along with Hungary — the leading member state — Belgium and Slovenia. A total of 22 people are returned to Kabul. The operation falls under the Joint Way Forwar on migration issues between the EU and Afghanistan signed in 2016.
October: Balkan Insight cites a Frontex internal advisory note which highlights the tasks of the officials deployed on the Serbian/Hungarian border, in order to limit their “exposure to to any wrongdoing by limiting the agency’s engagement on the front line at the border”. According to said advisory note:
Frontex officials deployed in the region were tasked with “border surveillance activities” and “interception of irregular migrants” inside Hungary within an area up to eight kilometres from the EU’s external border with Serbia.
However, they were specifically advised that escorting migrants to transit zones was to be “exclusively performed by Hungarian authorities”.
The article carries on with testimonies from the ground:
“Frontex was always there at the beginning but they were never there in the end,” said Lydia Gall, a human rights lawyer at Human Rights Watch, who was working in the region at the time.
“I remember many migrants telling me they were happy to have foreign police around since their presence meant better treatment by Hungarian border guards.”
In Gall’s view, the conspicuous absence of Frontex officers during the final stage of detention and pushbacks showed the agency was trying to disassociate itself from any legal violations or rights abuses during expulsions.
October 6: In its A Year in Review report on the first year of the European Border and Coast Guard, Frontex highlights the ‘achievements’ of the first 12 months since the new mandate. Among them, there is the strengthened role of the agency outside the EU borders:
To strengthen cooperation in the area of border control with countries outside the EU, Frontex plays a key role in several capacity building projects focusing on specific regions neighbouring the EU — the Africa Frontex Intelligence Community (AFIC), Regional Support to Protection-Sensitive Migration Management in the Western Balkans and Turkey (IPA II) and Eastern Partnership Integrated Border Management Capacity Building Project. In addition to working closely with numerous EU agencies and international bodies, Frontex cooperates with European Union Naval Force Mediterranean Operation Sophia (EUNAVFOR Med Sophia), EU Border Assistance Mission (EUBAM) in Libya and EUCAP Sahel Niger. Frontex also remains in close contact with EU External Action Service (EEAS), with whom we have working arrangement.
July 6: Backed by the EU Council, Italy presents its ‘Code of Conduct for NGOs undertaking activities in migrant rescue operations at sea’. As reported by Frontex CF in its annual report, it is the result of repeated questioning of “the role of nongovernmental organisations (NGOs) […] by Frontex and institutional representatives in Member States”.
On the part of Frontex, such questioning was included in a biweekly analytical report of Joint Operation TRITON dated December 9, 2016 and in the Risk Analysis for 2017 (published in February), in which all SAR activities are described as “pull factors”.
May 12: Frontex Consultative Forum publishes its fourth Annual Report (2016). It raises a number of points of concern.
Firstly, related to the understaffing of the Fundamental Rights Office:
As repeatedly recommended during the year, urgent recruitment of additional technical staff to support the Fundamental Rights Officer remains key to the Agency’s ability to deliver on its fundamental rights obligations, including the rolling out of an individual complaints mechanism as foreseen in the European Border and Coast Guard Regulation.
Secondly, related to the lack of meaningful and sustainable involvement of civil society in the work of the agency.
The CF also calls for clearer rules concerning the individual complaints mechanism established by the 2016 Frontex Regulation:
The Consultative Forum warned against the creation of an incomplete, ineffective and non-transparent mechanism, which would preclude access to an effective remedy by the rights holders.
Regarding the way Frontex established the individual complaint mechanism, the CF notes that the agency “merely reproduced Article 72 of the European Border and Coast Guard Regulation without providing further detail on the roles of the different actors involved in the procedure.”
In addition, the following recommendations to improve the mechanism remain unaddressed:
◆ the Consultative Forum recommended that no time limit should be established for the submission of complaints. Eventually, the time line was extended from 6 months to 1 year;
◆ the term ‘directly affected’ should refer to the same standards used in international human rights law to identify the status of victim of a complainant, i.e. victims of acts and omissions;
◆ the possibility of submitting anonymous complaints should be provided;
◆ the obligation of the members of the team to provide information on the complaints mechanism should extend to any person that could be affected by the Agency’s activities and should not be limited only to those who specifically ask for it. Information about the complaint form, including a handout, should be provided to any person who expresses a wish to report an alleged violation;
◆ information should be provided in languages that third country nationals understand, using clear, precise and non-technical language throughout all the stages of the procedure, including the provision of information about the mechanism.
◆ lack of reference to any means of appeal against the Executive Director’s decision that, in EU law, includes the Court of Justice of the EU (CJEU).
On operational activities, the CF recommends “Frontex reached out to NGOs, international organisations as well as civil society in Turkey to feed into risk analysis and planning activities by Frontex in Turkey”.
[the CF] recommended that operational support at the Hungarian-Serbian border must be contingent upon Frontex being satisfied that people arriving at that border are duly registered by Hungarian authorities, given access to an individualised procedure and to asylum, if they so wish, are not summarily returned to Serbia, and that instances of police abuse and violence are investigated in an independent and impartial manner. Until this can be guaranteed, the Consultative Forum recommended to the Executive Director to immediately take action pursuant to Article 25(4) of Regulation (EU) 2016/1624 and suspend operational activities at the Hungarian-Serbian border.
On the same day as the publication of the report, Frontex Executive Director publicly replied to the CF:
Regarding the Consultative Forum’s recommendation on Frontex operational activities in Hungary, the agency believes that the presence of members of the European Border and Coast Guard Teams and Frontex staff on the Hungarian-Serbian border can actively contribute to minimise any possible risks highlighted by the Forum. It can also provide an objective and reliable source of information on the circumstances on the ground.
April 10: Frontex adopts the revised Code of Conduct for all persons participating in Frontex activities. As highlighted in the 2017 Annual Report of the Consultative Forum (CF), it “includes, as suggested by the Forum, a new foreword on ‘core values and principles’ […] and references to the ‘promotion, protection, respect and fulfilment’ of fundamental rights throughout the text, the obligation of participants to ‘keep themselves informed about the most up-to-date Frontex objectives, good practices and policies’ as well as a new provision on the ‘commitment to prevent exploitation and sexual abuse’.”
Unfortunately, Frontex did not take on board recommendations by the Consultative Forum to include in the Code of Conduct specific references to omissions or failures to act or to the prohibition to obey or obligation not to comply with and report instructions that are illicit or against international, EU or national legislation, the Code of Conduct or the legal framework of the activity.
March 23: Frontex, the European Fisheries Control Agency (EFCA) and the European Maritime Safety Agency (EMSA) sign a Tripartite Working Arrangement, strengthening further their cooperation on coast guard functions.
Aligned with their [new] mandates Frontex, EFCA and EMSA will cooperate in sharing maritime information, providing new surveillance and communication services, building capacity, analysing operational challenges and emerging risks in the maritime domain as well as planning and implementing multipurpose operations.
March 2: The EU Commission adopts the Renewed Action Plan on Returns. It includes “proposals on accelerating asylum and inadmissibility procedures, enhancing the sharing of return information and strengthening measures to incentivise returns”. It also aims to enhance readmission agreements with third countries and provide additional funding for Member States for return actions. Regarding Frontex, it states:
The European Border and Coast Guard Agency should in 2017:
◆ increase its return support unit staff by June.
◆ put in place a commercial flight mechanism by June.
◆ step up pre-return assistance by organising identification missions by June.
◆ finalise the mapping of Member States’ capacities and return needs by June.
◆ step up the training of third country authorities taking part to collecting return operations by October.
◆ fully use the financial allocations by the end of the year.
January 10: Frontex launches a ‘pool of experts’ who will support the return of migrants across the EU, as part of agency’s expanded mandate. It will ultimately consist of 690 officers (“return monitors, return escorts and return specialists”).
Return specialists will support identification of irregular migrants and acquisition of travel documents, including cooperation with consular authorities of countries of origin of returnees. Return escorts will support national escort officers during return operations coordinated by Frontex. Return monitors will carry out independent monitoring of return operations to ensure compliance with fundamental rights.
Major Joint Operations:
◆ COORDINATION POINTS (Ukraine border, following the granting of visa-free regime).
Continuation of Operations:
◆ HERA 2017 (August 1 — October 31). The operational area was divided into two zones: land area of the Canary Islands and territorial waters and Exclusive Economic Zone of Senegal, as well as its air space.
◆ POSEIDON 2017 (February 1 — January 31, 2018). The operational activities were carried out at the external sea border of Greece at the Eastern Aegean and Eastern Ionian Seas; additionally two maritime vigilance areas — North and South — were established in the Aegean Sea. Furthermore, in order to monitor secondary migration flows, Reporting points were established at the ports of Igoumenitsa, Patras, Korinthos and Kerkyra.
◆ TRITON 2017 (February 1 — January 31, 2018). The operational area was established in the south of Italy (Puglia and Calabria) including Sicily, Sardinia, the Pelagic Islands, as well as an area south of the island of Malta.
◆ INDALO 2017 (May 3 — January 31, 2018). Initially the operational area covered the following southern coastal areas of Spain: Algeciras, Malaga, Motril-Granada, Almeria and Cartagena-Murcia. From September 21, 2017 the operational area also included the Spanish territorial and international waters off the province of Cadiz.
◆ ALEXIS and FLEXIBLE OPERATIONAL: Joint Actions at EU Airports in cooperation with Albanian authorities.
Returns: The European Centre for Returns is created within Frontex.
◆ 341 Frontex-coordinated and Frontex-co-financed joint return operations were implemented using charter flights (flights chartered only for this specific purpose). A total of 14,189 people were returned. 38 flights were within the “collecting return operation” framework (where the authorities of the third country where people are being returned charter a flight and provide border guards, with the support of Frontex).
◆ Frontex coordinated 50 readmission operations from Greece to Turkey, with 687 readmitted third-country nationals
Article by Giulio D’Errico, AYS
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