AYS Special: Frontex and Human Rights — How did we arrive here? Part 4 (2021 So Far)
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 for fundamental rights in its operation.
This is the fourth and last part of the Frontex timeline, on the events of 2021. We will update it every first Sunday of the month, starting now. As the previous parts, it starts with the most recent entry.
Check out PART 1 (2004–2016), PART 2 (2017–2019) and PART 3 (2020)
2021
Provisional estimate of budget: €543.5m (+18% from 2020)
Staff: It is envisaged that Frontex staff numbers will reach 2,000 in 2021. 1,000 headquarter staff and 1,000 members of the agency’s standing corps. (See table below). 700 members of the standing corps should have been ready for deployment as of January 1, 2021, but by January 31, only 255 met these requirements.
Investigating Frontex (up to February 2021)
- Internal Management Board Working group: Final report to be delivered by February 26. Still not made public.
- OLAF, Anti-Fraud European watchdog: Ongoing (updated January 11).
- EU Ombudsman:
◆ CASE OI/5/2020/MHZ on how Frontex deals with complaints about alleged fundamental rights breaches through its ‘Complaints Mechanism.’ Ongoing (updated January 29).
◆ CASE 2191/2020/VB on Frontex’s failure to reply to an administrative complaint. Ongoing (updated January 18).
◆ CASES 1261/2020/MAS and 1361/2020/MAS on how Frontex deals with requests for public access to documents. Ongoing (updated January 28).
◆ CASE 2273/2019/MIG on Frontex’s failure to maintain a public register of documents and other issues related to public access to documents. Closed on February 3, 2021.
◆ CASE 233/2021/OAM on how Frontex dealt with a request for public access to documents concerning tracking data of vessels used in Frontex maritime operations. Ongoing (updated February 10). - European Parliament Frontex Scrutiny Group. Constitutive meeting held (updated February 23).
+ Front-Lex and Legal Centre Lesvos (preliminary action): awaiting reply by Frontex. Ongoing (updated February 15).
+ Syria Justice and Accountability Center (SJAC): awaiting reply by International Criminal Court. Ongoing (updated January 28).
February
February 23: Following the decision of January 29, The European Parliament Frontex Scrutiny Working Group holds its constitutive meeting. 14 MEPs are part of the inquiry(2 per political group), which is chaired by the Maltese MEP Roberta Metsola.
February 15: A team of lawyers from Front-LEX and the Legal Centre Lesvos communicates to the Executive Director of Frontex a preliminary action against the agency for failure to act, pursuant to Article 265 of the Treaty on the Functioning of the European Union (TFEU).
In the face of systematic serious and persistent violations of fundamental rights and international protection obligations related to acts and omissions of the Agency in the Aegean Sea, the lawyers request that the Agency immediately suspends or terminates all its border surveillance activities in the Aegean Sea Region.
… Frontex is accused of structural failures to prevent violations, failure to fulfil its monitoring obligations and investigate serious reports of fundamental rights violations. It is now called upon to respond for systematic, widespread and serious violations of its fundamental rights obligations.
As required by Article 265 TFEU, the Agency has to define its position within two months. If it fails to do so, a legality review action may be brought before the Court of Justice of the European Union.
> Frontex’s Management Board adopts the new Frontex Fundamental Rights Strategy. Its previous one was adopted in 2011. Since 2016, Frontex’s Consultative Forum had requested and provided inputs for its update, clashing with the unwillingness of the agency.
February 10: Members of the European Parliament adopt the report on: “Implementation of Article 43 of the Asylum Procedures Directive” (APD). The report calls for respect for human rights at the EU’s external borders and comes after the revelations in the Frontex Files. The discretionary nature of Article 43 of the APD has been analysed in a detailed study co-authored by ECRE. Article 43 regulates procedures at borders and transit zones. Commenting on the approval, rapporteur Eric Marquardt underlined the need for an independent monitoring of the EUs external borders given the widespread human rights abuse and pushbacks perpetrated by EU Member States.
> Amnesty International publishes its submission to the Call for inputs for the report on pushback practices and their impact on the human rights of migrants of the UN dedicated Special Rapporteur. The submission highlights patterns of pushbacks of people on the move in Europe with a focus on Bosnia and Herzegovina, Croatia, Cyprus, France, Greece, Italy, Malta, Slovenia and Spain.
> The EU Commission publishes a communication on the first factual assessment of readmission cooperation, based on data on return and irregular arrivals. This assessment stems from the changes to the Visa Code in 2019 (art. 25a). The assessment itself is not made public. The communication summarises its finding, lamenting “the unsatisfactory performance on return and readmission:”
The return of those who have no right to stay remains a challenge. Out of those that need to be returned, only one third effectively return 7, and of those less than 30% do so voluntarily.
One point of contention is the diversity of legal and administrative return frameworks of the Member States, “with gaps and good practices in each national system.”
The communication praises voluntary returns and wishes for an increase of such programs, “combined with effective reintegration strategies.” Regarding cooperation with non-EU countries, the communication states that “obstacles may appear at different stages of the process — for example, when Member States follow-up with a readmission request, or a request for identification and re-documentation to the third country concerned.” It also laments the “refusal by certain countries of non-voluntary returnees is also an issue of concern.”
The implementation of new measures is also envisaged, in the form of a return sponsorship mechanism between Member States and the selection of a Return Coordinator. It also envisages the strengthening of readmissions bilateral agreements and more third countries. Read the comment by ECRE.
> EU Ombudsman opens new case (233/2021/OAM) on how Frontex dealt with a request for public access to documents concerning tracking data of vessels used in Frontex maritime operations. The complaint is launched by Spanish MEP Sira Rego, after the agency denied a request for information from Light House Reports concerning the positions of 16 vessels used in Frontex’s maritime operations on the Aegean. In its initial response, Frontex denied access on the grounds that it involved sharing personal data and sensitive information and alleged risks of such information being used by human smugglers. Upon additional requests by Rego, the agency replied stating that the required documents did not exist or were not accessible.
February 7: Tracking the flight of Frontex’s aircraft Eagle 1, Moonbird — SeaWatch’s aircraft — spots a burning boat where the agency’s craft had orbited for around 1 hour.
February 6: German Pro Asyl publishes a statement calling for the ‘total demolition’ of Frontex.
The agency is a parody of a rule of law police. We demand a total demolition. In the European Union there must be no state within a state that can cross the borders of illegality in an uncontrolled manner. Exchanging someone at the top would be an alibi. The Frontex architecture made it possible to act ‘legally free’ at the EU border. The failure of the EU Commission and the interior ministries of the EU countries must also be clarified. You have known the illegal practices for years, not just pushbacks on land and at sea, without taking any action.
February 5: Researchers Myriam Douo, Luisa Izuzquiza and Margarida Silva publish the report ‘Lobbying Fortress Europe. The making of a border-industrial complex’: an extensive account of the European border agency’s close ties with lobbyists and corporate leaders from the security industry. The three researchers have obtained over 130 documents, dated 2017–2019, detailing Frontex’s meetings with companies from the security sector, during which new technologies were discussed, but their effect on people’s rights was not discussed at all. These documents are now publicly available as The Frontex Files.
The report finds that:
◆ Frontex holds special events for security industry lobbyists where they work hand in hand to promote ‘solutions’ based on techno-fixes, from biometric surveillance to firepower.
◆ These corporate interests are not neutral parties but de facto seek to shape Frontex’s approach to border control in their interests, and benefit from procurement contracts.
◆ Meanwhile the agency has no real transparency or lobbying accountability mechanisms in place, and indeed denies that it is a target for lobbyists at all.
◆ At the same time as the agency has open doors for corporate lobbyists selling defence and surveillance solutions which have major human rights implications, groups working to defend human rights are left on the sidelines.
Frontex, when contacted by the researchers stated that the agency “does not meet with lobbyists. Given our mandate (contribute to the implementation of integrated border management at the external borders of the EU) and the fact that the agency does not play a role in the EU decision-/law-making process, Frontex does not attract the interest of lobbyists.”
The conclusions of our analysis are extremely worrying as they depict a migration policy moving towards ever more reliance (even more than now) on armed policing at the borders and biometric surveillance of people, whether EU citizens or not.
February 3: The EU Ombudsman publishes a decision for the case 2273/2019/MIG on Frontex‘s public register of documents. In it, the Ombudsman commends Frontex for the steps the Agency took — despite the delay — to implement an up-to-date public register of documents;
requires Frontex to include the number of sensitive documents it holds (which are not included in the register) in every Annual Report;
- decides that Frontex has a right to refuse requests for documents to non-EU citizens, as accorded by EU laws.
Commenting the decision, Statewatch argued that it makes no sense because “it is non-EU nationals who are most significantly affected by Frontex’s work.”
OUT THIS MONTH — Documents
- Note for the participants to the extraordinary Frontex Management Board meeting of November 10, 2020 regarding the accusations of pushbacks in international media. This note includes the preliminary findings of the Executive Director’s own inquiry into the matter, which absolves the agency from all accusations. Released by Statewatch. [Now added to the 2020 section of this timeline]
OUT THIS MONTH — Readings
- The Fortified gates of the Balkans: How non-EU Balkan states are incorporated into Fortress Europe and what is the role of Frontex.
JANUARY
January 29: Extremely busy day for Frontex.
> The agency deploy its first Standing Corps Return Team to support return activities at Italy’s Fiumicino Airport, Rome. The 11-strong Return Team consists of Frontex Standing Corps officers performing ground support in returns, including those transiting from other EU Member States, and occasionally escorting tasks in return operations.
> On the same day, Frontex and Spanish authorities agree to “the operational and legal framework for all activities in Spain for the next 12 months.” The agency has 257 officers deployed in the Western Mediterranean as part of Operation INDALO and on the Canary Islands, including 11 member of its own standing corps. Frontex’s role in the Canary islands has been expanded recently, with 26 officers supporting the registration and identification process and collecting information about criminal groups involved in people smuggling. The agency also intends to relaunch operation Minerva, in which Frontex officers assist Spain in handling the large number of travellers arriving by ferries from Africa during the summer months each year.
> Also, on January 29, MEPs from the Civil Liberties, Justice and Home Affairs (LIBE) Committee agree to set up a ‘Frontex Scrutiny Working Group’, to look into allegations around the EU’s border security agency’s role in illegal pushbacks of refugees. The working group will carry out a fact-finding investigation, gathering all relevant information and evidence regarding alleged violations of fundamental rights in which Frontex was involved. The final report will also come up with recommendations on how to prevent fundamental rights violations in the future.
> Furthermore, The Platform for International Cooperation on Undocumented Migrants (PICUM) releases a statement in which it announces it will no longer be a member of the Frontex Consultative Forum.
After seven years of membership in the Consultative Forum (between 2012 and 2019), and after long discussions internally, PICUM came to the conclusion that the Consultative Forum’s working methods did not allow for our meaningful participation.
The organisation laments a lack of transparency, limitations based on a strict confidentiality agreement, and Frontex’s involvement in illegal pushbacks among of the reasons for their withdrawal.
> Finally — following the enquiry of European Ombudswoman, Emily O’Reilly, on how Frontex deals with complaints about alleged fundamental rights breaches through its ‘Complaints Mechanism’, opened on November 10, 2020 — the Agency replies to her question in a 55-page document.
January 28: Following the recent ruling of the Court of Justice of the EU, Frontex finally suspends all its operations in Hungary.
[+] > The Syria Justice and Accountability Center (SJAC) calls on the International Criminal Court (ICC) Prosecutor to investigate Greek authorities and Frontex officers for abuses against people on the move in the Aegean, and on the Greek-Turkish land border, which could amount to crimes against humanity. SJAC identifies Frontex’s role in assisting the Greek coastguard in carrying out illegal pushbacks:
Greek government officials, Frontex officials and their agents have engaged in a policy of Unlawful pushbacks of refugees at sea and from Greek territory [and of] Intentional deprivation of humanitarian assistance to refugees on the Aegean islands since the commencement of the EU-Turkey Deal.
SJAC urges the ICC Prosecutor to open an investigation into this widespread and systematic attack on refugees:
The attack is evident through unlawful pushbacks performed by Greek government officials and their agents, Frontex officials and their agents, and any other third-party contractors hired by Greece or the European Union in furtherance of pushbacks. The attack is also carried out by Greek government officials and their agents who persecute refugees, deprive them of humanitarian aid, commit acts of sexual violence against them, and torture them. These policies and practices support Greece’s broader goal of suppressing refugees and deterring them from coming to Europe.
January 27: Joint Operation Montenegro 2020 ends today. Started on October 14, 2020, Frontex Surveillance Aircraft (FASS) has provided aerial surveillance in the operational area.
January 20-21: Frontex Management Board hold a series of meetings. Concluding their meeting on the preliminary report of its Working Group on Fundamental Rights and Legal Operational Aspects of Operations in the Aegean Sea, the Board ask the Working Group to deliver its final report by February 26 and it:
◆ takes note that five out of 13 incidents that have been examined still require further inquiry by the Working Group and additional clarifications.
◆ takes note that on the eight incidents that the Working Group could close at this stage and, on the basis of the information provided, it could not establish evidence of fundamental rights violations.
◆ is very concerned that the Agency missed to provide information on three incidents identified by the Working Group in time, so that the Working Group could not yet draw any conclusions with a view to certain cases.
◆ invites the Executive Director of the Agency to immediately provide the missing information and to implement the recommendations made in the report for the improvement of the Agency’s internal process and procedures
The preliminary report (made publicly available by Statewatch) shows that “unclear data” was provided by Frontex. Among them, contradictory statements and Serious Incident Reports which are still ongoing.
as regards the incident of 28 April 2020, the Working Group notes that, despite repeated requests, Frontex provided some information only at the last stage of the group’s work.
Many observers noted that the inquiry of this internal Working Group is relying on the untrustworthy excuses of the Greek coast guard and poorly detailed information from Frontex itself, and drawing its conclusion without further inquiries.
Concluding the meeting on Frontex Standing Corps, the Board:
◆ complains that only 419 officers have been recruited for the standing corps ‘category 1’ officers [statutory staff deployed as members of the teams in operational areas … as well as staff responsible for the functioning of the ETIAS Central Unit], of which only 255 have completed their training and are ready to be deployed, instead of the planned 700 officers.
◆ call for the recruitment of 40 Fundamental Rights “without any further delay.”
At the conclusion of the meetings, media report, the Board has not raised any objection to the current Frontex leadership, and despite many calls for his resignation, the Executive Director “has no plans to resign and remains determined to lead the agency in these challenging times.”
January 19: Frontex and Europol commit to improving public access to documents, in response to complaints filed with the European Ombudsman in December 2019 by Statewatch. Europol agreed to improve and expand its existing document register, and Frontex to set one up — “something that it should have done over 15 years ago.”
January 18: Statewatch publish a letter by the Director-General of the EU Commission’s migration and home affairs department Monique Pariat to Frontex Executive Director, dated December 18, 2020, in which the head of the agency is accused of having misled the LIBE committee of the European Parliament. Pariat express dismay, and rebukes point for point the justifications given by the Frontex Executive Director for the late implementation of the agency’s new fundamental rights obligations.
[+] January 13: Following the formal expiry of a previous agreement in October 2020, a new Joint Declaration on Migration Cooperation between Afghanistan and the EU is signed today. This new declaration lasts for an indefinite period of time.
January 11: Media report that the EU’s anti-fraud watchdog, OLAF, has opened an investigation into Frontex, the bloc’s border agency. Both agencies confirm the running investigation, which reportedly started at the beginning of December 2020. The investigators are looking into allegations of harassment and misconduct that have led some officials, including at a very senior level, to leave the agency in recent months. However, the probe also involves allegations of pushbacks. The offices of the Executive Director and his head of Cabinet Thibauld de La Haye Jousselin were searched by OLAF investigators on December 7.
A Greek media outlet suggests that the investigation points at the behaviour of Frontex Executive Director, who “actively resisted” the recruitment of the required 40 fundamental rights officers provided for in the 2019 Regulation, describing it as “not a priority.” He also “repeatedly made it clear to staff” that “reporting pushbacks involving Frontex personnel is not a route to popularity or promotion” within the agency.
January 8: The Hungarian Helsinki Committee published a note evaluating the Frontex’s human rights mechanisms related to Hungary.
The evidence, including previously unpublished documents presented in this paper show shockingly ineffective human rights compliance mechanisms within the Agency. As serious allegations have surfaced regarding the role and responsibility of Frontex in fundamental rights violations at other sections of the external Schengen Borders, recommendations included at the end aim to strengthen the weak mechanisms pending changes are introduced to the current legal framework of Frontex.
January 7: The Hungarian Helsinki Committee writes a public letter to Frontex Executive Director, demanding Frontex to cease its support to Hungarian authorities, especially after the ruling of the Court of Justice of the EU of December 17, 2020, which states that “the Hungarian legalisation of push-backs is in breach of EU law, more specifically the Return Directive and the EU Charter of Fundamental Rights.” The letter also details how the agency constantly turned a blind eye to human rights violations since 2016, despite being fully aware of the situation.
Janaury 6: German media outlet Deutsche Welle publish a detailed article explaining how more and more people on the move are reporting Frontex complicity with pushbacks from Albania to Greece. As quoted in the article, a Frontex spokesperson reiterated that the agency “has checked some of the allegations and found no credible evidence that would support them.”
OUT THIS MONTH — a reading list
- Politico’s Frontex’s growing pains. EU border force plagued by chaotic recruitment, COVID outbreaks and an investigation by anti-fraud watchdog and Der Spiegel’s Scandals Plunge Europe’s Border Agency into Turmoil are among the best overviews the events of the past month.
- EU Migration Agencies: the Operation and Cooperation of Frontex, EASO and Europol. An analysis of the operational tasks and cooperation of the three EU agencies, which focuses on the expansion of their legal mandates, the reinforcement of their activities on the ground and the gap between these two dimensions. As the Regulations of these agencies stress their assistance and coordination role, their actual tasks have an operational nature on the ground: they guarantee the effective and uniform implementation of EU migration, asylum and border management measures, while also ensuring that the concerned Member States do not jeopardize the functioning of the Schengen area or the CEAS. It is also a book!
- Frontex: Accountability Declined, report by Euro-Med Human Rights Monitor, documents and analyses the involvement of Frontex in Greece’s illegal pushbacks of migrants and asylum seekers to Turkish waters and the various violations of International and EU human rights laws entailed. The report also highlights a pattern of the excessive and alarming autonomy of Frontex, as its budget, role and staff are augmented by the EU without clear legal boundaries.
- Validating Border Violence on the Aegean: Frontex’s Internal Records, by Border Criminologies, analyses how the agency’s internal reporting system “form the backbone of Europe’s external borders and migration situational picture, Frontex’s narrative of the border.” JORAs (Joint Operation Reporting Applications) are the ‘activity logs’ of Frontex operations, “devised to feed into risk analyses, maps and weekly analytical overviews.”
Through their production, a narrative arc is formed by the recorded incidents, generating a specific mode of understanding … As a result, even acts of violence such as pushbacks can get translated into mundane logs and thus, brought within the remit of everyday border enforcement and legality.
- Artificial intelligence: Frontex improves its maritime surveillance, by Mathias Monroy, explains what it means to use AI to “catch bad guys at sea”, the costs of the new border tech and the implication of this further move towards unmanned border security. On the same topic, Petra Molnar’s interview on the use of drones, facial recognition, and lidar on refugees is revealing of how 2020 has been pivotal in turning people on the move into “guinea pigs” for surveillance technology.
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