Blog post written by Mariana Gkliati, an RLI affiliate and a PhD researcher at Leiden University, working on the accountability of Frontex for human rights violations during its operations. Mariana will present on the ‘Regional Institutions in Europe’ panel at the upcoming RLI 4th Annual Conference.
The conference draft programme is available online and registration for the event is now open.
Last week (17 April 2019), the European Parliament took the final vote that brings to life the new European Border and Coast Guard (EBCG) Regulation, which once more puts Frontex, the European Border and Coast Guard Agency, in the epicentre of the EU response to forced migration.
Almost every two years since its establishment in 2004, the agency has been vested with new powers and competencies, while both its personnel and budget have been continuously receiving major boosts, bringing the agency ever closer to the original vision of a European Border Police Corps.
With its renewed mandate, decided in record time, within only six months, Frontex obtains its own operational arm of a standing corps of 10,000 border guards with broad executive powers and their own equipment. Joint surveillance operations at the EU sea, land and air borders have been the agency’s main activities since it became operational. The new EBCG Regulation makes returns of irregularly staying third-country nationals a key priority of the agency. The new rules also strengthen cooperation with third countries for the purpose of border control and facilitation of forced returns. They also reinforce the agency’s mandate in processing and exchange of data, including personal data and other sensitive information, with other EU agencies, such as Europol, member states, and non-EU-countries, including the forced migrant’s country of origin. You may read more about the expanded powers of the agency in this next phase of the European Border and Coast Guard here.
Securitisation
In today’s context of international mobility and the level of harmonisation reached in EU law and policy, the EU has the potential to become a leading actor in global migration governance. Initiatives such as the recent European Parliament’s motion on a European Humanitarian Visa present unique opportunities to shape the EU’s regional response to the challenges and opportunities presented by forced migration.
Regrettably though, in light of the turn in European politics towards intolerance, protectionism, and securitisation, such priorities have profoundly influenced the EU’s Agenda on Migration, so that border control has become today’s equivalent of migration management.
With 146 joint surveillance operations at the EU external borders since 2005, and with return operations being its fastest growing activity, Frontex has become the most important actor in border enforcement in Europe, highlighting the EU’s priorities with respect to the ‘migration crisis’.
According to the LIBE Committee of the European Parliament, ‘The Agency’s new mandate and its increased resources are a clear and strong response to the challenges faced at the EU’s external borders.’ In fact, the control of the external borders has been positioned as a necessary prerequisite for the function of the Schengen area of free movement. Now more than ever the connection with the work of the EBCG becomes institutionalised, as the new rules link the Schengen evaluation mechanism directly to the vulnerability assessments conducted by the agency (Art. 34 (2a)), which identify weak spots in the external borders. Based on this mechanism, border controls may be temporarily reintroduced within Schengen, as we have seen in the German-Austrian border and in Danish and Norwegian ports amongst several other internal borders.
Directly linking freedom of movement within the EU to securing the borders from migrants, the EU objective is that the EBCG will strengthen Europe’s external borders, so that people can continue to live and move freely within the European Union – helping live up to Europe’s commitment to get back to the normal functioning of the Schengen area and the lifting of temporary internal border controls by the end of the year (2019), as set out in the Commission’s Back to Schengen Roadmap of 4 March.
Furthermore, building upon the idea of migration as a security concern, while Frontex was initially meant to deal with irregular border crossings, now it joins ‘the fight against cross-border crime and terrorism’. These aims are included in the agency’s research and risk analysis, while Frontex also becomes responsible for the processing of the personal data of persons suspected of terrorism, and for cooperating with other EU agencies and international organisations on the prevention of terrorism. Thus, in the utmost manifestation of securitisation, migration is not just a security concern, but a terrorism risk.
The securitisation approach is exacerbated in the new Regulation by the continuous use of the term ‘illegal’ throughout the text. The detrimental effects such language may have upon the human rights of migrants have been repeatedly highlighted.
Responsibility
As a result of this conflation of vaguely defined goals and motivations – ranging from the administrative offence of irregular border crossing, to reasons for exclusion from refugee status, such as terrorism – Frontex keeps expanding its powers in activities that are inherently sensitive to violations of refugee and human rights, including the right to non-refoulement, the prohibition of torture, and access to asylum. For a closer look onto the impact of the new EBCG Regulation upon the fundamental rights of migrants and the accountability safeguards included therein, see here.
When these sensitivities materialise into real violations, questions of responsibility naturally arise, and in the case of the EBCG, these are most pertinent. Frontex implements through its joint operations a new model of cooperation, where a multiplicity of actors is involved. Cooperation has been the headline of recent European border management including relevant member state authorities and EU agencies, but it also involves private corporations, such as airlines, as well as countries of origin and transit. In the case of Frontex joint operations, this includes a state that is hosting a joint surveillance or return operation, participating member states as well as third countries.
When addressing complex structures, such as the EBCG, the attribution of responsibility is not always crystal clear and leads to what the political philosopher Dennis Thompson has discussed as the problem of many hands.
Our current legal and judicial framework is not fully equipped to deal with this new model of enhanced cooperation, often allowing actors to evade their responsibility and shift the blame to other actors involved.
These changing circumstances challenge our existing frameworks and ask for new approaches for dealing with such responsibility. They also present an opportunity to adapt our accountability mechanisms in a way that these can move beyond individual redress and can respond to structural problems that affect large numbers of people. Such attempts require the interaction of the regional with the global and the openness of the EU Courts to international approaches, but also the active engagement of EU citizens in influencing policy.
Conclusion
The EU has chosen to perceive migration as a threat, and is focusing its efforts in securing its borders, increasingly depending on the work of Frontex. With its powers and competences constantly growing, and its budget now being counted in billions, Frontex achieves even greater autonomy. Its reach in European border control, even far beyond EU borders, makes questions about its responsibility for breaches of fundamental rights of refugees and other migrants more urgent than ever.
These issues will be discussed in more detail and amongst forced migration experts from around the world at the Refugee Law Initiative’s Fourth Annual Conference ‘Rethinking the “Regional” in Refugee Law and Policy’, on 3-5 June 2019.
The views expressed in this article belong to the author/s and do not necessarily reflect those of the Refugee Law Initiative. We welcome comments and contributions to this blog – please comment below and see here for contribution guidelines.