By Kas, Stefan & Thijs
The European Border and Coast Guard Agency (also: Frontex) is first and foremost known to the general public for the role it plays in search and rescue operations, most notably in the Mediterranean. We all know about the 2015/2016 migratory crisis, when thousands of refugees sought to enter the EU on (rubber) boats. Probably less visible and known to the general public, however, is the involvement of Frontex in return operations. In essence, return operations are concerned with returning persons that are staying in the EU illegally back to their country of origin, when they have exhausted all legal possibilities to get asylum. Late 2019, Frontex received broader competences via the adoption of Regulation 2019/1896 (replacing the “old” Regulation 2016/1624). The broader competences in respect of return operations are dubbed one of the most politically sensitive aspects of this new Regulation. As these return operations have a relatively unknown character, this blog aims to give an overview of their process and discuss the accountability mechanisms in place with regards to the protection of fundamental rights.
A two-phase return operation
The process of a return operation can be roughly divided into two stages, a pre-return and return phase. The new Frontex Regulation increased the role of Frontex in these return operations, both in pre-return and return-related activities.
At the heart of the pre-return phase stands the return decision. Third-country nationals who have used up all legal possibilities to legitimize their stay within the EU, receive a return decision from the Member State where they are staying. Frontex assists the Member States in collecting the necessary information to issue return decisions and helps with the identification of third-country nationals who are subject to return procedures (Article 48(1)(a)(i)).
As soon as the authorities of the third country verify that the person involved is in fact a national of their country, they may issue a travel document. Frontex can provide assistance to the Member States in the acquisition of these travel documents (Article 48(1)(a)(ii)).
Prior to the return phase, the returnees must undergo a medical examination to determine whether they are fit enough to travel. Then, the return phase is initiated.
Return operations can be carried out by different means of transport, though mostly it is carried out by plane. Frontex can charter aircrafts or book seats on commercial flights (Article 50(1)), but now it can also buy or lease – and therefore use – its own aircrafts (Article 63).
During the return operation, several actors are present to make sure that the operation runs smoothly. There are three pools of return experts created by Frontex – return monitors, return escorts and return specialists – for support in return operations. In line with the enhanced mandate for Frontex in return operations, the return escorts and return specialists are now part of Frontex’s new standing corps (Recital 58).
There is also the need for a constant assessment of fundamental rights compliance during the return operation. Under strict conditions it is allowed to use force against returnees who do not cooperate with their return, cause harm to themselves or others or cause damage to property (Article 7 Code of Conduct for Return Operations). Hence, some key actors are present during the return operation to ensure that fundamental rights are being respected. A minimum of one medical doctor is required to be present. If considered necessary, interpreters could also be present during the return operation (Article 14 Code of Conduct). During the return operation there are also forced-return monitors present, who monitor compliance with fundamental rights (Article 50(3) of Regulation 2019/1896).
A return operation is finished when a returnee is accepted by the country of return.
Frontex staff involved in return operations:
Accountability through monitoring and transparency
So, the new Regulation provides that Frontex can now acquire its own aircrafts and employ its own escorts for return operations. This also makes the agency increasingly liable for claims of fundamental rights violations for which they would be held responsible. The question then becomes: how does the new Regulation deal with the accountability of Frontex for such possible violations?
The answer seems to lie mostly in the increase of transparency, mostly towards its main forum for political accountability: the European Parliament, more precisely the LIBE committee. The Regulation stipulates that Frontex’s Executive Director is required to report on the return operations biannually to inter alia the European Parliament (Article 50(7)). Being specifically relevant for fundamental rights concerns, this report must include the observations of the Fundamental Rights Officer (FRO). The FRO has the power to conduct investigations into any of Frontex’s activities to monitor their compliance with fundamental rights, including the power to carry out on-the-spot visits to any return operation (Article 109(2)). The FRO also receives reports of the fundamental rights monitors present during the operations (Article 50(5)). A novelty of the 2019 Regulation is the obligation for Frontex to recruit at least 40 fundamental rights monitors to support the FRO, who can also act as forced-return monitors during return operations (Article 110). The FRO is now also tasked with publishing an annual report on its activities and on the extent to which the activities of Frontex respect fundamental rights (Article 109). This report must also include information on the individual complaints mechanisms, where individuals can lodge a complaint to Frontex if they believe the agency has violated their fundamental rights. A remaining concern however is the history of understaffing and –financing of the FRO, making it increasingly difficult to fulfil its mandate. A mandate that has become increasingly important in the context of Frontex’s accountability.