Frontex and Fundamental Rights Protection – Much Ado About Nothing DRAFT

By Yanfui, Ana, Clara and Sebastian

As the European Union agency for “European integrated border management”, Frontex is the centre for border control activities at the EU’s external borders, sharing intelligence and expertise with all Member States and with neighbouring non-EU countries affected by migratory trends and cross-border crime. It plays an active role in return operations. Under Article 3 of Directive 2008/115, return decisions are taken when the stay of the third-country national is declared illegal, which occurs when the person does not fulfil the requirements of that Member State, not carrying the required visa or residence permit.

Regarding the critics of Frontex, according to a report from 2020, Frontex faces 3 main challenges concerning pushbacks: accountability and transparency. These issues have become increasingly visible in recent years. Nevertheless, the protection of Fundamental Rights has still not been sufficiently improved. This is particularly paradoxical, as this topic has been the subject of countless publications in the legal literature and the EU legislator is also aware of the problematic situation, given that the protection of Fundamental Rights is mentioned more than 230 times in the corresponding Regulation. In the context of this blog post, we will show where the greatest deficits exist regarding transparency and accountability, and thus where the greatest need for legislative action exists. To wake up the legislator and ultimately push the legislator to real sustainable action, we will suggest that the Ombudsman could take on a decisive role.

When Borders Become Barriers: The Unintended Consequences of Europe’s Approach to Border Control

In February, the sinking of a vessel carrying 59 refugees from Turkey to Italy was blamed on Greece. With regards to Frontex, it has cooperated in protecting the coast, which made refugees decide on circumventing the Greek islands and taking the more life-risking approach by attempting to reach Italy. Consequently, both Greece and Frontex have been accused of taking part in those deaths, and we still lack information on their participation in this incident during their border protection activity.

Unfortunately, this is only one of the numerous examples in which migrants coming in seek of asylum are subject to violence, detained, stripped, confiscated of their belongings, and pushed back to their territory.

No transparency in reality

Despite being an extremely regulated agency, the observable deficits in Frontex’s way of functioning raise doubts about its role as a border control agency. The lack of transparency and accountability in Frontex’s activities has been subject to debate since the Agency was created, with several calls demanding a solution to this issue at a national and European level, with no significant changes to this date.

When Frontex does not meet its transparency obligations, holding it effectively accountable for its actions is further complicated by the non-accessibility of all information. Even though a transparency mechanism can be found in Regulation 1049/2001 -to which Frontex is subject to access to Frontex’s documents remains highly restricted on account of the nature of the information they contain. This cult of secrecy is further increased by the requisites prescribed in the Regulation: To access Frontex’s documents the person must be a citizen of the European Union. This reduces many potential information requests, as those primarily affected by Frontex’s actions do not meet this requirement.

Moreover, from an accountability point of view, much has been reviewed and promised yet no noticeable changes can be seen. Being an EU Agency, Frontex is bound by the Charter, which consequently shields migrants from refoulement and collective expulsions. It also prohibits the conduction of pushbacks, as well as any sort of participation in them and the omission of acting against them. At first sight, the law is clear, and the system should work. Yet it is still extremely complicated to hold Frontex accountable when it does not comply with the said obligation, even when tools created with significant effort such as the ‘individual complaint mechanism’ exist. The reason is not surprising: Frontex is formed by multiple actors from quite diverse backgrounds which makes it particularly challenging to allocate responsibility in case of wrongdoing, specifically in the context of pushbacks.

Enhancing political attention as the way forward in addressing the non-accessibility hurdle

The main changes needed to improve accessibility are more or less obvious. The right of access to information must be made more effective by also granting it to non-EU citizens. In addition, the requirements for refusing the right to information on public security grounds must be made more stringent, so that this straightforward way of denying access is no longer available. Since the EU legislator, despite frequent and repeated criticism, has so far not genuinely chosen to strengthen the protection of fundamental rights at the expense of less effective border protection, the question arises of how the legislator can be pushed to such legislative changes.

For this purpose, the European Ombudsman should be involved to a greater extent by receiving complaints about Frontex activities. The broad mandate from Art. 228 (1) TFEU would allow the Ombudsman to deal with such complaints, to make them public and to enter into an accountability dialogue with Frontex. It is true that here, too, only natural persons residing within the EU can file a complaint, which will probably never be the case in practice regarding persons who have been pushed back. However, legal persons located within the EU can also file corresponding complaints and thus draw the attention of the Ombudsman to deficiencies in the work of Frontex at the border. Such legal persons are non-governmental organizations (NGOs), most of which have a registered office within the EU. These could serve here as a spokesperson for the third-country nationals who have been pushed back. The Ombudsman can then forward the submitted complaints to the European Parliament through so-called special reports, which would ensure that the issue is debated and thus gains political attention.

Even if an EU institution would not be obliged to comply with the Ombudsman’s recommendations, it can be pressured towards compliance through public ‘naming-and-shaming’. Even if immediate changes would fail to materialize due to the lack of far-reaching powers of the Ombudsman, the Ombudsman’s activities and demands could prepare the ground for later secondary legislation changes by increasing political pressure by highlighting the deficiencies to the public. The Ombudsman’s ability to persuade the legislator to amend the legislation has been proven, for instance, by the introduction of the complaint mechanism in Art. 111 of the Frontex Regulation, which was ultimately also based on the suggestion of the Ombudsman.