More Power, Less Accountability: The Need for Reform of Frontex Procedures on the Treatment of Asylum-Seekers

August 13, 2021

By Evan Harary

I. Introduction

The role of the European Border and Coast Guard Agency (“Frontex”) is growing. Within the next few years, it will command 10,000 officers and a budget of 5.6 billion euro.[1] As a consequence of this growth, Frontex agents will increasingly be the first point of contact between migrants and the European Union’s (“EU”) scheme of immigration enforcement, whether directly or in its supervisory role to national border forces. But recent incidents—including the presence of Frontex agents at a number of “migrant pushbacks” in the Aegean Sea and in violence against migrants at Greece’s land border with Turkey—have highlighted the agency’s inadequacy as a guarantor of the right to asylum, as well as institutional failures to hold Frontex and its agents accountable for fundamental rights violations.[2]

At present, the status of the rights to asylum and non-refoulement within Frontex’s legal foundations is meager, and the means by which migrants and advocates might hold Frontex accountable for failing to respect these rights are opaque and ineffective. To remedy this, the European Parliament should establish procedures that Frontex agents must follow when encountering migrants seeking international protection, as well as a transparent mechanism for holding Frontex agents accountable when they fail to follow these procedures and as a result cause harm. Putting in place clear procedures for ensuring access to the right to asylum will prevent a de facto chipping away at the right to asylum; it may also have the effect of imparting best practices to member states’ border guards.

II. Right to Asylum within Framework of Law and Guidance

Since its inception, Frontex has changed its mandate to yield space to fundamental rights, including the right to asylum. But it sketches the contours of this right in little detail. Regulation (EU) 2019/1896 of the European Parliament—Frontex’s current governing statute—states that it must respect, in particular, “the right to asylum and to protection against removal and expulsion, [and the right of] non-refoulement.”[3]Art. 43(4) of this regulation further states that members of “border management teams, return teams and migration management support teams” shall fully respect the right to access to asylum procedures, and “pay particular attention to vulnerable persons.”[4]

Regulation 2019/1896’s most expansive accommodation of the right to asylum is consideration of the deploying “migration management support teams” to countries with acute migration crises, and a provision for expanded cooperation with the European Asylum Support Office (“EASO”).[5] Experts from EASO, Europol, and the European Agency of Fundamental Rights are to staff these teams.[6]

It is “within the framework of… migration management support teams” that Frontex must establish procedures for receiving, registering, and referring asylum-seekers “in cooperation with EASO and competent national authorities.”[7] Moreover, the regulation notes that migration support teams may assume responsibility for providing information to migrants seeking international protection, as well as referral of these migrants to relevant national authorities.[8] The regulation is silent on what procedures Frontex must establish for referral, as well as how and in what circumstances Frontex agents must provide information to migrants seeking international protection.[9] Therefore, in practice, all of this is subject to Frontex’s discretion, more specifically the discretion of Frontex officers in the field.

Despite scant and vague references to asylum in Frontex’s legal foundation, it is clear that Frontex contemplates that its agents will, when making first contact, themselves identify potential asylum-seekers and provide them with relevant information. To this end, in 2016—before the passage of the Regulation in 2019—it published “Practical Guide: Access to Asylum Procedure,” in order to educate Frontex and member country border personnel on legal obligations and best practices with respect to asylum.[10] The 23-page guide states that it is the duty of first-contact agents to identify and provide information on application procedures to asylum-seekers.[11] Border agents must receive, register, and refer migrants expressing a need for international protection, as well as affirmatively ascertain their desire to seek international protection based on a broad range of factors.[12] These factors include migrants’ body language, age, family status, gender, country of origin, and demeanor with respect to border authorities.[13]

But, despite concessions to fundamental rights, the Regulation makes clear that Frontex’s primary role is in “border enforcement”—the business of turning back unauthorized migrants and expelling those present in member state territory. While the Regulation describes fundamental rights obligations, and requires cooperation with EASO, it does so in exceedingly general terms. Yet it states specifically that Frontex shall cooperate with EASO “in particular to facilitate measures in cases where third-country nationals whose applications for international protection have been rejected by means of a final decision are subject to return.”[14] This contrast highlights that, despite Frontex’s large and growing role in upholding the right to asylum, its commitment to this right is abstract in comparison to its commitment to enforcing hard borders, and expelling migrants whose presence does not comply with national law.

III. Avenues of Accountability

Avenues for holding Frontex accountable for their failure to uphold fundamental rights –whether judicial, political, and administrative—are diffuse and under-utilized. As an EU body, Frontex is not subject to suit in the European Court of Human Rights or in national courts. But complainants may bring Frontex before the Court of Justice of the European Union (“the Court”) when alleging that its conduct, or the conduct of its agents, does not conform with EU law (e.g., the terms of the Regulation or the European Convention of Human Rights).[15] In such cases, Frontex would be liable for damages for the actions of its agents undertaken “in the performance of their duties.”[16]

But the breadth of Frontex’s discretion, and the under-developed state of EU case law with respect to fundamental rights violations, make judicial remedies for violations of the right to asylum unlikely. For conduct undertaken within an agency’s discretionary powers, the Court’s jurisprudence limits relief to flagrant misconduct.[17] Thus far, Frontex has not been brought before the Court for breaches of fundamental rights, so potential actions for damages cannot be said to pose any deterrent effect on Frontex’s conduct with respect to the right to asylum, or a tested avenue for relief.[18]

Aggrieved individuals may also submit a complaint to Frontex itself.[19] Frontex documents list, in sparse detail, fundamental rights violations that may give rise to a complaint.[20] Among these are non-access to asylum procedures, consisting of “non-identification,” “non-registration,” “non-information and counseling,” and “removal without guarantees.”[21]

A Fundamental Rights Officer (“FRO”), an “independent expert,” is responsible for adjudicating complaints; the officer reports to Frontex’s executive suite.[22] Frontex regulations do not specify the remedies available to a successful complainant.[23] Observers have widely decried this complaints mechanism as opaque and ineffective.[24] Indeed, its procedures are not articulated in practical detail; the list of fundamental rights violations provided on Frontex’s rights violations provides no clarity as to the factual conduct which may give rise to an admissible complaint; and Frontex has not yet moved to staff the agency with FROs who can review complaints and recommend action.[25] In Fall 2020, the European Ombudsman opened an investigation, now ongoing, into the efficacy and transparency of the complaints mechanism.[26]

At the highest level, finally, Frontex is accountable to the European Parliament and the European Council.[27] The shortcomings of the EU’s legislative bodies in holding Frontex accountable for failing to provide the right to asylum are obvious. As political bodies, neither the European Parliament nor the European Council is equipped to hear individual cases. Moreover, only the most flagrant abuses are likely to reach the ears of parliamentarians. When faced with these allegations, EU Parliament members seem keener to limit Frontex’s role in the provision of asylum, rather than provide for avenues that guarantee Frontex agents ensure access to asylum and are accountable when they fail to do so.[28]

IV. Towards a Transparent and Effective Code of Conduct and Complaints Mechanism

Even if the European Parliament succeeds in formulating a uniform asylum processing procedure for member states, reforming Frontex will still be necessary as a means to ensure access to asylum. If border agents fail to identify a migrant seeking international protection or fail to refer a migrant asking for international protection, the adequacy of the member-states’ processes for adjudicating asylum claims will make little difference. And as it stands, there is an astounding lack of clarity with respect to Frontex’s responsibilities towards asylum seekers. As Frontex’s role as the point of first contact between migrants and the EU expands, reforms become more and more necessary

Accordingly, Frontex should draft clear, internally binding procedures for the identification and referral of migrants seeking international protections, and delineate in clear terms actions that constitute violations of the right to asylum. The internally binding procedures should detail steps that Frontex agents must follow when they encounter migrants. The procedures should require that agents affirmatively inquire whether the migrants are afraid to return to their host country, and incorporate presumptions that certain categories of vulnerable migrants are seeking international protection and therefore are to be referred to national authorities on asylum.

As for enumerating violations of the right to asylum, Frontex should make public descriptions of admissible complaints grounded in the right to asylum. Internally, Frontex should draft these complaints as if they were a legally binding cause of action so as to promote clarity to those responsible for reviewing complaints. For the public, it should publish descriptions, in non-legal terms, of grounds for complaints on the Frontex website, complete with example scenarios that would give rise to an actionable complaint.

Agents should receive training on scenarios that constitute actionable complaints, and be subject to automatic, defined punishment on a finding that their conduct gave rise to an admissible complaint. An independent body of experts should review the corpus of complaints lodged against Frontex annually in order to determine whether systemic changes in policy are necessary to ensure overall access to asylum. Failure to adhere to the procedures for ensuring access to asylum should be considered when determining whether the agency’s conduct gave rise to an actionable complaint.

V. Asylum and Law Enforcement: A False Dichotomy

In considering what procedures should address Frontex’s responsibilities to ensure access to asylum, some lawmakers may argue that Frontex is a border enforcement agency, and should  have a minimal role in ensuring access to asylum processes.[29] Indeed, this has been a common refrain even from parliamentarians in favor of reforming and holding accountable Frontex.[30] But this perspective belies Frontex’s ongoing de facto role in asylum processes and posits a false dichotomy between the right to asylum and the rest of migration law.

To the former point, Frontex’s footprint is large and growing. The number of migrants for whom Frontex plays a role as the first point of contact will grow along with Frontex’s footprint. If its agents are not bound by procedurally defined practices for ensuring access to asylum, and are not held accountable for violations of migrants’ rights, the right to asylum will inevitably suffer. Failing to define the Frontex agents’ role to ensure access to asylum ensures only that agents will violate that right, whether with intention or by ignorance. Frontex’s role in border management is certain; so too, should its role in providing access to asylum.

To the latter point, lawmakers should understand that asylum is not an accessory to the core of border management law. Rather, it is as core to the law governing global borders as is the right of the sovereign to police its borders. Therefore, ensuring the right to asylum is as much the responsibility of law enforcement as processing any other form of lawful entry. To bifurcate the law into two sections, one punitive and the subject of enforcement, the other humanitarian and the subject of advisory committees and rhetoric, is to imply that asylum belongs to a lesser corpus of law. It also empowers Frontex’s leadership to claim that the agency has no concrete obligations to provide access to asylum, as it has done before the European Parliament.[31] The right to asylum is law; it is therefore within the proper ambit of law enforcement. Lawmakers should refrain from stating otherwise and acknowledge that responsibility to uphold the law of borders entails responsibility to uphold the right to asylum.

VI. Conclusion

Introducing internally binding procedures and providing for defined, illustrated, and actionable complaints will ensure that Frontex agents uphold the right to asylum in both their executive and advisory role, and that Frontex is held accountable when its agents fail to do so. In addition, the adoption of procedures would provide watchdogs and courts with guidance as to what constitutes a violation of the right to asylum, which is critical in the large area of discretion between migrant pushbacks and conduct that, in fact, ensures and respects the right to asylum.

Without defined procedures, the right to asylum may become subject to gradual constriction as first-line agents fail, in non-flagrant cases, to identify or refer migrants seeking international protection. In addition, modeling best practices for border enforcement upholding the right to asylum may reduce abuses and increase efforts to ensure access to asylum among EU Member States’ border forces. Absent humane and unified EU Member State screening and asylum referral procedures this would, in itself, be a valuable contribution to safeguards that guarantee the right of asylum.

[1] European Border and Coast Guard: 10,000-strong standing corps by 2027, European Parliament: News (Apr. 17, 2019), https://www.europarl.europa.eu/news/en/press-room/20190410IPR37530/european-border-and-coast-guard-10-000-strong-standing-corps-by-2027.

[2] Matina Stevis-Gridneff, E.U. Border Agency Accused of Covering Up Migrant Pushback in Greece, The New York Times (Nov. 26, 2020), https://www.nytimes.com/2020/11/26/world/europe/frontex-migrants-pushback-greece.html; Eva Cossé, Frontex Turns a Blind Eye to Greece’s Border Abuses, Human Rights Watch (Mar. 10, 2021), https://www.hrw.org/news/2021/03/10/frontex-turns-blind-eye-greeces-border-abuses#.

[3] 2019 OJ L 295, 14.11.2019, pmbl.

[4] Id; The regulation implies that the category of “vulnerable persons” includes “children, unaccompanied minors, persons with disabilities, victims of trafficking in human beings, persons in need of medical assistance, persons in need of international protection, persons in distress at sea and other persons in a particularly vulnerable situation…” Id. art. 80(3)

[5] See id. art. 40; EASO works towards the establishment of the Common European Asylum System. It does this by, among other activities, providing trainings and capacity-building measures to member states and select third-countries. What we do, European Asylum Support Office, https://www.easo.europa.eu/about-us/what-we-do (last visited July 3, 2021).

[6] See 2019 OJ L 295, 14.11.2019, art. 40.

[7] Id. art. 10(1)(m)(ii).

[8] See id. art 40(4).

[9] See id. art. 10(1)(m)(ii).

[10] See Practical Guide: Access to Asylum Procedures, Frontex (2016), https://frontex.europa.eu/assets/Publications/Training/Practical_Guide.pdf.

[11] Id. at 3.

[12] Id. at 7.

[13] Id. at 14-16.

[14] See 2019 OJ L 295, 14.11.2019, art. 10(1)(r).

[15] Consolidated version of the Treaty on the Functioning of the European Union art. 340, Oct. 26, 2012, 2012 O.J. (C 326) 47 [hereinafter TFEU]; Much of the conduct involving asylum abuses would be factual, meaning not involving the adoption of a legally binding act, and therefore only subject to challenge for damages. See CJEU, Case C-60/81, IBM v. Commission, ECLI:EU:C:1981:264, Judgment of 11 Nov. 1981 (setting out the circumstances in which the act of an EU body is reviewable). See also TFEU art. 340 (stating that EU bodies are liable for the actions of their agents undertaken “in the performance of their duties”).

[16] TFEU art. 340(2).

[17] A violation undertaken within an agency’s discretionary power must be both “manifest” and “grave” to merit relief.  CJEU, Case C-352/98 P, Bergaderm and Goupil v. Commission, ECLI:EU:C:2000:361, Judgment of 4 July 2000, para. 43. A “manifest” violation is obvious, “clear-cut,” and “flagrant,” while a “grave” violation is one that “an authority exercising ordinary care and diligence would clearly not have committed it, for example, when the violation is reprehensible or ‘inexcusable.’” See CJEU, Case C-150/99, Stockholm Lindöpark v. Svenska Staten, ECLI:EU:C:2001:34; CJEU, Case T-384/11, Safa Nicu Sepahan v. Council, ECLI:EU:T:2014:986. Against this standard—given the breadth of discretion that the Regulation gives to Frontex to design procedures for ensuring asylum and train its agents in the right to asylum—systemic challenges to Frontex’s efforts to guarantee asylum seem doomed to fail absent some showing of ill-intent.

[18] See Melanie Fink, The Action for Damages as a Fundamental Rights Remedy: Holding Frontex Liable, 21 German L.J. 532, 534 – 36 (2020) (exploring the potential of the EU action for damages as a mechanism to ensure fundamental rights accountability).

[19] Complaints Mechanism, Frontex, https://frontex.europa.eu/accountability/complaints-mechanism/ (last visited July 3, 2021).

[20] See Appendix 1: List of potential fundamental rights violations during operations, Frontex, https://frontex.europa.eu/assets/Key_Documents/Complaints/Appendix_-_List_of_FR_in_Charter.pdf (last visited July 3, 2021.

[21] Id.

[22] Frontex, supra note 19.

[23] See id; Regulation 1624/2015

[24] See, e.g., EU: Updates to Frontex complaints mechanism shrouded in secrecy, statewatch (Sept. 11, 2020), https://www.statewatch.org/news/2020/september/eu-updates-to-frontex-complaints-mechanism-shrouded-in-secrecy/ (arguing that applicants’ lack of opportunity to appeal unfavorable decisions and the lack of time limits on adjudicating complaints render the mechanism ineffective); Melanie Fink, Why it is so Hard to Hold Frontex Accountable: On Blame-Shifting and an Outdated Remedies System, EJIL: Talk! (Nov. 26, 2020), https://www.ejiltalk.org/why-it-is-so-hard-to-hold-frontex-accountable-on-blame-shifting-and-an-outdated-remedies-system/ (stating that Frontex’s activities with respect to fundamental rights accountability are “surrounded by secrecy”).

[25] See Appendix 1: List of potential fundamental rights violations during operations, supra note 20; Borders, budgets and beyond: LIBE report sheds light on Frontex’s priorities for implementing its new mandate, statewatch (Jul. 20, 2020), https://www.statewatch.org/news/2020/july/borders-budgets-and-beyond-libe-report-sheds-light-on-frontex-s-priorities-for-implementing-its-new-mandate/ (stating that Frontex has not yet recruited the 40 fundamental rights officers necessary to staffing the complaints mechanism).

[26] How the European Border and Coast Guard Agency (Frontex) deals with complaints about alleged fundamental rights breaches through its ‘Complaints Mechanism,’ European Ombudsman: Cases (Nov. 10, 2020), https://www.ombudsman.europa.eu/en/case/en/57955.

[27] Frontex owes its creation and annual budgetary approvals to the European Parliament. See EU Partners, Frontex, https://frontex.europa.eu/we-build/eu-partners/european-parliament/ (last visited July 3, 2021). The European Parliament has also created a “Frontex Scrutiny Group” to, behind closed doors, investigate allegations of serious abuse. See First meeting of the Frontex Scrutiny Group with Leggeri and Johansson, European Parliament (Mar. 3, 2021), https://www.europarl.europa.eu/news/en/press-room/20210303IPR99105/first-meeting-of-the-frontex-scrutiny-group-with-leggeri-and-johansson.

[28] See, e.g. Birgit Sippel, ‘Frontex should have no role in asylum procedures,’ IPS Journal (Mar. 10, 2021), https://www.ips-journal.eu/topics/european-integration/frontex-should-have-no-role-in-asylum-procedures-5032/ (interview with Birgit Sippel, member of the European Parliament and the Party of European Socialists, in which Ms. Sippel bemoans Frontex’s abuses and argues that Frontex should, as border enforcement, have no role in asylum procedures.)

[29] See, e.g., id.

[30] Id. (articulating the position of the Group of the Progressive Alliance of Socialists and Democrats in the European Parliament in the Committee on Civil Liberties, Justice and Home Affairs.)

[31] Nikolaj Nielson, Lack of legal clarity on EU ‘pushbacks’ of migrants at sea, eu observer (Mar. 9, 2021), https://euobserver.com/migration/151158 (stating that Fabrice Leggeri, Frontex’s executive director, in defending Frontex’s conduct before the European Parliament cited a Spanish case in which the court held that Spanish border guards had no obligation to offer migrants access to asylum procedures).

Suggested citation: Evan Harary, More Power, Less Accountability: The Need for Reform of Frontex Procedures on the Treatment of Asylum-Seekers (Aug. 13, 2021), https://reflaw.org/more-power-less-accountability-the-need-for-reform-of-frontex-procedures-on-the-treatment-of-asylum-seekers/.

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