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EU: Advice of Frontex Consultative Forum on Fundamental Rights still falls on deaf ears

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01 October 2020

The European Border and Coast Guard Agency’s Consultative Forum on Fundamental Rights has produced its annual report for 2019, and a number of familiar concerns are again present. The Forum was set up eight years ago to provide Frontex with independent advice on fundamental rights.

See: Seventh Annual Report: Frontex Consultative Forum on Fundamental Rights (pdf)

A regular issue raised in the Forum's annual reports is "the absence of an effective monitoring system to prevent and address potential fundamental rights violations in the Agency’s activities." A related concern that rings particularly loudly in this report is the agency's failure to follow up on its obligation to suspend, terminate or not launch activities which could lead to violations of rights or international protection - in particular in relation to cooperation with the Hungarian authorities (see below).

The Consultative Forum notes that it was not asked for advice in the development of the Frontex European Integrated Border Management (EIBM) Strategy, nor on the development of Frontex training activities and courses during 2019. A number of requests for information made by the Forum were refused, such as an attempt to obtain monthly reports from Frontex liaison officers in non-EU countries. A request for information made by the Consultative Forum in February 2019 for information regarding Frontex’s search and rescue capacity is still pending.

The Forum commissioned an external review of its own effectiveness in 2019 which concluded, inter alia, that the agency should grant the Consultative Forum more timely and effective access to information.

Returns

25 recommendations were presented to the management board and executive director in July 2019, covering the management of forced returns, return operations, and monitoring of forced returns.

These include:

• Ensuring that information that a person has claimed asylum is never shared with the state they are being returned to;
• Ensuring respect for the principle of non-refoulement, which includes the duty to suspend or terminate return activities, with clear rules of procedure, in the case of serious and persistent violations of fundamental rights or of the obligation of international protection;
• Working with the Fundamental Rights Office (FRO) and the Consultative Forum to improve the independence and effectiveness of the pool of forced return monitors, and refusing to facilitate operations from Member States with inadequate monitoring mechanisms.

Currently, the only internal monitoring of Frontex activities is by the FRO, which is unable to monitor all activities due to limited financial and human resources. As recently reported by Statewatch, 20% of the deportation flights coordinated by the agency in 2019 had no human rights monitor on board. The agency should go some way to addressing this shortfall by appointing 40 fundamental rights officers by December this year. Returns are the only activity area with an external monitoring system, and the Consultative Forum’s external review found some concern "about a general lack of accountability within the agency for fundamental rights violations."

Engagement with third countries:

The Forum shared recommendations on the fundamental rights implications of Frontex’s involvement with non-EU countries in July 2019, to reflect the increased mandate of the agency to engage with third states. These included:

• Ensuring effective fundamental rights impact assessments before engaging with non-EU states;
• Enhancing the role and monitoring capacity of the fundamental rights officer;
• Increasing the capacity of return monitors to prevent fundamental rights violations, with the power to suspend or call off an operation, "or at least to directly request the Executive Director to explicitly do so";
• Enhancing the complaints mechanism in relation to cooperation with third countries;
• Increasing transparency on fundamental rights complaints, including regular reporting on complaints, follow-up, and outcomes.
• Improving reporting on and visibility of external relations.

Frontex launched its first operation outside of the EU in Albania in May last year. The Consultative Forum organised a visit to this operation in December, visiting border crossing points and units, meeting with Albanian authorities and officers and Frontex representatives, as well as civil society and international organisations. However, Frontex refused permission to the delegation to observe officers deployed by Frontex screening, debriefing and conducting border surveillance.

Surveillance, pushbacks, and continued operations

Civil society organisations and legal experts have vocally criticised Frontex’s aerial surveillance in the Central Mediterranean, acquiring information and coordinates of search and rescue incidents that were then provided to the Libyan Maritime Rescue Coordination Centre. The Consultative Forum shares this concern, emphasising the phenomenon of pull-backs to Libya, resulting in arbitrary detention and inhuman and degrading treatment.

The Forum also raises the issue of Frontex’s Multipurpose Aerial Surveillance in Croatia and the well-documented violence and pushbacks by Croatian authorities (Council of Europe, link). Some incidents were logged by organisations that are represented in the Consultative Forum.

Again echoing the Forum's annual report of last year, the "low number of serious incidents reported through the agency’s SIR [serious incident report] mechanism" at the Greek-Turkish Evros border were raised with concern, given "persistent allegations of pushbacks" there.

In one of the more strongly worded paragraphs of the report, the Consultative Forum covers the infringement procedure of the Commission against Hungary, referring to previous Forum advice to Frontex to withdraw support for return operations and "suspend any return-related activities from the country", based on the agency’s responsibility to ensure respect for the principle of non-refoulement. It goes on:

"Against the Consultative Forum's repeated advice, the Agency maintained its operational support to Hungary, suggesting that its presence on the ground could improve the situation. The Consultative Forum noted, however, that even though the situation did not improve, the Agency increased the number of staff deployed at the Serbia-Hungary border."

Despite having appointed independent advisors who are experts in fundamental rights, the agency contradicts their advice with a rights-based justification to maintain operations where it knows fundamental rights violations occur.

Further reading

• EU: No human rights monitoring for 20% of Frontex's deportation flights in 2019 (25 September 2020)
• Frontex: Report on cooperation with third countries in 2019 (25 September 2019)
• EU: Updates to Frontex complaints mechanism shrouded in secrecy (11 September 2020)