Do increased powers come with enhanced accountability?


Mariana Gkliati, PhD researcher at
Leiden University, working on the accountability of Frontex for human rights
violations during its operations

With the political
agreement
on the new Regulation
reached at the beginning of April, due to be approved by the European
Parliament today, the European Border and Coast Guard Agency, Frontex, is now
closer than ever to its original
conception
as a fully-fledged European Border Police Corps. The new law, with its enhanced rules on removal to non-EU countries, will be approved in parallel to changes to the EU’s visa code aimed at readmitting more irregular migrants to non-EU countries, discussed here.
The Commission’s proposal
was presented in September 2018 and was agreed hastily within only six months,
as the goal was for an agreement to be reached within the current Parliament
before the European Parliament elections in May 2019. The new agency is
expected to become operational this summer.
Moving towards full
operational capacity the agency will have its own equipment and personnel,
combined with an impressive budget, and is vested with an even broader mandate
in border surveillance, returns, and cooperation with third countries.
The ambitions of
the Commission have been accepted almost in their entirety. Notably, however, the
proposal regarding controlled centres, where relevant EU agencies and
participating states would cooperate in enforcing rapid procedures for either
asylum or return, and the power of the agency to coordinate return
operations from one third country to another
did not survive the trilateral
negotiations.
The new Regulation wants
to address two main challenges. Firstly, it aims towards greater autonomy and
operational effectiveness. The heavy reliance of the agency in the voluntary
contributions of member states in staff and equipment resulted in persistent
gaps that impacted the effectiveness of the agency and its flexibility to
deploy border guard teams in a short time-frame.
Secondly, the 2019
EBCG Regulation comes in response to the call
of the European Parliament for full implementation of the  IBM Strategy, regarding European Integrated
Border Management, which is considered vital for the functioning of the
Schengen area. Improving the effectiveness and capabilities of the agency to
achieve higher impact levels, while reducing the hold of member states over its
operations, and increased cooperation with third states to promote European
border management and return standards, while attaining to fundamental rights
norms are key components of the IBM
Strategy
.
This blog focuses
on three of the most significant changes brought by the new Regulation from a
fundamental rights angle and looks into whether the expanded mandate and powers
are accompanied by an equally strong accountability regime. For a more detailed
look into the overall changes, you may refer to an earlier blog on this next
phase of the EBCG
.
The agency’s own operational arm
Currently, Frontex
joint operations rely solely on the contributions of member states. Now, the
agency acquires its own operational arm: a EBCG standing corps with broad
executive powers. Starting with 5.000 operational staff in 2021, the standing
corps will be fully operational by 2027 counting 10.000 staff members under the
exclusive and direct control of Frontex.


Moreover, the agency can still make use of temporary deployments and long-term
secondments from member states, while a rapid reaction pool of 3.000 members
will be at its immediate disposal for rapid border interventions. 
The standing corps
will have executive powers similar to the border guards and return specialists
of the member states, including competence to perform identity checks and
authorise or refuse entry.



Here belongs also the increased capacity for the agency to acquire and operate its
own air, maritime and land assets, including aircrafts and vessels. The
Commission intends that the agency’s own equipment “should ultimately become the
backbone of [its] operational deployments
with additional contributions of
Member States to be called upon in exceptional circumstances.”
One of the most highlighted changes concerns the
enhancement of the agency’s mandate on returns of irregularly staying third
country nationals to their countries of origin, which the new Regulation makes a
top priority. Frontex is vested with a broad mandate in pre-return and
return-related activities, including providing its own return escorts and
return monitors and preparing the return decisions.

Such expansive powers increase the possibility for Frontex to be held
responsible for fundamental rights violations during its returns, especially
since such return flights will be conducted in the agency’s own aircrafts, by
the agency’s own escorts.


The inherent sensitivity of forced returns to physical abuse and violations of
the right to non-refoulement calls for increased accountability, in the meaning
of more possibilities for the agency to answer for the impact of its activities
upon fundamental rights.


Forced returns monitoring is a crucial safeguard during
return operations. As a step towards that direction, the new Regulation allows
the Council of Europe’s Committee on the Prevention of Torture (CPT) to conduct
visits to monitor the situation on board.

However, the EBCG Regulation does not abide by the safeguards set down in the Return
Directive
(Art. 8(6)), which calls for an effective monitoring system. This
refers in particular to the independence
of the monitoring mechanism, requiring that the authority that carries out the
returns is not the same as the one in charge of monitoring the compliance with
fundamental rights. The EU Fundamental Rights Agency (FRA) has suggested that
the same standards should apply to the agency and has suggested in its report
to the European Parliament the involvement of an international body with human
rights monitoring expertise. Nevertheless, no such provision for an independent
monitoring body with relevant expertise and sufficient resources is made in the
Regulation.
Finally, the role
of the agency in drafting the return decision which would be subsequently
issued by the member states raises its own fundamental rights concerns. Even
though the ultimate authority for the return decision rests with the member
state, such powers may lead to the informal beyond mandate influence of the
agency. This would not be unprecedented. Such concerns have been expressed by NGOs
as well as the EU
Ombudsman
with respect to the extent of the involvement of the European
Asylum Support Office (EASO) in assessing asylum applications in Greek hotspots,
as in practice the national authorities rely disproportionately on the agency’s
decision.
Besides the obvious
questions of breach of mandate, state sovereignty, and jurisdictional independence
that this raises, mistakes in the issuing of such preliminary decisions may
lead to a violation of the rights to family life and non-refoulement or the
rights of the child.
The FRA has brought
this new power into question
, wondering how Frontex deployed staff, which
typically originate from different member states and will not be familiar with
the national legal framework or the host country language, would be able to ensure
compliance with the fundamental rights safeguards emanating from the Return
Directive as these have been transposed into national law.

Art. 49(1) of the EBCG Regulation provides that the agency’s return activities
will be carried out in respect of fundamental rights. However, the concrete
safeguards issued in the Regulation are not adequate to guarantee such
protection.


In the centre of extensive data sharing
The information
sharing aspect of the agency’s work is also significantly strengthened along with
the creation of new specialised structures and mechanisms, while EUROSUR is
encompassed in the EBCG Regulation aiming at improving its functioning, and
enlarging its scope to cover most IBM components.
In the context of
its new powers, Frontex can exchange information with EU agencies, including
Europol as well as third countries. This, combined with the interoperability-related
competencies of Frontex, creates a quite broad mandate for the processing and
especially the sharing of data both within the EU and outside, involving EU
institutions, agencies, and law enforcement authorities.
Moreover, as part
of the agency’s expansive mandate on returns, Frontex is tasked with developing
and operating a centralised return management platform for processing all
information. This centralised platform allows for an automated transfer of
data.
The information processed in the centralised platform
and also shared with third states may include personal data, biographic data or
passenger lists, as well as information obtained during the personal asylum
interview. This can prove detrimental for the safety of people seeking
protection, while it would undermine
the trust
that is necessary for the asylum interview to allow applicants to
present the grounds for their applications.

Nevertheless, this is not accompanied by appropriate safeguards for data
protection, as these are suggested by the FRA, with the risk that the
Regulation ‘may be perceived as giving the green
light for a blanket sharing
with the third country of all information that
may be considered relevant for returns.’

To the contrary, safeguards seem to even be reduced in the EBCG Regulation, as it
fails to correctly transfer the guarantee that is enshrined in the EUROSUR
Regulation (Art. 20(5)), that any exchange of data that can be used to identify
persons with a pending request for international protection or who are at
serious risk of being subjected to torture or other fundamental rights
violations are prohibited. In the EBCG Regulation this safeguard is only
limited to personal data (Art. 90(4)). Other types of data, that is not covered
by this safeguard may still reveal to the state of persecution information
regarding a person’s political, religious or philosophical beliefs, or their
attempt to flee to the EU and request asylum. This may expose the person or
their family to retaliation measures, or allow the country of origin to stop
them from reaching safety.

All in all, the new
powers of Frontex regarding data processing and sharing can have a major impact
on the rights of persons, beyond the right to the protection of personal data.
Steps towards increased accountability
The most significant
changes that reflect the increased accountability of the agency in the light of
its new powers concern the European Parliament, the Fundamental Rights Officer
and the individual complaints mechanism.
The new EBCG
Regulation takes steps towards increased political accountability, involving the
European Parliament and national parliaments. To ensure effective scrutiny by
the democratic institutions, the Regulation introduces greater
inter-parliamentary cooperation.
The agency’s
management board is required to attend joint meetings of the European and
national parliaments, while it could – not should – invite an expert of the
European Parliament to attend its meetings.

Finally, the European Parliament has now a new role with respect to cooperation
agreements conducted with third countries. It will be informed before a working
arrangement with a third country is concluded about the parties and the content
of the agreement, but the agreement itself will not be shared. Similarly, when
negotiating a status agreement with a third country, the Commission will make a
fundamental rights assessment relevant not to the whole country, but only to
the areas covered by the agreement, of which assessment the European Parliament
will be informed.

Moreover, the role
of the agency’s Fundamental Rights Officer (FRO) is enhanced as she acquires a
preventive function, being tasked with providing opinions upon all operational
plans, as well as pilot projects and technical assistance projects in third
countries. Furthermore, Frontex liaison officers are tasked to cooperate with
her. What is more important is that FRO is tasked with publishing an annual
report regarding the protection of fundamental rights in the agency’s
activities, which shall also include information about the complaints mechanism
and the implementation of the Fundamental Rights Strategy.
In the light of her
already increased mandate, the workload of the FRO has significantly increased
without a proportionate increase in the necessary staff and resources, so that
it has become increasingly
difficult for her to fulfil her tasks
. The agency recruited in November
2018 additional staff to support the FRO, but this only includes junior staff.
Art. 107 (2a) of the Regulation promises that the FRO will be provided with
necessary resources and personnel, however, without making concrete
commitments, like in the case of the number of border guards.
Finally, the crown jewel of administrative
accountability, the individual complaints mechanism introduced in 2016, becomes
all the more relevant with the expansion of the agency’s activities in third
countries where victims of violations do not have access to EU judicial
remedies due to lack of jurisdiction. Notably, the reach of the complaints
mechanism is now expanded to cover operational activities in third countries.

Moreover, the FRO will draft a standardised complaints form in an effort to
enhance the accessibility of the procedure. She will also recommend to the
Executive Director the appropriate follow-up when the complaint concerns a
staff member of the agency, which has been specified in the Regulation to
include ‘referral to civil or criminal justice procedures’.
This, however,
still remains in the discretion of the Executive Director, as the Regulation
does not introduce requirements as to the appropriate follow-up. More
importantly no remedy is made available against the admissibility decision of
the FRO or the decision of the Executive Director. Moreover, the mechanism
remains highly inaccessible to ‘new arrivals’, including unaccompanied minors,
while the FRO was not allowed to initiate a complaint
ex officio
.
Although these
changes are certainly a step to the right direction in terms of increased
accountability, they nevertheless do not correspond to the expansion of powers
and competencies of the agency in any of the areas of its activity discussed
here.
In particular, the
role of the European and national parliaments remains fairly limited to be able
to ensure effective political accountability, while, unless the FRO is provided
with sufficient staff and resources, she will not be able to fulfil her
preventive role. Finally, there is still ample room to be covered for the complaints
mechanism to meet the international
standards
of accessibility, institutional independence, and adequate
capacity for evidence-based investigation.
Barnard
& Peers: chapter 26
Photo
credit: bmi.bund.de



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