The European Border and Coast Guard Agency, a Main Actor of the Return Policy
Flags in front of the headquarters of Frontex in Warsaw, Poland. The image shows three flags: the flag of the European Union, the Frontex flag, and the national flag of Poland, symbolizing the agency's European mandate and its location in Poland. Source: EPA-EFE/Marcin Obara POLAND OUT
by: Hanen Ben Othman, University of Sousse
The European Border and Coast Guard Agency, commonly referred to as “Frontex” and hereinafter “the Agency” was created in October 2004 by Council Regulation (EC) n°2007/2004 to assist European Union Member States in managing and controlling their external borders. It is located in the capital of Poland Warsaw and constitutes one of over 35 decentralized agencies in the EU. But if there is one agency that has witnessed a steady growth in powers, size and funding, it is absolutely Frontex. It becomes as Idil ATAK consider “a real legal monster” in the area of Freedom, Security and Justice of the European Union.
Indeed, since taking up its responsibilities on May 1, 2005, the Agency founding regulation has been amended four times: in 2007, 2011, 2016 and 2019. Each of which has progressively expanded the agency’s mandate, functions and budget. The most important reforms were operated in 2016 and in 2019. Thus, the adoption of the Regulation EU (2016)/1624 significantly extended its original mandate and empowered it to facilitate European integrated border management at the EU ‘S external border. Only three years later, Regulation EU 2019/1896 increased Frontex’s powers to enhance it from a support and coordination role to an operational role. This involved an exponential increase in resources, introducing a standing corps of 10000 operational staff by 2027 and an average budget of 900 million per year. Currently, the Agency which had a limited mandate at the biggening is allowed to intervene in different ways and thematic among which, the return. The regulation of 2019 specified that one of the key roles of the Agency is to organize, coordinate and conduct return operations and return interventions.
1- Progressive Deepening Role of the Agency in Return
First of all, the Member States are the only responsible for issuing return decisions. This remains the sole responsibility of the national authorities who have the power to issue a return decision based on an individual assessment of each case. The Agency has no role at this stage and it could not examine the merits of an asylum request or a return decision. It is only when such a decision is adopted and becomes legally enforceable that Frontex can intervene and complement the efforts of the Member States in different ways. Frontex’ involvement in return can be justified by the necessity to increase the efficiency of the European Union return policy especially the return directive issued on December 16, 2008 on “common standards and procedures in Member States for returning illegally staying third -country nationals” and the Pact on Migration and asylum and to ensure coherence with other policy objectives.
In accordance with the article 48 of the Regulation of 2019, the Agency can intervene in both forced return and voluntary return. It can not only assist member States but it may also on its own initiative and with the agreement of the Member State concerned organize or coordinate return operations.
In green, countries of origin covered by Frontex Joint Reintegration Services. Source: https://www.frontex.europa.eu/return-and-reintegration/reintegration-assistance/
Regarding forced return, it shall provide technical and operational assistance to Member States in particular those facing a burden when implementing the obligation to return returnees. The assistance can include the acquisition of travel documents, the identification of third -country nationals subject to return procedures, the collection of information necessary for issuing return decisions. It can also include interpreting services and advice on the implementation and management of return procedures in compliance with directive “return”. Besides and in order to facilitate and to improve operational activities in the field of return, the Agency can cooperate with relevant third countries’ authorities and stakeholders. Thus, it may establish on the territory of the Member states or the host third country, antenna offices in accordance with operational needs for the period of time necessary for the Agency to carry out significant activities.
As for voluntary return, the Agency’s role is increasing. According to the 2019 regulation, it shall provide assistance to returnees during the pre-return, return -related and post-arrival and post-return phases, especially in the case of vulnerable persons which is in harmony with the European Union Strategy on Voluntary Returns and Reintegration.
In 2023, Frontex’s involvement in voluntary return increased by 116% and by 58% overall. In the same time, its reintegration activities increased. In this context, Frontex Joint Reintegration Services becomes operational since April 2022. By the end of 2023, these services covered over 5300 cases, 37 country of origin and approximately 6500 Persons.
The Agency mandate in return may impact on fundamental rights which are an integral part of the European integrated border management. Therefore, the objective is to explore the safeguards available to protect fundamental rights of migrants and asylum seekers.
2- Frontex compliance with fundamental rights
In the last years, Frontex became the most contentious EU agency. It faced unprecedented crisis of confidence and was repeatedly accused of illegal pushbacks and excessive use of force against migrants. This led to the resignation of its executive director, Mr. Fabrice LEGGERE after being investigated by the European Union’s anti-fraud agency and accused by the European Parliament of failure to protect human rights.
People protesting the 20th anniversary of Frontex, the EU Border control agency on October 3, 2024 in Brussels, Belgium. Source: Nicolas Landemard / Le Pictorium Agency via ZUMA Press
Overall, Frontex compliance with fundamental rights was in theory strengthened in the regulation of 2019 with more than two hundred references to fundamental rights. Unfortunately, there has been a delay in implementing the important changes introduced by the new regulation. Article 51 provides that the Agency shall constitute a pool of forced return monitors from competent bodies of the Member States in accordance with art. 8 (6) of the Directive “return”. Monitoring is a key safeguard against fundamental rights violations during the return.
It may deploy in accordance with the art. 52, return teams, either on its own initiative and with the agreement of the MS concerned or at the request of that MS. If necessary, return teams shall contain officers with specific expertise in child protection. Besides, the Agency shall in accordance with the art. 81 (2) draw and develop in cooperation with the consultative forum, a code of conduct for return operations and return interventions coordinated or organized by the Agency. In addition to those internal safeguarding mechanisms, the Agency shall be accountable to the European Parliament and to the Council. This control stems directly from the art. 6 of the regulation. Frontex is also controlled by the European anti-fraud Office, the European Court of auditors European and the Ombudsman. This variety of control can help it to improve its practices.
Regarding the judicial control of the Agency, we should note that the article 263 of the treaty of Lisbon makes changes to the jurisdiction of the European Court of justice which is currently extended to the act’s legality of the European Union agencies. The Court shall have jurisdiction in several cases among which we find disputes relating to compensation for damage in the case of non-contractual liability. The major problem here is the access of returnees and, in general migrants and asylum seekers, to the European Union judge to hold Frontex to account.
On the other hand, it is difficult to hold Frontex to account for many reasons. First, the activities of the Agency are surrounded by opacity and secrecy. Second, there are different actors that participate in its operations ranging from the personal of the Agency itself, to national authorities, third country actors and private parties with different powers and roles. For example, in case of collecting return operations, if there was an incident, who will be held responsible? The directive executive who, in accordance with article 50 parag. 4 of the Regulation draw up the return plan or the participating Member State who agreed the plan or the agents responsible for executing the plan who were able to avoid the incident if they didn’t respect the plan? In these circumstances, it is not easy to identify the real responsible of the human rights violation and to determine which entity should be held accountable.
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