Frontex

Published July 15th, 2022 - written by: Chris Jones and Jane Kilpatrick

Chris Jones and Jane Kilpatrick work for Statewatch; first published December 2020

updated by Fine Bieler and Marie Hakenberg / July 2022

Please find the previous version here.

Introduction

Brutal. Cruel. Inhumane. These are just some of the labels that have been applied to the EU’s migration and border control policies over the years. But they have done little to stop law-makers introducing new forms of surveillance, control and denial of access to European territory for people on the move.

The establishment of EU border agency Frontex in May 2005 gave the EU and its member states a new means of enforcing those policies. Fifteen years later, Frontex has had its remit, powers and budget expanded multiple times. In the years to come it will take on an increasingly-prominent role in guarding ‘Fortress Europe’, whose walls – both physical and digital – now run along Europe’s borders, within its territory, and extend to countries thousands of miles away. Frontex is an integral part of the European politics of externalization.

An Expanding Agency

Frontex has a hand in numerous aspects of the EU’s migration and border control regime, ranging from risk analysis to border surveillance and deportations, and its operations have grown significantly since 2005. When the agency first began operating, it had 43 staff members and a budget of €6 million. In 2020, it employed 700 staff ^[1] and was granted a budget of €460 million.The budget is constantly increasing: Frontex has been "allocated a total of 11 billion euros for the period from 2021 to 2027". As the EU agency with the largest budget, Frontex has been able to purchase equipment directly since 2019. Simultaneously, the staff increased drastically. In 2022, around 2000 people are employed directly by Frontex, of which more than 900 are part of a permanent ‘Standing Corps’ of border guards. Further expansion is planned: the Standing Corps should have 10,000 guards by 2027. This significantly increases the agency's autonomy, as it no longer relies solely on the officials provided by the member states.Frontex is the fastest-growing EU agency, and its role in the EU’s border regime is due to increase much more in the years ahead, alongside the borders themselves. Control and accountability, however, have not further developed as well as any existing mechanism of accountability being continuously undermined.

Externalization: Control Measures in Non-EU States

EU member states have long sought to cooperate with “third countries” to prevent irregular or unwanted arrivals. Frontex participates in a number of those arrangements and also undertakes its own activities.

The agency has signed more than two dozen working arrangements with non-EU states, regional bodies and international organisations, permitting cooperation on training, information-sharing, joint operations and assistance in the implementation of border control strategies and technologies. It also cooperates with states with which it does not have any formal working arrangements – for example, through the Africa-Frontex Intelligence Community (AFIC) and the EU4BorderSecurity project in North Africa and the Levant.

The Balkans

The EU’s restrictive and brutal border policy continues to manifest and cement itself in the Balkans. To date, the EU has signed status agreements with Albania, Bosnia-Herzegovina, Montenegro, Northern Macedonia and Serbia. In 2019, agreements were signed allowing Frontex officers to be active in border control and surveillance tasks in Albania and Montenegro; by 2021, around 150 Frontex officers were stationed there. In the case of Albania, the agreement does not include provisions allowing a suspension of activities in the event of violations of fundamental rights. Complaint procedures are hardly regulated and are accordingly rendered impossible. Frontex personnel are authorized to use force and weapons and are granted immunity from civil and criminal prosecution. In 2021, operations in the Western Balkans were expanded; nearly 90 officers are now deployed in Serbia, and Frontex is now also actively involved in surveillance and border operations in Bosnia-Herzegovina, Montenegro, and Northern Macedonia. The activities are largely non-transparent, yet there are already numerous reports of human rights violations.

The Balkans is seen as a key buffer zone by the EU in its efforts to prevent arrivals. Information is also regularly exchanged through Frontex’s long-standing Western Balkans Risk Analysis Network. Other such networks cover eastern European borders, Turkey and the states involved in the AFIC.

Frontex Liaison Officers

The deployment of ‘liaison officers’ (FLO) is another tool available to the agency. Over 500 such officials are currently deployed by EU member state authorities, who use them to gather information and intelligence on migratory movements in and outside of the EU, and in some cases even to profile travellers who are considered ‘risky’. The agency’s own liaison officers are designed to contribute to this work, and Frontex is not shy about their purpose – they should “assist local and regional networks of liaison officers in the reduction of migratory flows towards the EU.”^[2]The 2019 legislation dispensed the requirement that liaison officers only be deployed in countries where “border management practices comply with minimum human rights standards”. Frontex now has its own officers in Turkey (since 2016), Serbia and Niger (2017), Senegal (2019) and Albania (2021); deployments in Ukraine and Pakistan are also planned. Furthermore, Frontex cooperates with the Common Security and Defense Policy (CSDP) and provides personnel for operations, among other things. Frontex personnel are deployed at the CSDP operations in Libya (EUBAM) and EU NAVFOR Med Sophia as well as the NATO operation in the Aegean. The exact duties and privileges of the deployed liaison staff are unclear. Since the CSDP is the military and police instrument of the EU, but not formally an EU institution, there are no binding transparency requirements, e.g. with regard to Operation Sophia.

Data Collection

These and other non-EU states are considered part of the “pre-frontier area”, deemed to encompass anywhere beyond the EU’s borders relevant to Frontex’s work. Information about the “pre-frontier” is gathered by the member states, Frontex and other EU agencies such as the European Maritime Safety Agency and the European Satellite Centre. To do so, they use planes, drones, ships, satellite imagery, weather reports, social media, operation reports and more. In the coming years, the use of reconnaissance satellites will be further expanded. Officially, the satellites of the EU earth observation program are used primarily for environmental monitoring. However, Frontex uses them as part of the 67 million euro Copernicus program for border surveillance (provisional budget from 2022 to 2028). The data is transmitted by Airbus' European Data Relay Satellite System (EDRS). The collected data is fed into the European Border Surveillance System (EUROSUR).

Initially touted as a way to help save lives at sea but now chiefly promoted as a way of “combating illegal immigration and cross-border crime,”^[3] the data fed into EUROSUR is used, amongst other things, for risk analysis purposes. Risk analysis is “the starting point for all Frontex activities,” claims the agency, “from high level strategic decision-making to planning and implementation of operational activities". Data from EUROSUR is combined with an array of other sources to produce assessments intended to influence European and national decision-makers. Despite massive objections from Frontex data protection officer Perez, personal data is exchanged with Europol. This includes sensitive information on political and religious attitudes as well as sexual orientation (see 4.5). This way, the agency cultivates “political support for even tougher borders", whether in non-EU states or at the frontiers of the EU itself. At the same time, the agency refuses to release information on plans to step up surveillance, claiming "criminal networks" would benefit if it were to do so.

Mechanisms for Border Control

The tasks undertaken in Frontex’s border control operations range from border surveillance to document inspections, interrogation of individuals arriving on EU territory by irregular means, and search and rescue operations. Frontex’s actions at the EU’s external borders have often proven controversial. The agency has long been accused of involvement in pushbacks, whereby people seeking protection are forcibly – and illegally – denied access to a state’s territory.^[4]

Illegal Pushbacks

In April 2022, an investigation by Lighthouse Reports, Der Spiegel, SRF Rundschau, Republik and Le Monde was published. It shows that Frontex documented at least 957 cases of illegal pushbacks and filed them in its JORA (Joint Operations Reporting Application) database under "prevention of departure". This fully refuted the claim that Frontex was unaware of illegal pushbacks at Europe's external borders. Two days after the publication, Fabrice Leggeri resigned from his post as director of Frontex. Another decisive reason for the resignation was probably a report of the European Anti-Fraud Office (OLAF), which was hold back despite multiple requests. At the end of July 2022, the report was leaked and made available to Der Spiegel, as well as Lighthouse Reports and Le Monde. Since october 13 2022 it is accessible on the website of FragDenStaat. The report confirms and expands on earlier research: Frontex is covering up and funding illegal pushbacks, and the responsibilities and entanglements extend far beyond Leggeri.

Over the years, there have been numerous investigations with substantiated evidence by various media and NGOs. An investigation by Der Spiegel in 2020 led to an initial reaction on the part of the EU, in addition to the usual denials. The European Parliament set up an investigative committee headed by Tineke Strik. In its final report from July 2021, the committee came to the same conclusion: Frontex was involved in human rights violations.

Since the retirement of Fabrice Leggeri, Aija Kalnaja has been the interim executive director of Frontex. She promises more transparency and accountability. By the end of November 2022, 40 "fundamental rights monitors" are to be deployed. However, there is little guarantee that the agency will not simply develop more methods o conceal or outsource human rights violations. The organisation Abolish Frontex points out that Kalnaja stylises the agency and its staff as victims when she speaks of Frontex being "traumatised" by criticism.

Frontex and the so-called Libyan coast-guard

Other methods of preventing people from entering the EU rely on the outsourcing of physical force. In 2016, Frontex began training the so-called Libyan coast guard, in cooperation with the EU’s Mediterranean military mission against migrant smugglers. The fact that “some members of Libya’s local authorities are involved in smuggling activities” has not prevented the EU and its member states – in particular, Italy – from reinforcing the coast guard’s ability to ‘pull back’ people aiming to flee the war-torn state, or prevent them from leaving in the first place. This approach follows similar tactics employed off the coasts of Senegal and Mauritania in Operation Hera.

Alongside training, information-sharing is used to assist the Libyan authorities. Surveillance of the Mediterranean by planes, boats, drones and other means – information that is processed via EUROSUR – makes it possible to inform the Libyan coast guard of the location of boats in distress. Critics argue that this form of assistance violates international law; the EU insists otherwise. A case pending before the European Court of Human Rights should provide clarity on the issue, but will not be heard for quite some time.

The Missions

Accusations of complicity in illegal behaviour have grown along with the scale and scope of the agency’s operations. The first of these was Operation Hera, which was launched in the Atlantic in 2006 in response to a sharp uptick in the number of people arriving in the Canary Islands by sea from Western Africa. Since then, joint operations coordinated by the agency have been hosted by Italy, Greece, Hungary and Croatia. The agency is also active at Greece’s land borders with Albania and Macedonia, but a decline in transparency makes it hard to draw up a comprehensive list of deployments.

The new powers granted to the agency in recent years will see it take on a more proactive role in launching and coordinating operations. To reduce its reliance on officials ‘loaned’ to the agency by the member states, it has been empowered to create a 10,000-strong standing corps of border guards until 2027. Officials from the corps will be deployed in a range of “teams”, assisting national authorities with border management, deportations and migration management. In addition, they are equipped with handguns, although this is still not legally approved.

In most cases, operations will be launched at the request of a member state, but Frontex is now also able to propose operations to member states on the basis of its risk analyses. If national authorities refuse the offer, they must say why; where “urgent action” is deemed necessary, the Council of the EU can adopt a decision that would oblige a member state to accept an agency deployment.^[5]

Role in the “Hotspots”

In the wake of the so-called ‘migration crisis’ that began in 2015, Frontex was granted a key role in the notorious “hotspots” in Greece and Italy, assisting with the screening, registration and identification of people arriving on EU territory. With the establishment of the standing corps, Frontex will obtain an even greater role in existing and forthcoming hotspots.

In September, the European Commission proposed a new ‘Pact on Migration and Asylum’. Amongst the proposals are new rules for the “screening” of individuals arriving irregularly in the EU, which will involve identity, security and health checks. Under these rules, the location at which screening takes place will not be considered EU territory, raising serious questions about the availability of legal guarantees and safeguards. Galina Cornelisse and Marcelle Reneman show that the border procedures foreseen in the Pact ignore and violate some of the principles and goals it has set for itself, as well as international agreements. It also exacerbates current problems in border areas, such as the detention of migrants. The involvement of Frontex is likely to raise further concerns given its controversial approach to the interrogation of individuals (which is now the subject of a complaint to the European Ombudsman on the grounds that it breaches the law) and the lack of transparency surrounding its operational plans and the instructions given to officials.

Data collection at the EU external border

Research by the Balkan Investigative Reporting Network (BIRN), as well as other newspapers and reporters, shows that data collection has continued to expand despite data protection violations. In 2021, Leggeri announced the expansion of the mass surveillance programme. Among other things, genetic and biometric data will be collected, as well as information on religious and political attitudes and sexual orientation. For this purpose, social media profiles will also be analysed. The data will be shared and analysed with Europol and member states' security institutions. Between 2016 and 2021, Europol received the data of 11,254 people. This is legitimised with the "fight against terror" as well as against "illegal" migration. Due to the significant expansion of surveillance, migrants and refugees are criminalised and discriminated against even more. The right to asylum is further attacked. Moreover, the systematic exchange of data between Frontex and Europol is not permitted according to the European data protection authority EDPS. However, the long-time head of Frontex's legal department, Hervé Caniard, controlled and undermined internal audits of the surveillance programme. The concerns and opinions of Frontex data protection officer Nayra Perez were deliberately ignored.

It is not just people arriving in the EU by irregular means that are facing stricter control measures. Regular travellers are also facing more stringent checks, and Frontex will administer a key part of this process. As of 2023, the European Travel Information and Authorisation System (ETIAS) will be used for the pre-screening of travellers who do not require a visa to enter the Schengen area; individuals will have to fill in an online questionnaire that will see them either granted or denied permission to travel. Those travelling by coach or plane will have their authorisation checked by the transport company and can be denied the right to board, let alone to enter the EU. Frontex will be responsible for managing the central database and defining some of the “risk indicators” that will be used for the automated profiling of travellers. Frontex and Europol are working on a growing surveillance apparatus using what they refer to as ‘travel intelligence’, primarily made up of data on innocent peoples’ journeys. Their joint ‘Future Group’ has proposed “automated targeting or screening systems for performing risk management on the travellers with advance information,” which “would require legislative changes and most likely the use of AI”.

Equipment – Frontex and the Arms Industry

The agency is also now able to buy or lease its own equipment, further reducing its reliance on the member states and another reason for Frontex’s ballooning budget. First on the shopping list was a set of cars, as highlighted in a promotional video. “This is just the beginning,” says Fabrice Leggeri, the agency’s director at the time. “We will have vans that will be used as mobile offices for the registration of irregular migrants,” intones Leggeri. “And do you know what comes next? We will have vessels, planes, drones, and many other types of technical equipment that will be deployed at the external borders.”

Frontex increasingly deploys aerial surveillance with aircraft and drones; this avoids having to assist ships in distress at sea and makes it possible to target the interception of refugees more effectively. Officially, this is to “protect the European Area of Freedom, Security and Justice,” says the agency’s former director. What he does not mention in the video are some of the less high-tech purchases being made by Frontex – a number of contracts have recently been signed for tear gas, batons and bulletproof vests.

The report by Myriam Douo, Luisa Izuzquiza and Margarida Silva proves that Frontex maintains close and non-transparent relations with the arms industry. This is also reflected in the agency's purchases; more and more equipment is being acquired in order to circumvent legal responsibilities as well as to fulfil the expanding mandate of the agency. Accordingly, special emphasis is placed on surveillance and digital technologies, which, among other things, facilitate pull-backs and the criminal prosecution of asylum seekers. In addition to the purchase of satellite data, Frontex uses its own drones and flight systems. The acquisition list for 2023 includes surveillance technology, lethal and non-lethal weapons and ammunition (details are not transparent), communication equipment, vehicles for air, land and sea, and more. Already in February 2021, weapons were classified as "technical equipment" in order to circumvent the missing legal basis. In addition, there is equipment purchased by member states and co-financed by the Internal Security Fund (ISF) and the Integrated Border Management Fund (IBMF). Frontex is constantly reinforcing its own arsenal of weapons and would rather only use equipment from member states in an emergency. However, "to date, there is no legal regulation allowing officials of an EU agency to carry firearms".

Within the Schengen area

While Frontex is preparing for violence at the external borders, it is also consolidating new powers concerning action within the Schengen area. The agency’s role was initially strictly limited to activities at the external borders and with, or in, non-EU states. In recent years, law-makers have expanded its remit to include certain activities within the Schengen area as well, although Frontex was ahead of the game – it has been assisting with the analysis of internal migratory movements since at least 2014.

Analysis of migration movements

The new rules agreed by EU lawmakers in 2019 say the agency should feed EUROSUR with data gathered in the hotspots and on “unauthorized secondary movements”. In the EU’s policy jargon, “secondary movements” refers to journeys undertaken without permission, in particular by applicants for internal protection who are registered in one EU member state but move to another. They have long-been an issue of concern for officials, who have proposed a range of security measures to deal with them.

One measure is adding new datasets to EUROSUR. The aim is to contribute to Frontex’s monitoring of migration “towards and within the Union for the purpose of risk analysis and situational awareness". This, in turn, is intended to inform operational activity by the national authorities, for example through identity checks at internal borders or elsewhere within the territory, raising the risk of ethnic profiling against citizens and non-citizens alike. The data may also contribute to the prolonged extension of controls at the internal Schengen borders – some of which, prior to the emergency provisions introduced to try to stem the pandemic, had already illegally been in place for far longer than the upper limit of two years.

Deportations

Frontex’s role in organizing deportations – euphemistically referred to as “return operations” by policymakers and officials – on behalf of EU states has increased significantly since 2005. Proposals for the 2019 Regulation even included the power to coordinate returns from one non-EU state to another – for example, from Serbia to Afghanistan – and its erasure from the final text sorely disappointed states such as Hungary and Poland, who tend to be very keen on common EU action when it is taken against migrants.

In 2006, Frontex assisted with the deportation of eight people from the EU. Almost a decade-and-a-half later, it plays a role in the forced removal of thousands of people annually and is taking on an increasingly-central role in the organization, coordination, and monitoring of expulsion operations. Recent additions to its powers include the ability to collect the information that a state will use to issue return decisions, to assist in identifying individuals subject to those decisions, and to liaise with the destination state to acquire travel documents. The overall goal is to develop an “integrated system of return management”,^[6] including by closing what the agency refers to as “the gap between asylum and return procedures”^[7] – the implication being that most asylum-seekers will be refused, and that when they are, they are not deported quickly enough.

One goal is for the agency to deport 50,000 people annually, via both charter and scheduled flights. In the first half of 2021, an average of 1373 people were deported each month with Frontex support – mostly from Germany (56%). Throughout 2020, Frontex has also been stepping up its role in coordinating so-called voluntary returns, further increasing its role in the EU’s deportation machine. The International Organization for Migration (IOM) plays a major role in voluntary return operations, and its relation with Frontex’s planned work is not yet clear. However, the plans are emblematic of the intention to give Frontex a greater role in every part of the removal process, including in the post-deportation period. The ability to provide assistance to deportees during all phases of operations is provided for in the 2019 Regulation, although this support has not been the agency’s first priority. An action plan on post-return support was expected for autumn 2020, but is yet to be seen.^[8]

Accountability mechanisms

Ever since Frontex was founded, concerns have been raised over the limited means available to individuals or organisations to hold the agency to account for its actions. Repeated accusations of involvement in human rights abuses and a lack of transparency have led to changes: a growing number of human rights provisions in the agency’s legal basis; the introduction of an individual complaints mechanism; and the establishment of monitoring bodies, such as the Consultative Forum on Fundamental Rights and the agency’s own fundamental rights office.

However, safeguards on paper are only useful if they are enforced in practice. Both the Consultative Forum and the fundamental rights office have been consistently hamstrung by a lack of resources and an uncooperative attitude from the agency. The complaints mechanism has been improved since it was first introduced but still cannot be considered truly independent – the agency’s director and the member states retain key powers over the handling of complaints.

For a long time it also seemed that Frontex remained shielded from legal challenges by individuals affected by its actions. However, in recent years that has begun to change. The organisation Front-Lex currently has cases pending against the agency at the Court of Justice concerning its failure to halt its activities in Greece, and a joint operation in Greece that led to the pushback of a Syrian refugee. Frontex was also unsuccessfully sued by transparency activists over its refusal to release documents concerning its operations in the Mediterranean.

Conclusions

For years, Frontex has been criticised for human rights violations by investigative media, NGOs and even the EU itself. Despite this, there has been a constant expansion of its powers and financial and human resources, without ensuring the establishment of monitoring bodies or transparency mechanisms. However, reputational damage has done little to halt the expansion of the agency in the past. With an extensive new legal mandate and a significant budget increase in the works, the EU’s border agency is in many ways in a stronger position than ever. As it seeks to implement that mandate, new forms of scrutiny, critique and challenge will be needed to ensure that the EU’s border and migration policies, and the agency charged with implementing them, uphold human rights.

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