by Chris Jones and Jane Kilpatrick (statewatch)
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.
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 and a budget of €6 million. In 2020, it employed 700 staff and was granted a budget of €420 million.
As of 2021, Frontex hopes to nearly triple its staff. This will include, for the first time, its own border guards for deployment at the EU’s frontiers, which will significantly increase the agency’s autonomy, by reducing its reliance on officers contributed by the member states. A significant budget increase is also in the works, with €22.6 billion earmarked for “migration and border management” between 2021 and 2027, of which several hundred million euros will go to Frontex annually. The agency’s role in the EU’s border regime is only set to grow in the years ahead – and the EU’s borders are set to grow alongside it.
Externalisation: 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.
Closer to home, the agency is putting boots on the ground in Albania and Montenegro, with whom the EU has signed agreements allowing Frontex officials to assist with border control and surveillance tasks. The Balkans is seen by the EU as a key buffer zone in its efforts to prevent arrivals, and similar agreements with states such as Serbia, North Macedonia and Kosovo are in the works. 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.
The deployment of ‘liaison officers’ 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, and in some cases even to profile departing travellers 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.” The 2019 legislation dispensed with a requirement that liaison officers only be deployed in countries where “border management practices comply with minimum human rights standards,” and Frontex has recently deployed its own officers in Turkey, Serbia, Niger and Senegal, with more to come in the years ahead.
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 make use of planes, drones, ships, satellite imagery, weather reports, social media, operation reports and more, with the data 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,” 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. In this way, the agency cultivates “political support for even tougher borders,” whether in non-EU states or at the frontiers of the EU itself.
Border control measures
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.
In November 2020, the latest in a long line of such reports appeared in the media and, along with the usual denials, sparked some other action by Frontex. A ‘Working Group on Fundamental Rights and Legal and Operational Aspects of Operations’ has been set up by the agency’s management board and is due to report in January 2021, but it is a far cry from the independent inquiry demanded by human rights organisations and other critics. The Working Group sidelines Frontex’s fundamental rights office, which is supposed to be responsible for such investigations. The office currently the subject of an investigation by the European Ombudsman amidst doubts over its independence and effectiveness.
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 – making 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.
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. Officials from the corps will be deployed in a range of “teams”, assisting national authorities with border management, deportations and migration management.
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.
In the wake of the ‘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. When the standing corps becomes operational, Frontex will obtain a greater role in existing and forthcoming hotspots, but with a further twist.
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. The involvement of Frontex is likely to cause further concern, given a history of controversial approaches to questioning individuals, and the lack of transparency surrounding its operational plans and the instructions given to officials.
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.
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. “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.” This is all to “protect the European Area of Freedom, Security and Justice,” says the agency’s 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.
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.
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.
Adding new datasets to EUROSUR appears to be the latest of these measures. 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.
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”, including by closing what the agency refers to as “the gap between asylum and return procedures” – 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. 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 this autumn, but is yet to be seen.
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. It is also effectively impossible for an individual to take the agency itself to court, due to the procedural complexities of the EU Court of Justice. These are crucial issues, but they should not detract attention from the broader question of whether the EU’s current migration and border regime – which Frontex exists to help implement – can ever be truly compliant with human rights standards.
As 2020 comes to close, Frontex is squarely in the spotlight of human rights organizations and EU institutions, following the latest accusations of involvement in pushbacks at the Greek-Turkish border. 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.
 According to https://frontex.europa.eu/faq/key-facts/, as of 15 December 2020, Frontex directly employed 700 staff. According to Regulation 1896/2019, 1,000 new “Category 1” staff will be recruited to the standing corps, and an addition 400 will join the standing corps on long term secondment from member states, as “Category 2” (Total: 2,100): https://www.statewatch.org/analyses/2020/frontex-launches-game-changing-recruitment-drive-for-standing-corps-of-border-guards/
 See the heading “migration and border management” in Annex 1, https://data.consilium.europa.eu/doc/document/ST-13891-2020-ADD-2/en/pdf
 According to the headings for “decentralised agencies” in the section on “migration and border management, p.7-8, https://data.consilium.europa.eu/doc/document/ST-13891-2020-ADD-2/en/pdf
 Single Programming Document 2016-19, p.37
 Regulation 2019/ preamble paragraph 28
 REGULATION 1896/2019, Article 37-42 and ‘Situations requiring urgent action – right to intervene?’, https://eulawanalysis.blogspot.com/2016/10/establishing-european-border-and-coast.html
 Referred to once in the 2016 Regulation, this phrase appears four times in the 2019 text.
 ‘Frontex Programming Document 2020-2022’, contained in Council document 5117/20, 9 January 2020
 ‘’Roadmap’ for implementing new Frontex Regulation: full steam ahead’, Statewatch News, 25 November 2019, http://www.statewatch.org/news/2019/nov/eu-frontex-roadmap.htm