Fronting up to Frontex
As the scandals mount at Frontex, the question arises as to who will and who can hold Frontex to account. The situation also demonstrates much about contemporary EU asylum policies and the conflicting roles of the different agencies and institutions in the EU’s complex and poly-centric decision-making structure, and whether it provides adequate checks and balances.
At the centre is Frontex, the European Border and Coast Guard Agency, and its combative Executive Director, Fabrice Leggeri. Frontex faces accusations of involvement in breaches of EU and international law, with “involvement” variously meaning witnessing; witnessing and failing to report; failing to prevent; and even direct participation. Possible breaches fall under EU law, on asylum, the Charter on Fundamental Rights, and management and administration, and various areas of international law, including International Refugee Law, International Human Rights Law, and possibly also Law of the Sea.
The allegations are increasingly serious, particularly in relation to the situation at Greek/EU border. Whereas a few years back, a typical issue concerned whether Frontex presence at the Hungarian border served as a constraint on the government or rather led Frontex to be a silent witness to or tacit supporter of the violations taking place, current investigations on activities in the Aegean suggest more direct forms of involvement in the “pushbacks” taking place.
The dramatis personae
Establishing facts and liabilities needs to take place in a court of law or in a thorough investigative process, which is what has been lacking but may now be accelerating. The European Parliament has established a Scrutiny Working Group with the mandate to assess Frontex activities and organisational matters, including the application of the EU acquis, compliance with fundamental rights, and internal reporting structures. A fact-finding report will be published in three months. At the same time, the European Ombudsman is investigating the Frontex complaints mechanism and OLAF, the EU’s anti-fraud office, is looking into allegations of mismanagement. Two legal actions are underway at the CJEU and International Criminal Court, respectively.
Previously, NGOs, journalists and international organisations have done sterling work in holding Frontex to account, including a joint investigation that published the most serious allegations concerning “pushbacks” in October 2020, and further reporting last month. The same has not always been the case for the Frontex Management Board, composed primarily of the Member States as for most EU agencies, although it has been forced to act by the severity and persistence of allegations.
The Management Board’s snappily named Working Group on Fundamental Rights and Legal Operational Aspects of Operations produced a report into the latest revelations concerning the situation in the Aegean, with a focus on the Serious Incident Reports (SIR), a crucial internal reporting mechanism which obliges Frontex staff to record incidents including those where there are possible violations of fundamental rights. After reviewing the report, the Management Board noted “with concern that the reporting systems currently in place are not systematically applied, do not allow the Agency to have a clear picture of the facts relating to (potential) serious incidents and do not allow for a systematic analysis of fundamental rights concerns. The Agency needs to make urgent improvements in this respect.”
As well as issues with incidents themselves, the report seems to confirm the long-held suspicion that SIRs are not always being filed when incidents take place – a sort of wilful blindness. Violations at the EU’s borders are well-documented, including where Frontex is present and while it cannot investigate what Member States are doing, serious incidents of various types should be recorded.
The Commission sits somewhere in the middle and holding a certain amount of power to hold Frontex to account, which it is starting to use. Recently, it has intervened strongly and critically on the question of the recruitment and independence of the fundamental rights staffing, on pushbacks, and then through clarifying the legal obligations binding Frontex in a March letter at the request of the working group. It remains however a reluctant wielder of power, given its often deferential approach towards the Member States on asylum matters. And the new Frontex is – if anything – a creature of the Member States.
Power without accountability?
Accountability is a contestable and slippery concept but at its heart is the notion of exposure and consequences for actions which fall short of acceptable standards, certainly including situations where they knowingly involve breaches of legally binding obligations. Accountability mechanisms are in place to prevent such actions, ideally, but also to shed light on them and to engender the proportionate consequences for the individuals and bodies at fault.
Accountability might be provided by internal reporting mechanisms; by oversight from bodies within the system; by judicial review; and by external scrutiny, all of which exist to some extent for Frontex. While it is also essential, the individual complaints mechanism is unlikely to be used frequently, given the weak position of individuals whose rights have been affected by Frontex actions and the multiple challenges they face in pursuing a complaint through the procedure.
Therein lies the rub: Frontex has seen a rapid expansion in size, budget, manpower (and the non-gender neutral term is deliberate), and responsibilities, including executive powers and the use of force for certain staff, but oversight mechanisms are struggling to catch up, leading to a situation of power without accountability.
Frontex and the narrowing of asylum policy
In lieu of reforms to EU asylum law – which are deemed necessary but remain deadlocked – or concerted efforts to enforce it, since 2017 focus has been on expanding the role of the EU’s agencies, as part of a patchwork of operational and informal initiatives, largely reflecting the underlying objective of EU strategy – preventing arrivals of refugees in Europe. The development of Frontex is the most notable element in all of this.
While insurmountable disagreements persisted on the 2016 CEAS package, within the Council and between the Council and the Parliament, in 2019 an accord was reached on the new regulation for Frontex, proposed in 2018. If Member States agree on one thing it is stopping people crossing the border; for political and practical reasons, the European Parliament was willing to sign off on a measure that gives greater power to the EU. Nonetheless, the regulation went through only with the addition of significant safeguards to ensure the democratic accountability and proper functioning of the bolstered agency. The lack of implementation of some of these measures is at the heart of one of the current rows with Parliament.
Accountability mechanisms to counter increased power
ECRE made multiple recommendations for improvement of the Frontex accountability mechanisms when the legislative proposal was presented and provided its assessment of the final agreement here; a forthcoming paper will look in more detail at the roll-out of accountability mechanisms. In addition, ECRE recommended limits to (the scope of) Frontex activities outside the EU where accountability is harder, risks are greater, and the purpose of operations remains opaque and dubious.
One of the notable achievements of the Parliament was the creation of additional Fundamental Rights Officer and monitor positions. This is an internal accountability mechanism and represents a significant – although perhaps still not proportionate – expansion of capacity for the internal fundamental rights function. In other contexts, such positions prove useful, at least when adequately supported and resourced, and guaranteed appropriate independence and status. For example, all EU CSDP missions have fundamental rights advisors, supported by staff in the crisis management structures in Brussels and benefiting from training and networking among themselves.
The process of recruiting the new staff for Frontex seems to have faced stalling and interference, as leaked documents demonstrate, giving rise to serious concerns about the independence and ability of the fundamental rights staff to do their job unhindered even when eventually appointed.
Parliament is rightly using its budgetary powers to withhold approval of Frontex’s budget (the only one of the EU’s 40 agencies in this position) due to a “series of issues”, including the failure to recruit the fundamental rights staff. It also mentions gender imbalance, lack of transparency, and the pushback questions that the Scrutiny Working Group is examining. It should hold firm until the requested clarity is provided – and progress made.
The Member States’ man?
If the rapid growth of Frontex combined with the weakness or non-implementation of oversight mechanisms contributes to the sense of power without accountability, it is compounded by the attitude of ED Leggeri, who takes a rather cavalier view of efforts to ensure transparency, ranging from threatening – including in the European Parliament natch – to discourage the use of Serious Incident Reports, especially if access to information requests continue to be submitted, to going to great lengths to avoid providing information, as the recent “annual dinner” saga shows. The sense given is of being untouchable. Perceived disrespect for procedures, including the Regulation’s requirements on reporting to Parliament (Art. 106 ex.), contributed to calls for his resignation. As worrying are other leaked documents showing Frontex management railing against the constraints of international law rather than seeking to uphold it, including bemoaning the fact that people rescued at sea cannot be disembarked in Libya.
The confidence of Leggeri may be neither hubristic nor misplaced: the composition of the Management Board is rather advantageous, with representatives of the Member States and of the Commission but not from FRA or independent organisations, and with no role for the European Parliament. He may have received reassurances from the Member States, including France from whence he came. If the regulation opens up again, the composition of the Management Board is something to review. Member States are unwilling to comment on or criticise each other’s actions at the border, which can assist Frontex. In the Working Group report, the actions and accounts of the Greek government are accepted unquestioningly, an approach reflected by Frontex which also serves to let it off the hook. Finally, the difficulty of dislodging a recalcitrant director was illustrated not long ago by attempts to remove the then EASO Executive Director, in the face of complaints, which reached a rather farcical point before concluding.
Member States also play a direct role in accountability because they are responsible for taking actions should there be complaints against the personnel they deploy to Frontex (the bulk of the famous 10,000 border guards which should be deployed by Frontex). Experience with CSDP missions suggests that Member States will be lethargic in bringing to justice anyone they deploy. They are also indirectly responsible via the appointment and management of the ED when it comes to potential liability of staff employed directly by Frontex, and also most of the internal accountability mechanisms are not fully independent of the ED. This is true of the “independent” complaints mechanism and the Serious Incident Reporting system, where despite improvements in the 2019 Regulation, the Director is still involved. The conflict over the Deputy Fundamental Rights Officer and the monitors is also about independence of the ED, all of which indicates that these mechanisms rely on either the good will and cooperation of the ED or a strong hand and instruction from the Management Board.
Untapped potential for accountability
In this context, the work of the EP Scrutiny Working Group, OLAF and the Ombudsman must be thorough, and both the Commission and the Member States should use it.
A source of accountability which could be further explored is national parliaments, as provisions in the new regulation allow for interparliamentary cooperation (Article 112). National parliamentary committees could look into the workings of Frontex as far as it fits into their respective mandates, potentially working with the European Parliament. This could cover the specific questions of policies related to nationals deployed to Frontex and the role of the Member State representative on the Management Board, but also general questions of Frontex compliance with standards and legal obligations, given the national as well as European interests affected by allegations of breaches.
Where accountability is more challenging but just as necessary is in Frontex activities outside the EU, including the Western Balkans, where Frontex is part of EU efforts to contain people by keeping borders closed. Humanitarian crises are raging across the region, leading to social tensions and the alarming rise of ultra-right groups. The approach to migration also risks derailing parallel efforts to support democratic reform under the EU Accession process – governance problems are more likely to be overlooked when countries are playing a role in preventing the movement of people. Indeed, the EU-Turkey Deal teaches the Western Balkans that progress in the Accession process, such as opening chapters, may even be advanced by preventing the movement of refugees (although this element of the deal is moot in the case of Turkey due to internal political changes there, it is highly relevant for the Western Balkan countries). It should also be noted that Frontex is operating in the region on the basis of agreements with the governments which provide it with immunity from the jurisdiction of the countries in question, which hardly places the EU in a strong position to talk about rule of law. Actions in the Balkans and Africa need closer attention from a wider range of parliamentary committees, especially given the spurious security justifications used.
But “Security” trumps all
Frontex in recent years is another example of the “logic” that prevails at the intersection of migration and security, whereby preventing people arriving is seen as so overridingly critical to European security that the ends always justify the means. A more nuanced approach is necessary, for the sake of security if nothing else. First, calling “security” has to be interrogated based on sound analysis of security threats and what might be an effective way to tackle them. The arrival of refugees in Europe is not a major security threat nor is it perceived as such by European populations (except in the countries where this message is relentlessly hammered). In the debate on and with Frontex, tenuous links are often made to terrorism but they do not stand up to scrutiny. Among those arriving to seek protection there are radicalised Europeans and others returning from fighting in Syria and Iraq but forcibly preventing entry and containing them in the Western Balkans and Turkey is about the worst possible approach to these complex threats – from a security perspective, even before considering the negative impact of these measures on the other people affected, the vast majority of whom are fleeing from violent extremism rather than perpetrating it.
Second, derogations from legal obligations, for instance in emergency provisions, are tightly delimited, even – or not least – when it comes to matters of acute threat to national security (which migration is not), in order to prevent abuse. In practice, particularly at certain EU borders, there are efforts to expand the justifications for derogating from EU and international law for more and more situations linked to asylum and migration, in the choices of EU institutions to not act against violations (the omissions) or in the legislative proposals accompanying the Pact. European leaders are dangerously deluded if they genuinely think that this won’t have multiple negative consequences on the rule of law. These practices should not be creeping into the operations of an EU agency.
The only way is up?
Whether the rise and rise of Frontex will eventually be checked by proportionate and reasonable accountability remains to be seen but it is about much more than the agency itself. It is about the use of an EU agency largely controlled by the Member States to pursue a narrow and damaging agenda on migration and borders which squeezes out the right to asylum and the protection of those on the move. It is also about respect for the complex decision-making processes of the EU that exist for a reason: if the EP, as co-legislator and source of democratic accountability, proposed amendments to improve accountability that were then adopted, this has to be respected (obviously, one would think). In addition, the ECA, OLAF and the European Ombudsman are statutory oversight bodies within the system that provide checks and balances so their recommendations should be applied by the Member States and the Commission, including in the Frontex Management board. In the long term, the Commission itself has perhaps the most to lose should an EU agency not be operating in an appropriate way, whether or not one agrees with its objectives, as well as having the most potential to make a difference. Overall, the Frontex story is a test of whether accountability in the system works, until they do, it is also one which lays bare contradictions in Europe’s efforts to promote the rule of law.
Editorial: Catherine Woollard, Director of the European Council on Refugees and Exiles (ECRE)
Greece: Millions of EU Euros for Fenced Structures in the Aegean, Preventable Deaths in Detention, and Pushbacks Dismissed as “Fake News” by Greece
European Commissioner for Home Affairs Ylva Johansson toured the eastern Aegean and announced over 250 million euro of EU funds for reception structures on five Greek islands. The Commissioner and Greek Minister of Migration and Asylum Notis Mitarachi said new structures on Lesvos and Samos will be fenced and have controlled entry and exit. Journalists criticised lack of access to the so-called Moria 2.0 camp. Two deadly incidents took place in Greek detention centres; the Greek Refugee Council called for an end to detention. Mitarachi dismissed reports of pushbacks as “fake news”, while the UN Refugee Agency (UNHCR) urged Greece to investigate “hundreds of pushbacks.” A relocation flight for recognised refugees took off from Lesvos to Germany, amid calls for more solidarity.
On the occasion of her visit to the eastern Aegean islands Samos and Lesvos, European Commissioner for Home Affairs Ylva Johansson announced that the EU would provide €155 million to the Greek authorities for the construction of new reception centres on the islands Lesvos and Chios. With €121 million awarded in November 2020 for structures in Samos, Kos and Leros, the financial support for reception in the eastern Aegean totals a quarter of a billion euro. During a joint press conference in Lesvos, Greek Minister of Migration and Asylum Notis Mitarachi said the construction process currently underway on Samos, Kos and Leros will be finalised in three months. In regard to the planned structures in Lesvos and Samos he pointed out that they will be fenced all around with areas for separating vulnerable groups inside the main structure, and that entry and exit to the camp will be controlled and possible only at set hours. No date was specified for when the structures will be operational, but both Johansson and Mitarachi stressed that no-one should spend the next winter in the current facilities. A statement issued by Johansson ahead of the visit read: “Winter hardship in 2020-2021 was unfortunate. Winter hardship in 2021-2022 must be avoided.”
During the press conference, Mitarachi fended off critique of the lack of access for journalists to Moria 2.0, currently hosting approximately 6,650 people, saying the camp was “not an exhibition centre for people to walk in and out at any time” but that access would be granted upon request. After the conference, journalists were taken on a tour through the camp: on a fixed route and escorted by police while conversations between journalists and residents were prevented. Journalists who participated in the tour described the experience as shameful and one stated that the tour had resembled a safari. Limitations on press freedom in regard to the camp has been a frequent concern. Restrictions include fines for residents for filming or taking pictures inside the structure.
During the past week, two deadly incidents took place in Greek detention centres. On 27 March, a 24-year-old man committed suicide at the pre-departure centre in Corinth. Reportedly, he had been detained for 16 months and was waiting for his release, but the Greek authorities had extended his detention. Protests broke out among camp residents following his death. On 26 March, in the pre-departure centre in Kos, a 44-year old man died of peritonitis after an appendicitis attack. Reportedly, he had screamed in pain for days but guards did not respond to his requests to be taken to hospital. In light of the growing attention to police violence in Greece, an article by the Border Criminology blog highlights that “Immigrants, especially those found inside detention facilities, have endured police violence for many years.” Inside the state’s detention centres and police stations, police violence against migrants has long been “routine, systematic and cloaked in a climate of impunity.” In response to the two deadly incidents in Greek detention centres last week, ECRE member the Greek Refugee Council called on authorities to end current practices of administrative detention and to amend national legislation and practice in line with basic standards of human rights protection.
According to a report by Der Spiegel, the UN Refugee Agency (UNHCR) has recorded hundreds of pushbacks at land and at sea in Greece since the beginning of last year and handed the collected information over to Greek authorities. "We expect the Greek authorities to investigate these incidents," UNHCR representative in Greece, Mireille Girard said and underlined "The right to asylum is under attack in Europe." A Joint Action against push-backs signed by 49 NGOs – including several ECRE members – stresses: “Although not a new phenomenon, this policy of land and sea pushbacks has, however, escalated in an unprecedented fashion over the last year, both in terms of frequency of incidents and of the means employed.” The signatories call for an end to pushback practices, the establishment of an independent monitoring mechanism, protection and justice for victims, and protection of those who report pushbacks. Asked at Monday’s press conference about pushbacks by the Greek coast guard, Mitarachi dismissed them and suggested people smugglers were behind this “fake news”, saying they were losing their financial grounds due to Greek government efforts. Asked specifically about UNHCR’s reports, he added: "We do take them seriously." Commissioner Johansson underlined: "I think the Greek authorities can do more when it comes to investigating these alleged pushbacks." MEP Erik Marquardt (Greens/EFA) has disclosed on twitter that he has obtained 166 GB with video material of pushbacks involving the Greek coast guard. The data was received from Turkish authorities and Marquardt announced independent experts would be charged with its evaluation. On 31 March, the NGO hotline for people in distress Alarm Phone said it was contacted by 41 people who feared being pushed back after having arrived on Lesvos and being put on a bus by police. According to UNHCR Greece, they were transported to Megala Therma camp.
More than 280 recognised refugees were flown from Lesvos to Germany on 31 and 24 March. In the wake of the fire that destroyed Moria camp in September, Germany committed to relocation of 1,553 recognised refugees. Efforts to meet the target have been stepped up in the last six weeks and civil society organisations urge authorities to continue to relocate people from the camp beyond the targeted number. This is a “humanitarian imperative” in light of the continuous dire living conditions in the hotspots on Greek islands, Peter Neher, president of ECRE member Caritas Germany said.
For further information:
- ECRE, Greece: Migrants Caught in the Middle of Border Showdown, Camp ‘Solutions’ Still A Long Way Off, Homelessness and Deprivation Follows Protection
- ECRE, Greece: Dysfunctional Business as Usual, March 2021
- ECRE, Greece: Desperation in Moria 2.0, End of Housing Programmes, Continued Pushbacks, and Criminalisation of Solidarity, March 2021
Search and Rescue: IRINI Mandate Extended, First Meeting of European Search and Rescue Contact Group, Spain Expanding Migration Cooperation in Africa as Distress, Death, and Returns at Sea Continue
The UNAVFOR MED IRINI mandate without search and rescue component is extended until 31 March 2023. At the first meeting of the European Search and Rescue Contact Group, European Commissioner for Home Affairs, Ylva Johansson reiterated the message that no one must be criminalised for saving lives but also the need for compliance with safety rules and registration. Spanish prime minister, Pedro Sanchez, has launched new policy under the frame ‘Africa Focus 2023’ with the ambition to enhance migration control, readmissions and return. Meanwhile, distress, death and return continue in the Mediterranean and Atlantic.
On 26 March the Council extended the mandate of the EU Common Security and Defence Policy (CSDP) military operation in the Mediterranean - EUNAVFOR MED IRINI until 31 March 2023. The core task remains contribution “to the implementation of the UN arms embargo on Libya” and a secondary task is still contribution “to the disruption of the business model of human smuggling and trafficking networks through information gathering and patrolling by planes.” Search and rescue efforts are still not included in the mandate. High Representative of the EU for Foreign Affairs and Security Policy, Josep Borrell clarified in April 2020 “These ships are not patrolling the sea looking for people to be rescued” while also underlining that they would abide by international law. UNHCR Special Envoy for the Western & Central Mediterranean situation, Vincent Cochetel commented: “Operation IRINI extended by the European Council for 2 years. It does not prevent weapons to reach Libya nor human trafficking. All this capacity could save lives in the Mediterranean Sea if it was its mandate & the agreed priority of EU member states”. While the previous EU naval mission Sophia rescued some 45,000 people the IRINI operation has according to the European Commission not rescued anyone a year after it was launched.
At the first meeting of the European Search and Rescue Contact Group, launched in September 2020 alongside the European Pact on Migration and Asylum, European Commissioner for Home Affairs, Ylva Johansson called saving lives at sea: “a moral duty and a legal obligation, and a priority for the European Union”. She regretted the loss of 21,000 lives at sea since 2014. Noting that the Commission has no legal competence to coordinate search and rescue operations, the Commissioner urged increased involvement of member states in coordinating search and rescue operations, as ports of disembarkation, as flag state of private vessels, and as home countries of NGOs or shipping companies. Further the Commissioner reiterated that: ”No-one must be criminalised for helping people and saving lives. That is unacceptable”. However, Johansson continued: “But no matter how noble the purpose, safety at sea must be guaranteed. For all aboard. Crew and people rescued. Ships must be properly registered and equipped”. Member states have repeatedly used red-tape and security regulations as means to block civil search and rescue vessels in ports or to seize them. MEP Erik Marquardt from the Group of the Greens/European Free Alliance has commissioned a study outlining a potential strategy for the Commission, suggesting that it is within its mandate to support civil search and rescue operations directly.
On 29 March, Spanish prime minister, Pedro Sanchez presented a new initiative entitled “Africa Focus 2023”. Referring to Spain as “Europe’s southern gateway" Sanchez expressed hope that investing in Africa would create opportunities: “for young people within their own countries, offering them an alternative to attempting the journey to Europe in search of work and a better life”. With agreements including migration management and control measures already established with Morocco, Mauritania and Senegal among other countries, Spain is seeking to enhance the geographical scope of investment and cooperation across the African continent including on migration management.
On 29 March, the International Organization for Migration (IOM) reported that nearly 1,000 people were intercepted and returned to Libya over just 48 hours, according to spokesperson, Safa Msehli ending up in detention under “appalling” conditions. More than 4,500 people have been brought back to Libya this year after attempting to reach Europe via the deadly Mediterranean route.
The NGO hotline Alarm Phone reported several distress calls over the past week and delays or lack of response from authorities including a boat left in severe distress off Libya despite continued calls by the organisation to the so-called Libyan coast guard that remained non-responsive. 5 people have reportedly already drowned and the fate of another 85 remains unknown. Between 26 and 28 March five people lost their life trying to reach Spain. At least two people died off the coast of Murcia in the south-east of the country, three people were rescued and nine remain missing. Another three lives were lost off the Canary Island of Tenerife and 42 people were rescued by local fishermen and Spanish authorities. In three rescue operations over 24 hours on 28 and 29 March, all in Maltese waters, the Spanish NGO Open Arms saved 219 people including 56 children, 17 under the age of ten, and two pregnant women. After 5 days at sea and two medical evacuations, Italian authorities granted the vessel permission to disembark the remaining 209 survivors in Pozallo, Sicily.
The Canary Islands saw 239 arrivals by sea on March 27 and 28 with six boats landing in Gran Canaria, Tenerife and La Gomera.
For further information:
Balkan Route: Deterrence, Abuse and Illegality in the Forgotten Corner of Europe
Three months after the fire at Lipa camp, living conditions remain dire for people on the move in northern Bosnia and Herzegovina (BiH) where around 2,500 people are sleeping in makeshift tents, squats, or in substandard military tents. With spring arriving, attempts to cross the borders are again on the raise but continue to be met by illegal and often violent pushbacks. Several tragic yet preventable accidents have claimed the lives of at least six people in the course of a few weeks.
Three months have passed since a fire destroyed the temporary Lipa camp located in BiH’s mountainous borderlands about 30 kilometres – or nearly 5 hours by walking – from the closest town Bihać. To this day, the new tented camp set up in response by Bosnian authorities continuous to lack access to running water and electricity. In an open letter addressed to MEPs, Soufyan Ali, a Pakistani national staying at the site wrote "There are only a dozen chemical toilets for over a thousand people. There is no running water for drinking. We often run out of water [...] There are only five showers in total, for all these people. The hot water does not reach the showers." The site remains shielded from journalists.
According to the grassroot organisation No Name Kitchen, that monitors border violence and distributes basic necessities to people on the move, about 1,000 people are housed in Lipa. However, the number constantly fluctuates as new people are admitted while others move on. Additionally, up to 1,500 people are currently staying outside of official camps in abandoned buildings or makeshift camps.
In several operations during the past weeks, police forces have been carrying out evictions in informal shelters. On 24 February, about 200 people who squatted in the run-down premises of a former paper factory in Bihać were evicted and bussed to Lipa, with some walking back to Bihać or dispersing into the forests as soon as the busses arrived. On 5 March, 35 families, including about 50 children, were evicted from abandoned houses in the village of Bosanska Bojna at the Croatian border and transferred to camps in Bihać, Sedra and Borići. Admission to the latter was however delayed as an outbreak of corona virus lead to the isolation of the camp on the same day and those transferred to the site were left to sleep outdoors in tents. Reportedly, 45 residents and 12 staff members at the Borići reception centre have recently tested positive for Covid-19, as well as five people at the Miral reception centre in Velika Kladuša. Outbreaks have also occurred at Lipa camp where tents are shared by 30 people.
With temperatures raising after a harsh winter, attempted border crossings by people stuck in limbo and aiming to reach safety are on the raise. Yet, illegal and often violent pushbacks across EU’s borders continue to be a routine procedure by police forces. The increasing use of high-tech border control devices such as drones and thermal-vision cameras has further contributed to fortifying EU’s south-eastern external borders. However, with no alternative people on the move continue to attempt crossings. In Velika Kladuša, families with small children are heading towards the Bosnian-Croatian border on a daily basis. About 150 people are hiding in abandoned buildings in the area, waiting for their chance to cross. One of them is Azeem Hasbib, a 16-year-old teenager from Afghanistan who longs to reunite with his family on the other side of the border. After experiencing 57 illegal pushbacks, he finally made it across the border on his 58th attempt, the German newspaper taz reports.
On the occasion of an upcoming field visit to BiH, OSCE Special Representative and Co-ordinator for Combating Trafficking in Human Beings, Valiant Richey, highlighted in regard to the current situation in the country that: “Whenever vulnerable people are left in dangerous conditions, the risks of trafficking increases. Identifying and protecting victims of trafficking is a legal obligation and a humanitarian duty.” In the past weeks, a number of tragic yet preventable accidents have once again shed light on the lethal consequences of Europe’s closed-door policies and the lack of safe and regular routes.
On 22 March, four people died in a fatal lorry accident on a highway in Western Slavonia, Croatia. According to Croatian police, 24 people, including at least two children, were in the trailer when the vehicle overturned. The 20 survivors were admitted to hospital, reportedly at least eleven of them were Syrian nationals.
In early March, a man was killed after stepping on a landmine near Saborsko, a Croatian municipality close to the border with BiH. Several others sustained injuries from the explosion, one of them so severely that his life was in danger. Following the incident, deminers inspected the site and cleared a corridor for the evacuation of ten people, reportedly Pakistani nationals, who remained trapped in the minefield. Four of the rescued had to be hospitalised. The remote borderlands between Croatia and BiH that are daily crossed by people attempting to reach the EU remain littered with unexploded ordnance dating back to the Balkan wars in the 1990s. According to official sources, Croatia still has about 17,000 unexploded mines and other explosive ordnances. For Bosnia and Herzegovina – one of the world’s most contaminated countries in this regard – estimates are even higher with about 79,000 unexploded devices still littering the country.
In February, the lifeless body of a Turkish man was recovered from the Glina river, that constitutes a natural border between Croatia and BiH. Together with a group of six others, he had attempted to cross the river but was separated from the group. It took a few days until the body of the drowned man was found.
For further information:
The European Commission has Published its Proposal for a Child Guarantee
On Wednesday 24 March, the European Commission has published its proposal for a Council recommendation on a European Child Guarantee, a financial instrument outlining five objectives for children in poverty including free healthcare, free education, free childcare, decent housing and adequate nutrition. The proposal is launched as part of a European integrated plan to combat child poverty.
Strongly urged by the European Parliament, that ensured the inclusion of this instrument in the EU budget through a specific earmarking in the European Social Fund Plus (ESF+), the Child Guarantee has been designed following a comprehensive feasibility study, that focused on four target groups: children with disabilities, children in alternative care, children with a migrant background (incl. refugee children) and children living in precarious family situations.
For each one of these groups, the study reveals multiple obstacles in accessing opportunities and services. The research illustrates with detailed statistics, how the migration status of parents can disproportionally affect the social inclusion of their children.
Besides the ESF+, other EU funds, such as the European Regional Development Fund (ERDF) can contribute to future-proof investments in social infrastructure, equipment and access to quality and mainstream services, as well as with cooperation projects in border regions. Finally, member states will be able to use their allocations from the Recovery and Resilience Facility to implement more structural measures to reduce child poverty.
Depending on their national peculiarity, member states will have to identify which groups of children are more likely to experience specific disadvantages, and set up policy solutions accordingly – with the support of EU funds. The document offers a detailed mechanism for monitoring and evaluating member states’ progress in tackling child poverty, including the involvement of the European Semester economic and employment coordination process.
An EU cohesion policy adapted to react socio-economic consequences of the pandemic with ad-hoc initiatives as the React-EU programme is in place, but the preparation of operational programmes for the structural funds in the new Multiannual Financial Framework (MFF 2021 – 2027), have not been finalised yet. This delay gives the opportunity to Member States to programme in time their funds, and to align them with the Child Guarantee Action Plans.
In member states where migrant and refugee children are facing a particular risk of experiencing disadvantages, such an instrument could represent a targeted support for them and for families, allowing children to reach their full potential and “break the cycle of disadvantage”, as promoted in the Commission Recommendation on Investing in Children of 2013.
Slovenia: National Assembly Approves Legislation Eroding the Rights of Asylum Seekers
On March 26 and 30 the Slovenian National Assembly approved the amendments to the International Protection Act (IPA) and the Foreigners act with changes coming into force in April 2021. According to ECRE member Legal-Informational Centre for NGOs (PIC) the new legislation is in violation of the UN Refugee Convention and the Slovenian constitution, falls short of EU legal standards, and puts people at risk.
Despite the Ombudsman and the Constitutional Court determining that such legislative proposals adopted in 2016 were in violation of the prohibition of torture, the current amendments to the Foreigners Act again allows the National Assembly to activate article 10.a and 10.b in case of a "complex migration crisis".
Accordingly, such a crisis can be declared in parts of Slovenian territory ex. the Southern border for a period of six months with the option of extension. The Ministry of Interior will be responsible for monitoring the situation of migration in Slovenia, and if assessing that a complex migration crisis has occurred, the Ministry can accordingly propose the implementation of the crisis management and governance by the government. While the legal implications of a declaration of a complex crisis are significant, the basis of the government’s assessment of the principle of proportionality and the level of treat to rights protected by the constitution remains vague. It references broadly the effective functioning of the legal and welfare state, ensuring public order and peace, effective functioning of the economy, the protection of the health and life of the population and the level of security.
A complex emergency provides the police with the authority to escort people entering Slovenia irregularly to the border and refer them to the country they arrived from. If a person entering irregularly expresses the intention to apply for international protection, the police has the mandate to establish whether a return would violate the principle of non-refoulement, if the person’s health condition prevents return, or if based on appearance or other indications the person is an unaccompanied child. If police determine that no such conditions are met the intention to apply for international protection will be dismissed. The principle right to appeal is in practice prevented as an appeal would not have suspensive effect and the person would already have been removed from Slovenian territory. In its response to the approval by the National Assembly, PIC stated: "For the second time since 2016 Slovenia adopted legislative proposals that violate the Refugee Convention and the prohibition of torture and the right to asylum. The proposal would allow the police to dismiss the intent for international protection which is a clear violation of international and EU law. In addition, the police is not properly trained to make assessment of the possible violation of principle of non-refoulment upon return or to perform age assessment of unaccompanied children. The appeal against the order would not have a suspensive affect which is a violation of the right to an effective legal remedy. The aim of the legislative changes is to legitimize the push-back practices that are already happening at the Slovenian border. Regardless of the various reports and testimonies of horrific and systemic violence individuals are subjected to by the Croatian authorities after being denied access to asylum procedure in Slovenia, Slovenia continues to return individuals to Croatia based on the readmission agreements."
The IPA contains a series of amendments reducing the rights of asylum seekers and people granted protection in Slovenia. In violation of the principle of lawyer client confidentiality, protected under the Slovenian Constitution, legal counsellors will be required to disclose personal information about asylum seekers to the Ministry of Interior under threat of being prevented from representing asylum seekers in future cases. The same requirement and consequences will be in place for guardians of unaccompanied children. The requirements include information with potentially negative implications for the later status during appeals for asylum applicants in general and applicants claiming to be unaccompanied children. Further, the IPA introduces severe restriction of the freedom of movement for asylum seekers, limited to the municipality where they are accommodated without the possibility to appeal and without any specified time limitation. The grounds for detention including the risk of absconding are expanded beyond the provisions of the EU Reception Directive and the IPA offers no alternatives to detention. For people granted international protection financial assistance for accommodation will be cut from three to two years. PIC states: "The provisions of the IPA on the obligation of submission of documents, detention, freedom of movement, legal remedy, judicial review, legal representation and integration do not meet the criteria of minimal standards of the EU asylum legislation."
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The French police have denied firing shots while attempting to turn a group of migrants back into Italy. Earlier last week, Italian authorities evicted migrants from a house in the border town of Oulx and charged activists for occupying private property. A judge has rejected the application to evacuate a migrant camp in Calais and the Court of Cassation has definitively acquitted the activist, Cédric Herrou. In Paris, almost 500 migrants were given shelter after occupying Place de la République last week.
France: Pushbacks and Evictions Continue at the French-Italian Border, Cédric Herrou Acquitted in Final Judicial Victory, Calais Judge Rejects Request to Close Camp and Migrants Granted Shelter in Paris
Last Friday night, a group of migrants travelled from Oulx to Claviere in Italy and attempted to cross the border into Montgenèvre, France through the forest mountain trail. The border police of Montgenèvre stopped and returned the group to the Italian border after contacting Italian police. A ten year old Afghan girl who was among those returned arrived visibly shaken at a volunteer-run refuge in Oulx and was subsequently hospitalised for psychogenic shock at the Regina Margherita hospital in Turin. The girl's mother explained that shots fired by French police had retraumatised her daughter, who had previously sustained a head injury at the age of seven from a bomb explosion in Afghanistan. The reports of shots being fired to frighten the migrants attempting to cross the border have been denied by both the French police and the Prefect of the Hautes-Alpes.
The young girl and her family had been part of the group of 50 migrants who were evicted from an occupied building in Oulx last week. The former roadhouse was occupied by activists and turned into a shelter for migrants attempting to cross the border to France through mountain trails. The shelter was part of a campaign called "Briser les frontières" (breaking borders) promoted by a group of activists against French immigration policies and alleged pushbacks. The migrants were taken to hosting facilities in Oulx, Susa and Bardonecchia. Thirteen activists were at the site when the police raided the building and were subsequently charged with “invading buildings.” This follows the indictment of eighteen activists last week by the Turin magistrates for violating private property and occupying the shelter in Oulx.
In France, Cédric Herrou, a farmer who was prosecuted for assisting the entry, movement and stay of migrants was acquitted this week in a final judicial victory at the Court of Cassation. The Court declared the appeal lodged by the general prosecutor’s office, inadmissible. The decision marks the end of a long legal battle concerning the “offense of solidarity”. The legal proceedings consisted of a referral to the Constitutional Council in 2018 which subsequently enshrined into law, the principle of fraternity and freedom to help others, for humanitarian purposes, regardless of the regularity of their stay on the national territory.
In Calais, a judge has rejected the request for the closure of a camp where approximately 200, mainly Eritrean nationals were residing. The judge stated that the petition for interim relief lodged by the town hall of Calais was not justified in urgency, nor in threat to health or public safety. It was reported that the new judge “took time to study the situation” of the BMX camp, which the organisations La Cabane Juridique and Utopia 56 submit “is made up of tents in good condition, spaced and set up in an orderly manner”. Human Rights Observers, an organisation in Calais counted approximately a thousand evacuations in 2020.
On 25 March, 480 homeless migrants were granted shelter after occupying Place de la République in the heart of Paris for several hours. The action, supported by several organisations including Utopia 56, took place during “Nuit de la Solidarité,” an annual event to support the homeless. Yann Manzi, the founder of Utopia 56 told InfoMigrants "Our job is also to help make these people and their situation visible." After several hours of negotiations with the authorities, the supporting organisations obtained shelter for all of the migrants present who were put on buses and directed to hotels or gymnasiums. Manzi, stated that "This occupation proves that things can be organized without violence" referring to a similar protest which was broken up by police using force last November.
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REPORTS & NGO ACTIONS
AIDA 2020 Update: Belgium
The updated AIDA Country Report on Belgium tracks recent developments in the area of asylum procedures, reception conditions, detention of asylum seekers and content of international protection in 2020.
In 2020, the number of applicants (16,910) for international protection decreased by 39% compared to 2019. This is the lowest number of applicants for international protection since 2008, and is mainly due to the impact of the covid-19 crisis. Between March and July 2020 there was a significant drop in the number of applicants for international protection, but since August the number began to rise again. In 2020, 34,1% of the final decisions were positive, granting international protection. Protection was mainly granted to Syrians, Afghans, Turks, Somalis and Eritreans. The recognition rate has steadily decreased since 2016, mainly due to the increase of inadmissibility decisions and the number of subsequent applications as well as applications from persons with protection status in another Member State. When excluding these cases, the recognition rate was 47,3% in 2020.
On 17 March 2020, at the start of the covid-19 pandemic the Immigration Office decided to close its doors to the public, and thus suspended access to the asylum procedure. On 3 April 2020 the Immigration Office re-opened with a new system for the registration of applicants for international protection. Applicants wanting to make their application had to fill in an online registration form, after which they were invited on a later date to officially make and lodge their application for international protection. Because of these measures - between March and October 2020 - a significant number of applicants for international protection had no access to the reception system. According to the law applicants for international protection are only entitled to material aid from the moment they make their application for international protection. Since applicants had to wait – some for several weeks - before they were able to make their application for international protection, they had no access to the reception system during this waiting period. A coalition of civil society organisations decided to declare the Belgian state in default at the Brussels court of first instance. On 5 October 2020 the court condemned the Belgian state, after which the Immigration Office returned to the previous system of physical registrations on 3 November 2020. Applicants have since then regained immediate access to reception conditions as well.
In the light of the covid-19 sanitary measures, the CGRS announced in November 2020 that, in certain cases, it would conduct interviews with people residing in open reception centres through videoconference. The aim was to introduce interviews by videoconference on a structural level. However, civil society organisations instituted an urgency procedure before the Council of State against this decision, arguing the CGRS had no legal competence to take this decision. In a judgment of 7 December 2020, the Council of State suspended the decision, ruling that the CGRS had indeed overstepped its competences. Any adaptations of the conditions of the personal interview ought to be taken by Royal decree or law. In one later judgment, the CALL extended the ruling of the Council of State to the longstanding practice of interviews through videoconference for people residing in closed detention centres given that, here too, that practice was based solely on a CGRS decision. The CGRS now expressed its intention to recommend the Secretary of State to take legal initiative to ground interviews through videoconference in the Royal Decree.
In February 2020 the Immigration Office also started a new practice with regards to the organisation of the voluntary return procedure for applicants who had received a negative Dublin transfer decision with order to leave the territory (annex 26quater). Upon receiving this decision, applicants had to fill in a ‘voluntary return form’, confirming they would cooperate with their transfer to the responsible member state, and send this back to the Immigration Office within ten days. If they failed to do so, the transfer deadline would be extended from 6 to 18 months. In July 2020 the CALL ruled this practice to be in conflict with the CJUE Jawo judgement and its definition of the term ‘absconded’. Based on this judgement, the Immigration Office ended this practice altogether in July 2020.
Due to the critical reception capacity at the beginning of 2020, policy measures were adopted to withdraw reception conditions of certain asylum applicants. Through instructions of 3 January 2020, Fedasil limited the material reception to medical assistance to applicants for international protection who have received a transfer decision on the basis of the Dublin III Regulation, but for whom Belgium becomes responsible by default due to failure to transfer within the six months deadlines; and for applicants for international protection who make a first application in Belgium but who already have an international protection status in another EU Member State. Several NGOs introduced an appeal with the Council of State aiming for the suspension and the annulment of the Fedasil instructions. In September 2020, just prior to the hearing before the Council of State, Fedasil withdrew the instructions of 3 January 2020. Both categories of asylum seekers have thus since regained their full right to material assistance, including reception, during their asylum procedure.
The updated AIDA Country Report on Slovenia tracks recent developments in the area of asylum procedures, reception conditions, detention of asylum seekers and content of international protection in 2020. It shows that the access to the territory and to the asylum procedure remains a serious matter of concern and reveals unlawful detention practices in 2020.
AIDA 2020 Update: Slovenia
While only 3,548 persons were able to lodge an application for international protection in Slovenia, more than 14,500 persons were apprehended for illegally crossing the border and around 10,000 persons were returned to neighbouring countries (the large majority to Croatia, i.e. 9,950 persons) based on readmission agreements. These agreements enable the return of migrants through informal and truncated procedures without a return decision and with no access to legal assistance nor the possibility to appeal. Individual circumstances, protection needs and the non-refoulement principle are not assessed in practice. The Border Violence Monitoring Network (BVMN) and the Legal-Informational Centre for NGOs (PIC) further identified cases of individuals who were unable to apply for asylum after several attempts. In 2020, the Administrative Court also concluded that the Slovenian authorities had violated the non-refoulment principle, the prohibition of collective expulsion and the applicant’s right to access the asylum procedure. The Ministry of the Interior appealed the decision and the case is currently pending before the Supreme Court. Cases of summary returns to Slovenia from Italy and from Austria were also reported in 2020.
The asylum procedure was suspended in April 2020 due to COVID-19 but resumed as of May 2020 with no further complications and interviews were held in person. However, the AMIF project which enabled asylum seekers to access free legal advice and representation was terminated in April 2020. Since then, only a limited number of asylum seekers have access to legal assistance. This raises concerns as regards compliance with the right to an effective remedy. Recognition rates have also dropped, in particular for Iranians, Iraqis and Afghans, while the overall rejection rate stood at 70.1%.
Another important issue reported in 2020 relates to detention. During the suspension of asylum-related activities in April 2020, individuals were de facto detained up to 20 days in the premises of the Asylum Home before being able to lodge their application for international protection. Moreover, the authorities detained asylum seekers again during the months of May to August 2020, although the provisions of the Internatioanl Protection Act (IPA) were not amended in order to define the risk of absconding - which is a legal prerequisite under EU law as pointed out by the Slovenian Supreme Court in 2019. Detained asylum seekers had their applications processed in accelerated procedures, if possible, in order to facilitate their return following a negative decision. This practice ended in August 2020 as most of the detention orders were succesfully challenged as unlawful before the Administrative Court.
Nevertheless, the high number of detained asylum seekers (217 in 2020 compared to only 23 in 2019) and of other aliens resulted in inadequate detention conditions. Following a visit, the Slovenian Ombudsman concluded that the conditions in containers did not comply with the Reception Conditions Directive. The Administrative Court also found a violation of Article 4 of the EU Charter (prohibition of torture and inhuman or degrading treatment), as detained asylum seekers were not provided with one-hour of outdoor activities.
Syria Conference: Funds Pledged Fall Short of Humanitarian Needs - Syria is Not Safe for Returns
The fifth conference on "Supporting the Future of Syria and the Region took place on 30 March, shortly after the 10th anniversary to the peaceful democratic uprisings in 2011. It was co-chaired today by the European Union and the United Nations and is the ninth international conference devoted to the Syria crisis.
The funding pledges collected by donors fall far short of the projected needs which according to the UN run at around 8.5 billion Euro to support populations in need inside Syria and the neighbouring countries. The conference generated pledges of €5.3 billion Euro for 2021 and beyond for Syria and the neighbouring countries hosting the largest Syrian refugee population. Of this amount, €3.7 billion Euro were announced by the EU, with 1.1 billion Euro coming from the European Commission and €2.6 billion Euro from EU Member States. Both the UK and the US have cut their contributions compared to previous years, Germany is now the single largest donor to the Syria response.
The co-chairs issued a statement which declared that progress towards a political solution to the conflict in Syria remains elusive and that any such solution must be based on the Geneva Communiqué (2012), the full implementation of UN Security Council resolution 2254 (2015) which calls for a Syrian-led, Syrian-owned political process facilitated by the UN to reach a political settlement that meets the legitimate aspirations of the Syrian people. The statement also underlined that Syria “remains a protection crisis with multiple challenges affecting the lives of millions of Syrians daily, including their psychosocial and mental health needs.”
On the issue of return, the statement reiterates that “Return is a right to be exercised based on individual’s free and informed decision. However, participants underscored that conditions inside Syria have not been met for the promotion or organisation of large-scale, safe and dignified voluntary return in line with international law” and that “all governments hosting refugees and asylum seekers in the region and beyond must uphold non-refoulement and commit to a moratorium on summary deportations of Syrian refugees. Participants reiterated the importance of the Protection Thresholds and Parameters for Refugee Return to Syria, issued by the UN in February 2018.”
The conference was preceded by a day of exchange between Syrian, Jordanian, Lebanese, Turkish and international Non-Governmental Organisations (NGOs) and Civil Society Organisations (CSOs) and Ministers and senior officials from refugee-hosting countries, the EU and UN agencies. A report of the online consultations with civil society which took place ahead of the conference has been published.
Earlier this month, the European Parliament adopted a resolution on the conflict in Syria which opposed any “normalisation of diplomatic relations with the Syrian regime as long as there is no fundamental progress on the ground in Syria, with clear, sustained and credible engagement in an inclusive political process;”. It also “Reminds all Member States that Syria is not a safe country to return to; and “calls on all EU Member States to refrain from shifting national policies towards depriving certain categories of Syrians of their protected status, and to reverse this trend if they have already applied such policies”
For further information:
- Borderline Europe, Report on the Situation at the Border of Spain - The Canary Islands, March 2021
- Constitutional Council, Les cahiers du Conseil constitutionnel: LE DROIT DES ÉTRANGERS, March 2021
- ARC Foundation and the Dutch Council for Refugees, Commentary on the EASO COI Query on Iraq: What is the security context and treatment of Christians in Iraq? 22 October 2020, March 2021
- European Union Agency for Fundamental Rights, Initial-reception facilities at external borders: fundamental rights issues to consider, March 2021
- EASO, EASO Strategy on Reception, March 2021
- Schweizerische Flüchtlingshilfe, Schweiz muss Anhörung von Kindern im Asylverfahren verbessern, March 2021
- OHCHR, RECOMMENDED PRINCIPLES and GUIDELINES on HUMAN RIGHTS at INTERNATIONAL BORDERS, March 2021
- Alarm Phone Aegean Archive, "We asked for help, but they only shouted: Go back, go back!", March 2021
- Human Rights Compliance - #HardlyRocketScience is ECRE’s campaign to ensure that the European Pact on Asylum and Migration will respect fundamental human rights.
- On 28 March 2021, it’s been two years since the Merchant Vessel ElHiblu1 arrived in Malta. Upon arrival, three teenagers were arrested and accused of a multiplicity of crimes, including acts of terrorism. The joint statement Free the ElHiblu3! End the Trial! reiterates that resisting illegal pushbacks to Libya is not a crime and calls to immediately drop the charges against the ElHiblu3.
- It takes a Community is about celebrating how all people, regardless of where they are born, can contribute to making our communities feel like home. The campaign was initiated to highlight how migrants and their fellow community members are working together to make the places where they live and work more productive, innovative, caring, safe and welcoming.
- Joint Statement by the CAMPAIGN FOR THE ACCESS TO ASYLUM that addresses the systematic reports on pushbacks and the shrinking space of solidarity towards refugees and migrants in Greece. The Statement is available in Greek and English and it remains open for signatures. Organisations interested in supporting it can contact: email@example.com.
- 8 April 2021, Lunch Talk: Asylum in the EU and Rule of Law Backsliding, Faculty of Liberal Arts & Professional Studies, York University
- 15 April 2021, Webinar: Insights from EURITA: 'the role of capacity building in growing resettlement in the EU’, International Rescue Committee (IRC)
- 27-28 April 2021, Workshop: Research for Change: Gender, Forced Migration and Vulnerabilities, RAISD
- 28 June - 3 July 2021, Ph.D Summer School: "Mediterranean Migration Studies: Theoretical and Empirical Research Agenda", IMISCOE
- 28 June - 9 July 2021, Summer School: ‘Migration and the Pandemic: Taking Stock and Thinking Ahead’, Migration Policy Centre (MPC)
- 9 - 21 July 2021, Summer School: Labour Migration in the European Union, EULab (Application deadline extended to 25 April 2021)
- Save the Children Europe, Brussels: Communications and Advocacy Assistant, 5 April 2021
- University of Ottawa, Ottawa or remote: Postdoctoral Fellowship: Refugee Sponsorship and Integration, 5 April 2021
- EPC, Brussels: Programme Assistant for the migration and diversity programme, 7 April 2021
- European Network on Statelessness, Brussels: Campaigns & Engagement Coordinator, 26 April 2021
- Jesuit Refugee Service Belgium, Brussels: Director, 2 May 2021
CALLS FOR PAPERS & OPEN CALLS