Migrants not ‘illegal’ says Frontex report

Frontex criticised for failing to place migrants’ fundamental rights as a priority in all its activities

by Tim Diacono

Frontex, the EU agency in charge of external border security, came under fire from its own Consultative Forum on Fundamental Rights because it “does not yet sufficiently reflect that the protection of fundamental rights is considered a priority in all [its] activities”.

The forum was created in 2012 to provide the agency with expert advice on human rights issues. In its first annual report since its inauguration, the Consultative Forum spoke of its concern about Frontex’s handling of the surveillance system Eurosur.

The system was introduced as a means of allowing Europe to detect irregular immigrants while they are still at sea, giving more time to save more persons from drowning.

The Consultative Forum recommended that the agency should coordinate cooperation with European member states to save more migrants’ lives, but Frontex decided not to take that proposal on board.

The Forum also recommended that Frontex abandon the use of the term ‘illegal’ when referring to migration from Europe’s external borders. It said that this term carries ‘implied value judgements’ and generalises all migrants as people making use of the asylum system to enter European territory. 

They also said that “migrants should not be subjected to several interviews for different purposes, as this might be confusing and put additional strain on them”.

The forum’s first annual report noted that Frontex is bound by the EU Charter of Fundamental Rights and by the rules of international human rights law, such as the non-refoulement principle, and has to take into consideration the rights and obligations enshrined in the European Convention on Human Rights.

The report added that Frontex “must ensure it is not complicit in any act that would violate human rights” and pointed out that in joint return operations, Frontex is required to refuse funding of operations if such violations occur.

Eurosur’s regulations include safeguards for the observation of the migrants’ fundamental human rights, including their right not to be sent back to a country where their lives or freedoms would be in danger.

However, the Consultation Forum criticised Frontex for not clearly defining how these rights will be ensured in practice.

The Consultative Forum has also criticised Frontex’s joint return operations (JROs). These are coordinated by Frontex and group non-EU irregular immigrants on flights back to their country of origin.

According to the Consultative Forum, Frontex’s code of conduct for these JROs “does not completely reflect the desired highest level of fundamental rights protection” for these migrants.

The code does not clarify the procedure through which a migrant set to board one of these JRO flights can file a complaint. It also does not require that every migrant on the flight possess a ‘fit to travel’ medical certificate or that their escorts on the flight must be individually identified by name or ID number.

Also, out of the 39 JROs coordinated by Frontex in 2013, only 48.7% of them had an effective monitoring system present during the flights.

Frontex listed Malta as one of the 18 EU states where a monitoring system for JROs was in place.

Elsewhere, the Consultative Forum also suggested that Frontex consult European non-governmental organisations (NGOs) directly when developing protection measures for vulnerable migrants, such as children and victims of human trafficking.

However, Frontex insisted that this should be left in the hands of the European member states where such NGOs are located.