Frontex 2: Rising into the heart of European security politics

November 23, 2010

The anxiety of the voice on the other side of the line intensifies when it becomes clear that this phone call is about Frontex. “We have no clear picture who controls them and what is the extent of responsibility Frontex ought to take” says Franziska Keller, Member of the European Parliament with the alliance of Greens/European Free Alliance.

“There are political forces that advocate in its favour, for extra funds and powers, on the grounds that Frontex is the instrument that Europe has to utilise against illegal migration. Its powers enlarge while questions of authority remain unanswered”.

But while the agency grows over a cutting edge policy frontier it provokes divisive issues even among European MS. On 26 April 2010 the European Council passed a supplementary decision (2010/252/EU) on the Schengen Borders Code regarding the surveillance of the sea external borders in the context of operational cooperation coordinated by Frontex. The new rules provided that member states hosting Frontex led missions will have to take responsibility for all illegal immigrants saved on the high seas, meaning the asylum requests would be theirs to consider.

Malta and Italy disagreed with the new rules considering them as another mechanism of pushing the burden of asylum requests to the MS at the external borders of the union. Maltese MEP Simon Busuttil from the Nationalist European Party initiated a procedure against them to European court on the basis that they exceeded the European Council and European Commission’s powers under the EU Treaties.

MS have been divided over the issue and have moved to clarify their positions as a letter sent by the Justice Minister Hirsch Ballin to the Chairman of the Dutch Senate on 3 September 2010 proves. According to the letter, which …. had access to, the Dutch government’s position regarding handling of asylum requests made by migrants who are intercepted at sea during Frontex coordinated operations is that “An asylum request can only be submitted to the responsible authority of the state in which territory – including the territorial waters – the application is made”.

The process is ongoing through the European courts but meanwhile Malta withdrew from Frontex operations. Consequently Frontex ceased operations in its territorial waters. Still the letter of Minister Ballin sets another issue unexplored so far by MS. While consideration for where responsibility lies during operation is resolved between MS, Frontex is excluded.

This literally means that personnel on duty for the agency’s operations has been given the executive powers to intercept, detain, ‘screen’ and identify people eligible to be returned in a frame that exempts Frontex from any responsibility for the violation of human rights.

“We have addressed that issue since 2007 when Frontex became involved in refoulements, while it was clearly described in its mandate that had not such authority. The Commission and the council have not responded and nobody investigates allegations for irregularities. Without monitoring and if necessary criminal investigations it will not be possible to learn. We want the European Parliament to take over the control of the agency so we can check these things” Keller commented.

Technically it’s the MSs who bear responsibility since they provide human resources and equipment for Frontex, Keller says. “Frontex appears to operate in a vacuum of executive power control, it has enormous authority which grows even bigger every day without essentially answering back on why and how it decides, negotiates and implements its policies”.


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