Abstract
The effective return of irregularly staying migrants is identified as an overriding objective in the New Pact on Migration and Asylum, while return operations are the fastest-growing activity of Frontex. Since the 2019 amendment of its Regulation, the agency has received a significant augmentation of its mandate and capacity in pre-return and return-related activities. This way, Frontex takes a centre-stage role in the Commission’s plan to intensify returns. This article fills the relevant gap in existing literature, updating our knowledge on the latest legislative developments in EU return operations and answering questions related to their human rights implications at a time when the scrutiny over Frontex is at its peak. The article discusses the human rights risks of these operations and the effectiveness of the available safeguards. This article is the product mainly of legal doctrinal research, i.e. the analysis of the relevant EU law and legal literature, along with civil society and institutional reports and other empirical documentation. At the same time, it also looks at quantitative data on the agency’s return activities from 2004 until 2019.
1 Introduction
With a constant presence at the EU external borders and a perpetually expanding mandate, Frontex, developed into the European Border and Coast Guard Agency (EBCGA) has become the most important actor in border enforcement in Europe. As a result of journalistic research, a range of accountability structures have focused closely on the human rights implications of its work and its potential legal responsibility.1 Under the pressure of these investigations, the Executive Director of Frontex was forced to resign.2 Undoubtedly, most of the attention in literature and practice has been given to the border surveillance operations of the agency.3 However, return operations are currently the fastest-growing activity of Frontex, and they have quickly developed into an area that warrants particular attention.
Return operations have been part of the initial conception and the agency’s original mandate and were found in its founding Regulation in 2004.4 The first return operation was carried out in 2006, but the agency only received a major enhancement in its return competencies and budget with the new European Border and Coast Guard Regulation (EBCG Regulation) in 2019.5
In this new environment of prioritisation of returns at the EU level, enhancement of the relevant mandate of Frontex and intensified attention on the accountability of the agency for human rights violations, this article aims to answer the following questions: How has the role of Frontex developed in returns for it to deserve the name of the ‘EU’s Returns Agency’? What are the human rights implications of this development, including risks and safeguards? To answer these questions, the article focuses on the 2019 amendment of the EBCG Regulation and looks into the development of the return activities of the agency. The methodology of this study is described in Section 2. Section 3 discusses the development of the role of Frontex in returns, in parallel with the ambitions of the European Commission. Section 4 delves into the human rights risks of such operations and evaluates the safeguards that Frontex has in place for human rights protection. The final section answers the research questions and reflects further on the human rights implications of the role of Frontex in returns.
2 Methodology and State of the Art
This study draws from a growing body of literature that focuses on Frontex’s accountability and responsibility. Although ongoing since the 2011 amendment of the agency’s Regulation, the legal debate on the responsibility of Frontex is still evolving. Several authors have provided arguments to challenge the complete irresponsibility of the agency or have provided a more in-depth focus on specific aspects of its responsibility,6 the impact of the agency’s work upon fundamental rights,7 the responsibility of member states participating in Frontex operations, and the allocation of responsibility between the member states and the agency.8
While the existing legal framework and judicial infrastructure have not allowed for definitive answers, another obstacle to settling the debate is the constant development of the agency’s mandate. Much of the work done in the previous years, even though still highly relevant, needs to be updated and seen through the lens of more current developments.
This is also the case with respect to the return activities of the agency. The rapid evolution in this field has not allowed academic literature to catch up. Work that deals with EBCG return operations, in particular, is limited and focused on specific aspects of them,9 while more general discussions still need to be updated in light of the latest legislative amendment in 2019.10 This article attempts to fill this gap and respond to the desire to understand the agency’s work and the consequences of its return activities on fundamental rights. Given the newly emerging litigation vis-à-vis the agency, including in the area of returns,11 this article systematises our existing knowledge on the issue, constituting the groundwork for legal practice and further academic inquiry.
This contribution is the product of legal doctrinal research, i.e. the analysis of the relevant EU law and legal literature, along with civil society and institutional reports and other empirical documentation. It is further based on the quantitative investigation conducted by Statewatch into the return activities of the agency from 2004 till 2019. The data has been collected via Frontex reports and access to documents requests and compiled by Statewatch.12
3 Frontex, Its Work and Development in Returns
3.1 The Commission’s Growing Emphasis on Returns
Ever since 2011, the Commission has been putting forward the goal of an ‘effective return policy’ in the General Approach to Migration and Mobility (GAMM),13 while the Council had already urged towards this direction in 2004.14 The adoption of the Returns Directive15 was inadequate to ensure ‘a more swift return system going hand-in-hand with the respect of the procedures and standards’.16 The Commission found the low rate of effective enforcement of return decisions problematic,17 and noted that the system ‘lacks in operational cooperation’.18 Thus, in the 2015 European Agenda on Migration, the Commission reiterated the goal of effective return and coupled it with the “reinforcement and amendment of the Frontex legal basis to strengthen its role on return” as a key goal.19 With the New Pact on Migration and Asylum (Pact), the Commission further emphasises the goal of intensifying returns identifying it as an overriding objective.20 The Pact puts forward a number of mechanisms, including a swift return procedure, a system of return sponsorship, and an EU Return Coordinator.21 Moreover, Frontex received a central role in implementing the new return goals with the European Commission vice-president Margaritis Schinas calling it the ‘European Union’s returns agency’.22 This role is supported by the ever-growing engagement of Frontex with returns and its enhanced mandate given to it by the 2019 EBCG Regulation. Moreover, following the Pact, the Frontex Deputy Executive Director on Return is tasked with supporting the EU Return Coordinator aiming at a ‘common strategic and coordinated approach on return and readmission among the Member States, the Commission and Union agencies.’23
3.2 Return Operations
Taking a closer look into the nature of return operations coordinated by Frontex, we may distinguish between a national return operation, which includes one member state, and a joint return operation, where several member states participate. A return operation can be conducted upon the initiative of the agency and with the agreement of the member state (Art. 50(1)). Every operation starts with the collection of information by Frontex from the national return systems, such as the number of third country nationals awaiting return and their countries of return. On the basis of such information, the agency’s dedicated Return Office conducts its risk analysis and draws a rolling operational plan that takes into account the return needs throughout the Schengen area (Art 51(2)).
A return operation is carried out by forced-return specialists deployed from the European Return Intervention teams (Art. 32). Amongst them are forced-return escorts who assist the national escorts in carrying out the operation (Art. 30),24 forced-return monitors who supervise the operation and monitor the compliance with human rights (Art. 29), and forced-return specialists with specific skills and expertise in identifying particular groups of third-country nationals, acquiring travel documents from third countries and facilitating consular cooperation (Art. 49(1)(a)(ii)). Frontex compiles and manages separate pools of each category of forced-return specialists after consulting with the Fundamental Rights Officer and national return authorities. Upon the proposal of the Frontex Executive Director, the management board decides on the number and the profiles of experts composing each of these pools, which need to have received appropriate training (Arts. 29–31). Member States contribute to the pools on the basis of bilateral negotiations and binding agreements with the agency (Arts. 29(3,4), 30(3,4), 31(3,4)). Finally, a tailor- made European return intervention team is set up for each return intervention in accordance with the identified needs and the available personnel (Art. 32). The return pools are operational since 7 January 2017 (Art. 29–31).25
Apart from return operations, the agency was also mandated for the first time in 2016 with launching return interventions. A return intrvention may consist of the deployment of return teams to the host member state in order to assist with the implementation of return procedures or the organisation of one or several return operations in support of a member state, which faces certain pressure with respect to returns (Art. 54). When such pressure becomes disproportionate and challenges the capacity of the Member State, the intervention can take the form of a rapid return intervention.
Another special type of return operation is a ‘collecting return operation’, where the means of transport and the forced-return escorts are provided by the country of return, a third country (Art. 51 (3)(4)). Collecting return operations were first implemented in 2015,26 even though the legal basis for them only came one year later with the EBCG Regulation (). The third countries that have participated in collecting return operations are Albania, Georgia, Montenegro, Serbia, and Ukraine.27 Both return interventions and collecting return operations may be carried out either upon request of the member states participating or upon the agency’s own initiative (Arts. 50(3)) and 53).
Next to the preparation of the risk analysis and the organisation of the return operation, essential are also the pre-return activities of the agency. These prepare and facilitate returns. In this context, Frontex has a particular role to play at the hotspots, where it collaborates with the European Commission, the European Union Agency for Asylum (EUAA) and other EU agencies, along with the national authorities, to manage what the EBCG Regulation identifies as a disproportionate migratory challenge characterised by a significant increase in the number of arrivals (Art. 2(10)). Frontex deploys there the required technical equipment and Border and Coast Guard teams that provide technical and operational assistance, including in screening, debriefing, identification, and fingerprinting (Arts. 8 (i), 18(4)). A return operation usually occurs via charter flights or vessels and less frequently via regular commercial flights.
3.3 The Returns’ Mandate in the 2019 EBCG Regulation
Already since its establishment, Frontex has been mandated with assisting in the organisation of and financing of return flights. In line with the Commission’s goal of intensifying returns, Frontex’s powers in this respect have been constantly growing, along with the number of returnees. In 2011 its mandate expanded to include acquisition and leasing of technical equipment and vessels and a more active role in organising and coordinating return operations. In 2016 returns were upgraded to one of the agency’s primary tasks. Since then, Frontex no longer merely assists. It deploys european return intervention teams and is tasked with organising, coordinating, and (co)financing return operations and return interventions upon request of member states or on its own initiative. It was also mandated with a range of return-related activities of a technical and operational nature in support of the national return systems. These included translation, acquisition of necessary travel documents, along with equipment, capacities and expertise for the identification of third-country nationals and the implementation of return decisions (Art. 49 (2)).
With the 2019 amendment of the EBCG Regulation, the agency moves towards full operational capacity.28 Aiming at greater autonomy and operational effectiveness, Frontex will have its own equipment and personnel, combined with an impressive budget, and is vested with an even broader mandate in border surveillance, returns, and cooperation with third countries.
One of the single most important innovations of the 2019 Regulation is that the agency now acquires its own operational arm of 10.000 border guards by 2027, including the regular deployments of the member states and the agency’s own personnel, with executive powers similar to those of the national border guards, including competence to perform identity checks and authorise or refuse entry. The three pools of forced return specialists become part of the EBCG standing corps in order to be available for short- and long-term deployment, including rapid interventions (Arts. 2(16), 55)).29 Thus, the agency is now able to conduct return operations with its own forced-return escorts and return monitors.
Moreover, return operations (with the exception of return interventions and collecting operations) may no longer be organised at the request of a member state but only on the agency’s initiative upon agreement of the member state (Art. 50(1)(3)). The agency further acquires an enhanced role in assisting member states in pre-return and return-related activities, which stops short of drafting the return decision itself. The agency essentially prepares the return decision as it identifies irregularly staying third-country nationals, assists in obtaining travel documents, collects information relevant for the return, analyses such information and provides recommendations regarding the country of return (Art. 48(1)). The agency is, nevertheless, not allowed to enter the merits of the return decision (Arts. 48(1), 50(1)).
Here belongs also the increased capacity for the agency to acquire and operate its own air, maritime and land assets, including aircrafts and vessels. As a matter of fact, the Commission intends that the agency’s own equipment “should ultimately become the backbone of [its] operational deployments with additional contributions of Member States to be called upon in exceptional circumstances”.30
Finally, Frontex becomes the centre of extensive data sharing. On top of the powers that it already had, it is now tasked with developing and operating a centralised return management platform for processing all information, which will allow for the automated transfer of data. In the context of its new powers, Frontex can also exchange information with member states’ law enforcement authorities, EU agencies, mainly EASO and Europol, as well as third countries.
3.3.1 Working with and in Third Countries
Frontex joint operations have laid the groundwork for the externalisation of migration control, as well as cooperation among member states, third states, and other agencies. This also includes cooperation with third states for the purpose of returns but does not reach as far as cooperation in surveillance operations.31 The 2016 EBCG Regulation provides for the possibility for joint surveillance operations to be hosted by and carried out on the territory of a third country, while in the amended 2019 Regulation, joint surveillance operations can be hosted anywhere in the world. In fact, the first Frontex border surveillance outside the European continent is planned to take place in Senegal.32
Similar was the plan of the Commission for return operations. In the initial proposal of the 2019 Regulation, the mandate was envisaged for Frontex to return migrants even before they enter the EU, which raised questions regarding refoulement, collective expulsions and the right to asylum. Specifically, the proposal to allow Frontex to organise and host returns from a non-EU transit country to the country of origin, including mixed return operations with the participation of member states, was abandoned in the final compromise text following opposition from the European Parliament during negotiation.33 Thus, the European Parliament considerably weakened the force of the 2019 ECBG Regulation. However, we could still expect the proposal for return operations from one country to another to come back in a future legislative amendment.
Still, the collaboration with third countries has been extended with respect to the intelligence activities of Frontex in collaboration with third countries. Overall, the agency may launch and finance technical assistance projects in third countries and provide other operational and technical assistance relevant to returns (Arts. 74(6–7), 75). It may further post and receive liaison officers in and from third countries, which shall play a role in establishing and maintaining contacts with the competent authorities of the third countries in order to assist in returns and provide them with the necessary assistance (Art. 78).
3.3.2 Information Exchange for the Management of Return
Before the 2019 Regulation, Frontex already had a role in information sharing, especially with member states and other agencies, such as Europol. It has also been in charge of EUROSUR, a pan-European border surveillance system. However, now it sits at the centre of an extensive data sharing network, including with third countries and aims to develop an “integrated system of return management”. New specialised structures and mechanisms are created, in the form of databases and IT systems, that aim to facilitate the cooperation between the agency and member states, third countries, and other agencies, and the coordination of operations.
In particular, Frontex is mandated with collecting from various sources of information necessary for issuing return decisions, identifying individuals subject to removal, and other pre-return, return-related and post-arrival and post-return activities. (Art. 49(1)(a)(i)). In fact, most of its extensive data management powers are related to returns in order for the agency to facilitate more efficient returns. In this context, Frontex is tasked with developing and operating a centralised return management platform for processing all information relevant for returns (Arts. 15(4), 49(1)(d), 50(1)). Aiming to achieve coherence and improve the overall efficiency of the return process, this platform integrates the existing national and EU-wide return management systems.34 Member states shall submit to this platform the operational data necessary for the agency to assess the return needs, along with their needs for assistance or coordination by the agency, which on the basis of this information, will decide upon the necessary return operation and draft a rolling operational plan (Art. 51(2)).
Frontex is further tasked with supporting member states in developing their return systems in a way that is compatible with the agency’s information systems and applications so as to allow for automated transfer of data, as well as finance this adaptation (Art. 49(1)(c) and (g)). This may include biographic data or passenger lists, as well as personal data and information obtained during the personal asylum interview. The agency will provide technical and operational assistance to member states in connecting to the platform (Art. 49(1,d)) and develop the necessary information systems and software to facilitate the exchange of information (Art. 50(2)). The information will be processed for the purpose of launching a return operation and can be shared with the law enforcement authorities of the member states, other agencies (Art. 12(2)), as well as third countries for a variety of different and not clearly delineated purposes ranging from border surveillance to combating terrorism.
3.4 Budgetary Growth in Returns
The budget earmarked for returns keeps growing along with the agency’s mandate. Until the first major boost in 2016, the budget on returns nearly reached 1% of the total budget available to the agency. However, in 2016 the budget in this area was raised from EUR 13 million to 66 million EUR in a year (Frontex 2016a). The growth continued in the next years, but it was only in 2019 that the budgetary allowance permitted Frontex to reach its potential in returns. The agency’s overall budget notes a sharp increase. The amount allocated for the Multi-annual Financial Framework (MFF) 2021–2027 is €9,5 billion.35 This increase is in conformity with the general direction of the Frontex budget in the last years. Nevertheless, it is the first time that its budget is counted in billions.
From this amount, approximately EUR 250 million per year on average is allocated to its return activities.36 This represents more than close to 300% increase since the last budgetary enlargement in this area. To this we should add part of a significant envelope of €2,2 billion meant for the acquisitions, maintenance and operation of the assets necessary for returns, including aircrafts and vessels.37
3.5 Frontex Returns in Numbers
Frontex has been involved in return operations since it was established; however, not many returns were carried out before 2016. The first return operation carried eight returnees to Armenia and Georgia in 2006. Since then over 53,000 people have been returned in flights where Frontex was involved in the period 2007–2018. The most significant increase was noted in light of the 2016 boost in operational competencies and budget for returns. As a matter of fact, until 2014, the number of returnees was, on average 2,000 per year, which increased to 3,600 in 2015. One year later, the number of returnees had nearly reached 10,500.
Between 2015 and 2016, the number of joint return operations increased by 95% (from 59 to 115). Joint return operations increased further to 341 in 2017 and to 345 in 2018.38 In these last two years, 13,000 people were on average, returned.39 Taking 2017 as an example, the breakdown of the different types of return operations is as follows: 53% were returned in joint return operations, 36% in national return operations, and 10% in collecting return operations.40
This is still only a small fraction (7%) compared to the total number of persons returned by member states in these years.41 The intention, however, proclaimed by the Commission and reflected in the increase of mandate and budget for returns in the 2019 EBCG Regulation, is that returns are substantially increased. The stated goal for 2021–2027 is to facilitate the return of 50,000 returnees per year.42
The EU member states that most often participate in return operations are Germany, Italy and Spain, followed by France, Austria and Sweden.43 The most common destinations for return flights on average are Albania, Kosovo and Serbia, while the first non-European country on the list is Tunisia. It becomes immediately noticeable that the Western Balkans are overly represented in Frontex return flights. In fact, out of the 341 operations in 2017, 236 were carried out in this region, representing 69% of all operations, while 63% of all returnees were a national of one of the countries of the Western Balkans. Returns in European countries are, as a rule, less challenging because of the well-established relationships of cooperation. This is especially true for the countries that wish to participate in the next rounds of EU enlargement. Moreover, their geographical proximity allows for lower costs per deportee.
Destinations within Europe, which are amongst the most common, cost considerably less. Indicatively, returns to the closest destinations of Bosnia and Herzegovina, Montenegro, Serbia, and Macedonia cost from €940 to €2,000 per deportee, while deportations to more distant countries can reach tens of thousands of EUR per person.44 Distinctly, a 2016 return of only two persons from Denmark to Somalia cost more than €150,000. Returns to Azerbaijan and Afghanistan cost in 2017 around €14,000 per person. The average amount per deportee has been calculated at €3,000 for 2009–2018. “An average flight during that period carried 75 deportees and cost a total of over €224,000”.45
Another major factor that contributes significantly to the high costs, apart from the geographical distance, is the chartering of flights (or more exceptionally, ferries).46 Removal by charter flight, even though a lamentable choice from a cost-effectiveness perspective, is until now the preferred option for return operations.47 In an effort to reduce these costs and increase the number of deportations, Frontex conducted a pilot project in 2017 to assist national authorities with the purchase of flight tickets for the returnees in scheduled commercial flights.48 As a result, 290 persons were returned in these Frontex-supported scheduled flights, mostly from Germany and Belgium to Algeria, Morocco, Bosnia and Herzegovina, FYROM, Kosovo, Serbia, and Albania in 2017. In 2018 1,187 more people were returned via scheduled flights, this time from 16 different member states.49 In 2018, for every eight returns carried out via charter flight, one took place via commercial flight. Frontex has stated its intention to further support the growth of returns by scheduled commercial flights. The agency’s goals for 2019 included 500–600 expulsion operations by scheduled flights, which would allow the return of 1,000 persons for €6.3 million.50 Many major airlines are involved in return flights, while in 2019, Frontex concluded a contract for €30 million with the Polish company eTravel for booking and ticketing services.51 The transactions with charter companies are still highly active, with four contracts in 2020,52 as deportations in commercial flights are politically sensitive and subject to public discontent. For instance, a group of anti-deportation activists called the Stansted 15 were convicted in 2018 for attempting to stop a flight deporting 60 people to Nigeria, Ghana and Sierra Leone,53 while the International Workers Federation (ITF) called all commercial airlines to refuse to assist in forced deportations for the safety of their crew and passengers.54 According to ITF, workers have been forced to resign due to the psychological trauma they suffered.
4 Human Rights Implications of Return Operations
4.1 Human Rights Risks
Return operations are inherently sensitive to human rights violations, whether these concern the forcible return of persons to countries in which they risk serious human rights violations, their treatment during the flight itself, or the exchange of sensitive information. First and foremost, the risk of violating the principle of non-refoulement is permanent. Amongst the destination countries of Frontex flights, we see top refugee-producing countries, according to UNCHR data, such as Afghanistan and Somalia.55 This is relevant especially given the serious discrepancies in the asylum determination systems of some EU member states, which may result in refoulement.56
In an incident of October 2016 that caught the public eye, 10 Syrians were readmitted to Turkey in a Frontex coordinated flight from the Greek island, Kos, after the entry into force of the EU-Turkey deal.57 The passengers, who were under the impression that they were flying to Athens, were reportedly never given the opportunity to apply for asylum and were not informed of their destination. UNHCR and Amnesty International denounced the incident as refoulement.58 A family on board that flight, including four minor children and their parents, complained about the circumstances of their return, lodging the first action for damages against Frontex before the CJEU. The family claims the violation of their fundamental rights with respect to their access to asylum, but also regarding the treatment of the children on board. According to the lawsuit, Frontex failed to fulfil its duties to identify and mitigate risks to fundamental rights and thus prevent the degrading treatment of the children aged 2, 5, and 7. The agency further failed to effectively review and adequately follow up on the complaint issued by the family via its internal individual complaints mechanism, denying them, thus, an effective remedy.59 An international campaign was launched in July 2021 around this case by a coalition of European NGOs with the common goal of enhancing the accountability of the EU with respect to Frontex activities.
This was far from an isolated incident. In May 2019, UNHCR issued a statement condemning the return of two Afghan families from Hungary to Serbia and their chain-refoulement to Afghanistan, without the proper examination of their asylum claim, which reflects systematic practice at the Serbian-Hungarian border. As the return took place in a Frontex flight, UNHCR advised the agency to refrain from supporting Hungary in the enforcement of such return decisions, which are not in line with international and EU law.60 The engagement of Frontex in Hungary and its involvement in systematic violations at the land borders, but also in relation to return operations was central in the investigation of the Frontex Scrutiny Working Group of the European Parliament in 2021.61
Following a CJEU judgment in an infringement procedure against Hungary in 2020,62 and after repeatedly ignoring recommendations by the Frontex Fundamental Rights Officer and the Fundamental Rights Consultative Forum of the agency,63 Frontex activated for the first time its obligation to suspend or terminate operations in case of serious fundamental rights violations that are likely to continue.64 The CJEU judgment included the conclusion that Hungarian return operations are incompatible with the EU Charter on Fundamental Rights65 and the Returns Directive.66 However, the Executive Director’s decision to suspend operations in Hungary did not reveal that the suspension did not include return operations, which became the object of much criticism both by the Parliament and by the Commission.67
Furthermore, an element of force and physical coercion is inherent in non-voluntary return operations, as it is to be expected that some individuals will actively resist.68 Thus, the right to physical integrity, or even freedom from torture and the right to life, in extreme circumstances, may be at risk.69 Several NGOs have reported the use of disproportionate force and degrading and inhuman treatment.70 Serious incidents of abuse were recorded by observers of the Committee Against Torture of the Council of Europe (CPT) in the Frontex coordinated return flight from Germany to Afghanistan on 14 August 2018. The CPT observers found the use of force and means of restraint applied by the German Federal Police to two returnees who attempted to forcefully resist removal, excessive and inappropriate, constituting ill-treatment.71
The European Anti-fraud Office (OLAF) issued the report of its investigation on Frontex, condemning the agency for its participation in systematic pushbacks conducted by Greece. OLAF refers to Serious Incidents Reports filed by members of EBCG teams that state that it cannot be excluded that the incidents in question have ‘characteristics of a case of an unprocessed return and violation of the principle of non-refoulement’.72 The UN Special Rapporteur on the human rights of migrants has stressed that ‘Returning people without due process will inevitably result in cases of refoulement to situations where they may face the risk of death, torture, ill-treatment, persecution or other irreparable harm.73 The report, exposing serious misconduct, concealing evidence, and intimidation of whistleblowers related to pushbacks by three high-ranking officers in Frontex, led to the resignation of the Frontex Executive Director.74
Moreover, sensitivities may arise with respect to activities aiming at facilitating more effective returns, including registration and identification of migrants and extensive data sharing powers. In this context, as discussed earlier, Frontex is tasked with developing and operating a centralised return management platform, which allows for automated data transfer. The information processed there may include personal data, biographic data or passenger lists, as well as information obtained during the personal asylum interview. This can also be shared with third countries, which may not necessarily abide by equivalent to EU data protection safeguards. This exchange may be especially problematic if information is shared with the country from which the person was originally fleeing. This can prove detrimental for the safety of people seeking protection and can lead to retaliation measures against migrants and their families.75
Finally, fundamental rights sensitivities are conceivable in relation to the assistance that Frontex provides to national authorities with respect to screening, document checks, registration, fingerprinting and debriefing. For instance, the Frontex Fundamental Rights Officer recently ruled on a complaint regarding the wrongful registration of a minor as an adult as part of a systematic practice of wrong age assessment of unaccompanied minors in Greece.76 The systematic nature of the practice is indicated by the number of complaints of the same nature filed with the Greek Ombudsman and the Frontex Fundamental Rights Officer. Such wrongful registration and failure by the agency to identify them as vulnerable persons, can result in multiple violations of the rights of the child, given that this would deprive them of care adequate for unaccompanied migrant children.
4.2 Human Rights Safeguards
Forced returns monitoring is a key safeguard during return operations. Already in 2013, the Parliamentary Assembly of the Council of Europe (PACE) had called upon Frontex to put in place an effective and independent monitoring system at all stages of return operations, while operations should only be carried out for EU member states that have such a system in place at the national level.
The requirements for a returns monitoring mechanism to be considered effective are prescribed in EU law, in particular, Art. 8(6) of the Return Directive, according to which all member states must appoint independent forced-return monitors.77 These must have sufficient resources and be granted access to all return operations, while their reports should be systematically taken into account by the authorities.78 Regarding in particular the independence of the monitoring mechanism, it is required that the monitoring authority is not the same as the one in charge of carrying out the return. In this regard, the Fundamental Rights Agency (FRA), suggesting that the same standards apply to the agency, has proposed the involvement of an international body with human rights monitoring expertise.79
In practice, however, the FRA has found that there are still states, where effective monitoring systems are not in place, as the monitoring body belongs to an administrative branch of the returning state. More recently, an independent feasibility study on setting up a human rights border monitoring mechanism concluded that the current system does ‘not provide the robust and continuous monitoring required as a prerequisite of adequate political oversight and judicial control; it also fails to produce a deterrent effect against future misconduct.’80 This includes official monitoring mechanisms at the national level, monitoring mechanisms at the EU level or with an EU mandate, ad hoc mechanisms negotiated between the Commission and member states, and Council of Europe monitoring bodies.
Concerns can also be expressed with regard to Frontex coordinated flights in particular. It has been reported that independent monitors were only present in 54% of joint return operations,81 while the findings of Statewatch show that only 22% of national return operations were monitored in 2018, according to data provided by Frontex.82
According to the 2019 Regulation, a forced-return monitor, deployed either from the pool or from the national monitoring body of a participating member state, is required to be present in any Frontex coordinated return operation (Art. 28 (3)). It remains to be seen how the new Regulation will be implemented and whether all operations will indeed be monitored, especially given the increase in the agency’s own personnel.
Nevertheless, even if there is a monitor on board of every flight, gaps still remain. The duty to monitor should cover all aspects of a return operation, from the preparation of the return flight to post-return monitoring.83 Monitoring in Frontex return flights, however, only covers the return operation until the hand-over of the returnee to the national authorities of the country of return (Art. 28(6)). Thus, the guarantee is only present ‘until arrival at the third country of return’ (Art. 28(3)), while there is no monitoring or information in Frontex annual reports on what happens to the returnees once handed over to the authorities.
More importantly, the key element of independence is still missing. A welcome improvement in this regard is that the new Regulation now newly allows the CPT to conduct visits (Recital 69a). However, the visits of the CPT can only be the exception rather than the rule, while the return monitors are employed either by Frontex or the member state hosting the operation (or a third country in a collecting flight). Thus, there is still a need for an external independent monitoring body with relevant expertise and sufficient resources.
The effectiveness of the monitoring mechanism is called into question also regarding the effective consideration and follow-up of the complaints. The monitor shall report to the agency any human rights-related incidents. This report is submitted to the Executive Director, the Fundamental Rights Officer and the competent authorities of all participating member states. While the Regulation states that ‘appropriate follow up’ shall be ensured, no specific criteria and procedures are mentioned. This follow-up seems to be fully internal, in the hands of the Executive Director and lacking procedural safeguards. In fact, news reports as well as the investigation of the FSWG of the European Parliament show that serious incidents reports are not being addressed.84 Pirjola gives an overview of the gaps of the complaints mechanism during Frontex return operations, including accessibility of the procedure and timely and effective information.85
All in all, after his participation in a return operation in 2017, the Greek Ombudsman expressed concerns regarding the lack of appropriate safeguards,86 while the CPT also noted that ‘the current arrangements cannot be considered as an independent external monitoring mechanism’.87 Moreover, the authors of the feasibility study on a human rights monitoring mechanism at the borders note that the pool of Frontex return monitors88 is not always staffed with the appropriate expertise and independence. The Frontex monitors may come from Ombudsman institutions and national preventive mechanisms,89 but also from inspectorates and private entities.90
With regard to other returns-specific safeguards, Migreurop has pointed out the lack of transparency as to the rules and protocols applied during return operations that would guarantee the physical integrity of those returned.91 Since then, the agency has developed a Code of Conduct for Joint Return Operations, which sets out common principles to be observed by everyone participating in joint return operations.92 Relevant is also another soft law instrument, the ‘Guide for Joint Return Operations by Air coordinated by Frontex’, which contains a (non-exhaustive) list of restraints that are prohibited in those operations, such as “metal chains used to restrain hands or legs”; “straightjackets”; and “plastic ties not specifically designed for handcuffing or for leg restraint”.93 However, Statewatch has noted that there is no equivalent list of what is permitted.94 In any case, such codes remain soft law instruments. Their enforcement power remains internal and administrative.95
Finally, with respect to data protection, the Regulation states that any exchange of data that can be used to identify persons with a pending request for international protection or who are at serious risk of being subjected to fundamental rights violations shall be prohibited. However, this safeguard only applies to personal data. This is a distinct step backwards from the Eurosur Regulation, which extends the material scope of the protection also to non-personal data (Art. 90(4)). The FRA has also noted the lack of other adequate safeguards, which ‘may be perceived as giving the green light for a blanket sharing with the third country of all information that may be considered relevant for returns’.96
5 Conclusions
This article focuses on one of the main priorities of EU migration policy in an area crucial for human rights. The goal of effective returns has become a priority of the Commission and Frontex has a vital role to play therein. So much so that it has been called by the Commission the EU’s Return Agency. But does Frontex deserve this title?
The EU has, since 2015, been on a quite resolute path to intensify returns, increase their efficiency and bring quantifiable results that will drastically reduce the number of undocumented migrants in EU territory.97 The most recent steps on this path also include the proposed recast of the Returns Directive and the expansion and interoperability of EU databases.98 Indicatively, the Commission’s new Pact on Migration and Asylum proposes linking the asylum and deportation decisions. A deportation order will be automatically issued upon the communication of a negative asylum decision.99 In a further attempt to increase efficiency, the deportation order and the asylum decision will be subject to the same appeal procedure.100 Furthermore, the EU Return Directive recast proposal has significant ommissions that create increased risks for fundamental rights violations.101
It is in this environment that Frontex received its increased mandate in order to take a center-stage role in this effort. Frontex already returns around 10,000 irregularly staying migrants a year, and its return operations increased by 95% in the period 2015–2016. The newest amendment of its mandate, the 2019 Regulation significantly enhances its mandate and capacities in pre-return and return-related activities. The increased mandate and budget represent an ambitious plan for returns, which includes a larger role for Frontex in return operations and a significant increase in return flights and deportees.
Since 2019 Frontex, apart from organising, financing and coordinating return flights on its own initiative and no longer upon request of a member state, may also prepare the return decisions and provide its own return escorts and return monitors. It will also assist in the acquisition of travel documents and in the identification of irregular migrants, and it since recently supports the EU Return Coordinator. Frontex also becomes an information hub, with extended data sharing and processing powers. It acquires a new impressive budget on returns and can acquire and operate its own air, maritime and land assets, including aircrafts and vessels.
Nevertheless, the number of returns remains low compared to the number of return decisions, while due to logistical and political reasons returnees are mainly from Western Balkans. Despite the ‘iron fist’ rhetoric and the heavy operational and financial investment, returns remain particularly difficult. They are disproportionately costly for the results they produce, while they remain politically highly sensitive, touching upon human rights concerns, the cooperation of destination countries, especially in Africa (e.g. Mali), and the reaction of European civil society. The increased mandate and budget of Frontex reflect the Commission’s ambitious plans of goal for 50,000 returns per year. Whether these plans will come to fruition, however, or whether the EU’s efforts will be symbolic rather than performative remains to be seen in the coming years.
Still, two further observations are warranted with respect to the human rights implications of Frontex’s return operations. Firstly, the intensification of deportations come with increased sensitivity for human rights. In this regard, given the gaps at the national level (e.g. lack of effective forced-return monitoring and low recognition rates), Frontex return operations need to set in place the appropriate safeguards. The human rights framework becomes more robust with every amendment of the agency’s mandate.102 Nevertheless, the safeguards in place are not adequate to ensure the protection of human rights in practice. There is an urgent need to cover the remaining gaps in the existing safeguards, and set up an effective and independent return monitoring system. We can envisage a collective external monitoring instrument composed of already existing national, and possibly also international, authorities with relevant mandate and expertise, including national Ombudsmen.103 In fact, the comprehensive aforementioned feasibility study concludes that such a ‘robust and truly independent and effective human rights monitoring mechanism at the external borders of the EU by existing independent national human rights structures’ is indeed feasible.104
Secondly, studying the newly acquired powers of the agency and their effects upon fundamental rights, we may observe, firstly, a shift from a more harmonised solidarity-based, to a more centralised structure. While the agency used to rely exclusively upon the voluntary contributions of members states, it now comes closer to its original conception as a European border police corps, characterised by operational effectiveness and greater autonomy. Such enhanced powers and greater autonomy can also trigger the legal responsibility of Frontex in case of human rights violations. Frontex has a positive obligation to act upon knowledge of a violation and take action to prevent that and similar future violations. Failure to do so may result to the legal responsibility of the agency. What is more, its enhanced mandate, including the fact that operations will be carried out in the agency’s own aircrafts with the agency’s own escorts and monitors, can engage the direct responsibility of the agency for human rights violations.105
Aversa, I. and Gkliati, M. (2021). Frontex investigations: what changes in the EU border agency’s accountability? Statewatch, available at www.statewatch.org/analyses/2021/frontex-investigations-what-changes-in-the-eu-border-agency-s-accountability/.
Rankin, J. (2022). Head of EU border agency Frontex resigns amid criticisms. Fabrice Leggeri under fire over agency’s human rights record and anti-fraud investigation. The Guardian.
Mungianu, R. (2016). Frontex and Non-Refoulement. Cambridge University Press, Cam- bridge, UK.
Council Regulation (EC) 2007/2004 of 26 October 2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (Frontex Regulation).
Regulation (EU) 2019/1896 of the European Parliament and of the Council of 13 November 2019 on the European Border and Coast Guard and repealing Regulations (EU) 1052/2013 and (EU) 2016/1624 (EBCG Regulation).
Fernández-Rojo, D. (2021). EU Migration Agencies:The Operation and Cooperation of FRONTEX, EASO and EUROPOL. Edward Elgar, Cheltenham, UK; Gkliati, M. (2021). Systemic Accountability of the European Border and Coast Guard The legal responsibility of Frontex for human rights violations. EM Meijers Institute (PhD thesis); Mungianu, R. (2016). Frontex and Non-Refoulement. Cambridge University Press, Cambridge, UK.
Perkowski, N. (2012). A normative assessment of the aims and practices of the European border management agency Frontex. Refugee Studies Centre. Working Paper Series 81, pp. 21–24.
Gkliati, M. (2021). Systemic Accountability of the European Border and Coast Guard The legal responsibility of Frontex for human rights violations. EM Meijers Institute (PhD thesis); Fink, M. (2017). Frontex and Human Rights: Responsibility in “multi-Actor Situations” under the ECHR and EU Public Liability Law. The Meijers Research Institute and Graduate School of the Leiden Law School of Leiden University (Doctoral thesis); Rijpma J. (2010). Frontex: Successful Blame Shifting of the Member States?, (ARI), Real Instituto Elcano, ARI 69/2010, 13//04/2010, pp. 1–4 available at <https://www.files.ethz.ch/isn/117232/ARI69-2010_Rijpma_Frontex_Memeber_State_European_Union.pdf>.
Gkliati, M. (2022). The Next Phase of The European Border and Coast Guard: Responsibility for Returns and Push-backs in Hungary and Greece, in Evangelia (Lilian) Tsourdi, Andrea Ott, Zvezda Vankova, The EU’s Shifting Borders Reconsidered: Externalisation, Constitutionalisation, and Administrative Integration. European Papers 7(1), pp. 171–193; Pirjola, J. (2020). Complaints mechanism during return flights: the European Border and Coast Guard Agency in S. Carrera and M. Stefan (Eds.). Fundamental rights challenges in border controls and expulsion of irregular immigrants in the European Union: complaints mechanism and access to justice. Routledge, Milton Park, UK; Bossong, R. (2019). The Expansion of Frontex Symbolic Measures and Long-Term Changes in EU Border Management, SWP Comment 2019/C 47.
Majcher, I. (2015). Human Rights violations during EU border surveillance and Return Operations: Frontex’s shared responsibility or complicity? Silesian Journal of Legal Studies 7, pp. 45–78.
The Lawsuit Against Frontex. Not On Our Border Watch, available at https://www.notonourborderwatch.com/story/the-case.
Dataset available here: Deportation Union – Data.xlsx (53.3MB), https://www.statewatch.org/media/1334/deportation-union-data.xlsx.
Communication from the Commission to the European Parliament, The Council, The European Economic and Social Committee and the Committee of the Regions, The Global Approach to Migration and Mobility, COM/2011/0743 final.
Presidency Conclusions of the Brussels European Council (4/5 November 2004), 14292 /1/04.
Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, OJ L 348, 24.12.2008.
Communication from the Commission to the European Parliament, The Council, The European Economic and Social Committee and the Committee of the Regions, A European Agenda on Migration, COM/2015/0240 final, III.1.
European Commission, Statistics on Migration to Europe, Returns, https://ec.europa.eu/info/strategy/priorities-2019-2024/promoting-our-european-way-life/statistics-migration-europe_en#returns.
Communication from the Commission to the European Parliament, The Council, The European Economic and Social Committee and the Committee of the Regions, A European Agenda on Migration, COM/2015/0240 final, III.1.
Communication from the Commission to the European Parliament, The Council, The European Economic and Social Committee and the Committee of the Regions, A European Agenda on Migration, COM/2015/0240 final, III.1.
Majcher, I. (2020). The EU return system under the Pact on Migration and Asylum: A case of tipped institutional balance? European Law Journal 26, Issue 3–4, pp. 199–225, 201; Communication from the Commission to the European Parliament, The Council, The European Economic and Social Committee and the Committee of the Regions on a New Pact on Migration and Asylum, COM/2020/609 final.
Moraru, M. (2021). The New design of the EU’s return system under the Pact on Asylum and Migration, EU immigration law blog, 1, available at https://eumigrationlawblog.eu/the-new-design-of-the-eus-return-system-under-the-pact-on-asylum-and-migration/.
Gkliati, M. (2021). Returns in the core of the EU Pact on Migration and Asylum and the leading role of Frontex. Netherlands Network of Human Rights Research, available at https://www.humanrightshere.com/post/blog-series-eu-new-pact-on-migration-and-asylum1; Nielsen, N. (2021). EU Commission calls Frontex its new Return Agency. EU Observer, available at https://euobserver.com/migration/151691.
Moraru, M. (2021). The New design of the EU’s return system under the Pact on Asylum and Migration. EU immigration law blog, 1, available at https://eumigrationlawblog.eu/the-new-design-of-the-eus-return-system-under-the-pact-on-asylum-and-migration/; The EU Return Coordinator was appointed on 2 March 2022, https://twitter.com/euhomeaffairs/status/1568227115799121920.
Frontex return escorts are not always present in return flights. In 2018, for instance, 903 persons were removed with scheduled commercial flights unescorted. Jones, C., Kilpatrick, J. and Gkliati, M. (2020). Deportation Union: Rights, accountability and the EU’s push to increase forced removals, p. 35. Statewatch, London, UK.
Communication from the Commission to the European Parliament and the Council on a more effective return policy in the European Union – a renewed action plan, COM/2017/0200 final, pp. 7–8.
Council of the European Union (2016). Frontex Annual Activities report 2015. FRONT 273, COMIX 485.
See further on collecting return operations: Jones, C., Kilpatrick, J. and Gkliati, M. (2020). Deportation Union: Rights, accountability and the EU’s push to increase forced removals, p. 19. Statewatch, London, UK.
Regulation (EU) 2019/1896 of the European Parliament and of the Council of 13 November 2019 on the European Border and Coast Guard and repealing Regulations (EU) No 1052/2013 and (EU) 2016/1624.
Angelescu, I. and Trauner, F. (2018). 10,000 Border Guards for Frontex: Why the EU Risks Conflated Expectations. Institute for European Studies, available at www.ies.be/node/4756.
ProAsyl, Refugee Support Aegean (2019). Frontex: The making of a ‘super agency’, RSA and PRO ASYL analysis, available at rsaegean.org/en/the-making-of-a-super-agency/#foot notes4.
Gkliati, M. and Kilpatrick, J. (2021). Losing sight of an agency in the spotlight: Frontex cooperation with third countries and their human rights implications. Forced Migration Review, Issue 68.
Monroy, M. (2022). Status agreement with Senegal: Frontex might operate in Africa for the first time. Security Architectures in the EU, available at digit.site36.net/2022/02/11 /status-agreement-with-senegal-frontex-wants-to-operate-in-africa-for-the-first-time/.
Statewatch (2019). “Regaining control”: new powers for Frontex, p. 2. Statewatch News, available at www.statewatch.org/deportation-union-rights-accountability-and-the-eu-s-push-to-increase-forced-removals/frontex-the-eu-s-deportation-machine/regaining-control-new-powers-for-frontex/.
See further on the existing IT systems operated by Frontex: Jones, C., Kilpatrick, J. and Gkliati, M. (2020). Deportation Union: Rights, accountability and the EU’s push to increase forced removals, pp. 35–36. Statewatch, London, UK; For future developments, see, EDRi (2022). Regulating Migration Tech: How the EU’s AI Act can better protect people on the move, available at https://edri.org/our-work/regulating-migration-tech-how-the-eus-ai-act-can-better-protect-people-on-the-move/.
Council of the European Union (2019). Proposal for a [Frontex Regulation] – Revised financial statement following the Provisional Agreement between the co-legislators, 8354/19. Available at https://bit.ly/2QOUi61.
Council of the European Union (2019). Proposal for a [Frontex Regulation] – Revised financial statement following the Provisional Agreement between the co-legislators, 8354/19. Available at https://bit.ly/2QOUi61.
Council of the European Union (2019). Proposal for a [Frontex Regulation] – Revised financial statement following the Provisional Agreement between the co-legislators, 8354/19, p. 6. Available at https://bit.ly/2QOUi61.
Jones, C., Kilpatrick, J. and Gkliati, M. (2020). Deportation Union: Rights, accountability and the EU’s push to increase forced removals, p. 17. Statewatch, London, UK.
European Commission (2018). State of the Union 2018: A fully equipped European Border and Coast Guard – Questions and Answers. Press Corner, MEMO/18/5715, available at https://ec.europa.eu/commission/presscorner/detail/en/MEMO_18_5715.
Frontex (2019). Report to the EU Parliament on Frontex cooperation with third countries in 2017, p. 11. Report 2019.
Jones, C., Kilpatrick, J. and Gkliati, M. (2020). Deportation Union: Rights, accountability and the EU’s push to increase forced removals, p. 27. Statewatch, London, UK.
Council of the European Union (2019). Proposal for a [Frontex Regulation] – Revised financial statement following the Provisional Agreement between the co-legislators, 8354/19, p. 6.
Jones, C., Kilpatrick, J. and Gkliati, M. (2020). Deportation Union: Rights, accountability and the EU’s push to increase forced removals, p. 26. Statewatch, London, UK.
Jones, C., Kilpatrick, J. and Gkliati, M. (2020). Deportation Union: Rights, accountability and the EU’s push to increase forced removals, p. 23. Statewatch, London, UK.
Jones, C., Kilpatrick, J. and Gkliati, M. (2020). Deportation Union: Rights, accountability and the EU’s push to increase forced removals, pp. 21–23. Statewatch, London, UK.
Jones, C., Kilpatrick, J. and Gkliati, M. (2020). Deportation Union: Rights, accountability and the EU’s push to increase forced removals, p. 24. Statewatch, London, UK.
For the political benefits of charter flights, see Jones, C., Kilpatrick, J. and Gkliati, M. (2020). Deportation Union: Rights, accountability and the EU’s push to increase forced removals, p. 24. Statewatch, London, UK.
Frontex (2019). European Centre for Returns, p. 3, available at frontex.europa.eu/assets /Publications/General/EU_Centre_For_Returns_2019.pdf.
Jones, C., Kilpatrick, J. and Gkliati, M. (2020). Deportation Union: Rights, accountability and the EU’s push to increase forced removals, p. 25. Statewatch, London, UK.
Frontex (2018). Programming Document 2019–2021, p. 89.
Poland-Warsaw: Returns by Scheduled Flights supported by Frontex 2019/S 053-120796 Contract award notice Results of the procurement procedure Services, available at https://ted.europa.eu/udl?uri=TED:NOTICE:120796-2019:TEXT:EN:HTML&src=0.
Poland-Warsaw: Short Notice Chartering of Aircraft for Frontex Operational Activities 2020/S 085-200085 Contract award notice. Results of the procurement procedure Services, available at https://ted.europa.eu/udl?uri=TED:NOTICE:200085-2020:TEXT:EN:HTML.
Gayle, D. (2019). Stansted 15: no jail for activists convicted of terror-related offences. Judge says group ‘didn’t have a grievous intent as some may who commit this type of crime’. The Guardian.
ITF (2018). Press Release: ITF calls on global airlines to refuse to assist in forced deportations, available at www.itfglobal.org/en/news/itf-calls-on-global-airlines-to-refuse-to-assist -in-forced-d.
UNHCR (2019). Global Trends. Forced Displacement in 2018, available at www.unhcr.org /5d08d7ee7.pdf.
Gkliati, M. (2011). Blocking Asylum: The Status of Access to International Protection in Greece. Inter-American and European Human Rights Journal 4(1–2), p. 102; Parliamentary Assembly of the Council of Europe, Resolution 1932, (2013). Frontex: human rights responsibilities. Parliamentary Assembly of the Council of Europe, p. 11.
Kingsley, P. (2016). Syrian refugees: we were tricked into returning to Turkey. The Guardian.
Amnesty International (2017). A Blueprint for Despair. Human Rights Impact of the EU- Turkey deal, available at www.amnesty.nl/content/uploads/2017/02/EU-Turkey-Deal-Briefing.pdf?x87333.
The Lawsuit Against Frontex. Not On Our Border Watch, available at https://www.notonourborderwatch.com/story/the-case.
Gkliati, M. (2022). The Next Phase of the European Border and Coast Guard: Responsibility for Returns and Push-backs in Hungary and Greece. European Papers; UNHCR (2019). Hungary’s coerced removal of Afghan families deeply shocking, available at www.unhcr.org/news/press/2019/5/5cd3167a4/hungarys-coerced-removal-afghan-families-deeply-shocking.html.
European Parliament, Frontex Scrutiny Working Group report, Report on the fact-finding investigation on Frontex concerning alleged fundamental rights violations 14.07.2021.
Case C-808/18, Commission v Hungary, ECLI:EU:C:2020:1029.
Frontex CF (2016). Recommendation by the Consultative Forum to the Executive Director and Management Board of the European Border and Coast Guard Agency, available at www.balkaninsight.com; Frontex (2017). Frontex Observation, field visit to Hungary 13–15 March 2017, available at www.asktheeu.org; Frontex CF (2016). Fourth Annual Report; Frontex (2017). 13th Meeting, available at www.asktheeu.org.
Article 46 EBCG Regulation.
Charter of Fundamental Rights of the European Union, OJ C 83/02, 30.03.2010.
Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, OJ L 348, 24.12.2008, pp. 98–107.
The Commission called for heightened vigilance when assessing the possibility of supporting Hungary in return-related activities. European Parliament, Frontex Srutiny Working Group report, Report on the fact-finding investigation on Frontex concerning alleged fundamental rights violations 14.07.2021.
Guild, E., Carrera, S., Den Hertog, L. and Parkin, J. (2011). Implementation of the EU Charter of Fundamental Rights and its Impact on EU Home Affairs Agencies: Frontex, Europol and the European Asylum Support Office (EASO), p. 61. European Parliament Civil Liberties, Justice and Home Affairs Department.
Keller, S., Lunacek, U., Lochbihler, B. and Flautre, H. (2011). Frontex Agency: Which Guarantees for Human Rights?, p. 17. Migreurop, Paris, France.
Statewatch and Migreurop (2012). FRONTEX Fundamental Rights Strategy: joint submission to the Ombudsman of the European Union, p. 10. Available at www.statewatch.org/analyses/no-193-eu-ombs-inquiry-frontex-evidence.pdf.
European Committee on the Prevention of Torture, CPT/Inf (2019) 14, Section: 12/18, 03/12/2018, Germany: Visit 2018 (return flight) section 60.
OLAF (2021). Final Report, CASE No OC/2021/0451/A1, Olaf.03(2021)21088, available at cdn .prod.www.spiegel.de/media/00847a5e-8604-45dc-a0fe-37d920056673/Directorate_A_redacted-2.pdf.
Office of the High Commissioner for Human Rights (2020). Press Release: Greece: Rights violations against asylum seekers at Turkey-Greece border must stop – UN Special Rapporteur, available at www.ohchr.org/en/press-releases/2020/03/greece-rights-violations-against-asylum-seekers-turkey-greece-border-must.
Gkliati, M. (2022). What’s in a Name? Fragments of Accountability and the Resignation of the Frontex Executive Director. Verfassungsblog, available at verfassungsblog.de/whats-in-a-name/.
Fundamental Rights Agency (2018). The revised European Border and Coast Guard Regulation and its fundamental rights implications. European Union Agency for Fundamental Rights.
FINAL REPORT Fundamental Rights Officer Complaint CMP-2020-00013, document in file with the author.
European Commission (2017). The effectiveness of return in EU Member States, pp. 42–43.
Carrera, S. and Stefan, M. (2018). Complaint Mechanisms in Border Management and Expulsion Operations in Europe: Effective Remedies for Victims of Human Rights Violations?, p. 38. Centre for European Policy Studies, Brussels, Belgium; FRA (2016). Forced return monitoring systems, p. 7. European Union Agency for Fundamental Rights, Vienna, Austria.
FRA (2018). The revised European Border and Coast Guard Regulation and its fundamental rights implications. European Union Agency for Fundamental Rights, p. 13. European Union Agency for Fundamental Rights, Vienna, Austria.
Jaeger, M., Fotiadis, A., Guild E. and Vidović, L. (2022). Feasibility Study on the Setting up of a Robust and Independent Human Rights Monitoring Mechanism at the External Borders of the European Union, p. 7.
Carrera, S. and Stefan, M. (2018). Complaint Mechanisms in Border Management and Expulsion Operations in Europe: Effective Remedies for Victims of Human Rights Violations?, pp. 38–39. Centre for European Policy Studies, Brussels, Belgium.
Jones, C., Kilpatrick, J. and Gkliati, M. (2020). Deportation Union: Rights, accountability and the EU’s push to increase forced removals, p. 50. Statewatch, London, UK.
See also, Alpes, M.J. and Majcher, I. (2020). Who Can Be Sustainably Reintegrated After Return? Using Post-Return Monitoring for Rights-Based Return Policies. UNU Institute on Comparative Regional Integration Studies, Bruges, Belgium; Pirjola, J. (2015). Flights of Shame or Dignified Return? Return Flights and Post-Return Monitoring. European Journal of Migration and Law 17(4), pp. 305–328, pp. 326–328.
Nielsen, N. and Fotiadis, A. (2019). Inhumane Frontex forced returns going unreported. EU Observer, available at euobserver.com/migration/146090; European Parliament, Frontex Srutiny Working Group report, Report on the fact-finding investigation on Frontex concerning alleged fundamental rights violations 14.07.2021.
Pirjola, J. (2020). Complaints mechanism during return flights: the European Border and Coast Guard Agency in S. Carrera and M. Stefan (Eds.). Fundamental rights challenges in border controls and expulsion of irregular immigrants in the European Union: complaints mechanism and access to justice. Routledge, Milton Park, UK.
Greek Ombudsman (2017). Migration Flows and Refugee Protection. Administrative Challenges and Human Rights Issues, p. 37.
European Commission for the Prevention of Torture, CPT/Inf (2019) 14, Section: 12/18, 03/12/2018, Germany: Visit 2018 (return flight) section 60.
Article 52 EBCG Regulation.
OP-CAT Convention against Torture.
Jaeger, M., Fotiadis, A., Guild E. and Vidović, L. (2022). Feasibility Study on the Setting up of a Robust and Independent Human Rights Monitoring Mechanism at the External Borders of the European Union, p. 59.
Keller, S., Lunacek, U., Lochbihler, B. and Flautre, H. (2011). Frontex Agency: Which Guarantees for Human Rights?, p. 17. Migreurop, Paris, France.
Frontex (2018). Code of Conduct for Joint Return Operations Coordinated by Frontex, available at frontex.europa.eu/assets/Publications/General/Code_of_Conduct_for_Joint_Return_Operations.pdf.
Frontex (2016). Guide for Joint Return Operations by Air coordinated by Frontex, available at frontex.europa.eu/publications/guide-for-joint-return-operations-by-air-coordinated-by-frontex-PkKeDV.
Further information on the means of restraint used during joint return operations, at Jones, C., Kilpatrick, J. and Gkliati, M. (2020). Deportation Union: Rights, accountability and the EU’s push to increase forced removals, p. 46. Statewatch, London, UK.
Art. 28(3) EBCG Regulation only makes reference to proportionate use of means of constraints.
FRA (2018). The revised European Border and Coast Guard Regulation and its fundamental rights implications. European Union Agency for Fundamental Rights, p. 13. Available at fra.europa.eu/sites/default/files/fra_uploads/fra-2018-opinion-ebcg-05-2018_en.pdf.
European Commission (2015). EU Action Plan on return, COM453 final, 9 September 2015.
Majcher, I. and Strik, T. (2021). Legislating without Evidence: The Recast of the EU Return Directive. European Journal of Migration and Law 23(2), pp. 103–126; Jones, C., Kilpatrick, J. and Gkliati, M. (2020). Deportation Union: Rights, accountability and the EU’s push to increase forced removals, pp. 1–2. Statewatch, London, UK.
Proposal for Art. 35a of the Asylum Procedure Regulation. Amended proposal for a Regulation of the European Parliament and of the Council establishing a common procedure for international protection in the Union and repealing Directive 2013/32/EU, COM(2020) 611 final.
Proposal for Art. 35a of the Asylum Procedure Regulation. Amended proposal for a Regulation of the European Parliament and of the Council establishing a common procedure for international protection in the Union and repealing Directive 2013/32/EU, COM(2020) 611 final; see further Moraru, M. (2021). The New design of the EU’s return system under the Pact on Asylum and Migration, EU immigration law blog, 1, available at https://eumigrationlawblog.eu/the-new-design-of-the-eus-return-system-under-the-pact-on-asylum-and-migration/.
Majcher, I. and Strik, T. (2021). Legislating without Evidence: The Recast of the EU Return Directive. European Journal of Migration and Law 23(2), pp. 103–126.
Strik, T. (2021). Fundamental Rights at the cornerstone of Schengen. European Journal of Migration and Law 23(4), pp. 508–534, p. 528.
Gkliati, M. (2021). Systemic Accountability of the European Border and Coast Guard The legal responsibility of Frontex for human rights violations, p. 300. EM Meijers Institute (PhD thesis).
Jaeger, Markus, Fotiadis Apostolis, Guild Elspeth, and Vidović Lora, Feasibility Study on the Setting up of a Robust and Independent Human Rights Monitoring Mechanism at the External Borders of the European Union, 2022, p. 63.
For a more extensive analysis of the responsibility of Frontex for human rights violations during return operations see, Mariana Gkliati, The Next Phase of The European Border and Coast Guard: Responsibility for Returns and Push-backs in Hungary and Greece, in Evangelia (Lilian) Tsourdi, Andrea Ott, Zvezda Vankova, The EU’s Shifting Borders Reconsidered: Externalisation, Constitutionalisation, and Administrative Integration, European Papers, Vol. 7, 2022, No 1, pp. 171–193.