Frontex operations Interception under International and European Law

Frontex operations Interception under International and European Law Master Thesis European and International Public Law August 2009 mr. dr. H. Oosterom-Staples Author: Ralph Severijns ANR: 180106 0

Table of Contents Chapter 1: An Introduction... 3 1.1. The situation at the external borders... 3 1.2. The Creation of an Agency... 4 1.3. Jurisdiction... 6 1.4. Refugee Protection in and near the European Union... 7 1.5. Research Question... 8 Chapter 2: Establishing the different roles in border operations... 9 2.1. Background... 9 2.1.1. Tampere... 10 2.1.2. The Hague... 10 2.1.3. Integrated Border Management (IBM)... 11 2.1.4. Schengen Borders Code... 13 2.2. Operations by Frontex... 15 2.2.1. Examples of Operations at the Southern External Border... 16 2.2.2. The Role of Frontex... 19 2.2.3. Different scenarios... 21 Chapter 3: Jurisdiction... 23 3.1. The Law of the Sea... 26 3.1.1. Main notions... 26 3.1.2. The Territorial Sea... 26 3.1.3. High Seas... 27 3.1.4. Distress at sea... 29 3.2. Extraterritorial application of the ECHR... 30 3.2.1. Within their jurisdiction... 31 3.2.2. Effective control jurisdiction... 32 3.2.3. Ad Hoc Jurisdiction... 34 3.2.4. Jurisdiction and Interception... 35 3.3. Extraterritorial application of Article 33 Refugee Convention... 37 3.4. Preliminary Conclusion... 41 3.5. Community Law... 43 1

Chapter 4: Refugee Protection... 44 4.1. The 1951 Refugee Convention... 44 4.1.1. Refoulement and the 1951 Refugee Convention... 47 4.2. Refoulement and the European Convention on Human Rights (ECHR)... 50 4.3. Community Law... 53 4.3.1. The Treaty Basis... 53 4.3.2. Qualification Directive (QD)... 54 4.3.3. The Procedures Directive (PD)... 59 4.4. Preliminary conclusions... 64 Chapter 5: Conclusion... 65 5.1. Scenario 1... 66 5.2. Scenario 2... 67 5.3. Scenario 3... 67 5.4. Conclusion... 67 Bibliography... 68 2

Chapter 1: An Introduction 1.1. The situation at the external borders On 1 October 2008 a group of 229 Africans was brought to the harbour of Los Cristianos, Tenerife, by a Spanish rescue boat. Never before did so many people reach the Canary Islands on one vessel. The passengers, all male, were rescued after their 30 meters long fishing boat was discovered by a patrolling aircraft roughly 100 kilometres from the Canary Islands 1, one of the external borders of the European Union. Among the passengers were at least 20 children. They had been at sea for at least four days. Although this is an extreme example, reports on persons taking risks to enter the European Union appear in newspapers on a regular basis. In this particular instance the persons tried to reach the Canary Islands from Mauretania. This incident does not stand on its own. Migrants try to reach the coasts of the Member States of the Europe Union by different routes on a regular basis, especially during spring and summer. Because of their geographical location the Canary Islands surrounded by the Atlantic Ocean, Malta, Cyprus and the Spanish, Italian and Greek Islands in the Mediterranean Sea are much sought ports of first entry. The following picture provides an overview of the six main routes that migrants use when trying to reach the shores of the European Union by sea 2. 1 http://www.nrc.nl/buitenland/article2005084.ece/229_afrikanen_op_een_bootje. 2 D. van Moppes, The African Migration Movement: Routes to Europe, Working papers Migration and Development series Report No. 5, Research Group Migration and Development (Department of Human Geography) Radboud University, Nijmegen, The Netherlands in collaboration with the Ministry of Foreign Affairs, the Ministry of Social Affairs and Employment, The Hague, The Netherlands, and the Netherlands 3

As a result islands such as Lampedusa, and even Malta, are increasingly being identified with the arrival of so-called boat people, and are even becoming famous for it. Dubious that fame may be. 1.2. The Creation of an Agency When looking at the photo s accompanying the newspaper article mentioned in the previous section, one starts to wonder about the futures of these passengers. They seem lost and confused, not sure about what is going to happen to them. No idea where they will sleep that night. They seem as confused as the policy makers in the European Union who are trying to come up with a way to deal with these people, without violating national, European or international obligations. As we all know Schengenland has become a reality. The internal borders of the Schengen Members have been abolished, rendering controls at the internal borders obsolete as they are replaced by controls at the external borders. As a counterweight the Schengen Borders Code, effectively replacing the 1985 Schengen Agreement and the 1990 Schengen Implementing Agreement was adopted by the European Parliament and the Council in 2006. The Schengen Borders Code (SBC) sets out the rules governing border controls on persons crossing the external borders of the Member States of the European Union 3. It is the legal document that harmonises the conditions under which people can legally enter the EU, but also the document that lays down the conditions under which a person can be denied access to the EU territory. 4 Whereas the SBC can be seen as the defensive wall of the Fortress Europe, the European Union has devised a more comprehensive plan to regulate the entry into its territory. When comparing the EU to a medieval kingdom, one could say that the Kingdom of Europe is comprised of 27 befriended princes, the Member States, falling under a common king, seated in Brussels, called the EU. In order to guarantee the wellbeing of this kingdom, the King has not only built a big wall, but also made sure that his moat is well guarded. Because one does not have to defend a wall when one has no enemies the King has established difficult, but somewhat friendly, relationships with some of its neighbouring countries. Finally, in an Interdisciplinary Demographic Institute (NIDI), The Hague, The Netherlands, 2006, available at: http://socgeo.ruhosting.nl/html/files/migration/migration5.pdf. 3 Article 1, Regulation 562/2006/EC of the European Parliament and the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code, or SBC), OJ EU 2006, L 105/1. 4 Articles 5 and 13 SBC. 4

attempt to harmonise the actions of his princes, and to create a feeling of solidarity the King has erected a special Agency to coordinate the actions of the different princes. In the context of the Europe Union, these actions outside the EU borders are called the External Dimension of the EU policies on Border Management and the Agency has been named Frontex. The European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union, Frontex full name, is one of the means to control irregular migration and therefore to deal, among other, with the so-called boatpeople arriving at the European Union s external borders. Frontex was established by Council Regulation 2007/2004 5. The seat of Frontex is based in Warsaw, Poland, as was decided on April 25, 2005 by Council Decision 2005/358/EC 6. The legal basis of its founding Regulation can be found in Article 62 section 2 sub a and Article 66 of Title IV of the EC Treaty on Visas, Asylum, Immigration and Other Policies Related to Free Movement of Persons. Articles 62 and 66 EC obligate the Member States to put in place binding standards and procedures in order to regulate the crossing of the external borders of the Member States, and to ensure cooperation between the relevant departments of the administrations of the Member States in the areas covered by Title IV EC, as well as between those departments and the Commission. The tasks of FRONTEX are listed in Chapter II of the Regulation. According to Article 2 of the Regulation the main tasks are to; Coordinate operational cooperation between Member States in the field of management of external borders; Assist Member States on training of national border guards, including the establishment of common training standards; Carry out risk analysis; Follow up on the development of research relevant for the control and surveillance of external borders; Assist Member States in circumstances requiring increased technical and operational assistance at external borders; 5 Council Regulation 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, OJ EU 2004, L 349/1 (the Regulation). 6 Council Decision 2005/358/EC of 26 April 2005 designating the seat of the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union, OJ EU 2005, L 114/13. 5

Provide Member States with the necessary support in organizing joint return operations. The focus in this thesis will be on the first task of the Agency, the coordination of cooperation between the Member States in the field of external border management, and will primarily address the actions in the southern external sea borders. With the establishment of Frontex a new player has been introduced to the field of border control. This has not made it easier to establish who does what in relation to external border controls and, more important, it has made it increasingly difficult to establish who is responsible for the treatment of the people trying to reach the European Union s territory by sea. In Chapter two the different roles and current actions taken in relation to border control will be investigated. 1.3. Jurisdiction In a way the people from the example in section 1.1 who were brought to the Canary Islands are the lucky ones. They were rescued and were brought to the territory of the European Union and will be provided with a basic form of medical care and housing. But what about the people who do not make it to the shores of the EU? In Chapter 3 it will be investigated why people do not reach their desired location. In recent years the European Union has adopted measures and regulations in order to prevent migrants reaching the Europe Union. Through the introduction of pre-border checks and cooperation with African countries of transit and origin, the European Union is trying to find a way to combat irregular migration beyond its territory. One of the ways in which these pre-border checks take form is the guarding of the open seas and the territorial waters of third countries. By intercepting and deflecting vessels that carry irregular migrants, the Member States prevent migrants from reaching their territory. The question that rises, and that will be answered in Chapter 3, is if this system takes into account that amongst the people risking their lives to reach the European Union there are people who are in need of international protection. In other words, does the European Union take into account the needs of asylum seekers and refugees who fear for their lives and therefore decide to flee their home countries? To deal with this question first the Law of the Sea will be discussed to establish which rules are applicable in different parts of the Sea, as well as to determine when and where the Member States and/or the European Union have jurisdiction over these people at Sea, and 6

whether therefore European Community Law, Human Rights law and/or international Refugee Law is applicable to their actions. 1.4. Refugee Protection in and near the European Union When looking back at the before mentioned picture one can also see that it were indeed human beings who were rescued. One can see if someone is male (or female), young or old, white or black. However, what does not show by only looking at the faces of these people is which qualification these people should be given. Were they fishing? Probably not. Did they win tickets for a pleasure cruise? Unlikely. Are they irregular migrants? Possibly. Or are they people in need of international protection? Who can tell? Spanish authorities will try to establish their nationalities. Those identified will be repatriated, while others will be released on to the streets, but with no official status in Spain 7. The fundamental question that Chapters 3 and 4 will endeavour to answer is whether or not the manner in which Member States deal with these mixed flows of migrants arriving at their borders is acceptable according to the current rules on refugee protection. After establishing in Chapter 3 whether or not the European Union and/or the Member States have jurisdiction over the people arriving by irregular means at their southern external border, the substance of the rules on refugee protection shall be dealt with in Chapter 4 of this thesis. The question that will be answered in Chapter 4 is; What is the content of the applicable rules on refugee protection regarding persons arriving at the European Union s borders? To answer this question the protection guarantees stemming from the 1951 Refugee Convention and European rules on Refugee protection will be discussed. The most important principle of refugee protection has been laid down in Article 33(1) of the 1951 Refugee Convention. It reads: No Contracting State shall expel or return a refugee in any manner whatsoever to the frontiers of territories where his life of freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. A similar obligation follows from Article 3 of the European Convention on Human Rights, to which the Member States are party and which has to be respected by the European 7 http://news.bbc.co.uk/2/hi/europe/7644936.stm. 7

Union by virtue of Article 6(2) EU. Secondly the European Union s rules on refugee protection in the Qualification and Procedures Directives will be discussed. 1.5. Research Question The main question of this thesis that will be answered in Chapter 5 is; Are the Member States of the European Union responsible to offer protection to migrants who are intercepted or deflected at Sea In this final Chapter the information of the previous sections will be applied to the actions of FRONTEX. If the conclusion is that the current practice cannot live up to the guarantees as set out in law, these shortcomings will be identified and recommendations will be provided. 8

Chapter 2: Establishing the different roles in border operations 2.1. Background The opening of the Iron Curtain and the fall of the Soviet Union coincided with European efforts to push forward European integration. On the one hand, policy makers in Europe feared a flooding of the EU by criminals and migrants- coming from the east, while, on the other hand, there were calls for further integration of the borderless internal area 8. After successful experiments such as Schengen and a borderless internal market, calls for further integration and the total abolition of internal border controls provoked a debate whether the inevitable consequence would be the conferment of powers on the Community to act on new security issues of crime and migration 9. This debate led to the adoption of the Treaty of Maastricht. In this Treaty, the pillar structure was introduced and the European Union was created. In the third pillar, asylum, immigration and international crime were listed as matters of common interest 10. Mitsiligas argued that by linking crime and immigration: the Treaty created a security continuum, under which the issue of immigration was treated as being similar to the issues arising from criminality, organized or other. 11 In 1997 the EC and EU treaties were amended by the Amsterdam Treaty 12. The Amsterdam Treaty transferred the majority of the provisions providing a legal basis for the adoption of asylum, immigration and border control measures to the first pillar, Title IV of the EC Treaty The transfer of asylum, immigration and border issues to the first pillar meant that the institutions of the European Community gained power in relation to these policy areas at the cost of national powers. It also meant that the link between criminality and migration was severed. Having said this, the overarching notion of an Area of Freedom, Security and Justice still linked the two, as follows from Article 61 EC that, amongst others, lists immigration and asylum in sections a and b and police and judicial cooperation in section e as areas in which the Council must adopt measures to progressively [establish] an area of freedom, security and justice. 8 V. Mitsiligas, Border Security in the European Union, in: A. Baldaccini, E. Guild, H. Toner, Whose freedom, security and justice?: EU immigration and asylum law and policy, Hart Publishing, 2007, Oxford, p. 360. 9 V. Mitsiligas, Border Security in the European Union, in: A. Baldaccini, E. Guild, H. Toner, Whose freedom, security and justice?: EU immigration and asylum law and policy, Hart Publishing, 2007, Oxford, p. 360. 10 V. Mitsiligas, Border Security in the European Union, in: A. Baldaccini, E. Guild, H. Toner, Whose freedom, security and justice?: EU immigration and asylum law and policy, Hart Publishing, 2007, Oxford, p. 360. 11 V. Mitsiligas, Border Security in the European Union, in: A. Baldaccini, E. Guild, H. Toner, Whose freedom, security and justice?: EU immigration and asylum law and policy, Hart Publishing, 2007, Oxford, p. 360. 12 Treaty of Amsterdam (1997), OJ EU 1997,C340/1. 9

2.1.1. Tampere In October 1999 the European Council held a meeting in Tampere on the establishment of an Area of Freedom Security and Justice. During this meeting the European Council agreed to develop common policies on asylum and immigration while taking into account the need for a consistent control of external borders to stop illegal immigration and to combat those who organise it and commit related international crimes. 13 Thus confirming that the link between criminality and migration was not severed completely. The Tampere Conclusions did not focus solely on border control and the combating of organized crime. They also stated that these common policies have to be based on principles which have to be both clear to the citizens of the Member States of the European Union and offer guarantees to people who are in need of protection and seek this in the European Union. So, at least on paper, the Amsterdam Treaty and the 1999 Tampere Conclusions catered for the possibility of both enforcement and protective measures for third country nationals 14. This balanced approach aims at full compliance with the rules on refugee protection when introducing immigration control measures. This balanced approach was, initially, greeted positively by NGO s 15. 2.1.2. The Hague In 2004 the European Council reaffirmed its priority to develop the Area of Freedom, Security and Justice. In The Hague Programme it was concluded, by the Council, that the goals of Tampere had so far been developed within the framework of a general programme in which the foundations for a common asylum and immigration policy had been laid down. In the time between the adoption of the Tampere Conclusions and the adoption of the The Hague Programme the harmonisation of external border controls had been prepared, police cooperation had been improved and the foundations for judicial cooperation on the basis of the principle of mutual recognition of judicial decisions and judgements was well advanced 16. During the five years between the adoption of the Tampere Conclusions and the adoption of the The Hague Programme, the terrorist attack in the United States on 11 September 2001 and 13 European Union: Council of the European Union, Presidency Conclusions, Tampere European Council, 15-16 October 1999, European Communities, 2000. 14 V. Mitsiligas, Border Security in the European Union, in: A. Baldaccini, E. Guild, H. Toner, Whose freedom, security and justice?: EU immigration and asylum law and policy, Hart Publishing, 2007, Oxford, p. 360. 15 A. Sianni, Interception Practices in Europe and their Implications, Refuge, Volume 21, Issue No. 4, 2003, p. 26. 16 European Union, The Hague Programme: Strengthening Freedom, Security and Justice in the European Union, 13 December 2004, JAI 559; 16054/04, p 1. 10

in Madrid on 11 March 2004 took place. This created a window of opportunity, and a sense of urgency, for the policy makers in Europe to take a more effective, joint approach to deal with cross border problems, such as irregular migration, trafficking in and smuggling of human beings, terrorism and again, organised crime, focussed on security concerns rather than fundamental rights. The objective of the The Hague Programme was to improve the common capability of the European Union and its Member States to guarantee fundamental rights, minimum safeguards and access to justice, to provide protection in accordance with the Geneva Convention on Refugees and other international treaties to persons in need, to regulate migration flows and to control the external borders of the Union, to fight organised cross-border crime and repress the threat of terrorism, to realise the potential of Europol and Eurojust, to carry further the principle of mutual recognition of judicial decisions and certificates both in civil and in criminal matters, and to eliminate legal and judicial obstacles in litigation in civil and family matters with cross-border implications. 17 More specific, the European Council stressed the importance of the further gradual establishment of the integrated management system for external borders (IBM) and the strengthening of controls at and surveillance of the external borders of the European Union. 18 It urged the Council, Commission and Member States to take all necessary measures to enable the abolition of controls at the internal borders, and welcomed the establishment of the European Agency for the Management of Operational Cooperation at the External Borders, Frontex in 2005. 2.1.3. Integrated Border Management (IBM) The concept of integrated management of the external borders of the Member States of the European Union was developed against the background of the Tampere meeting and the The Hague Programme. Integrated Border Management is: the organisation and supervision of border agency activities to meet the common challenge of facilitating the movement of legitimate people and goods while maintaining secure borders and meeting national legal requirements 19. According to the Conclusions of 4-5 December 2006 of the Justice and Home 17 European Union, The Hague Programme: Strengthening Freedom, Security and Justice in the European Union, 13 December 2004, JAI 559; 16054/04, p. 2. 18 European Union, The Hague Programme: Strengthening Freedom, Security and Justice in the European Union, 13 December 2004, JAI 559; 16054/04, p. 13. 19 Global Facilitation Partnership for Transportation and trade, The World Bank Group: Explanatory Notes, June 2005, p. 1. 11

Affairs Council, the framework for an integrated approach of external borders contains the following dimensions: 20 Border control (checks and surveillance) including risk analysis and crime intelligence; Detecting and investigating cross-border crime in cooperation with all the relevant law enforcement authorities; The four tier filter access control model, which, as stipulated in the EU Schengen Catalogue of 2002, includes measures in third countries of origin or transit, cooperation with neighbouring countries, measures of border control at the external borders and control measures within the common area of free movement; Inter-agency cooperation in border management including border guards, customs officers, police officers, and other national security officers or otherwise relevant authorities; and Coordination and coherence at the national and transnational level. Carrera claims that the guiding principle that inspires these dimensions seems to be that border management of the common Schengen external border must be integrated and must cover all border related threats that the EU is supposed to be facing. 21 The way that the EU wants to achieve this is, according to him, through the strengthening of a common area of policing which uses coercive border control and surveillance as the main tools 22. Coordination and inter-agency cooperation are viewed by Carrera as essential items for Integrated Border Management. In order to be able to achieve success in these dimensions the JHA Council, in December 2006, recognized that the following components, that it labelled the cornerstones of the progressive establishment of the Area of Freedom, Security and 20 Council of the European Union, Justice and Home Affairs, 2768 th Council Meeting, Brussels, 4-5 December 2006, Press Release, 15801/06. 21 S. Carrera, The EU Border Management Strategy: FRONTEX and the Challenges of Irregular Immigration in the Canary Islands. CEPS Working Document, No. 261, 22 March 2007, http://www.ceps.eu, p. 3. 22 S. Carrera, The EU Border Management Strategy: FRONTEX and the Challenges of Irregular Immigration in the Canary Islands. CEPS Working Document, No. 261, 22 March 2007, http://www.ceps.eu, p 1. 12

Justice, are essential parts of Integrated Border Management of the external borders. 23. These components are: 24 A common corpus of legislation, in particular the Schengen Borders Code (further: SBC) 25 as well as the Regulation on local border traffic; 26 Operational cooperation between Member States, including cooperation as coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (Frontex); 27 Solidarity between Member States and the Community through the establishment of an External Borders Fund. 28 2.1.4. Schengen Borders Code The Schengen Borders Code (SBC) sets out the rules governing border controls on persons crossing the external borders of the Member States of the European Union 29. It is the legal document that harmonises the conditions under which people can legally enter the EU, but also the document that lays down the conditions under which a person can be denied access to the EU territory. Therefore the SBC serves as a counterweight for the abolishment of the internal borders. As point 2 of the considerations of the Schengen Borders Code (SBC) states: the creation of an area in which persons may move freely is to be flanked by other measures. A common policy on the crossing of external borders, as provided for by Article 62(2) of the Treaty, is such a measure. Point 5 of its considerations states that the control of the external borders in not only in the interest of the Member State at whose external border the control is 23 Communication from the Commission to the Council: Reinforcing the management of the European Union's Southern Maritime Borders, COM (2006) 733, 30 November 2006. 24 Council of the European Union, Justice and Home Affairs, 2768 th Council Meeting, Brussels, 4-5 December 2006, Press Release, 15801/06. 25 Regulation (EC) No. 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the Movement of Persons across Borders (Schengen Borders Code), OJ EU 2006, L 105/1. 26 Regulation (EC) No. 1931/2006 of the European Parliament and of the Council of 20 December 2006 laying down rules on local border traffic at the external land borders of the Member States and amending the provisions of the Schengen Convention, OJ EU 2006, L 405/1. 27 Council Regulation (EC) No 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 (further: the Frontex Regulation), OJ EU 2004/1349/1. 28 Council Decision of 2 December 2004 establishing the European Refugee Fund for the period 2005 to 2010, OJ EU L 381/52. 29 Article 1, Regulation 562/2006/EC of the European Parliament and the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code), O.J. 13.04.2006, L 105/1. (SBC) 13

carried out, but of all Member States which have abolished internal border control 30, as it should help to prevent any threat to the internal security, public policy, public health and international relations, and to combat illegal immigration 31. Furthermore, it reaffirms the task of Frontex, that the Agency should manage the operational cooperation and assistance between Member States in relation to external border control. 32 The SBC defines the external borders as the Member States: land borders, including river and lake borders, sea borders and their airports, river ports, sea ports and lake ports, provided that they are not internal borders 33. It states that people may only cross the external borders at designated points, during set hours, provided they have the permits required by the national law of the land, and when there is no conflict with the interests of public policy and the internal security of the Member States. Third country nationals are required to be in possession of a valid travel document or documents that authorise them to cross the border 34. They must be able to justify the purpose and conditions of their intended stay. Furthermore people who want to cross the external borders must have enough resources to sustain themselves for the duration of their intended stay 35. It is required that they are not persons for whom an alert has been issued in the Schengen Information System for the purpose of refusing entry 36. Finally Member States can deny access to their territory when the person is considered to be a threat to public policy, internal security, public health or the internal relations of any of the Member States. The Schengen Borders Code does not only establish obstacles for third country nationals who wish to enter the Union, it also introduces safeguards for them. When examining whether or not the before mentioned conditions apply to a person who wants to cross the external border, border guards have to fully respect human dignity and abide by the principle of proportionality when conducting their duties, hereby restricting their activities to the objectives pursued 37. It is prohibited for the border guards to discriminate against persons on grounds of sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation while carrying out these duties 38. 30 Preamble 6 SBC 31 Preambles 6 SBC 32 Preambles 13 SBC 33 Article 2 SBC 34 Article 5(1a) SBC 35 Article 5(1c) SBC 36 Article 5(1d) SBC 37 Article 6(1) SBC 38 Article 6(2) SBC 14

Article 7 of the SBC stipulates that all persons: shall undergo a minimum check in order to establish their identities on the basis of the production or presentation of their travel documents 39. When appropriate this can be accompanied by the use of technical devises and by consulting relevant databases. In the case that a third country national does not meet the criteria laid down in Article 5(1) SBC the Member Sate will refuse the entry to the territories of the Member States without prejudice to an application of asylum. 40 This is a fundamental part of the SBC. The implications of an application of asylum for the Member States shall be discussed in Chapter 3 and 4 of this thesis. The decision to refuse entry permission has to be substantiated by giving the precise reasons for refusal by means of a standard form 41. When a person is refused entry he has the right to appeal, in accordance with national law. This appeal, however, does not have suspensive effect on the decision to refuse entry 42. As we can see from the standards included in the SBC and its Annexes, EU border management is not confined to the simple checking of passports and the prevention of illicit movement 43, but is far more complex, and does not only create duties for the Schengen Member States, but also attributes certain rights, such as the right to a written substantiated decision stating the reasons for a refusal, and a right to appeal that decision. The SBC forms the legal part of the concept of Integrated Border Management, in the next section the second dimension of IBM, operational cooperation, will be discussed, focussing on the actions in the southern external sea borders. 2.2. Operations by Frontex Operational cooperation at the external sea borders is carried out by the Member States and Frontex. The operations are planned and executed by the operations unit of the Agency. Frontex s task is to coordinate cooperation along the external border of the Member States of the European Union as well as along the external Schengen border 44. The Frontex unit responsible for coordinating these actions is divided into four sectors: three sectors dealing with respectively: the operational cooperation at the air, land and sea borders and one sector responsible for providing assistance to Member States organizing return operations. 45 The 39 Article 7(2) SBC 40 Article 13 (1) SBC 41 Article 13(2) SBC 42 Article 13(3) SBC 43 P. Hobbing, Integrated Border Management at the EU Level, in T. Balzacq and S. Carrera (eds), Security versus Freedom? A Challenge for Europe s Future, 2006, Hampshire: Ashgate, p 7. 44 http://www.frontex.europa.eu/structure/operations. 45 http://www.frontex.europa.eu/structure/operations. 15

expectations are especially high for the coordination of operations at the southern maritime border. According to Article 3 section 1 of the Frontex Regulation there are three kinds of impulses that can lead to the decision to engage in a joint operation at sea. The first impulse is a proposal of the Agency itself based on facts identified in a risk analysis. The second possibility is that a Member State makes a proposal for a joint operation or a pilot project. Frontex will evaluate the proposal before it decides whether or not it will co-finance the operation in the form of a grant (Article 3 section 4 Frontex Regulation). The last possibility is that a Member State requests an operation because it faces a particular situation requiring assistance. In the two latter instances the needs and requirements of the concrete situation are evaluated by Frontex in a risk assessment 46. The results of this assessment are then discussed with the Member States involved 47. Other Member States are then requested if they are willing to participate in the operation and specify their offers regarding personnel and material. These offers are evaluated against the background of the concrete identified needs and with the input from participating Member States the operational plan is finalized 48. The budget of Frontex was raised considerably for 2008 in order to implement measures of a longer-term nature concerning maritime patrols at the southern external borders 49. During the years 2006 and 2007 Frontex conducted 33 joint operations at sea and 10 pilot projects with different durations, ranging from several weeks to several months. 50 Most of the operations were conducted on the request of a Member State, mostly by Spain (HERA I, II, III, 2007 51 and Minerva), but also on the request of Italy (Nautilus 52 ) and Malta (Poseidon 53 ). 2.2.1. Examples of Operations at the Southern External Border As an example of joint operations at sea to protect the EU external border, the HERA, Minerva and Nautilus operations will be presented in more detail. 46 http://www.frontex.europa.eu/structure/operations. 47 http://www.frontex.europa.eu/structure/operations. 48 http://www.frontex.europa.eu/structure/operations. 49 Commission Staff Working Document - Accompanying Document to the Communication form the Commission, Report on the Evaluation and Future Development of the FRONTEX Agency, Impact Assessment, 13-2-2008, COM(2008), 148, p 8. 50 Commission Staff Working Document - Accompanying Document to the Communication form the Commission, Report on the Evaluation and Future Development of the FRONTEX Agency, Impact Assessment. 13 February -2008, COM(2008), 148, p. 8. 51 http://www.frontex.europa.eu/examples_of_accomplished_operati/art5.html. 52 http://www.frontex.europa.eu/examples_of_accomplished_operati/art6.html. 53 http://www.frontex.europa.eu/examples_of_accomplished_operati/art8.html. 16

On request of the Spanish authorities, Frontex launched operation HERA in 2006 to support that Member State in tackling the migration flow towards the Canary Island on the basis of the results of a prior fact finding mission. The legal basis of this operation was Article 8 of the Regulation. The operation consisted of two modules: expert assistance (HERA I) and joint operation at sea (HERA II) 54. HERA I was a deployment of experts from around the European Union. Their task was to identify the migrants and to establish their country of origin 55. HERA II was a joint surveillance operation. It brought together technical border surveillance equipment from several Member States with the aim to enhance the control of the Atlantic Ocean between the West African coast and the Canary Islands. In practice this meant the divergence of vessels used by the migrants on the open sea 56. According to Frontex this contributed to the reduction of human lives lost at sea during the dangerous long journey 57. The statistics show that the total number of intercepted and diverted illegal migrants close to the African Coast was 3887 58. According to the spreadsheet this meant that these people were stopped from setting off for a dangerous journey that might have cost their lives 59. HERA III was launched on the twelfth of February 2007 and continued until the twelfth of April 2007. According to the press kit released by Frontex the reason for launching the operation was the emergence of Mauritania and Senegal as points of embarkation to the Canary Islands, representing a new trend of irregular migration flows reaching the EU s external borders 60. Because of coastline surveillance in the Straits of Gibraltar, Morocco and parts of the Canaries, smugglers were forced to find new routes further south on the African coast 61. According to Frontex information more than 31.000 illegal migrants arrived at the Canary Islands from Africa in 2006, while the numbers for 2005 and 2004 were respectably, 4.571 and 8.519. In the first part of 2007, around 5000 illegal migrants reached the Canaries 62. Frontex claims that at least 1.000 illegal migrants could have drowned on sea journeys were it not for the Agency 63. With Spain as host, Frontex coordinated the operation by organizing joint patrols. Germany, Spain, France, Italy, Luxemburg and Portugal participated in the operation. The resources available were three vessels, one helicopter, three aircrafts and 54 http://www.frontex.europa.eu/examples_of_accomplished_operati/art5.html. 55 http://www.frontex.europa.eu/examples_of_accomplished_operati/art5.html. 56 http://www.frontex.europa.eu/examples_of_accomplished_operati/art5.html. 57 http://www.frontex.europa.eu/examples_of_accomplished_operati/art5.html. 58 http://www.frontex.europa.eu/gfx/frontex/files/hera-statistics.pdf. 59 http://www.frontex.europa.eu/gfx/frontex/files/hera-statistics.pdf. 60 http://www.infinitoedizioni.it/fileadmin/infinitoedizioni/rapporti/2007_sea_border_operations_1_.pdf,. 61 http://www.infinitoedizioni.it/fileadmin/infinitoedizioni/rapporti/2007_sea_border_operations_1_.pdf. 62 Frontex Press Kit, 2007 Sea Border Operations, Press kit Volume 2/11, issue 1, p. 2. 63 Frontex Press Kit, 2007 Sea Border Operations, Press kit Volume 2/11, issue 1, p. 2. 17

seventeen experts. With these resources the operating participants managed to intercept 2020, and divert 1559 illegal migrants 64. HERA 2007 started with a budget of 5.416.000 euro on the 23rd of April 2007 and continued until the 15th of June 2007. The mission was extended to the 31st of December 2007. The aim and background was similar to those of the previous HERA operations. What is interesting about this joint operation is that Frontex mentioned that it involved exhaustive air and naval surveillance of the waters close to Mauritania and Senegal in order to reinforce the early detection of migrants at sea. In total a number of 6890 illegal migrants were intercepted and 3127 diverted 65. The MINERVA operation was launched in 2007 because of high migratory pressure towards the EU s external borders at the southern coast of Spain. It was noticed that irregular migrants tried to mix in the regular flow of passengers in the seaports and boats heading towards the Costa del Sol, Almeria and the Spanish enclaves of Ceuta and Melilla. These enclaves attract many migrants due to their specific location on the African Coast. The operation was hosted by Spain, in participation with Austria, Belgium, Germany, France, Italy, the Netherlands, Poland, Portugal, Romania and the United Kingdom. The available budget was 450.000 euro, and two Coast Patrol Vessels, detectors, two dog teams, and seventeen experts were involved. During the mission 77 illegal migrants were detected in the Operational Area, 78 illegal migrants were detected out of the Operational Area, 1260 illegal migrants were intercepted, 1105 diverted and 765 falsified documents were discovered. The operation involved exhaustive border control in the seaport of Ceuta as well as the control of the coastal waters in the area of Almeria, with bigger affluence of nationals coming from Algeria and Morocco 66. Nautilus 2007 was started after risk analysis showed that the Central Mediterranean route from the Libyan and Tunisian coasts towards the Italian islands of Lampedusa, Panteleria and Sicily, and also towards Malta is a pressurised migratory route. The mentioned islands are preferred destinations for migrants due to their geographical positions. According to the analysis, the transport of illegal undocumented immigrants is organized by facilitators. Most often these facilitators are criminal groups which use old fishing vessels, fibreglass boats, as well as a variety of other maritime means of transportation. Furthermore the analysis showed that the transport usually takes place during the night and at the weekend, and originates from large cities in Libya and the North African coastal region where criminal syndicates arrange 64 Frontex Press Kit, 2007 Sea Border Operations, Press kit Volume 2/11, issue 1, p. 1. 65 http://www.infinitoedizioni.it/fileadmin/infinitoedizioni/rapporti/2007_sea_border_operations_1_.pdf. 66 Frontex Press Kit, 2007 Sea Border Operations, Press kit Volume 2/11, issue 1, p. 3. 18

to embark the migrants on boats bound for the coasts of Italy and Malta. The operation was divided in two periods of one month each, and was hosted by Malta and Spain. A wide variety of Member States took place and resources were widely available. During the mission 1182 migrants were detected inside, and 1991 outside the Operational Area. A total number of 3173 illegal migrants were intercepted 67. 2.2.2. The Role of Frontex A general overview of the tasks of Frontex was presented in the introduction to this thesis (Chapter 1, section 2.2). When looking at the documents released by Frontex, such as its annual working programme, one can establish that it is difficult to find information on the manner in which the Agency executes these tasks. No access to more detailed documents on its activities and operations, such as training manuals or relevant risk analyses after operations 68 have been made public. The information that is publicly available, can mainly be found in the Frontex annual reports, and its website. With limited information available it is difficult to establish the precise scope of the role that Frontex assumes in these operations. What should be kept in mind is that Frontex only coordinates external border operations. It does not have vessels of its own and is reliable on the resources and personnel which are made available by the Member States, through a pooling system. Each mission is headed by one of the Member States. Frontex brings together the countries willing, and the resources available in order to execute the planned mission. The Member States that participate in Frontex missions are all signatories to international conventions. They maintain full command over their own personnel and material during operations and therefore have the primary responsibility towards protecting refugees 69, when intercepting persons at sea. The primary and legal responsibility for controlling the external border, thus, still remains with the individual Member State, because they are the ones that have undertaken to respect international obligations involved in external border management. However, this does not alter the fact that the Europe Union, through its External Border Agency, is increasingly playing a part in the management of the EU external borders 70. Not surprisingly, nongovernmental organisations, such as European Council for Refugees and Exiles (ECRE) and 67 Frontex Press Kit, 2007 Sea Border Operations, Press kit Volume 2/11, issue 1, p. 5. 68 Report from the European Council on Refugees and Exiles (ECRE): Defending Refugees Access to Protection in Europe, December 2007. http://www.ecre.org/files/access.pdf, p 12. 69 Report from the European Council on Refugees and Exiles (ECRE): Defending Refugees Access to Protection in Europe, December 2007. http://www.ecre.org/files/access.pdf, p 13. 70 Report from the European Council on Refugees and Exiles (ECRE): Defending Refugees Access to Protection in Europe, December 2007; http://www.ecre.org/files/access.pdf, p. 10. 19

Human Rights Watch, have been critical of the role assumed by Frontex 71. According to Human Rights Watch: Migration and asylum policies remain focused on keeping irregular migrants, including children, out of the EU and removing those who are present rather than ensuring their rights are protected 72. Asked to provide evidence in a House of Lords inquiry on Frontex, Mr. Faull, the Director- General for Justice, Freedom and Security, testified that in his view the legal framework in which Frontex operates does indeed allow for an adequate level of transparency and accountability of the Agency 73. He admitted that the Agency is not as transparent as some NGO s would want it to be, but, according to him, that is largely because the intelligence that is used for risk analysis, which is the basis for the operations, is intelligence delivered by the Member States, which is classified information on a national level as well. He continued to state that: All decisions that may need to be taken during a joint operation, such as denial of entry, interception of vessels suspected of carrying illegal immigrants, search and rescue, granting of access to international protection, are taken by a Member State, not by Frontex itself, and those decisions are subject, of course, to all relevant provisions of European and International Law 74. However, Faull does admit that this raises questions with regard to the transparency of Frontex. ECRE, in the same inquiry recognizes this dilemma, but is quick to add that at present there is no independent monitoring of the workings of Frontex, and therefore no way of knowing whether the persons who came in contact with Frontex coordinated border guards wanted or attempted to seek asylum 75, or were in need of protection. In its 2008 annual working programme, Frontex does mention the number of missions that have taken place, on whose request the missions took place, with what budget the operations took place and the number of irregular migrants intercepted. But it is not possible to conclude from that information whether or not potential protection issues are taken into account during the planning and coordination of the mission, where the interceptions take place, how many 71 See for example: http://www.hrw.org/en/world-report-2009/european-union/, http://www.ecre.org/resources/ecre_actions/955. 72 http://www.hrw.org/en/world-report-2009/european-union. 73 House of Lords Frontex Report: http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/60/60.pdf, p 83. 74 House of Lords Frontex Report: http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/60/60.pdf, p 84. 75 House of Lords Frontex Report: http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/60/60.pdf, p182. 20

asylum seekers were found and granted or denied asylum. It is obvious that Frontex plays a key role while planning and executing a mission. Therefore it is too easy to maintain that Frontex has no responsibilities at all. They should, at least, monitor whether or not Member States comply with the relevant rules on refugee protection- when participating in a Frontex mission. 2.2.3. Different scenarios Because it is impossible to establish how the operations executed under the coordination of Frontex take place with any certainty, it is impossible to establish beyond any doubt which parties to the operations, the Member State requesting the operation, the Member States assisting the operation, or Frontex can be held accountable byintercepted people under European or International Law, what the content of these responsibilities is, and which rights are in danger of being violated. This is especially important because if the Member States do not take protection issues into account during their missions, there is a big risk that the border control policies, whereof Frontex is a part, undermine the possibilities of refugees to ask for asylum and seek protection in the European Union, which is, as stated above, contrary to the goals of Tampere and the The Hague Programme, Article 6(2) EU and Article 63(1) EC. Would this be the case than the joint actions at sea could indeed amount to a violation of European and/or International Law. In order to tackle this problem one has to resort to envisioning different scenarios of possible actions that could take place during the Frontex missions. 1. Migrants are intercepted during a joint mission. Patrolling officers of the Member State board the vessel with the people trying to reach the territory of the European Union. 2. The vessel is deflected during a joint mission. There is no physical contact between the patrolling officers and the people on the vessel trying to reach the territory of the European Union. 3. Migrants are rescued from sea. The people are taken on board by the patrolling officers and taken to a safe place. In the next two chapters it will be investigated whether or not Member States and/or Frontex assume jurisdiction over persons who are intercepted during a Frontex mission. After it is established whether or not there is jurisdiction, it will be discussed which obligations arise for 21