Pushbacks - could more Frontex, not less, be solution?

Frontex must show that it can help and support national border guards, but it must also ensure that the fundamental rights of migrants are respected.

We have seen that this is not easy and that lines have been crossed. In April 2022, the former executive director of Frontex, Fabrice Leggeri, resigned over accusations of misconduct and a lack of transparency and accountability.

Most notably, Frontex was accused of complicity in illegal pushbacks of asylum seekers from Greece to Turkey.

In a new analysis published by the Swedish Institute for European Policy Studies (SIEPS), I have asked how Frontex can make sure that this does not happen again.

I suggest that Frontex could either pursue a policy of withdrawal or non-engagement in member states where risks of fundamental rights violations arise. Or seek to do the opposite: try to show its presence and engage as much as possible to prevent possible violations or at least document and report them.

Many critics of Frontex are pushing for the first option, and not without reason they point to Article 46 of the Frontex regulation, which says that the executive director can suspend, not start, or terminate, operations where serious violations of fundamental rights or international protection obligations happen.

Frontex partly pulled out of Hungary once and there have been calls to leave Greece, where is has one of its biggest operations.

If Frontex pulls out, it can keep its fundamental rights record cleaner, but is that a desirable scenario for people trying to cross the EU borders? What would happen if Frontex were not present?

Border support by military forces or private contractors do not seem to be better alternatives as regards accountability and fundamental rights compliance.

Not getting help from the EU at all does not appear a satisfactory solution either because national border guards that come under stress are more likely to resort to harsh measures than well-staffed and well-supported structures. There would also be fewer eyes to see what is going on.

Clear conditions

The other option, staying or even engaging more, could therefore be better. But there must be clear conditions:

internal fundamental rights monitoring and reporting, including a reliable complaints mechanism for people affected by Frontex' operations, need to be further strengthened; problems and incidents must be documented, followed-up and acted upon.

There is also a need for more transparency and openness. The European Parliament has already become more actively involved, not least through its Frontex Scrutiny Working Group.

But democratic control should be broadened. The workload of MEPs can make it difficult for them to fulfil their oversight task alone. National parliaments should be involved to a greater degree as well.

The EU should establish an independent system for monitoring human rights compliance at its borders. Frontex could also work together with national bodies that carry out monitoring, such as national human rights watchdogs or ombudsmen.

Cooperation with international bodies such as the Council of Europe could be useful, too, but they would need to do more than occasional inspections.

In the long run, political decision-makers might envisage a reversal of Article 46 of the Frontex Regulation. Instead of suggesting withdrawal from member states where risks of fundamental rights violations arise, it would demand that Frontex increases its presence in such places to prevent misconduct and ensure respect for fundamental rights.

An even more visionary idea would be to deploy Frontex to member states even when they do not request a Frontex operation. Again, however, this would require well-functioning oversight and democratic control structures and would have to be linked to a standardised EU system of screening and registering asylum seekers at border crossing points and then referring them to asylum procedures with appropriate safeguards.

Finally, we need to consider the political environment in which Frontex operates.

Border security is often misunderstood as meaning that borders should be impenetrable. In a political climate where migration is a toxic issue and where a major political goal is to stop asylum seekers from arriving in the EU at almost any cost, not all politicians will be enthusiastic about reviewing or questioning deterrence practices at the borders.

If we want to prevent Frontex from being submerged by a one-sided logic of deterrence, civil society, academics, and the media must continue to raise attention to problems and propose solutions to make sure that the borders of the EU do not become zones of lawlessness.