Border Control in Europe: Frontex and the EU’s Migration
Introduction
In 2015, more than one million asylum seekers arrived on the shores of southern Europe via Mediterranean routes, the highest annual number of asylum seekers in the continent since 1985.1 In the years that have passed, the influx of asylum seekers from the Middle East and Africa, whose point of entry to the continent is often Greece, Italy, or Spain, has put to test the reception apparatus of the European Union, with as many as 541,600 people needing search and rescue operations between 2015 and early 2022.2
Among the instruments member states and EU agencies adopted to face these unprecedented numbers of asylum seekers were defence and surveillance systems that were deployed at the outermost borders of the bloc, such as the European Border Surveillance System (Eurosur). Likewise, the mandate of the European Agency for the Management of Operational Cooperation at the External Borders was expanded in 2016, and it was renamed the European Border and Coast Guard Agency, referred to as Frontex.3 Given the far-reaching implications of these systems regarding the EU’s accountability mechanisms, as well as the extent of Frontex’s operational capacity, it is important to assess their functions against their initially stated goal of “[ensuring] a high level of internal security within the Union.”4
This issue brief first examines how defence and surveillance tools at the borders are utilized by the union, especially at its southern borders. Then, through an investigation of how the uses of such tools have differed from their stated purposes since the expansion of Frontex’s mandate, it discusses their potential long-term uses, and whether these indicate a novel strategy for the future of border management. The question of the EU’s migration mechanism is especially poignant at the present moment, as the bloc is projected to experience the largest influx of asylum seekers into the continent since World War II due to Russia’s military operation in Ukraine, which started in late February 2022.5 According to the United Nations High Commissioner for Refugees, more than ten million people have fled their homes in Ukraine in the weeks since, four million of whom have escaped to neighbouring countries in the west, such as Poland, Slovakia, and Hungary, while around six million remain internally displaced.6 Although Ukrainian refugees have received significant support from member states thus far, it is unclear how long this accommodating reception will last.7 As such, the refugee crisis of 2015- 2016 is an important case study of Europe’s migration mechanism, and provides insights as to how the present situation might soon unfold.
Background
The influx of asylum seekers to countries at Europe’s southern borders in 2015 and 2016 illustrates the shortcomings of the union-wide reception infrastructure at the time. In the first months of the surge of asylum seekers on European shores, it became clear that the mechanisms already in place for the reception of migrants would not be sufficient to withstand the flow of people attempting to enter the continent. For instance, Greece’s archipelago of islands quickly became frontline refugee camps, from which asylum seekers would attempt to head towards wealthy central European countries, such as Germany.8
The systematic gridlock ahead of efficiently receiving large numbers of asylum seekers at the southern borders was triggered by two international obligations. Firstly, the principle of non-refoulment, enshrined in the 1951 Geneva Convention, prohibits the country receiving asylum seekers from returning them to a country in which they risk being persecuted without first reviewing their application.9 In the case of Greece, for example, considering that 856,723 asylum seekers reached its shores by way of the Mediterranean in 2015 alone,10 the country did not have the human resources and the bureaucratic infrastructure to review all applications in a timely manner. Secondly, the Dublin Regulation of 2013, which was in force at the time of the events, allocates the responsibility for the asylum procedure, such as background and security checks, interviews, and determination of eligibility, to the the member state that first receives the asylum application.11 In other words, even though the Schengen zone allows for free passage across member states’ borders, because of the Dublin Regulation, recipient countries like Greece, instead of the European Union as a whole, had to shoulder the processing of more than a million asylum seekers and their applications.
These two conditions placed an immense administrative and logistical burden on southern countries, such as Italy, Greece, and Spain, which were the first access points to European territory on the routes used by refugees coming from Africa and the Middle East through the Mediterranean. Due to the struggle of frontier states to keep up with the influx of applications, as well as the need to host and document the newcomers, the majority of the asylum seekers were able to circumvent security checks and continue their travel northwards. The reception system and border control of frontline countries came under real strain, and the EU as a whole was incentivised to find a solution to the emergency that was unfolding at its southern borders. At the time, the European Agency for the Management of Operational Cooperation at the External Borders had been in existence since 2004, established by the European Commission when the expansion of the bloc had created the pressure to find an effective model to control potential migration flows.12 Following the stress that was placed on the existing border management system during the 2015- 2016 crisis, however, the Commission proposed rapid organisational growth for Frontex in order to maintain border control.13
Discussion
The expansion of Frontex’s mandate in 2016 is part of a new approach towards border management, termed as Integrated Border Management (IBM). According to the Commission, IBM “aims at managing the crossing of the external borders efficiently and addressing migratory challenges and potential future threats at those borders, thereby contributing to addressing serious crime with a cross-border dimension (such as migrant smuggling, trafficking in human beings, and terrorism), and ensuring a high level of internal security within the EU.”14 This definition clarifies the intention behind the new mandate of Frontex: bolstering internal security through more efficient border control.
Frontex’s securitization of border control is evident through the technological tools that are deployed at the external borders, which reflect this new philosophy of “efficiency” underpinning border management. In order to facilitate the effective and efficient deployment of personnel and capabilities, the agency gathers its own intelligence and produces its own risk analyses.15 One means of intelligence collection for Frontex is the Copernicus Program, a satellite system for monitoring the Earth. The program was dedicated 47.6 million euros by the European Commission between 2015 and 2020 with the following operational goals: coastal monitoring, monitoring of international waters, reference mapping, maritime surveillance of an area, vessel detection, vessel tracking and reporting, anomaly detection, and environmental assessment.16 In this way, Frontex is able to locate civilian vessels, for example, boats carrying refugees across the Mediterranean, before they reach the coasts of southern Europe. According to Fabrice Leggeri, Frontex Executive Director, the Copernicus Programme allows for heightened situational awareness for all member states, as well as “[contributing] to the detection of cross-border crime” and “spotting vessels in need of assistance at sea.”17
Furthermore, Frontex devised Eurosur and Jora in 2018, real-time mapping and monitoring softwares.18 The objectives of these technologies are to “reduce the number of irregular migrants entering the Schengen area undetected” and to “increase the internal security of the European Union…by preventing serious crime at the external borders of the Schengen area.”19 In 2019, the agency started to test the use of biometric border check technology in the field, after years of consultations with practitioners and industry experts.20 More recently, Frontex has also started studying the use of artificial intelligence in the framework of border control operations, with the aim of rapidly and systematically analysing the data collected by frontline agents and equipment.21
With regards to defence instruments, in the wake of the events of 2015-2016, the bloc has taken steps towards strengthening control of its southern borders in two main ways. Firstly, the EU has increased the number of border guards stationing the borders in support of member states. At first, this move was projected to be employed in a limited capacity during situations of emergency, through the deployment of Frontex’s Rapid Border Intervention Teams.22 However, this initiative was expanded in 2019 when the union decided to create a stable presence of Frontex border guards at the external borders of the Union, thus creating Standing Corps.23 Secondly, Frontex has shown interest in military technology in order to automate certain tasks previously performed by humans. Two examples of this trend are the uses of drones and aerial support for border patrol and surveillance operations.24 In the context of Integrated Border Management, the use of these technologies helps European agencies and member states manage the flow of people coming through the external borders in a more efficient manner, which, according to the European Commission, increases internal security.
Years after the 2015 crisis, border management activities in the continent persist, with no sign of slowing down. In fact, the European Commission announced in 2018 that 11.3 billion euros would be dedicated to Frontex between 2021 and 2027, in order to finance 10,000 Standing Corps officers, as well as to acquire the agency’s own ships, vehicles, and planes.25 The increasing amount of effort and resources devoted to strengthening Frontex demonstrates that the EU has a long-term interest in supporting the agency’s work. However, it is not easy to assess whether Frontex’s goal of “increasing internal security” has been achieved through the implementation of the measures listed thus far. As noted by Frontex itself in its Annual Risk Analysis, “The number of detections of illegal border-crossings and refusals of entry are both functions of the amount of effort spent detecting irregular migrants and the actual flow of irregular migrants.”26 In order words, it is difficult to judge whether an increase in the number of detections is caused by the increased amount of effort and resources spent in monitoring activities, or by a change in the migration flow. In either case, however, the increased detection of “irregular migrants” ultimately supports Frontex’s raison d’être, and incentivises the EU to pour resources to its practices.
The bloc’s border control activities raise important questions regarding the legitimacy, accountability, and transparency of Frontex’s operations.27 Firstly, the legal basis of the agency and its involvement in border management are underregulated.28 This is because the liability of deployed personnel is not arranged, meaning that Frontex can potentially avoid charges of violations of international or EU law by shifting legal responsibility to member states.29 In addition, despite the fact that Frontex, as a supranational entity, maintains growing influence on operational decisions, member states always remain responsible for the legality of implemented operations.30
Secondly, Frontex has limited accountability mechanisms. On this matter, the European Parliament itself found “serious shortcomings” in Frontex’s conduct of border operations, and has stepped up its oversight over the agency’s activities.31 However, the European Parliament can only oversee the agency’s operations to a limited degree.32 This is because the Parliament is not fully informed of its operations and is institutionally unable to hold the agency’s leadership to account.33 As Frontex executives are civil servants belonging to specific member states, instead of EU officials, they are to a degree outside of the union’s jurisdiction.34
Thirdly, beyond institutional accountability mechanisms, public or social accountability for Frontex is compromised by the lack of detail in the organization’s annual reports.35 Frontex does not share timely operational information, and the ex post facto reporting of its activities are vague. In fact, there is a tendency within the agency to heavily redact published documentation, further inhibiting legal responsibility and institutional oversight.36
Fourthly, the lack of transparency in Frontex’s operations expand to the matter of the biometric and geographical data that is collected as part of its intelligence-gathering activities. The issue of privacy, especially, has been raised as a crucial point in the use of border control and surveillance technologies. The European Data Protection Supervisor, for example, has voiced concerns about the use of biometrics in EU-wide law enforcement mechanisms, pointing to the sensitive nature of biometric data in order to emphasise the importance of its protection.37
Recommendations
There are a number of ways the European Union could better address these issues. Given the role border control is assuming in the EU’s migration management strategy, it is important to assess Frontex’s operational capacity. Frontex’s role as the first European border and coast guard agency, with an ever-growing mandate and budget, as well as an increased strength in numbers, should attract the attention of policymakers at all levels of governance, both nationally and regionally. As the European Parliament notes, greater powers should be matched by a higher level of responsibility.38 For this reason, the bloc should step up oversight and audit mechanisms in order to monitor how surveillance technologies are used by the agency and to ensure that their irregular use is held accountable. More specifically, a legal framework based on international and European law should be created for Frontex, a supranational EU entity whose personnel are specific member states’ civil servants. This novel framework should address jurisdictional questions, both for Frontex’s overall operations and for its personnel. This would also ensure uniform treatment of unauthorized activities on the part of Frontex’s personnel during border operations; instead of national courts, a supranational legal entity would be responsible for the judiciary process.
Furthermore, the availability of a legal framework could enable asylum seekers or refugees who have been mistreated during border operations to take action and hold the responsible mechanisms and individuals accountable. The availability of a public accountability mechanism could encourage a higher degree of transparency around Frontex’s operational capabilities. Although the European Parliament’s activation of the Frontex Scrutiny Working Group is a step in the right direction,39 increased legal oversight continues to be needed.
Additionally, the EU should review and assess the type of resources directed to the migration management apparatus against the needs of the moment. Migration flows are very dynamic in nature, and circumstances can change rapidly. For this reason, an increase in the supply of equipment, personnel, and resources should match an increase in the demand for border support and should not be stuck in a continuous escalation cycle. The danger of the proliferation of surveillance instruments is an artificial boost in the number of detections, not due to a change in the flow of people, but to the increased efforts put into detecting them. The European Parliament would be advised to ensure Frontex’s mandate, budget, and operational capabilities match the frequency and the severity of irregular activities at the external borders. Frontex must be a reactive agency, not a deterrent one.
Moreover, in order to mitigate the securitisation of border control, there should be a higher degree of coordination and cooperation between humanitarian institutions and the EU’s law enforcement agencies. With regards to the use and storage of biometric data, as well as the deployment of military technologies like drones and satellites during border operations, guidelines should be established in consultation with non-state actors, such as think tanks, educational institutions, and policy centres.
Lastly, the union should encourage greater operational transparency for Frontex’s activities. Even if border operations are not publicised before or during the operation, a full breakdown of Frontex’s activities must be included in the Annual Report. This would likewise contribute to the creation of institutional and public accountability mechanisms for the agency.
Conclusions
Years after the 2015 Migration Crisis, which had triggered a significant expansion of Frontex’s mandate, the European Union’s border control and management initiatives show no sign of slowing down. With an increasing number of troops and a multibillion-euro budget, Frontex has effectively securitized border control, using extensive surveillance software and automated aerial technologies to detect and stop “irregular” border crossings.
Is it possible to say, however, that the surveillance and defence mechanisms at the EU’s external borders achieved the goal of increasing internal security? Although Frontex managed to curb cross-border illegal activities, the association of migrants and crime that has been supported by the agency’s border management rhetoric has done irreparable damage to societal dynamics in the continent. With a pragmatic attitude focused on efficiency, Frontex took away a degree of humanitarianism from border management.
Given the start of what can unfold as another crisis for Europe’s migrant reception mechanism, a serious reflection on how to handle the growing influx of people fleeing from Ukraine is needed. With the international community watching, the European Union must carefully tread the thin line between its commitment to openness and inclusion, and its tendency to prioritize internal security.
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The statements made and views expressed are solely the responsibility of the author, and do not represent Fiker Institute.
