Select Committee on European Union Ninth Report


CHAPTER 4: The Work of Frontex

The statutory tasks

63.  The legal basis of the Frontex Regulation is Article 62 of the TEC, within Title IV which governs visas, asylum, immigration and other policies related to free movement of persons. Article 2(1) of the Regulation sets out the six tasks of Frontex:

(a)  coordinate operational cooperation between Member States in the field of management of external borders;

(b)  assist Member States on training of national border guards, including the establishment of common training standards;

(c)  carry out risk analyses;

(d)  follow up on the development of research relevant for the control and surveillance of external borders;

(e)  assist Member States in circumstances requiring increased technical and operational assistance at external borders;

(f)  provide Member States with the necessary support in organising joint return operations.

Joint return operations

64.  The last of these tasks is one that we considered in the course of our inquiry into the proposals for a common EU returns policy.[34] For that purpose we took evidence from General Laitinen on 2 March 2006, when Frontex had been operational for less than six months. He told us then that assisting with joint return operations was "not at the top of the priorities",[35] and that is still the case (Q 225). It may be that this will change with the renewed interest in the development of a common EU returns policy. However Mr Byrne is "a bit of a sceptic about Frontex getting involved in joint returns" because of the difficulty of arranging them (Q 484).

65.  In our earlier report we emphasised how voluntary return was greatly preferable to enforced compulsory return. Not only was it more humane, it was a good deal more cost-effective, and it was greatly eased by assistance for reintegration, training, education and self-employment.[36] These are matters outside the scope of our current inquiry, but they are reasons why for the present we would not encourage Frontex to put any more assets into organising compulsory return operations.

Risk Analysis

66.  General Laitinen told us on that occasion that risk analysis "is the inner core of the methodology of Frontex".[37] In the course of this inquiry he said that "the starting point is with the risk analysis" (Q 261). Jonathan Faull, the Director General for Justice, Freedom and Security at the European Commission, was of the same view: "risk analysis must be the basis for priority setting by Frontex" (Q 49). We can understand why the work of the Risk Analysis Unit is central to all the other work. The Unit's mission is "to produce appropriate accurate and timely intelligence products which provide the foundation for Frontex operational activities, as well as to keep all principal customers informed of the current illegal immigration situation at the external borders". The Unit regards its "principal customers" as the Council and Commission; we feel the European Parliament should be added to that list.

67.  The Unit's tasks are:

  • to identify key threats and risks to border security;
  • to identify the need for joint operations;
  • to identify areas where capacities could be built by technical border control equipment;
  • to identify the most effective focus for border guard training programmes; and
  • to provide the Member States' border guard services with systematic and immediate early warnings.

The Unit, having identified the need for a joint operation, assists in the preparations, appoints an intelligence officer for the duration of the operation, collects and analyses data during the operation, and passes information—and where appropriate alerts—to the Member States.

68.  After the operation the Unit produces a report evaluating the operation. This normally includes:

  • analysis of replies to the analytical questionnaire;
  • number of migrants, including asylum-seekers;
  • routes adopted;
  • in the case of airports, entries refused;
  • migration trends;
  • other irregularities, such as implications for trafficking human beings and drugs;
  • international criminal networks;
  • comparisons with statistics for previous operations; and
  • evaluations by the deployed experts.

69.  The evaluation report may ascertain whether the operation induced traffickers to change their modus operandi by putting pressure on other illegal points of entry, or maybe by making major changes to the migratory routes. If so, the report may make recommendations for securing other weak or illegal access points, and suggest courses of action to target specific nationalities. It may recommend passing information to Europol or Interpol, which are better placed to investigate the involvement of smuggling organisations and other cross-border crime; we consider the involvement of Europol in Chapter 8.

70.  Mr Tom Dowdall, Director of EU Operations at the Home Office and the United Kingdom observer on the Frontex Management Board, explained that the Risk Analysis Unit brings together information provided by the Member States, analyses it, weighs it and on that basis identifies what the course of action should be. In this work it is assisted by a Risk Analysis Network which brings together representatives of the Member States meeting on a quarterly basis. It was in his view a process which was evolving and which needed to improve (QQ 141-142). Major Mallia wanted to see the risk analysis role of Frontex strengthened (Q 399), and we note that development of the risk analysis function plays a major part in the Work Programme for 2008.

Training

71.  General Laitinen stressed the importance which he attaches to the training function of Frontex. They have revised and published a Common Core Curriculum for border guard training, which is compiled with the cooperation of the Member States. They are not under any obligation to apply that Curriculum, but only a handful do not yet do so. He told us that Frontex are seeking to have a Common Core Curriculum for mid-level training and have launched periodical four-week courses for mid-level officers. The other part of the training function is arranging courses for the border control authorities, including "land border related training, aeronautical training, helicopter pilot training, travel document detection training, … and linguistic skills." For 2007 the commitment for training purposes was almost €2 million (Q 223). Mr Byrne told us that the United Kingdom made a significant contribution to training, offering expertise in document forgery detection and the use of detection technology.[38] Given the increasing complexity of some of the equipment used to monitor migration, we think training guards in the best use of the equipment they have is an important element of this task.

72.  We believe that training courses for border guards should emphasise the humanitarian background to illegal migration and its causes. We are glad to note the Commission's suggestion that training courses should be organised on asylum law, the law of the sea and fundamental rights.[39] Frontex will also need to ensure that appropriate investment is made in the personal development and capacity of its own staff to enable them to understand this aspect of their work, and the impact that the courses they devise will have on the individuals affected by their work.

What Frontex does not do

73.  The list of tasks set out in the Regulation is not illustrative but exhaustive. Frontex could not carry out other tasks without amendment of the Regulation. So far the only amendment has been for the system of Rapid Border Intervention Teams (RABITs) which we consider in Chapter 6. We stress this point because in the course of our inquiry we have heard and read suggestions as to what Frontex might do which are plainly outside its remit, including undertaking (as opposed to coordinating) emergency border operations and search and rescue missions. This is something which has also troubled General Laitinen. In June 2007 he issued a news release entitled "Frontex—Facts and Myths". He pointed out that the activities of Frontex were supplementary to those of the Member States; with its (then) 82 staff it was not intended to be a substitute for the thousands of border guards of the States. It had no operational personnel or equipment of its own, and its sole role was integration and coordination. As the Regulation says, "Responsibility for the control and surveillance of external borders lies with the Member States".[40] Mr Javier Moreno Sanchez MEP told us: "Frontex is a tool, not a panacea" (Q 107).

Resources

74.  Frontex started operations in October 2005 with 44 staff. By the end of 2006 this had increased to 72, and by October 2007 to 125. The intention is that in 2008 this should increase to 189. Even so, General Laitinen told us that "During the two years of the agency's existence we have been at the edge all the time when it comes to human resources" (Q 238).

75.  By far the larger part of the funds of Frontex comes from the European Community budget via the Commission, though a small part comes directly from the Member States. The rapid growth of Frontex in its first year of operation led to a large increase in the budget, but this came at a late stage—so late that nearly €3m of the €19m voted for 2006 remained unused. Since then Frontex has further increased in size and in the scope of its operations. The budget was double in 2007,[41] and for 2008 has again doubled: a further increase of €35m has been voted, to over €70m. For operations, this represents an increase of 140%.

76.  There is however no point in giving Frontex more money than it can spend, and it cannot sensibly cope with such an increase unless it has a corresponding increase, or at least an adequate increase, in the staff responsible for spending this money. This is a point which concerns General Laitinen: "… focussing only on the operational expenditure is not enough for a coordinator … if the human resources and the administrative side are not in balance with the soaring resources and financial resources for the operational element the results can be counter-productive" (Q 235).

77.  One of the few controls the European Parliament has over Frontex is in the budget. For 2008 the Parliament voted to give Frontex €30m more than either it or the Commission had requested: €53.5m for the operational budget and €15m for the administrative budget. But the Parliament voted to put in reserve—to freeze—30% of the administrative budget, and only to release it if satisfied that Frontex has improved its accountability and its effectiveness on the ground.[42]

78.  It is not uncommon for the Parliament to make the voting of funds to EU agencies subject to conditions. However in our view it makes no sense to release all the money for the operational budget but only part of the money for the administrative staff without whom the agency could not run. No organisation can plan how to spend €53.5m on operations without knowing whether it is going to have €10m or 15m to spend on staff to plan and administer those operations. As General Laitinen said, "it is not a good message for the staff, that a European agency is not able to guarantee the salary payments for the entire fiscal year" (Q 238).

79.  We believe that before the European Parliament considers withholding part of the budget of Frontex, it should bear in mind the importance of Frontex being seen as a secure and responsible employer. Nothing should be done to undermine its operational effectiveness or put at risk the accumulated expertise of its permanent staff.

80.  It is in any case debatable whether a large increase in the number and scope of operations is the best way for Frontex to proceed at this stage of its development. Mr Dowdall told us: "The United Kingdom view is that [the increased resources] should not fund simply a major increase in operations but should be focused on increasing the quality of the operations which are undertaken, also the quality of the intelligence-gathering machinery and the intelligence itself that is produced and shared with Member States. Those are key areas next year in relation to how that money is spent" (Q 147). He repeated this view when he gave evidence with the Minister; and Mr Byrne himself saw a need for more effective planning and evaluation. Mr Brodie Clark, the Strategic Director for Border Control, thought Frontex should concentrate on operations being relevant and effective, and "delivering something"; it was a matter of concern to him that Frontex should manage its ambitions, "so that it is not trying to do everything all the time" (Q 477).

81.  We share these views. We believe the increased resources may usefully lead to a modest increase in the number of operations in 2008, but should be concentrated on further increasing the quality of those operations, and of the intelligence-gathering and sharing leading up to them.

Accountability

82.  Strategic decisions on the work of Frontex are taken by the Management Board set up under Article 20 of the Regulation. The Board consists of one representative from each of the Schengen States. For the reasons we explained in paragraphs 54-60 the United Kingdom only has observer status. The Board adopts the work programme, decides on the organisational structure of the agency, and prepares the preliminary budget. It advises on issues directly related to the technical development of border control. General Laitinen explained that whenever the Board meets—on average five times a year—he gives it a full written and oral report of the state of play of Frontex activities and plans. He thought the sharing of responsibilities with the Management Board was very clear (Q 228).

83.  The Management Board is required by Article 20(2)(b) of the Regulation to adopt an annual report by the end of March each year, to send it to the Council, the Commission and the European Parliament, and to publish it. It follows that the annual report for 2007 will be adopted at much the same time as this report is published, but so far the only annual report has been that for 2006.

84.  Frontex has an internal auditor within the agency reporting to the Executive Director and his Deputy. The Internal Audit Service of the Commission has visited Frontex, and the European Court of Auditors has the formal responsibility of auditing its accounts.[43] In the course of our scrutiny of EU documents we have recently looked at the Report of the Court of Auditors on the 2006 accounts.[44] The accounts were approved, and the only comments were such as might be expected when an organisation is just beginning its initial recruitment and expenditure.

85.  Apart from formal control of the budget, the Parliament also has less formal ways of supervising the work of the agency, in particular by summoning the Executive Director to report and answer questions. On 11 June 2007 the Deputy Director attended a meeting of the LIBE Committee where he gave a presentation of the Work Programme for 2007 and discussed the events which had then recently taken place in the Mediterranean (to which we referred in paragraph 40). The following month the LIBE Committee organised a public hearing on "Tragedies of Migrants at Sea", and the Chairman of the Committee requested—indeed insisted on—the participation of a representative of Frontex. The inability of any of the three senior officials of Frontex to attend that hearing caused a degree of friction.

86.  Mr Simon Busuttil's view was that there was not sufficient accountability (Q 115). Dr Bernard Ryan, giving evidence on behalf of the Immigration Law Practitioners' Association (ILPA), thought that the Management Board was "very close to Frontex in terms of personnel, and although there are reports, beyond that there are not specific structures in place through which Frontex is accountable to and can take guidance from democratic bodies … it is accountability to the public at large or to the political system at large ... that is lacking" (QQ 428, 432). This is a view shared by the Standing Committee of experts on international immigration, refugee and criminal law (the Meijers Committee): "An institutional mechanism of prompt democratic oversight over operational activities of Frontex is non-existent" (p 168). Ms Muggeridge, on behalf of the Refugee Council, suggested the appointment of an ombudsman or observer to produce independent reports on operations (Q 430).

87.  We heard criticism that some information about the activities of Frontex which was or should be in the public domain was not easily accessible, in particular on the Frontex website.[45] While information about risk analysis, operational planning and similar matters must remain confidential, we believe Frontex should take steps to ensure that all information which should be in the public domain is easily accessible.

88.  Jonathan Faull thought that, broadly speaking, the current legal framework of the agency ensured adequate transparency and accountability. He added that issues of accountability and monitoring would form part of the review of the existing legal framework in the evaluation report which Article 33 of the Regulation required the Management Board to commission. (Q 75).

89.  We believe that the current arrangements for financial accountability are adequate.

90.  Frontex should raise its public profile by ensuring that information which is or should be in the public domain is easily accessible to the public, in particular on its website.

91.  Frontex should be more formally accountable to the European Parliament. The Chairman of the Management Board and the Executive Director should, if so requested, appear before the Parliament or its Committees to discuss the activities of Frontex.


34   Illegal Migrants: proposals for a common EU returns policy, 32nd Report, Session 2005-06, HL Paper 166. Back

35   Ibid, Q 583. Back

36   Ibid, paragraphs 46-48. Back

37   Ibid, Q 581. Back

38   Supplementary evidence, p 148. Back

39   Commission Communication of 13 February 2008: Report on the evaluation and future development of the FRONTEX Agency, doc. 6664/08, COM(2008)67 final, paragraph 15. Back

40   Recital (4). Back

41   The total was €35.3m, of which €20.7m was for operations, €9.4m for staff, and €5.2m for administration (Home Office, p 31). However a subsequent amendment added a further €7m. Back

42   Simon Busuttil MEP, QQ 95-101. Back

43   Laitinen Q 229; EC Treaty Article 248. Back

44   Document 15146/07. Back

45   Ryan QQ 412, 428. Back


 
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