Agreements with third countries
146. Operating in the territory of a third state,
including its territorial waters, is quite another matter. Here
activities coordinated by Frontex cannot be carried out without
the agreement of that state; and even with that agreement, there
is some doubt as to whether the mandate of Frontex stretches so
far.[73]
147. Until now such cooperation has been based
on agreements between a Member State and third countries; the
legal basis for operations coordinated by Frontex in the territorial
waters of Senegal and Mauritania is the bilateral agreements between
Spain and those countries.[74]
However Article 14 of the Regulation requires Frontex to "facilitate
the operational cooperation between Member States and third countries",
and allows it to conclude working arrangements with the authorities
of those countries.
148. Arrangements have already been concluded
with the border guard authorities of Russia, Ukraine and Switzerland,
and negotiations with Croatia are well advanced. The Management
Board has given Frontex mandates to negotiate arrangements with
ten other countries.[75]
Of these, Libya is the country with which cooperation is most
urgently needed, as was demonstrated by an incident in May 2007
when 27 Africans were alleged to have been left clinging to tuna
nets for three days and nights while Malta and Libya argued over
whose responsibility it was to save them.[76]
At precisely that time a Frontex technical mission was in Libya
discussing questions of illegal immigration. Given its finding
that Libya is "fundamentally a transit country from North
Africa to Italy and Malta and thereon to the rest of the EU",[77]
the mission concentrated as much on the highly porous Libyan southern
border, but it recommended that a structured Mediterranean Sea
Border Control Cooperation Framework should be developed to extend
maritime cooperation in the Mediterranean to third countries,
and that Libya should be invited to play a leading role.
149. However this has not yet led to a working
arrangement with the Libyan authorities. Major Mallia told us
that he would like Frontex to move ahead at greater speed in negotiating
with third states in addressing the problems on the Northern African
rim, most specifically with Libya. He thought Frontex could and
should take a much more substantial role because it brought with
it the weight of the whole Union rather than a single Member State
(Q 399). Such an arrangement, once negotiated, could be expected
to require Libya to play a greater part in preventing would-be
immigrants to the EU from leaving its shores, and taking back
those who do leave while they are still in its territorial waters,
in its search and rescue area, or on the high seas.
150. Any arrangement would not be with Libya
or its Government but with its border control authority; as General
Laitinen pointed out, "we do not establish a partnership
with a country or a government but [between] the border control
authority of that third country and Frontex" (Q 268).
However Ms Coelho thought that although Frontex working arrangements
with third countries might be regarded as technical low-level
operational agreements, an arrangement with Libya was part of
a political relationship between the EU and Libya, and "could
be seen as the EU agreeing that the way Libya treats people as
it does on its borders and within its detention centres is acceptable"
(Q 413).
151. Dr Ryan pointed out that "Libya
is not a party to the Refugee Convention; we just do not have
guarantees about what is going to happen if they are returned"
(Q 409). In particular, there are no guarantees that Libya
will observe the obligation of non-refoulement. Other witnesses
also made allegations of abuses and human rights violations to
which persons were subjected when returned to Libya and other
countries in North Africa.[78]
It is precisely because a working arrangement with Libya would
be seen as carrying the approval of the whole Union that the Member
States should be concerned to influence the terms of any agreement
or arrangement that is negotiated.
152. We believe that working arrangements
between Frontex and the authorities of third countries in the
Mediterranean could play a valuable part in controlling illegal
immigration to the EU. We hope that Frontex will carry forward
the negotiation of such arrangements.
153. Member States, including the United Kingdom,
should however be concerned to ensure that any such arrangements
with a third country include meaningful guarantees for the treatment
of would-be immigrants repatriated to that country.
Links with UNHCR and other bodies
154. We welcome the close links which Frontex
is developing with UNHCR. In July 2007 Mr Soufiane Adjali
was posted as Senior Liaison Officer to Frontex, and we took evidence
from him on 23 October 2007 during our visit to Warsaw. He told
us that a draft of an agreement between UNHCR and Frontex was
then in the course of negotiation, and that Frontex had invited
UNHCR to participate in the groups formulating a Core Curriculum
for border guards (QQ 280, 299). The view of Ms Coelho was
that "development of working arrangements with the UNHCR
and IOM may lead to some mechanisms and relationships that can
improve the ability of Frontex to respond to humanitarian needs
and to see how people, once they arrive at the place where they
are diverted or taken to, can be dealt with on reception. We think
that the presence of a UNHCR position in the Frontex headquarters
in Warsaw is a positive step ..." (Q 441).
155. We welcome the cooperation between Frontex
and UNHCR, and would like to see this extended to other bodies
with responsibilities for immigration, asylum and refugees.
68 Mallia Q 371. Back
69
E.g. Faull Q 47; Deprez Q 92; Laitinen Q 246. Back
70
SEC(2007)691. Back
71
This is the Expert Meeting on the Study of International Law Instruments
in Relation to Illegal Immigration by Sea. Back
72
Faull Q 54; Byrne Q 465; Home Office supplementary written evidence,
p 152. Back
73
See the evidence of Dr Ryan quoted in paragraph 142. Back
74
Laitinen, Q 267. Back
75
FYROM, Turkey, Egypt, Libya, Morocco, Mauritania, Senegal, Cape
Verde, Moldova and Georgia. Back
76
Immigration Advisory Service p 164. The time "three days
and nights" is also given by the International Herald Tribune
(3 June 2007), but The Times says that the men were transferred
to an Italian vessel after 24 hours. Back
77
Report of the mission, paragraph 9.5. The report identifies five
main migration flows: from Sub-Saharan western Africa, from the
Horn of Africa, from Morocco and Egypt, from the Middle East,
and from the Indian sub-continent. Back
78
Muggeridge Q 413; Immigration Advisory Service p 163. Back
