House of Lords - European Union

Select Committee on European Union Ninth Report

CHAPTER 8: Looking to the future

156. Jonathan Faull told us that Frontex was "a small, modestly resourced agency which is really no more than a clearing organisation for assets, ideas and risk assessment made at each Member State's level and then trying to organise a coordinated response to that." On that basis it was meeting the expectations the Commission had for it when it was created, and it was continuing to meet expectations even though these had grown considerably and were continuing to grow (QQ 68, 47). But most of our other witnesses thought it had considerable and growing influence. Dr Ryan's assessment was that Frontex was "more than some passive coordinator of Member States' activity … [it] has led to a step change in the situation because it is initiating the coordination that it engages in" (Q 436). Major Mallia, giving us Malta's perspective, told us that Frontex was doing things to which previously Malta could not have dedicated all the resources it would have liked, in particular risk assessment and multinational joint operations (Q 400). Tom Dodd, the Director, Border and Visa Policy, gave us the Home Office view that Frontex had done valuable work in improving the capacity of European border guards, but could do more to improve its performance in areas like the planning of operations and work with third countries (Q 140).

157. Any assessment of the results of Frontex operations must be based on a better knowledge of the facts. We have explained in paragraph 102 how it is at present impossible even to guess at the extent to which the reduction in the number of immigrants using a particular route is absolute, and what proportion is simply due to displacement. Mr Byrne wanted to see the United Kingdom participating with Frontex over the next three to five years in more effective evaluation of operations, so that we could better understand the effect of displacement (Q 476). This is a view we share.

158. We also agree with Ms Muggeridge that data should ideally include more than just headcount figures. Referring to the current Frontex statistics on the numbers of people it has stopped from coming or has turned back, she said: "… there is no reference really to the differences within that large group, the different needs of people and what kind of ages or gender or whether any of them were vulnerable people, or whether any of them indeed wanted to seek protection or did seek protection" (Q 433). We agree that such information would be useful; it should be possible to collect it without compromising operations and without disproportionate expense.

159. Frontex should formulate rules for data collection which will allow a better evaluation of the results and impact of operations. This evaluation should show in particular the kinds of people intercepted or turned back, and the extent to which the operations are effective in reducing, and not just displacing, illegal immigration. The United Kingdom should participate fully in any such evaluation.

Commitment of operational assets

160. We considered in Chapter 5 the problem of states not making available for operations the assets and resources which they had undertaken to make available, and for the short term we recommended that Member States should be asked to pledge to make available only as many vessels and other equipment as they are actually able to make available when requested. We now look at what might be done in the longer term.

161. Major Mallia thought it unlikely that Member States would be coerced into committing resources in the near or medium term (Q 395). However we believe that something stronger is needed sooner rather than later. We referred in paragraph 130 to Article 4(3) of the RABITs Regulation which provides that "Member States shall make the border guards available for deployment at the request of the Agency unless they are faced with an exceptional situation substantially affecting the discharge of national tasks." Regulations are of course directly applicable law. A request from Frontex addressed to a Member State to make border guards available to another Member State thus imposes on the first State a legal obligation to which there is only a very limited exception.

162. This provision could not be transposed directly into the Frontex Regulation; border guards by definition are always at land or air borders, whereas in a case of urgency assets such as ships and helicopters would only coincidentally happen to be where they were wanted. But in the case of operations planned some time ahead it should be possible for Frontex to stipulate in advance which of the assets pledged should be available where and when. The only excuse for a Member State not complying should similarly be "an exceptional situation substantially affecting the discharge of national tasks." If the consequence was that insufficient assets were pledged, that could be resolved only at the political level.

163. For Frontex to operate successfully, Member States must meet their obligations. Consideration should be given to introducing into the Frontex Regulation a provision requiring, subject to strictly limited exceptions, compulsory deployment of vessels and equipment in joint operations and other Frontex activities.

Widening the mandate of Frontex

164. We have stressed that Frontex is an organisation set up to promote cooperation at national borders, primarily against illegal immigration. Inevitably this involves consideration of the organised crime which promotes and facilitates much of this immigration. We received evidence from Major Mallia about the involvement of traffickers in illegal maritime immigration (Q 385), and during our visit to Dorohusk we heard about the part played by organised crime in immigration by land.[79]

165. Some of our witnesses seem to assume that it is only a matter of time before the mandate of Frontex is enlarged specifically to include fighting serious organised crime, or even counter-terrorism. This was the view of the National Coordinator Ports Policing in both his written (p 2) and his oral evidence: "It is quite clear that there is a unique potential within Frontex in our collective fight against terrorism and for purposes of national security … I think the addition of counter-terrorism as an element of Frontex would be beneficial, and specifically beneficial to us" (QQ 27, 30).

166. However most of our witnesses disagreed. Mr Dodd's view was that an explicit counter-terrorism role would be "a considerable extension of its current capacity and ability". Such a remit might be considered in the future, but would take Frontex much further than its current capacity to deliver. He thought that the issue would certainly be raised during the Commission review to which we referred in Chapter 4 (Q 192). When he gave evidence to us in October 2007 Jonathan Faull told us that he thought that for the time being the mandate was the right one (Q 49). He was understandably unwilling to pre-empt the results of the Commission review, but he pointed out that there were many other systems in place for cooperation between police and counter-terrorism agencies, and duplication was the last thing that was needed (Q 66).

167. Organised immigration crime[80] is quite another matter. Mr Byrne told us that he would be interested in the Committee's view on whether Frontex should concern itself with dismantling the syndicates of organised crime which are responsible for much of the pressure on illegal immigration; this was a question he had not answered in his own mind.

168. The reason this work does not feature in the list of tasks in Article 2(1) of the Regulation is that Frontex is created by a Regulation under the first pillar, while cooperation in criminal matters falls under the third pillar.[81] Even so, the two cannot be divorced. General Laitinen put the matter in this way: "… border control is a cross-pillar phenomenon which serves all three pillars … this is quite a persistent question and dilemma for us to find an appropriate way between these more or less artificial pillars within the Community. Fighting organised crime is one thing we come across with these issues and it can be stated it is not a function or task of Frontex, but in practice in the Member States and also at the European level we have to work towards that objective. It is not a task but it is an objective" (Q 246).[82]

169. It is clear to us that combating illegal immigration must mean combating it by all available means. If, as appears, one of the main causes of illegal immigration, and one of the main reasons why it is often successful, is the involvement of organised crime, this is something in which Frontex should be closely involved. It cannot be right to attempt to divorce the cause from the effect. Our reply to Mr Byrne's question is therefore that Frontex should indeed be closely concerned with fighting the syndicates of organised crime which, as he says, are responsible for much of the pressure on illegal immigration.

170. We agree with the majority of our witnesses that, for the present at least, it would be an unacceptable enlargement of the mandate of Frontex for it to concern itself specifically with counter-terrorism or serious cross-border crime which is not directly linked to illegal immigration.

171. Nevertheless Frontex must be involved in combating any organised crime whose aim is to facilitate and profit from illegal immigration. It is right that this should already be an objective of Frontex. Technicalities should not be allowed to stand in the way of this.

Cooperation with other agencies in combating organised crime

172. Frontex does not currently produce a collective intelligence product for dissemination to Member States. Each state is responsible for recording intelligence for its own use. The National Coordinator Ports Policing saw "significant scope for more action to be taken to effectively capture and disseminate intelligence that would be of use in combating crime and terrorism impacting on the United Kingdom." He would "potentially have some serious use of Frontex for intelligence-gathering purposes". (p 2, Q32).

173. While we do not think the mandate of Frontex should be extended to intelligence gathering specifically for purposes other than combating illegal immigration, inevitably, during its work on risk analysis and in the course of the operations it coordinates, Frontex will acquire intelligence and information which is not directly concerned with its own work, but which might be of great value to the agencies of the Member States and the international agencies whose aim is to combat terrorism and serious organised crime generally. It is essential that there should be a mechanism enabling Frontex to transfer key intelligence to those who can best make use of it.

174. This is precisely the task of Europol. It is currently a body established by a Convention between the Member States, but the Council is considering a Commission proposal to set Europol up as an EU agency with a rather wider objective. From the planned date of entry into force of the Treaty of Lisbon (1 January 2009) the "mission" of Europol, set out in Article 88 of the Treaty on the Functioning of the European Union, would be wider still: "to support and strengthen action by the Member States' police authorities and other law enforcement services and their mutual cooperation in preventing and combating serious crime affecting two or more Member States, terrorism and forms of crime which affect a common interest covered by a Union policy".[83]

175. Article 13 of the Frontex Regulation allows Frontex to cooperate with Europol and other international organisations. Mr Dowdall told us that "There is not currently a formal memorandum of understanding with Europol but Frontex and Europol do work closely together; they share their agenda and there is interchange of staff ... That has manifested itself in, for example, Operation Hera which took place at European airports focusing attention on illegal Chinese migration, and Europol contributed to that work with the provision of information and intelligence." He and Mr Dodd both advocated strengthening links with Europol (QQ 192, 200). Article 22(2) of the latest draft of the Council Decision provides that Europol "shall"—not "may"—conclude an agreement or working arrangement with Frontex.[84] This is a welcome development.

176. We welcome the cooperation between Frontex and Europol, which in our view will benefit from being formalised in an agreement between the parties.

177. Intelligence and information coming to the knowledge of Frontex in the course of its work should be passed not only to Europol but also to other agencies which are well placed to make good use of it, and with which similar agreements can be concluded.

An operational organisation?

178. The Regulation allows Frontex to become an agency with its own operational resources and assets. We received conflicting evidence on the desirability of this. General Laitinen himself, who might have been expected to favour this, left a decision on the issue "to those to whom it belongs", but thought it would be helpful if Frontex could be certain of having something to deploy in the most important operations, even if the main assets still came from the Member States (Q 256).

179. The Commission, in its evaluation of Frontex published last month, looked at possibilities for future development. It pointed out that the deployment of a RABITs team can be combined with technical assistance, and recommended that "this provision be made more operational by Frontex acquiring its own equipment for border control and surveillance, to be used by the RABIT teams, in order to ensure the availability of equipment at short notice". Another suggestion is that, in the longer term, Frontex might lease or even acquire equipment for permanent operations.[85] Two Members of the European Parliament would go further. Mr Moreno Sanchez, asked how he saw the future evolution of Frontex, replied that "in the end we have to try to get integrated control of the borders in cooperation, and Frontex is one of the tools for doing that" (Q 123). Mr Simon Busuttil went further still: "I do think that Frontex should develop further, should become operational in its development and should become the agency responsible for the protection and strengthening of the external borders, not just of the Member States but also of the Union itself" (Q 126).

180. However Major Mallia's view was that "from a technical point of view, I do not think Frontex as an agency is equipped to be operating aircraft, patrol vessels, helicopters, et cetera. It is quite a complicated task which requires a high level of skill and a high level of infrastructure." There was also the problem that "if Frontex decides to operate ships and aircraft, they will have to carry someone's registration and someone's flag, so someone will be responsible for them and therefore you cannot remove their national nature" (QQ 373, 399).

181. We prefer this view. We believe that it would be wiser for Frontex not to acquire its own operational assets until the implications of this have been considered more fully by Frontex itself and by the Member States.

182. Looking ahead still further, Jonathan Faull told us that he would be "very surprised" ever to see Frontex having its own forces in its own uniform. However he added: "I would never say never." This proved wise, since the Commission's forward look now suggests assessing whether Frontex should employ border guards itself.[86] This brings us back to the proposals for a European Border Guard. As we have explained, these proposals are for the present defunct, and in our view rightly so. The Commission states that it "intends to return to the question of a fully fledged European Border Guard system when experiences have been gathered on the functioning of those [RABITs] teams".[87] A discussion of this can perhaps do no harm, but it should not in our view lead to Frontex adopting any role similar to a European Border Guard.

183. Suggestions that Frontex should become, in effect, a European Border Guard are in our view ill-conceived, and should not even be considered for the present.

Our own assessment

184. After considering all the written and oral evidence we have received, not least on our visit to the Frontex headquarters in Warsaw, we think it right to summarise our own assessment.

185. We believe that, in the short time it has been operational, Frontex has made an excellent start in its important role of coordinating action on the external borders of the EU. We congratulate those involved.

186. We nevertheless caution against too much being demanded of it. A new agency cannot be expected to double its size, its work and its budget every year. The time has come for a period of consolidation: somewhat slower growth, and concentration on improvement in the quality of operations rather than in their number.

187. It is not in the interests of the European Union as a whole or of the Member States individually that the United Kingdom should be excluded from full participation in the development and operation of Frontex. We recommend that the Government should persevere in negotiations in the Council of Ministers to end this exclusion.

188. The States which are full members of Schengen took the view that freedom of movement should take priority over border security. The United Kingdom takes the opposite view, and its geographical situation puts it in a better position to safeguard its borders outside Schengen. However this argument is undermined by the inadequate and unacceptable way in which the United Kingdom's borders are at present safeguarded. We therefore believe that the highest priority should be given to remedying this.

79 Paragraphs 26-29 above. Back

80 The Serious Organised Crime Agency (SOCA) uses this expression to mean both the organised facilitation of immigrants to the United Kingdom ("people smuggling") and the trafficking of people for criminal exploitation, for example as prostitutes or forced labour ("human trafficking"). Back

81 Immigration falls within Title IV of the TEC, while Police and Judicial Cooperation in Criminal Matters falls within Title VI of the TEU. Back

82 General Laitinen was giving evidence before the signature of the Treaty of Lisbon, which would merge the first and third pillars. Back

83 Under Article 3 of the draft Proposal for a Council Decision establishing the European Police Office (Document 10327/07 of 4 June 2007) the objectives are "to support and strengthen action by the competent authorities of the Member States and their mutual cooperation in preventing and combating organised crime, terrorism and other forms of serious crime affecting two or more Member States". However there must be some doubt as to whether this draft will be adopted and come into force before1 January 2009. Back

84 Document 16452/07 of 21 December 2007. Back