Examination of Witnesses (Questions 402-419)
Ms Helen Muggeridge, Ms Patricia Coelho and Dr Bernard
Ryan
5 DECEMBER 2007
Q402 Chairman:
Good morning, and welcome. As you know, this Sub-Committee of
the House of Lords European Committee is conducting an inquiry
into Frontex. You have sent us two papers, one a joint one—thank
you very much for those. This evidence session is broadcast over
the internet. We shall send you a transcript of the evidence in
case you feel there are any corrections to be made in the way
it has been put together, and if there are any questions that
you find it difficult to answer or any answers you would like
to supplement, you are most welcome to write to us after this
session. I do not think there is any point in asking you to introduce
yourselves, that is clear from the papers, so perhaps I can begin
and say to you that most of our witnesses so far in this inquiry
have given us an overall positive assessment of Frontex's operations,
particularly in terms of their deterrent effect on illegal immigration,
which obviously concerns us all. The question is how do you assess
the work carried out by Frontex so far, and we have read what
you put in your two papers so there is no need to repeat all that,
but maybe you could summarise it and add anything to it. Who would
like to begin?
Dr Ryan: I am happy to start. From ILPA's
perspective we are obviously not competent to comment on the policy
side or the actual operations of Frontex. Our expertise is in
relation to the legal framework within which it is conducting
itself. In relation to that, we have some specific concerns about
the framework governing Frontex operations within the territory
of the European Union—although there clearly is a legal
framework governing that—and externally. Clearly, there
are provisions set out in the Frontex regulation with respect
to the activities of Frontex in so far as they relate to the territory
of the European Union. Our main concerns are with respect to activities
that are Frontex co-ordinated but take place outside of the territory.
We think there are a number of very important issues that that
raises which are not adequately addressed, either in the legal
framework or in the broader policy discussion with respect to
Frontex.
Ms Coelho: From ECRE's perspective, again,
as a network of NGOs we are not privy to all the information that
would be necessary to sit here and say whether Frontex is being
fully successful in what it is trying to do. Our question is are
the positive assessments that have been put forward to you to
date taking into account the full picture and the full impact
of Frontex's operations. Some of the questions we would therefore
expect to be asked in an assessment of Frontex's operations are
questions such as if irregular entries to the EU have been reduced,
at what price has this been in terms of human costs; how many
people have been stopped from coming who had protection concerns
and what has happened to them since Frontex has prevented their
entry? How many people have simply been forced to undertake more
dangerous journeys and, as a result, have lost their lives? Then
how many people have tried several times to come in, and this
is a factor that may be affecting the picture in terms of how
many people have actually been prevented from entering. We know
for a fact from our members working on the ground in reception
centres on the borders of the EU that people they talk to say
they have tried two, three, four, five times and they have sometimes
been turned back, some of their colleagues have never made it
and some of them have made it. This needs to be considered within
any assessment. Also how many people have been given the opportunity
to appeal their refusal of entry, which is something I think we
can come back to, been given reasons and felt that that was satisfactory.
For us, where we have seen the assessments, they have not taken
these issues into account, so our question is if the world's numbers
of refugees are rising, but the number of refugees claiming asylum
in Europe is going down, what is affecting that and is prevention
of entry into the EU a factor in the statistics?
Ms Muggeridge: From the point of view
of the British Refugee Council we found it quite hard to obtain
public information about Frontex in preparation for this evidence
session, and one of the issues we had with assessing the success
of Frontex was the lack of information available. Our general
impression is that success is hard to quantify and even if the
indicator of success is deterrence, which would be about numbers,
the full picture from our colleagues and NGOs throughout the EU
is that the numbers of arrivals are actually increasing in Greece,
and this could be because of Iraqis arriving to Greece. Numbers
are not decreasing in Italy and in Malta the Jesuit Refugee Service
has confirmed that the number of boats arriving has increased
but the number of people arriving has decreased. This may be because
the boats are arriving with sole survivors on them or two or three
persons arriving on them, which is obviously of great concern
to us. The information that we have been able to obtain from colleagues
with regard to recognition rates of persons arriving leads us
to believe that there are people arriving with protection needs
who have founded and genuine refugee claims. For example, in Malta,
48% of the so-called boat people arriving actually receive protection
and, in Italy, half of those who arrived by sea asked for protection
and 25-30% of those were granted protection which leads us to
believe that some people who may be coming into contact with Frontex
operations may have protection needs, and this does not seem to
be reflected in the Frontex reports that we have seen.
Q403 Baroness Tonge:
Could I just clarify what actually is the involvement of Frontex
with individual people coming over the border.
Ms Muggeridge: From the information we
have seen they are national border guards, co-ordinated by Frontex,
so people would come into contact with people, either on the high
seas or elsewhere.
Baroness Tonge: I just wanted to make
it clear; thank you.
Q404 Lord Harrison:
Could I put the question the other way? That is, in your recent
experience has what has happened with the borders been different
distinctly as a result of the advent of Frontex? In other words,
you may well have concerns of the kind that you would describe
in your evidence, but have those concerns been reinforced or has
there been a perceptible change in atmosphere as a result of those
who are applying which you think you could attribute to Frontex
coming to maturity?
Ms Coelho: There is a similar strand
in what you are saying and we are very much aware of the fact
that the Member States are the ones working on the front line
and, obviously, these border controls were in place beforehand.
We may come on to this when we look at the operations of Frontex
beyond the EU territory. What Frontex is doing is reinforcing
certain practices that perhaps only some EU countries have been
at the forefront of, such as the UK, in terms of extraterritorial
border controls, and is introducing and trying to develop various
types of border controls across Europe and along the EU border
that maybe we did not see on such a scale. Seeing Frontex operating
in African waters is something that certain individual countries
may have been doing, but what I think is the interest of Member
States in the use of the Frontex operation is to see this on a
much more consistent basis and in a much wider area of territory.
Either Spain or Malta have asked for some of the Frontex operations
to actually be permanent and not to be missions and, with time,
if this were to be the case, we would see a distinct change in
the way that border controls are undertaken.
Q405 Lord Young of
Norwood Green: Given the dangerous nature of those crossings,
I did not quite understand where you were coming from on that,
as though it was a bad thing for Frontex to try and co-ordinate
with third countries to deal with the situation. I mean, what
they are trying to do is to regularise it, to have a consistent
approach. Surely we should not be in a situation where we are
actually encouraging those kinds of crossings; they are innately
dangerous, they are not exactly the normal passenger ferry type
approach, as we know, so I did not quite understand where you
were coming from there. I can understand the concern about how
people are treated, but are you seriously complaining about Frontex
in respect of those kinds of activities so that there is a consistent
approach, an approach that does have accountability. We might
argue about the level of accountability and transparency, but
they are subject to report.
Dr Ryan: If I approach that as a policy
question, I would say it all depends on what happens next. If
you say that migrants at sea are going to be returned, diverted,
maybe rescued but then sent back to countries which have limited
resources, which do not have the same political traditions as
in Europe, then there are grounds for concern about what happens
next as regards their treatment. In the context we are talking
about around the Mediterranean, off the Canary Islands or journeys
towards the Canary Islands, there are grounds for concern about
Frontex changing the nature of the operations that Member States
are engaging in.
Ms Muggeridge: Just to add to that, we
acknowledge quite clearly that states do have a right to control
their borders. Within that, our main concern is that there is
some opportunity left open for refugees and asylum seekers and,
at the end of the day, refugees have to use the same routes as
everyone else as there is no legal way to travel as an asylum-seeker,
so by its very nature it involves some form of irregular travel.
One additional point that we wanted to make is that in terms of
border control there have been routes that have been diverted
because of the activities of Member States, for example in pushing
people to embark further and further south, for example in Senegal,
and this actually results in a longer route, a more dangerous
route and a more expensive route, so actually border control can
have the effect that people have to travel for longer distances
and take more risks.
Q406 Chairman: With
regard to Frontex operations what is your view about the relationship
between Frontex and Member States' border guards, and in what
way would you like, if any, to change the legal framework which
controls that relationship, or are you satisfied to leave it as
it is?
Dr Ryan: We had concerns about the initial
Frontex regulation, that it did not indicate what the legal regime
was to be with respect to officials of other states that were
sent to a given state in order to assist. It is fair to say that
the RABITs regulation, both in itself and also in its amendments
of the original Frontex regulation, has improved things because
it does make clear that in any event the law which applies is
that of the state that has called for assistance or on whose territory
the operations are taking place. We think that that is essentially
the right answer. We would still have concerns, however, about
Frontex itself. There ought to be greater clarity about Frontex
being subject to the obligations of public international law;
that is left at the moment as something that is implied but it
ought, in our view, to be express—including of course human
rights guarantees within that. Again, I would return to the point
I made earlier and I suspect we will come to again in more detail,
which is that there is almost a complete lack of provision for
the legal framework where there are activities organised by Frontex
outside of the territory of the European Union.
Q407 Lord Teverson:
If I could just explore that argument, which I do not fully understand,
normally when there are obligations or an organisation set up—say
it was in the UK—you would not write down all the laws and
obligations and treaties that that particular organisation had
to abide by because that is the law. Why is it quite so important—I
am sympathetic, but is there not a risk if you start listing things
that it is the things that are not on the list then that become
vulnerable in terms of the context within which you are operating?
I take the point that on RABITs you have got those obligations
in there, but are those obligations not implied and to list them
somehow suggests that the ones that are not listed are not important.
Do you see what I am swaying?
Dr Ryan: I do. I would say with respect
to Frontex that at least what ought to be done is to make it express
that it is subject to the ordinary principles of international
law, including international human rights law, without necessarily
listing each and every obligation. It might be possible to list
some, perhaps the more important ones, let us say as regards non-refoulement
or the Law of the Sea, but those would just be examples and there
could be other principles unspecified. I think your concern about
listing could be addressed in having a more simple formulation,
but one which addressed the current lacuna that exists with respect
to Frontex.
Q408 Lord Teverson:
I can see from almost a public relations point of view or for
the management committee, yes, it is in there in the regulation
and it is clear, but surely the officials would see those as international
obligations anyway, would they not, because you cannot avoid them,
or am I wrong?
Dr Ryan: You are almost now asking me
how Frontex sees itself or thinks and we do not have the capacity
to know that. One would hope so, I suppose is part of the answer,
but it would be better in terms of its internal culture if things
were express rather than simply left to general principles of
community law.
Q409 Baroness Tonge:
I am quite confused actually—and maybe it is me—about
how you are actually seeing Frontex; could you give us a concrete
example and if you think that Frontex, whatever that is, is breaking
humanitarian law or not respecting human rights, do you have any
examples, can you make it into a concrete thing instead of just
saying Frontex?
Dr Ryan: We could talk about Libya, for
example, and Frontex is itself directly negotiating with Libya.
It also is co-ordinating Member States' operations that probably
already and certainly it hopes in the future will involve returns
to Libya. Libya is not a party to the Refugee Convention; we just
do not have guarantees about what is going to happen if migrants
are returned.
Baroness Tonge: That is a good example;
thank you.
Q410 Lord Mawson: Following
on from that, how do you know what you know about Frontex? Is
it simply from reading papers or have you actually ever sat down
with Frontex and had these sorts of practical discussions about
how it works. How do you know what you know?
Dr Ryan: As I indicated right at the
beginning, we do not feel competent to talk about Frontex operations
or Frontex thinking, we are looking at the legal framework and
what is in the public domain about the operations that Frontex
is involved in.
Ms Coelho: We talk regularly to the European
Commission, we talk regularly to UNHCR who has a person posted
in Frontex. I have also had direct conversations and was invited
to meet with an official of Frontex but was not able to, but we
have started a dialogue and have access to what is public in terms
of papers and information and then I have my colleagues on the
ground who can talk generally about border controls, some of which
may have been co-ordinated by Frontex and some of which may not
have been. I want to emphasise that while we cannot comment on
the relationships during the operations between Frontex and Member
States we are very clear about what Frontex is doing: it is co-ordinating,
it is planning, it is doing risk analysis, it is not implementing
the border controls. But we think it is important for some clarification
of responsibilities, my sense is that when you talk about Frontex,
you say it is implicit—
Q411 Lord Teverson:
I am asking, not saying.
Ms Coelho: The impression we get is that
Frontex says "We do not have these responsibilities, Member
States have these responsibilities" and for us Frontex is
an EU agency. The question therefore is not if it has responsibility
but to what extent it has as a result of its planning and co-ordination
role. Surely in the way that it plans an operation it has a responsibility
to ensure that Member States can respect their human rights and
refugee obligations. They are having an influence on how those
border controls are taking place, even if they are not actually
undertaking them themselves, that is why we are keen on clarification.
Ms Muggeridge: I think Lord Mawson has
actually hit the nail on the head; part of the problem that we
have had is engaging with Frontex and finding out information
about it, and that is exactly what we would like to do, is have
more contact with Frontex and engage so that we can contribute
and make a positive contribution to their work.
Lord Harrison: I know you are anxious
to move on, My Lord Chairman, but you said something very interesting,
Dr Ryan, in response to Lady Tonge's question when you identified
Libya as an example of where Frontex has introduced a qualitative
difference. I think you actually said that Frontex had, as it
were, negotiated with or spoken on behalf of, presumably, countries
like Italy and Malta to Libya and the Committee would be very
interested to learn that because clearly that would move beyond
a co-ordinating role to one where Frontex becomes an entity in
and of itself. Could you just say a little more about that, what
your evidence is that they have so acted?
Baroness Tonge: Before you answer can
I just add to that because I was going to ask you later on actually
about involvement with third countries such as Libya and Morocco
and this question has come up now, so maybe we could have that
discussion now, My Lord Chairman, as we have got onto this topic.
Q412 Chairman: Yes,
why not, but would you like to come back to what Lord Harrison
was asking?
Dr Ryan: The information that I have
in relation to Libya is that Frontex has had a technical mission
to Libya with a view to putting in place arrangements for the
future. I do not know, the state of play with those negotiations,
as that is not information that is clear—at least, not in
detail—on the Frontex website. There is a Frontex report
that is in circulation—I confess I do not know how it got
into the public domain—which contains details about the
Libyan mission.
Baroness Tonge: I was going to ask you
about arrangements between Frontex and third countries and we
would be particularly interested in Morocco, Libya, Egypt and
Senegal and whether you saw it as a positive step for Frontex
to be negotiating with third countries. You actually implied a
few minutes ago that you thought it was not a very positive step
because Libya was not signed up to the Convention on Refugees.
Chairman: Lady Tonge, you are moving
into a question which you are hoping to ask later on. I am perfectly
happy to take it now.
Baroness Tonge: Yes, because we raised
it I just thought that we ought to finish this topic now really
rather than stop. Are you agreed, Lord Harrison?
Lord Harrison: Indeed.
Chairman: I am perfectly happy to do
this; do you want to enlarge on what you have said in view of
the fact that you are going to ask a question towards the end.
Q413 Baroness Tonge:
I have used that question because we are already on that subject
and I thought we should ask it now.
Dr Ryan: If I could give a general answer,
there would have to be guarantees about the treatment of those
returned to any of those states given the lack of resources and
also the traditions in those states. As I said, I do not feel
that we as an organisation are competent to speak about the specifics
of what may or may not be happening there, but the general answer
is pretty clear. It is probably best if I bring in my colleagues
to speak about some other aspects.
Ms Coelho: I will say something and then
I will pass on to my colleague, Helen, who has been speaking to
our colleagues on the external border who have lots of contacts
and sometimes staff in some of these countries and have given
us quite a good picture of the problems. There may be some positives,
it could add value to have Frontex Working Arrangements with third
countries if the results are that good practices on border controls
that are undertaken by European countries are shared with these
countries that may not be implementing adequate border procedures
and may not have the resources either. However, the way that different
people are talking about these Working Arrangements is quite important.
We find that they are very much put forward as technical agreements
between the different border services but, as my colleague Dr
Ryan has said, if there is an agreement on working arrangements
between Frontex and Libya while the EU has not been able to formalise
and agree on its political relationship with Libya, this cannot
be seen as two separate things. A Frontex Working Arrangement
with Libya by default is part of a political relationship between
the EU and Libya and therefore has important political implications,
and we are concerned that these Working Arrangements are put forward
as very technical, low-level operational agreements but they do
have significant political implications. I should say that they
would not necessarily determine that relationship. Countries like
France and Italy, for example, have already given equipment for
border management to Libya and there are several bilateral types
of arrangements in place. An arrangement with Frontex would amount
to legitimisation of certain practices by the EU, it could perhaps
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.
Ms Muggeridge: Just to give some concrete
examples of what might be happening in some of these countries,
we spoke to a colleague in Morocco and UNHCR is not informed if
ships are intercepted or if they are going to receive, possibly,
persons with protection needs. UNHCR is not systematically informed
and actually to claim asylum one has to go to Rabat, to the UNHCR
office, so it would imply that it would be very difficult for
people who might need to claim asylum. Even more worryingly, we
have heard reports that people are expelled to the border with
Algeria, which is 30 to 40 kilometres from a town called Oujda,
and whilst there may not be direct refoulement, persons who, for
example, cannot be returned to their country of origin or who
may not have had a chance to claim asylum could be expelled to
this region, and it is very, very dangerous on the frontier where
there are a lot of bandits and gangs roaming around and there
have been allegations of human rights abuses such as rape occurring
on that border. With regards to Egypt, we have heard from our
colleague Michael Kagan at the American University in Cairo that
whilst UNHCR has a long-established operation in Cairo and persons
who have refugee documents from the UNHCR in Egypt are not usually
refouled, the situation is quite different for people who arrive
at the border. He described that there are Eritreans crossing
from Sudan into Egypt because of the worsening protection situation
in Sudan and these people can get arrested at the border and can
be taken to a military court where the situation is that things
are done behind closed doors. These people may be refugees and
that is a concern. He did think that persons who left Egypt illegally,
who may be returned back, are subject to prosecution and up to
a year's imprisonment in an Egyptian prison where there are poor
detention conditions. I should say that the situation in Senegal,
where there is a UNHCR presence, is that we have heard slightly
more positive reports. I would concur with what my colleagues
have said about the situation in Libya.
Q414 Baroness Tonge:
But those arrangements have been directly negotiated by Frontex.
Ms Coelho: Yes. If I could add one thing,
it may be small numbers but there are people originating from
Senegal or Morocco—the Western Sahara as some prefer to
call it—who are themselves refugees, so some of these border
controls may be preventing people from these primarily transit
countries from actually leaving their own country, which is clearly
against international law.
Chairman: It has been very helpful to
have a general session up to this point, but we will now move
if we can to more particular points and go through those, but
you have given us a good start. Lord Dear.
Q415 Lord Dear: Thank
you, My Lord Chairman. It is a question really for Dr Ryan: in
paragraph 8 of your evidence to us in writing you talked about
the territorial scope of Frontex being unclear and I am interested
in this. I wondered if you have got any examples that would show
us what is or could be happening vis-a"-vis Frontex externally.
We know what they do on the border and internally, that is clearly
understood—at least, we understand what they should be doing—but
do you see them performing a role in your view beyond the border,
out into facing countries? It is a direct follow-on in a sense
from what we have just been discussing.
Dr Ryan: It is clear that Frontex does
have a co-ordinating function, both in relation to activity on
the high seas and also in territorial waters of other states—we
know about Senegal and Mauritania in particular. I should just
add a footnote to the previous discussion if I may, which is that
my understanding is that Spain negotiated with Senegal and Mauritania
but then Frontex does the co-ordinating subsequently, whereas
in the case of Libya it is Frontex doing the negotiating rather
than particular states.
Q416 Lord Dear: If
I understand your written evidence correctly you think there is
a lack of clarity as to what Frontex may or may not do beyond
the border, outside the border, and I wondered if you had any
examples of that and particularly how you think it should be altered,
because clarity is important.
Dr Ryan: The issue is not so much about
examples, it is rather the legal position: what is the legal mandate
given to Frontex? Reading the regulations that exist, it is very
difficult to see that Frontex has, as a matter of European Union
law,, a mandate to operate beyond the external borders of the
European Union. The Frontex regulation speaks of "integrated
management of the external border" and then it talks about
surveillance and control. I think you could say that surveillance
can take place outside of the territory but it must be somehow
linked to attempted entry or anticipated entry to the territory.
The reference point is the external borders and I think again
we would say that there must be control with respect to those
borders and not control taking place somewhere else entirely.
I feel that what has happened is that Frontex has stretched its
mandate beyond what is set out in the initial regulation and that
needs to be addressed. The reason to address it is that if there
was a legislative process which looked at the question of whether
Frontex should be acting extraterritorially or not, whether the
mandate should clearly extend that far, then that would open a
space within which the kind of question we are raising would get
posed, of what guarantees must then govern Frontex in so doing.
It is not that we are saying it should be absolutely ruled out
but it must be explicit that there is such a role and then the
terms of that role should be defined in the governing instruments
as well.
Q417 Lord Dear: I can
see the desire for clarity, which I am sure all my colleagues
share; I wonder if you would like to give us a view on where you
think the law should settle. If you were redrafting or revisiting
the law, what would you like to see in order to address this?
Quite apart from clarity, which is one point, where would you
like to see—using the word very broadly—the boundaries
set?
Dr Ryan: I take your point that there
is a distinction between clarity and substance, shall we say.
On the substance I have indicated previously that our view is
that respect for international law principles, including human
rights principles, ought to expressly govern what Frontex does
in the extra- territorial domain. That would open a policy discussion
about the kinds of guarantees that are sought and obtained with
respect to what happens next to those who are either prevented
from leaving particular states or are returned to those states.
Q418 Lord Dear: I understand
that and I follow the line of reasoning, but to put it in very
simple terms do you welcome or not welcome an enhanced or extended
role for Frontex beyond the borders. Do you think it is a good
thing that Frontex should be up there negotiating with, taking
a part in, acting on behalf of or not, or would you prefer to
see them simply as it were pinned down on the EU borders and within
it?
Dr Ryan: We do not rule out Frontex having
such an extraterritorial role, so it is not that we are saying
no, that should not happen. Our concern is about the context,
the actual context in which Frontex is doing that, which is that
it is co-operating in the Mediterranean area with states where
there are insufficient guarantees about what happens to those
who are returned. So it is not a simple yes or no to extraterritorial
action by Frontex, it is a question of looking at the specifics
to see whether it is desirable.
Q419 Lord Dear: You
would have to identify what it is they are going to do, but the
question is a very simple one, if I may say so, and that is that
given all the guarantees in place do you see a role for Frontex
extraterritorially or not?
Dr Ryan: Given all the guarantees in
place, yes—but that may be somewhat difficult to achieve
in many cases.
Ms Coelho: Can I just say that in the
short term we do not agree with Frontex having an extraterritorial
role, but we are not saying we would rule it out, seeing how the
agency develops, but we all are very aware that it has been in
place for two years, there are lots of issues around its mandate
to be clarified and there are a lot of challenges on the EU external
border that can be addressed, and it can be very usefully focused
on that at this stage. The reason why I say that is because my
understanding of some of these activities in third country territory
is that the legal basis being put forward is the bilateral agreements
that exist between EU states and that third country. I fully agree
with my colleague who says there is no legal basis for Frontex
to operate beyond where the European Community law applies at
this stage, but also these bilateral agreements are not available,
we cannot see them, there is no transparency whatsoever, so to
be able to know whether those agreements comply with all these
guarantees is not possible at this stage and until those kinds
of agreements become more fully public I do not think it is possible
for us to be in favour of Frontex operating under their mandate
in the current situation.
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