Examination of Witnesses (Questions 420-439)
Ms Helen Muggeridge, Ms Patricia Coelho and Dr Bernard
Ryan
5 DECEMBER 2007
Q420 Lord Dear: I did
have a second question which can probably be answered quite quickly
because it is quite specific and it does indeed go over broadly
the same ground, and that is about rescue at sea—you have
alluded to it even if you have not addressed that in particular.
There is a degree of a lack of clarity in terms there, particularly
so far as the question of disembarkation and asylum issues are
concerned. I wondered if, just to help us, you wanted to focus
specifically upon rescues at sea and the ensuing problems vis-a"-vis
Frontex.
Ms Coelho: You mean rescue and disembarkation
and the responsibility for asylum. There has been some debate
within the Committee as to whether Frontex should have specific
responsibilities around rescue at sea. Those responsibilities
exist and rescue at sea takes place, as far as we understand,
during Frontex operations because Member States have the responsibility
to do that when that situation arises. So we do not see that as
a major issue; rescue at sea clearly has to be part of Frontex
operations when it is needed. The issue around disembarkation
and who is responsible for asylum applications I think needs to
be taken separately. From our analysis it is clear that there
may be a gap in the international maritime law in terms of which
country must agree for people to be disembarked but there is no
such lack of clarity on who is responsible for the asylum applications
which are governed by a whole other raft of laws—the Refugee
Convention, the European Convention on Human Rights et cetera,
and if we look at the case law there it is very clear that if
a country during its operation or during its rescue meets the
threshold of having jurisdiction over the people that it is controlling,
then it has the responsibility to deal with any of the asylum
applications that may ensue from that group of people. I feel
that it is very important to say that the laws are all in place
in terms of who is responsible for the asylum applications and
we just need to apply them. There is a problem with the issue
of disembarkation and it is clearly preventing countries from
undertaking rescue; the EU has a role to play in brokering agreements
between EU states in terms of responsibility sharing. There are
lots of possibilities there but I think that some of the requests
to perhaps share the burden more equally are very valid, and we
would go along the lines of reforming the Dublin II Regulation,
providing people with more freedom of movement once they have
a status and possibly also what has already taken place in some
cases from Malta, with some Member States agreeing to receive
people who have been recognised as refugees once their applications
have been dealt with in order to support each other, so we think
these sorts of arrangements need to be explored.
Q421 Lord Dear: I understand
where you are coming from, I think. You are almost saying, if
I understand you correctly, that on this particular issue Frontex
need hardly exist, other than perhaps in a very general sense
of co-ordination, but it is down to individual states who first
pick up the responsibility and then deal with it in its system.
Ms Coelho: Yes, these responsibilities
just need to be integrated in all Frontex operations.
Q422 Lord Dear: But
Frontex should not be playing a leading role in this, it is up
to individual countries.
Ms Coelho: Frontex is not the body that
needs to consider asylum applications, Frontex does not have the
power to agree whether a person goes on one country's territory
or another and Frontex is not going to be providing the conditions
and the rights for people who are refugees to then be able to
integrate and rebuild their lives. I think it is way beyond the
Frontex mandate.
Dr Ryan: Could I add something very briefly
on that last question, which is a very important one. We would
see a possible role for Frontex as regards planning for rescue
situations because clearly it is of absolute importance that no
state or no vessel is discouraged from engaging in rescue operations.
Rescue, particularly in the central Mediterranean, seems to be
not an accident, it is part of that situation—I think that
is clear from the evidence you have had from Frontex itself. Given
that there is detailed planning for those operations, there is
a planning system, it does seem to us that it would be appropriate
to also address the question of rescue and disembarkation in that
planning phase, with a view to burden-sharing as well, in the
spirit of my colleagues' remarks. Within the Frontex mechanisms
it ought to be one of the elements that is addressed.
Chairman: Lord Young, would you like
to move on?
Q423 Lord Young of
Norwood Green: I have been looking at the papers and quite a lot
of analysis at paragraph 13 in relation to the Schengen Borders
Code; do you feel that does apply satisfactorily to the activities
of Frontex? I was referring to your document there, Dr Ryan, and
I notice in the European Refugee Council's document you say "We
are concerned that Frontex border control activities, if not managed
properly, could lead to breaches of human rights", somehow
implying that the Schengen Borders Code does not apply to the
activities of Frontex. I would just like to tease out where you
think the problems are in relation to this, bearing in mind that
Frontex is essentially a co-ordination role and the Member States
have their obligations to honour the Schengen Borders Code.
Dr Ryan: I see this question of the Borders
Code as a concrete aspect of the wider question, what is Frontex
mandated to do, what is its jurisdiction? The Schengen Borders
Code regulates those seeking to enter or possibly refused entry
to the Schengen area and Frontex is referred to in the code. In
that context it is co-ordinating the activities of Member States'
officials and then those officials are governed anyway by the
local law of the state in which they are functioning, so in its
own terms it makes sense, the Borders Code. However, it does not
cover activity outside of the territories, extraterritorial activity.
To that extent some of the things that Frontex is involved in
are not regulated by the code. If I could give one example, the
code gives a right of appeal against a refusal of entry; it is
a bit hard to see how that is operating in the territorial waters
of Senegal, to the extent that Frontex is co-ordinating refusals
of entry to the European Union there. The code is not designed
to address extraterritorial activity.
Ms Coelho: I fully agree. We believe
the Schengen Borders Code applies to Frontex' co-ordinated activities
on national territory and in international waters and it very
positively recognises that refugees are the exception to entry
rules and provides these possibilities for legal remedies, but
we have absolutely no evidence, based on the information that
we have access to, that this right is in any way implemented and
that there are any provisions within the operations to allow for
that to happen. That is our concern.
Q424 Lord Young of
Norwood Green: If I could address the point that is being made,
it seems to me that your primary concern all the time we return
to this question of territorial waters—again, I am a bit
puzzled because you have accepted that if Frontex were not there
co-ordinating activities there are bilateral agreements going
on anyway. So Frontex is still carrying out a co-ordinating role,
they cannot just act on their own and there is a real, serious
problem in the Mediterranean as you know where human lives are
at risk every single day; I do not quite understand, therefore,
why you believe that Frontex is the cause of the problems. The
problems are there anyway and they are trying to co-ordinate their
area which we know to be exceedingly dangerous. They cannot initiate
activities without the agreement of Member States so they are
reacting to real problems that occur in the Mediterranean area
and outside those territorial waters, and they are dealing with
a situation which actually exists now, bilateral agreements that
currently exist and they are simply acting as co-ordinators. Is
that not better than having a load of random situations. You have
more chance, I would have thought, of ensuring that the kind of
things you seek assurances on, that at least those questions can
be put on whether people's rights are being abrogated because
of these activities.
Ms Coelho: We do not think Frontex is
the cause of the problems and I appreciate some of the points
you make in terms of the value of the co-ordination. I think there
is a question mark as to what extent Frontex can or cannot initiate
activities. If we look at the Frontex Regulation it does have
some power to launch initiatives and has some executive powers,
and again this is an area where we would like some clarity; to
what extent it has some autonomous powers and to what extent it
is completely subject to the will of Member States. Frontex is
an EU agency and it is as such that it draws its mandate and its
powers to act. If we are now saying that a bilateral agreement
between a EU Member State and any third country is an acceptable
legal framework for Frontex activities you could argue, could
you not, that a bilateral agreement between any country around
the world might be an acceptable legal framework for Frontex to
intervene and there must be some clear boundaries as to where
and under which agreements Frontex can operate. I come back to
the point that I made: we do not know what the contents of these
agreements are, they are confidential agreements on the whole.
Some of our colleagues have access to some of them, but they know
that often the versions they can see are not the full versions
of the agreements—some of which are kept secret. We do not
accept that an EU agency can function on the basis of such agreements
and the EU has a responsibility of transparency which needs to
be met.
Q425 Chairman: Let
me just ask a question to clarify your broader approach. Do you,
all three of you, support the policy of Her Majesty's Government
in keeping the United Kingdom out of the Schengen area?
Dr Ryan: That is a very large question.
Q426 Chairman: It is
yes or no, quite frankly.
Ms Coelho: As ECRE I would say we do
not have a position on such an issue, we are a European network
and we do not take positions on particular government policies
in that way so I defer to my colleague.
Ms Muggeridge: I do not think I would
be able to answer that, but I am happy to get back to you there.
Dr Ryan: This puts me in a difficult
position because I might have my own personal opinion but that
is not necessarily the opinion of the organisation I am here to
represent, so I would rather not comment on that.
Chairman: I am just surprised you do
not have a corporate view on it, all three of you. Anyhow, if
there is anything you would like to send us, by all means do.
Lord Young.
Q427 Lord Young of
Norwood Green: We have touched on this question, if my memory
serves me right, Dr Ryan, what is the added value of the RABITs
regulation in relation to Frontex. You gave some faint praise—or
it might have been more than faint praise—in relation to
the way the rapid action activities actually take place. I wonder
if you would like to comment further; whether you see this as
broadly positive or not.
Dr Ryan: Obviously we are looking at
that essentially from a legal perspective. From a legal perspective
the RABITs regulation is a distinct improvement on the Frontex
regulation because there is a clear legal framework for operations
that take place on the territories of participating states, be
it in the form of a RABIT, rapid intervention team, or be it in
the form of what are called guest officials. Essentially the same
legal framework applies, which is the territorial state's legal
framework, and that does seem to us to be broadly the correct
answer.
Q428 Lord Teverson:
In the ILPA evidence which I read with great interest you spent
a lot of writing on the area of accountability, and of course
this is something we are in the process of here, if you like,
and certainly as part of the parlance it is something that we
are interested in ourselves. I found your analysis very interesting
and we have found many of those issues ourselves in terms of finding
out information, but what I would really like to understand from
your own point of view is how do we solve this thing of accountability.
When we talked to Members of the European Parliament they also
had that concern, and of course one of the ways that parliaments
do these things is that they try to take control of budgets and
say if you do not tell us, we do not pay you, therefore you stop
working, which is a blunt instrument of accountability in terms
of parliamentary processes. What do you see as the key points
that must be brought in to make an organisation like Frontex—which
I agree could be used as a sort of shadow organisation for Member
States' decisions that they do not really want to come out too
publicly perhaps—more accountable?
Dr Ryan: Let me say a couple of brief
things and then I will let my colleagues answer as well. Generally
more structure to the democratic oversight of Frontex would be
one element. You may feel exactly the same. Essentially, the oversight
is done by its management board but the management board is very
close to Frontex in terms of personnel. 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, and I suppose the European Parliament is the obvious candidate.
There is a separate issue about transparency within Frontex and
preparing for this session I was having to use the Frontex website
more than in the past and it is remarkable that there are documents
in the public domain with respect to Frontex that are not accessible
on its website. For example, its public bulletin—Helen passed
that to me and I had not found it on the website; I went back
and looked again and I still could not find it. It is intended
to tell the public about what Frontex is doing and yet it is not
easily accessible.
Q429 Lord Young of
Norwood Green: It is possibly down to website management, but
I agree that it is a particularly bad website.
Ms Coelho: We discovered the problem;
you have to register as a journalist.
Dr Ryan: There is also no register of
documents on the website. Those are a couple of things. I would
also say that there is some sensitivity with the operations that
Frontex is involved in co-ordinating or planning. If that is an
impediment, or to the extent that that is an impediment, to matters
being put in the public domain, then a structure needs to be put
in place for evaluation of those things, both on their own terms,
and the legal consequences and the legal regime. So, there can
be oversight in that manner, it does not necessarily all have
to be in the public domain, so long as the right structure is
put in place.
Q430 Lord Young of
Norwood Green: Can I just ask you, before anybody else answers,
is there another EU body, agency or institution that you would
see as being the model for how Frontex should be accountable?
Dr Ryan: I do not have a model right
away that I can identify.
Ms Muggeridge: Just to come in, I agree
with my colleague that Member States and Frontex have an interest
in ensuring they respect protection obligations and are seen to
respect protection obligations. We have some positive ideas about
how accountability could be improved: one is looking at the appointment
of perhaps an ombudsman or an independent observer which could
be a neutral role and could receive information from all sides
with respect to Frontex operations and produce reports in the
same way that we have monitors here on the domestic front. The
other aspects we would recommend are on the management board,
given that the protection agenda seems to have been slightly sidelined
so far, would be to possibly have UNHCR as an observer on the
management board, or to have somebody with protection expertise
on the board in order to input on the protection side of things,
to ensure that was covered. We would also like to see Frontex
engage with civil society organisations, given UNHCR's perhaps
limited capacity, especially to monitor and observe operations
that are happening on the ground and we would like to feed in
in particular to risk assessments, given that the risk is not
only to states but also can be to individuals as well. We would
also like to see better quality reporting and statistics to move
away from what we have gained, which is anecdotal information
really, and the numbers that are cited in some of the Frontex
reports seem somewhat general and do not include any reference
at all to the numbers of people that have needed protection or
asked for protection. Then, as I think we said earlier, we would
like to see more transparency on return agreements so that we
can gain information about them and possibly input, but we are
happy to input and would like to really engage with Frontex.
Ms Coelho: Just to say briefly, we understand
that there are intelligence elements that sometimes cannot be
shared, but that still allows for the suggestions that have been
made to be explored. While it may not seem very easy to develop
a relationship perhaps between a border agency and civil society,
we have some very good examples and practices emerging on the
ground in Hungary, in Slovenia and other countries, in the Netherlands,
where members of our network are co-operating very positively
with their national border guards and with UNHCR through tripartite
agreements and are doing monitoring. I was myself in Budapest
last week and heard the Hungarian border guards say how much they
had been benefiting from this kind of exchange and dialogue and
building of trust and confidence. So I see this as a very good
practice and something that can certainly be looked at the European
level.
Q431 Lord Harrison:
Very quickly, that sounds very interesting; is there anything
written about that relationship with Hungary and Slovenia?
Ms Coelho: Yes, there is a formal tripartite
agreement between the Hungarian Government and UNHCR and the Hungarian
Helsinki Committee which I can share with the Committee.
Lord Harrison: We would like to have
sight of that.
Chairman: Thank you very much. Lord Mawson,
did you want to come in on this or move on?
Q432 Lord Mawson: I
was really wondering about your comment about the sense that democratic
structures are more accountable. They are shifting sands in my
experience and a relationship with the management board actually
might be a far more accountable structure. Do you have any comments
on that?
Dr Ryan: Perhaps the question is what
kind of accountability are we looking for? The management board
in a sense is the stakeholders. The agency is acting on behalf
of Member States and the Commission, so the management board it
seems is very closely involved—or at least, it is structured
in that way—in Frontex's core tasks. It is a different kind
of accountability, which is accountability to the public at large
or to the political system at large and that is what is lacking;
I do not think the management board is really in a position to
do that, or it is not going to be its primary concern. The question
is to put in place structures that will ensure that the wider
polity is familiar enough with what Frontex does, and what the
Member States do under its aegis, and the consequences thereof,
and has the opportunity to have input into Frontex.
Q433 Lord Mawson: This
is for ECRE and the Refugee Council: in paragraph 3.4 of your
joint written evidence you express concern that "the interdiction
of all potential irregular entrants from physical access to the
EU is indiscriminate". What evidence is there to show that
Frontex is involved in such interdiction practices, and maybe
you could just give one or two practical examples?
Ms Muggeridge: We were a bit confused
by this question initially because we thought that the interdiction
of entrants in a way was part of the raison d'etre of Frontex
itself. In terms of indiscriminate entry or indiscriminate practices,
we note that the evidence that was given by Frontex itself, including
its annual report, mainly cites the statistics of thousands of
people that it has stopped from coming or turned back, 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.
Really from Frontex itself the reporting seems to imply that people
are seen as a mass of irregular migrants rather than individual
people with individual needs, some of which might be a need for
protection.
Ms Coelho: If I could just give an example,
the way that Frontex concerns around Iraqis are portrayed is a
great concern to us when we know that 90% of Iraqis arriving in
Sweden are being recognised as people needing international protection
and 74% of Iraqis in Austria are, yet we know that Frontex is
planning operations to prevent the entry of Iraqis. We all know
that what is happening in Iraq is a stark example of the need
for that protection element to come into their planning and their
way of thinking.
Ms Muggeridge: Just to add on Iraqis
as well, as my colleague said 1500 Iraqis arrive in Sweden every
month and that number is increasing. We have not really spoken
much about people who arrive by land and air, which is more than
the people that arrive by sea and the dangers for individuals—we
heard from our colleague George Joseph at Caritas, Sweden that
they conducted some 260 interviews of persons who have come, mainly
in containers, and these are Iraqis who have spent two or three
weeks getting to Sweden, paying £40,000 for a husband and
wife to come, maybe in situations where they are sitting in containers
with dead bodies in those containers during the journey. So there
are some quite real concerns about safety and the conditions and
the human cost of persons trying to get to the EU that we feel
that Member States and Frontex need to take into account in a
risk analysis of the risks to the people who are trying to flee
their countries.
Q434 Lord Harrison:
Did I hear you say that Frontex have, as it were, ordained that
Iraqis should be wholly excluded?
Ms Coelho: No, the public bulletin that
my colleague referred to talks about some analysis being undertaken
about the risk of illegal entries from Iraqis and that that analysis
is ongoing and is likely to lead to an operation next year as
I understand. So there was some quite extensive concern expressed
by Frontex and they were clearly planning to target this particular
group, and what I am saying is that in addressing that particular
group the fact that so many of those who do arrive are recognised
as having protection concerns is not recognised—at least
not within the materials that I have seen—in the way that
they are undertaking their risk analysis. So they are all viewed
as illegal immigrants.
Q435 Lord Young of
Norwood Green: On that last point, Frontex and the Member States
have an obligation to deal with the problem of illegal immigration;
are you saying that they should not do that? That is the bit where
I cannot quite understand what it is you expect them to do. I
agree there is a problem with people who are genuinely seeking
asylum, genuine refugees, but that does not take away from the
problem. If we do not attempt to deal with illegal immigration
more people will die in containers; that seems to me the only
conclusion one can draw because that is acceptable. Member States
and Frontex working together are trying to deter those kinds of
routes of illegal immigration, that is what it is about. How we
deal with the other side of that human problem, with the genuine
people who are caught up in that, is something that has to be
resolved by both the Commission and Member States but surely there
should be a common aim in deterring illegal immigration because
of the very risks. Because Frontex is carrying out a risk analysis,
saying that route there is not the popular route these days, this
is another route, that is a legitimate aim and activity of Frontex
is it not? You seem to be describing it as though somehow that
is a distorted objective of the organisation.
Ms Muggeridge: One of the issues is that
we have not seen the risk analysis so we actually do not know
what it contains, but as I said earlier we would like to input
into that—after all, we are talking about Iraqis and it
is specifically aimed at Iraqi nationals and we know that many
Iraqis are genuine refugees, in fact the majority of them are,
and UNHCR actually recognises Iraqis from central and southern
Iraq as prima facie refugees. It is a concern of ours, obviously,
that we be able to feed into that, and on your point about border
control the anecdotal evidence that we have is that border control
and strengthening border control can actually mean that people
are pushed more into taking circuitous or longer or more dangerous
routes. We would agree, however, with your point that this issue
of mixed flows and somehow allowing refugees to come in definitely
needs to be addressed.
Q436 Lord Young of
Norwood Green: That is the point; Frontex is not the organisation
that is going to resolve that problem surely, it is about a common
European policy on how we deal with asylum seekers and refugees
and it seems to me that asking Frontex to do a risk analysis on
the basis that you are saying is not their role. They should be
more transparent and maybe more accountable, I do not think we
would argue with that, but I just wonder whether you are directing
your attentions or expecting something from an organisation that
it cannot really provide.
Ms Coelho: I just feel that the separation
of responsibilities does not match with reality. If we are dealing
with mixed flows and refugees are amongst irregular immigrants
then operations that are meant to deter irregular immigration
have to address the needs of refugees. To say that Frontex is
not the right organisation, Frontex is acting on behalf of Member
States as we understand it, Member States have those obligations.
We are not saying that Frontex does not have a legitimate role
to play and we are not saying that there should not be border
controls and we should not be trying to tackle to illegal immigration;
we are saying that because of the nature of the way people arrive
and the fact that refugees have no legal way in, there has to
be recognition that they are there and they are being impacted
by the activities of Frontex; therefore Frontex's operations have
to be sensitive to their needs and to the obligations of Member
States. It is about bringing things together rather than either/or
from our perspective.
Dr Ryan: Could I offer a quick comment
in response to those questions? Firstly on the relationship between
Frontex and the Member States, my assessment would be that Frontex
is more than a passive co-ordinator of Member States' activity
where it is the kind of thing they would have been doing anyway.
Frontex has rather led to a step change in the situation because
it is initiating the co-ordination that it engages in. I think
it is appropriate to look at Frontex somehow separately from the
Member States and perhaps, in many ways, as almost more important
than the Member States, certainly in some of the contexts in which
it is operating. I do agree with you that this is a difficult
situation and often a tragic situation that we are dealing with
when you are talking about people crossing the sea in flimsy vessels,
and stopping that happening is not absolutely a wrong thing to
do; I do not think any of us here is saying that. But because
it is difficult it is not enough just to say "Push people
back" and then not think about what comes after that. A point
I have made a couple of times is that they have pushed them back
to particular states that we might otherwise have concerns about
as to how people are treated and how especially non-nationals
are going to be treated in those states. So pushing back and then
washing of hands does not seem to me an appropriate response,
but that is not to deny however the difficulty of the situation
and so the absence of any simple solution to it.
Q437 Lord Teverson:
Rather than going around the houses, surely what you are saying—with
which I would tend to have some sympathy—is that when someone
comes into contact with Frontex it should just be from a legal
way the same as if they had arrived at the land border control
of an EU Member States. That is what we are saying, is it not?
It should not be any different that your first call if you like
is Frontex as opposed to a border post on the Moroccan/Spanish
land border.
Dr Ryan: I would not actually go that
far in all circumstances. Are we talking about the high seas or
are we talking about the territorial waters of Member States?
Q438 Lord Teverson:
You think there is a difference, do you? Clearly there is a difference
legally but you are saying there should be a difference in terms
of the asylum seeker.
Dr Ryan: I think in terms of the starting
point, yes, but the second point I wanted to make is that it all
depends on the state that is the interlocutor to which individuals
may be returned. What is going to happen to them if they are returned
to that state? That is a context specific point, it is not a general
one. It is about the particular operations of particular states
that are in that situation.
Q439 Lord Teverson:
I will leave it there.
Ms Coelho: My response to that question
would be that anybody subject to a Frontex operation should not
have any fewer rights than if they were subject to any border
controls undertaken by a Member State. That is my response to
that, which is agreeing with what you are saying, that all the
responsibilities should clearly flow into and through a Frontex
operation as it would through the national authorities. We are
not convinced that that is actually in place, that the mechanisms
are in place to allow that.
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