Chapter 5: EU Agencies
The role of EU Agencies in the Action Plan
140.EU Agencies are expected to play a significant role in putting the Action Plan into practice. From the number of tasks allocated to Europol, Frontex and the European Union’s Judicial Cooperation Unit (Eurojust), it appears that the Commission will rely heavily on these Agencies going beyond their current responsibilities in order to implement the Action Plan successfully.
141.This reliance will test Agencies’ mandates, resources and current modes of communication and operational cooperation. It also raises questions of accountability and transparency, where responsibility for tasks may be shifted from individual Member States or the Commission to one or more of the Agencies.
142.A list of all Agencies involved in EU action against migrant smuggling, including their respective mandates and tasks, is attached to this report as Appendix 5.
Mandates
Legal and operational issues
143.In order to account for the expanding list of tasks to be carried out by EU Agencies, the Action Plan both implicitly and explicitly refers to extending their respective mandates.
144.Mr Wainwright, Director of Europol, thought that Europol’s current mandate for tackling migrant smuggling was both clear and legal. However, he had concerns about one specific aspect of the Action Plan, which would require Europol to increase its support for detecting Internet content used by smugglers: “Until now we did not have an established direct operational connection with the private sector. Our new legal regime, which is currently being negotiated, should clarify that point.”120
145.Frontex said that its current mandate was “not sufficiently straightforward”, with regard to the Action Plan’s calls for more research and risk analyses on possible links between cross border crime, irregular migration and smuggling. This lack of clarity led to “questions if not resistance from parties who do not understand the complex nature of border management or are unaware of the EU concept of Integrated Border Management and its close connections to internal and external security”.121
146.Mr Leggeri, Executive Director of Frontex, told us that Frontex was in talks with the Commission regarding changes to the Agency’s mandate with respect to returns policy, and regarding the possibility of establishing a European system of border guards that could be linked with an EU coastguard function.122 He said that with regard to returns policy, changes would be needed “in order to increase the mandate of Frontex to return people but also to support Member States in their pre-return actions.”123 Ms Spinant, Head of Unit at the European Commission, said that the former could be achieved within Frontex’s current mandate, but confirmed that with regard to the latter, “the Commission has already started work on revising the legal mandate of Frontex and we are planning to put the legislative proposals on the table before the end of this year.”124
147.The Immigration Law Practitioners’ Association suggested that it was more a question of political will, whether or not the mandates of EU Agencies would continue to be expanded, and that therefore the final extent of these developments remained to be seen.125
Fundamental rights concerns
148.Some NGOs had concerns about the suggested extensions to Frontex’s mandate, which would enable it to play a larger operational role in returning irregular migrants to their home countries.126 The Migrants’ Rights Network argued “strongly for placing the onus squarely on European governments to assess asylum or other claims made by individuals … outsourcing this to an inter-governmental border control agency creates an unacceptable conflict of interest, and would cast doubts on the credibility of the EU system.”127
149.Human Rights Watch UK and Amnesty International UK shared these concerns. Mr Mepham, UK Director, Human Rights Watch, was “worried about anything that tried to minimise or diminish the obligation on European governments to assess very carefully not only the asylum and protection claims of individuals but the circumstances in which they might be returned”, which was a “sensitive matter”.128
150.Mr Symonds, Programme Director, Refugees and Migrants Rights, Amnesty International UK, warned against the increased potential for collective returns, which take place when asylum claims are not assessed on an individual basis, and which are forbidden by Article 4 of Protocol 4 of the European Convention on Human Rights.129 He cautioned that “it is often much easier to monitor the actions of individual states than agencies that they subcontract or delegate their authority to”. Amnesty International UK was “very anxious to ensure that if Frontex is to be given such an expanded role, the EU starts by building into that how Frontex will avoid, and be seen to avoid, conducting [collective returns].”130
151.Mr Leggeri stressed the mechanisms currently in place to protect the fundamental rights of migrants coming into contact with Frontex: “The first is that the European Charter of Fundamental Rights applies to Frontex. Then there is democratic control through the European Parliament … Internally, we have a Fundamental Rights Officer. This person is independent but works in the agency, and her role is to make recommendations to the Executive Director of Frontex on fundamental rights issues.”131 In addition, a so-called consultative forum, comprised of NGOs, the Council of Europe and the EU Agency for Fundamental Rights (FRA), issued strategic recommendations with regard to planned Frontex operations.
152.Ms Spinant also noted that returns policy was governed by the EU Returns Directive,132 which the Commission planned to evaluate by 2017. Therefore, “the procedure and safeguards regarding returns will not be part of the revision of the legal framework of Frontex. Of course, any provision regarding the involvement of Frontex in the process of the return of irregular migrants will be matched by safeguards concerning fundamental rights, as is already the case in the Frontex legal basis.”133
153.Frontex has also recently been involved in a pilot project with the European Asylum Support Office (EASO) aimed at gathering information and intelligence on smuggling activities in the course of an asylum interviews.134 We questioned the impact that involvement by Frontex in these interviews—intended to determine and safeguard an individual’s right to international protection—could have upon the rights of asylum seekers and refugees. Ms Spinant’s responded:
“Very many safeguards are included. The search for information on migrant smuggling is carried out at the appropriate stage without interference and with due respect for the asylum process so as not to interfere with the rights of, and safeguards for, the asylum seekers.”
She added that as part of these efforts, the Commission was placing renewed emphasis on providing information to migrants, “not only on their options regarding asylum but also on their option of taking up assisted voluntary return instead of again falling prey to smugglers while making secondary movements within the EU.”135
154.Despite these assurances, we note concerns from some witnesses that the Action Plan allows for law enforcement officials to participate in debriefing sessions with migrants. The Migrants’ Rights Network argued that information sharing should only be done “in a manner that respects vulnerable individuals’ rights to privacy.”136 Mr Leggeri did not, however, provide us with more precise information about what role Frontex has in these meetings.
155.International law requires Member States to protect refugees and assess asylum claims on an individual basis. There is a danger that the proposed extensions to the mandates of EU Agencies may encourage Member States to distance themselves from this responsibility. Changes to the mandate of Frontex in particular should be monitored closely by the Fundamental Rights Agency and others on the Agency’s consultative forum.
156.We also recommend that the planned evaluation of the Returns Directive should be brought forward to a maximum of six months after any changes to Frontex’s mandate come into effect—rather than 2017—so as to assess the impact of any changes to its mandate. The consultative forum should be involved in contributing to such an evaluation.
157.Interviews with vulnerable migrants should be undertaken discreetly and considerately. Migrants should as normal practice be informed in advance of the purpose of any interview—whether to determine an asylum application or to collect information about migrant smugglers.
Resources
158.The expanding list of tasks for EU Agencies also raises the question of whether they possess the human and financial resources to take on this additional burden. There appear to be differences between the Agencies in this respect.
159.Eurojust confirmed that the refugee crisis had required the Agency to step up its support to Member States in investigating and prosecuting migrant smuggling networks, and that “additional resources would support Eurojust in its strategic and operational activities in the field of illegal immigrant smuggling, and ensure proper implementation of all the points in the EU Action Plan that require follow-up actions by Eurojust.”137
160.Mr Wainwright, Director of Europol, explained that the Agency’s core team dealing with migrant smuggling consisted of fewer than 20 staff, and that “for the moment, only an additional three posts have been allocated to Europol … That is clearly not enough.” He estimated that an additional 25 posts would be needed over the next two years in order to allow Europol to carry out its activities against migrant smuggling satisfactorily, alongside its growing responsibilities in other areas.138 Europol had informed the EU institutions of these needs, but Mr Wainwright acknowledged that “in these difficult budgetary times that will be a difficult and challenging discussion.”139
161.Frontex, on the other hand, seems to be well resourced, with the EU budget authority agreeing to increase the Agency’s 2015 budget by €47 million to €142 million, following the European Council in April. The Agency was also authorised to recruit 16 additional members of staff, with potential for further recruitment to be agreed by its management board. Mr Leggeri told us that Frontex currently deployed roughly 100 agents in Italy and 85 in Greece, and that the Agency “will very likely be authorised to recruit more staff members” in the future.140
162.The Immigration Law Practitioners’ Association was concerned that the rationale for allocating additional resources to EU Agencies should be transparent: “We are concerned that funds will be directed at more general immigration enforcement work and as a consequence the sums allocated to address the humanitarian crisis in the Mediterranean will be lower than the headline figures.”141
163.Agencies’ budgets should be reviewed to ensure that they are still adequate. If the Member States continue to delegate ever greater and more complex responsibilities to the Agencies, they should ensure that the Commission allocates sufficient resources to the Agencies reflecting this increased burden and responsibility.
164.The Commission must ensure that funds are allocated transparently and based on clear criteria. While some Agencies have been generously funded, others are under-resourced. We urge the Commission to review and address such discrepancies.
Cooperation, communication and coordination
165.The Action Plan refers to actions to be undertaken at both EU and national level, often in concert. We therefore sought to establish whether current structures to facilitate such cooperation were sufficient to accommodate the additional tasks foreseen in the Action Plan.
166.Law enforcement officials, including Mr Wainwright and Mr Dowdall, Deputy Director at the NCA, were largely positive about the interaction among the many different organisations, although Mr Dowdall admitted that it was a complex picture with room for improvement.142 Academic witnesses were less positive.
Inter-Agency cooperation
167.Witnesses agreed that inter-Agency cooperation in the field of migrant smuggling was particularly important in two respects: to facilitate an enhanced police and judicial response and to ensure the comprehensive and coherent collection of intelligence, foreseen by the first and second objectives of the Action Plan respectively.
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“What is the hotspot concept? Precisely, it is a way to provide concerted support from all relevant EU agencies to the Member States that experience very high and unexpected migratory pressure. That means that all the relevant agencies would deploy experts there and would co-ordinate the deployment of national experts from other EU Member States to the hotspots. The resulting fusion and concentration of information and operational co-operation should maximise the impact of the support provided to that Member State. “Smuggling is a very important aspect of the hotspot concept. We would expect strong co-operation between FRONTEX and Europol, as well as Eurojust, to enable long-term investigations into cases of migrant smuggling and the identification of the smugglers.”143 |
168.‘Hotspots’ are a key measure put forward by the Action Plan to facilitate inter-Agency cooperation to tackle migrant smuggling in locations that are particularly affected by the refugee crisis. Box 4 explains the concept in further detail. A flowchart illustrating how Member States and various Agencies work together to process an asylum claim, in a location where a Hotspot is operating, can be found in Figure 2.
Figure 2: The “Hotspots” approach
This diagram charts the steps according to which an irregular migrant or asylum seeker is processed by EU Agencies and Member State authorities in a designated Hotspot.
Source: Statewatch, Explanatory Note on the “Hotspot” approach (July 2015) p12: http://www.statewatch.org/news/2015/jul/eu-com-hotsposts.pdf (accessed 22 October 2015)
169.Mr Leggeri explained how, from Frontex’s perspective, Hotspots had improved the exchange of information on migrant smuggling. Instead of Frontex debriefers forwarding intelligence to host Member State law enforcement authorities, which were previously responsible for forwarding this information to Europol, Frontex now exchanged intelligence with Europol directly through liaison officers.144 He thought that the first Hotspot, established in Sicily, had been a valuable learning opportunity to optimise these procedures.145
170.Mr Wainwright told us that “Europol has always been a proponent of [Hotspots], because they allow us to get into the field, particularly by way of collecting better intelligence more quickly to feed into our system”.146
171.Regarding the collection and exchange of information, Dr Düvell, Associate Professor, University of Oxford, described the plurality of actors involved at EU and international level as “a mess”. In his experience “the bodies talk ad hoc to one another in the field and on the ground, but not necessarily at a higher level”.147 Ms Collett, Director, Migration Policy Institute Europe, agreed: “You also have senior officials resorting to informal channels of communication with each other and using Council Working Groups to exchange information, because the formal processes are not working for them in many cases, but also because they do not necessarily want all the information they have to be published.”148
172.On the other hand, Mr Wainwright felt that cooperation between Europol and its principal partner Frontex was good, and based on “a very symbiotic relationship that is working rather well”.149 He did, though, see room for improvement, particularly in the exchange of operational information between the two Agencies. While both Agencies’ mandates allow such an exchange, there is currently no operational agreement enabling it.
173.Mr Leggeri told us that Frontex was waiting for an opinion from the European Data Protection Supervisor in order for such an agreement to go ahead, and that he hoped that “by the end of this year we will get a green light that will make it possible to fine-tune the ICT settings and then we will be able to directly forward to Europol personal data such as the names, or the alleged names, of traffickers and smugglers, phone numbers and the licence plate numbers of vehicles.”150
174.Both Europol and Frontex also interact with the EU naval force EUNAVFOR Med. Frontex described this as “an effective cooperation structure and information flow … that aims at guaranteeing that the EU Common Security and Defence Policy mission and Frontex-coordinated Operation Triton deliver the expected EU value and are fully coordinated.”151
175.In recognition of the importance of inter-Agency cooperation, the Commission has established a Contact Group of EU Agencies on migrant smuggling. Through this Group, it intends to support the Agencies involved—Frontex, Europol, Eurojust and, to a lesser extent, the European Maritime Safety Agency and the European Police College (CEPOL)—by facilitating discussion on topics such as criteria for the identification of suspect vessels or operational cooperation in tracking smugglers’ assets.152 It will also be used to discuss new and emerging challenges in order to arrive at a swift and coordinated response.153
176.Of this Group, Ms Spinant said: “The aim is precisely to bring around the table all relevant agencies so that they can inform each other about what they have done and what information they have got their hands on regarding migrant smuggling, and so that together they can launch projects … We believe that that is a very direct, straightforward and efficient way of co-operating.”154
Cooperation with Member State authorities
177.In order to perform the tasks foreseen in the Action Plan adequately, EU Agencies also require the cooperation of Member State authorities.
178.Mr Wainwright was positive about UK cooperation, saying that he viewed it as one of Europol’s “leading supporters.”155 The UK does not, though, fully participate in Frontex, although it can be involved in Joint Investigation Teams (JITs) and Joint Operation Teams (JOTs) coordinated by the Agency.
179.The Minister said that he saw “real value in EU cooperation” against migrant smuggling: “there is an important role for the EU on co-ordinating a response … You have a co-ordination function that may then lead to action being taken or work that may be bilateral or trilateral between individual Member States. I suppose I see it in that context”. He spoke in particular of a fruitful intelligence exchange with Europol and of the border protection activities conducted by Frontex. 156 Mr Dowdall confirmed that the UK was seeking to build upon existing EU structures in fashioning its own response to migrant smuggling, including through its active involvement in Europol’s JOT MARE.157
180.In the EU as a whole (and as indicated in Chapter 4), Mr Wainwright thought that the willingness of Member States to cooperate with EU Agencies was variable, especially regarding intelligence exchange.158 Frontex also indicated that there was room for improvement in this area:
“Frontex would require that strategic intelligence and analysis stemming out of investigations at national and EU level could be made available for the purpose of more targeted actions at the EU external borders. Furthermore, the possibilities for Frontex to provide analytical advice to relevant stakeholders should be enlarged.”159
181.Mr Leggeri pointed out that, as counterterrorism lies within the competence of EU Member States, and Frontex does not itself collect intelligence, there was no method for the Agency to identify relevant security threats at the EU’s external borders.160 He also told us of some practical difficulties arising in frontline Member States with regard to the identification and debriefing of irregular migrants:
“In principle, according to EU law, the first responsibility for fingerprinting lies with the host Member State. But, as it turned out last month—I was appointed in January so I could witness it—there were some shortcomings in projects such as this in some host Member States.”161
182.Ms Spinant stressed the importance of Member State cooperation with regard to ‘Hotspots’:
“Co-operation with the host countries is essential. The agencies are there to support those front-line Member States, and the experts deployed by the other EU nations are also there to provide support. That is why it is important to have a very good and permanently open communication channel with the front-line countries. They are key as regards smuggling because they are the ones that will launch the investigations.”162
183.We welcome the Action Plan’s call for greater coordination and cooperation between Agencies and Member States, although we recognise that there may be practical obstacles limiting such cooperation. The Commission should provide greater support to Agencies and Member States to encourage cooperation. It should also take steps immediately to counter legal and operational difficulties regarding inter-Agency cooperation. It should monitor the progress and evaluate the success of inter-Agency cooperation. It should do more to encourage Member States to be more forthcoming in sharing information. The Commission should take steps to ensure that such cooperation remains transparent and accountable to external stakeholders.
184.We urge the Agencies themselves—since they report to the Council—to do more to convince the Council to encourage the relevant Member State authorities to share information with the Agencies.
129 Hirsi Jamaa and Others v Italy (February 2012), 27765/09