Addressing Irregular Migration in the Mediterranean

Addressing
Irregular
Migration in the
Mediterranean
Kostas Ifantis

Addressing Irregular Migration in the Mediterranean

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Addressing Irregular Migration in the Mediterranean Addressing Irregular Migration in the Mediterranean

Table of Contents Executive Summary
A consensus is emerging across Europe that the EU needs
Executive summary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 a much more effective and coordinated maritime border
Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 control policy, enabling national and EU law enforcement
and counterterrorism agencies to work more closely in
The Mediterranean maritime border environment. . . . . . 9 tackling emerging threats and challenges.Policymakers
stress that more effective border controls and maritime
Irregular migration and trafficking: security depend both on new equipment and enhanced
The situation today and future trends. . . . . . . . . . . . . 12 operational capabilities, as well as on achieving tighter
Policies at the national level. . . . . . . . . . . . . . . . . . . . . . . 18 cooperation and interoperability between maritime players
within each nation and in coordination with EU agencies. For
EU policy initiatives and developments . . . . . . . . . . . . . 28 the first time, almost all nations now agree that the maritime
environment must become a controlled one, similar to air
Challenges and concerns. . . . . . . . . . . . . . . . . . . . . . . . . 40 space. This represents a substantial shift in thinking.
Conclusions and recommendations. . . . . . . . . . . . . . . . 45 Migratory pressures on the southern European border
pose a tremendous challenge to European policymakers. So
far, the development and strengthening of the EU border-
management strategy has been framed at the official level as
a key policy priority on the EU agenda. The EU has managed
Keywords: to construct the first generation of Integrated Border
Management (IBM). This includes a common codification of
Irregular migration, EU border control, Maritime security, the acquis on internal and external borders, the Schengen
Frontex Borders Code; the creation of Frontex, an EU agency tasked
with coordinating operational cooperation between Member
States in the field of border security; and a commonly
agreed definition of what IBM means at a European level.
The EU model of border management defines Frontex
as the main institutional actor in charge of putting the
integrated and global paradigm into practice. Frontex
encapsulates the need to have a common European
approach and to promote European solidarity in addressing
the challenge of irregular migration.

5 6


Introduction1 500,000 irregular immigrants within EU territory. About 40%
of them are sent back to their home countries, or to the
Border security has taken on a Community dimension. countries from which they travelled to the EU.3
National border authorities in Europe are being challenged It should be noted, however, that the nature of irregular
as never before. This is mainly the result of the new political, migration makes it extremely difficult, if not impossible, to
social, economic and security-related phenomena that find accurate data. The enormous range of figures produced
Europe has faced in the past 10–15 years. These include by those attempting to estimate the numbers indicates their
a growth in migration, increased international travel and unreliability. Therefore, all estimates in this area must be
international trade, and heightened security demands, considered with extreme caution.4
especially since 11 September 2001. According to a 2007 report to the European Parliament
Hundreds of millions of people are now travelling around by the United Nations Refugee Agency (UNHCR), as many
the world. Geopolitical instabilities in poor regions, as well as 120,000 migrants are able to enter the EU illegally each
as religious and ethnic conflicts, are increasing in number year. Immigration affects Member States differently. Some
and scale. The external borders of the European Union are have no external borders other than their airports; others,
crossed by more than 300 million travellers a year and this the Mediterranean Member States in particular, are, by
trend is growing. The EU is one open area of free movement, their position, vulnerable to illegal immigration on a scale
which means that some countries control sections of the with which they can barely cope. In terms of migratory
EU’s external borders on behalf of others. The United pressures at the sea borders, Spain registered 16,000
Nations Population Division estimates that in 2010 the illegal border crossings in 2008, Malta 2,000, Italy 35,000
number of migrants in the world, defined as persons residing and Greece 32,000, while figures for other Member States
outside their country of birth or citizenship, equalled 214 were negligible. Current migration trends suggest that
million. As of 2007, there were 18.5 million immigrants from special focus needs to be placed on the EU’s southern
outside the EU—third-country nationals—legally established maritime borders to achieve integrated border-management
in the 27 EU countries, representing about 4% of the total structures that can safeguard one of the most tangible and
population. As for irregular immigration 2 into the EU, the appreciated benefits the Community has brought to its
European Commission estimates that there are at least 4.5 citizens: the free movement of people.
million irregular immigrants spread across the EU. This paper will address not only the principles which should
Each year authorities in EU countries apprehend about guide the involvement and activities of Frontex, but also
whether the overall political mandate and the operational

1
I am deeply grateful to Dr Maria Gianniou, one of the most talented research assistants
with whom I have worked.
3
European Commission, An Opportunity and a Challenge: Migration in the European Union,
2
The terms ‘irregular migration’ and ‘migrant workers in irregular status’ are the preferred Publications Office of the European Union (May 2009), 10.
terms increasingly accepted by the International Labour Office (ILO) and other international
organisations, while ‘illegal’ is considered to have a negative connotation. Although the EU 4
International Labour Office, International Labour Migration: A Rights-based Approach
uses both terms, in this paper we use ‘irregular’ throughout. (2010), 32.

7 8


planning and contingencies need to be better defined of the world’s sea-borne oil traffic and 30% of the world’s
and extended. At the same time the paper will assess a sea-borne trade transits through its waters.7
number of possible proposals and recommendations—
organisational, operational and technical—for the At the same time, through its geographic position, the
development of the Mediterranean area into a space of Mediterranean constitutes a maritime border for Europe,
security and safety in accordance with fundamental human Asia, the Middle East and Africa, and is a strategic seaway
rights, the principles of democracy and the rule of law. for the increasingly trans-boundary nature of regional and
international activities. The Mediterranean EU Member
States and the EU as a whole are consequently exposed to
a number of challenges and threats affecting their security
and internal stability, such as ongoing armed conflicts;
terrorism; trafficking in humans, drugs, conventional
weapons and weapons of mass destruction; and irregular
The Mediterranean Maritime migration flows.

Border Environment The recent political upheavals in the Arab world have
underlined the importance of this proximity factor: societal
change in the Maghreb and the Middle East has had a
General Characteristics and Challenges number of effects on Europe. The past few months have
A recent Eurostat survey on key figures for coastal regions demonstrated that the EU must find ways to deal with a
and sea areas reveals that the length of the coastline for possible disruption in oil supplies and cope with a renewed
the 22 EU Member States with a sea border is estimated to wave of irregular migrants and asylum seekers. At the same
be 136,106 kilometres. These coastal regions are the home time it must elaborate a revamped regional response that
territory for 43% of the European population that lives by provides the means to cooperate with its southern partners
the sea.5 in light of the as yet unknown political, social and economic
outcomes.
On its southern borders, the European coastline is 34,109
kilometres long.6 The Mediterranean, Europe’s largest shared
sea, constitutes a source of both prosperity and turmoil as
people and goods shuttle back and forth daily. Nearly 25%

5
Eurostat, Unit E1, Agro-environment and Rural Development, Nearly Half of the
Population of EU Countries with a Sea Border is Located in Coastal Regions, Statistics in 7
European Commission, Towards an EU Integrated Maritime Policy and Better Maritime
Focus 47/2009. The survey also underlined that Malta has the highest population density.
Governance in the Mediterranean: Questions and Answers (2009), accessed at http://
6
United Kingdom, House of Lords, European Union Committee, Frontex: The EU External europa.eu/rapid/pressReleasesAction.do?reference=MEMO/09/387&format=HTML in May
Borders Agency, 9th Report of Session 2007–8 (2008), 17. 2011.

9 10


Reinforced Southern Maritime Borders The recommendations given outline a process aimed at
securing Europe’s border. In this respect, special attention is
All of this accentuates more than ever the need to reinforce paid to the upgrading of Frontex and to the need to provide
the management of Europe’s southern maritime borders. the agency with the necessary means to produce more
This idea is not new. In 2006 the European Commission targeted risk analyses and to become more effective. This
published a communication calling for ‘immediate and means providing access to information, pooling of technical
decisive action at both national and European levels, in equipment under the agency’s management, cooperating
order to safeguard the Schengen system’.8 An effective with international organisations, and continuous control and
managerial system should, therefore, incorporate the surveillance operations in the Mediterranean.
integrated management of all European external borders;
a common body of legislation; operational cooperation The European notion of an integrated border-
between Member States; and, above all, respect for the management platform is dependent on the creation
principles of solidarity, mutual trust and co-responsibility. of specific tools such as a permanent coastal patrol
network, regional command centres, a common European
This should be achieved through concrete actions and surveillance system, a pool of available experts and so on.
productive dialogue, not only among European states At the same time, the use of European funds should be
but also between the Mediterranean EU states and their maximised, with particular priority given by the European
southern partners. Moreover, increased migratory pressures Commission to the definition and determination of the
on Europe’s southern flank are complicated by the preferred methods for intercepting vessels at sea.9
Mediterranean EU Member States’ current economic crises.
This is particularly evident in Greece.
Even if these financial developments might temporarily
discourage migration, a trend in this direction has not yet
been observed and is unlikely to occur. The general social and
economic well-being of the European model still constitutes
an attractive pull factor for potential asylum seekers and Irregular Migration and Trafficking:
irregular immigrants. A sound European immigration policy the Situation Today
should not only be oriented towards the protection of its
external borders, but should also address the roots of the and Future Trends
problem, the push factors that force people to migrate.
Management of Europe’s Mediterranean borders is
During 2010 a total of 104,049 detections of illegal border
currently based on a set of principles and objectives set out
crossings were registered at Europe’s external land and sea
by the European Commission in its 2006 communication.
borders, about the same as was recorded for 2009.Compared
8
European Commission, Reinforcing the Management of the European Union’s Southern with 2008, when the number of illegal detections reached
Maritime Borders, Communication, COM(2006) 733 final (30 November 2006), 3.

11 12


159,092, the lower levels of 2009 and 2010 are practically was 30,000 in 2006, and the highest on the island of
identical. It is, however, interesting to note that 2010 was Lampedusa in Italy was 31,000 in 2008.11
marked by visa liberalisation in the Western Balkans, a
consequent increase in passenger flows and a considerable
divergence in modus operandi as far as irregular migration
routes are concerned. This suggests that immigration patterns Table 1 Frontex Risk Analysis Network (FRAN) Indicators
are neither homogenous nor unique as far as concerns the
2008 2009 2010 % change over
origins of migrants, their chosen routes, the differentiation
a year ago
between economic immigration and asylum seekers, and so on.
Illegal entries 159,092 104,599 104,049 -0.5%
between BCPs 12
Clandestine - 296 242 -18%
Shifting Migration Trends entries at BCPs
Migration trends in the greater Mediterranean region are not Facilitators 9,881 9,171 8,629 -5.9%
the same as they were years ago, but have shifted from the Illegal stays 441,230 412,125 348,666 -15%
western to the eastern part of the basin: irregular migration
towards Europe through western Africa has considerably Refusals of entry 121,294 113,029 108,500 -4.0%
decreased while an abrupt increase in migration flows has Applications for 223,180 219,814 203,880 -7.2%
been recorded in the Eastern Mediterranean, particularly asylum
at the Greek–Turkish land border. In 2010 Greece became False travel docu- - 7,872 9,439 20%
the EU country receiving the greatest bulk of irregular ment users
immigrants and asylum seekers, and Turkey became the Returns (for 10 - 65,828 74,110 12%
main transit country.10 Member States)

The land and sea border between Greece and Turkey Other indicators
represents Europe’s main challenge in dealing with irregular Visas issued 13,493,948 12,486,676 - NA
migration. Between 2009 and 2010 detected illegal border Passenger flow 713,000 660,000 - NA
crossing by migrants who intended to transit Greece to
settle in other Member States increased by 45%. In 2010 Source: Frontex, Annual Risk Analysis 2011, 9.
alone Greek authorities reported 47,706 detentions at
the land border with Turkey. In the Canary Islands, by
comparison, the highest number of detentions ever recorded

9
Ibid. 11
Ibid., 14.
10
Frontex, Annual Risk Analysis 2011 (April 2011), 5. 12
‘BCP’ stands for ‘border crossing point’.

13 14


Currently, Mediterranean EU states are finding themselves Modus Operandi
under intense pressure. The events of the past few months
in the basin’s southern states have not only generated hope Records of irregular migration in the Mediterranean region
for a better future based on respect for democracy and indicate that border crossing by sea was traditionally the
human rights, but have also caused a wave of people to preferred route. However, recent figures suggest an increase
flee towards Europe to escape economic insecurity in North in land-border crossings from 55% in 2009 to 86% in
Africa. Italy, Malta, Greece and Cyprus are directly exposed 2010.16 This strategy involves crossing the border in small
to these migratory pressures and are called upon to deal groups, often a short distance from check-points. The
with both irregular migrants and asylum seekers needing identity of most immigrants is not easily determined because
international protection. The efforts to deal with this pressure they enter with false documents, or none at all, to avoid
should not be limited to measures taken on a national level, being repatriated. Afghans or Palestinians entering Greece,
but should be supervised and sponsored by the EU as a for example, are unlikely to be returned to Turkey, and if they
whole, according to the spirit of European solidarity. are detained by police they consider it a stopover on their
journey into the EU.17
This is not going to be easy. By April 2011 more than
23,000 people had arrived on the island of Lampedusa from The question of identification illustrates the challenge
Tunisia,13 while the number of people leaving Libya destined EU authorities face, which is how to make the distinction
for Europe and other non-EU countries, mainly Tunisia and between economic migrants and people with legitimate
Egypt, increases by the day.14 In 2011, 650,000 people claims. Many Member States have reported migrants
left Libya to escape violence and conflict. The European applying for asylum only after they have been arrested. An
Commission estimates that a great number of these people increase in asylum applications from Afghan nationals has
are economic immigrants and should be returned to their been observed in Germany, particularly after the Federal
countries of origin.15 At the same time, measures should Constitutional Court ruling on the suspension of returns
be taken to help refugees, asylum seekers and temporarily to Greece, the country of entry to EU soil. At the EU level,
displaced persons who are in genuine need of protection. in the second and the third quarters of 2010, asylum
applications rose by 28%, the highest percentage increase
since regular data collection began in 2008.18
All of this suggests the need for a coordinated EU effort
to tackle migration and offer international protection to
people genuinely in need. To achieve this, efforts will have
to concentrate on pinpointing the mechanisms and tools

13
During winter, the island has a stable population of 5,000 inhabitants. 16
Frontex, Annual Risk Analysis 2011, 27.
14
Council of Europe, Parliamentary Assembly, Resolution 1805, 2011. 17
Ibid., 28.
15
European Commission, Communication on Migration, Communication, COM(2011) 248
final (4 May 2011), 5.
18
FRAN Quarterly 3, July–September 2010, 20.

15 16


that facilitate identification procedures. This entails not from security forces loyal to President Bashar Al-Assad and
only coordination between Member States through the creating the risk of a refugee crisis.20
creation of national coordination centres, for instance, but
also between the national authorities themselves, by way of Even if patterns change, immigration will continue to
properly functioning reception centres. affect Europe. The recent rise of far-right parties throughout
the continent highlights inflexible attitudes towards migration
and indicates that European perceptions of ‘the other’ are
increasingly related to employment and personal security,
Future Trends and fed by the fear of terrorism and European perceptions
Drawing hasty conclusions on future migration trends in the of Islam. In this context Europe is turning into what many
Mediterranean basin would be unwise. Data collection so far analysts characterise as Fortress Europe, alienating itself
describes fluctuating operational patterns. In the first three from the notion of open borders.21
months of 2010, for example, a significant decrease was
observed in all irregular immigration indicators on the EU’s
external borders. Detections at sea were less than one-tenth
of the peak of 33,600 reported during the third quarter of
2008. This was the result of several developments: reduced
employment opportunities for immigrants resulting from the
economic crisis in Europe, effective asylum policies and Policies at the National Level
restriction measures adopted by Member States, and the
conclusion of bilateral agreements between Member States
and key countries of origin.19 Irregular immigration directly affects the EU’s southern
Member States. Their concerns were evident in February
Yet during the same period detections rose along the land 2011 when the home affairs and internal security ministers of
border between Greece and Turkey, suggesting a shift from Cyprus, Greece, Italy, Malta and Spain issued a joint
the traditional access by sea. Moreover the recent events in communiqué underlining their concerns about the humanitarian
the Arab world have caused massive waves of movement situation in North Africa and the consequent migratory flows.22
towards Europe, creating, as will be analysed later,
frustration between Member States and cracks in European
solidarity. During the early days of June 2011, hundreds
of Syrian nationals fled to Turkey, fearing major assaults 20
Sebnem Arsu and Liam Stack, ‘Fearing Assault, More Syrians Flee into Turkey’, New
York Times, 9 June 2011, accessed at: http://www.nytimes.com/2011/06/10/world/
middleeast/10syria.html?_r=2 on June 2011.
21
M. Ilies, Irregular Immigration Policy in the European Community: Action at all Stages of
the Irregular Migration Flow (WP), Working Paper 38/2009, Real Instituto Elcano (17 July
2009), 3.
Frontex, ‘Irregular Immigration Hits New Low in First Quarter 2010, Facilitator Detections
19

Up 13%’, press release, 7 July 2010, accessed at: http://www.frontex.europa.eu/ 22
For the communiqué, see: http://www.frontex.europa.eu/rabit_2010/background_
newsroom/news_releases/art68.html on May 2011. information/, accessed on 25 May 2011.

17 18


Their call for more pronounced European action was 7. change the Dublin II regulation in order to
reiterated on 19 April 2011 when the Mediterranean EU accommodate Member States facing significant
states demanded the strongest financial and operational migratory pressures;
support consistent with the spirit of European solidarity in
their efforts to handle immigration from the Maghreb. 8. deliver financial assistance to those Member States
in need;
9. give the European Asylum Support Office the means to
They specifically urged the EU to offer technical and logistical support to the
Mediterranean Member States.
1. present and implement proposals on the Global
Approach to Migration, as well as on Mobility Migratory pressures are not equally distributed throughout
Partnerships;23 the EU, not even between the Mediterranean Member States
themselves. In 2006 Spain and Italy were overexposed to
2. speed up the conclusion of operational working migration flows, while in 2010 Greece had to face immense
arrangements between Frontex and countries in the numbers of people seeking refuge in the EU.
region;
3. call on Frontex to continue its ongoing operations in
the Mediterranean, to expand them if necessary in the Greece under Scrutiny
eastern part of the basin and to enhance its monitoring
capacities based on risk analysis; Over the past year particular pressure has been put on
Greece, which has shifted the migration burden away from
4. strengthen the operational capacity of Frontex’s office the Western Mediterranean. In January 2011, Frontex’s
in Piraeus; risk-analysis network emphasised that the increase in
detected irregular border crossings at the EU level was
5. amend the Frontex regulation as soon as possible;24 ‘almost exclusively the result of increased pressure in
6. conclude readmission agreements with third countries Greece, where around four-fifths of all detections in the EU
and promote the development of voluntary return were reported’.25 From January to October 2010 the Greek
programmes; authorities reported more than 75,000 detections across
external EU borders in Greece, 39,000 of them registered at
the land border with Turkey—one of the highest figures ever
recorded at the EU level.26
23
Mobility partnerships are negotiated agreements between the EU and third countries
which are prepared to better manage migration flows and to fight irregular migration in
particular. In exchange, third countries acquire enhanced mobility between the EU and
the home country for their citizens, both in terms of legal migration and short-term stays.
24
Council of the European Union, ‘Council Regulation No 2007/2004 of 26 November 2004
Establishing a European Agency for the Management of Operational Cooperation at the
25
FRAN Quarterly 3 July–September 2010 (January 2011), 3.
External Borders of the Member States of the European Union’, Official Journal of the EU L 26
Frontex, ‘Current Migratory Situation in Greece, 29 November 2010’, accessed at
349, (25 November 2004), 1–11. http://www.frontex.europa.eu/rabit_2010/background_information/ in May 2011.

19 20


Most detections take place on a single 12.5 kilometre arrivals in November and December of 2010. The majority
stretch near the Greek city of Orestiada, and most of the of migrants are of Afghan (25%), Pakistani (14%) and
apprehended immigrants are of Afghan, Iraqi and Pakistani Bangladeshi (12%) origin.29
origin. An increase was also recorded in Algerian nationals
during 2010.27
Greece was unable to manage these considerable Table 2 Detections at the Land Border between Greece and Turkey30
migratory pressures. This is why the first Rapid Border
Intervention Team (RABIT) was deployed to the northern January 2010–October 2010 39,000
part of Greece in November 2010. Commitments in both November 2010–December 2010 8,054
material and human resources were made by Member
January 2011–March 2011 5,281
States, including the deployment of 175 specialist border
control personnel who took responsibility for monitoring and
securing the Greek–Turkish border, conducting interviews
Greece is the host country for the first Frontex
to discover the nationality and identity of immigrants,
Operational Office, and is responsible for providing
and engaging in intelligence activities related to human
regionally based support for Frontex-coordinated activities.
trafficking.28
The aim is to implement this pilot project in other crucial
RABIT came to an end in March 2011 and was replaced regions on Europe’s periphery. This goal reflects the
by Joint Operation Poseidon, which had been active in conclusion of discussions about the enhancement of the
the area prior to the deployment of RABIT. According to agency’s operational capacity for border management, joint
Frontex, RABIT was able to achieve its main objective during operations in the Mediterranean and situational awareness
its operational period: securing Europe’s borders. in the greater region.

Poseidon, initially assigned to cover this border, was Recent developments in migratory influx have shifted
widened to include the Greek island of Crete, in an effort to the EU’s attention towards Greece, Europe’s weakest
tackle migration from Libya. Since its inception, Poseidon and currently economically most vulnerable link. At the
has registered a decline in illegal border crossings between same time Greece’s national immigration policy and
Greece and Turkey. From 1 January until 24 March 2011, Frontex’s activities in its territory are being scrutinised by
5,281 migrants were detected, compared with 8,054 international and European non-governmental organisations
(NGOs). These organisations not only criticise the lack of
reliable quantitative data, but also stress the authorities’
27
Frontex, Annual Risk Analysis 2011, 12–13.
28
For this operation, Frontex had technical equipment from the Centralised Record of 29
Frontex, ‘Update to Joint Operation Poseidon 2011’, press release, 26 March 2011,
Available Technical Equipment (CRATE) at its disposal. This included 1 helicopter, 1 bus, 5 accessed at http://www.frontex.europa.eu/newsroom/news_releases/art104.html
minibuses, 19 patrol cars, 9 thermo vision vans, 3 Schengen buses and 3 office units. See in May 2011.
Frontex, ‘Greece RABIT 2010 Deployment’, 2010, accessed at http://www.frontex.europa.
eu/rabit_2010/background_information/ in May 2011. 30
Ibid.

21 22


inefficiency in dealing with migrants, pointing to human Greek authorities are also often accused of not meeting
rights violations and the existence of an official rhetoric that the minimum standards for humane detention conditions.
blames immigrant influxes for rising unemployment, national During the first nine months of 2010 the detention centres
insecurity and a disproportionate burden on public services. in the Evros and Rodopi regions— in the northern part
of the country near the land border with Turkey—had to
Greece is particularly targeted for deficiencies in its manage 31,219 irregular migrant arrivals. The corresponding
asylum procedures. In fact, because Greece has been figure for the first nine months of 2009 was 8,787.34 This
unable to develop a policy to expel illegal immigrants to considerable increase in numbers was coupled with the
Turkey, as Spain has done with Morocco, or Italy with Libya deficiencies of the Greek system: the opaque allocation of
and Tunisia, migrants choose to cross the land border European funds, unsuitable infrastructure, an inadequate
between Greece and Turkey and then move on to Western capacity to deal with sanitary problems, limited staff,
Europe either via the sea and Italy, or through the Balkans. overcrowded centres and so on.35
In January 2011 the European Court of Human Rights
ruled that Belgium should not have deported an asylum
seeker to Greece under the Dublin II regulation because Western Mediterranean Developments
Greece had failed to implement common EU standards,
rendering the assumption of Dublin II on the safe transfer The primary focus in this region is on developments in
of asylum seekers between EU member countries virtually Spain and Italy, the two EU Member States most vulnerable
meaningless. Germany has also stopped sending asylum to migratory pressures in the Western Mediterranean.
seekers to Greece so as not to impose a further burden on Since 2006, Spain has registered relatively low, yet still
the Greek asylum system.31 considerable, numbers of irregular migrants. During the third
quarter of 2010 there were 2,200 detections of illegal border
Greece’s main violations of the Dublin II convention crossings in the Western Mediterranean, more than twice
concern deficiencies in its asylum procedure and detention as many as during the first quarter of 2010, and three times
conditions. In reality, less than 1% of asylum applications more than during the same period in 2009.36 Yet, the overall
are granted in Greece,32 while the authorities have decreasing trends are considered to be the successful
constantly been accused of violating the country’s asylum outcome of Spain’s bilateral agreements with the Western
procedures.33 African countries of Mauritania, Senegal and Mali.

31
Toby Vogel, ‘Expulsion of Asylum Seekers to Greece “Illegal”’, European Voice, 21
January 2011, accessed at http://www.europeanvoice.com/article/2011/january/
expulsions-of-asylum-seekers-to-greece-illegal-/70019.aspx on May 2011.
34
Thanos Maroukis, ‘Irregular Migrants in the Detention Centres of Northern Greece—
32
Migreurop, Aux frontières de l’Europe, contrôles, enfermements, expulsions, Rapport Aspects of a Humanitarian Crisis’, Clandestino (website), 19 November 2010, accessed
2009–2010 (October 2010), 76, accessed at at http://clandestino.eliamep.gr/irregular-migrants-in-the-detention-centres-of-northern-
http://www.migreurop.org/IMG/pdf/Migreurop-2010-FR.pdf in May 2011. greece-%E2%80%93-aspects-of-a-humanitarian-crisis/#more-1416 in May 2011.
33
Amnesty International, The Dublin II Trap: Transfers of Asylum Seekers to Greece (22 35
Ibid.
March 2010), accessed at http://www.amnesty.org/en/library/asset/EUR25/001/2010/en/
e64fa2b5-684f-4f38-a1bf-8fe1b54d83b5/eur250012010en.pdf in May 2011. 36

23 24


Spain’s problems with migratory flows were accentuated relatively stable and fewer than in 2008. For example, during
during the crisis in the Canary Islands in March and April the third quarter of 2010 there were just 2,157 detections of
2006. During the first months of the year the number of illegal border crossings, while for the same period in 2008
irregular immigrants rose to 31,863, compared with 4,790 authorities had registered around 16,000 detections.41
in 2005.37 Spain tried to convince its European partners that
this was not only a national but also a European problem. Immigrants reach the shores of Italy from both the east,
Yet, Spain was criticised for its February 2005 amnesty on the country’s maritime borders with Greece, and from the
programme, which according to many EU Member States south. Yet, since the 2008 Treaty of Friendship, Partnership
attracted massive waves of irregular immigrants to Spanish and Cooperation signed between Italy and Libya,42 many
shores. In the words of Spanish Prime Minister Zapatero, potential immigrants who would have chosen to depart
‘the process of normalisation is a preventative form because from Libya en route to Europe choose instead to go through
a controlled immigration detracts from illegal immigration’.38 Greece and from there to Italy via the Ionian and Adriatic
Still, this did not reflect everyone’s point of view. The seas. This phenomenon has been accentuated by the
European Commission has stated, for example, that ‘to a closure of the Spanish–Moroccan border.
certain extent regularisations offer a form of encouragement Once in Italy, a great number of immigrants are captured
to illegal migration’.39 This stance ultimately prompted the by the authorities and sent back to Greece using the
Council to adopt a decision to establish a mutual information refoulement procedure, which directly conflicts with the
mechanism concerning measures that Member States take basic principles of Dublin II. The Greek and Italian authorities
in the areas of asylum and immigration.40 justify these refoulements on the basis of a bilateral accord
Nevertheless, Spain’s politicians Europeanised the they signed on 30 March 1999 concerning the ‘readmission
issue through an intensive media campaign. The Spanish of persons of irregular situation’.43
pressures eventually led to the launching of the Joint Even though it seemed that Italian authorities had, more
Operations Hera I, Hera II and Hera III. or less, been controlling migratory flows from Libya, the
During the past couple of years, detections of irregular eruption of revolutions in North African countries early in
immigrants on the Western Mediterranean route have been 2011 posed new challenges. Since December 2010 the
Italian authorities have had to face a considerable influx
of undocumented North African immigrants from Tunisia.
In response they issued temporary residence permits
37
S. Carrera, The EU Border Management Strategy. Frontex and the Challenges of Irregular
Immigration in the Canary Islands, Working Document No. 261, Centre for European Policy
Studies (March 2007), 13.
38
M. Sapp, ‘Spain’s Amnesty Programme Attracts Thousands’, EUObserver, 24 February
2005, accessed at http://euobserver.com/?aid=18491&rk=1 on May 2011. 41
39
European Commission, Communication on the Links between Legal and Illegal 42
‘Berlusconi da Ghaddafi, siglato l’accordo: Uniti sull’immigrazione, Corriere della Sera,
Immigration, COM(2004) 412 final (4 June 2004), 10. 30 August 2008, accessed at http://www.corriere.it/esteri/08_agosto_30/berlusconi_libia_
40
‘Improving the Exchange of Information on National Asylum and Immigration Policies’, gheddafi_bengasi_478ee3f4-767e-11dd-9747-00144f02aabc.shtml, in July 2010.
Europa Press Release IP/06/1317, 5 May 2006. 43
Migreurop, Aux frontières de l’Europe, contrôles, enfermements, expulsions, 74.

25 26


for humanitarian protection, automatically granting them
the right to move freely within the Schengen territory.44
EU Policy Initiatives and
This provoked a strong reaction from France, which then Developments
introduced internal border checks between France and Italy.
Hundreds of immigrants have thus been pushed back either
to Italy or to Tunisia, and France has been accused of acting Frontex’s role is limited to providing support and expertise
against the spirit of the Schengen acquis. French Minister to EU Member States. Its involvement in on-the-ground
of the Interior Claude Guéant emphasised that the Italian operational activity is limited to the coordination of specific
initiative did not conform with the Schengen convention and joint operations between Member States’ border guard
that French border controls were to be made 20 kilometres authorities. Frontex neither replaces national border guard
away from the border line.45 duties nor has independent executive powers. For its
Although Italy complied with its obligation under Article operations it remains largely dependent on Member States’
34 of the Schengen Borders Code and informed the assets and personnel.
European Commission about its intention to issue temporary An overview of Frontex’s basic operations illustrates not
residence permits, its actions drew attention to the fragile only the volume of irregular immigration in the Mediterranean
nature of the Schengen system, which functions in an region but also the joint efforts that the EU Member
environment of conflicting national interests. Italy’s intention States are willing to make—or not—in order to tackle this
in issuing the permits was to meet a genuine need to grant phenomenon.
humanitarian protection, but was also a political manoeuvre
to force European solidarity on the migration hot potato.46 It
raises, therefore, the question of how to deal with irregular
immigration while avoiding burden sharing on an EU level
Frontex Activities: Joint Operations
by transferring responsibility from one Member State to The increase in funding is reflected in the increased interest
another. and costs connected with joint border operations, which
make up more than 75% of Frontex’s total operational costs.
These operations are the core of Frontex’s activities and are
the main focus for many stakeholders, especially Member
States with exposed external borders. Hera, Minerva,
Nautilus and Poseidon have been the most important
44
Italy, Ministry of Interior, ‘Maroni: Ai migranti un permesso di soggiorno temporaneo’,
press release, 7 April 2011, accessed at http://www.interno.it/mininterno/export/sites/ operations coordinated by the agency.47
default/it/sezioni/sala_stampa/notizie/immigrazione/000069_2011_04_07_informativa_
Maroni_alla_Camera.html in April 2011.
45
‘Immigration: l’Italie n’obtient pas le soutien des pays européens’, Le Monde, 11 April
2011, accessed at http://www.lemonde.fr/politique/article/2011/04/11/immigration-l-italie-
n-obtient-pas-le-soutien-des-pays-europeens_1506112_823448.html in April 2011. 47
The presentation of the joint operations is based on information from Frontex found at
46
S. Carrera et al., A Race against Solidarity. The Schengen Regime and the Franco-Italian http://www.frontex.europa.eu/structure/opertaions and http://www.frontex.europa.eu/
Affair, Centre for European Policy Studies (April 2011), 9. examples_of_accomplished_operati.

27 28


Joint Operation Hera Joint Operation Minerva
At the request of the Spanish authorities, Frontex launched The Minerva operation was launched in 2007 as a result
operation Hera in 2006 to support Spain in tackling the of migratory pressure on the EU’s external borders on the
migration flow towards the Canary Islands, based on the southern coast of Spain. It had been noticed that irregular
results of a prior fact-finding mission. The legal basis for migrants were trying to blend in with the regular flow of
this operation was Article 8 of the Frontex regulation. The passengers in the seaports and on boats heading towards
operation consisted of two modules: expert assistance the Costa del Sol, Almeria and the Spanish enclaves of
(Hera I) and joint operations at sea (Hera II). Ceuta and Melilla. The enclaves attract many migrants
because of their location on the African Coast. The operation
Hera I deployed experts from around the European was hosted by Spain in cooperation with Austria, Belgium,
Union. Their task was to identify migrants and establish Germany, France, Italy, the Netherlands, Poland, Portugal,
their countries of origin. Hera II was a joint surveillance Romania and the UK. It involved exhaustive border controls
operation. It brought together technical border surveillance in the seaport of Ceuta as well as in the coastal waters near
equipment from several Member States with the aim of Almeria; both were receiving a large influx of nationals from
enhancing control of the Atlantic Ocean between the West Algeria and Morocco.
African coast and the Canary Islands. In practice this meant
diverting vessels carrying migrants on the open sea. The
operation was first carried out in the territorial waters of
Senegal and Mauritania and in close cooperation with these Joint Operation Nautilus
states. During the two operations almost 5,000 irregular Nautilus 2007 was started after a risk analysis showed
immigrants were prevented from setting off on their voyages. that the Central Mediterranean route from the Libyan and
A third Hera operation started in April 2007 and lasted Tunisian coasts towards the Italian islands of Lampedusa,
until December. Its aim and background was similar to Panteleria and Sicily, and towards Malta, was an important
those of the previous Hera operations. What is interesting migratory route. The operation was divided into two periods
about this joint operation is that it involved air and naval of one month each and was hosted by Malta and Spain. A
surveillance of the waters close to Mauritania and Senegal range of Member States took part and significant resources
to improve the early detection of migrants at sea. A total were available. During the mission, 1,182 migrants were
of 6,890 irregular migrants were intercepted and 3,127 detected inside and 1,991 outside the operational area. A
diverted. total of 3,173 irregular migrants were intercepted.
During Joint Operation Nautilus 2009 there was a
remarkable decrease in the number of third-country
nationals arriving at Malta. However, a significant obstacle to
the effectiveness of the joint operation lay in the contrasting

29 30


interpretations of the international Law of the Sea by of irregular migrants. Notwithstanding the complexity of the
Member States, and in the definition of the operational area. issue, the correlation could signal that irregular migration is
This led to a limited maritime surface contribution from mainly a function of labour demand in destination countries
Member States to the joint operation. A total of 13 experts and is largely predictable. As a result, the current decreasing
from 11 Member States provided assistance to the local trend in irregular migration represents a kind of a pause
authorities by interviewing and identifying irregular migrants. that will end when labour demand in Member States starts
to rise.
Joint operations are generally regarded as successful
in improving cooperation and knowledge sharing among
Member States, as well as in streamlining procedures,
and they ensure an increased degree of uniformity in the Current Developments on the Ground
handling of irregular immigrants, traffickers and so on. Responding to the volatile situation in North Africa, Frontex
Moreover it seems that they produce results on the ground. decided to extend the operational area for Joint Operation
Frontex reported a decline in illegal border crossings in Poseidon Sea49 and to launch, in February 2011, Joint
2009. According to its 2009 annual report there were Operation Hermes 2011 in order to tackle the waves of
165,700 detected illegal border crossings and refusals of EU migrants arriving on the Italian island of Lampedusa.
entry in 2009, a 22% decrease from 2008. The operation was the result of a request from the Italian
However the agency has been quite clear that a decrease authorities to Frontex, not only for assistance in the form of
was to be expected because of the impact of the global a joint operation, but also for a targeted risk analysis of the
economic crisis on irregular migration to the EU. In a 2009 possible future scenarios generated by increased migratory
analysis produced in cooperation with the EU Joint Situation pressure. During the first two months of 2011, around 6,000
Centre it indicated that the economic recession in the vast irregular migrants reached Italy’s shores.50
majority of Member States had led to a sharp increase in
unemployment rates, prompting numerous governments
to introduce measures to protect domestic labour markets.
The measures amounted to new immigration restrictions
aimed, successfully, at reducing the influx of migrants and
encouraging their departure.48
The Tailored Risk Analysis managed to establish a
strongly negative statistical correlation between rising
unemployment rates in Member States and the detections 49
Frontex, ‘Update to Joint Operation Poseidon 2011’, press release, 26 March 2011,
accessed at http://www.frontex.europa.eu/newsroom/news_releases/art104.html in May
2011.
48
Frontex Risk Analysis Unit in cooperation with the EU Joint Situation Centre and 50
Frontex, ‘Hermes 2011 Starts Tomorrow in Lampedusa’, press release, 19 February
International Organisation for Migration, The Impact of the Global Economic Crisis on 2011, accessed at http://www.frontex.europa.eu/newsroom/news_releases/art95.html in
Illegal Migration to the EU (August 2009), 4. May 2011.

31 32


Table 3 Detections on Italian soil to 13 February 201151 RABITs
Inci- Migrants Male Female Minors Accom- Unaccom- In July 2007 the Council amended the founding regulation to
dents landed panied panied
Minors Minors include the RABIT mechanism.52 The amendment expanded
the already existing authority to provide technical support to
Lampedusa 80 5,031 4,944 18 69 0 69
and Linosa Member States when requested. The agency may now call
up an expert pool consisting of some 450 national experts
Agrigento 3 20 20 0 0 0 0
who can be deployed. They are available at short notice of
coast
up to five working days to any Member State whose borders
Other places 21 211 210 0 1 0 1 are under urgent and exceptional strain from irregular
in Sicily
migration. The degree of commitment has also been
Apulia 3 57 43 2 12 6 6 stepped up by suggesting an obligation to contribute. Joint
Calabria 8 192 152 14 26 12 14 missions, however, are still governed by the host Member
Sardinia 1 15 15 0 0 0 0 State and consequently Frontex merely contributes to the
coordination and the financing of the mission. As we have
Total 116 5,526 5,384 34 108 18 90
mentioned, a RABIT operation has already been deployed in
the northern part of Greece.
Source: Frontex, ‘Situational Update: Migratory Influx to Southern Italy’, press release,
15 February 2011.

Agreements with Third Countries
Institutional Developments A further development, though not as institutionalised, is the
continuous contact that Frontex has with neighbouring and
Since Frontex’s foundation, its tasks have not changed
third countries. The 2006 Justice and Home Affairs Council
drastically. Nevertheless, considering its very broad
clearly favoured such an approach since it included these
mission statement, the interpretation of those tasks and
activities in the definition of integrated border management.
its adherence tools are dynamic.
The founding regulation provides for cooperation with the
authorities of third countries competent in matters covered
by the regulation. In practice, such cooperation consists
of purely technical arrangements, such as exchanges of
information and experiences, as well as cooperation in

‘Council Regulation No. 863/2007 of 11 July 2007 Establishing a Mechanism for the
52
51
Frontex, ‘Situational Update: Migratory Influx to Southern Italy’, press release, 15 Creation of Rapid Border Intervention Teams and Amending Council Regulation (EC) No.
February 2011, accessed at http://www.frontex.europa.eu/newsroom/news_releases/art93. 1007/1004 as Regards that Mechanism and Regulating the Tasks and Powers of Guest
html in May 2011. Officers, Official Journal of the EU L 199 (31 July 2007), 30–9.

33 34


training. Consequently, all references to politics have to be merging existing joint operations with the European Patrols
removed when drafting documents for cooperation. Network in the Mediterranean area. Further improvements
were suggested in the training of national border guards;
As of February 2011, Frontex had concluded working in Frontex’s risk analysis capability; in performing joint
arrangements with the relevant authorities of 14 third risk analyses with Europol, international organisations and
countries: the Russian Federation, Ukraine, Croatia, relevant non-EU countries; in the follow-up of research
Moldova, Georgia, the Former Yugoslav Republic of activities of relevance to the control and surveillance of
Macedonia, Serbia, Albania, Bosnia and Herzegovina, the external borders; and in the assistance provided by Frontex
US, Montenegro, Belarus, Canada, and Cape Verde, as well in organising joint return operations. In addition the report
as with the Commonwealth of Independent States Border recommended that RABITs, established in August 2007,
Troop Commanders Council and the Migration, Asylum, should benefit from the technical equipment owned by the
Refugees Regional Initiative Regional Centre in the Western agency.
Balkans.53
From a longer-term perspective, the assessment 55
underlined the crucial role of Frontex in the development
2008 Frontex Assessment of an integrated EU border-management system. The
key point was to see how Frontex could provide added
In February 2008, the European Commission released an value both to the EU’s integrated border management as
assessment of Frontex.54 The main issues in the evaluation a whole and to the separate components of this concept.
were whether Frontex should take on other tasks related to As a result, two major strands needed to be engaged: the
border management such as customs, how well the teams increasingly important cooperation with non-EU countries
deployed by Frontex are functioning and whether there is a and the horizontal integration of measures being put in place
need for a European border guard system. The assessment at the borders, for instance in a bid to improve cooperation
examined the agency’s progress since becoming operational between customs and other border control authorities.
in October 2005, recommended short-term improvement
measures and outlined a long-term vision for the future A further reflection on the allocation of financial and
development of Frontex. human resources to the activities of the agency and of
the cost effectiveness of the mechanisms then operated
The most significant of the short-term ideas were related by Frontex was also suggested. This was to go hand-in-
to using the full potential of the technical equipment put at hand with an assessment of whether some tasks assigned
the disposal of Frontex by EU Member States, establishing to national border guards could be transferred to border
specialised branches of the agency in critical areas and guards permanently working for Frontex. These proposed
measures reflected the fundamental division of powers
53
Frontex, ‘External Relations, Background’, accessed at http://www.frontex.europa.eu/ between the EU and its Member States. The latter would
external_relations/ in May 2011.
54
European Commission, Report on the Evaluation and Future Development of the Frontex
Agency, Communication, COM(2008) 67 final (30 February 2006). 55
Ibid.

35 36


remain the sole authority responsible for controlling national 4. revising the role of the agency in preparing,
borders. The role of the EU would continue to be focused coordinating and implementing operations, including
on developing a common legislative framework, putting with regard to sharing tasks between the agency and
large-scale IT systems in place and cultivating practical Member States;
cooperation between Member States.
5. expanding the mandate of the agency in cooperating
with third countries on border management;
2010 Proposals for the Strengthening of Frontex 6. mandating the agency to collect and process personal
data;
On 24 February 2010 the European Commission presented
its proposal to strengthen Frontex.56 In essence, it drafted 7. revising the mandate of the agency on return
a new mandate for the agency. The proposal deals with operations; and
amendments to the 2004 Council regulation needed to
ensure the well-defined and correct operation of the agency 8. mandating the agency to contribute to evaluations
in the coming years. The objective of the proposal is to of Member States’ performance in the area of border
adapt the regulation, in light of both the evaluations carried management.
out and of practical experiences, to clarify the mandate of
the agency, and to address identified shortcomings.
The proposals include reinforcing the legal framework
to ensure full respect of fundamental rights during Frontex
The proposal reflects the core objectives and activities of activities and enhancing the operational capacity of Frontex
the agency with the aim of to support Member States. The latter would put more
equipment and more personnel at the agency’s disposal.
1. revising existing provisions on the use of technical Frontex would be able to co-lead border patrol operations
equipment in joint operations; with Member States. It would also be allowed to provide
technical assistance to third countries and deploy liaison
2. including mechanisms for Member States to contribute officers to them.
such equipment;
The European Commission’s goal for the new framework
3. creating or revising mechanisms to improve the is to ensure that Frontex can provide appropriate technical
availability of border guards in joint operations; and human resources for joint border patrols. EU countries
would have to ensure that a pool of equipment such as
boats and planes was at the disposal of the agency, which
56
European Commission, Proposal for a Regulation of the European Parliament and of the
would also be able to gradually buy or lease equipment. The
Council Amending Council Regulation (EC) No. 2007/2004 Establishing a European Agency proposal introduces an explicit requirement for all border
for the Management of Operational Cooperation at the External Borders of the Member
States of the European Union (Frontex), COM(2010) 61 final (24 February 2010).

37 38


guards taking part in operations to have been trained in
fundamental rights, with the aim of ensuring that the rights
Challenges and Concerns
of immigrants are respected, particularly the principle of
non-refoulement. Operational capacity will be enhanced
by clarifying the roles of Frontex and the participating Border management constitutes one of five steps the
Member States, while respecting the principle that each European Commission has identified as necessary for a
Member State remains responsible for controlling its section more secure Europe.59 Yet in its struggle to become ‘a more
of the external border. Specific provisions are proposed secure Europe in a better world’, Europe’s actions to control
concerning the operational plan, the evaluation of operations irregular immigration are often considered to be at odds
and incident-reporting schemes. with respect for basic human rights, a principle strongly
advocated by Member States as the guiding rule for their
In February 2010, the European Council agreed on 29 external policy framework.
measures for reinforcing the protection of external borders
and combating irregular immigration.57 The measures
focused on the activities of Frontex, on the development Human Rights Concerns
of the European Surveillance System (EUROSUR), on the
solidarity and integrated management of external borders Arguably, Frontex has achieved as much, perhaps more,
by Member States, and on cooperation with third countries. than most critics had anticipated. Yet, a number of problems
In May 2011,58 the European Commission proposed a remain, some of which may prove impossible to resolve.
series of short-term measures to cope with the crisis in The challenge of controlling migration is huge. Europe has a
North Africa and the resulting displacement of populations, major influx of irregular immigrants every year and many die
while reiterating both the need for a more effective border- trying to make the journey from the African continent or from
management strategy and for a constructive dialogue with Asia through Turkey.
Europe’s southern neighbours.
The most frequently voiced concern centres on human
rights. The post-9/11 experience has given a powerful
boost to the security camp, but privacy concerns remain
real. The European Parliament and various NGOs have
already expressed their opposition at an early stage to
what they consider to be an extension of Fortress Europe.
Pro-migrant NGOs have generally been very critical of
the actions of Frontex. They have focused in particular
57
Council of the European Union, ‘Council Conclusions on 29 Measures for on the joint operations coordinated by the agency in the
Reinforcing the Protection of the External Borders and Combating Illegal Immigration’,
25–26 February 2010.
58
European Commission, Communication on Migration, Communication, COM(2011) 248
final (4 May 2011), and A Dialogue for Migration, Mobility and Security with the Southern 59
European Commission, The EU Internal Security Strategy in Action: Five Steps Towards
Mediterranean Countries, Communication, COM(2011) 292 final (24 May 2011). a More Secure Europe, COM(2010) 673 final (22 November 2010), 11.

39 40


Mediterranean and claim that those have prevented asylum 4. How can Frontex ensure that the operations carried out
seekers from reaching the territory of Member States in beyond EU borders do not lead to systematic
order to claim asylum. Some pro-human rights and pro- violations of international law?
migrant NGOs have expressed concerns about potential
violations of international law60 that might take place during 5. If violations do occur, who can be held accountable for
joint operations coordinated by the agency.61 The bulk of them and how?62
the criticism focuses on whether mechanisms are in place These questions relate to diverging interpretations of the
to deal with the wider humanitarian needs, particularly the Law of the Sea, international rules on search and rescue,
medical requirements, of persons rescued, intercepted or and refugee law. For example, in the past Frontex has been
diverted during Frontex operations. accused of helping the Italian coastguard in its controversial
Critics point out that denying all potential irregular policy of intercepting boats of migrants in the Mediterranean
entrants physical access to the EU is indiscriminate, basin and sending them back to Libya.63
meaning that the lack of specific measures to safeguard the
rights of people who are potentially in need of protection
undermines the right of refugees to seek asylum. Transparency and Democratic Accountability
The most common response is that Frontex uses financial
conditionality towards its partners to uphold human rights.
Several key questions have been raised: However, this argument weakens when one considers
1. How does a border guard functioning under Frontex the low degree of transparency between Frontex and
coordination respond when encountering someone the European Parliament. The European Parliament was
who wishes to seek asylum? involved in setting up Frontex, but it does not receive any
information except that relating to Frontex’s finances. There
2. How is this different when in EU territory, at the external is no institutionalised mechanism for prompt democratic
border, in international waters or in third-country oversight of the operational activities of Frontex. The
waters? one-sided composition of the Management Board64 may
make it unsuitable for the job of creating sensitive border-
3. How does Frontex ensure that the operations it management strategies, or for ensuring the appropriate legal
coordinates do not breach Member States’ obligations,
for example when diverting boats back to their place of
departure?
62
Ibid., 114.
63
UNHCR, ‘Frontex “May be Helping” Italian Migration Policy’, 24 September 2009,
60
S. Trevisaut, ‘Maritime Border Control and the Protection of Asylum-seekers in the accessed at http://www.unhcr.org on May 2011.
European Union’, Touro International Law Review 12 (2009), 157–61. 64
The Management Board provides regular supervision of Frontex activities. Each
61
United Kingdom, House of Lords, European Union Committee, Frontex: The EU External participating Member State appoints a representative on the basis of his degree of relevant
Borders Agency, 9th Report of Session 2007–8 (London, 2008), 166–9. experience and expertise in the field of operational cooperation on border management.

41 42


scrutiny of proposed or ongoing operations, for example the their coast. This implies that asylum applications should
drafting of operational plans or the conclusion of working be examined by the national authorities of these Member
agreements with third countries. States. This, of course, triggered a reaction from the
Mediterranean EU states, particularly Italy and Malta, which
Unfortunately, the regulation proposal of 24 February saw this as an unfair transfer of the immigration burden onto
2010 does not introduce anything that addresses the Europe’s southern states.
democratic deficit or improves transparency. According to
Sarah Leonard, ‘overall it appears that the controversies The new proposal for amending Council regulation (EC)
about the impact on refugees and the legality of the No. 2007/2004 concerning the establishment of Frontex,66
operations coordinated by Frontex have decreased, rather offers the agency a wide range of possibilities for action.
than increased, the legitimacy of the EU policy on borders, Among other things, Frontex will be able to
asylum and migration in the eyes of the pro-migrant
NGOs’.65 1. collect and process suspects’ personal data regarding
illegal activity on the borders,
On this front a recent development is the conclusion of
working arrangements with the UNHCR and the International 2. send Frontex personnel to third countries outside
Organization for Migration. There is a UNHCR liaison officer the EU,
in Warsaw. Although Frontex is hesitant to give a larger 3. take the initiative for joint operations and pilot projects
role to the UNHCR in operational activities, UNHCR is now in cooperation with Member States,
involved in the agency’s training routines. Cooperation with
the Asylum Support Office and the European Fundamental 4. acquire or lease equipment for border controls and
Rights Agency would allow further progress to be made. joint operations,

The practice of refoulement has also prompted criticism 5. have options for increased financial support,
of Frontex. As with the interpretation of international law,
6. evaluate Member States’ border management,
it primarily concerns potential asylum seekers and raises
the following question: which Member State is responsible 7. have a common nucleus of educational material for
for processing asylum applications? On 26 April 2010 the staff training,
European Council voted to supplement the Schengen
Borders Code on the surveillance of external sea borders. 8. adopt a code of conduct to be applied during joint
The decision stated that Member States that have joint return operations,
Frontex operations taking place on their territory should
have responsibility for all irregular immigrants rescued off
66
European Commission, Proposal for a Regulation of the European Parliament and the
Council Amending Council Regulation (EC) No. 2007/2004 Establishing a European Agency
for the Management of Operational Cooperation at the External Borders of the Member
65
S. Leonard, ‘Frontex: The EU External Borders Agency—Exploring the Nature of the States of the European Union (FRONTEX), COM(2010) 61 final (24 February 2010). The next
Beast’, paper presented at the 49th Annual International Studies Association Convention step in the legislative process was the European Parliament’s first reading. A plenary sitting
(San Francisco, 26–29 March 2008), 14. took place on 12 September 2011.

43 44


9. have the responsibility for organising and conducting States, could offer the EU an effective mechanism for
return operations in response to a Member State’s external border control management.
request,
Since the creation of Frontex, its focus has been technical
10. develop and operate information systems that allow and operational—promoting cooperation and exchanges of
swift and reliable exchanges of information, information, exploiting technological advances and using
risk analysis. This cooperation was most clearly tested when
11. have a reinforced role in monitoring and contributing the Schengen area expanded in 2007, without any major
to relevant research. hitches, to include nine more Member States.
The last point is of particular importance, as it opens the Even though the agency has been operational for just
way for Frontex to be involved in research and as a result to a few years, it has become a very visible element of EU
become the link between the EU institutional system and the immigration policy, especially with respect to its sea
European internal security industry. operations. The developments of recent years—from the
increase in border crossings in the south to infrastructure
demands stemming from the expansion of the Schengen
area—have led to Frontex’s tasks being (over)extended
considerably. It oversees joint patrols in the Mediterranean,
such as Hera and Nautilus, and organises joint deportation
flights from EU Member States. Moreover, Frontex has
Conclusions and become a front-line actor with respect to working
Recommendations arrangements with third countries, which are an increasingly
important component of external border control. A network
of immigration liaison officers works with a range of bilateral
Frontex has enjoyed some successes in its short existence.67 and EU agreements which are managed by Frontex and
It has established itself as the focal point for Community include the exchange of operational information and
discussions on practical border management and has been intelligence and, in some cases, joint operations. These
given a key role in the evolution of an integrated EU border- arrangements are closely linked not only to the emerging
management system with the aim of enhancing cooperation Global Approach to Migration, but also to the EU’s
and data sharing among Member States. In the current various neighbourhood policies. Management of bilateral
situation, Frontex seems to represent an adequate tool agreements has further extended Frontex’s role in acting
for tackling irregular immigration in the Mediterranean. An on behalf of Member States—and assuming some of their
enhanced agency, coupled with the political will of Member responsibilities—in the more difficult areas of border control.

COWI, External Evaluation of the European Agency for the Management of Operational
67
However, experience has shown that Frontex’s
Cooperation at the External Borders of the Member States of the European Union, Final competences need to be rapidly strengthened in order to
Report (15 January 2009), 6.

45 46


put better tools at its disposal that will enable it contribute Member States should provide legal avenues for
to more effective and flexible border control management. migration, for instance through seasonal work or
In general terms, the agency has to find a balance between circular migration.
respect for human rights and the enhancement of its
capabilities on the ground. At the same time we need to 3. encourage the creation of national coordination centres
keep in mind that immigration cannot be stopped. It can, in all Member States located on the southern maritime
nevertheless, be contained and controlled. A dual effort is and eastern land borders of the EU. Frontex should
needed: Europe should tackle the push factors by enhancing implement a pilot project to establish a communication
bilateral cooperation with the countries of origin in the network between the national coordination centres.
Mediterranean littoral states and beyond, and also undertake The subsequent regionalisation of the agency could
measures that will allow the preservation and stability of the translate into a strengthened role and mandate.
European social model. Bearing this in mind, the EU and 4. work towards the highest possible integration of
Frontex should different aspects of EU maritime policy, such as
control, policing, port surveillance, customs,
trade, fishing and so on. Common standards should
1. respect and promote human rights. Since Frontex can be developed to promote technical interoperabilityand
only act with Member States’ approval, it is to facilitate the coordination of joint European
associated with human rights violations that may operations. The European Patrols Network should be
occur when Member States undertake border control further developed and extended to cover more
missions. In this respect, the agency should contribute maritime areas so as to facilitate cooperation between
to improving the sensitivity of national border guards authorities and Member States.
on human rights protection issues. Within this
framework, particular importance should be given to 5. take concrete steps towards a more interoperable
cooperation with the EU Fundamental Rights Agency surveillance system to bring together existing
and the European Asylum Support Office. monitoring and tracking systems—those used for
maritime safety and security, search-and-rescue
2. continue to develop operational and technical activities, protection of the marine environment,
cooperation and conclude working arrangements fisheries control, control of external borders and
with neighbouring Mediterranean third countries other law enforcement activities—in order to enhance
and key countries of origin. At the same time, EU situational awareness and cost effectiveness. Where
Member States should conclude bilateral agreements possible, surveillance information collected should be
with countries of origin or transit, following the shared between law enforcement and military
examples of Italy and Spain. The EU should facilitate, authorities to avoid duplication and enhance cost
in this respect, on a case by case basis, preferential effectiveness.
access to visas for third-country nationals.

47 48


6. establish, as required under Directive 2005/35, deterrence. It is primarily a strategy of hard policy measures
a European coastguard.68 The Commission should aimed at combating irregular migrants and containing
undertake a feasibility study followed by a specific migratory flows. In this respect, Frontex should function
proposal. The concept of a coordinated EU-wide alongside existing EU policies of cooperation with third
coastguard agency has significant value, not least countries in the spirit of respect for human rights, the
because of its ability to provide consistent promotion of democracy and the rule of law.
levels of service in areas such as search and rescue,
pollution prevention and control, places of refuge,
drug trafficking, smuggling and irregular immigration.
A European coastguard should be required to provide
guidance and assistance to ensure the same levels of
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About the Author
Law Review, 12 (2009), 157–161.
United Kingdom, House of Lords, European Union Kostas Ifantis is an Associate Professor of International
Committee, Frontex: The EU External Borders Agency, 9th Relations at the University of Athens. He has held visiting
Report of Session 2007–8 (London, 2008). posts at Harvard and the London School of Economics. His
papers have appeared in edited books and in periodicals
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such as Democratization, Review of International Affairs,
24 September 2009, accessed at http://www.unhcr.org in
May 2011.
International Journal, Turkish Studies and Southern Europe
and the Balkans.
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