No pushbacks possible in Frontex rules, but critics claim loopholes exist

New rules voted in by MEPs for the EU’s border agency Frontex have strengthened the protection of fundamental rights for migrants and refugees saved at sea, but critics from the left-wing parties have not supported the rules because they do not go far enough.

The new legislative resolution will apply to sea operations coordinated by Frontex, laying down binding rules on interception of boat migrants as well as search and rescue situations and disembarkation.

The rules were passed with 528 votes in favour, composed mainly of EPP, S&D, and ALDE members, 46 against and 88 abstentions. All Maltese MEPs voted in favour.

In the last 20 years between 17,000 and 20,000 people have died at the EU’s external borders.

Most importantly, the rules state that during border surveillance operations at sea, member states must respect international law, and that any measure taken in the course of a surveillance operation “should fully respect human dignity, fundamental rights and the rights of refugees and asylum seekers, including the principle of non-refoulement.”

On 12 April 2013, the Commission adopted the proposal for the Frontex rules, which had replaced earlier rules annulled by the EU’s Court of Justice back in 2012.  The ECJ had annulled the decision on procedural grounds, because the provisions on interception, rescue and disembarkation were “essential elements of external maritime border surveillance” which required political choices – something that was not the Commission’s remit, within the responsibility of the Council and the European Parliament.

Commissioner Malmström welcomed the vote as an important step towards enhancing the effects of sea border surveillance operations and improve coordination in search and rescue situations that may arise during such operations.

“We have witnessed too many tragic losses of lives in the Mediterranean recently: having clear binding rules on interception, search and rescue and disembarkation will help preventing such tragedies in the future. The new rules will ensure the effective and proper functioning of current and future Frontex-coordinated sea operations, contributing to protecting and saving migrants' lives. “

Critics from the left

However, a substantial part of the Green group abstained on the rules, while the majority of the European United Left voted against the rules.

German MEP Cornelia Ernst (GUE-NGL) said she was disappointed that MEPs approved the text because it “fails to effectively ban the pushing back of asylum seekers.”

Ernst said the regulation gives a clear definition of non-refoulement – the principle of not sending back people fleeing persecution – but that there were “too many loopholes that mean member states can avoid adhering to this principle. This regulation is a way of enshrining refoulement by the back door.”

On their part, Green MEPs acknowledged improvements in the new rules but expressed concern that it will still fail to offer full protection to refugees.

“While the rules adopted include some clear improvements on the current situation, concerns remain that Frontex sea operations will still be able to repel refugee boats without properly assessing whether refugees on intercepted boats need protection in the EU. This would be at odds with a European Court of Human Rights (ECHR) ruling on the duty to protect refugees at sea,” Green migration policy spokesperson Ska Keller said.

Keller said that the new rules include binding provisions on search and rescue, and that non-refoulement of people who face persecution is explicitly detailed in the new rules.

Frontex will also have a duty to include medical assistance, translation and legal advice in planning its operations.

“However, concerns remain,” Keller said. “As a translator does not have to be on board the Frontex boat and only available to be called if necessary, there is no guarantee that refugees can make it clear that they need protection in the EU. Refugees will also have no means to contest an attempt to send boats back.

“This is in spite of the fact that the ECHR judgement made clear that refugees must be given immediate legal means to appeal any such decision. This is unacceptable for the Greens.”

New Frontex rules

The rules state that no person should be disembarked or forcibly handed over to the authorities of a country where there is a serious risk that he or she would be subjected to the death penalty, torture, persecution or other inhuman or degrading treatment or punishment, or where his or her life or freedom would be threatened.

It also says that pushback agreements, such as that contracted between Libya and the Italian government, “does not absolve Member States from their obligations under Union and international law, in particular as regards compliance with the principle of non-refoulement.”

Member states will have to require private vessels to assist boats and persons found in distress, and to see that shipmasters and crew do not face criminal penalties for rescuing persons in distress at sea and bringing them to a place of safety.

The rules do not expressly ban pushbacks if member states participating in the missions assess each individual case for people rescued at sea, before handing them over to third countries.

The rules state that during a sea operation, before rescued persons are handed over to the authorities of a third country the host state must identify the intercepted or rescued persons, assess their personal circumstances, inform them of their destination in a way that those persons understand or may reasonably be presumed to understand “and give them an opportunity to express any reasons for believing that disembarkation in the proposed place would be in violation of the principle of non-refoulement.”

Host states must have “shore-based” medical staff, interpreters, legal advisers and other experts assisting the Frontex units in ensuring compliance with the principle of non-refoulement.

Exchange of personal date with third countries can also be “strictly limited to what is absolutely necessary” and carried out in terms national privacy rules. Exchange of personal data on intercepted or rescued persons obtained during a sea operation will be prohibited where there is a serious risk of contravention of the principle of non-refoulement.