Can Human Rights Due Diligence Rescue Frontex?

In 2023, return procedures carried out jointly by Frontex (the European Border and Coast Guard Agency) and EU Member States saw an unprecedented surge of 60%. Within that context, the reputation of the agency is constantly under scrutiny, with NGOs and investigative journalists reporting on fundamental rights violations occurring within the context of return operations, pushbacks, or concealment of information on human rights abuses.

In light of that, this post argues that Human Rights Impact Assessments (HRIA) or an already existing Due Diligence Procedure used by the Fundamental Rights Officer should be used by Frontex officers when discharging their functions in return operations. The EU Ombudsperson’s Decision, where such an HRIA was scrutinized within the context of a different Frontex action, is used as a point of departure to explore the possibility of applying such an assessment to return operations. The W.S. and others v Frontex case is outlined in this post, as its future appeal can serve as an example of a forum where the need for a HRIA in the agency’s actions can be pronounced. With that, the HRIA can address the accountability gap caused by the agency's lack of power to act coupled with its unlawful actions, offering a way out of the uncomfortable position the CJEU finds itself in - caught between maintaining the status quo and protecting fundamental rights. With the approaching appeal judgment expected to focus on how an effective mechanism to monitor the respect for fundamental rights should be implemented within Frontex’s operations, this post analyzes the feasibility of utilizing HRIAs in light of Frontex’s obligation to monitor fundamental rights as required by Article 80 of the European Border and Coast Guard Regulation (EBCG Regulation).

The EU Ombudsperson’s Decision

The EU Ombudsperson, Emily O’Reilly, has on occasion supplemented the CJEU’s failure to address fundamental rights violations by conducting enquiries in line with her mandate as stemming from Article 228 Treaty on the Functioning of the European Union (TFEU). Within the context of return operations, the Ombudsperson has addressed the issue of securing the independence of monitors who assess the compliance of Frontex operations with the Charter of Fundamental Rights (in practical terms: assist in operations, monitor compliance, and make recommendations). The Ombudsman has also underlined the importance of the Fundamental Rights Due Diligence procedure as a preventive tool and provided a checklist to assess fundamental rights risks. Moreover, she has inquired into the transparency of operational plans envisaged under the Regulation, and suggested publishing documents which explain the roles and responsibilities of officers involved in Frontex operations.

Even though the 8 December 2023 Decision concerned assistance given in border surveillance, a different field of action than return operations, it went deeply into the topic of a need to carry out a standalone HRIA when engaging with non-EU countries with poor human rights records or systemic human rights abuses. In its communication, answering the queries of several NGOs, the EU Ombudsperson assessed the legality of the HRIA in light of the European integrated border management operation in Libya. The NGOs argued that the plan of the activity did not include information on the potential facilitation of human rights abuses in Libya, despite NGO reports and the UN Fact Finding Human Rights Council mission concluding the mistreatment of migrants by the Libyan authorities.

The Ombudsperson thus concluded that in the action of providing support to a non-EU country, the HRIA is not being conducted efficiently enough and granted suggestions for the improvement of the Due Diligence procedure exercised by the Fundamental Rights Officer in cooperation with third countries, which was allowed to act as an alternative to a HRIA. While the HRIA remains an undefined term under EU law, it can be compared to the Commission’s activities of conducting an impact assessment before proposing legislation, the human rights due diligence exercised in the business and human rights sphere, recently gaining momentum, or the human rights due diligence proposed to be employed in the context of Common Security and Defence Policy (CSDP).

The Fundamental Rights Officer’s Due Diligence procedure is usually utilised in the context of third country cooperation on the basis of Article 73 EBCG Regulation which states that when cooperating with third countries the agency must act within the framework of the external policy of the union, i.e. values enshrined in Article 21 Treaty on the European Union (TEU). Based on Fundamental Rights Officers 2023 Annual Report, the HRIA can also be used in the context of “return including pre-return activities”. The annual report then briefly mentions the scope of the HRIA to include “recommendations relevant to the foreseen activities and states that if fundamental rights concerns are identified, safeguards and mitigating measures are to be proposed”. The content or the exact way in which the mentioned Due Diligence Procedure operates has not been disclosed to the public, however, based on the wording of the decision, the EU Ombudsperson has had access to it.

Against the background of existence of ways to exercise the Due Diligence procedure by the Fundamental Rights Officer, a person within the agency itself, why not require a forward-looking human rights risk assessment from the side of the Frontex officers assisting in the return operation itself? This would not only be compatible with the powers laid down in the EBCG Regulation, which provides for monitoring of compliance with fundamental rights in all its activities at the external borders, and in return operations, but also offer a chance to narrow down the broad obligation already included in Article 80 EBCG Regulation.

Before moving on to why and how HRIA could be relevant for the W.S. and others v Frontex case, it is worth recalling the facts of the case decided by the Court back in September 2023.

W.S. and others v Frontex case

The W.S. and others v Frontex was among one of the most debated cases decided by the CJEU last year, because of the agency’s reputational downfall and the much-contested assumption taken by the Court, that Frontex could not have contributed to human rights violations, simply because it is not empowered to inquire into the return decision.

The case itself was brought by a group of Syrian nationals who arrived on the Greek island of Milos in 2016 and sought to apply for international protection. Four days later, the applicants were transferred to a temporary reception center in Turkey, where they received a temporary travel permit to reside in a different part of Turkey. Subsequently, the applicants decided to move to Iraq.

Before the CJEU, the applicants essentially claimed that the return operation, by infringing on their rights to non-refoulment, the right to asylum, the prohibition of collective expulsion, the rights of the child, and the prohibition of degrading treatment, resulted in non-material and material damage. The damage the applicants are claiming is the cost of moving to Greece, the fear during the return flight to Turkey, and the cost of moving to Iraq from Turkey, all of which have occurred because of Frontex’s actions in the return operation.

In its analysis, the Court applies the cumulative test stemming from Article 340 TFEU and case law of the CJEU, of the conduct being unlawful, the damage having been suffered, and a direct causal link existing between the alleged conduct and the damage suffered. However, it resorts to examining only the last condition of the direct causal link.  In that regard, the court reiterates obligations stemming from the Charter of Fundamental Rights and the Convention Relating to the Status of Refugees but states that even though they exist, Frontex could not have caused the damage because it is not legally empowered to issue a return decision or an international protection decision or go into the merits of such a decision issued by a state. It is, however, empowered to provide technical assistance in the joint return operation. The court leaves open the question of whether the conduct is unlawful because even if it were, the operational nature of the agency’s action shields it from liability yet again.

Critique of the case

The approach taken by the court of relying on the literal interpretation of Treaty provisions conferring powers has gained some immediate critique from scholars. The judgment has been criticized from the perspective of sidelining fundamental rights obligations that exist notwithstanding the operational and technical mandate, the clouded argumentation of the court by mixing the terms of intentions and consequences of an act, not determining attribution of conduct before determining causation (although these two concepts remain conflated in EU law and no one test for such exists), as well as the restrictive reading of causation.

Human Rights Impact Assessments as a way towards accountability

Having in mind the context and the erroneous assessment made by the Court highlighted in the previous part, perhaps, looking into the HRIA and the Due Diligence offered on an ad hoc basis by the Fundamental Rights Officer could be a good starting point for conducting lawful return operations. It would provide a clear set of activities and reasons behind Frontex operations and disclose whether these decisions are arbitrary or actually take due regard of the rights of the people being returned.

The analysis of whether the existing procedure itself is suitable for the goal of fundamental rights protection would however require access to the Fundamental Rights Officers Due Diligence Procedure, which despite the strive for transparency, has not been disclosed. Nevertheless, as noted in the Ombudperson’s Decision, the HRIA should be carried out where Frontex provides support to countries with poor human rights records or systematic human rights abuses.

Applying this requirement to the W.S. and others v Frontex case, the Court could have resorted to spelling out a need for a standalone HRIA in return operations, even if, in the Court’s view, the causal link between the actions and alleged violations could have not been established, as this would contribute towards the strengthening of the overall fundamental rights protection.

For example, by looking at the action of the family travelling by plane with a child as in the case discussed, the assessment could have concluded that the mother and child should not be separated during the flight, within the assessment of the best interest of the child, as also outlined as a factor to be taken into consideration in Article 4 of Code of Conduct in Return Operations. The possible distress identified could have led to a presumption of fundamental rights violations and mitigating actions being employed.

Further, let’s think of the HRIA with a view of examining the place of return of the applicants. The officer’s returning the applicants to Turkey could had a high probability of reaching the conclusion of the extant risk of a violation of the principle of non-refoulment, as already explored in this blogpost. Especially considering the fragile political and legal state of the country with poor human rights records. This risk could have additionally played a factor in considering whether the return operation should occur or perhaps be terminated, as allowed by Article 4(3) Code of Conduct in Return Operations.

These examples point to the fact that conducting an HRIA by Frontex officers carrying out the return operation could have resulted in uncovering red flags in the return operation. It would also pave a normative pathway for the agency to take actions towards protecting fundamental rights without infringing on its’ competences, i.e. without looking into the merits of the international protection or return decision, which was not even granted in the present case. This ex-ante risk assessment approach could be a good starting point for the accountability deficit and one within the mandate of the agency to pursue a strategy on the protection of fundamental rights, as clearly outlined in the EBCG Regulation, the Fundamental Rights Officer’s Annual Report and the Code of Conduct for Return Operations.

Conclusion

The W.S. and Others v. Frontex action for damages, brought before the CJEU, not only stirred debate around Frontex’s accountability for fundamental rights violations but also raised further questions about the Court’s interpretation of the agency’s actions vis-à-vis the powers conferred on it by the Treaties and its founding instrument, the EBCG Regulation, as well as the way forward. The appeal thus presents the Court with an invitation to move beyond its usual strategy of reserving judgment on the agency’s alleged violations and highlight the obligation for a Human Rights Impact Assessment (HRIA) or a Due Diligence procedure to be conducted during Frontex’s officers' return operations, as inspired by the EU Ombudsperson’s decision on assessing human rights risks within border surveillance assistance. Should the Court accept this invitation, it would not only enable the agency to act within the scope of its powers as defined by its founding instruments while adhering to fundamental rights obligations, but also offer a novel approach to addressing the legal and practical uncertainty created by the judgment.