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Frontex border operation in Greece 'lacks legal basis' after Greece suspends asylum law

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Migrants arrive with a dinghy accompanied by a Frontex vessel at the village of Skala Sikaminias, on the Greek island of Lesbos, after crossing the Aegean sea from Turkey
Migrants arrive with a dinghy accompanied by a Frontex vessel at the village of Skala Sikaminias, on the Greek island of Lesbos, after crossing the Aegean sea from Turkey   -   Copyright  Michael Varaklas/Copyright 2020 The Associated Press. All rights reserved
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Experts have questioned the legality of EU border agency Frontex sending officers to the Greek-Turkish border.

Thousands have massed on the frontier after Ankara said it could no longer stop refugees in Turkey from heading to Europe.

Frontex, which manages the European Union's external borders, is deploying reinforcements to Evros from 11 March.

But experts have told Euronews this move "lacks proper legal basis".

This is because Greece - already with a huge backlog - suspended the reception of asylum applications for a month on 1 March.

Two days later, the Frontex Management Board agreed to launch its mission.

The EU's border agency Frontex is to deploy reinforcements to the Greek border to respond to what European Union foreign ministers called "``Turkey's use of migratory pressure for political purposes". The first officers will arrive in Greece's eastern border region of Evros on 11 March.

However, according to experts in EU and human rights law, this operation "lacks proper legal basis" as Frontex is intervening in a country - Greece - which has suspended the reception of asylum application for a month.

The decision to suspend the asylum application was taken by Prime Minister Kyriakos Mītsotakīs on March 1st. Two days later, the Frontex Management Board agreed to launch its mission.

UNHCR pointed out that “neither the 1951 Convention Relating to the Status of Refugees nor EU refugee law provides any legal basis for the suspension of the reception of asylum applications".

Human rights guarantees

Frontex's intervention is in contradiction with its own statute. In article 80 of its regulations, Frontex writes that it has to operate while respecting European and human rights law, and this cannot be the case when migrants cannot apply for asylum.

Since 2011, the EU agency employed a Fundamental Rights Officer (FRO) to provide independent advice on all fundamental rights matters. Their opinion is taken into account when drafting the operational plan, in accordance with the hosting state. According to Frontex themselves, the role should also guarantee that "officers deployed by Frontex have to ensure access to asylum procedures of persons in need of international protection".

After the suspension, such a condition will not be respected on the Greek-Turkish border for at least a month.

"In this case, political opportunity is prevailing over the rule of law," argues professor Giuseppe Campesi, sociologist and author of a study on Frontex. "The operation was launched from the conditions set by the Greek government even if the violation of human rights proves systematic, as Syrians will be prevented from filing asylum claims".

We asked Frontex what the FRO had to say about the Greek operation, but the agency replied only that "Frontex is not in charge of asylum procedures. The European Commission is currently in discussions with Greece about this matter. We continue to refer all asylum requests to national authorities as required by law".

The EU Border and Coast Guard Agency -- last reformed (in terms of statute changes) in 2019 -- will deploy 100 more guards to the Greek land border and provide additional equipment for the Greek coast guard such as two surveillance planes, two boats, seven aircraft, one helicopter and four thermal imaging vans.

Any pushback is a 'violation'

Thomas Gammeltoft-Hansen, professor of migration and refugee law at the University of Copenhagen, argues that "a Frontex operation under the present circumstances lacks the necessary legal basis. Any pushback would would clearly violate both EU and international human rights. The Greek decision to suspend asylum is like removing the blanket upon which the entire card house of Frontex operations is standing".

According to Gammeltoft-Hansen, member states' participation in the operation under Frontex guidance will raise "complicated legal questions", and countries will not be able to claim in courts that they were unaware of the human rights risks at the time of sending their personnel.

Alberto Alemanno, a professor of EU law at HEC Paris, told Euronews the Greek suspension "represents a manifest breach of both European asylum law and international humanitarian law" and that the action "is set to be challenged at national, EU and international level".

"This can take a lot of new legal avenues, and it is hard for participating states to foresee what the outcomes will be", added Gammeltoft-Hansen.

At the time of writing, a coalition of NGOs led by Global Legal Action Network announced they are planning to "document and take legal action against those responsible for the violations of migrants and refugees' rights".

On March 6, a Danish boat is said to have refused to comply when they received a radio order from Operation Poseidon's headquarters to put the migrants back into to their dinghy and tow it out of Greek waters. Operation Poseidon is border surveillance mission deployed in Greece and coordinated by Frontex.

Ursula von der Leyen, the EU Commission president, praised Greece as the "shield" of Europe against refugees.

Legal case where activists picked up the bill

Recently, Frontex has been criticised for having hit two pro-transparency activists with a 23,000 euro bill for legal fees after winning a court case against them in November. The pair, Luisa Izuzquiza and Arne Semsrott, had requested from the EU agency information about the name, the flag and the type of vessels deployed in the central Mediterranean in 2017. The request was turned down and the two appealed and subsequently lost.

"We don't want to allow this precedent to happen", Izuzquiza told Euronews. "If this is the kind of bill that you would have to face when you take a case against Frontex, a lot of civil society actors - journalists, activists - would think twice before taking a court case against them.".

The two activists are crowdfunding the money with an online petition that has already reached over 85,000 signatures.

Frontex has been reformed on multiple occasion over the course of its existence, and Its budget has grown from 143 million euros in its first year of operation to 11.3 billion euros for the period 2021-2027. From being an agency coordinating the work of EU border forces, relying only on member state's staff and assets, Frontex will now have its own uniformed force - called standing corps - of 10,000. Around 3,000 will be hired directly by Frontex. The corps will be armed, wear a European uniform and have its own vehicles.

It is an absolute novelty: it is the first time an EU agency has an operational arm with staff authorised to use force and to have coercive powers
Prof. Giuseppe Campesi

It will be up to Frontex's Fundamental Rights Officer to monitor any human rights violations that could occur during field operations.

Yet, as Campesi argues, the monitoring mechanism is ineffective as the majority of its officials belong to member states. "If Frontex witnesses any issue, and can indicate who is the agent responsible for it, prepare an internal report and send it to the governments asking them to take action against their own police forces. However, at this stage EU states don't follow it up".

Accountability?

In the 2016 annual report, Frontex itself writes that there is a "lack of feed-back provided by the member states' national authorities" on serious incident reports (p. 133). Fabrice Legeri, executive director of Frontex, confirms this in an interview with Die Zeit: "We report such cases to national authorities, we cannot do more".

The new staff will answer only to the agency, meaning it will be up to the Warsaw based agency to investigate its own shortcomings. Giulia Raimondo, a researcher on integrated border management in Europe, argues that the monitoring and accountability mechanism at Frontex has so far fallen short of ideal standards, and she is not hopeful for the future. "They are the judges of themselves, there is no independence".