A historic case brought by a family of Syrian refugees against Frontex, the EU's border guard agency, has been dismissed by the bloc's General Court in a major blow for human rights defenders.
The Syrian family of two parents and four children was seeking damages after being deported to Turkey from Greece in 2016.
The family had fled the country's civil war, but after reaching Greece and lodging asylum claims, they were deported to Turkey in what was described as a joint operation conducted by Frontex staff and the Greek authorities.
In a judgment released on Wednesday morning, the Luxembourg-based court said that since the border guard agency does not have the power to assess asylum applications, it cannot be held liable for damages.
"It is the Member States alone that are competent to assess the merits of return decisions and to examine applications for international protection," the judges said.
The legal team representing the family told Euronews that the ruling is "unsatisfactory."
"They (the family) are disappointed that Frontex is not held accountable for its role in the illegal pushback they are victims of and the way they were deported," a human rights lawyer for Dutch firm Prakken d'Oliveira said.
The family's lawyers believe the ruling raises fundamental questions about Frontex's mandate and accountability.
"Article 34 of the Frontex Regulation states that it is required to establish 'an effective mechanism to monitor the respect for fundamental rights in all the activities of the Agency'," they said. "The ruling does not make clear what this means in practice. It remains unclear in what way Frontex is required to carry out its monitoring task."
"It is now up to political institutions, especially the European Commission, to clarify Frontex's mandate. It must clarify how Frontex must monitor compliance with human rights," Prakken d'Oliveira's lawyers said, confirming they will consider further legal steps.
Experts on human rights law also expressed concern regarding the judgment.
Steve Peers of Royal Holloway University London suggested on X, formerly Twitter, that the decision contradicted the human rights provisions in the Frontex regulation.
"It's irrelevant that Frontex doesn't formally decide on returns or asylum applications: the issue is whether it breached its obligations not to assist a human rights breach," Peers wrote.
In response to the General Court's decision, Frontex said Wednesday that "the valuable insights gained from this case enable us to continuously improve our return procedures, ensuring that all individuals affected are treated with utmost respect."
The agency also said it requires member states, in this case Greece, to confirm that the persons they support have been "issued individual enforceable return decisions and that they have been granted the opportunity to seek international protection."
A closely watched case
The case, which human rights activists hoped would set a precedent, was filed in 2021, five years after the Syrian family was deported by plane to Turkey from the Greek island of Kos, despite having requested international protection.
The family, originally from the Kurdish town of Kobani in Syria, claimed €136,000 in compensation for the material costs incurred and the emotional toll of the alleged human rights abuses suffered at the hands of Frontex.
During the flight to Turkey, the family's children – then aged between one and seven – were reportedly separated from their parents. The family's legal team argued their treatment violated the rights of the child as enshrined in EU law.
After their arrival in the Turkish city of Adana, the family was imprisoned and when released, had no access to basic services, such as housing, water and sanitation. They have since settled in Iraq.
The case was the first time Frontex faced possible legal action for alleged refugee "pushbacks," an accusation that has been repeatedly levelled against the agency.
Frontex is currently being investigated by the European Ombudsman for its role in the deadly shipwreck of the Adriana in July, where up to 750 migrants are expected to have lost their lives.
The agency's Fundamental Rights Officer has since hinted Frontex could suspend all activities in Greece amid a fight over the Greek Coast Guard's role in the incident. There are currently 518 standing corps officers and Frontex staff working in Greece's mainland and islands, according to the agency, which also deploys 11 boats and 30 patrol cars.
The General Court's decision comes in the midst of a rise in asylum claims in the EU that has put migration at the very top of the political agenda. New figures released this week showed that 519,000 applications were lodged in the first half of 2023 – a 30% rise compared to the same period in 2022.