Before Entry: Criminalisation as Prevention

© The Author(s) 2015
Valsamis MitsilegasThe Criminalisation of Migration in EuropeSpringerBriefs in Law10.1007/978-3-319-12658-6_2

2. Before Entry: Criminalisation as Prevention

Valsamis Mitsilegas 

Department of Law, Queen Mary University of London, London, UK



Valsamis Mitsilegas

2.1 Introduction

A key element in the immigration enforcement strategy adopted by the European Union in recent years has been the focus on preventing migrants from reaching the territory of the European Union in the first place, with the aim of shielding the European Union and Member States from assuming legal obligations towards migrants. This emphasis on prevention has been reflected in a two-fold change from traditional immigration control on the physical border.1 The first change is temporal, with border controls taking place before an individual has reached the actual physical border. The second change is spatial, with border controls taking place increasingly extraterritorially, outside the territory of the European Union, most commonly on the high seas or in the territory of third states.2 This chapter will analyse how migrants are being criminalised before reaching the borders of Europe (i.e. the external borders of the European Union) by presenting a typology of preventive criminalisation through categorising four main levels of criminalisation as prevention and highlighting the human rights and rule of law challenges such preventive approach entails. The chapter will thus focus on: the link between criminalisation and prevention in extraterritorial immigration control; the emergence of a prevention paradigm via the use of delegation by European Union law, to both the private sector (the privatisation of immigration control) and to specialised agencies (and in particular the European Borders Agency, FRONTEX); and the link between prevention, criminalisation and securitisation, by focusing on preventive immigration control via the growing recourse to technology, databases and invasive surveillance using a wide range of personal data (including sensitive data such as biometrics) and allowing access to immigration data to law enforcement authorities. The analysis of this multi-level paradigm of criminalisation as prevention will be accompanied by a critical analysis of legislative and judicial responses to the rule of law and human rights challenges it entails.

2.2 The Rise of Extraterritorial Immigration Control

The rise of extraterritorial immigration control has presented a number of challenges to the rule of law and human rights. Extraterritorial immigration control practices have been linked with attempts by the European Union and its Member States to evade legal responsibility for migrants wishing to reach the external border of the European Union, by conducting border control operations on the high seas or in the territory of third states. This practice runs the risk of creating gaps in the rule of law and the applicability of European human rights standards in operations conducted extraterritorially. The rule of law and human rights challenges of extraterritorial immigration control, linked with the broader question of the extraterritorial application of European human rights law and in particular the European Convention on Human Rights (ECHR) have been addressed by the European Court of Human Rights. On a number of occasions, the Strasbourg Court has attempted to clarify the extent of state responsibility for complying with the European Convention on Human Rights when acting extraterritorially. In its ruling in Al-Skeini, the court confirmed that in certain circumstances, the use of force by a State’s agents operating outside its territory may bring the individual thereby brought under the control of the State’s authorities into the State’s jurisdiction under Article 1 of the Convention.3 Reiterating its earlier case law, the Court added that “[w]hat is decisive in such cases is the exercise of physical power and control over the person in question.”4 A case cited in Al-Skeini which is of particular relevance to the issue of extraterritorial immigration control is Medvedyev.5 The Court ruled there that the ECHR applied extraterritorially in enforcement actions by France in a case of suspected drug trafficking on the high seas. As this was a case of France having exercised “full and effective control” over the boat in question and its crew, “at least de facto, from the time of its interception, in a continuous and uninterrupted manner until they were tried in France, the applicants were effectively within France’s jurisdiction for the purposes of Article 1 of the Convention”.6 The case is of relevance for extraterritorial immigration control not only because it involved the use of force and actual interception at sea, but also because this happened in a relative legal vacuum with few developed international law rules in the field. The court recognized this vacuum by stating that “it is regrettable … that the international effort to combat drug trafficking on the high seas is not better coordinated bearing in mind the increasingly global dimension of the problem”7 and found “that the deprivation of liberty” in this case “was not ‘lawful’ … for lack of a legal basis of the requisite quality to satisfy the general principle of legal certainty”.8 The court rejected the French Government’s claim that interception on the high seas is a special case, stating that

The special nature of the maritime environment relied upon by the Government in the instant case cannot justify an area outside the law where ships’ crews are covered by no legal system capable of affording them enjoyment of the rights and guarantees protected by the Convention which the States have undertaken to secure to everyone within their jurisdiction, any more than it can provide offenders with a “safe haven”.9

The European Court of Human Rights has thus attempted to address the rule of law and fundamental rights issues arising from the existence of gaps in legal protection in extraterritorial state acts by expanding state jurisdiction under the Convention. The case-law of the Court is particularly relevant in cases of extraterritorial immigration control, as the Court’s approach, in effect, exports the border to places and instances where the state exercises enforcement action.10 This has been characterised as a functional approach to border control focusing not on a general test of personal or geographical control, but rather on the specific power or authority assumed by the state acting extraterritorially in a given capacity.11

The Court of Human Rights had the opportunity to address the human rights challenges of extraterritorial immigration control directly in its ruling in the case of Hirsi.12 The case involved eleven Somali nationals and thirteen Eritrean nationals who were part of a group of about two hundred individuals who left Libya aboard three vessels with the aim of reaching the Italian coast. On 6 May 2009, when the vessels were 35 nautical miles south of Lampedusa, that is, within the Maltese Search and Rescue Region of responsibility, they were intercepted by three ships from the Italian Revenue Police (Guarda di Finanza) and the Coastguard. The occupants of the intercepted vessels were transferred onto Italian military ships and returned to Tripoli and handed over to the Libyan authorities.13 The Strasbourg Court had no difficulty in asserting jurisdiction. It stated that Italy cannot circumvent its jurisdiction under the Convention by describing the events at issue as rescue operations on the high seas14 and noted that, while in Medvedyev the events took place on board of a vessel flying the flag of a third state, here the events took place entirely on board ships of the Italian armed forces, the crews of which were composed exclusively of Italian military personnel. In the Court’s opinion, in the period between boarding the ships of the Italian armed forces and being handed over to the Libyan authorities, the applicants were under the continuous and exclusive de jure and de facto control of the Italian authorities. Speculation as to the nature and purpose of the intervention of the Italian ships on the high seas would not lead the Court to any other conclusion.15

Having established jurisdiction, the Court found that Italy was in breach of both Article 3 ECHR (prohibition of inhuman and degrading treatment) and of Article 4 of Protocol number 4 (prohibition of collective expulsion of aliens). As regards Article 3, the Court rejected Italy’s claim that Libya was a safe third country. It noted that the mere ratification of international treaties by a third country is not by itself a guarantee of compliance with human rights16 and added that Italy cannot evade its own responsibility by relying on its obligations arising out of bilateral agreements with Libya.17 The Court added that the Italian authorities knew or should have known that, as irregular migrants, they would be exposed in Libya to treatment in breach of the Convention and that they would not be given any kind of protection in that country and that it was for the national authorities, faced with a situation where human rights were being systematically violated as described above, to find out about the treatment to which the applicants would be exposed after their return.18 In the present case substantial grounds have been shown for believing that there was a real risk that the applicants would be subjected to treatment in Libya contrary to Article 3 of the Convention.19 The Court also found a violation of Article 3 on account of the fact that the applicants were exposed to the risk of arbitrary repatriation to Eritrea and Somalia. According to the Court, when the applicants were transferred to Libya, the Italian authorities knew or should have known that there were insufficient guarantees protecting the parties concerned from being arbitrarily returned to their countries of origin.20 More importantly, Italy is not exempt from complying with its obligations under Article 3 of the Convention because the applicants failed to ask for asylum or to describe the risks faced as a result of the lack of an asylum system in Libya. The Court reiterates that the Italian authorities should have ascertained how the Libyan authorities fulfilled their international obligations in relation to the protection of refugees.21

As regards Article 4 of Protocol number 4 on the prohibition of collective expulsion of aliens, the Court developed its case-law by stating the following:

It is therefore clear that, while the notion of ‘jurisdiction’ is principally territorial and is presumed to be exercised on the national territory of States, the notion of expulsion is also principally territorial, in the sense that expulsions are most often conducted from national territory. Where, however, as in the instant case, the Court has found that a Contracting State has, exceptionally, exercised its jurisdiction outside its national territory, it does not see any obstacle to accepting that the exercise of extraterritorial jurisdiction by that State took the form of collective expulsion. To conclude otherwise, and to afford that last notion a strictly territorial scope, would result in a discrepancy between the scope of the application of the Convention as such and that of Article 4 of Protocol No. 4, which would go against the principle that the Convention should be interpreted as a whole. Furthermore, as regards the exercise by a State of its jurisdiction on the high seas, the Court has already stated that the special nature of the maritime environment cannot justify an area outside the law where individuals are covered by no legal system capable of affording them enjoyment of the rights and guarantees protected by the Convention which the States have undertaken to secure to everyone within their jurisdiction (Medvedyev para 81).22

In the light of the above, the Court found that the removal of aliens carried out in the context of interceptions on the high seas by the authorities of a State in the exercise of their sovereign authority, the effect of which is to prevent migrants from reaching the borders of the State or even to push them back to another State, constitutes an exercise of jurisdiction within the meaning of Article 1 of the Convention which engages the responsibility of the State in question under Article 4 of Protocol No. 4.23 The Court found that the transfer of applicants to Libya was carried out without any form of examination of each applicant’s individual situation and that there was therefore a violation of Article 4.24

Hirsi is of great importance in affirming the extraterritorial application of human rights law and emphasising that states cannot evade their human rights responsibilities towards migrants by exercising extraterritorial immigration control including by cooperating with third states. Following its reasoning in its earlier case-law in M.S.S. (concerning the transfer of asylum seekers within the EU under the Dublin Regulation),25 as reflected in the subsequent ruling of the Court of Justice of the European Union in N.S.,26 the Court affirmed the positive obligations of states to ascertain whether the fundamental rights of affected migrants are protected in the state to which the migrant is to be transferred to. Moreover, in an extremely important finding, the Court extended the protection of migrants under the ECHR in cases of collective expulsion. As den Heijer has noted, the Court’s reasoning allows for an interpretation that any interception activity that factually prevents migrants from effectuating an entry may be construed as expulsion.27 In Hirsi, the Court applied the Convention in cases where state action has resulted to the deflection of migrants, i.e. to acts the effect of which is to prevent migrants from reaching the borders of the State or even to push them back to another State. State jurisdiction applies here even if the migrant has not reached the physical, territorial border of the state. States can no longer hide behind deflection techniques under a logic of prevention. In Hirsi, the Court reiterated the importance of the rule of law and the rejection of ‘areas outside the law’. In doing so, it focused heavily on the impact of immigration control by the state on the affected individuals in what has been eloquently characterised the ‘individualisation of jurisdiction’.28 By placing the individual at the heart of the system of protection of the Convention, the European Court of Human Rights had to address the borders of the law related to extraterritorial immigration control operations.

While Hirsi is extremely important and has already been influential in the development of EU legislation in the field,29 it involves a situation where there has been clear state intervention on migrants. What is less evident the extent to which the Court’s reasoning would apply in cases where there is no actual state enforcement action taking place, but where there are attempts to deflect movement via the use of surveillance extraterritorially (for instance via the use of EUROSUR) or in cases where the attribution of responsibility is difficult because multiple authorities are involved. This is in particular in cases of FRONTEX operations, including operations on the high seas and cooperation with third states.30 An expansive interpretation of jurisdiction will address these issues and remedy the legal uncertainty stemming from gaps in legal responsibility arising from delegation in border control in this context. As Guy Goodwin-Gill has noted, interception operations are initiated and coordinated by the EU agency, FRONTEX, and collaboratively or individually by EU Member States. Directly or indirectly, they affect the rights of individuals, some or many of whom may be in need of international protection. Within the terms of the ILC articles on state responsibility, particularly Articles 4 and 6, interceptions continue to be carried out in the exercise of governmental authority by the state, or in the equivalent exercise of its executive competence by the EU’s agency.31 Nothing in the evidence of practice to date, Goodwin-Gill continues, reveals any break in the chain of liability. Neither the on-board presence of a third-state official, nor the use of joint patrols in which actual interception is undertaken by a third state, disengage the primary actor from responsibility for setting the scene that allows the result, if nothing more. In each case, the EU agency or Member States exercise a sufficient degree of effective control; it may not be solely liable for what follows, but it is liable nonetheless.32 This view is strengthened the finding of the Court in Hirsi as regards collective expulsion, where the Court established jurisdiction under the ECHR in cases of attempts to prevent migrants reaching the EU external border. It is also strengthened, as will be seen below, by the recently adopted EU legislation on surveillance and search and rescue at sea with regard to FRONTEX operations.

2.3 Delegation of Immigration Control to Specialised Agencies: The Case of FRONTEX

The geopolitical and legal changes in Europe resulting in the abolition of internal border controls within the European Union on the one hand, and the extension of EU territory via the successive enlargements of the EU (in particular the eastward enlargements) on the other, have led to the establishment of a European agency responsible for border controls (FRONTEX).33 The establishment of FRONTEX has been to a great extent a product of the lack of trust of ‘old’ EU Member States towards the new EU members from Central and Easter Europe with regard to their capacity to guard effectively the new external border of the European Union.34 The establishment of FRONTEX has aimed to strengthen the powers of EU Member States, and the European Union as a whole, to manage its external border. As such, FRONTEX has been perceived as largely a security agency, aiming at managing migrants as perceived risks.35 Rather than diluting state sovereignty in the field of immigration control, the establishment of FRONTEX has strengthened, rather than weakened, the border control powers of Member Stares by establishing an additional layer of control.36 Establishing a border management agency at European Union level has however posed a number of significant challenges for the reconfiguration of immigration control in Europe. First of all, the discussion of delegation of powers from the state to agencies must be viewed in the specific light of EU law, where the additional layer of the contested relationship between the competence of the Union (and its agencies) and the Member States exists. This aspect is particularly relevant in the field of immigration control, traditionally linked to state sovereignty. In this context, a key questions as regards the delegation of immigration control powers at EU level is who has the power, and thus the legal responsibility, for immigration control: is it the Member States of the EU, or the EU agency (FRONTEX)? As will be demonstrated below, the lines between national and Union competence in the field are on many occasions blurred, resulting in gaps in the legal protection of those affected by immigration control at EU level. These gaps in upholding the rule of law and fundamental rights are particularly acute when FRONTEX conducts joint operations extraterritorially.

2.3.1 The 2004 FRONTEX Regulation

The difficult task of establishing a European agency for immigration control while respecting state sovereignty in the field is reflected in the careful articulation of the Agency’s powers. The opening Article to the initial FRONTEX Regulation states that the aim of the Agency is to improve the integrated management of the external borders of the Member States of the EU.37 While the responsibility for the control and surveillance of external borders lies with Member States, the provision continues, the Agency will facilitate and render more effective the application of EC measures by co-ordinating Member States’ actions in the implementation of these measures, thereby contributing to ‘an efficient, high and uniform level of control on persons and surveillance of the external borders of the Member States.’38 To achieve this, the main tasks of the Agency are: to co-ordinate operational co-operation between Member States, including the evaluation, approval and co-ordination of proposals for joint operations and pilot projects and the launching, in agreement with Member States concerned, of initiatives for such operations and projects39; to assist Member States with training of border guards40; to carry out risk analysis by developing a common risk analysis model41; to follow up research development on border control42; to assist Member States in circumstances requiring increased technical and operational assistance at external borders43; and to provide Member States with the necessary support in organising joint return operations.44

The key to the question of the extent to which FRONTEX has replaced national border controls is to determine the extent of the Agency’s coordination powers.45 Two main questions arise in this context. The first is whether Agency staff will have enforcement powers in the territory of Member States (and consequently which rules will apply to them); secondly, whether the Agency has coercive powers over Member States when organising joint operations. As to the first question, Article 10 of the FRONTEX Regulation states that the ‘exercise of executive powers by the Agency’s staff and the Member States’ experts acting on the territory of another Member State shall be subject to the national law of that Member State.’46 What constitutes ‘executive power’ in this context is not defined in the Regulation. The latter however avoids explicitly excluding operational powers of Agency staff from its scope, a view that is reinforced by the similar treatment of Agency staff with experts from Member States. There is less ambiguity with regard to the second question, i.e. whether the Agency can compel Member States to participate in joint operations without their agreement. Article 3(1) second indent states that the Agency may itself, and in agreement with the Member State(s) concerned, launch initiatives for joint operations and pilot projects.47 Thus, Member States cannot be made to participate in joint projects without their agreement. Article 20(3) of the Regulation provides an additional safeguard by stating that proposals for decisions on specific activities to be carried out at, or in the immediate vicinity of, the external border of any particular Member State requires a vote in favour of their adoption by the Member of the Management Board representing that Member State.

2.3.2 The 2007 RABITS Regulation

The powers of FRONTEX were further developed via the amendment of its legal basis to allow for the deployment of so-called Rapid Border Intervention Teams Regulation (RABITS).48 There is a greater pooling of state sovereignty and a greater clarity and detail as to the tasks of these teams, which are deployed for the purposes of providing rapid operational assistance for a limited period to a requesting EU Member State facing a situation of urgent and exceptional pressure.49 The tasks and powers of these teams, the first of which was deployed at the request of Greece in the autumn of 2010 on the Greek-Turkish land border,50 are described in Article 6 of the RABITs Regulation, which states that Members of the teams shall have the capacity to perform all tasks and exercise all powers for border checks or border surveillance in accordance with the Schengen Borders Code and that are necessary for the realisation of the objectives of that Regulation51 and that they may only perform tasks and exercise powers under instructions from and, as a general rule in the presence of border guards of the host Member State.52 The RABITs Regulation further contributes towards the militarisation of the EU external border, as they are allowed to carry weapons53 and to use force, including weapons.54 According to the provision on applicable law, while performing the tasks and exercising the powers, the members of the teams shall comply with Community law and the national law of the host Member State.55

The RABITs Regulation has added detail on the legal framework of some aspects of FRONTEX operations, and represents a clear shift from purely national to EU border control involving executive measures and coercive powers. However, a number of concerns with regard to gaps in the accountability and legal responsibility of the Agency remained. Delegation of immigration control to an EU agency increases enforcement powers by providing an additional layer of immigration control and its actions may have significant consequences for the individuals affected, with FRONTEX already being actively coordinating Member State action in the field.56 However, the extent of the powers and accountability of the agency are unclear. FRONTEX has been established as a management agency, and its annual reports are dominated by management-speak and management-style targets—something that may lead to a depoliticisation of border controls at EU level and fundamental decisions on EU borders strategy being taken on the basis of the FRONTEX operational plan and the decisions of its management board rather than on the basis of a more open debate.57 Decisions on FRONTEX operations have been shrouded in secrecy,58 with transparency as to its operational plans lacking. Moreover, while its parent Regulation has emphasised coordination as a key FRONTEX task, it is not clear whether such coordination of national responses leads to FRONTEX responsibility. FRONTEX is officially a ‘management’ agency but cannot fit in easily with the various typologies of Union agencies,59 which have been established primarily in a market regulation context.60 The emphasis on management in the FRONTEX Regulation cannot mask the fact that FRONTEX is essentially an operational agency, involved in actions with a significant impact on the relationship between the individual and the State.61

Notwithstanding the growth in FRONTEX activities in recent years, it has been increasingly difficult to pin down its responsibilities when it comes to its action. FRONTEX may be operational in practice, yet it may also claim that it has no legal responsibility for border controls, as it has merely a ‘co-ordinating’ role. This may lead to a situation where FRONTEX denies any responsibility claiming that the exercise of border controls are for Member States,62 while Member States frame controls at their external borders as controls by FRONTEX—with Member States increasingly viewing FRONTEX as an answer to their expectations with regard to their border control responsibilities.63 The potential to the creation of gaps in the legal responsibility of actors in FRONTEX operations is magnified if one looks at the legal framework underpinning the relations between FRONTEX one the one hand and other bodies and agencies (in particular law enforcement agencies) and third countries on the other. The FRONTEX Regulation provides for cooperation between the Agency and international organisations (including Europol) and third countries on the basis of ‘working arrangements.’64 FRONTEX has already entered in a number of such ‘working arrangements’ with security/law enforcement agencies both within65 and outside the EU,66 as well as with a number of third states.67 The ambiguity regarding the legal force of working arrangements and the lack of transparency with regard to their negotiation and content may lead to the emergence of FRONTEX as an actor in a securitised, global system of immigration control without being accompanied by clearly defined standards of legal responsibility either for itself or for its interlocutors.

2.3.3 The 2011 FRONTEX Regulation

In the light of these challenges, the FRONTEX legal framework was revised for a third time in 2011 to address inter alia sustained criticism with regard to the lack of emphasis on the protection of human rights of migrants as well as concerns regarding accountability and the rule of law in FRONTEX operations.68 Regulation (EU) No 1168/201169 has amended the FRONTEX Regulation to include detailed rules governing FRONTEX operations but also a series of specific provisions on human rights and accountability. The Regulation states expressly that FRONTEX will fulfil its tasks in full compliance with the relevant Union law, including the Charter; the relevant international law, including the Geneva Convention; obligations related to access to international protection, in particular the principle of non-refoulement and fundamental rights.70 The Regulation further states that no person shall be disembarked in, or otherwise handed over to the authorities of, a country in contravention of the principle of non-refoulement, or rom which there is a risk of expulsion or return to another country in contravention of that principle and that the special needs of children, victims of trafficking, persons in need of medical assistance, persons in need of international protection and other vulnerable persons shall be addressed in accordance with Union and international law.71 Fundamental rights will also be respected via procedural and governance developments. The Regulation calls upon the Agency to draw up and further develop and implement its Fundamental Rights Strategy and to put in place an effective mechanism to monitor the respect for fundamental rights in all the activities of the Agency.72 The Regulation further calls for the establishment of a Consultative Forum by the Agency to assist the Executive Director and the Management Board in fundamental rights matters73 and for the designation by the Management Board of a Fundamental Rights Officer.74 The protection of fundamental rights is further addressed in the context of broader rule of law and accountability innovations. The Regulation calls for the drawing up by FRONTEX of a Code of Conduct applicable to all operations coordinated by the Agency. The Code of Conduct will lay down procedures intended to guarantee the principles of the rule of law and respect for fundamental rights with particular focus on unaccompanied minors and vulnerable persons, as well as on persons seeking international protection, applicable to all persons participating in the activities of the Agency. FRONTEX will develop the Code of Conduct in cooperation with the aforementioned Consultative Forum.75 In a further move towards greater transparency and accountability, the Regulation provides for the drawing up by the Executive Director of an operational plan for FRONTEX joint operations and pilot projects.76 The operational plan will include inter alia, in cases of operations at sea, specific information on the application of the relevant information and legislation in the geographical area where the rapid intervention takes place, including references to international and Union law regarding interception, rescue at sea and disembarkation.77

The 2011 Regulation goes some way towards addressing criticisms regarding the lack of emphasis on the protection of the rights of migrants in FRONTEX operations, as well as concerns with regard to transparency and the accountability of the agency. The Regulation represents an attempt to incorporate and mainstream fundamental rights in the work of FRONTEX, and the requirement to draw up an operational plan enhances accountability by setting out in detail the role of FRONTEX in specific operations. However, these developments do not address fully questions of the legal responsibility of FRONTEX in joint operations, especially when these operations have an impact on the fundamental rights of migrants. In particular, the FRONTEX legal framework in its various iterations continues not to grant a specific and express avenue of complaint or remedy for affected migrants within the FRONTEX structure. This gap has been addressed in detailed inquiries by the European Ombudsman. In an inquiry conducted in 2012, the Ombudsman found that FRONTEX had no mechanism in place by which it could deal with individual incidents of breaches of fundamental rights alleged to have occurred in the course of its work. The Ombudsman saw the lack of an internal complaints mechanism as a significant gap in FRONTEX’s arrangements and recommended to FRONTEX that it should take any possible action to enable the FRONTEX Fundamental Rights Officer to consider dealing with complaints on infringements of fundamental rights in all FRONTEX activities submitted by persons individually affected by the infringements and also in the public interest.78 FRONTEX decided not to accept this recommendation. A key element in the position being adopted by FRONTEX is that individual incidents, which become the subject of complaint, are ultimately the responsibility of the particular Member State on whose territory the incident occurred. In a follow-up Report, the Ombudsman did not accept that FRONTEX does not carry responsibility for the actions of staff operating under its banner and that it is not tenable that FRONTEX has no responsibility and that, thus, it should not deal with complaints arising from actions in which it is involved.79 According to the European Ombudsman, FRONTEX would be the logical first resort for submitting complaints.80 The Ombudsman recommended that FRONTEX should establish a mechanism for dealing with complaints about infringements of fundamental rights in all FRONTEX-labelled joint operations. The mechanism should receive complaints from persons who claim to be individually affected, or who complain in the public interest. This role could be entrusted to the FRONTEX Fundamental Rights Officer, who should be resourced accordingly. The recommendations of the European Ombudsman are based on the acceptance that FRONTEX has legal responsibility for its operations and cannot hide behind the responsibility of Member States. The recommendations will strengthen the human rights scrutiny of FRONTEX operations in providing a remedy for affected migrants within the structure of FRONTEX. This remedy will be in addition to the avenue provided by the Treaty of Lisbon which grants the Court of Justice jurisdiction to review the legality of acts of bodies, offices and agencies of the Union intended to produce legal effects vis-à-vis third parties.81 This provision is certainly applicable to FRONTEX operations but the additional lodging of complaints within FRONTEX will facilitate the speedy investigation of human rights issues and enable a thorough assessment of FRONTEX operations on the ground and closer to the time of the FRONTEX operations affecting migrants.

2.3.4 FRONTEX and Rules on Sea Border Operations and Search and Rescue at Sea

The existence of legal responsibility of FRONTEX when conducting joint operations with Member States is further confirmed by EU law governing sea border operations and search and rescue at sea. The European Union first adopted rules in the field in 2010, not via a further amendment of the FRONTEX Regulation, but on the basis of the comitology procedure established by Article 12(5) of the Schengen Borders Code. The relevant Council Decision82 introduced in Annexes rules for sea border operations coordinated by FRONTEX and mere guidelines for search and rescue situations for disembarkation in the context of sea border operations coordinated by the Agency. The adoption of the Decision raised important rule of law issues. Important rules relating to FRONTEX operations at sea with potentially significant consequences for the human rights of affected migrants were adopted not via the ordinary EU legislative procedure (which would ensure the application of the full scrutiny powers of the European Parliament) but via the more opaque comitology procedure: rules on FRONTEX operations have thus been treated as non-essential, merely technical rules. The European Parliament challenged the legality of the adoption of the Decision before the Court of Justice.83 The Court emphasised the principle that the adoption of rules essential to the subject-matter is reserved to the legislature of the European Union adding that the essential rules governing the matter in question must be laid down in the basic legislation and may not be delegated.84 In relation to the specific case before it, the Court found that although the Schengen Borders Code, which is the basic legislation in the matter, states in Article 12(4) that the aim of such surveillance is to apprehend individuals crossing the border illegally, it does not contain any rules concerning the measures which border guards are authorised to apply against persons or ships when they are apprehended.85 The adoption of such rules constitutes a major development in the Schengen Borders Code system.86 The impact of these rules on fundamental rights was a crucial factor in the Court’s finding that these are essential and constitute a major development of the Schengen Borders Code. According to the Court, provisions on conferring powers of public authority on border guards—such as the powers conferred in the contested decision, which include stopping persons apprehended, seizing vessels and conducting persons apprehended to a specific location—mean that the fundamental rights of the persons concerned may be interfered with to such an extent that the involvement of the European Union legislature is required.87 The Court confirmed that parts I and II of the Annex of the contested Decision contain essential elements of external maritime border surveillance and found that, notwithstanding the Decision’s reference to ‘guidelines’ on search and rescue, this reference cannot affect their classification as essential rules: the Court noted in this context that this part of the Annex forms part of the FRONTEX operational plan and that since the conditions provided for by that plan must be complied with, it necessary follows that the rules in paras 1.1 and 2.1 of Part II to the Annex of the contested decision are intended to produce binding legal effects.88 The Court’s ruling is significant from a rule of law perspective not only by stopping Member States and the Commission hiding behind the comitology procedure in shielding key rules on FRONTEX operations from scrutiny but also by treating these rules as essential on the basis of their impact on fundamental rights and by treating rules on FRONTEX operations—regardless of how they are labelled—as legally binding.

The Court’s ruling triggered a fresh round of negotiations for new EU legislation on the surveillance of the EU external border, taking place this time under the ordinary legislative procedure with the full involvement of the European Parliament. The ensuing Regulation89 contains detailed legally binding rules on the surveillance of the EU external sea borders in the context of FRONTEX operations. It includes special rules on detection,90 interception in the territorial sea,91 interception on the high seas,92 interception in the contiguous zone,93 search and rescue situations94 and disembarkation.95 The Regulation contains three major developments aimed at addressing gaps in the protection of fundamental rights and the rule of law: it includes a series of detailed provisions aimed at ensuring respect with fundamental rights and refugee law, in particular when third countries are involved in sea operations; it places emphasis on the assessment of the human rights situation in third countries; and it introduces a series of provisions aiming at enhancing the accountability of FRONTEX, most notably as regards the drawing up of operational plans and the reporting of FRONTEX. The Regulation contains a number of strong Preambular provisions related to compliance with human rights when third countries are involved. When cooperation with third countries takes place on the territory or the territorial sea of those countries, the Member States and the Agency should comply with norms and standards at least equivalent to those set by Union law.96 Moreover, in a provision reflecting the judgment of the European Court of Human Rights in Hirsi, it is stated explicitly that the possible existence of an arrangement between a Member State and a third country does not absolve Member States from their obligations under Union and international law, in particular as regards compliance with the principle of non-refoulement, whenever they are aware or ought to be aware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in that third country amount to substantial grounds for believing that an asylum seeker would face a serious risk of being subjected to inhuman and degrading treatment or where they are aware of ought to be aware that that third country engages in practices in contravention of the principle of non-refoulement. 97 Protection of fundamental rights and the principle of non-refoulement is also upheld expressly in the body of the Regulation which states that no person shall, in contravention of the principle of non-refoulement, be disembarked in, forced to enter, conducted to or otherwise handed over to the authorities of a country where, inter alia, there is a serious risk that he or she would be subject 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 on account of his or her race, religion, nationality, sexual orientation, membership of a particular social group or political opinion, or from which there is a serious risk of an expulsion, removal or extradition to another country in contravention of the principle of non-refoulement. 98 This is a welcome and broad provision which is applicable to a wide range of FRONTEX operations. As Peers has noted, the European Parliament successfully insisted on adding the words ‘forced to enter’ and ‘conducted to’ in this Article, which clearly covers push-backs.99

These express commitments to protect fundamental rights and the principle of non-refoulement are backed up by detailed and concrete provisions aiming on the one hand to ensure a detailed assessment of the level of human rights protection in a third country, and on the other hand to provide a series of procedural safeguards to the affected migrants during sea operations. When considering the possibility of disembarkation in a third country, in the context of planning a sea operation, the host Member State, in coordination with participating Member States and the Agency, must take into account the general situation in that third country. In a passage reminiscent of the practice of the European Court of Human Rights in M.S.S. and of the Court of Justice in N.S. 100 the Regulation further states that the assessment of the general situation in a third country will be based on information derived from a broad range of sources, which may include other Member States, Union bodies, offices and agencies, and relevant international organisations. Intercepted or rescued persons shall not be disembarked, forced to enter, conducted to or otherwise handed over to the authorities of a third country when the host Member State or the participating Member States are aware or ought to be aware that that third country engages in practices as described in Article 4(1).101 In terms of procedural safeguards, the Regulation stipulates that during a sea operation, before the intercepted or rescued persons are disembarked in, forced to enter, conducted to or otherwise handed over to the authorities of a third country and taking into account the assessment of the general situation in that third country in accordance with para 2, the participating units must use all means to 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. For those purposes, further details must be provided for in the operational plan including, when necessary, the availability of shore-based medical staff, interpreters, legal advisers and other relevant experts of the host and participating Member States.102 According to the Preamble, the operational plan should include procedures ensuring that persons with international protection needs, victims of trafficking in human beings, unaccompanied minors and other vulnerable persons are identified and provided with appropriate assistance, including access to international protection.103 It has been pointed out by a Report prepared for the Parliamentary Assembly of the Council of Europe that this assessment can take place during operations at sea and that it can be questioned if this is a meaningful assessment if safeguards such as legal aid or an effective remedy against a negative decision are not in place.104 It has also been pointed out that the Regulation ultimately allows FRONTEX and Member States to let migrants disembark in third countries.105 While such gaps in protection may still exist, the Regulation constitutes a decisive step forward compared with previous EU law in the field. The Regulation enhances accountability and transparency in FRONTEX operations at sea by enhanced requirements for operational plans.106 The Regulation further includes specific fundamental rights commitments107 backed up by robust requirements of assessment of the situation in third countries during FRONTEX operations as well as by provisions granting expressly some procedural rights to migrants affected by operations at sea. Article 4(3) will assume particular importance in future FRONTEX operations as it must in turn be interpreted in accordance with the Charter of Fundamental Rights. Most importantly, the Regulation confirms the legal responsibility of FRONTEX in operations at sea and affirms the applicability of EU human rights standards in instances of operational cooperation between FRONTEX and Member States with third countries in the context of migrant push-backs.

2.4 Delegation and the Privatisation of Immigration Control

Another key strand of delegation of immigration control in European Union law involves the adoption of a series of legislative measures imposing liability to carriers who fail to comply with immigration control-related obligations. Issues surrounding delegation from the state to the private sector in the context of carriers’ liability have been analysed extensively in the literature.108 This part will examine the detail of such privatisation and attempt to demonstrate that, rather than asking the private sector to replace state functions in the field, privatisation in the field of immigration control means that the state delegates additional tasks (such as the examination and assessment of identity documents) to the private sector. This process of privatisation is reminiscent of what has been deemed in the field of crime control as the ‘responsibilisation’ strategy, whereby the state co-opts the private sector in order to achieve crime control and security governance objectives.109 In this manner, the involvement of the private sector serves to add an extra layer of immigration control, in addition to the exercise of expanding state powers in the field.110 This chapter will examine the preventative aspect of the privatisation of immigration control, by examining legislation placing duties on carriers aiming to identify and transmit information on passengers before they reach the border. Preventive privatisation in this context entails criminalisation, in pushing carriers, when in doubt, not to allow the travel of passengers deemed as a risk to immigration control (and, as will be seen below, security). This paradigm of preventive privatisation is complemented by the privatisation of immigration control ex post, once migrants have reached the territory of the European Union. The key example of this paradigm are measures on employers’ sanctions, which will be analysed later in this volume.111

2.4.1 Carriers’ Liability

The original flagship measure of the privatisation of immigration control in European Union law is the Carriers liability Directive.112 The Directive takes forward the provisions of Article 26 of the Schengen Implementing Convention and imposes two main duties on carriers: to take all the necessary measures to ensure that an alien carried out by air or sea is in possession of the travel documents required for entry into the territories113; and to assume responsibility for third country nationals who have been refused entry into the territory, including their return or assuming the cost of their return.114 If carriers transport third country nationals who do not possess the necessary travel documents, they face a series of financial sanctions.115 In this manner, carriers are asked to provide an extra layer of immigration control in identifying passengers and checking travel documents. EU law also privatises immigration control at the level of enforcement, by requiring carriers to take charge or bear the cost of the return of third country nationals whom they have transported into EU territory.116 In addition to the carriers’ liability Directive, EU Member States adopted in 2003 on a Directive requiring the transmission by carriers of passenger data, but this Directive covered the transmission of data for journeys to the EU, and required the transmission of much more limited categories of personal data (API data, namely data which can be found primarily on the passport).117 Notwithstanding the fact that the API Directive was adopted under Title IV and its stated aim was to combat illegal immigration, there have been attempts by the UK Government during negotiations to frame it also as a national security and counter-terrorism matter and thus align it with its domestic approach on border security and e-borders.118

2.4.2 The Collection and Transfer of Passenger Name Record (PNR) Data

The link between privatisation, prevention and securitisation has been provided expressly in EU law by introducing obligations to air carriers to transfer Passenger Name Records (PNR) to state authorities not of EU Member States, but of third states starting primarily with the United States.119 The imposition of duties to air carriers to collect and transfer to state authorities of PNR data has been a key component of US Homeland Security strategy post-9/11, in the light of the way in which the 9/11 attacks occurred.120 Carriers flying to the US from Europe were thus placed under duties imposed by unilateral US legislation to transfer PNR data to the US authorities and concerns were raised that compliance with US requirements would render carriers in breach of EU law and domestic Member States’ law on data protection.121 In order to address this conflict of interest, EU institutions proceeded to conclude an agreement between the European Community and the United States authorities legitimising the transfer of PNR data to the US. On the basis of a Decision by the Commission confirming the adequacy of US data protection standards,122 a transatlantic agreement on the transfer of PNR data to the US Bureau of Customs and Border Protection was signed in 2004. The Agreement was subsequently litigated before the Court of Justice of the European Union, with the European Parliament bringing an action for annulment of the Decision authorising the conclusion of the Agreement on grounds of legality, proportionality and infringement of the fundamental rights of privacy and data protection. In what can be characterised as a ‘pyrrhic victory’ for the European Parliament, the Court annulled the measure on legality (competence) grounds, but without examining the substance of the Parliament’s fundamental rights non-compliance allegations.123 The annulment of the Agreement resulted in the conclusion of an interim third pillar Agreement, and eventually in 2007 of a third pillar EU–US PNR Agreement.124 The entry into force of the Lisbon Treaty meant that the European Parliament, which had a limited role with regard to the conclusion of international agreements under the old third pillar, was called to consent to the 2007 EU–US PNR Agreement. The Parliament expressed concerns about the compatibility of the Agreement with EU privacy and data protection law and called upon the Commission to put forward a single set of principles to serve as a basis for negotiations with third countries.125

The new EU–US PNR Agreement was eventually approved by the European Parliament in early 2012 and took effect on June 1, 2012.126 The legal bases for the Decisions to sign and conclude the Agreement are Articles 82(1)(d) and 87(2)(a) in conjunction with Article 218(6)(a) TFEU.127 The Agreement will remain in force for a period of 7 years after its entry into force and, unless one of the Parties notifies of its intention not to renew further, will be renewable for subsequent 7 year periods.128 Its structure is a significant improvement from a rule of law perspective, as the main provisions and safeguards are set out largely in the text of the EU–US Agreement itself, rather than in a Letter by the US to the EU, as was the case with the 2007 Agreement. The purpose of the Agreement is defined in rather broad terms: ‘to ensure security and to protect the life and safety of the public.’129 This broad wording may challenge calls for the inclusion of strict purpose limitation safeguards under the Agreement. It applies to a wide range of carriers: to carriers operating passenger flights between the European Union and the United States130 as well as to carriers incorporated or storing data in the European Union and operating passenger flights to or from the United States.131 The Agreement establishes an obligation for carriers to provide PNR data contained in their reservation systems to the US Department of Homeland Security (DHS) as required by DHS standards and consistent with the Agreement.132 Data transmission will occur initially 96 h before departure and additionally either in real time or for a fixed number of routine and scheduled transfers as specified by DHS.133 The Agreement defines PNR data by reference to the Guidelines of the International Civil Aviation Organisation (ICAO).134 As with the previous transatlantic PNR Agreements, the actual categories of PNR data to be transferred to the US Homeland Security Department are listed in an Annex to the Agreement. The Annex contains 19 categories of PNR data, which include broad categorisations such as frequent flier information, payment information, travel itinerary, travel status, seat number, general remarks and historical changes. DHS will retain PNR in an active database for up to 5 years.135 After this active period, PNR shall be transferred to a dormant database for a period of up to 10 years.136 Following the dormant period, data retained must be rendered fully anonymised.137 However, data related to a specific case or investigation may be retained in an active PNR database until the case or investigation is archived and even so, this paragraph is without prejudice to data retention requirements for individual investigation or prosecution files.138 Moreover, the Agreement does allow the onward transfer to PNR data to third countries.139

The Agreement thus maintains the paradigm of the privatisation of crime control set out in earlier Agreements and imposes extensive obligations on carriers to transmit a wide range of everyday personal data to the US Homeland Security Department. It constitutes a key example of the trend towards generalised, pre-emptive surveillance, whereby masses of every day personal data is collected by the private sector and transferred to state authorities in order to enable them to predict future behaviour and manage risk.140 The transfer of PNR data affects every passenger, migrants and citizens alike.141

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