Francesca Romana Partipilo, PhD candidate in International Law at Sant’Anna School of Advanced Studies (Pisa)

Photo credit: Rock Cohen, via Wikimedia commons

(see also critique of the judgment, by Melanie Fink and Jorrit Rijpma)

On September 6th, the EU General Court dismissed a case brought by a Syrian family claiming material and emotional damages from Frontex. They alleged experiencing anguish, fear, and suffering due to Frontex’s actions during a return operation conducted jointly with Greece on October 20th, 2016.

The lawsuit, initiated in 2021, five years after the family’s deportation from Kos to Turkey, stemmed from their claim that Frontex failed to uphold fundamental rights. They argued that if Frontex had adhered to its obligations regarding the protection of fundamental rights during joint operations, specifically the principles of non-refoulement, the right to asylum, the prohibition of collective expulsion, children’s rights, the prohibition of inhuman and degrading treatment, the right to good administration, and the right to an effective remedy, their unlawful return to Turkey wouldn’t have occurred. As Syrian nationals, they believed they were entitled to international protection given the situation in Syria at the time. However, the court based in Luxembourg determined that Frontex couldn’t be held responsible for any harm stemming from the refugees’ return to Turkey. They reasoned that Frontex lacks the authority to evaluate the validity of return decisions or asylum applications, leaving those responsibilities solely to EU member states. The court clarified that Frontex’s role in return operations, as outlined in Article 27(1)(a) and (b) and Article 28(1) of Regulation 2016/1624, is limited to providing technical and operational assistance to Member States, not to delve into the substance of return decisions.

At first glance, the judgment seems inherently contradictory. While evaluating asylum applications is undeniably outside Frontex’s purview and falls under the jurisdiction of EU Member States, the obligation to respect human rights is embedded within the Frontex Regulation and numerous other documents concerning the agency’s activities. This signifies a legal obligation binding upon Frontex. The absence of authority to assess asylum applications or return decisions doesn’t exempt Frontex from upholding migrants’ human rights. As acknowledged by the General Court itself, “Regulation 2016/1624, specifically Article 6(3), stipulates that [Frontex] shall contribute to the consistent and uniform application of Union law, encompassing the Union acquis concerning fundamental rights, at all external borders.” Furthermore, the Court emphasized that “Article 34(1) of that regulation states that the European Border and Coast Guard shall ensure the protection of fundamental rights in carrying out its tasks under this Regulation, in line with relevant Union law, particularly the [Charter of Fundamental Rights], pertinent international law, including the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol, and obligations regarding access to international protection, notably the principle of non-refoulement.”

Beyond legal frameworks mandating Frontex’s respect for fundamental rights, allusions to human rights have been integrated into Frontex’s official materials and press communications since its early years. For instance, in their 2008 annual report, Frontex explicitly stated for the first time that “[f]ull respect and promotion of fundamental rights […] is the most important corner stone of modern European border management.” Echoing this, the 2009 annual report affirmed that “full and sincere respect of fundamental rights is a firm and strategic choice of Frontex.” In more recent times, the now-disgraced former Frontex director, Fabrice Leggeri, asserted that Frontex was “determined to uphold the highest standards of border control within [its] operations [and] to further strengthen the respect of fundamental rights in all [its] activities.”

Given these points, it’s worth noting that Frontex’s actions in the case of WS and Others v Frontex could have led to chain (or indirect) refoulement. Considering Turkey’s significant geographical limitations on the definition of a refugee as defined by the Refugee Convention, the nation cannot be classified as a “safe third country” where those seeking asylum can genuinely pursue international protection. In reality, when Turkey ratified the Additional Protocol to the Refugee Convention in 1968, they opted for a geographical limitation according to Article 1b of the Convention. This limited the Convention’s reach to “persons who have become refugees as a result of events occurring in Europe.” Therefore, only those fleeing “events occurring in Europe” can attain refugee status within Turkey. This is reinforced by Turkey’s decision not to grant refugee status to those escaping the conflict in Syria, instead offering a type of temporary protection as per the Turkish Law on Foreigners and International Protection.

It’s important to recognize that Turkey, being a signatory to the European Convention on Human Rights, is legally bound by Article 3, which prohibits torture, inhuman, or degrading treatment or punishment. It’s well established that in the case of Soering v The United Kingdom, the ECtHR determined that, under Article 3, expulsion to torture is always prohibited, even when the individual being returned isn’t seeking asylum or recognized as a refugee. Consequently, Article 3 ECHR could have provided a strong legal basis for safeguarding the applicants in WS and Others v Frontex, even without official refugee status. However, it’s also crucial to remember that in July 2016, after a failed coup attempt, Turkey declared a state of emergency and formally announced its derogation from the ECHR, as per Article 15 of the ECHR. While Article 3 ECHR falls under the category of non-derogable rights, Turkey used the state of emergency to implement various amendments to the Law on Foreigners and International Protection. This included substantial revisions related to deportation orders and the halting effect of appeals against such orders. Due to the 2016 amendments, deportation orders could be issued at any point to certain applicants or holders of temporary protection (for example, individuals suspected of supporting terrorist organizations or those deemed a threat to public security by the government). For this group, the appeal process no longer had delaying power, thus raising the risk of refoulement as highlighted by Amnesty International. As a result, it’s evident that those forcibly returned to Turkey in 2016 could have faced chain (indirect) refoulement to their home countries. Notably, the EU General Court itself explicitly recognized this danger in the judgment where they noted that the applicants feared “being returned to Syria by the Turkish authorities.” Lastly, it’s been repeatedly highlighted that “procedural safeguards present within the EU don’t extend to Turkey, resulting in situations where guarantees of the right to life and protection against torture are denied, directly violating the principle of non-refoulement within the context of human rights.” Based on these observations, it’s clear that Frontex’s return operation was, at a minimum, problematic under both EU and international law.

From another perspective, WS and Others v Frontex reveals that responsibility for human rights infringements at EU borders can stem from the combined actions of states and international organizations (or their agencies). In such instances, compelling questions emerge regarding the rules of attributing conduct, as well as the content and enforcement of international responsibility. In this specific case, while Frontex was obligated to uphold the human rights of asylum-seekers under its jurisdiction and adhere to the principle of non-refoulement, Greek authorities were duty-bound to review the family’s application for international protection. In fact, as emphasized by the European Court of Human Rights in the case of Sharifi v. Italy and Greece (appeal no. 16643/09), denying access to the asylum process or any other legal recourse at the port of arrival constitutes a violation of Article 4 of Protocol no.4, which enshrines the prohibition of collective expulsions. In that judgment, the Court highlighted the connection between the applicants’ collective expulsion and the fact they were prevented from seeking international protection.

It’s worth noting that Greece hasn’t ratified Protocol no.4 of the ECHR and thus can’t be held accountable for a violation of its Article 4. Nevertheless, while not formally bound by Protocol no.4, Greece could still be found in violation of the Asylum Procedures Directive and the Dublin Regulation III. These regulations mandate that Member States grant asylum-seekers genuine access to an asylum procedure grounded in complete and comprehensive information, as stressed by the ECtHR in Sharifi and Others v. Italy and Greece.

Regarding shared responsibility, it’s interesting that, in parallel with their complaint against Frontex before the EU General Court, the Syrian family also filed a complaint against Greece with the European Court of Human Rights. In this filing, the family alleged violations of Articles 5(1), (2), and (4) of the European Convention on Human Rights, as well as Article 4, Article 3, and Article 13 in conjunction with Articles 3 and 5 of the Convention. This decision was likely influenced by the fact that Greece, as previously stated, has not ratified Protocol No. 4 of the ECHR. Reportedly, this submission resulted in an amicable settlement between the asylum-seeking family and Greece under Article 39 of the Convention.

In conclusion, while human rights advocates hoped WS and Others v Frontex would set a significant precedent, the General Court’s judgment is both concerning and disheartening. It appears Frontex has once again evaded accountability for human rights violations. Since its inception, Frontex has faced substantial criticism. Specifically, observers and legal experts have questioned whether and how fundamental rights are safeguarded at Europe’s external borders, particularly the right to life, respect for human dignity, the right to an effective remedy, and the right not to be subjected to torture, persecution, or inhumane treatment (the principle of non-refoulement). In June 2021, the NGO Sea Watch released a report alleging that “[a]erial reconnaissance enables Frontex to gather extensive knowledge about developments in the Central Mediterranean Sea and relay information about boats in distress to the ‘competent authorities’ […] When spotting a boat in the Libyan search and rescue zone, Frontex […] often only informs the Libyan authorities […], despite NGOs or merchant vessels also being in the vicinity. By forwarding the information to the Libyan Joint Rescue Coordination Centre and sometimes even directly guiding the so-called Libyan Coast Guard to the position of a boat, Frontex coordinates and facilitates the interceptions and pullbacks of people in distress to Libya.” Sadly, WS and Others v Frontex will be remembered as yet another instance where the EU agency disregarded its obligations and violated the human rights of asylum-seekers at Europe’s external borders without facing legal repercussions.