Category Archives: Frontex

Clarification of Frontex Data On Persons Detected at EU External Borders – Includes Significant Double Counting

Yesterday Frontex released updated monthly data showing that 710,000 migrants crossed the EU’s external borders from January to September 2015. In a Twitter exchange with Nando Sigona (Univ. of Birmingham and Univ. of Oxford), Frontex clarified that it counts an individual migrant each time she crosses an external border; according to Frontex, “[t]his means that a large number of the [710,000] people who were counted when they arrived in Greece were again counted when [after passing through Greece, they entered] the EU for the second time through Hungary or Croatia.”

The 710,000 figure that was widely reported yesterday may overstate the number of individuals crossing the external borders by several hundred thousand. For example, Frontex reported that 350,000 migrants arrived in the Greek islands during the first nine months of 2015 and that 204,000 migrants crossed into Hungary during the same time period. Presumably a majority (or at least a very significant portion) of the migrants crossing into Hungary initially entered the EU via Greece and were counted at that time. Many of the tens of thousands of migrants who crossed into Croatia likewise presumably first entered the EU through Greece.

Frontex did add a disclaimer to its web site explaining the double counting: “Clarification: Frontex provides monthly data on the number of people detected at the external borders of the European Union. Irregular border crossings may be attempted by the same person several times in different locations at the external border. This means that a large number of the people who were counted when they arrived in Greece were again counted when entering the EU for the second time through Hungary or Croatia.”

And to be fair, Frontex has at times previously acknowledged that its figures include double counting. See the press statement from 14 September reporting 500,000 migrants having been detected at the external border: “However, a large number of the persons detected at the Hungarian border with Serbia had already been counted when they arrived in Greece from Turkey a few weeks earlier.” But the fact remains that much of the news coverage generated by the Frontex data will not explain the double counting.


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Satellite Imagery Used by Frontex to Detect and Rescue Migrant Boats

While the use by Frontex of satellite imagery is not new, Frontex released a copy of a satellite image used last week to detect and rescue 370 people on Eurosur Fusion Services imageryboard three inflatable boats off the Libyan coast. (It is unclear whether the image made available by Frontex shows the actual spatial resolution available to Frontex.)

According to Frontex, the imagery is part of “Frontex’s Eurosur Fusion Services … made possible by the cooperation between experts at Frontex and the European Maritime Safety Agency (EMSA), Italian authorities and EUNAVFORMED. … The Eurosur [fusion] services already include automated large vessel tracking and detection capabilities, software functionalities allowing complex calculations for predicting positions and detecting suspicious activities of vessels, as well as precise weather and oceanographic forecasts. Fusion Services use optical and radar satellite technology to help locate vessels at sea. Recent upgrades of their technical capabilities make it possible to spot smaller vessels.”

Frontex has used satellite imagery for years, for example in 2008 during Frontex Operation Hera off Mauritania, Amnesty International reported that satellite photos would be presented to Mauritanian authorities to demonstrate that migrants on board a particular migrant boat had departed from Mauritania territory. (Amnesty International, “Mauritania: ‘Nobody Wants to Have Anything to Do With Us,’ Arrests and Collective Expulsions of Migrants Denied Entry Into Europe,” 1 July 2008.)

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UN Security Council to Vote Today, 8 October, on Resolution Authorising EU to Inspect and Seize Vessels on High Seas Suspected of Engaging in Smuggling or Trafficking of Persons

From What’s in Blue: The Security Council “is expected to vote [on 8 Oct. 2015] on a resolution aimed at disrupting human trafficking and the smuggling of migrants on the high seas off the coast of Libya. …

The draft resolution authorises member states, acting nationally or through regional organisations, to inspect vessels on the high seas off the coast of Libya that they have reasonable grounds to suspect are being used for migrant smuggling or human trafficking. Furthermore, the draft authorises member states to seize vessels if there is confirmation that they are being used for migrant smuggling or human trafficking from Libya. These authorisations are for a period of one year from the date of the adoption, and the draft stresses how these are given in exceptional and specific circumstances. …

It seems that the two most divisive issues during negotiations related to references to Chapter VII and the use of force. Several Council members, including Chad, Russia and Venezuela, raised concerns over the implications of having a Chapter VII resolution with a broad mandate. Following bilateral negotiations, the draft to be voted on is under Chapter VII but states that this is specifically to put an end to the recent ‘proliferation of, and endangerment of lives by, the smuggling of migrants and trafficking of persons in the Mediterranean sea off the coast of Libya’. …

In relation to the use of force, one of the difficulties was defining the instances in which member states are authorised to use force. The initial draft circulated by the UK included an authorisation to use ‘all necessary measures’ in confronting migrant smugglers or human traffickers. Some Council members wanted further guarantees that this was not a blanket mandate to use force. As a result of the members’ concerns compromise language was added to authorise member states to use ‘all measures commensurate to the specific circumstances’ in confronting them. …

While Council negotiations were put on hold during the high-level debate of the UN General Assembly, amendments were made to the draft in order to secure the consent of the Libyan permanent mission to the UN. …

Some Council members stressed the need to respect international refugee law, as well as the protection of the rights of migrants and asylum seekers. The draft underscores that it is not intended to undermine the human rights of individuals or prevent them from seeking protection under international human rights law and international refugee law.

The resolution is expected to provide legal backing for the EU NAVFOR MED’s operation in the high seas (which was renamed Operation Sophia on 28 September). … Council negotiations over a draft resolution authorising such an operation earlier this year (April-May) were put on hold following difficulties getting consent from Libyan authorities to operate in the territorial waters of Libya and its shore. Following the humanitarian crisis in the Mediterranean this summer, EU Council members decided to narrow the scope of the resolution to vessels operating on the high seas off the coast of Libya. A subsequent phase of the deployment of the operation in the territorial waters and on the shore of Libya is likely to be contingent upon the formation of a government of national accord in Libya.”

Full text of What’s in Blue article here.

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Filed under European Union, Frontex, Italy, Libya, Mediterranean, News, UN Security Council, United Nations

ECtHR: Italy’s Use of Summary Procedures to Return Tunisian Migrants Constituted Unlawful Collective Expulsion

The ECtHR, Second Section, issued a judgment on 1 September in Khlaifia et autres c. Italie (Requête no 16483/12) (official judgment in French) finding that the summary procedures used by Italy in 2011 to quickly return thousands of Tunisians who were reaching Italy by sea during the height of the Arab Spring violated the prohibition of collective expulsion of aliens contained in Art. 4 of Protocol 4 of the ECHR. (Judges SAJÓ and VUĊINIĊ did not find that collective expulsion had occurred and filed a dissenting opinion.) The Court also found violations of Art. 3, Art. 5, §§ 1, 2, 5, and Art. 13 (inhuman or degrading treatment, failure to promptly explain basis for detention, inability to challenge detention, lack of an effective remedy).

This is the fifth time that the ECtHR has found a violation of the collective expulsion prohibition. (See Čonka v. Belgium, no. 51564/99, § 62-63, ECHR 2002‑I; Georgia v. Russia (I) [GC], no. 13255/07, § 175, ECHR 2014;  Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 185, ECHR 2012; Sharifi and Others v. Italy and Greece, no. 16643/09, 21 October 2014.)

The Court acknowledged that unlike the applicants in Hirsi Jamaa, the Tunisian applicants in Khlaifia had been subjected to individualized identification and processing by Italian authorities, but under the circumstances the Court did not consider an identification procedure standing alone to be sufficient:

“156. [T]he Court is of the opinion that the mere implementation of an identification procedure is not sufficient to exclude the existence of collective expulsion. … [T]he expulsion orders did not contain any reference to the personal circumstances of the affected persons; the Government did not produce any document that could prove that individual interviews regarding the specific situation of each applicant would have occurred before the adoption of these [expulsion] orders; many people of the same origin experienced, at the time of the incriminating facts, the same fate as the applicants; [Italy’s] bilateral agreements with Tunisia … have not been made public and provided for the repatriation of irregular Tunisian migrants through simplified procedures, based on the simple identification of the person concerned by Tunisian consular authorities.”

The procedures at issue occurred during the 2011 Arab Spring when North Africa and the EU experienced significant movements of migrants and refugees. The Court took note of these exceptional circumstances but made clear that such circumstances do not excuse a state from complying with its obligations under the ECHR.  (See paras 127-128.)

The Court’s judgment should serve as a caution to the European Commission, EASO, Frontex, and EU member states as they consider new streamlined procedures to process the refugees and migrants reaching Europe; procedures must provide for meaningful individualized processing and individuals must be afforded a meaningful opportunity to challenge an expulsion order, among other requirements. The dissenting opinion of Judges SAJÓ AND VUĊINIĊ (in English), concluding that there had not been a collective expulsion, is well reasoned and reviews the history of the collective expulsion prohibition.

This is an excerpt from the Court’s judgment. The official version is only available in French, the English translation is mine:

“2. Appréciation de la Cour
2. Findings of the Court

153. La Cour observe qu’en l’espèce les requérants ont fait l’objet de décrets de refoulement individuels. Ces derniers étaient cependant rédigés dans des termes identiques, les seules différences étant les données personnelles des destinataires.

153. The Court observes that in this case the applicants were the subject of individual expulsion orders. They were, however, drafted in identical terms, the only differences being the personal information of the recipients.

154. La Cour a déjà précisé que le fait que plusieurs étrangers fassent l’objet de décisions semblables ne permet pas en soi de conclure à l’existence d’une expulsion collective lorsque chaque intéressé a pu individuellement exposer devant les autorités compétentes les arguments qui s’opposaient à son expulsion. La Cour a également jugé qu’il n’y a pas violation de l’article 4 du Protocole no 4 si l’absence de décision individuelle d’éloignement est la conséquence du comportement fautif des personnes intéressées (Hirsi Jamaa et autres, précité, § 184).

154. The Court has already held that the fact that multiple foreigners are subject to similar decisions does not in itself lead to the conclusion that there was collective expulsion when each person was individually able to present arguments against expulsion to competent authorities. The Court has also held that there is no violation of Article 4 of Protocol No. 4 if the absence of individual expulsion decisions is due to the wrongful conduct of the affected persons (Hirsi Jamaa and Others, cited above, § 184).

155. La Cour relève de surcroît qu’à la différence de l’affaire Hirsi Jamaa et autres (précité, § 185), en l’espèce, à l’instar des autres migrants débarqués sur l’île de Lampedusa en septembre 2011, les requérants ont fait l’objet d’une procédure d’identification. Le Gouvernement le souligne à juste titre (paragraphe 152 ci-dessus). Les requérants reconnaissent par ailleurs qu’immédiatement après leur débarquement à Lampedusa, les autorités de frontière italiennes ont enregistré leur identité et relevé leurs empreintes (paragraphe 149 ci dessus).

155. The Court further notes that, unlike the case of Hirsi Jamaa and Others (cited above, § 185), in this case, like the other migrants who landed on Lampedusa in September 2011, the applicants were the subject of an identification procedure. The Government rightly points this out (paragraph 152 above). The applicants also recognize that immediately after landing in Lampedusa, the Italian border authorities registered their identity and took their fingerprints (paragraph 149 above).

156. La Cour est cependant d’avis que la simple mise en place d’une procédure d’identification ne suffit pas à exclure l’existence d’une expulsion collective. Elle estime de surcroît que plusieurs éléments amènent à estimer qu’en l’espèce l’expulsion critiquée avait bien un caractère collectif. En particulier, les décrets de refoulement ne contiennent aucune référence à la situation personnelle des intéressés ; le Gouvernement n’a produit aucun document susceptible de prouver que des entretiens individuels portant sur la situation spécifique de chaque requérant auraient eu lieu avant l’adoption de ces décrets ; un grand nombre de personnes de même origine a connu, à l’époque des faits incriminés, le même sort des requérants ; les accords bilatéraux avec la Tunisie (paragraphes 28-30 ci dessus) n’ont pas été rendus publics et prévoyaient le rapatriement des migrants irréguliers tunisiens par le biais de procédures simplifiées, sur la base de la simple identification de la personne concernée de la part des autorités consulaires tunisiennes.

156. However, the Court is of the opinion that the mere implementation of an identification procedure is not sufficient to exclude the existence of collective expulsion. It considers moreover that several factors lead to the consideration in this case that the expulsion at issue was indeed of a collective nature. In particular, the expulsion orders did not contain any reference to the personal circumstances of the affected persons; the Government did not produce any document that could prove that individual interviews regarding the specific situation of each applicant would have occurred before the adoption of these orders; many people of the same origin experienced, at the time of the incriminating facts, the same fate as the applicants; the bilateral agreements with Tunisia (see paragraphs 28-30 above) have not been made public and provided for the repatriation of irregular Tunisian migrants through simplified procedures, based on the simple identification of the person concerned by Tunisian consular authorities.

157. Cela suffit à la Cour pour exclure l’existence de garanties suffisantes d’une prise en compte réelle et différenciée de la situation individuelle de chacune des personnes concernées (voir, mutatis mutandis, Čonka, précité, §§ 61-63).

157. This is sufficient for the Court to rule out the existence of sufficient guarantees of a genuine and differentiated consideration of the individual circumstances of the persons involved (see, mutatis mutandis, Čonka, cited above, §§ 61-63).

158. Au vu de ce qui précède, la Cour conclut que l’éloignement des requérants a revêtu un caractère collectif contraire à l’article 4 du Protocole no 4. Partant, il y a eu violation de cette disposition.

158. In view of the foregoing, the Court concludes that the expulsion of the applicants took on a collective character contrary to Article 4 of Protocol No. 4. Accordingly, there has been a violation of this provision.


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Filed under European Union, Frontex, Italy, Judicial, Tunisia

Frontex Director: EU Military Operation Near Libya May Shift Migration Routes to Eastern Mediterranean

In an interview published earlier this week in Les Echos, Frontex Director Fabrice Leggeri noted that there already exists a small shift in migration flows from the central Mediterranean to the eastern Mediterranean: “The pressure is growing stronger on the eastern Mediterranean. … Since early 2015, and before last weekend, there were slightly more arrivals from Turkey: 40.000 irregular crossing in the Greek islands, against 37,000 in Italy. The number of Syrian refugees is decreasing steadily in Italy. Syrian families prefer to avoid Libya because the security conditions there have worsened significantly. The smugglers are much more violent in Libya.”

[“La pression est de plus en forte sur la Méditerranée orientale. … Depuis le début 2015, et avant le week-end dernier, il y avait légèrement plus d’arrivées en provenance de Turquie : 40.000 franchissement irréguliers dans les îles grecques, contre 37.000 en Italie. Le nombre de réfugiés syriens diminue de manière constante en Italie. Les familles syriennes préfèrent éviter la Libye car les conditions de sécurité s’y sont nettement dégradées. Les passeurs sont beaucoup plus violents en Libye.”]

Director Leggeri noted that an EU military operation near Libya may simply move some of the migration flow further to the east: “Migration routes are extremely flexible and can change rapidly. There is strong pressure [migratory] on the European Union in general from those who come from the African continent and the Middle East. … If there is a military operation in the vicinity of Libya, this may change the migration routes and make them move to the eastern route.”

[“Les routes migratoires sont extrêmement flexibles et peuvent se modifier rapidement. Il y a une forte pression sur l’Union européenne de manière générale qui vient du continent africain et du Proche-Orient. … S’il y a une opération militaire au voisinage de la Libye, cela peut changer les routes migratoires et les faire basculer vers la route de l’Est.”]


Filed under European Union, Frontex, Mediterranean

Statewatch Analysis: The EU’s Planned War on Smugglers

Statewatch has issued an Analysis, “The EU’s Planned War on Smugglers,” written by Steve Peers, Professor of EU Law, University of Essex:

“The EU’s Foreign Affairs Council is meeting today to discuss the possibility of a military operation in the Mediterranean to take actions against smuggling of migrants. Officially, at least, the purpose of the operation (as defined by EU leaders last month) is to destroy smugglers’ boats. The EU’s High Representative has stated that there will be ‘no boots on the ground’; and as she arrived at the Council meeting today, she referred to authorising an ‘EU operation at sea’. However, it is clear from the documents discussed in the EU’s Political and Security Committee last week that (unless plans have changed radically in the meantime) the High Representative is being “economical with the truth”. The EU action clearly contemplates action by ground forces. Moreover, it anticipates the possible loss of life not only of smugglers but also of Member States’ forces and refugees. In effect, the EU is planning to declare war on migrant smugglers – without thinking through the consequences. [***]”

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German Naval Ships Participating in Mediterranean Rescue Operation Destroy Empty Migrant Boats

Two German naval ships, the Hessen and the Berlin, have been participating in Mediterranean rescue operations since 5 May and have reportedly destroyed five migrant boats (four inflatable and one wooden) after rescue operations were completed and migrants removed from the boats. The boats are destroyed because they might pose a navigational hazard to other vessels and might also be mistaken for a boat in distress. (Wir müssen die Boote zerstören, weil sie auf dem offenen Meer ein Schifffahrtshindernis für andere Boote darstellen. Zum anderen könnte es sein, dass wir ein leeres Boot aus der Luft irrtümlich als ein in Seenot befindliches Boot wahrnehmen und hinfahren, um es zu retten. Das kann wertvolle Zeit kosten, die uns bei der Rettung von besetzten Booten dann verloren geht.)

As I have noted before, there are situations such as these where the destruction of a migrant boat may be perfectly legal and appropriate. Assuming reasonable measures can be taken to avoid or minimize environmental damage, the destruction in international waters of an unflagged and unseaworthy vessel would seem to be legal.

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