Tag Archives: Operations at sea

Director Laitinen Describes Frontex Response to the 2011 Migratory Flows from North Africa

In a recent opinion article published on Publicservice.co.uk, Frontex Director Ilkka Laitinen described the challenges faced by Frontex and provided a description of Frontex’s “unprecedented” activities over the past 12 months in the operational theatre, referring to the first RABIT deployment in October 2010 and the response to the migratory flows from North Africa beginning in January 2011.

Extensive excerpts regarding the response to the migratory flows from North Africa:

“…  Since January 2011, world attention has been focused as never before on the Arab world. The ‘Arab Spring’ uprisings in North Africa and the Middle East once again redrew the European migration map, and Frontex’s operational capacity was tested again. With the arrival of almost 5,000 migrants on the tiny Italian island of Lampedusa, the agency was once more called upon to assist. However, the support required was in a very different form than that in Greece.

African exodus
The migratory flows from North Africa towards the EU external borders – predominantly to Italy and Malta – have been very different from those to Greece. Initially, almost all were economic migrants from Tunisia seeking work in Europe.

The modus operandi of the facilitation networks behind the phenomenon was a familiar one to Frontex, namely, over-packing unseaworthy vessels with inadequately experienced crews and little life-saving equipment, if any. This created a predominantly humanitarian need for search and rescue activities at sea. It also created an administrative challenge on shore, to process usually undocumented migrants, establish their nationalities and identities and take care of their immediate needs, as well as to transfer them to better equipped facilities on the mainland and start return procedures where appropriate. There was no call from Italy for a RABIT deployment, however. Italy is very well equipped for maritime border control, as well as for search and rescue activities. Where the Italian authorities requested most support was in Frontex’s other areas of specialisation – intelligence gathering, situational awareness, and the deployment of experts to the field to assist in the screening and debriefing of migrants (establishing probable nationality and gathering evidence of people smuggling respectively). Long before being called on by the Italian Ministry of Interior, Frontex’s Situation Centre and Risk Analysis Unit were busy identifying the full range of possible scenarios in Egypt, Tunisia and Libya, as well as monitoring developments in other countries in the region.

Since the first waves of migrants from Tunisia, the situation has evolved constantly, with ever more sub-Saharan migrants and refugees seeking international protection. Such changeable flows require flexibility and constant adjustment to the operational response. For each possible scenario, an appropriate operational response was planned by the Joint Operations Unit and all necessary steps were taken to ensure that a rapid response could be launched anywhere in the operational area at any time.

This is an ongoing process and a challenge to which expert staff at the agency’s Warsaw HQ, and the Frontex Operational Office in Piraeus, Athens, continue to respond. This readiness ensures operational flexibility. It also demonstrates another important area in which Frontex adds value to member states’ activities at the EU’s external borders. It must always be borne in mind that it is the member states themselves that remain at all times responsible for their own borders; Frontex’s role is to provide support when requested. Keeping member states up to date with detailed and accurate intelligence is one of the ways the agency works behind the scenes to maximise member states’ effectiveness. Another way is by providing a platform for exchange of data and other information. Equally, experts in the field debrief migrants to build up a clearer picture of the routes used, prices paid and other modi operandi of the smuggling networks involved.

The cruel sea
The maritime domain remains the most complicated for border control, not least legally. The provisions of national and international maritime law and their impact on migration management, make the seas the most challenging environment for operations. It is for this reason that for many years, Frontex has been encouraging greater coordination between the southern member states themselves through the European Patrols Network (EPN) – an initiative to increase efficiency, improve information sharing and reduce overlapping of efforts and the incumbent gaps they leave in surveillance. It was the existing EPN provisions in the Mediterranean that formed the basis of Frontex’s operational response to the migration flows from North Africa. And it is the EPN that will be strengthened as a combined surveillance response going forward. EPN will form an essential component of EUROSUR, the common European surveillance system now being developed. It will also help to enhance Europe’s search-and-rescue capacity in the Mediterranean.

But as has been said many times, border control is no panacea. It is the last line of control and rescue. Its rightful place is at the heart of a far-reaching IBM [Integrated Border Management] system that includes deterrents against illegal migration as well as incentives for legal migration, and that tackles the root causes of such migration in countries of origin and transit. To put it simply, prevention is better than cure, and by the time migrants reach the external EU border it is often too late.

The most effective way to tackle the dangers of illegal migration by sea is to deter migrants from setting out in the first place. Only when this principle is enshrined at the EU policy level can it be claimed that the Union is seriously tackling illegal migration and cross-border crime.”

Click here for link to full text of article.

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Frontex Signs Cooperation Agreement with Cape Verde

2006 BBC Map of Frontex Deployment

Frontex and Cape Verde signed a “Working Arrangement” on 14 January.  According to the Frontex press release, “the arrangement aims at promoting the development of broad cooperation on operational and technical border security/management matters between the Agency and the competent authorities of Cape Verde, with a view to working toward sustainable partnership. The intended cooperation in areas related to border security and management include exchange of best practices and strategic information, training, capacity-building and collaboration on relevant technologies as well as participation in joint operations. Information sharing regarding people-smuggling and trafficking in human beings is also foreseen as part of the arrangement.”

Frontex has coordinated operations with Cape Verde for many years pursuant to the provisions of bi-lateral agreements between Spain and Cape Verde.  In a September 2010 interview with EurAsylum, Frontex Director Laitinen said:  “In West Africa, Senegal, Mauritania and Cape Verde have all been integrated into Frontex operations for many years with good results, always demonstrating a willingness and capacity to work for the same aims and goals as their European colleagues. Although we do not have formal working arrangements in place yet with these countries, we are able to work together on the basis of their existing bi-lateral provisions with Spain. This cooperation has had measurable results in reducing people smuggling via the Canary Islands and in preventing the loss of human lives at sea.”

Click here for Frontex Press Release.

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Dutch Govt Position on Asylum Requests Made at Sea

The Dutch Minister of Justice, E.M.H. Hirsch Ballin, recently outlined the Dutch government’s position regarding the proper handling of asylum requests made by migrants who are intercepted at sea during Frontex coordinated operations.  The position is contained in a letter sent by the Justice Minister to the Chairman of the Dutch Senate on 3 September 2010.

This recent statement was brought to my attention by Dr Matteo Tondini, Vrije Universiteit Amsterdam, who succinctly summarized the Dutch Government’s position as follows:

  1. Dutch vessels are not a portion of Dutch territory;
  2. Asylum requests of migrants made on board Dutch vessels must be assessed by a competent authority (not by Dutch authorities, however, but possibly by the host nation); and
  3. The Netherlands considers this as a conditio sine qua non for its participation in FRONTEX operations at sea.

The Minister’s letter refers to provisions of the Council Decision re Rules for Sea Border Operations Coordinated by Frontex the validity of which is now being consider by the European Court of Justice pursuant to a challenge by the European Parliament.

I reproduce here an English translation of the Justice Minister’s letter provided by Dr  Tondini:

“21 501-28  Defense Council – Nr. 61  Letter from the Minister of Justice

To the President of the House of Representatives, The Hague, September 3, 2010

With this letter I keep my promise, made during the debate on 18 June 2008, to brief your House about the operational requirements for Frontex operations at sea. I also come here after the commitment undertaken by the then State Secretary for European Affairs on 16 June 2009 to your Chamber, about the procedure to be followed if a request for asylum is made on a Dutch ship during Frontex operations at sea.


FRONTEX coordinates the operational cooperation between independent States which are competent for the management of external borders. Different operations of member states under the coordination of Frontex have been carried out in this framework. Due to a call by the European Council for clear rules and uniformity in the implementation of Frontex operations at sea, in 2007 the Commission was mandated to draw the requirements for the Agency’s maritime operations.

Operational requirements for Frontex operations at sea

The creation of these rules was a laborious and lengthy process. Based on the results of an extensive debate within a group of experts from the European Commission, the European Commission has drafted rules for Frontex operations at sea in the context of the surveillance of the external borders, in order to prevent illegal migration. The attached decision that embeds these rules, is a supplement to the Schengen Borders Code and applies since 4 May 2010.

In Part I of the Annex, the Decision contains a number of mandatory requirements for the interception of migrants in the contiguous zone and on the high seas. Part II of the Annex to the decision includes a number of non-binding rules on the search and rescue of people in distress during Frontex operations at sea, concerning the safe debarkation of survivors.

These requirements are a specification of the international norms and regulations on the interception and the search and rescue of people in distress at sea, contained in the UN Convention on the Law of the Sea, the International Convention for the Safety of Life at Sea and the International Convention on Maritime Search and Rescue.

In the Decision it is stated that these requirements are included and elaborated in the operational plans for each operation set up by the Agency. The arrangements for the rescue and debarkation of migrants in distress are also included in the operational plan. Furthermore, Section No. 1.2 of the Annex I to the Decision explicitly indicates the principle of non-refoulement.

The rules contained in the decision will contribute to create a greater uniformity of action between Member States during FRONTEX maritime operations and will make it possible to address Member States when they deviate from the norms concerning the activities related to the interception and the search and rescue of people at sea.

Procedure to request asylum on Dutch ships during Frontex operations at sea

An asylum request can only be submitted to the responsible authority of the state in which territory – including the territorial waters – the application is made. A Dutch ship is not part of the Dutch territory and on a Dutch ship there is no authority responsible for handling applications, being the commander of the ship not entitled to receive them. However, on a Dutch ship the Dutch jurisdiction applies.

In this regard, it is the responsibility of a Dutch ship’s commander that if a migrant on board expresses a wish to submit an application, this is not left without consequences. This requires that an alien who thinks to need protection has to be returned only after his/her request has been assessed and there is no reason to grant the protection in question. These migrants should therefore be given the opportunity to submit an application to a competent authority.

In the operational requirements for Frontex maritime operations it is provided that Member States should clarify in the operational plan for Frontex operations the steps to be taken with regard to intercepted or rescued people who are in need of protection and the place of their debarkation, according to international law and all the applicable bilateral agreements.

This means that the operational plan may include an explicit provision on that it is the host nation which is responsible for handling the applications of intercepted or rescued migrants made on board the Dutch ship. The Netherlands considers the inclusion of this provision as a condition to participate in a Frontex operation.

Member States are always bound by the principle of non-refoulement under the 1951 Refugee Convention and the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR).

In addition, during the training provided by Frontex much attention is given to the preparation of border guards in the field of asylum and refugee law, focusing in particular on the identification of asylum seekers within mixed migration flows. Courses are aimed to even better prepare border guards to properly identify the protection needs of refugees.

The Minister of Justice, E.M.H. Hirsch Ballin”

Click here for the Letter (NL).

(I thank Dr Tondini for this information and the translation.  -nwf)

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EP Refers Frontex Sea Borders Rule to ECJ

On 23 June the JURI committee (Committee on Legal Affairs) voted in camera to refer the question of the validity of the Frontex rule regarding the surveillance of the sea external borders to the European Court of Justice (Council Decision 2010/252/EU (“Frontex / Sea borders”)).  The referral requests the Court “to preserve the effects of the measure until a new legislative act has been adopted.”

Maltese MEP Simon Busuttil, the EPP Coordinator in the Civil Liberties Committee, was quoted as saying: “we have given notice to the Commission that not all is fine with these Frontex guidelines and it is time for a rethink. We want to ensure that Parliament’s role is defended and that we can have our say. We want these rules to be fair. In their current version they are not.”

Both the LIBE and JURI committees believe that the European Commission exceeded its power when it presented the new Frontex rule under the comitology procedure as opposed to using the ordinary legislative procedure which would have given the Parliament the ability to amend the rule.  Malta has strongly objected to provisions within the rule.  Malta has said that its decision not to host Frontex’s Central Mediterranean enforcement operation this year, Operation Chronos, was due to the disembarkation provisions contained in the new Frontex rule.  Malta believes that the rule would require intercepted migrants to be taken to Malta.

Click here for article.

Click here for statement on MEP Simon Busuttil’s web site.

Click here for EPP Group press release.

Click here and here for earlier posts.


Filed under European Union, Frontex, Judicial, Malta, Mediterranean, News

Background Note Pertaining to Proposed Guidelines for Frontex Operations at Sea

Given the strong objections by Malta and Italy to the proposed Guidelines for Frontex Operations at Sea, the “Note for the File” pertaining to the “Draft Council Decision supplementing the Schengen Borders Code as regards sea border surveillance in the context of operational cooperation coordinated by FRONTEX (COM(2009)658) as amended by the Council on 25 January 2010” is worth reading.

The “Note” explains the origins of the Guidelines and the additional procedures which will need to be completed before the Guidelines take effect:

“Note for the File:

The questions of who is responsible for saving people at sea and where they should be disembarked have been subject to intense debates in the context of surveillance operations concerning the EU’s sea borders coordinated by Frontex. The operations take place in a highly complex legal and political environment and touch upon international law issues and on the EU’s relations with third countries.

After long preparatory work, including a study on the relevant international law instruments completed in 2007, the Commission drafted a set of guidelines intended to

  • ensure that international rules are uniformly applied by all Member States taking part in surveillance operations coordinated by Frontex (Convention on the Law of the Sea (UNCLOS), conventions on safety at sea and search and rescue, international law on refugees and fundamental rights) and
  • create a basis in EU law enabling one Member State to carry out surveillance of another Member States’ maritime borders.

The Commission presented the draft guidelines in the form of an implementing measure, based on Article 12 (5) of the Schengen Borders Code.  This provision, together with Article 33 of the Borders Code, authorises the Commission to adopt additional measures governing border surveillance in accordance with the regulatory procedure with scrutiny as laid down in Council Decision 1999/468/EC (“comitology decision”).

After the entry into force of the Treaty of Lisbon this procedure continues to apply until the basic legal act, the Schengen Borders Code, has been aligned to the framework of the Treaty of Lisbon. Therefore, the regulatory procedure with scrutiny applies to the present draft measure.

The draft was first submitted to the Borders Code Committee. Member States’ experts failed to agree on the draft; therefore, the Committee did not issue a formal opinion. One of the controversial issues was whether the Commission’s draft went beyond its implementing powers.

On 7 December 2009, the Commission submitted a revised draft to the Council and to the Parliament, in the form of a draft Council Decision (COM(2009)658).

In accordance with the regulatory procedure with scrutiny the Council, acting by qualified majority, had the following options:

  • · oppose the proposed measure, in which case it will not be adopted; the Commission may submit an amended proposal or present a legislative proposal (option 1)
  • · envisage adopting the proposed measure, in which case it shall without delay submit it to the European Parliament (option 2)
  • · not act within the two months, in which case the Commission shall without delay submit the measures to the Parliament.

The Council had to act within a deadline of two months, i.e. before 7 February 2010.  On 25 January 2010 the Council, with Italy and Malta abstaining, decided to envisage adopting draft Council Decision and submit the draft Council Decision to the European Parliament. Furthermore, the Council agreed on an additional declaration to be adopted by the Council if Parliament does not oppose the measure, asking Frontex to report on the practical implementation of this decision.

European Parliament’s role in the procedure and deadline

In accordance with the regulatory procedure with scrutiny, Parliament has four months in total, starting from the date of referral on 7 December 2009, to scrutinise the draft measure. In practice, Parliament now has two more months to take position before 7 April 2010.

Parliament’s options in the regulatory procedure with scrutiny are limited to the following. Parliament may, acting by a majority of its component Members,

  • · oppose the adoption of the measure; in this case, Parliament must justify its opposition, stating that the proposed measure exceeds the implementing powers granted to the Commission in the basic instrument, or is not compatible with the aim or the content of the basic instrument or does not respect the principles of subsidiarity or proportionality; if Parliament opposes, the draft measure shall not be adopted; the Commission may submit an amended proposal or present a legislative proposal
  • · not oppose the adoption of the draft measure; in this case, the draft measure may be adopted by the Council or the Commission.

LIBE, as the committee responsible, will prepare Parliament’s position, in accordance with Rule 88 of the Rules of Procedure. The Member responsible in LIBE is Michael Cashman, rapporteur for the basic act, the Schengen Borders Code. Once the Council’s position, adopted on 25 February 2010, has been officially referred to the Parliament, the chairman will set a deadline for Members who wish to propose that the committee objects to the draft measure. If the committee decides to object, it shall table a motion for a resolution to the plenary for adoption before 7 April 2010.

Action undertaken by LIBE so far:

On 11 January 2010, LIBE, as the committee responsible, heard presentations of the Commission (Mr Henrik Nielsen, Head of Unit, DG JLS) and the Spanish Presidency (Mr Burgos Nieto, JHA Counsellor) and held a first exchange of views on the file.

During the debate, several Members highlighted the political importance of the decision on the guidelines (Mr Busuttil, Mrs Flautre, Mr Moraes, Mrs Hennis-Plasschaert) and the fact that this was a long-standing discussion in the Council. The Executive Director of Frontex (Mr Laitinen) underlined the swift adoption of guidelines would enhance the efficiency of Frontex’ operations.

Next steps:

The Council will refer its position, which was adopted on 25 January 2010, to the Parliament within a few days. Then it will be Parliament’s turn to take a position before the expiry of the deadline on 7 April 2010.

In order to prepare LIBE’s position, the rapporteur recommends that an opinion be requested from the Parliament’s legal service, which should answer the following questions:


a) Having regard to the delineation between “rules” and “guidelines” for Member States in the draft measure as amended by the Council, could the content be considered a “non-essential element” of the final legal framework shaping the role of the Member States and Frontex?

b) Has the Commission exceeded its implementing powers under Article 12 (5) of the Schengen Borders Code by proposing the present draft measure?

2) In case the content or a part of the content of the draft measure touches upon essential elements of the basic act, could the objectives of the measure be achieved by a legislative act, notably by amending the basic act, i.e. the Schengen Borders Code?



  • · Proposal for a Council Decision supplementing the Schengen Borders Code as regards the surveillance of the sea external borders in the context of the operational cooperation coordinated by Frontex, COM(2009)658 of 27.11.2009, as amended by the Council on 25 January 2010
  • · Commission staff working document, Study on the international law instruments in relation to illegal immigration by sea, SEC (2007)691 of 15.5.2007, available in EN and FR.


European Parliament:

Member responsible: Michael CASHMAN

Asisstant to Mr Cashman: Renaud-Raphaël Savignat, tel. – 47759

S&D political Advisor: Mrs Annie Lemarchal, tel. – 43057

Desk officer responsible in the LIBE Secretariat: Lotte Madlen Tittor, tel. -40785

European Commission:

Desk officer responsible in DG JLS: Ana Isabel Sanchez Ruiz, tel. 02-2998239, email: Ana-Isabel.Sanchez-Ruiz@ec.europa.eu

Head of the responsible Unit in DG JLS: Henrik Nielsen, tel. 02-2991641, email: Henrik.Nielsen@ec.europa.eu

Council General Secretariat:

Desk officer: Mr Bent Mejborn, tel. 02-2816722, email: bent.mejborn@consilium.europa.eu

Spanish Presidency:

Mr Eugenio Burgos Nieto, JHA Counsellor, email: eugenio.burgos@reper.maec.es”

Click here for link to Document.

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Guidelines for Frontex Operations at Sea

NB –I believe this document is the final version of the proposed guidelines approved by the Council on 25 January 2010, with Italy and Malta abstaining, and which has now been forwarded to the Parliament for scrutiny.  I will remove or amend this post if I discover this is not the final version approved by the Council.

What follows are relevant excerpts from Document COM(2009)658 (Brussels, 27.11.2009), the final Proposal for a COUNCIL DECISION supplementing the Schengen Borders Code as regards the surveillance of the sea external borders in the context of the operational cooperation coordinated by the European Agency for the Management of Operational Cooperation at the External Borders – Frontex.

As noted, Malta and Italy oppose these guidelines and have threatened to withdraw from future Frontex missions if these guidelines take effect.

Guidelines for Frontex operations at sea


1.1 Measures taken for the purpose of the surveillance operation should be conducted in a way that does not put at risk the safety of the persons intercepted or rescued as well as of the participating units.

1.2. The special needs of children, victims of trafficking, persons in need of urgent medical assistance, persons in need of international protection and other persons in a particularly vulnerable situation should be considered throughout all the operation.

1.3. These guidelines should be applied by Member States in accordance with fundamental rights. Member States should ensure that border guards participating in the surveillance operation are trained with regard to relevant provisions of human rights and refugee law, and are familiar with the international regime on search and rescue.


2.1 Upon detection, the ship or other sea craft (“ship”) should be approached in order to observe its identity and nationality and, pending further measures, should be surveyed at a prudent distance. [***]

2.4. Measures taken in the course of the surveillance operation against ships or other sea craft with regard to which there are reasonable grounds for suspecting that they carry persons intending to circumvent the checks at border crossing points may include: [***]

(f) conducting the ship or persons on board to a third country or otherwise handing over the ship or persons on board to the authorities of a third country;

(g) conducting the ship or persons on board to the host Member State or to another Member State participating in the operation.


3.1. Participating units shall provide assistance to any vessel or person in distress at sea. They shall do so regardless of the nationality or status of such a person or the circumstances in which that person is found.

3.2. When facing in the course of the operation a situation in which uncertainty or apprehension exists as to the safety of a ship or of any person on board, the participating unit should forward as soon as possible all available information to the Rescue Coordination Centre responsible for the search and rescue region where the situation is taking place.

In cases where the Rescue Coordination Centre of the third country responsible for the search and rescue region does not respond to the notification transmitted by the participating unit, the latter should contact the Rescue Coordination Centre of the host Member State that is geographically the closest to the emergency.

While awaiting instructions from the Rescue Coordination Centre, participating units should take all the appropriate measures to ensure the safety of the persons concerned. [***].


4.1. The operational plan should spell out the modalities for the disembarkation of the persons intercepted or rescued, in accordance with international law and any applicable bilateral agreements.

Subject to section 4.2, priority should be given to disembarkation in the third country from where the persons departed or through the territorial waters or search and rescue region of which the persons transited or, if this is not possible, to disembarkation in the geographically closest place where the safety of the persons can be ensured.

4.2. No person should be disembarked in or otherwise handed over to the authorities of a country with regard to which there are substantial grounds for believing that he or she would be subjected to persecution or to torture or to other forms of inhuman or degrading treatment or punishment, or from which there is a risk of expulsion or return towards such a country. The persons intercepted or rescued must be informed in an appropriate way so that they can express any reasons for believing that they would be subject to such treatment in the proposed place of disembarkation.

4.3. The coordination centre should be informed of the presence of persons within the meaning of paragraph 4.2, and should convey that information to the competent authorities of the host Member State.

Click here for full Document.

Click here for a “Note to the File” pertaining to the Draft Council Decision supplementing the Schengen Borders Code as regards sea border surveillance in the context of operational cooperation coordinated by FRONTEX (COM(2009)658) as amended by the Council on 25 January 2010.

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