The European Parliament has voted on new rules for FRONTEX (the European border agency) and how it operates at sea. The new rules put in place more safeguards for migrants trying to reach Europe's shores. However, there are some crucial limitations to the rules which effectively legalise push back, and leaves out some crucial protections for people fleeing from persecution. According to Green leading canidate Ska Keller, "the protection of refugees at sea is an inviolable principle that the EU should uphold.
"While the rules adopted today include some clear improvements on the current situation, concerns remain that FRONTEX sea operations will still be able to repel refugee boats without properly assessing whether refugees on intercepted boats need protection in the EU. This would be at odds with a European Court of Human Rights (ECHR) ruling on the duty to protect refugees at sea.
"The new rules include binding provisions on search and rescue. Importantly, the fundamental principle of non-repelment of people who face persecution is explicitly detailed in the new rules, following Green insistence. FRONTEX will also have a duty to include medical assistance, translation and legal advice in planning its operations. However, concerns remain. As a translator does not have to be on board the FRONTEX boat and will only be available if necessary, there is no guarantee that refugees can make it clear that they need protection in the EU. Refugees will also have no means to contest an attempt to send boats back. This is in spite of the fact that the ECHR judgement made clear that refugees must be given immediate legal means to appeal any such decision.
The new regulations are in response to the landmark Hirsi ruling by the European Court of Human Rights, which condemned Italy for returning boat people to Libya in 2012. The Greens played an important part in these new regulations. In the Hirsi ruling, the European Court of Human Rights argued that the personal circumstances of each person on board must be assessed; that persons on board must have an opportunity to put arguments against their return; that access to interpreters and to legal advisers must be ensured; and that persons on a boat must have the possibility to effectively oppose their immediate return by access to legal remedies with a suspensive effect.
The new regulations fall short of fully implementing this ruling:
- It does not provide for legal remedies with a suspensive effect
- Access to interpreters and legal advisers is granted only “if necessary”. In addition, nowhere do the regulation stipulate that interpreters or legal advisers must be on board.
- Border guards are not required to assess the personal circumstances of the persons on board
In practice, this leaves FRONTEX and the Member States participating in a FRONTEX operation with important loopholes for escaping the principle of non-repelment. According to Keller, "this is unacceptable."