31
octobre
2023

The European Border and Coast Guard and fundamental rights

Fundamental rights are an important consideration in European border management. Virtually all activities can have an impact on rights – from risk analysis to training, border checks and border surveillance. Safeguards in laws regulating European border management aim to protect rights. This report is a contribution to the first review of the European Border and Coast Guard Regulation (EU) 2019/1896 that offers an opportunity to reflect on how best to improve the fundamental rights situation at the external borders of the EU.


6. Return monitoring

Monitoring of forced returns is a key safeguard against fundamental rights violations during return operations.

FRA has regularly highlighted in its reporting on forced return monitoring systems in EU Member States, that monitoring by the same authority that carries out returns is not sufficiently independent to qualify as ‘effective’ under Article 8 (6) of the Return Directive (Directive 2008/115/EC). Relevant expertise and sufficient budgetary resources to conduct monitoring in an independent manner and with sufficient frequency are further important elements of effectiveness.

Frontex set up an internal pool for forced return monitors pursuant to Article 51 of the EBCG Regulation. By the end of 2022, the pool included 60 monitors, all but two of which were affiliated with the national entity in charge of forced return monitoring and were formally appointed to the Frontex-governed pool. The pool, coordinated by the fundamental rights officer since the end of 2021, monitored some 56 % of all Frontex-coordinated forced return operations by charter flights in 2022. This monitoring covered 100 % of collecting return operations, 71 % of joint return operations and 36 % of Frontex-funded national return operations.

FRA observed that the pool of forced return monitors conducted its tasks without interference, however, formally, the management of the pool remains with Frontex, thus within the same agency that carries out the forced returns. In FRA’s 2018 opinion, FRA suggested that to ensure its effectiveness, the EU legislator should revise the relevant provision in the then proposed EBCG Regulation to entrust an external actor to manage the pool of forced return monitors.

One way to enhance the independence of the pool without undermining what works well would be to entrust an actor with fundamental rights expertise external to Frontex with specific review and oversight functions. Such an entity could, for example, receive and analyse the monitoring reports and provide an annual assessment. In addition, as the forced return monitoring pool is composed of members of national forced return monitoring bodies established under Article 8 (6) of the Return Directive, such an entity could also be engaged in developing guidance, tools and training materials, similar to the role that the proposed Screening Regulation envisages for FRA.[18] European Commission (2020), Proposal for a Regulation of the European Parliament and of the Council introducing a screening of third country nationals at the external borders and amending Regulations (EC) No 767/2008, (EU) 2017/2226, (EU) 2018/1240 and (EU) 2019/817, COM/2020/612 final, Brussels, 23 September 2020.
This could also help address some of the shortcomings of the national monitoring mechanisms under Article 8 (6) of the Return Directive identified through Schengen evaluations.[19]  See, for example, recommendations to monitor all phases of the return process in the report in Austria (2020 evaluation) and The Netherlands (2021 evaluation), the need for more resources and more return monitoring in Latvia (2018 evaluation),and the need to ensure full independence of the monitoring body in Sweden (2022 evaluation).

In addition, FRA would also like to draw attention to the absence of a legal definition of the term 'voluntary return', considering that Article 48 of the EBCG Regulation tasks Frontex to provide assistance in relation to voluntary returns. The term ‘voluntary return’ should be defined in law, clarifying that it concerns people who do not have the right to stay in the EU and how it relates to the concept of ‘voluntary departure’ as defined in Article 3 (8) of the Return Directive. In doing so, express references to the principle of non-refoulement and access to asylum safeguards could also be considered.