31
October
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.


5. Vulnerability Assessment and multiannual strategy

Pursuant to the Recital (10) of Regulation (EU) 2022/922 which revised the Schengen evaluation and monitoring mechanism, synergies between Frontex’ vulnerability assessment and the Schengen evaluation and monitoring mechanism should be maximised. Article 33 of the EBCG Regulation unpacks and further details this duty. However, the embedded fundamental rights safeguards for these two mechanisms differ significantly.

FRA’s 2018 opinion on the proposed EBCG Regulation noted that the provisions in the proposal relating to multiannual strategic planning (current Articles 8 and 9) and to the vulnerability assessment do not mention fundamental rights, thus creating a risk that fundamental rights will not be adequately considered. In contrast, Regulation (EU) 2022/922 contains a series of concrete fundamental rights safeguards as well as provisions on cooperation with FRA, some of which could also inform a potential revision of the EBCG Regulation in view of contributing to mainstreaming fundamental rights in vulnerability assessments. Under Recital (11) of Regulation 2022/922, Schengen evaluations should pay particular attention to “verifying respect for fundamental rights in the application of the Schengen acquis” for which “additional measures should be implemented”. This could be used as a source of inspiration when adjusting the provisions on vulnerability assessment, should the regulation be reopened, and as a possible follow up to recommendations on vulnerability assessments by the European Court of Auditors.[16] European Court of Auditors, Special Report 8/2021, Frontex’s support to external border management: not sufficiently effective to date, 7 June 2021 recommendation 3, page 43.

Every year, as part of the bilateral cooperation arrangement, Frontex requests FRA to submit information relating to fundamental rights challenges and good practices at the external borders, which Frontex uses for its vulnerability assessments. In an environment of shrinking resources, unless expressly tasked by the EU legislator and sufficiently resourced, FRA may not be able to continue to provide this support to Frontex in future.

Over the years, FRA’s annual fundamental rights reports have documented serious, systemic and persistent fundamental rights violations at the EU’s external borders.[17] FRA (2022), Fundamental rights report, 8 June 2022, chapter 6.FRA (2021), Fundamental rights report, 10 June 2021, chapter 6; FRA (2020), Fundamental rights report, 11 June 2021, chapter 5.
FRA’s report, titled ‘Asylum and Migration: Progress achieved and remaining challenges', illustrates the fundamental rights challenges as of the end of March 2023. Article 8 of the EBCG Regulation provides for a multiannual strategic policy cycle for European integrated border management which sets out how the challenges in the area of border management and return are to be addressed in a coherent, integrated and systematic manner. Considering the recurrent and widespread fundamental rights issues at the EU’s external borders, it would be helpful to require the drafters of such a strategy to ensure that it also envisages how to duly address related fundamental rights challenges.

In conclusion, should the EBCG Regulation be revised, considerations could be given to strengthen the fundamental rights components of the vulnerability assessment and  the multiannual strategic policy cycle, for which Regulation (EU) 2022/922 could offer inspiration.