Mariana Gkliati, Tilburg University
Marloes Streppel, Leiden University
Photo credit: Francesco Placco, via Wikimedia Commons
Introduction
On 27
October 2026, the European Commission proposed two new Regulations expanding
the mandate of the European Border and Coast Guard (EBCG) Agency, Frontex: an amendment to the EBCG Regulation and a new Regulation on the Digitalisation of Returns. The Commission envisages a substantial budget
increase for the agency, allocating €11.8 billion for 2028–2034, almost double
its current allocation. Its operational capacity would expand through a gradual
increase of the Standing Corps to 30,000 officers by 2041 (6,000 Frontex staff,
7,000 nationally seconded officers, and a new 17,000-strong European Border and
Return Reserve). Frontex would also have easier access to state-of-the-art
equipment and technology, becoming the central purchasing body also for
advanced digital and AI-enabled technologies.
The proposal’s opening paragraph begins by
highlighting the general achievements of EU border management in past years:
the number of irregular border crossings has declined steadily since 2023,
reaching its lowest levels since 2021; returns have increased to more than 30%;
with the assistance of Frontex, the EU’s “collective capacity to manage its
external borders has been progressively strengthened” (Preamble, p. 1). This opening statement seems to confirm the
Commission's own 2024 evaluation of Frontex’s current mandate: “no immediate
need for a revision of the EBCG Regulation or its annexes” (Evaluation of Regulation 2019/1896, p. 11). Nonetheless, the Commission continues in its
second opening paragraph: “migratory pressures are likely to persist,” loading
this prediction with securitarian concerns about geopolitical developments,
migrant smuggling, cross-border crime, and hybrid threats (Preamble, p.1).
Expansive Trends in EU Migration Management
Over the past decade, the area of migration
management, including asylum and border management, has become one of the
fastest-growing areas of EU law, with a rapid expansion of legislative acts.
More importantly, the area has undergone a historical regulatory
intensification, with an exceptional expansion in the scope, complexity, and
institutional reach of EU regulation.
This legislative overgrowth in EU migration is
reflected in the New Pact on Migration and Asylum, which restructured virtually
the entire EU asylum and migration framework through the adoption of 10
legislative acts (mostly Regulations) in 2024 (entered into force in 2026) (link). Shortly after this widespread legislative overhaul,
the regulatory activity continued: at lightning speed, the EU legislature
adopted two amendments to the new Asylum Procedures Regulation (link, link) and a new Returns Regulation (link). Moreover, the Commission has presented an ‘anti-smuggling package,’ composed of two proposals, one amending the EU
rules on preventing and countering the facilitation of unauthorised entry,
transit and stay, and one enhancing police cooperation on migrant smuggling and
trafficking and the role of Europol in this regard.
This legislative
expansion has gone hand in hand with institutional expansion, increasing the powers,
competences, and operational responsibilities of EU agencies, particularly
Frontex, the EU Agency for Asylum, and Europol. Two further obvious trends in
this regulatory activity are the technological and territorial expansion well
beyond the EU’s borders. All three trends of digitalisation, externalisation
and agenification are compounded in the two proposed Regulations.
Digitalisation
Frontex has progressively evolved into an important
information hub within the EU's border and security architecture. Its work has
a significant intelligence dimension. In particular, the agency is tasked with
developing and operating common and interoperable systems which enable swift
and reliable information-sharing regarding emerging risks at the external
borders, irregular migration, and returns (Art.
10(1)(ab and ac), EBCG Regulation) and operates under the obligation to
share information with Member States and other EU Agencies (Arts. 11 and 12 ECCG Regulation).
Since its establishment in 2004, Frontex has been tasked
with conducting risk analyses, drawing on information supplied by Member States
and other sources. Its intelligence function has since expanded considerably, notably
through the Common Integrated Risk Analysis Model (CIRAM), which collects and
analyses statistical and operational data provided by Member States and other
Agencies, but also media and other sources, including those produced by the
Agency’s own work (e.g. risk analyses, vulnerability assessments).
The 2011 amendment of its mandate introduced limited
competences to collect and process personal data concerning irregular migration
and cross-border criminal activities. The 2016 amendment further expanded these
competences, including powers to process information obtained during screening
and debriefing activities and to transmit relevant information to Europol and
national law enforcement authorities for criminal investigations. Frontex’s
2016 mandate permitted it to collect, process and share personal data not only
for purposes of migration management but also for law enforcement purposes,
including combating terrorism, human smuggling and trafficking, and document
fraud.
The 2019
amendment expanded
the role of Frontex in the digitalisation
of returns. The agency
was then tasked with developing and operating a centralised return management
platform to process and share return-related information, including personal
data, biographic data, and passenger lists. Frontex also became responsible
for setting up
and managing the Central Unit of the European Travel Information and
Authorisation System (ETIAS). Today, Frontex has access to a range of
(largely interoperable) EU and international information systems and databases,
particularly those relating to border management, migration, asylum, identity
verification, travel movements and law enforcement (e.g. Schengen Information
System (SIS)), while also having its own information infrastructure including
EUROSUR, JORA (Joint Operations Reporting Application), Frontex Risk Analysis
Network (FRAN) and Frontex's ETIAS Central Unit.
Developments around Frontex’s expanding digital powers
are deeply tied to returns. The 2026 proposal turns Frontex into a
fully-fledged European Return Agency, the bloc’s operational
arm. Even
though the proposal stresses that Member States remain responsible for issuing
return decisions, the new powers represent quite a step-up from the
coordinating role that the agency has now. Within the backdrop of the Pact and
the Return Regulation, which foresee a stronger, central coordinating and
operational role for the agency, Frontex is well positioned to take on a much
more dominant role, becoming “the Union entity responsible for the planning,
coordination and implementation of returns.” (Preamble, para. 98).
Fulfilling this promise, the proposal, firstly, introduces
a Return Coordination Centre (RCC), containing a SIRENE Office, similar to the one of Europol. The RCC is intended to collect and analyse
information on Member States’ return needs to facilitate early identification,
return counselling, return operations, and reintegration assistance. The information
capacity of the agency is a central component in the proposal, especially in
relation to returns. Despite Frontex’s broad access to information held by national authorities, EU databases, other EU
agencies, and third-country partners, and its ability to aggregate such
information from all different sources to conduct risk analysis, identify
patterns, and produce intelligence, the Commission identifies a gap in the
agency’s information availability. This gap concerns supplementary information on
secondary
movements by people subject to return decisions and attempts by people subject
to entry bans to enter the Union, which Member States exchange bilaterally through
national SIRENE (Supplementary Information Request at the National
Entries) Offices. Such supplementary information does not form part of
the SIS alert and is not stored in the SIS database itself. It constitutes an
additional layer of information exchange, including information concerning
identity verification, the circumstances underlying an alert and the
operational follow-up of alerts, hits and actions taken or not taken,
consultations between authorities, data quality, incompatible alerts, and
requests concerning data subjects' rights (eu-LISA SIS
Technical Report 2023-2024).
According to the Commission, Frontex’s lack of access
to this information keeps the agency from identifying emerging and operational
trends, Member States’ needs, and prioritising return-related resource
deployment. Access to such information, which moves
beyond the identification of individual border crossers and relates to “investigative knowledge” produced about the activities of the individual (Art.
3(2) SIS Regulation), extends the
agency’s role beyond coordinating return operations towards monitoring
cross-border movements and informing EU-wide return policies.
Secondly, the proposal strengthens the role of EUROSUR
as an instrument of early warning, situational
awareness, and operational coordination to facilitate rapid response in
‘crisis’ situations. EUROSUR Fusion Services combine the monitoring
capabilities of the Member States and also include information from third
countries. Additionally, the proposal envisages the use of new and any future
EU space systems, such as Galileo, LEO PNT, GOVSATCOM, and IRIS2 (proposed
recital 45). In the proposal, the scope of
EUROSUR is substantially expanded beyond migration, cross-border crime and
saving lives at sea also to include overall security at the external borders
(proposed Art. 22). This would include hybrid threats, explicitly including the
instrumentalisation of migration, disinformation and cross-border crime (proposed Art.
31). The new rules provide for a reporting obligation by
Member States within 24 hours of any (likely) event or incident that may have
an impact at the external borders whether this is related to migration, cross-border crime, or hybrid threats and
the overall security of the external borders (p. 87 of the Proposal). Moreover,
the proposed Art. 32 establishes an advance-warning mechanism with a more immediate
reporting obligation for more impactful events, which would trigger an
automatic escalation towards EU-wide alerts and the activation of the agency’s
surveillance capabilities (EUROSUR
Fusion Services). Furthermore,
Frontex would acquire stronger monitoring and supervisory functions over the
reporting by Member States, including with respect to delays or insufficient
quality of the reporting (proposed Art. 26(4)). As a result of such monitoring,
the Agency can recommend that a Member State request the initiation of a joint
operation or border intervention, with the Member State obliged to respond
within six working days and justify any negative response (proposed Art. 46).
Thirdly, Frontex’s situational picture for the purpose
of risk analysis would be enriched with aggregated
and anonymised statistical information derived from activities outside the
EUROSUR framework, including debriefing interviews and online-platform
monitoring (proposed
Arts. 29(2)(f) and 45(5)(b)). Article
33 of the proposal establishes an Online Monitoring and Response Centre, which
would allow the agency to monitor online content that
facilitates, promotes, or provides instructions
for unauthorised crossing in a manner likely to endanger border security or the
safety of persons crossing, or intending to cross, them. This can include content on platforms such as
Facebook, Instagram, X, TikTok, and public discussion forums, calling
for, organising or providing instructions for such unauthorised crossing,
inciting violence or the disruption of border infrastructure, content relating
to cross-border crime, or content providing information relevant for
instrumentalisation, disinformation, cyber incidents, and cross-border criminal
activities as part of a ‘hybrid campaign’ (Article 33(3)). Through this centre, Frontex can act
as a trusted flagger under the Digital Services Act (DSA), notify platforms
of illegal content on their sites, take action determined in EU codes of
conduct or crisis protocols in implementation of DSA, and
request national authorities to take measures against illegal content (Article 33(1)).
Finally,
the Centre must regularly report to the Commission on any relevant requests, any
content requiring development of counternarratives by the Commission and the
Agency, and general information on the European Situational Picture (proposed
Art. 33 (9)), thus coordinating responses to online narratives and prompting
policy and implementation responses by the Commission.
Regulation on the Digitalisation of Returns
The Frontex Recast proposal is accompanied by a proposal
for a Regulation on the Digitalisation of Case Management in the Area of
Returns, Readmission and Reintegration, which develops an interconnected return
case management infrastructure. According to the Commission, the current system
for return-related data management and exchange is insufficient and fragmented
across Member States, with different IT systems hindering interoperability and
information exchange and, therefore, the
effectiveness of returns as a whole (proposal p. 10). Therefore, the Returns
Digitalisation proposal is intended to set up the digital infrastructure that facilitates
swift information exchange between Frontex, national authorities of Member
States, other agencies (especially Europol and eu-LISA), and third countries.
In this system, Frontex is a key actor; it is responsible
for developing and operating key EU systems, while Member States remain
responsible for national return case management. The innovations of the
technical infrastructure mainly include the development of: a) RECAMAS, a
model for the national management of return cases (proposed Art. 11), b) iRCMS,
the EU system for the management of readmission information (proposed Art. 12) and
c) RIAT, the Reintegration Assistance Tool (proposed Art. 13).
Frontex’s RECAMAS
Model is a blueprint for managing return cases developed by the agency, to which
Member States must adapt to ensure consistent handling of returns across the EU.
National RECAMAS systems would be integrated with the case management systems
in the area of readmission and reintegration, iRCMS and RIAT (proposed
Art. 3) and connect to
the Communication Portal, developed by eu-LISA to
facilitate the exchange of information between Member States, which is not
available on SIS or
Eurodac (proposed Art. 14). The communication portal should also connect all
national RECAMAS as well as Frontex through the Integrated Return Management
Application ('IRMA') already operated by Frontex (proposed recital 19). Moreover, national
RECAMAS, iRCMS, and RIAT would use the European Search Portal (‘ESP’) to access
EU information systems and would then feed information into the Central
Repository for Reporting and Statistics (CRRS) to enable eu-LISA to generate
more detailed and harmonised statistical analysis.
Externalisation
Through status agreements, working arrangements, and
informal cooperation with non-EU countries, the agency has gradually extended
its reach well beyond the EU’s borders and taken an active role in exporting EU borders, mainly to the Balkans and to West and North Africa.
Frontex had been operating in third countries even
before it acquired a mandate to do so in 2011. In fact, it has been
participating in such operations beyond EU borders since its foundation under
bilateral agreements between EU Member States and third countries. For example,
Operation HERA, launched in 2006, involved assets from member states
and, under bilateral agreements with Spain, assets and staff from Senegal and
Mauritania in patrolling the coastal areas of Senegal, Mauritania, Cape Verde
and the Canary Islands. These patrols intercepted migrants attempting to leave
the coasts of these states.
The 2016 European Border and Coast Guard Regulation
marked a turning point for the agency’s role in border externalisation, since
the agency acquired the competence to launch operations under status agreements
in non-EU neighbouring countries (Art. 54(3) EBCG Regulation 2016). Under this
competence, Frontex launched the first EU border surveillance operations
outside the EU borders in the Western Balkans, and is today operationally
active in Moldova, Serbia, Montenegro and Albania. In 2019, the agency's mandate to launch border
surveillance operations expanded beyond neighbouring countries, and it may now launch
such operations anywhere in the world (Art. 54(2) EBCG Regulation 2019).
Besides joint operations, the agency may also launch and finance technical
assistance projects in third countries and provide other operational and
technical assistance relevant to returns (Art. 4 (6-7)). It may further deploy
its statutory staff and other experts as liaison officers (Art. 77) and
exchange information with the non-EU countries in the framework of EUROSUR, the
pan-European border surveillance system aimed at improving situational
awareness and the reaction capabilities of the border and coast guard
authorities of the EU member states (Art. 75).
The initial proposal to amend the 2019 Regulation empowered
Frontex to support third countries with returns by organising and coordinating operations
from one third country to another (Art. 75(4) of COM(2018)631). These powers
did not eventually survive the trilateral negotiations, and the relevant
provision was removed only to re-emerge in the 2026 legislative proposal.
The groundwork for Frontex's proposed new powers in
third countries has already been laid out by the two Regulations adopted
earlier in the same year. First, the 2026 amendment to the Asylum Procedures
Regulation (APR), which significantly broadened the application of the safe
third country concept, allowing applications to be declared inadmissible where
an applicant has transited through a third country or based on an agreement
with the third country allowing for the examination of their asylum claim
there, without requiring an individual connection with that country. Second,
the new Return Regulation formally introduced the possibility of transferring
individuals subject to return decisions to return hubs in third countries,
including arrangements providing for onward return to countries of origin or
other third countries (see here)
The Frontex
Recast proposal would significantly expand the agency’s mandate in third
countries in relation to returns, most notably an “entirely new set of tasks
and responsibilities” to carry out return activities from one third country to
another (proposal p. 17). Strengthening cooperation with third countries is
part of the EU’s “whole-of-route” approach to migration management, which aims
to prevent arrivals and facilitate returns (proposal p. 70).
In
particular, the agency would be able to provide technical assistance to third
countries, including vulnerability assessments, tailored training or risk assessment products, and other capacity
building and support in returns and reintegration (proposed Art. 63, p. 5). It
would also support them in implementing returns, exercising executive powers on
third-country territory (proposed Art. 64). The proposal defines technical
assistance as any technical, logistical, or financial support that does not
involve the exercise of executive powers (proposed Art. 2(39)). Executive
powers, in turn, are defined as: the power and authority necessary to perform
border management or return which entail the exercise of public authority or
direct enforcement of public power by the agency (proposed Art. 2(39), (40)).
The
proposal establishes two distinct frameworks for Frontex’s cooperation with
third countries in the area of return. Where more structural or long-term
cooperation is envisaged, Frontex may provide technical assistance based
on working arrangements concluded with the relevant third-country authorities. However,
such arrangements are not made mandatory. Alternatively, technical assistance may
be provided under existing status agreements, including those concluded before
Frontex acquired the relevant mandate. Importantly, however, the proposal does
not make working arrangements and status agreements the exclusive legal
frameworks for such cooperation, thereby leaving room for more informal, ad
hoc forms of engagement (proposed recital 110).
Frontex
is allowed to provide operational assistance exclusively based on an
international agreement concluded by the EU (status agreement). This covers
both the implementation of Member States' return decisions from third
countries, potentially including onward returns from third-country return hubs,
and assistance with returns based on return decisions issued under national law.
Continuing the “whole-of-route” approach, third-country cooperation is also part of the
digital systems feeding into the EU Situational Picture to ensure not only
pre-frontier, but broadly extra-territorial situational awareness. While
information acquired through EUROSUR can already be shared with third
countries, under the proposed recast the detailed rules for such cooperation
become part of the agreement with the third country, making access to EUROSUR
information provisional for the third country upon broader cooperation with the
agency (proposed Art. 90). Moreover, the Online
Monitoring and Response Centre would also cooperate with third countries
subject to relevant arrangements (no exclusive mention of working arrangement
and status agreements), and independent external stakeholders, from which
non-governmental and private actors are not excluded and without any mention of
prior formal agreements (proposed
Art. 33(6-8, 10)).
Finally, on the digitalisation of returns management, iRCMS and
RIAT provide for the processing and exchange of information between Frontex and
third-country authorities. Under Art. 17(2) of the digitalisation proposal,
working arrangements would establish the framework for such cooperation, while
the data transmitted would be limited to what is strictly necessary for the
particular readmission case. Given the broader system integration described
above, national RECAMAS systems would integrate information generated in third
countries on readmission and reintegration, further feeding into EU situational
awareness.
Fundamental
Rights and Weakened Institutional Scrutiny
Risks
The mandate
expansion again raises new concerns for the agency's fundamental
rights-sensitive work on returns and data
management. Early NGO
analyses already sound the alarm regarding returns from one third country to
another and social media surveillance (e.g. Amnesty International, Front-LEX, PICUM). Indeed, the involvement of Frontex in third
countries raises a series of human rights issues,
especially when the partner countries have questionable human rights records
and do not follow the standards of the European Convention for Human Rights
(ECHR).
Engagement in third-country return operations
increases the risk of (chain) refoulement, especially since it also covers
returns based on return decisions issued under national law. This option allows
for the circumvention of EU procedural safeguards. Frontex would thus be mandated
to support the implementation of return decisions originating exclusively
through the national asylum, return, and judicial systems of third countries,
without the safeguards of the EU Asylum Procedures or the EU Returns
Regulation. Notably, this option is not limited to EU accession candidates,
countries bound by the European Convention on Human Rights, or countries
designated as safe third countries at Union level but also includes any
other country provided that there is clear EU interest so long as it respects
international human rights standards (proposal p. 18, Art. 64). Relevant
safeguards, concerning due process, non-refoulement, incident reporting and
independent monitoring, vulnerability and the use of force are left to be
specified in the status agreements. It remains unclear how Frontex will verify
compliance in practice (e.g. regarding effective access to asylum procedures,
legal assistance, interpretation and suspensive remedies), and what the exact consequences
for non-compliance will entail (e.g. partial or whole suspension or termination
of the relevant operation or broader cooperation). Thus, involvement in
third-country return operations leaves Frontex vulnerable to complicity
in violations committed by partner countries, particularly where the agency's operational
involvement contributes to a chain of removals across multiple jurisdictions.
Moreover, the prospect of Frontex’s involvement in social media
monitoring has drawn comparisons with the invasive tactics of ICE American federal agency. The Chair of the OSCE Parliamentary Assembly’s Ad Hoc
Committee on Migration has raised serious concerns about privacy, freedom of
expression, and data protection, and the result is a chilling effect on
public debate around migration, especially given the widespread use of these tools
at the EU’s external borders.
This
expansion of Frontex’s data-collection tools comes against the backdrop of
longstanding criticism of the agency’s poor reputation for data protection and
management, including its unlawful collection and exchange of migrant data with
Europol. The proposed architecture further raises several
privacy and data-related concerns. Firstly, Frontex's information-gathering
activities increasingly extend beyond border management and migration control
to cross-border crime, terrorism, hybrid threats, disinformation and internal
security. This raises questions about purpose limitation and potential function
creep. What enhances the complexity in this regard is the expanding
interconnection between RECAMAS, iRCMS, RIAT, the Communication Portal, IRMA,
the European Search Portal and the Central Repository for Reporting and
Statistics, which allows for information collected in one context and for a
certain purpose to be used in another context potentially beyond its original
purpose. Moreover, such interoperability and cross-linking of multiple
databases and information systems allows for an increasingly intrusive picture
of individuals. This substantial aggregation of information from different
sources, including debriefing interviews, operational reports, social media monitoring
and third-country authorities, may produce discriminatory risk profiles of
individuals, nationalities or groups. Finally, information supplied by
third-country authorities, operational partners, online platforms and other
external sources may differ significantly in quality and reliability. Still, it
may also not be collected and processed in accordance with the EU privacy and
data protection standards.
Responsibility
Despite the increased risks for the engagement of
Frontex in human rights violations, and the uncertainties regarding the
allocation of responsibility when multiple actors are involved, the new
Regulation increases the level of complexity and opacity by allowing for
different levels of often informal cooperation with the partner countries. Formal
status agreements are not always required. Several actions may be taken through
informal working arrangements concluded directly by the agency, evading
scrutiny by the European Parliament. Moreover, ad hoc assistance, in the absence
of structural cooperation, lacks any clear legal and procedural basis. The
combination of formal status agreements, working arrangements, operational
arrangements and other informal cooperation risks producing a fragmented
framework in which responsibilities are dispersed, and the applicable
safeguards differ depending on the form of cooperation.
Frontex’s existing framework of shared
responsibility has long been identified as insufficient for attributing
legal responsibility for human rights violations within an operational system
involving multiple actors, allowing for increased impunity for border violations. The proposal fails to address these concerns. Article
7 on shared responsibility is simply amended (arguably in response to WS vs Frontex) to
include the specific responsibilities of the agency in the area of returns,
stipulating that Frontex shall be responsible for the strategic planning,
prioritisation, coordination and implementation of return operations, for
forced and voluntary returns, and other return-related activities. A report commissioned by The Greens/EFA Group provided
concrete recommendations on how Frontex can ensure a clearer regime of responsibility
allocation, including reforming Article 7 to include a model of responsibility
more similar to the Europol Regulation. In particular, Art. 50 of the Europol
Regulation stipulates that an individual who has suffered damage may seek
compensation either from Europol or from a Member State (see also Kočner v
Europol on joint and several liability). Furthermore, the report calls for a protocol on responsibility
allocation before any operational deployment and concrete consequences for breaches.
Given the agency's
ever-increasing data management competencies, failing to include a provision on
responsibility for unlawful data processing, similar to the one in the Europol
Regulation, would be a missed opportunity.
Monitoring and Accountability Safeguards
Alarmingly, the proposal would
weaken existing monitoring and accountability safeguards. Under the current
regulation, Fundamental Rights Monitors (FRMs)
would ‘constantly’ monitor the agency’s operational activities and at least one
of them must be assigned to each operation (Art. 110(1) and (3) of Regulation
(EU) 2019/1896). The proposal would replace these requirements with a more
discretionary, risk-based approach (proposed Art. 130(1)(4), preamble 134). FRMs
would be allocated to an operation based on a risk assessment prepared by the
Fundamental Rights Officer in coordination with the Executive Director.
Importantly, the number of FRMs, which already do not suffice to cover the
agency’s activities, remains unchanged (40) even though the agency’s operations
would be increased (proposed Art. 130(7).
The
proposal goes further in the context of the Quick Reaction Force, opting for ex-post fundamental rights compliance
reviews.
Under proposed Art. 72, where a Member State faces a crisis or emergency at its
external borders, fundamental rights monitoring may take place up to one month
after the operation has been completed, unless the Member State otherwise
requests. The concern is particularly acute because it would leave potential
violations to be identified only after the fact, which increases evidentiary
complications and does not allow for an immediate response.
Moreover,
the proposal attempts to limit the scope of the Fundamental Rights Office's
operations. According to Art. 129(3)(e), FRMs would only report violations by
the agency’s own staff, leaving out incidents that may be related to Frontex-deployed
personnel or the national authorities of Member States and third countries.
Monitoring in the context of the deployment of the Quick Reaction Force would
also focus only on the agency's activities rather than the entire operation
(proposed Art. 72(5)). The scope of the Fundamental Rights Officer’s (FRO) activities
is also affected. Even though the relevant Art. 129 remains mostly unchanged,
the FRO is prompted in the preamble to focus his work on the activities
performed by the agency’s own staff, while simply transmitting to the relevant
national authorities information about ‘incidents that may concern them’
(proposed preamble 133, and Art. 129(2)(c)).
Finally,
the ultimate power (in fact an obligation) of the Executive Director to suspend
or terminate an operation in case of continuing serious fundamental rights
violations is significantly being watered down. In particular, under the new
regulation, the Executive Director would be required to first consult with the
agency's Management Board before making such a decision (proposed Art. 52 (8)).
In
his presentation of the new Regulations before the LIBE Committee of the
European Parliament, Magnus Brunner, the EU Commissioner responsible for
internal affairs and migration, stated in unequivocal terms: ‘The fundamental
rights framework is actually among the strongest of any EU agencies and that
stays the same. We’re not changing anything.’ Despite this strong assertion,
the proposal only further weakens the agency’s already flawed accountability
framework.
Conclusion
The new legislative proposals consolidate
and significantly extend three mutually reinforcing trends in EU migration
governance: the institutional expansion of EU agencies, the digitalisation and
datafication of asylum, border and return management, and the territorial
expansion beyond EU borders. Frontex is no longer envisaged primarily as a
coordinating agency supporting Member States at the external borders. It is
increasingly positioned as an operational and informational hub at the centre
of the EU’s return, border surveillance and even internal security
architecture, with responsibilities extending from the collection and analysis
of information to the implementation of returns in third countries.
At the same
time, the proposal expands the range of actors, technologies, and databases
involved in these activities, creating an increasingly complex governance
structure in which decisions and actions are covered by several layers of
complexity, opacity, and plausible deniability. Yet this expansion of
operational and informational power is not matched by an equivalent
strengthening of fundamental-rights safeguards. The proposal appears to shift
from systematic monitoring to risk-based deployment of FRMs and, in certain
emergency operations, ex-post review. It would further constrain the FRO's powers
and politicise the decision to suspend or terminate operations by opening it up
for debate at the Management Board. The result is a significant asymmetry
between the expansion of the agency's operational, informational and
territorial reach and the mechanisms available to scrutinise, prevent and answer
for violations.
As the proposal is dissected in the coming months,
these considerations are expected to feature prominently in both the academic
and political debates. As negotiations will take place in the hands of a
European Parliament and Council heavily focused on security, the alertness and
rigour of scholars and civil society are imperative to ensure that fundamental
rights protection receives appropriate weight in the upcoming negotiations.
.jpg){kind=link}