'Paying lip service': Can Frontex's new chief reform the controversial agency?

Hans Leijtens, who has been appointed the new Frontex chief, is no doubt preparing himself for an in-tray replete with scandal.

The Dutch general will become Director of the European Border and Coast Guard Agency (dubbed Frontex, from ‘frontières exterieures’) amidst allegations that the group has been complicit in human rights violations perpetrated by EU member states, its own officers treat migrants inhumanely, and has conducted illegal pushbacks. 

It was on the back of these revelations that Leijtens’s predecessor, Fabrice Leggeri, left in disgrace.

Though allegations of Frontex turning a blind eye to pushbacks have dogged the agency for years, the first major scandal broke in October 2020 when an investigation into the agency revealed that Frontex assets had been used in pushbacks.

It detailed four instances of Frontex officers being in the vicinity of pushbacks conducted by Greek authorities, in addition to one instance where they had been present at a pushback, and another where Frontex itself had pushed migrants back to Turkish waters, leaving them stranded in the Aegean.

"Frontex's disregard for international and European law and its financial mismanagement have not deterred the European Parliament from conferring it with greater powers"

The agency denied knowledge of such incidents, with an internal inquiry from the Management Board concluding that there was “no substantial evidence of fundamental rights infringements”.

Hot on the heels of the investigation came the news in December 2020 that OLAF, the EU’s anti-fraud watchdog, began an investigation into Frontex. In 2021, numerous investigations by the EU ombudsman and the European parliament found evidence of human rights violations at borders manned by Frontex which the agency had failed to follow up on.

But the nail in the coffin came on 28 April 2022, when an investigation by Lighthouse Reports, Der Spiegel, SRF Rundschau, Republik, and Le Monde found that Frontex had been involved in ‘hundreds’ of refugee pushbacks.

Two days later, Frontex Director Fabrice Leggeri resigned. In some ways, this spared him the worst; three months later, the OLAF report concluded that Frontex had covered up and financed pushbacks.

New director, same agency

Frontex’s disregard for international and European law and its financial mismanagement have not deterred the European Parliament from conferring it with greater powers. Established in 2004 as the European Agency for the Management of Operational Cooperation at the External Borders, its mandate has substantially grown in the last two decades.

European Commission proposals in December 2015 – at the height of arrivals to Europe – conferred it with a mandate of a fully-fledged border agency. Now, it even has a mandate to operate in non-EU states. In tandem, Frontex’s funding has substantially sky-rocketed; its budget has increased 19-fold since its foundation, shoring up its status as the best-funded EU agency.

Given that European lawmakers have historically seemed fairly unbothered by Frontex’s misdemeanours, extending its powers and funds, Leijtens’s rhetoric that these illegal pushbacks will be “practices in the past” isn’t convincing to most human rights activists.

“We don’t expect any fundamental policy change for Frontex under the new director,” said Mark Akkerman, speaking to The New Arab on behalf of the campaigning group Abolish Frontex.

“While Leijtens might be better than former director Leggeri at speaking humanitarian language to sell the agency's practices of violence, pushbacks and other human rights abuses at and beyond the EU's external borders, its mission of keeping or getting people on the move out of the EU remains unchanged.”

There are traces that the trend of ‘crimmigration’ – where criminal law approaches are used to punish migrants instead of human rights frameworks – will survive at Frontex.

The EU Commissioner of Home Affairs has already announced that Frontex will be intimately involved in the EU’s new strategy on returns – a euphemism for a ramping up in deportations, and a clear sign of the expectations the EU has for Frontex’s role in migration management.

It’s ambiguous how much influence Frontex can truly have at European borders when its role is predominantly to coordinate border enforcement. In Leijtens’ first press conference, he stressed that he would be responsible for the fact that, “my people don’t participate in anything called a pushback,” but without mentioning the behaviour of officers in member states.

"There are traces that the trend of 'crimmigration' – where criminal law approaches are used to punish migrants instead of human rights frameworks – will survive at Frontex"

“Most EU member states systematically practise pushbacks, and in recent years they have been able to rely on Frontex's support, or at least on its non-interference,” Julia Winkler, from human rights monitor borderline-europe, told TNA.

“If Frontex can no longer easily play this role, for example due to recent scandals and public attention, or even if it actually worked to stop it, member states will simply stop using its services and continue their pushbacks on their own, as recently seen in the example of Croatia and Poland,” she added.

Winkler rejects the opinion that the solution to pushbacks at Europe’s borders is to ensure a greater presence of Frontex, given that the agency has no mandate to investigate EU member states’ conduct, and that intervening to stop an ongoing pushback would likely cause a major diplomatic incident.

In this regard, Leggeri appears to be the fall guy for a disgraced EU agency, with Leijtens expected to pay lip service.

“The EU likes to present itself as living up to human rights, not only within Europe, but also as a vanguard in fighting for human rights around the globe,” Dr Maurice Stierl, who works at the Institute for Migration Research at the University of Osnabrück, told TNA.

“Why Leggeri in the end lost his job was of course due to the critique of Frontex and its involvement in pushbacks, but also due to the questions of bullying, him not recruiting the Fundamental Rights Officers he had a legal duty to do so, and of course internal issues too.”

Winkler agrees, describing Leijtens as a “blank slate, someone who it was hoped would keep Frontex out of the headlines in the future”. She believes his appointment is nothing more than an acceptable face to an unreformable agency.

Limited potential for reform

With less than a month to go until Leijtens begins his mandate, human rights activists are already applying pressure on what will likely be his first major decision: whether to pull out of Greece.

“The first thing on Leijtens’s agenda should be on addressing pushbacks, including by terminating operations or funding in a member state, if serious abuses are linked to Frontex activities – such as in Greece – and fixing the culture of opacity and impunity that reigned within the agency for years,” said Eva Cossé, Western Europe Senior Researcher at Human Rights Watch.

Under Article 46 of the Frontex Regulation, the agency should withdraw from a country of operation in cases of human rights breaches by the member state. There is precedent for this: in January 2021, Frontex pulled out of Hungary after the EU Court of Justice ruled that Hungarian pushbacks violated EU law.

"It would require substantial diplomatic weight for Frontex to use its coordination role to place pressure on EU member states to uphold migrants' rights that are so systematically violated at the EU's external borders"

Pressure is piling on from human rights organisations, including a coalition of NGOs operating in Greece who called for the triggering of Article 46 last July.

However, if experiences in Hungary are anything to go by, this is likely to be a long journey. It took five years from the investigation in 2016 before the agency ultimately pulled out.

If Leijtens would like to redirect the agency from a border enforcement body to one that, in his words, recognises that border management and fundamental rights “go hand in hand”, this would require a substantial reorganisation both strategically and operationally.

The continued delays in hiring the 40 Fundamental Rights Officers as directed in 2019 by the European Border and Coast Guard Regulation highlight that the agency may take quite some restructuring to serve such a purpose.

Harder yet, it would require substantial diplomatic weight for Frontex to use its coordination role to place pressure on EU member states to uphold migrants’ rights that are so systematically violated at the EU’s external borders.

Human rights activists remain suspicious as to whether the agency can ever meet such a purpose. As Winkler puts it, “Perhaps at some point Frontex will no longer be actively involved in pushbacks, but the agency preventing [pushbacks] is a priori beyond the realm of possibility. It is not what the agency was created for.”

Tiara Sahar Ataii has worked in humanitarian response for the UN and major NGOs in 11 countries. She founded SolidariTee, which fights for refugee rights. She is also part of the 2022 'Forbes 30 under 30'.

Follow her on Twitter: @tiara_sahar