Access to justice and EU enforcement agencies in the field of migration: an emerging problem

In this post, part of a special RENFORCE Blog series on the enforcement of EU law, Salvatore Nicolosi acknowledges the potential of EU migration agencies to support Member States in enforcing EU rules, but explains how an enhanced form of EU law enforcement through agencies should not be detrimental to the legal guarantees of migrants.

A new problematic enforcement scenario in EU migration law and policy

The appalling news that European countries, supported by Frontex, the European Border and Coast Guard Agency, were involved in ‘one of the biggest mass expulsions in decades,’ systematically pushing back refugees, casts serious doubts on the emerging institutional design of the EU migration policy. Due to the ongoing migratory pressure, new institutional actors, such as Frontex and the European Asylum Support Office (Easo) have expanded their operational mandate to assist especially frontline States in enforcing EU law rules. Yet, the expanding operational mandate of these agencies has overlooked effective access to justice for migrants in terms of access to asylum procedures or remedies in case of fundamental rights violations.

The original design of the EU’s migration and asylum policies was largely underpinned by the theory of executive federalism, where legislation was adopted at the EU level, and, apart from exceptional cases, the implementation of these laws fell under the responsibility of national executives. However, in recent years, particularly after the 2015 migration crisis, this traditional paradigm has been substituted by the model of administrative integration, mainly through the ‘institutionalization of practical cooperation through EU agencies.’ This process has determined what the doctrine defines as ‘Europeanization’ or ‘verticalisation of enforcement’ which is becoming progressively relevant also in the field of migration. This has been contributing to function creep, that is the de jure or even de facto expansion of the competences and operational mandate of the EU migration agencies.

As has been argued, these agencies have been increasingly deploying their staff, ‘progressively tasked with implementing policy in fields such as border control, returns and the processing of asylum claims alongside national authorities, and directly interacting with migrants.’ In other words, while officially designed to only support the Member States in implementing the relevant legislation and their EU law obligations, these agencies are engaging with activities that infringe upon migrants’ fundamental rights. Major controversies have engulfed Frontex, allegedly involved in pushing back and returning to third countries migrants, who are, accordingly, deprived of access to the territory and adequate remedies. Likewise, as I formerly explained, Easo has been blamed for escaping control while conducting interviews with asylum seekers in Greece and delivering opinions on the (non)admissibility of the merits of asylum claims. Such a situation portrays unsolved issues of coordination with national asylum authorities as regards the legal remedies for migrants.

A troublesome access to justice vis-à-vis EU enforcement agencies in the field of migration

This new supranational enforcement scenario has resulted in further obstacles for migrants to have adequate access to justice in terms of access to the EU territory, access to asylum procedures, and access to remedies vis-à-vis the powers and mandate of the EU migration agencies. Migrants, whose rights are violated, are mostly left with unclear, burdensome and inadequate mechanisms. Accordingly, this emerging enforcement scenario for the EU migration policy contradicts one of the basic tenets of the EU legal order, requiring, as clearly stated by the Court of Justice of the EU (CJEU) in Les Verts, the establishment of a ‘complete system of legal remedies.’

While referring to the increasing involvement of these agencies, the New Pact on Migration and Asylum does not satisfactorily regulate the expansion of the operational mandate of the relevant agencies. This is especially in regard to access to justice and legal guarantees for migrants attempting to enter the EU and interacting with these agencies. Access to justice is a broad concept which entails both substantive and procedural components and a number of core rights. Generally, access to justice refers to access to a court, thereby including, inter alia, the right to an effective remedy, but, more broadly, as Terlouw significantly argued, the concept refers to access to the law, in the sense of access to the set of rights which a legal system offers, including the right to be informed about these rights and to have adequate complaints and redress mechanisms in case of violation of these rights.

Apart from the overarching obligation to ensure adequate pathways to justice, in fact, access to justice also includes the right to legal assistance and the right to a fair trial before an independent and impartial tribunal. It is, therefore, important to stress that access to justice gives individuals the opportunity to enforce individual rights and ensure their continued protection, hold executive authorities accountable for their actions, and thus is an integral part of a well-functioning society.

Yet, when it comes to the areas of migration and asylum, access to justice is often sorely lacking. Due to the particularly vulnerable circumstances migrants are subjected to, these individuals often have difficulties to find proper redress for violations of their rights. As explained with reference to the role and current institutional design of Frontex and Easo, this may be due to a lack of information about the possibility of lodging complaints or the general complexity of the European asylum procedures.

Frontex has been equipped with an individual complaints mechanism, introduced in 2016, and further expanded upon in the 2019 Frontex Regulation. Yet, in practice, the mechanism that can be triggered against ‘the actions or failure to act on the part of staff involved in a joint operation,’ leaves much to be desired, mainly because the Frontex Regulation did not introduce requirements as to the appropriate follow-up and because the instrument remained highly inaccessible. Even the Fundamental Rights Officer (FRO) or the Consultative Forum, established by the 2019 Frontex Regulation, to give advice on fundamental rights matters, have limited and non-binding powers. As to Easo, in an enquiry launched by the European Ombudsman, the agency was advised to undertake several improvements to ensure procedural guarantees during the asylum procedures. In this connection, even though – at the request of the European Parliament – a complaints mechanism has been included in the legislative proposal for the new EU Agency for Asylum, more convincing actions are necessary to ensure access to justice for migrants vis-à-vis EU migration agencies.

Designing a model of access to justice for the EU migration agencies

A clear system of remedies that ensures adequate access to justice for migrants is all the more urgent regarding the expansion of the operational mandate of EU agencies. Far from providing here a description of an exhaustive model of access to justice, it is worth mentioning at least a couple of its constitutive elements.

Firstly, whilst complaints mechanisms have a potential, they need adjustments because, as stressed by Fink, they do not constitute a remedy in the sense of Article 47 Charter of Fundamental Rights of the European Union. They are non-judicial mechanisms, whose effectiveness is undermined by the fact that, as in the case of Frontex, they are purely internal to the Agency and, therefore, deprived of any external oversight.

Apart from independence (the procedures essentially relies on internal oversight bodies) and transparency issues (the proceedings are not publicly available), the Frontex complaints mechanism is not equipped with adequate follow-up. Admissible complaints are, in fact, forwarded by the FRO to the Member State of the national border or coast guard against whom complaints are brought. It is, therefore, essential that adjustments to these mechanisms include clear and easy accessibility and strong independence based on external oversight. This can be performed by the European Ombudsman as the emerging practice seems to show, or, more ideally, by allowing to lodge appeals before the CJEU. Adequate forms of redress for the victims must also be established. These are all elements that, as emphasized by Guild, fulfil the requirements identified by the Court in H.K. for a mechanism that can function objectively and impartially.

Secondly, and more importantly, since the activities of these law enforcement agencies have been increasingly impacting on fundamental rights, a possibility for legal action before the CJEU should be seriously considered. This can include, for instance, the possibility to lodge an action for annulment against the Agency’s decisions which, although non-binding, adversely impact on the fundamental rights of individuals. In addition, an action for damages under Article 340 TFEU can be, as suggested by Fink, an option worth exploring. Even if this has not been conceived as a fundamental rights protection tool, and it is often difficult to distill the roles of the Member States and of the Agency in the emerging supranational enforcement scenario, an action for damages is an option that can provide for more effective access to justice. Naturally, this option requires evidence of the alleged unlawful conducts and a clear link between the conduct of the Agency and the concerned individuals. This is not an easy circumstance in such a multilevel enforcement scenario.

To conclude, an effective model of access to justice is needed in order to ensure the accountability of EU agencies at the same time as consolidating their legitimacy in the future governance of EU migration policy.