Frontex, pushbacks and the failure to protect the right to claim asylum in Greece

Across Europe, asylum seekers and displaced people are facing growing hostility as they look to start new lives escaping war and persecution. In Greece, there is continually mounting evidence of “pushbacks” to which Frontex, the European Border and Coast Guard Agency, have been shown to be turning a blind eye. Frontex claims these are “practices of the past”. We share evidence here that these practices are very much ongoing and as dangerous as ever. This post focuses on pushbacks and border violence in Greece and specifically on the island of Samos – an external border of the EU only a mile from the Turkish coast – where both authors have worked. We explain why this led to humanitarian organisations on Samos demanding that Frontex upholds fundamental human rights, including the right to claim asylum, or ends its operations in Greece altogether.

From our experience in Samos, and in Greece in general, the legal, political and humanitarian realities faced in this particular borderscape are highly relevant to discussions of the UK’s hostile environment. Many of the people who make the dangerous crossing to the UK will have faced equally dangerous and violent border crossings before, finding themselves stuck in overcrowded unsanitary camps, forced to stay in informal shelters, violently pushed back, dehumanised and made vulnerable by hostile environments and the proactive policy choices of individuals, states and the organs of the EU.

Lessons should be learnt from Greece if the UK government wants to avoid future litigation, and more importantly, save lives. We must abandon the “Greek-style clampdown” on migration that inspired former Home Secretary Priti Patel and reframe the system to provide for safe and legal routes to claim asylum in the UK. 

Frontex in Greece

Knowledge of states’ use of violence to prevent irregular entry at their borders is growing, as is knowledge of the role of EU agencies in either ignoring or covering up these incidents. Nowhere is this more visible than in Greece following the recently leaked investigative report from the European Anti-Fraud Office, “OLAF”, about Frontex’s role in documented pushbacks. A “pushback” is an umbrella term used to describe a measure by which refugees and migrants are transported back over a border; generally immediately after they cross it and often with excessive force. There is no consideration of their circumstances and they are not given an opportunity to claim asylum or international protection. 

Frontex has been deployed in Greece since 2006 and was made permanent as Joint Operation Poseidon in 2010. Its job is to provide support to EU member states in their external border control and it is supposed to be responsible for ensuring that fundamental rights are respected at the EU’s external border. Reports of pushbacks with sometimes fatal consequences have a history in Greece dating almost as far back as the start of Frontex’s operations. Human Rights Watch raised the alarm in 2008. And in 2014 there was a fatal incident off the coast of Farmakonisi, another island in the Aegean, in which eight women and three children lost their lives. Survivors of the shipwreck, who were publicly stripped and cavity searched, brought the case to the European Court of Human Rights in Safi and Others v Greece (application no. 5418/15). It was found that the pushback operation conducted by the Greek coastguard violated the right to life and protection against degrading treatment. This case was covered by Free Movement after the judgment was handed down in July. Yet, in 2022, evidence suggests these violations are not isolated but have persisted from the beginning and are getting worse.

Since Frontex’s inception — and in particular, Joint Operation Poseidon becoming permanent — the EU’s best-funded agency’s budget has ballooned from a relatively modest 118 million euros in 2011 to an eye-watering 754 million euros in 2022. Considering that the Agency was first investigated in 2012 by the EU Ombudsman, ostensibly for civil society raising the alarm over fundamental rights concerns, it is staggering that as allegations perpetuate a decade later the budget continues to expand. 

Filippo Grandi, the High Commissioner of the United Nations Refugee Agency (UNHCR), said in February 2022 that the UNHCR had recorded “540 incidents of informal returns since January 2020”. A pushback therefore took place roughly every one and a half days in a period of less than two years. It is common practice to refer to these many incidents at the land and sea borders where prima facie asylum seekers are denied access to, or removed from, territory before they are able to claim asylum as “pushbacks”. But the term is not itself legally defined, and instead is a political one, which weaponises the public’s benign assumptions about border control. Pushbacks are illegal due to their result and modality and yet, lacking legal definition, the term is used to cover a multitude of crimes, abuses and rights violations which take place. This includes collective expulsion, torture, enforced disappearances and attempted murder. It is those seeking safety who pay the ultimate price, and despite the possibility of a ruling that it was the pushback which led to a human rights violation, monetary compensation is of little solace to survivors and family members.

There is an abundance of evidence corroborating stories of the violent pushbacks of people who intend to seek asylum in Greece, by intercepting boats or abducting those who reach the Greek islands and setting them adrift in Turkish waters. These violent border practices mean that often asylum seekers spend days in hiding, risking their lives again [0:42] after reaching European soil, simply asking “please do not send us back” [10:32]. Treatment during these pushbacks often amounts to inhuman or degrading treatment or torture, and testimonies include details of beatings and forced genital examination. The testimonies bear a striking similarity to the accusations raised in Safi. With the Frontex Operational Office in Piraeus, Greece open for more than a decade and new unmanned aircraft recently deployed as part of Poseidon to “save lives at sea”, it is hard to suppose that the Agency is not aware of the operational reality. Charged with guaranteeing the protection of fundamental rights during their deployment, Frontex are failing. 

Triggering Article 46

Civil society actors, journalists, lawyers and academics have been raising the alarm about these practices for years. In July 2022 seven humanitarian organisations working on Samos called on Aija Kalnaja, the ad interim Executive Director of Frontex, to trigger Article 46 of the Frontex Regulation because of the systemic and serious nature of the fundamental rights violations taking place under their noses. The letter can be read here. According to Article 46 of the Frontex Regulation:

“The Executive Director of Frontex is required to suspend or terminate activities of the Agency if the conditions to conduct these activities are no longer fulfilled.” 

This includes when they consider that there are fundamental rights violations which are of a serious nature or likely to persist. In such a case, the Executive Director is required to act.

These seven organisations are not alone in their criticism. Between March 2021 and March 2022, Alarmphone – Watch the Med, a hotline for boats in distress, recorded 62 cases of “brutal attacks and pushbacks”. Forensic Architecture, a research agency based at Goldsmiths, University of London, have collated evidence on their interactive platform of more than 1000 pushbacks since the start of 2020. The Guardian and Der Spiegel have reported on the violence taking place at the EU’s border in 2022, and the German media have subsequently leaked the explosive OLAF report which confirmed Frontex’s cover up and institutional complicity in human rights violations. 

Kalnaja responded to the leak that these were “practices of the past”. Yet 11 days later Médecins Sans Frontières (Doctors Without Borders) reported finding new arrivals beaten and handcuffed on Lesvos, another Greek island in the Aegean, north of Samos. When Frontex says that their presence “prevents fundamental rights violations” [17:05] or “is conducive to better compliance” [17:28] as the Executive Director recently said to the European Parliament’s Frontex Scrutiny Working Group of the LIBE committee, is this what Frontex means? 

Despite the Agency’s best efforts as evidenced in the OLAF report, the violations are well documented both internally and externally. Fabrice Leggeri, the former Executive Director who resigned over fundamental rights criticism, withdrew Frontex from Hungary using the Article 46 mechanism in 2021 after a decision from the European Court concerning violations at the Hungarian border. In the face of similarly overwhelming evidence in Greece, it is challenging to understand why Kalnaja fails to act and instead maintains the position that Frontex’s presence prevents violations and is conducive to better compliance. Frontex is complicit in the first instance, and apparently impotent in the second. So what is Kalnaja basing this decision on? Even the EU Home Affairs Commissioner, Ylva Johansson, has demanded that the pushbacks stop. 

Serious Incident Report mechanism

The Budget Control Committee (CONT) of the European Parliament first voted to refuse the discharge of Frontex’s 2019 budget and issued recommendations regarding Article 46 and Serious Incident Reports (SIRs) in 2021. Over a year later, the CONT committee again returned a similar decision in October 2022 for failure to implement these recommendations. SIRs are the Agency’s internal mechanism for raising issues of fundamental rights violations and are explicitly linked to the Article 46 process. 

According to a Freedom of Information request there have been 281 SIRs registered regarding Greece since 2016. Despite many detailing serious and systemic rights violations taking place over years, some involve Frontex staff in minor car accidents or vehicles being vandalised with “ACAB” (“all cops are bastards”). When the organisations on Samos analysed the 26 released SIRs for the island, they found that not a single one was classified as a potential fundamental rights violation. This was corroborated by the OLAF report and explained by the reporting of how the mechanism was being deliberately manipulated. 

Despite the overwhelming evidence in the press collected by civil society and even referenced by the European Commission, it seems that the reason Kalnaja believes that Frontex’s presence prevents violations and is conducive to better compliance is that Frontex is simply looking the other way when violations occur. The impotency of the SIR mechanism, combined with a lack of institutional will to uphold EU values, surely lays the ground for not just a report on misconduct such as the OLAF report, but a substantive mechanism with legislative bite that is able to bring a fully fledged EU Agency into compliance from the ground up. If this cannot be achieved, the only alternative to this should be that Joint Operation Poseidon is discontinued in its entirety. 

Concluding remarks

So why is Frontex staying in Greece and what does this mean for the future? They say that they are staying to support Greece “when they need it most” and that they will ensure that their approach to fundamental rights is “more robust” going forward. Historically, it has only been when the Agency feels that they are at risk of breaking EU law that they leave a country, as was the case in Hungary. 

The question then is when will the mounting evidence of violence at Greece’s borders be considered enough to trigger a similar response; either at the European Court of Justice or in pushing Frontex to finally trigger Article 46. When will Greece’s actions as Europe’s supposed “shield” no longer be celebrated but rather condemned? Civil Society, journalists and lawyers have all argued that that time should be now, but what additional tragedies have to play out at Europe’s external land and sea borders before the organs of EU power recognise this call and act? 

In failing to do so, the EU also sets a dangerous precedent in which states both within and outside of the EU feel vindicated in proposing approaches akin to pushbacks as approaches to border security. While the UK’s plans to make use of armoured jet skis in the channel were condemned and then shelved, the growing number of states looking to avoid or reduce their duties for the protection of displaced peoples suggests a worrying trend towards the loss of protections enshrined in the 1951 Refugee Convention. A trend in which, evidence suggests, Frontex is complicit. 

This article was co-written by an anonymous humanitarian managing a non-profit in Greece which provides legal aid to asylum seekers, and Dr Gemma Bird.

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