frontexwatch

This text is meant to trace the historical process leading up to the idea, construction and implementation of the EU external border we know today. The description surely is neither complete nor particularly profound, considerably more could be written about most of the topics. Nevertheless, this cursory overview is important in order to position Frontex within a longer-lasting process and to counteract a false perception of it. Even if Frontex is known primarily for its missions in the Mediterranean and in the Atlantic Ocean, Frontex is active in many more fields and practices of border security. These mostly go unnoticed by the public, even though they correspond just as much to the European policies of migration and foreclosure.

The Treaty of Rome of March 25th 1957 and the treaty to the Benelux Economic Union of February 3rd 1958 already contain the idea of freedom of movement not only for goods but also for people. A pan-European spirit was at the source of this development, a spirit which wanted to see the European countries grow closer together and declare European internal frontiers obsolete for borders inherently convey the concept of division and separation, inside and outside. Still, for the three decades to follow, not much happened in the way of implementing these ideas, which surely was partly due to the global confrontational positioning during the Cold War. The borders of Europe had, however, a tendency of being permeable in these decades. Political refugees from the Eastern Bloc (nobody then had their status as political refugee denied or doubted) were always welcome, refugees from the war in Vietnam were benevolently accommodated, although less for humanitarian then for ideological reasons. Through the guest worker programme and the subsequent family unification, several million people had immigrated to Germany. Other European countries had similar immigration effects, especially in connection with their colonial past. Also, it must not be forgotten, that so called irregular migration has always been taking place. It was only in the 1980s that a European tendency emerged to regard this type of migration a problem combined with the wish to counter it with a common solution.

The TREVI Group (the initials stand for the French words “Terrorisme, Radicalisme, Extremisme, Violence Internationale”), a working group outside the EC framework, was already founded in 1978. At first, it dealt primarily with terrorism, but soon also focussed on asylum and migration issues. In 1985 representatives of Germany, France, the Netherlands, Belgium and Luxembourg signed the treaty of the same name in the Luxembourg health resort of Schengen, the content of which was to abstain from border controls at their common borders while securing the external borders of the new Schengen area. Freedom of movement across interior borders in this area was supposed to be allowed for by stepping up security measures at the borders to the so called third countries, those countries not partaking in the Schengen agreement. This virtually marked the birth of European external borders and was accompanied from the very beginning by a rejection of refugees and of migration movements. It should, however, take more than another decade until this idea was put into practice. It is important to notice, that the Schengen agreements took place outside the EC framework and were only integrated into the EU through the treaty of Amsterdam of 1997. This pattern of particular states seeking to push their especially rigorous interpretation of border security and rejection of migration will run through the history of EU migration policy from this point onwards.

In the course of the Single European Act (SEA) the Ad-hoc Group on Immigration was founded on EC level in 1986. This group worked on issues concerning asylum, the issuing of visa, securing the external borders and deportations. In the Palma document – Free Movement of Persons of 1989 the group demanded a standardisation of the criteria for issuing visa, a harmonising of the right to asylum and the strengthening of border controls. In 1990, Schengen II was signed, which sets out the concrete courses of action regarding the legal as well as the technical implementation of the agreement. The Maastricht treaty which marked the founding of the EU and implemented a three-pillar model came into practice in 1991. With their integration into the third pillar of Justice and Home Affairs (JHA) migration politics had finally arrived at European level, still under the premise of rejecting and the fighting migration and under the co-determination of the member states. This development coincides with the collapse of the Eastern Bloc and the beginning of the Balkan Wars, as well as with increased migration from countries outside Europe. In the early 1990s, with several million people on their ways in or towards Europe and the newly-founded European Union together in unison with its member states were eager to close their borders.

In Germany, for example, this lead to the so called asylum compromise of 1993. This is the first document to mention the concepts of safe third countries and exterritoriality2. These two terms mark paradigm shifts not only in German but also in European migration policy, which is why, in the following, they will be examined more in detail. The original right to asylum arranged for a basic right for every person to file an application for asylum, which then was examined. The concept of safe countries of origin and safe third countries now excluded people from this right due to their origin. Also, all other persons having arrived in Germany via such a safe third country were denied the right to apply for asylum. The reasoning, that an asylum application could also have been posed in this safe third country served as the basis for the immediate deportation of the respective person to this third country. For Germany, which considered itself to be surrounded by safe third countries, this resulted in a virtual walling off against refugees and migrants. These, in turn, could now only enter Germany illegally, which goes along with increased risks and costs. Additionally, migrants and refugees now ran the risk of being subjected to a so called chain deportation if picked up by the police, for the concept of safe third countries was rapidly taken on by other countries. With the so called Airport Regulation (Flughafenregelung), asylum seekers were held in the exterritorial zone of the airports and there – officially outside German territory – had to subject themselves to a fast-tack asylum procedure. In the 1990s, the border to Poland, then a EU external border, was massively rigged and controlled which led to more then 100 people being killed at that border. The asylum compromise thus already contained three distinctive elements of the oncoming EU migration policy: the illegalisation of migration, the shifting and rigging of the borders and the idea of exterritoriality, which today forms the basis of Frontex’ actions off the European external border.

Other countries were also stepping up the extension of their borders. Spain, for example, upgraded its borders at Gibraltar, which was to have fatal results and marked the beginning of the dying in the Mediterranean. Through the ad-hoc group, the EU set up two working groups in 1991 and 1992, CIREA (Centre for Information, Discussion and Exchange on Asylum) and CIREFI (Centre for Information, Discussion and Exchange on the Crossing of Borders and Immigration), which lead to the establishment of the Vienna Process (combating “illegal” migration) and the Budapest Process (upgrading of borders). Behind the latter is the think tank ICMPD (International Centre for Migration Policy Development) which is a co-operating partner of Frontex in the MTM dialogue (Mediterranean Transit Migration Dialogue).

In the East, Poland, the Czech Republic and Hungary came together in the Visegrad group in order to push forward the co-operation on migration control with the EU. Also, these countries made arrangements with the EU in which they agreed to take back migrants in exchange for an exemption of their citizens from visa regulations. This enabled the deportation of unwanted Polish and Czech people to their home countries. The EU external border started to shift to the East.

In 1995 the Schengen agreement came into effect, by that time with the participation of Portugal, Spain and other countries. In return for securing a section of the to-date non-existent common external border, the controls at the internal borders between the Schengen member states were dropped. 1997, 2000/2001 and 2007 further entry rounds took place, a process leading towards the convergence of the Schengen area with EU territory, even though up until now both are still not congruent. It was not until Schengen that the EU external border became a reality and securing it a task that should gain importance and that should increasingly be dealt with on a European level, even though the formal administrative sovereignty still lies with the member states. The enormous relevance inherent in guarding of the external border is made clear by the fact that the implementation of the Schengen agreement has always been one of the first requirements for the accession to the EU. Inside the EU the Schengen agreement in turn lead to an expansion of surveillance of the population, because factual border controls can, according to Schengen, now be conducted within each member state.

Another consequence of the Schengen agreement was the setup of the so called SIS (Schengen Information System), into which the security and border agencies of the Schengen states feed information about wanted persons. It is telling that in the beginning, most entries were migrants. The SIS was the first big EU-wide data network, it should, however, soon be followed by others. By now, the follow-up system SIS II is being developed.

From the border line to the border area
Ever since the establishment and the continuous expansion of the Schengen area, the development of the European policy of walling off refugees and migrants has been progressing rapidly. In the course of one decade the EU external border has shifted one hundred kilometres to the East and to the South, has deterritorialised increasingly and its guarding is about to become a European common task. The member states have, however, not yet agreed on a common asylum and immigration policy, which has now been postponed to 2010.

In 1996 a common list of countries that require visa for the EU is passed, and with the Barcelona declaration the EU tackles the project of containing migration in the Mediterranean. At that time the border is still conceptualised to be lying at the European coast. The Dublin agreement comes into force in 1997 (signed in 1990). It regulates the competence of the member states for the processing of applications for asylum. Generally, the state of the first entry is obliged to conduct the proceedings (costs-by-cause principle). For the realisation of this agreement, EURODAC was created in 2000, a EU-wide fingerprint database, which is meant to prohibit multiple applications for asylum by the standardised registering of the finger prints of applicants for asylum. Along with this went a intensified exchange of staff-members of the national asylum agencies. FADO (False and Authentic Documents), a database for forged documents, preceded EURODAC in 1998. 1998 also marks the implementation of the High-Level Group on Asylum and Migration, an agency that concentrates all the EU’s migration related endeavours. In 1999, the institution of SCIFA (Strategic Committee for Immigration, Frontiers and Asylum) follows.

From 1998 onwards, the process of shifting the EU external borders to the fore gains momentum and borders are secured far upfront. The EU action plan on Iraq practices for the first time the “stemming the influx of migrants” within the region of origin and the involvement of transit countries (here especially Turkey and the Balkans). Other action plans follow (Morocco, Albania, Somalia, Sri Lanka, Afghanistan). The deployment of Italian police, border police and military in Albania in 1999 for the prevention/circumvention of migration constitutes a first precedent for the exterritorial guarding of borders. Also in 1998 the Amsterdam treaty carries over the Schengen agreement into the EU, arranges for a enhanced cooperation of police, customs and judiciary on migration and asylum issues and puts up a five-year plan for harmonising asylum procedures and for fighting migration. In 1999, the European coordination of deportations is heralded in Tampere and in the aftermath readmission agreements are advanced with many third countries. The Council of Europe met with North African states at a conference in Athens in 2000, where they discussed the active fight against irregular migration and migration management in continuation of the Barcelona process. Slowly, the imaginary EU external border is shifted across the Mediterranean.

From 2000 onwards, it is the so called G5 (a group consisting of Germany, France, Spain, Italy and Great Britain) that presses ahead with the process. The Ministers of the Interior of these states are represented in this group, their common goal is the release of the blockade in EU interior policy. Consequently, the states of the G5 become involved heavily in Frontex. Germany and Italy propose the setting up of an EU border police for the first time in 2000, a suggestion that Spain endorses. This proposal is followed by another one of Italy and the UK, which also includes far-reaching structural arrangements: the European Visa Identification System, European Migration Observatory, Joint Early Warning System, Joint Border Guard and European Border Guard School. With the network of liaison officers for migration control set up by CIREFI (Centre for Information, Discussion and Exchange on the Crossing of Frontiers and Immigration) in the Balkans a structure evolves that is being further developed by Frontex. At a meeting of the Council of Ministers in Laeken the installation of an EU border guard is advanced and Frontex becomes a European idea.

In 2002, the European Commission puts out the paper “Towards integrated management of the external borders of the member states of the EU”, taking further the idea of a European border security agency and specifying it. Further initiatives for a joint „management of migration flows“ and for a “Green Paper: return of illegal residents” follow. This results in a EU five-year Action Plan on the Management of External Borders of the European Union (APMEB), in which the tasks of Frontex are already prototypically fixed. It provides for the set-up of two ad-hoc centres for border security in Spain and in Greece that complement the land-border centre in Berlin. It also foresees the integration of national border security and safety agencies and their coordination for operations in special situations (Joint Operations and Rapid Border Intervention Teams – RABITs by Frontex). In Finland, the first Risk Analysis Centre (RAC) is set up, which has special contact with the European Intelligence Centre (EIC) and the Baltic Sea Region Border Control Cooperation (BSRBCC). Also, the External Borders Practitioners Common Unit (PCU or Common Unit) is generated which is responsible for risk assessment, the coordination of activities in the field and the development of a joint strategy for further coordination. By these measures, all organisational structures for the agency Frontex, which has yet to be established, are in place, albeit not yet centralised under one roof.

The year 2003 is marked by discussions on reception camps for refugees in Northern Africa and with the Dublin II regulation a legal framework is formed to implement the deportation of asylum seekers in compliance with the Dublin accords. By now, 30% of deportation flights in Europe are deportations according to the Dublin II regulations. On a meeting of the G5 in La Baule Nicolas Sarkozy, at that time French Minister of the Interior, proposes a security zone in the Western Mediterranean thereby including the Mediterranean into the EU external border. In Spain, the SIVE (External Surveillance Integrated System) is put into practice, marking a milestone in high tech border controls. Since then, SIVE has been exported to other countries and is developed further with the help of Frontex research programmes, among others. In anticipation of future Frontex operations the Common Unit carries out a total of 17 joint operations at the external border, for example under the name Odysseus off Gibraltar and under the names of Hera and Nautilus off the Canaries. Further operations are called Rio V, Pegasus, Triton, Orca and Neptun. The countries involved in the Dialogue 5+5 stressed the importance of identifying migration routes and of building up networks of experts at a conference in Rabat, all of which are activities that later were to be taken over by Frontex.

The Hague Programme of 2004 provides for a systematic inclusion of transit states in border security programmes and for an integrated EU border security system, the construction of which is being financed by an external borders fund of 2.100 million Euro. The countries involved in the Dialogue 5+5 agree upon an extension of surveillance at sea. Through the European Neighbourhood Policy, the EU-neighbouring states are further involved in securing the EU external borders. On 26th October 2004 the regulations on Frontex are passed, in May 2005 Frontex takes up work in a field well prepared. With the EU Framework programme on solidarity and management of migration flows the realisation of a Common European Asylum System is imminent.