The EU Border Management Strategy FRONTEX and the Challenges of Irregular Immigration in the Canary Islands CEPS Working Document No. 261/March 2007 Sergio Carrera Abstract The EU is developing a border management strategy aiming at an “integrated and global response” to the challenges posed by the phenomenon of irregular immigration through the common external borders. “The Southern maritime borders” constitute one of the main targets addressed by this strategy. On November 2006, the European Commission published a communication calling for the reinforced management of the EU’s Southern maritime borders and for the maximisation of the capacities of the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union – FRONTEX. This paper provides some reflections about these current policy approaches by looking at the nature, scope and practical implications of the implementation of the Integrated Border Management strategy and its relationship with a common EU immigration policy. After assessing the latest policy developments in these areas, we raise a number of questions about some of the functions and capacities carried out by FRONTEX, and present a series of vulnerabilities characterising the joint operations coordinated by this Community body taking the example of the operations HERA I, II and III in the Canary Islands (Spain). CEPS Working Documents are intended to give an indication of work in progress within CEPS research programmes and to stimulate reactions from other experts in the field. Unless otherwise indicated, the views expressed are attributable only to the author in a personal capacity and not to any institution with which he is associated. ISBN 978-92-9079-702-9 Available for free downloading from the CEPS website (http://www.ceps.eu) © Sergio Carrera, 2007 Contents Introduction................................................................................................................................... 1 1. The EU’s Integrated and Global Strategy on Borders and Migration .................................... 2 2. FRONTEX: A Depoliticised and Intelligence-based Body? .................................................. 8 2.1 A Depoliticised Body in a Highly Political Spectacle ..................................................... 9 2.1.1 The Principle of Dependence on Member States Solidarity................................... 9 2.1.2 The Emergency-Driven Nature of FRONTEX Activities .................................... 12 2.1.3 The Role of the European Commission................................................................ 13 2.2 FRONTEX as an Intelligence-based Body: The Management of “Risk” and “Threat” 14 2.3 FRONTEX Legal Basis.................................................................................................. 17 2.4 Feasibility Studies: Towards the Second Generation of IBM........................................ 18 3. Vulnerabilities Inherent to FRONTEX Joint Operations: The Case of the Canary Islands . 20 3.1 HERA I .......................................................................................................................... 20 3.2 HERA II......................................................................................................................... 21 3.3 Implications of the External Dimension of IBM............................................................ 25 Conclusions................................................................................................................................. 27 Bibliography................................................................................................................................ 29 Annex 1. Interviews conducted between October 2006 and January 2007................................. 33 THE EU BORDER MANAGEMENT STRATEGY FRONTEX AND THE CHALLENGES OF IRREGULAR IMMIGRATION IN THE CANARY ISLANDS * SERGIO CARRERA Introduction The EU is developing a border management strategy which aims at an “integrated and global response” to the challenges emerging from irregular immigration through the common external borders. The Southern maritime borders constitute one of the fundamental targets being addressed by this strategy. On November 2006, the European Commission published a communication calling for the reinforced management of the EU’s Southern maritime borders and for the maximisation of the capacities of the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union – FRONTEX. Under the auspices of the Finnish Presidency, the Council agreed on a common definition of what ‘Integrated Border Management’ (IBM) means in the EU. The prioritisation of borders has been coupled with the emergence of a ‘global approach to migration’, which aims to ensure a multifaceted response covering all the dimensions relevant to migration, with particular attention to irregular mobility by third-country nationals coming from Africa. The EU policy seems to be based on two distinct but closely interrelated and complementary approaches: on the one hand, an integrated approach to the management of common territorial borders, and on the other hand a global policy covering migration. In this paper we offer some reflections and raise a number of questions about these approaches by looking at the nature, scope and practical implications of the implementation of the IBM model and its relationship with a common immigration policy at European level. Section 1 provides a brief assessment of the latest EU policy developments which have consolidated a close partnership between an integrated management of common European external borders and a global rationale inspiring the European policy on immigration. As we will argue, one of the dominant premises behind this apparently renewed political discourse on a ‘global and integrated approach’ is the enhancement of security at the EU external territorial border through an increased use of coercive measures and surveillance technology, as well as the deployment of an improved system of coordinated actions under the umbrella of FRONTEX. Section 2 assesses FRONTEX as the main institutional instrument responsible for making the EU border management agenda work on the ground. The enhancement of its competences and capacities is conceived at official level as a fundamental condition for the achievement of an ‘Area of Freedom, Security and Justice’, and for the EU border management strategy to materialise. In fact, while the setting up of this Community body may be considered as a historical step toward the Europeanisation of the field of ‘borders security’, specific aspects * Sergio Carrera is a Research Fellow, Justice and Home Affairs Unit at CEPS and a Ph.D. Candidate at the University of Maastricht. This paper falls within the scope of the CHALLENGE research project (Changing Landscape of European Liberty and Security), which is funded by the Sixth Framework Programme of DG Research, European Commission. The author would like to thank Prof. Elspeth Guild for her comments, Miriam Mir for her valuable assistance while carrying out this research and Florian Geyer for his comments and participation in some of the interviews substantiating this paper. He would also like to express his gratitude to all the officials who were interviewed for this paper (see Annex 1). | 1 2 | SERGIO CARRERA inherent in some of its features raise a number of concerns. This is particularly the case when looking at some of its characteristics: first, its depoliticised role and the competence to carry out ‘coordinating intelligence-driven operations’ based on risk analysis and threat assessments; second, the compatibility between its legal basis and the whole array of areas where it intervenes; and third, the elaboration of feasibility studies which intend to develop the so-called ‘second generation of IBM’. A majority of these functions and capacities suffer from a high level of secrecy, as well as a lack of transparency and democratic accountability, which need to be addressed as a matter of urgency before developing its competences and operational tools further. Finally, section 3 presents a series of vulnerabilities characterising the ‘Joint Operations’ coordinated by FRONTEX. We take the particular example of the operations HERA I and II in the Canary Islands (Spain), which have so far represented the longest-running coordinated actions by FRONTEX, and which have been recently prolonged under the framework of HERA III. The operational cooperation coordinated by FRONTEX finds its legal basis on an ‘external dimension’ involving a process of externalisation or ‘extra-territorialisation’ of the EU border as a consequence of an IBM concept expanding the control beyond the EU towards the maritime territories of African countries. The externalisation of border management also implies a curbing of the mobility of third-country nationals without, at times, establishing their legal status. We will look at the actual implications that this institutionalised practice of pre-border control are having in terms of human rights and European Community law. 1. The EU’s Integrated and Global Strategy on Borders and Migration This section offers a concise overview of the latest policy developments at EU level which have created a close interrelationship between the common policy on borders and the policy on immigration. It sets the policy scenario of European cooperation in these two areas by looking