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Controlling Escapes from Law. Re-designing accountability in the externalisation of migration control policies.

Periodic Reporting for period 1 - X-LAW (Controlling Escapes from Law. Re-designing accountability in the externalisation of migration control policies.)

Período documentado: 2020-11-01 hasta 2022-10-31

The management of the external borders of the EU has become a vulnerable as well as contested policy: civil society organisations denounce the systemic violence occurring at the borders, involving both EU agencies and Member States’ authorities. Several European institutions and bodies scrutinise the activities of these agencies as well as their impact and effectiveness, and litigation against these agencies is gaining momentum.
This fiercely contested policy area is especially illustrated by the debate sparked over the operational mandate of the European Border and Coast Guard Agency (Frontex). Over the past years, Frontex has come under scrutiny following media and civil society allegations of breaches of fundamental rights under international and European law, including pushbacks, disrespect of its legal mandate, and a track record of poor transparency and limited accountability. This storm of official investigations and reports, concluded by the report of the EU Anti-Fraud Office (OLAF), led to the resignation of the Frontex Executive Director, Fabrice Leggeri, in April 2022. Though undisclosed for months, the (eventually leaked) report eventually confirmed serious issues of mismanagement and of violations of the Frontex founding Regulation and operational rules, by its former Executive Director, casting doubts on the quality of the internal oversight on the Agency.

These emerging forms of transparency and accountability, which are the fruit of concerted efforts of civil society, investigative journalism and engaged academia, do raise important questions about the compliance and respect of the legal framework by agencies, in particular concerning the protection of fundamental rights at the external borders of the EU. Consequently, additional issues emerge as to possible accountability challenges and gaps. Other EU agencies, active in the Area of Freedom, Security, and Justice (AFSJ), such as the European Union Agency for Law Enforcement (Europol), the European Union Agency for Asylum (EUAA), and the European Union Agency for the Operational Management of Large-Scale IT Systems (EU-LISA), face similar gaps in accountability. The increasing inter-agency cooperation, namely the cooperation among EU migration agencies at the external borders of the EU, in the known hotspots, expands the significance of those gaps. Moreover, a plurality of actors appears on the stage of the external borders of the EU, including private companies and third-country administrations. Together with the increased digitalisation of external border controls (e.g. with the European Travel Information and Authorisation System (ETIAS), and its reliance on Artificial Intelligence technologies, the efforts to scrutinise the discretion exercised by those actors and their compliance with their legal obligations further complicate the legal landscape and the search for clear fundamental rights guarantees.

This project is important for society since it contributes to highlighting the shortcomings of the functioning of the most contested European Agency, Frontex, and to put forward solutions that can be employed to improve its record of compliance to the legal framework governing its operations, and also to improve the accountability gaps highlighted in its functioning.
The project has fully achieved its objectives and milestones.
The researcher has, since the start of the project, devoted her attention to the analysis of the new measures of the Pact on migration and asylum, devoting the first deliverables on the latest practices of externalisation and their implication for the EU as a legal order based on the rule of law. At the same time, the project has benefited from existing collaborations of the researcher with networks and scholars such as Emanuela Pistoia, Jean-Pierre Cassarino, and Daniel Thym, as well as with new collaborations established thanks to the network of scholars the researcher has managed to set up within the context of the Beneficiary (Violeta Moreno-Lax, Salvatore Nicolosi).
Overall, the first phase of the project has contributed to reinforcing the position of the researcher within the academic context, by contributing to the scientific debate with analysis on the ongoing internalisation practices of externalisation, namely with the proposed increased resort to border procedures, within the territory of the EU.
In addition, the project has focused its attention on the principles governing European policymaking and European integration, such as subsidiarity and solidarity, and produced other deliverables on this line of research.
As it happens, along the project, the researcher has managed to establish fruitful cooperation thanks to the network provided by the Beneficiary, with PhD researchers and other (Visiting) Fellows.
The results of it have been the organisation of a first workshop in hybrid mode, in May 2022, which has triggered a collaborative effort leading to the production of a series of blogposts written in collaboration with colleagues across the EU and appearing on a successful blog in September 2022.
As a follow-up of it, the project has developed with the organisation of an international conference within the premises of the Beneficiary, involving several Italian and European Scholars and also a representative of the European Parliament, leading the debate on accountability of European agencies dealing with border management and respect for human rights, and framing it as expression of a broader rule of law crisis involving the layer of the European administration. The follow-up of this milestone has been the organisation and the coordination of the scientific spillover, i.e. the publication of scientific articles in the process of being published with a leading European journal. The edited project co-edited by the researcher tackles the different aspects of the process of agencification of the external borders of the EU, and how externalisation practices has led to the emergence of the new epicenter of the rule of law crisis now affecting the EU.
Externalization of migration control policies has been a crucial component of the whole construction of the Area of Freedom, Security and Justice. Since 2005, with the GAMM (Global Approach to Migration and Mobility), the EU has set up an external dimension to migration and asylum policies.
However, the break-out of the ‘migration crisis’, in 2015, reinforced this trend and gave the EU and its Member States new impetus in this direction. Scholars are working on several related aspects. As observed by Leino and Cremona in 2017, the emergence of the EU as a global actor, capable of responding to crises, determines the emergence of an administrative dimension to the EU’s external relations. In another perspective, governance scholarship, which has focused on agencification processes, has increasingly studied the external relations of the agencies. And while social scientists have analyzed the implications of the policies of border controls and externalized migration, little attention has been paid so far by EU governance scholarship to the transnational web of governance created by EU’s enforcement actors and MS’ agencies, also in cooperation with Third Countries’ counterparts.
The project has filled this gap.
Marin slides 1
Rijpma Marin Curtin panel
Marin Strik panel
conference flyer
Marin presenting