6th September Ruling & Lampedusa: A Review on The European Union’s Responsibility for Asylum Seekers
On September 6th 2023, a Syrian family lost their case against the European Union Border agency, Frontex. After being deported from Greece in 2016, they charged Frontex with having ‘breached the rules on asylum procedures and violated children’s rights by separating the man and his wife from their family, including a one-year-old baby, during their flight to Turkey.' This case fits into a larger legal narrative of immigration into Europe, specifically the circumstance of seeking asylum, and the discretion European Union states have to turn away refugees.
The Syrian family’s story is essential to understanding their claims against Frontex. The family of six - a mother, father, and four children - left Aleppo, Syria in 2016, fleeing the war and arriving in Greece where they hoped to submit an application for asylum. After a treacherous journey, they spent eleven days in Greece before they were deported to Turkey.
They first arrived in Milos, Greece and were thereafter sent to Leros where they ‘expressed their desire to lodge an application for international protection.’ However, their lawyers assert that Frontex sent them to Turkey ‘without having been able to apply for asylum and without an expulsion decision.’
The family charged Frontex with breaching the rules on asylum procedures, as they were deported before processing could begin. Beyond this deportation charge, the family is also arguing Frontex violated 'children’s rights by separating the man and his wife from their family, including a one-year-old baby, during their flight to Turkey.’ After their deportation, the family moved and continues to reside in Iraq.
The Syrian family is seeking ‘€96,000 (£82,000) in respect of material damage and €40,000 in respect of non-material damage, on account of Frontex’s alleged unlawful conduct before, during and after the return operation.’ These damages have been dismissed with the justification that Frontex is only able to provide technical and operational support to member states.
However, ‘Lisa-Marie Komp, a lawyer with Prakken d’Oliveira said the case was significant even if the refugee lost his claim, as it exposed an “accountability gap” at Frontex.' Komp has stated that ‘This will bring to view an accountability gap, in which Frontex cannot effectively be held to account for its actions. If this is the case, political action is needed.'
Since the ruling stated that Frontex is not responsible for damages because of their limited scope of support, the question of what 'technical and operational support' entails remains unanswered. According to Frontex, they are ‘a centre of excellence for border control activities at the E.U.’s external borders, sharing intelligence and expertise with all Member States and with neighbouring non-E.U. countries affected by migratory trends and cross-border crime.' The European Court of Justice agreed that Frontex is not responsible for asylum procedures, and that the Syrian family’s application was not of their concern or control. Deportation is within the realm of security measures that can be taken, but treatment of the family and what counts as a security threat’ is uncertain and illustrates Frontex’s lack of accountability that lawyers are objecting to.
This case presents the dilemma of separating politics from International law and its systematic nature. After the decision that Frontex was not responsible for allowing the completion of the family’s asylum application, the case was dismissed.
If Frontex is not responsible, who is? Following several of the legislative guides, it seems that the blame falls on the European Union Agency for Asylum.
The European Union’s asylum procedures are very transparent and were recently updated in 2020. The European Union states:
‘The European Union is an area of protection for people fleeing persecution or
serious harm in their country of origin. Asylum is a fundamental right and an
international obligation for countries, as recognised in the 1951 Geneva Convention
on the protection of refugees.’
In 2020, the European Union reformed their asylum system ‘through a comprehensive approach to migration and asylum policy based on three main pillars:
efficient asylum and return procedures,
solidarity and fair share of responsibility and
strengthened partnerships with third countries.’
In addition to these three main pillars, the procedures are based on five legislative components and one agency. The Asylum Procedures Directive, the Reception Conditions Directive, the Qualification Directive, Dublin Regulation, the EURODAC Regulation, and finally the agency which is the European Union Agency for Asylum. The Common European Asylum system is enforced by the European Union Agency for Asylum and the agency ‘provides operational and technical assistance to Member States in the assessment of applications for international protection across Europe
Frontex’s role as border security permitted the court to rule that they were not accountable for the family’s request for international protection, however, there is hope for appeal based on the grounds of children’s rights. The lack of accountability may also spur debate about the role border protection can play in making sure everyone receives equal access to protection from their war-stricken country if they are the first point of arrival.
The European Union’s asylum laws and the role of Frontex are also receiving International Attention due to the Lampedusa refugee crisis. Lampedusa is a Sicilian island that has recently received a surplus of migrants from Tunisia. On 16th September, an article stated that ‘Lampedusa has seen thousands of landings this week alone, more than the island’s permanent population, triggering appeals for help from local politicians.’ This arrival has prompted protests amongst residents who worry about Lampedusa’s future; where some demand more facilities to be built, others object to the ever-increasing island population. This year, ‘nearly 126,000 migrants and refugees have arrived in Italy this year, almost double the figure by the same date in 2022.’
Currently, Italy faces the crisis of granting International Protection and trying to process an unexpected amount of migrants on Lampedusa. Italian Prime Minister Georgia Meloni ‘has urged the E.U. to act to relieve the pressure after thousands of people landed by boats over three days this week on Lampedusa, just 145km (90 miles) off the coast of Tunisia.’ Others are stating that ‘the increase in arrivals has reignited the debate over how Europe shares responsibility for asylum seekers.’ The mass migration has unfortunately led to casualties, too. Italy is extremely overwhelmed in their immigration efforts and the European Union is therein focusing particularly on their asylum procedures.
Although the case of the Syrian family occurred in 2016, the legal accountability that they are demanding from Frontex and the European Union applies to the Tunsian migrants in Lampedusa. International Law, particularly immigration law, makes impossible promises that overwhelm Frontex’s system. As 2023 comes to an end, the European Union will likely have to revise their approach to migration and the Syrian family may submit an appeal. Moreover, Prime Minister Meloni is making an example of Lampedusa’s overwhelmed facilities as a motive to criticize left wing migration approaches. Nevertheless, politics must be separated from the law to ensure human rights are not violated and that protocols are adhered by. Only through this separation can international protection for asylum seekers be granted while also maintaining Europe’s border security.