What changed between the draft committee report and the plenary report

The Rapporteur is generally concerned about the EU’s push for a Status Agreement between Frontex and Senegal, even though the Republic of Senegal has not expressed interest in such a Status Agreement. The Rapporteur is generally concerned about logics of conditionality and neo-colonialism accompanying such a push, in a country where migration is seen as positive and a driver of development. The Rapporteur is of the opinion that in principle agreements with countries, who do not want these agreements should not be not be sought or forced by force.

Concretely the Rapporteur is concerned that the envisioned Frontex Status Agreement with Senegal will hinder free movement of persons and regional integration in the ECOWAS region. The ECOWAS Protocol on Free Movement of Persons and the area of freedom of movement that comes with it was established in 1979, before the creation of Schengen stipulating that people are allowed to move freely on other ECOWAS States’ territory for up to 90 days provided they have a traveling document. As the Status Agreement might put the management of Senegal’s borders with its neighbouring countries into the focus, in particular at the land borders of Senegal (with Mauritania, Mali, Gambia and Guinea-Bissau) that would mainly be targeted by the agreement. Similar cases related to the obstacles to free movement caused by agreements with the EU or national legislation and adopted under EU pressure have been brought before the ECOWAS Court of Justice. The latest complaint was filed by the Nigerien state and it relates to law n°2015-36 on illegal migrant trafficking. The latest crisis in Niger exemplifies what negative consequences such agreements can have on the countries economy. In Niger we are witnessing a humanitarian crisis under which again migrants an refugees are those who suffer most. ECOWAS is an historical achievement, just like Schengen, that should not be endangered by deploying the EU Border and Coast Guard Agency in one of the ECOWAS Member States.

The Frontex Status Agreement would fit into the EU’s general approach on further externalising its migration policies. This trend is already visible in the general EU-Senegal migration cooperation as well as EU funding for border surveillance in Senegal. The Rapporteur does not support measures on externalization related to migration, but believes that the EU and its Member States should take their responsibility for migration and asylum seekers by opening safe and legal pathways for migrants and asylum seekers. Additionally the Rapporteur is concerned that externalizing the EU’s borders, with Frontex as an instrument will only force people on more dangerous migratory routes and is of the belief that the growing number of checks combined with the lack of rescue operations and that of rescue coordination at sea and on land, would probably only confirm this trend.

Against this background the draft report outlines that the negotiations between the EU and Senegal on the establishment of a status agreement that provides for the deployment of the European Border and Coast Guard Agency (Frontex) in Senegal have not yet started and notes the reluctance of the Senegalese Government to sign such a status agreement. It also expresses concern about the deteriorating situation of fundamental rights in Senegal and considers that the possible conclusion of a Status Agreement between the EU and Senegal providing for the exercise of executive powers by Frontex in Senegal entails a high risk for the Agency of becoming complicit in direct and indirect violations of fundamental rights or international protection obligations that are of a serious nature and are likely to persist. It highlights possible negative consequences for the ECOWAS region and in particular the impact on the right to leave and the right to asylum. It underlines that the Model Status Agreement falls significantly short of addressing the above-mentioned serious concerns and could lead to severe accountability gaps in the event of fundamental rights violations. It also criticizes the lack of an impact assessment on fundamental rights, which has not been performed yet by the Commission.

Against that backdrop, the Rapporteur does not support the conclusion of a Status Agreement with Senegal and recommends the European Commission not to open negotiations.

Furthermore the Rapporteur develops in her report, in light of Frontex increased presence in third countries, recommendations to the Commission in the Agency that in view of the Rapporteur should be addressed immediately. In the recommendations to be addressed by the Commission and the Agency immediately, the Rapporteur focuses in particular on the ex ante fundamental rights impact assessments, that should be performed by the Commission and has not performed yet, the provisions of immunity of the Model Status Agreement, as well as addressing the more general EU-Senegal migration cooperation, focusing on legal pathways for migrants and refugees living or in transit in general as well as making sure that any support to border authorities in third countries is conditional upon the respect for fundamental rights. In the case of the Agency, the focus is in the important role of the Fundamental Right Officer, efficient complaint mechanisms for actions performed by the agency on the territory of a third country, a diligent review of the Agency’s action in third countries and access to documents in this regards.

Irrespective of this, the Rapporteur also develops recommendations to the Commission and the Agency that should be addressed in view of the Rapporteur in the event that negotiations on the Status Agreement would be ever opened.

With this the Rapporteur seeks to address the aforementioned shortcomings should negotiations ever be opened, before seeking the consent of the European Parliament for the Status Agreement. The recommendations addressed to the Commission focus on addressing the legal shortcoming of the Model Status Agreement and ensuring that Frontex operations take place only in countries where fundamental rights and access to international protection can be guaranteed. This includes ensuring accountability and monitoring of these rights in the context of operations performed by Senegalese authorities, as well as Frontex staff. The Rapporteur also recommends to keep the European Parliament fully informed at all stages of the negotiations. The Rapporteur recommends to the Agency to ensure consistent, regular and transparent reporting on its activities in Senegal under any potential status agreement and to fulfil its responsibility to address direct and indirect human rights violations by its staff in Senegal in accordance with the existing procedures. Furthermore the Rapporteur develops concrete recommendations on the potential operational plan establishing operations on the territory of Senegal. Additionally the Rapporteur recommends the Agency to ensure that national and human rights institutions and civil society organisations have access to all the information deemed necessary for them to scrutinise the impact of the status agreement in Senegal and to scrutinise the conduct of Senegalese security forces and Frontex in conducting migration management, as well as the human rights risks and consequences.

The Rapporteur is also of the opinion that the European Court of Justice should formally assess whether the Status Agreement as negotiated is compatible with the Treaties, as enshrined in Article 218 (11) TFEU, especially related to accountability of the Agency for actions performed on the territory of Senegal, in light of the significant differences between the legal framework of the EU and Senegal.

The Rapporteur recommends that the European Commission thoroughly considers the Parliament’s recommendations in light of increased operations of Frontex in third countries and the general trend towards externalizing EU migration policies.

The Rapporteur recommends that Frontex thoroughly considers the Parliament’s recommendations and closely cooperates with the Fundamental Rights Officer (FRO) to address the issues identified in the report and ensure that it complies with its fundamental rights related obligations.