Changes from report parliamentary committee draft to plenary report

PROPOSAL FOR A EUROPEAN PARLIAMENT RECOMMENDATION

▸6 unchanged paragraphs

to the Commission concerning on the ongoing negotiations on a status agreement on operational activities carried out by the European Border and Coast Guard Agency (Frontex) in Senegal

(2033/2086(INI))

The European Parliament,

– having regard to the Treaty on the Functioning of the European Union (TFEU), in particular Articles 77(2)(b) and (d), 79(2)(c) and 218(3) and (4) thereof,

– having regard to the Universal Declaration of Human Rights,

– having regard to the Convention Relating to the Status of Refugees of 1951 and the additional protocol thereto,

Added– having regard to the United Nations Convention against Transnational Organized Crime, its Protocol to Prevent, Supress and Punish Trafficking in Persons, especially Women and Children, and its Protocol against the Smuggling of Migrants by Land, Sea and Air,

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– having regard to Regulation 33 of Chapter V of the International Convention for the Safety of Life at Sea entitled ‘Distress Situations: Obligations and procedures’,

– having regard to Chapter 4 of the International Convention on Maritime Search and Rescue on operating procedures,

– having regard to the UN Convention on the Law of the Sea,

– having regard to the European Convention on Human Rights,

– having regard to the Charter of Fundamental Rights of the European Union,

Added– having regard to Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA,

– having regard to Regulation (EU) 2019/1896 of the European Parliament and of the Council of 13 November 2019 on the European Border and Coast Guard and repealing Regulations (EU) No 1052/2013 and (EU) 2016/1624,

Added– having regard to the European Council conclusions of 9 February 2023,

– having regard to Council Decision (EU) 2022/1169 of 4 July 2022 authorising the opening of negotiations on a status agreement between the European Union and the Republic of Senegal on operational activities carried out by the European Border and Coast Guard Agency in the Republic of Senegal,

Added– having regard to the EU strategy on combating trafficking in human beings 2021-2025,

Added– having regard to the EU action plan for the Western Mediterranean and Atlantic routes,

– having regard to the Commission communication of 21 December 2021 on the model status agreement as referred to in Regulation (EU) 2019/1896 of the European Parliament and of the Council of 13 November 2019 on the European Border and Coast Guard and repealing Regulations (EU) No 1052/2013 and (EU) 2016/1624 (COM(2021)0829),

– having regard to its resolution of 19 May 2021 on human rights protection and the EU external migration policy,

– having regard to the report of the Frontex Scrutiny Working Group of the Committee on Civil Liberties, Justice and Home Affairs of 14 July 2021 on the fact-finding investigation on Frontex concerning alleged fundamental rights violations and the recommendations included therein,

Changed– having regard to the draftits resolution of the Committee on Civil Liberties, Justice and Home Affairs of 14 JulyDecember 2023 on Frontex building on the fact-finding investigation of the LIBE Working Group for Frontex Scrutiny,

– having regard to Rules 114(4) and 54 of its Rules of Procedure,

– having regard to the opinion of the Committee on Foreign Affairs,

Changed– having regard to the report of the Committee on Civil Liberties, Justice and Home AffairesAffairs (A9-0000/2023),(A9-0032/2024),

A. whereas on the basis of Council Decision (EU) 2022/1169, the Commission received an authorisation from the Council to negotiate a status agreement with the Republic of Senegal in July 2022, which would allow for the possibility that team members deployed by the European Border and Coast Guard Agency (Frontex) could perform tasks with executive powers on the territory of the Republic of Senegal on the basis of a dedicated operational plan;

Change 1

RemovedB. whereas the status agreement with Senegal and the one currently being negotiated with the Islamic Republic of Mauritania would be the first agreements on operational activities carried out by Frontex concluded with third countries that are not candidates for EU accession and that have legal regimes that differ greatly from EU standards;

AddedB. whereas, pursuant to Article 73(3) of Regulation (EU) 2019/1896, in circumstances requiring the deployment of border management teams from the standing corps to a third country where the members of the teams will exercise executive powers, a status agreement must be concluded by the Union with that third country on the basis of Article 218 TFEU;

RemovedC. whereas according Regulation 2019/1896, in situations where the Commission recommends that the Council authorise it to negotiate a status agreement, it should assess the fundamental rights situation in the areas covered by the status agreement; whereas such an assessment has not been performed yet;

AddedC. whereas the status agreement with Senegal and the one currently being negotiated with the Islamic Republic of Mauritania would be the first agreements on operational activities carried out by Frontex concluded with third countries that are not candidates for EU accession and that have legal regimes that differ greatly from EU standards; D. whereas pursuant to Article 73(2) of Regulation (EU) 2019/1896, when cooperating with the authorities of third countries, Frontex must act within the framework of the Union’s external action policy, including with regard to the protection of fundamental rights and personal data, the principle of non-refoulement, the prohibition of arbitrary detention and the prohibition of torture and inhumane or degrading treatment or punishment;

RemovedD. whereas the model status agreement referred to in Article 76(1) of Regulation 2019/1896 is to serve as the basis for the Commission’s negotiations with Senegal;

AddedE. whereas Senegal is a priority country for the EU and its Member States, according to the joint EU-Senegal strategy; whereas a Talent Partnership with Senegal is envisaged as one of the key components of reinforced cooperation between the EU and Senegal on migration management;

RemovedE. whereas Senegal is a country of emigration, transit and immigration; whereas Senegal has been one of the main destination countries in West Africa for a long time; whereas, according to the International Organization for Migration, in 2018, 200000 nationals from other countries were living in Senegal; whereas 2023 has seen an increase in the number of boats departing from Senegal to the Canary Islands; whereas the majority of people on the boats in 2023 have been Senegalese nationals; whereas the Atlantic ‘route’ is one of the deadliest in the world, due in large part to the length of the overseas journey and the lack of dedicated search-and-rescue capacity; whereas the International Organization for Migration has reported that at least 3 519 persons have died or gone missing at sea on the Atlantic route since 2014;

AddedF. whereas according Regulation (EU) 2019/1896, in situations where the Commission recommends that the Council authorise it to negotiate a status agreement with a third country, the Commission should assess the fundamental rights situation relevant to the areas covered by the status agreement in that third country; whereas such an assessment has not been performed yet; whereas in its report of 21 May 2019, the Frontex Consultative Forum called on Frontex to carry out an effective fundamental rights impact assessment prior to engaging with a third country;

RemovedF. whereas concerns have been raised by human rights non-governmental organisations about a worsening trend as regards violations of the rights to freedom of expression and peaceful assembly and the excessive use of force by defence and security forces; whereas the president’s main opponent, several members of opposition parties, activists and journalists have been arrested and detained ‘under a committal order for calls to insurrection and acts or operations likely to compromise public security’; whereas on 31 July 2023, the Senegalese authorities ordered the dissolution of a political party; whereas access to social media and mobile internet connections have been restricted;

AddedG. whereas according to Article 218(11) TFEU, a Member State, the European Parliament, the Council or the Commission may obtain the opinion of the Court of Justice of the European Union (CJEU) as to whether an envisaged agreement is compatible with the Treaties; whereas when the opinion of the CJEU is negative, the envisaged agreement may not enter into force unless it is amended or until the Treaties are revised;

RemovedG. whereas Senegal has been receiving EU and bilateral support for border management, including border surveillance, notably through the EU Emergency Trust Fund for Africa and its bilateral cooperation with the Spanish Guardia Civil since 2006;

AddedH. whereas, once concluded, nothing precludes a Member State, the European Parliament, the Council or the Commission from considering it appropriate to obtain this opinion on the compatibility of the negotiated status agreement with the Treaties;

AddedI. whereas Article 218(10) TFEU obliges the Commission to immediately and fully inform Parliament during all stages of the conclusion procedure for a status agreement;

AddedJ. whereas the model status agreement referred to in Article 76(1) of Regulation (EU) 2019/1896 is to serve as the basis for the Commission’s negotiations with Senegal; whereas it establishes a framework for cooperation between Frontex and its teams on the one hand and the competent authorities of the third country concerned on the other, setting out, among other things, the scope of operation, criminal and civil liability, the tasks and powers of members of the team and practical measures related to the respect of fundamental rights; whereas Frontex must ensure that fundamental rights are fully respected during those operations and provide for a complaints mechanism;

AddedK. whereas, according to the Model Status Agreement referred to in Article 76(1) of Regulation (EU) 2019/1896:

Added– Frontex’s team members may, in general, only perform tasks and exercise powers in the territory of the third country under instructions from and in the presence of the border management authorities of that country, and must comply with the laws and regulations of the third country as well as applicable Union and international law; the third country’s authorities must only issue instructions that are in compliance with the operational plan to the team members; this is the only operational framework where EU personnel operate under third-state command;

Added– Frontex’s team members enjoy immunity from the criminal jurisdiction of the third country under all circumstances, and must not be subject to any form of arrest or detention in the third country or by its authorities; the waiver of immunity is at the discretion of the Executive Director or the home Member State, depending on the status of the team member;

AddedL. whereas Senegal is a country of emigration, transit and immigration; whereas migration and mobility are positively perceived in Senegal; whereas the right to mobility is enshrined in the Senegalese constitution and inter-communal cross-border mobility is normal; whereas Senegal has been one of the main destination countries in West Africa for a long time; whereas, according to the International Organization for Migration, in 2018, 200 000 nationals from other countries were living in Senegal; whereas 2023 saw an increase in the number of boats departing from Senegal to the Canary Islands; whereas the majority of people on the boats in 2023 were Senegalese nationals; whereas the Atlantic ‘route’ is one of the deadliest in the world, due in large part to the length of the overseas journey and the lack of dedicated search-and-rescue capacity; whereas the International Organization for Migration has reported that at least 3 519 persons have died or gone missing at sea on the Atlantic route since 2014; whereas there have been reports of repeated pushbacks of migrants and refugees from the Mauritanian and Malian borders to Senegal;

AddedM. whereas concerns have been raised by the Office of the UN High Commissioner for Human Rights and human rights non-governmental organisations (NGOs)regarding violations of the rights to freedom of expression and peaceful assembly and the excessive use of force by defence and security forces; whereas access to social media and mobile internet connections have been restricted in Senegal;N. whereas people and NGOs are being criminalised for denouncing the negative effects of migration cooperation between Senegal and the EU; whereas concerns have also been raised by human rights NGOs regarding a series of acts of repression towards persons attempting to leave Senegal irregularly;

AddedO. whereas Senegal’s current legal framework does not allow for effective protection of children, trafficking victims or LGBTIQ+ persons; whereas same-sex activity is deemed an offence under criminal law, punishable by imprisonment;

AddedP. whereas Senegal is a signatory state to the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol; whereas Senegal included the main aspects of the convention in a 1968 domestic law on asylum, which was updated in April 2022 to include statelessness and appeals procedures; whereas Senegal has not ratified the Organisation of the African Union Convention Governing the Specific Aspects of Refugee Problems in Africa;

AddedQ. whereas as of February 2022, the UN High Commissioner for Refugees (UNHCR) reported the presence of 14 533 refugees and 2 058 asylum seekers in Senegal; whereas the UNHCR multi-country office based in Dakar reported that, as of February 2022, there were 6 017 Senegalese refugees and asylum seekers in the Gambia, Guinea, Guinea-Bissau, Togo and Sierra Leone;

AddedR. whereas since September 2003, Senegal has been a party to the UN Convention against Transnational Organized Crime and its additional protocols; whereas in December 2020, the government created the Inter-ministerial Committee Fighting Clandestine Migration by decree; whereas the committee worked on a national strategy for the fight against irregular migration that was adopted on 27 July 2023 and will be implemented until 2032; whereas the Senegalese legal framework on smuggling is not in line with the UN Convention against Transnational Organized Crime, which outlines that migrants should not be criminalised after interception;

AddedS. whereas Senegal has been receiving EU and bilateral support for border management, including border surveillance, notably through the EU Emergency Trust Fund for Africa and its bilateral cooperation with the Spanish Guardia Civil since 2003; whereas since 2018, Senegal has established at least nine border posts and four regional branches of the National Division for the Fight against Migrant Smuggling, with the aim of fighting trafficking and other associated practices, whereas EU funding has supplied Senegal with advanced surveillance technologies, including phone extraction devices, biometric fingerprinting, drones and night-vision goggles; whereas the aim is to create an African integrated border management system that would connect Senegal’s and other African countries’ databases with data from international police agencies;

AddedT. whereas Frontex, under Operation HERA, also carried out occasional joint operations between 2006 and 2018 in Senegal; whereas this cooperation has not been evaluated on its impact on the protection of and respect for the human rights of the people who were intercepted;

AddedU. whereas there are several drivers for irregular migration in Senegal, namely the lack of safe and legal migration pathways, including obstacles to accessing Schengen visas; poverty, insecurity and unemployment, in particular in the fishing community; whereas the fishing community is overrepresented in the groups of people attempting to reach the Canary Islands;

AddedV. whereas Regulation (EC) 1049/2001 codifies EU lawful residents’ right of public access to documents, and also provides for the possibility of granting document access to individuals residing outside the EU; whereas Frontex restricts access to its documents to EU or Schengen country nationals or residents, including legal persons residing or having a registered office in these countries, even though it is increasingly active, in some cases with executive powers and a mandate to use force, in non-EU territory; whereas it is almost exclusively non-EU citizens or residents who are affected by Frontex’s actions in third countries; whereas civil society organisations in Senegal face difficulties in accessing information on the possible status agreement;W. whereas there have been repeated reports of migrants and refugees being subject to refoulement following their arrest and detention, whereby they are pushed back across the Mauritanian and Malian borders to Senegal, as well as of Senegalese nationals being intercepted in Dakhla and returned by bus to Senegal via Mauritanian territory;

X. whereas Frontex has the legal obligation to comply with EU law to ensure that fundamental rights are fully respected during operations; whereas a status agreement can only be established under the condition that it strictly requires, including during operations, the protection of human rights and personal data, the principle of non-refoulement, the prohibition of arbitrary detention and the prohibition of torture and inhuman or degrading treatment or punishment, as enshrined in Article 73(2) of Regulation (EU) 2019/1896;

Change 2

Removed1. Notes that the negotiations between the EU and Senegal on the establishment of a status agreement that provides for the deployment of Frontex border management teams in Senegal have not yet started; notes that the Senegalese Government is reluctant to sign the status agreement and has started to negotiate a working arrangement as a first step;

AddedY. whereas a large part of European development aid is conditioned on the fight against irregular migration;

Removed2. Expresses its concern about the deteriorating fundamental rights situation in Senegal; considers that the possible conclusion of a status agreement between the EU and Senegal providing for the exercise of executive powers by Frontex in the country would entail a high risk for Frontex of becoming complicit in direct and indirect violations of fundamental rights or international protection obligations; believes that these risks are of a serious nature and are likely to persist;

Added1. Notes that the official negotiations between the EU and Senegal on the establishment of a status agreement that provides for the deployment of Frontex border management teams in Senegal have not yet started; acknowledges the ongoing exchange with Senegalese authorities; notes that the Senegalese Government is reluctant to sign the status agreement and has started to negotiate a working arrangement as a first step;

Removed3. Is concerned about the impact of a status agreement on the freedom of movement of individuals in West Africa, as guaranteed under the Economic Community of West African States Treaty, in particular its protocol on free movement in neighbouring countries, as well as about the impact on the right to leave and the right to asylum;