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How the EU Asylum Agency complies with its fundamental rights obligations and ensures accountability for potential fundamental rights violations

Dear Ms X,

Regulation 2021/2303, which entered into force at the beginning of this year, expanded the mandate of the European Union Agency for Asylum. The Agency has gained powers that will significantly increase its involvement in decision making on asylum by national authorities and lead to an increase in direct contacts between the Agency and individuals concerned by its actions. These new powers also come with enhanced fundamental rights obligations and raise questions as to how the Agency will comply with these obligations and ensure accountability for its actions.

Regulation 2021/2303 also provides for fundamental rights safeguards similar to those included in Regulation 2019/1896 on the European Border and Coast Guard (Frontex). As you may be aware, I have looked into how Frontex gives effect to these safeguards in two separate own-initiative inquiries.[1]

I decided to launch this initiative in order to verify that the European Union Agency for Asylum has sufficiently anticipated challenges relating to accountability and its fundamental rights obligations deriving from its expanded mandate. By doing so, I hope to also draw your attention to issues that enable you to give full and meaningful effect to these obligations.

The initiative will focus on: (i) the Agency’s monitoring mechanism, which will partly enter into force at the end of 2023; (ii) the Agency’s engagement with non-EU countries (for example, how it collects of information about countries of origin); and (iii) the complaints mechanism and fundamental rights officer.

I would appreciate if the Agency could reply by the end of October 2022 to the questions set out in the annex to this letter.

I would like to publish the Agency’s reply (with confidential information withheld) on my website. I may also give interested stakeholders the opportunity to make observations on that reply.

Should you require any further information or clarifications concerning this initiative, please do not hesitate to contact the Principal adviser on Charter compliance, who is responsible for the inquiry. If the Agency so prefers, a meeting can be set up to discuss the initiative and share any relevant information.

Yours sincerely,

 

Emily O'Reilly

European Ombudsman

Strasbourg, 11/07/2022

 

Enclosure: Questions for the European Union Agency for Asylum

 

[1] See: OI/5/2020/MHZ (https://www.ombudsman.europa.eu/en/case/en/57955) and OI/4/2021/MHZ (https://www.ombudsman.europa.eu/en/decision/en/151369)

 

Annex

Questions for the European Union Agency for Asylum

1) Has the European Union Agency for Asylum already drafted a proposal on the procedure for monitoring the operational and technical application of EU legal obligations by the Member States? 

2) Has the Agency considered including, as part of this monitoring, unannounced on-site visits by expert teams to ensure meaningful qualitative and quantitative assessment?

3) Are detention practices, legal assistance and resettlement included as topics for assessment?

4) Beyond information provided by national authorities, on what information will the Agency rely for its assessment? Could the assessment systematically incorporate the views, experiences and assessments of national ombudsmen and other human rights monitoring bodies, which often have direct roles vis-a-vis asylum seekers and refugees?

5) Does the Agency foresee a possibility for individuals present on the territory of the Member State under assessment (either EU citizens or non-EU nationals) to submit complaints to the Agency or its liaison officer about non-compliance with EU asylum law by the Member State in question? If yes, could the Agency take inspiration from the Commission’s rules on interacting with EU citizens who complain about infringements of EU law?[1]

6) How will the Agency ensure the impartiality of its analysis concerning countries of origin?

7) Has the Agency considered setting up a panel of independent experts to contribute to this analysis?

8) How will the Agency cooperate with its Consultative Forum in this respect?

9) How does the Agency interpret its task of facilitating operational cooperation between Member States and non-EU countries including with regard to the protection of fundamental rights (preamble point 38 and Article 35 of Regulation 2021/2303)?

10) What methodology will the Agency apply to assess the human rights situation in non-EU countries and under what circumstances would it deem that the situation in a country is such that it cannot deploy a liaison officer to that country?

11) When does the Agency anticipate that the fundamental rights officer will become operational?

12) Where there are alleged fundamental rights violations by experts on the Asylum Support Teams who are not staff members of the Agency or national authorities, how will this be investigated?

13) When does the Agency expect to adopt the Fundamental Rights Strategy, as required under Regulation 2021/2303?

14) Where Agency-led ‘asylum support teams’ participate in EU ‘migration management support teams’[2], will they have a dedicated code of contact? If so, when does the Agency expect to adopt this code and will it differ from the code of conduct applied by the European Border and Coast Guard Agency (Frontex) for all participants in its operations?

15) Is the Agency aware of suggestions made by the European Ombudsman to Frontex, concerning its complaints mechanism? If so, has the Agency taken these into account in reflections on drafting its own implementing rules?

16) Based on what criteria will the Agency decide to suspend or terminate the deployment of asylum support teams (in line with article 19.6(c) of Regulation 2021/2303)? Is the Agency aware of the suggestions made by the European Ombudsman to Frontex concerning transparency around such deliberations and decisions and what information to take into account? If so, has the Agency taken these into account in reflections on drafting its own implementing rules?

 

[1] https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv%3AOJ.C_.2017.018.01.0010.01.ENG&toc=OJ%3AC%3A2017%3A018%3ATOC

Annex to the Commission’s Communication ‘Better results through better application’.

[2] Migration management support teams are composed of staff from the EUAA, Frontex and possibly other agencies (such as Europol and/or the EU Fundamental Rights Agency). They provide support to Member State authorities in the hotspots. https://ec.europa.eu/home-affairs/pages/glossary/migration-management-support-team_en