A Syrian refugee has lost a landmark case against the EU’s border protection agency, Frontex, after he and his family were forcibly deported from Greece before his asylum application was processed.
The ruling is seen as a major blow to efforts to make the operations of Frontex in Greece and other countries more transparent and accountable to the member states who employ them.
The Syrian man, his wife and four small children made the perilous journey via people-smugglers from war-torn Aleppo to Greece in 2016 but 11 days after making landfall they were flown to Turkey by Frontex.
The European court of justice dismissed his claim, noting that Frontex was not an agency responsible for asylum processes.
“Since Frontex does not have the power to assess the merits of return decisions or applications for international protection, that EU agency cannot be held liable for any damage related to the return of those refugees to [Turkey],” the court in Luxembourg ruled.
In 2016, the man and his family of young children ranging from one to seven years old, arrived by boat on the Greek island of Milos. After having been transferred to the island of Leros, they expressed their desire to lodge an application for international protection. However, after a joint return operation carried out by the European Border and Coast Guard Agency (Frontex) and Greece, they were transferred to Turkey. From there, they went to Iraq, where they have resided ever since, the court noted.
His case was brought by the Amsterdam lawyers Prakken d’Oliveira and supported by the Dutch Council for Refugees, the campaign group BKB, Sea-Watch Legal Aid Fund and Jungle Minds.
They said he had been a victim of a “pushback” by the Greeks and alleged that Frontex had both 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.
On his behalf they sought €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.
They took three years to get the documentary evidence of what happened from Frontex.
The court ruled that Frontex’s task was to provide only technical and operational support to the member states.
“It is the member states alone that are competent to assess the merits of return decisions and to examine applications for international protection,” it said in a statement.
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.
“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,” she said.
She said: “The EU’s institutions as well as the member states should be appalled by the prospect of what is going on and call a stop to it.
“It should also take responsibility and ensure pushbacks do not happen. However, up to now pushbacks have been tolerated. This should no longer be the case in a union based on the rule of law.”
“Frontex is an agency with great power over the lives of individuals. Power should always be accompanied by accountability,” she added.
In a statement Prakken d’Oliveira said article 34 of the Frontex regulation 2016/1624 stated that the agency was required to establish “an effective mechanism to monitor the respect for fundamental rights in all the activities of the agency”.
“The ruling does not make clear what this means in practice,” the lawyers said. “It remains unclear in what way Frontex is required to carry out its monitoring task.”
Responding to the judgment, Frontex suggested it had changed its policies, writing on X that the agency “now mandates member states to confirm that individuals have received enforceable return decisions, had the chance to seek international protection and their applications were properly processed in line with EU laws and international norms”.
Its executive director, Hans Leijtens, added in a post: “When things can be done better than in the past, we’re always ready to improve.”
The family are considering an appeal.
