Exclusive: Fears of ‘another Frontex’ as anti-fraud watchdog investigates EU asylum agency

The EU’s asylum agency is being investigated by the bloc’s anti-fraud watchdog, Solomon has learnt, following claims of serious mismanagement and neglect of human rights obligations.
November 28, 2022
Exclusive: Fears of ‘another Frontex’ as anti-fraud watchdog investigates EU asylum agency
The EU’s asylum agency is being investigated by the bloc’s anti-fraud watchdog, Solomon has learnt, following claims of serious mismanagement and neglect of human rights obligations.
November 28, 2022

The allegations against the European Union Asylum Agency (EUAA) carry echoes of the scandal that engulfed Frontex, the EU border agency, prompting the resignation of its director earlier this year.

The latest claims suggest serious governance and accountability issues are becoming endemic to the agencies tasked with implementing EU policy towards refugees and migrants. These internal, organisational issues are once again accompanied by an alleged failure to react to human rights violations at the bloc’s borders.

Documents seen by Solomon indicate that the agency is failing to follow up on reports of the mistreatment of asylum seekers, by adopting an excessively narrow interpretation of its obligations in such situations. Separately, the Financial Times newspaper reported in September that the leadership of the EUAA had been accused of nepotism, the “fraudulent use of EU funds”, and the mishandling of harassment claims, in a  complaint filed by employees of the agency.

The EU’s anti-fraud watchdog, Olaf, has now confirmed to Solomon that it has launched an investigation into the EUAA, after completing an initial assessment of the allegations. The decision indicates that Olaf has concluded that there are adequate grounds to suspect serious misconduct at the EUAA.

A statement by the Olaf press office said no further comment could be made in order to protect the integrity of the “ongoing” investigation. The statement emphasised that the decision to open an investigation did not imply that any persons or entities were responsible for irregularity or fraud. “OLAF fully respects the presumption of innocence,” the press office said.

The EUAA has rejected the allegations against it as “selective” and “verifiably false”. In a written response to Solomon, the EUAA also cast doubts on the motives of the employees who had filed the complaint, accusing them of privacy violations. “The fact that they chose a public setting [to express their concerns] instead of making use of dedicated whiste-blowing channels, appears to speak to intent,” the e-mailed response said.

‘Some of these agencies behave like little empires’

The Malta-headquartered EUAA is led by Executive Director Nina Gregori, a former interior ministry official from Slovenia. She was appointed in 2019, with the expectation that she would overhaul the agency’s reputation after her predecessor resigned amid harassment claims and an OLAF investigation.

The agency was re-branded in January and given a reinforced mandate to support its core mission of harmonising the management of asylum claims across the EU. It employs some 2,000 people, and has satellite offices in Italy, Greece, Cyprus, Spain, Lithuania and Latvia. With an annual budget of around 180 million euros, it is also ballooning into one of the larger EU agencies.

 Photo: EUAA’s estimated revenues for the years 2021-2025.

 

The launch of the investigation follows a steady stream of complaints against Gregori and her team. An anonymous letter submitted to OLAF in September accused the EUAA leadership of setting up “a complex system of legal structures and controls that give an appearance of compliance and regularity but that, in reality, hide and cover” its irregularities. The letter’s authors said they were worried about “irreversible” damage to the agency’s reputation, “particularly after what has happened with Frontex” – a reference to the long-running scandal that eventually culminated in the resignation of the border agency’s executive director, Fabrice Leggeri, in April.

The border agency was investigated by Olaf after its leadership was accused of fostering a toxic workplace culture and turning a blind eye to “pushbacks” – the illegal practice of forcing asylum seekers to return across a frontier they have just crossed.

The extent of mismanagement uncovered by the Olaf report went far beyond what officials at the EU’s executive body, the European Commission, had initially played down as exceptional incidents blamed on a few rotten apples. The report instead revealed systemic governance failures, exacerbated by an absence of effective checks and balances within the EU’s institutional structure.

“We have more and more EU agencies, some of them geographically isolated, and a lot of staff working under fixed term contracts and precarious conditions,” said Nicolas Mavraganis, the president of Union Syndicale Federale (USF), an umbrella trade union body representing thousands of people working in European and international institutions. While misconduct and irregularities were not the norm, he said, “some of these agencies behave like little empires”.

Mavraganis told Solomon that the USF has been receiving allegations of mismanagement and other irregularities at the EUAA. “If these allegations are true, we are in a big mess,” he said. “It’s going to be a huge problem for European governance. This is why they need to be investigated immediately.”

Mavraganis said he had passed on his concerns to the EUAA during the summer, along with an offer to meet Gregori in person. Gregori responded in a letter that she took the allegations very seriously, but would refrain from further action until she had received more concrete information “on the nature and origin of such claims”.

Mavraganis said the response seemed to return the ball to his court – by expecting him to disclose sensitive details about the allegations. “This practically meant passing on the information of people that had approached us in confidence, asking us to protect their identity,” he said. “The answer I got was the work of a very good spin doctor.”

Just like ‘what Frontex does all the time’

The EUAA’s approach to its human rights obligations has also invited troubling comparisons with Frontex. In August, the agency was asked to reveal what action it had taken over specific claims that asylum-seekers had been subject to pushbacks from Greece to Turkey – treatment that amounted to a violation of their basic human rights.

The claims had formed part of the testimony provided by five asylum seekers – in the presence of agency personnel –  during the course of their asylum interviews. The transcripts of the interviews were seen by lawyers from Refugee Support Aegean, an organisation that provides legal aid to asylum seekers in Greece.

Two lawyers from the organisation, Minos Mouzourakis and Marianna Tzerferakou, wrote to the EUAA, asking it to explain how it had followed up on the reported pushbacks. In a written response, Executive Director Nina Gregori said following up such reports was “outside of the scope of the Code of Conduct and related incident Report Mechanism”. In other words, the agency believes it has no mandate to take further action over reported pushbacks.

The agency’s legal and operational rules refer to its obligations to guarantee and promote “fundamental rights” and to “exercise zero tolerance with respect to the infringement of fundamental human rights”.

In practice, the EUAA is arguing that these obligations only arise within a tightly defined context that excludes pushbacks and border control. In an e-mail to Solomon, spokesperson Anis Cassar said the agency’s personnel were obliged to “report fundamental rights violations if they take place”, but emphasised that “this only applies to the activities of the Agency’s operations”.

While access to asylum was a fundamental right, he said, “it is likewise absolutely clear that border control – and therefore potential pushbacks – falls under the mandate of Frontex. The EUAA has no competence in border control.”

However, experts in EU law have questioned the agency’s interpretation of its mandate. Melanie Fink, an assistant professor of EU law at the University of Leiden, says the agency seems to be holding a very simplistic position by limiting its responsibility to the terms defined in its founding regulations, while ignoring additional obligations created by over-arching EU human rights laws.

“Their legal obligation does not stem only from their founding regulation,” Fink told Solomon. “The entirety of EU law and the EU Charter of Fundamental Rights applies, and they are bound by it. These include positive obligations to react to fundamental rights violations”.

While the EUAA is indeed limited in what it can do, Fink said it has an obligation “to at least follow up” where there is “credible and recurrent evidence” of violations. “The moment a public authority gains knowledge about violations an obligation arises,” she said. “They have to do whatever is within their powers to prevent or mitigate the violations.”

Fink said the EUAA seems to be narrowing the scope of its human rights obligations by sticking to the bare legal minimum required of it, rather than following principle – an approach that echoes “what Frontex does all the time”.

Solomon asked the EUAA if it had ever passed information about pushbacks to Frontex. In response, the agency said its operations did “not include Frontex, and our activities and reporting lines are therefore distinct from theirs.”

The EUAA is currently recruiting an officer to oversee its compliance with its human rights obligations. It is also expected to create a complaints mechanism similar to the one in place at Frontex.

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