An emergency at sea in May this year shows how Maltese authorities lets unseaworthy boats pass unrescued so that refugees are taken on board much later by neighbouring Italy or drown. Frontex’s acting Fundamental Rights Officer has clearer words for this than his predecessor.

Since 2017, the Warsaw-based European Union border agency is monitoring the migration route in the central Mediterranean Sea with specially leased planes. Meanwhile, the service is supported by two large drones from Malta and Crete. The deployment of the aircraft opens a backdoor for refoulement in violation of international law: Frontex takes over the aerial surveillance for the Tripoli coast guard, so that they take the discovered refugees back to Libya. This even happens regularly when boats are in Malta’s sea rescue zone.

Jonas Grimheden, the Fundamental Rights Officer at Frontex, has strong words for this practice. This is what it says in a “Serious Incident Report” that the agency had to release in response to my Freedom of Information request. According to this, Frontex employees lack criteria for classifying when a boat must be rescued immediately by units in the vicinity. The border agency is therefore to start a “dialogue” on definitions of vessels in distress with Malta, which is also criticised in the report for its inaction.

Malta does not rescue boat in distress

A “Serious Incident Report” is the preliminary stage of an investigation and can be initiated by any Frontex official if there is a suspicion of a breach of Frontex regulation or international conventions. This document relates to a maritime emergency that occurred during the night of 12-13 May this year.

The aircraft “Eagle 1”, operating within the framework of the Multi-Purpose Air Surveillance Service (MAS) on behalf of Frontex, had spotted a wooden boat with 24 occupants and reported it to the responsible rescue control centre in Malta. The nearby oil tanker “Ross Sea” could have taken the people on board, but was ordered by the Maltese coast guard to wait.

This is what the sea rescue organisation Sea-Eye reported on Twitter after its ship “Sea-Eye 4” made contact with the Singapore-flagged tanker and set course for the wooden boat. The refugees were then taken on board by the private rescuers. According to the people on board, they had already been on the water for four days.

Grimheden’s office does not confirm this in the report due to lack of knowledge, but assumes at least two days: On 11 May, the occupants of the boat had already asked the Italian Maritime Rescue Centre to rescue them.

Coast guard must check condition of boat occupants

Malta is known for allowing refugees to continue their journey towards Italy regardless of their condition – as long as the boats’ engines are still working. In such cases, the Maltese Coast Guard considers the Maritime Distress Control Centre in Italy to be responsible. The “Serious Incident Report” criticises this inaction and demands that authorities in such cases “take immediate action to coordinate the rescue”.

A similar situation, in which Malta failed to rescue 400 refugees from a sinking boat, led to one of the largest boat accidents in the Mediterranean in 2013, in which more than half of the occupants drowned. This led to the launch of the first Frontex mission in the central Mediterranean a year later. In the beginning, it was still equipped with ships.

In the meantime, Frontex is only observing there from the air. Flights take place mainly in the Libyan sea rescue zone. On their way to this area of operations, which is far from the EU’s external borders, Frontex’s planes and drones also cross the zones for which Italy or Malta are responsible.

Malta retreats to the position that not all boats in its sea rescue zone are actually in distress, as they are still manoeuvrable. However, the coast guard often does not check this on the spot. The state of health of the refugees or the presence of children can also be decisive for the existence of an emergency. This is also regulated by conventions such as the International Convention for the Safety of Life at Sea.

Malta denies accusations

Grimheden also refers to this. His office is “in general” of the opinion that national authorities, when assessing the urgency of a case, “must factor in the conditions and health of migrants when assessing the urgency of a case/level of distress in addition to criteria pertaining to the sea-worthiness of the boat”. Any risk of loss of life must therefore be excluded”.

“Those responsible know very well from their many years of responsibility that the people on board do not have seaworthy boats, the necessary nautical knowledge or the tools it takes to cross the Mediterranean safely,” also says Gorden Isler, chairman of the sea rescue organisation Sea-Eye, referring to the Maltese coast guard.

For the “Serious Incident Report”, Malta was also asked for a statement. The response states that allegations of boats “boats sinking, being left adrift or hindering rescue are false”. Moreover, the Maltese authorities believe that “the Fundamental Rights Office or Frontex” do not have the right to even ask questions about this.

Nevertheless, Grimheden calls on the authorities in Malta to become more transparent in search and rescue operations related to Frontex sightings. Especially in the case of serious incidents, the authorities should cooperate more. To his office, Malta had even given false information about the 12/13 May sea emergency.

Frontex reported 433 cases of distress at sea

The Frontex Regulation, which was renewed in 2019, gives the agency significantly more capabilities and competences, which were also supposed to be accompanied by an upgrade of fundamental rights monitoring. However, this was delayed by the then director Fabrice Leggeri. It was only after numerous media reports on the agency’s involvement in human rights violations, and in response to public pressure, that the EU member states in the Frontex Management Board launched a “Fundamental Rights Strategy”.

Air surveillance is also mentioned in an associated “Action Plan”. According to this, any distress must be reported to the competent Maritime Rescue Coordination Centre. If a boat needs immediate assistance, a radio distress call must be made to all nearby ships and aircraft.

Only recently, Frontex assured in its answer to a parliamentary question that it would adhere to this requirement. According to this, the assessment of a maritime emergency is carried out in accordance with the relevant international conventions. In 2021, Frontex wants to have classified 433 cases involving 22,696 persons as “search and rescue operations” and reported them to the competent sea rescue coordination centres.

Observations in the “Surveillance Room”

Frontex remains vague on the question of whether the Maltese coast guard, in the agency’s view, allows unseaworthy boats to pass through its sea rescue zone without taking the necessary measures to rescue them. As of the end of July, however, three “Serious Incident Reports” had been initiated on such cases.

It is probably thanks to Grimheden that his office has also been monitoring Frontex’s air surveillance for a year. The possible violations of fundamental rights by the air service are thus documented just as closely as this is done for the individual EU member states. According to the annual report for 2021, four staff members are now responsible for this.

The observers are also present during missions of the aircraft and drones in the “Surveillance Room” of the Multi-Purpose Aerial Surveillance Service. In the first four months of last year, five reports of “serious incidents” were made, but two of them are already closed.

Fundamental Rights Office remains toothless

Nothing is known about the outcome of the reports or any consequences after the end of the investigations. In any case, the Office of the Fundamental Rights Officer is toothless; at best, his office can advise and make recommendations.

After taking office, Grimheden complained in the Euobserver magazine that the agency ignores his advice. To MEPs, the Fundamental Rights Officer had previously stated that Frontex “could be seen as being implicated or supportive of fundamental rights violations” in some member states. Again, this is a different tone than Grimheden’s predecessor was known for.

“His office is misconstrued,” Arne Semsrott of the transparency organisation Ask the State, which once evaluated 600 “Serious Incident Reports” from Frontex, explains when asked by netzpolitik.org. “If the EU were genuinely concerned about fundamental rights at its external borders, the Fundamental Rights Officer would have to become autonomous and be given the power to intervene in Frontex’s work in the event of misconduct”.

Image: Photo of the EU border agency’s Multi-Purpose Aerial Surveillance Service (Frontex).