Research Papers

This paper analyses the development paths and ways of working of three EU Home Affairs agencies: Frontex, Europol and the European Asylum Support Office (EASO). Particular attention is also given to those tasks and forms of inter-agency cooperation raising sensitivities in the scope of migration controls, in particular those taking place at maritime external borders or ‘extraterritorially’ as well as to the processing and exchange of data. We demonstrate how some of the activities carried out by these agencies negatively affect foundational EU principles and rights, primarily those flowing from the EU Charter of Fundamental Rights which should now, after the entry into force of the Lisbon Treaty, be fully respected by EU Agencies. As we argue, their specific Home Affairs nature, such as their ‘experimental governance’ strategies, poses specific challenges to individuals on the move, most notably to their right to an effective remedy. Concerns over balancing accountability, autonomy and delegation have dominated the debate on EU agencies, both in political and legal scholarship. We argue that this academic paradigm may not be appropriate for the analysis of the Home Affairs Agencies as their ‘autonomy’ impacts on the basic rights of individuals; here accountability is an absolute requirement as it is about ensuring human rights. This paper thus identifies a number of commonly shared factors and shortcomings of the Home Affairs Agencies. These factors are central to understand the current barriers that individuals on the move might face when becoming claimants of fundamental rights and attempt to gain access to justice against illiberal practices by these actors. Three cross-cutting issues are discussed: the problematic nature and development of their de jure competences and their de facto activities, their Home Affairs focus and the impact of all this on accountability, especially in light of judicial review.