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Joint police operation Amberlight: critics miss the real questions

On April 1st, EU Member States launched a two-week joint police operation (JPO), codenamed “Amberlight”, under the aegis of the Latvian EU Council Presidency. These specific operations, that are meant to tackle illegal immigration, received harsh criticism from fundamental rights and migrant groups in the past. Amberlight, however, is of a different nature. Caught in their usual oppositional attitude, critics risk missing the real questions.

Cross-border cooperation between the police forces of EU Member States is traditionally of a strong intergovernmental nature and very much a Member States’ affair. One expression of this intergovernmental tradition is the series of joint police operations that take place once during (almost) every term of the rotating Council presidency and that specifically target the fight against illegal immigration and the organised smuggle of human beings. Measures like JPO APHRODITE (Cyprus, 2012) or PERKUNAS (Lithuania, 2013) are agreed within the Council working groups and coordinated by the interior ministry of the presidency. Participation of EU Member States and Schengen Associated Countries is voluntary, while EU agencies can support the operations within the limits of their mandates. Measures are conducted on the basis of the national law of the participating states. The involvement of the supranational institutions is limited – the Commission is kept informed, the European Parliament has no role. In other words, such operations have a clear European dimension, but planning and implementation is firmly in the hands of Member States.

Controlling irregular migratory movements in a border free zone
The JPO’s stated aim is to monitor, collect data and create intelligence on irregular migratory flows into and within the EU to allow for an EU-wide situational picture of migratory routes and practices of smuggling networks. The largest of its kind so far was JPO MOS MAIORUM implemented by the Italian Presidency in autumn 2014. During this operation the police and border control authorities of 26 EU Member States and Switzerland conducted checks in selected locations within the participating countries – usually along the former internal Schengen borders, e.g. on cross border trains and train stations, motorways – as well as at the external borders (air, land, and maritime). In the framework of MOS MAIORUM more than 19. 000 migrants and refugees were intercepted across the EU.

In a broader picture these operations can be seen as one instrument in a growing tool box through which Member States attempt to control migratory movements in the border free Schengen area. They have increasingly come under criticism for a number of reasons:

•    Racial profiling: fundamental rights and migrant organisations criticise the JPOs for promoting (the illegal because discriminatory practice of) racial profiling. Legal complaints against racial profiling during police checks and against the underlying national laws have increased in recent years in Member States. In Germany or the UK, for example, they spurred intense and ongoing legal debates. As many critics have pointed out, it is hard to see how racial profiling, i.e. the targeting of individuals based on their race or ethnicity, can be avoided in the context of spot checks that specifically aim to identify illegal immigrants.

•    Criminalisation of refugees: The JPOs can be seen as yet another instance of criminalising this vulnerable group, which weighs even harder in times when the number of people in need of protection is constantly on the rise. And indeed more than half of the people intercepted during MOS MAIORUM come from the most crisis-prone countries such as from Syria (adjusted total protection rate of 100 % in Germany), Eritrea (98 %), Iraq (99%), or Somalia (76%) and have high chances of being granted asylum in many EU Member States.

•    Legality: Police checks for immigration purposes in the vicinity of internal Schengen borders easily risk being in conflict with the principle of free movement. The Schengen Borders Code does allow for checks, but only as far as they do not develop an effect similar to border controls. The ECJ has specified these rules, but there remains room for interpretation with regard to the respective national measures. The checks of German authorities along the German-Czech border, for example, have become systematic to a degree that might be hard to bring in line with the Schengen rules. It is mainly within these regular police activities that, in the German case, information for JPOs like MOS MAIORUM are gathered (rather than through additional measures).

•    Effectiveness
: A big question mark remains whether the JPOs are worth the effort at all. For an EU-wide situational picture the added value of the analysis on migratory movements and smuggling networks presented in the (public versions) of the final reports seems low compared to the intelligence that should already be available through Frontex and Member States’ authorities. Equally, the methodological approach casts doubts on, to name just one issue, the comparability of data within and between operations.

•    Transparency: Given their intergovernmental set-up, detailed and meaningful information on the JPOs is hard to get (the final reports on the JPOs certainly do not qualify as such). In the best case clever members of national parliaments obtain briefings from their government on the national actions, but not on the European dimension and collective out-come of the JPO. It goes without saying that this is problematic in terms of democratic legitimacy and accountability.

Opportunity Amberlight: pushing smart borders back onto the public radar
Against this background, the early and harsh public criticism directed at the new JPO Amberlight seems more than justified. And yet, most opponents miss a crucial point: Amberlight pursues a goal distinctly different from previous JPOs. Above all it aims to check travellers upon leaving the EU and to gather data on people who overstay their visa. In this sense it is part of Member States’ preparations for the long-discussed “Entry Exit System” at the EU’s external borders. The system is at the heart of the so called “Smart Borders Package” that, if implemented, would equal a quantum leap in the management of the EU’s external borders towards fully automatic controls based on biometric identifiers and newest technology. This highly controversial project is in essence about setting up a large-scale information system that registers and monitors every third country national entering and leaving the EU – which amounts to blanket retention of private data of millions of travellers. It has a twofold aim: to identify visa “overstayers” and to access the data for law enforcement purposes in the fight against crime and terrorism. The added value of the former aim for the regulation of migration is already questionable. But more importantly, the second aim is extremely sensitive from a fundamental rights point of view.

During the past years, this flagship project of EU home affairs slipped from the public and political radar in many Member States. Preparations have nevertheless been going on. The Commission recently initiated a pilot project testing such a system and revised legislative proposals in the making – all of which brings the EU a step closer towards realising the Smart Borders concept. The discussions on Amberlight are an important chance to refocus public attention on this contested project. It would be a wasted opportunity if critics of the joint police operations get caught in their usual rhetoric and fail to ask the actually important questions.

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