It has become much more difficult for Member States of the European Union since the end of 2023 to combat human smuggling – and thus migration. This is the result of a much narrower interpretation of privacy rules by Frontex, the organization that monitors Europe's external borders.
The information that (boat) migrants share with employees of these organizations immediately after arrival in Europe is no longer freely available for investigation purposes since the end of 2023. Frontex confirms this after questions from NRC.
The restriction of information exchange is causing great dissatisfaction among the Dutch Public Prosecution Service. “The impossibility to share testimonies is at odds with the EU ambition to get a grip on migration,” the Public Prosecution Service said in a response.
The dissatisfaction with the change of course comes at a sensitive time with European elections approaching and a cabinet formation in which limiting migration is an important topic.
In her annual State of the European Union address on September 13, 2023, Commission President Ursula von der Leyen emphatically addressed the danger of human smuggling for Europe and the many victims. “It's time to put an end to this heartless crime!”
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Tackling migration is a “continuous” process, she said, “and nowhere is it more important than in the fight against human smugglers.” The methods of these criminals are constantly changing, Von der Leyen said. This is in contrast to the legislation to combat smuggling. “It is twenty years old and needs an update quickly.”
According to Von der Leyen, in the fight against human trafficking there is a need for “stronger law enforcement, prosecution and a more prominent role for agencies such as Frontex.” She said close cooperation is needed to “tackle the global scourge of human trafficking.”
Empty hands
For years, Frontex shared the information it had collected, often in collaboration with the border guards of 'frontline countries' such as Italy and Spain, after conversations with newly arrived refugees. These potentially contain a wealth of starting points for investigative authorities: the route taken, working methods, payments and personal information about accomplices. Especially because these conversations take place immediately after arrival, when the experiences are still fresh. In technical jargon: the “golden hour”.
Since the end of 2023, Frontex will no longer make this data available to European investigative authorities without restriction, the organization decided after receiving advice from the European privacy watchdog. The European Data Protection Supervisor believes that there is no legal basis for this exchange. Frontex, led by the Dutchman Hans Leijtens, took over the advice. “We come from a time when literally tons of data was shared. But that's really not possible anymore. Nowadays the quantities are so large and so easy to share that we have to deal with them professionally,” says Leijtens in an explanation. “I take that responsibility.”
Moreover, he says, it is important to realize that the basis for the interviews is voluntary. “Before people enter an asylum procedure, we as Frontex have the opportunity to question them. They are not suspects, but often victims.”
Leijtens emphasizes that his organization will continue to use the interviews to “better understand the phenomenon of human trafficking and smuggling” and to help member states in combating it. “What is changing is that investigative authorities can no longer derive their research question from our data. They can, if there are specific suspicions, ask for specific information. We will answer that as best we can.”
A complicating factor for investigative authorities is that the data, depending on the type of information, is definitively anonymized or destroyed after a maximum of ninety days. “This means that crucial information is not available for the investigation of migration crime,” the Public Prosecution Service says. “Then we will be left empty-handed.”
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Leijtens, who was head of the military police for many years, disagrees with that criticism. “That is too simple and in the category: if you have nothing to hide, why are you being so difficult?” He says he knows “from experience” that the idea 'give us everything and we will see what we do with it' is “popular” with investigative authorities. What needs to change, he believes, is the way of thinking. “The credo is no longer nice to have, but need to have.”
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