Introduction

Abstract

One of the key instruments framing cooperation between the European Union (EU) and third countries for purposes of expelling irregular third-country nationals are the EU Readmission Agreements (EURAs).

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One of the key instruments framing cooperation between the European Union (EU) and third countries for purposes of expelling irregular third-country nationals are the EU Readmission Agreements (EURAs). These are international agreements laying down common administrative rules and conditions for the ‘readmission’ of nationals,¹ third country nationals (TCNs) and stateless persons either to their country of origin or to a country through which they entered or transited on route to the EU. During the last 16 years, and as of May 2016, the EU has concluded 17 EURAs with various non-EU countries.

EURAs constitute a “vital component” in the wider external migration law and policy.² Enhancing cooperation with third countries of origin and transit in the field of readmission has been reconfirmed as a policy priority in the external dimensions of the 2015 European Migration Agenda³ and the subsequent EU Action Plan on Return.⁴ Readmission is officially framed as an ‘essential’ instrument in increasing return and ensuring the success of EU expulsions policies. The European Commission argues that current expulsion systems are ‘ineffective’, based on the rates of successful returns of third-country nationals issued a removal order. EURAs are deemed to play a key role in increasing the enforcement of removal orders of irregular immigrants. Contrary to their intended goal, it is unclear what value the EURAs contribute in facilitating or increasing the expulsion rates of irregular migrants. Little is known about their operability, uses and effects on the ground.

The adoption and practical implementation of EURAs have faced a series of multi-faceted challenges and criticism of their effectiveness as a tool in the management of migration. EU policy documents have consistently highlighted the obstacles that have impeded the negotiations of EURAs. The academic literature has deeply examined the origins of these legal competence dilemmas and challenges to the rights of both asylum-seekers and refugees and their difficult cohabitation with formal and informal bilateral readmission arrangements with third countries.⁵ The scholarly discussion has also focused on the place of EURAs in the so-called ‘external dimensions of EU migration policies’, and the development of accompanying incentives and conditions by the EU in light of third-country hesitation or lack of interest to cooperate on readmission deals with the Union.⁶ Less attention has been paid to the actual reasons why people cannot be expelled in the scope of ‘readmission’ practices, in particular when it comes to own nationals of the third countries concerned, and what do the most relevant practical and legal barriers behind the implementation of already concluded EURAs tell us about the legitimacy and value added of EU readmission policy.

EURAs generally lay down common operational procedures and administrative rules for ‘swiftly’ identifying ‘migrants to be readmitted’ and issuing the necessary travel documents (laissez-passer) for their expulsion. Still, the “identification of migrants and delivery of travel documents for their return” has been signalled as one of the most common obstacles affecting the operability of EU readmission practices.⁷ A fundamental condition for the EURAs expulsion model to be operational is the success in the procedure for determining ‘who is the person’ found to be irregularly entering or present in the EU’s territory and the legality of such an expulsion once that identity is determined in light of EU law and fundamental rights standards. The identification of the nationality of that person represents the fundamental premise for any readmission regime to function. Determining who the person is and her/his identity constitutes the sine qua non for unlocking readmission.

EURAs lay down a common list of documents aimed at facilitating the proof or presuming the determination of nationality of the person to be readmitted between the signatory third country and the EU for the purposes of the EURA. Much attention has been paid to the challenges posed by the inclusion of third country nationals and stateless persons transiting these countries clauses in EURAs. Not enough attention has been given in the literature to implementation challenges of EURAs when it comes to own nationals. This is despite the fact that the process of determining the individual’s identity has proven to be one of the most controversial aspects in the implementation of EURAs, which we call the identity determination challenge. This challenge is of particular relevance with respect to cooperation with third countries which are not geographically adjacent to an EU Member State. EURAs have foreseen procedures for readmitting those not qualifying as nationals (i.e. TCNs). Yet the main criterion for readmitting TCNs—i.e. irregularly and directly entering EU’s territory—will be more difficult or even impossible to meet for countries that are not closely located in the EU’s neighbourhood.

This book aims to close that knowledge gap by examining the implementation dynamics and obstacles affecting the readmission of nationals to their countries of origin in the scope of EURAs.⁸ There have been several instances where sharp disagreements have emerged between EU Member States and third countries that have concluded a EURA as to whether the persons to be readmitted are own nationals. Why can nationals not be returned to their own state of origin? What is referred to in EU documents as the unwillingness of countries of origin to readmit or repatriate their own nationals often hides a deeper disagreement between the states concerned as to whether the person(s) involved are or are not nationals of the assigned country of origin.

Identifying who is whose national by EU Member States’ authorities in the context of readmission opens up a whole series of existential dilemmas: first from the perspective of the sovereignty of third countries of (alleged) origin and the legal standards laid down in international legal instruments as regards states’ powers in determining nationality, and second regarding the agency of the individual as a citizen and as a holder of fundamental human rights. This process raises several important questions: Who is a national of ‘whose’ country? What are the procedures through which someone’s nationality is determined and who is entitled to take that decision in light of international standards? What rights do individuals possess and which ones might prevent the enforcement of an expulsion order?

The outcomes of any identification process in the context of expulsions are in turn intimately linked to other impediments to removal that are related to the set of rights and procedural safeguards ascribed to the administrative status of the person concerned. In fact, these impediments constitute essential rule of law guarantees now formally enshrined in EU citizenship and migration law as well as the EU Charter of Fundamental Rights. They relate to effective remedies against removal decisions, proportionality tests and fundamental rights standards in cases of humanitarian considerations or other personal and family reasons which, irrespective of the individual’s identity, de jure or de facto make her/him ‘non-removable’ or non-expellable from a given country of residence.

This book argues that the challenges affecting the identification procedures laid down in EURAs reveal one of the ‘weakest links’ affecting the effectiveness of EU readmission policies. First, they pose a profound test to the sovereignty of the third country and international law standards in determining who is a national of which country; and second, they blur individuals’ agency as holders of fundamental human rights and freedoms. The understanding of operational effectiveness in readmission policies from the perspective of increasing expulsion rates is inconsistent with international legal standards framing inter-state relations and the rights of individuals subject to expulsion practices.

The book starts by setting the scene in EU readmission policy. Chapter 2 examines the ways in which the European Commission and the Member States currently frame the effectiveness of EU return policies on the basis of ‘successful returns’ rates, and the policy and legislative initiatives which have been advanced to increase the number of expulsions. Chapter 3 assesses existing knowledge regarding the role played by travel documents and identity determination as obstacles preventing the person to be expelled or readmitted to her/his country of origin. The chapter illustrates the challenges in determining identity on the basis of two recent practical examples: (i) the quasi-suspension of the EURA with Pakistan in light of the so-called ‘European Refugee crisis’ and (ii) the UK Supreme Court judgment in Pham v. Secretary of State for the Home Department.

Chapter 4 studies the administrative procedures and common rules envisaged by EURAs aimed at ensuring a swift identification or ‘identity determination’ of the nationality of the persons to be readmitted to their country of origin. It focuses on the ways in which nationality is to be determined or presumed in the scope of the 2010 EURA with Pakistan, and compares it with those foreseen in the five EURAs that have been concluded since with Armenia, Azerbaijan, Cape Verde, Georgia, and Turkey. Particular attention is paid to the differences and commonalities between the EURA with Pakistan and the other five EURAs in terms of the norms and documents determining the nationality of the person to be readmitted. Chapter 5 critically analysis the challenges affecting the operability of EURAs. It is argued that these mainly relate to the lack of accountability and transparency mechanisms as well as the dilemmas that they pose to international and European standards in the determination of nationality by states, and the individual as a holder of fundamental human rights.