The European Migration Agenda, adopted by the European Commission in May 2015, acknowledged that the EU expulsions system is “ineffective” in view of the rates of successful returns of third-country nationals given a removal order.
- Irregular Migrant
- Travel Document
- Country National
- Irregular Immigrant
- Voluntary Return
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The European Migration Agenda, adopted by the European Commission in May 2015, acknowledged that the EU expulsions system is “ineffective” in view of the rates of successful returns of third-country nationals given a removal order. In order to tackle this challenge, the Agenda called for ensuring that third countries fulfil their international obligation to take back their own nationals residing irregularly in Europe, particularly in the context of readmission instruments.Footnote 1
In a letter drafted by the European Commissioner for Migration, Home Affairs and Citizenship Dimitris Avramopoulos to EU Member States on 9 June 2015 a similar issue was raised. The letter stated that “one of the incentives for irregular migration is the knowledge that the EU’s system to return irregular migrants, or those whose asylum applications are rejected, is not sufficiently fast and effective”.Footnote 2 The Commissioner highlighted that “we must make sure that the countries of origin of these irregular migrants cooperate and take them back.” The letter expressed concerns about EU Member States’ lack of enforcement of removal orders and the “low rate of returns”—less than 40 % during 2014—which in his view jeopardized the credibility of EU policy seeking to reduce irregular immigration.Footnote 3 The annex of the letter included a Paper titled “Increasing the effectiveness of the EU system to return irregular migrants” which offered a number of concrete policy measures aimed at making return effective; i.e. increasing the rates of return. The paper first calls for the need to better enforce return by focusing on the “immediate identification of migrants upon arrival” and obtaining the necessary travel documents for readmission.
The paper referred to the role by Frontex (the EU external borders agency) in providing assistance to EU Member States in identification under the Hotspot approach in Greece and ItalyFootnote 4 and “obtaining the documents for readmission by taking the necessary steps with the authorities of the countries of origin, on behalf of EU Member States”. The Hotspot model entails the deployment of operational support by EU agencies such as Frontex, but also Europol and European Asylum Support Office (EASO), involved in the screening of TCNs (identification, fingerprinting and registration), provision of information and assistance to applicants of international protection and the preparation and removal of irregular immigrants.Footnote 5 Following identification, the paper added, “Member States should use more systematically the possibility to return irregular migrants through Joint Return Operations organized and/or coordinated by Frontex”.
The Commission has more recently reported that “Frontex [guest officers] will support the Greek authorities in verifying the identity of third country nationals and whether they have been registered in the relevant databases” in Greece.Footnote 6 It recommended that “IT systems should be updated to first deploy a fully-fledged Automated Fingerprinting Identification System (AFIS) and then to ensure that interconnections between national and EU/international databases are established, thereby allowing for a full check of arriving migrants against Schengen Information System (SIS) II/Interpol Stolen and Lost Travel Documents (STLD) databases.” Similar recommendations were advanced for the Hotspots in Italy.Footnote 7
Increasing return rates were also confirmed as a priority by the Commission’s “EU Action Plan on Return” of September 2015 and as the most important way of enhancing the efficiency of the EU expulsion system.Footnote 8 The Commission emphasized that boosting cooperation in returns and readmission with main countries of origin and transit of irregular immigrants constituted an essential ingredient for increasing the return rates. The Action Plan also underlined that expulsion is easier with countries that have entered into an EURA with the EU.
The Council Conclusions on the future of the returns policy adopted by EU Member States’ representatives in October 2015 welcomed the Commission’s calls for increasing the capacity of the Member States to return irregular migrants.Footnote 9 Member States sent ‘the ball back’ to the EU authorities by stating that both “The EU and its Member States must do more in terms of return.”Footnote 10 The Conclusions insisted on what has become a mantra in recent decades of European cooperation on migration with third countries: the European Commission should ensure that “ongoing negotiations on readmission agreements are accelerated and concluded as soon as possible.”Footnote 11 In this context, the Council welcomed the further development of the ‘more for more’ principle (conditionality) as a way to increase the Commission’s leverage when attempting to persuade third countries to sign EURAs.Footnote 12
The Conclusions also invited the European Commission and the European External Action Service (EEAS) to promote the EU laissez-passer (standard document for expulsion of TCNs) in order for it to become the commonly accepted travel document for expulsion procedures.Footnote 13 The European Commission presented a proposal for a European travel document for the return of illegally staying TCNs on 15 December 2015.Footnote 14 The proposal underlines that “the effective return of third country nationals who do not fulfil or no longer fulfil the conditions for entry, stay or residence …is an essential part of a comprehensive approach to ensure the proper functioning of the EU migration policies and for maintaining public trust in the Union migration system”.Footnote 15 The proposal for a Regulation also emphasizes that the lack of valid travel documents issued by the country of destination of the person to be removed constitutes one of the most important obstacles to ‘successful return’. It concluded that the recognition of the 1994 EU standard travel document is low “because of its unsatisfactory security features and standards”.Footnote 16 The proposal, which is currently under inter-institutional negotiations, would introduce a new common format for a European travel document for return aimed at ensuring “high technical and security standards”.Footnote 17
Another recent priority has given preference to informal or legally non-binding EU working arrangements on readmission in the scope of so-called high-level migration dialogues of the EU. This working logic is evident in the Action Plan agreed by EU Member States in the Valletta Summit of 11 and 12 November 2015 which concluded the priority to “develop practical cooperation arrangements and bilateral dialogues on implementation of returns with regard, in particular, to identification and issuance of travel documents”.Footnote 18 A first outcome has been the Joint Declaration on Ghana-EU Cooperation on Migration of 16 April 2016, which states in paragraph 11 that “… both parties agreed on the need to significantly increase in the short-term the speed and efficiency of procedures for returning and receiving irregular migrants and the timely issuance of travel documents required for return. The parties agreed to deepen the discussions at the technical level. Ghanaian authorities committed to organize pilot identification missions in EU Member States [not later than June 2016]”.Footnote 19
One of the most visible priorities of the EU responses to the 2015–2016 ‘European refugee crisis’ has been facilitating the identification of TCNs for the purposes of expulsion. The Commission Communication “Towards a reform of the common European asylum system and enhancing legal avenues to Europe” COM (2016) 197 of 6 April 2016 called Member States of first entry in Schengen territory to “identify, register, and fingerprint all migrants, and return those not in need of protection.” The Communication advanced a legislative reform of the large-scale database Eurodac, which currently includes data and biometrics of asylum seekers in the EU.Footnote 20 Controversially, the Commission announced the plan to
…extend the scope of Eurodac as a means to contribute to the fight against irregular migration by allowing the system to be used to facilitate the return of irregular migrants. In doing so, Eurodac will be used as a means to accelerate the identification and re-documentation of migrants and will enable a better assessment of the prospect of absconding, thus enhancing the effectiveness and speed of return and readmission procedures.Footnote 21
The Council Conclusions “on the expulsion of illegally present third country nationals” adopted in May 2016 emphasized that the previosly mentioned legally non-binding EU readmission informal arrangements should pertain in particular own nationals.Footnote 22 In the same vein, the Council Conclusions “External aspects of migration” of 23 May 2016 called for the full implementation of the Valletta Action Plan and the need “for full and effective implementation of existing readmission agreements” as central components of “the external aspects of the European Agenda on Migration”.Footnote 23 The Conclusions highlighted: “the Council, in close cooperation with the Commission, is committed to enhanced and more effective cooperation on return with key countries of origins and transit, in particular with Pakistan, Afghanistan and Bangladesh”.
The Commission Communication “on establishing a new Partnership Framework with third countries under the European Migration Agenda” of 7 June 2016 re-stated the need to increase returns rates to countries of origin and transit as a part of a “new comprehensive cooperation with third countries on migration”.Footnote 24 The Commission expressed its plans to develop “comprehensive partnerships (compacts) with third countries”, which would chiefly aim at including joint efforts to make readmission and return work. The Communication underlined the need to ensure that third countries readmit their nationals by focusing on:
Coordinated and coherent EU and Member State coordination on readmission where the paramount priority is to achieve fast and operational returns, and not necessarily formal readmission agreements. The facilitation of the identification of irregular migrants in view of their readmission by strengthening third countries’ capacity to ensure functioning civil registries and fingerprint or biometrics digitalisation, as well as capacity building on border and migration management. Stepping up Assisted Voluntary Return and Reintegration initiatives on the route to help countries of transit in returning third country nationals to their countries of origin whenever possible, including promoting regional cooperation among countries of origin and transit. The acceptance by partner countries to use the EU laissez-passer for return operations.
European Commission (2015a), p. 9.
Council of the EU (2015b).
Ibid. The letter stated that “Statistical data show that certain Member States are more effective than others in returning irregular migrants (the return rates of EU Member States range between 15 and 95 %, according to Eurostat data). Some enjoy better practical cooperation with certain countries of origin than others. Best practices in overcoming obstacles to efficient returns in national laws, regulations and administrative practices should be systematically identified and shared”, p. 3.
European Commission (2015b).
European Commission (2016b).
European Commission (2016c).
European Commission (2015c).
Idid. Paragraph 5.
Ibid. Paragraph 11.
In paragraph 12 emphasizes that “The Council welcomes the introduction of the more-for-more principle as a way to increase the EU’s and Member States’ leverage. A fine balance of incentives and pressure should be used to enhance the cooperation of third-countries on readmission and return. This principle must therefore be applied more broadly and actively used in a concerted way, at both EU and national level, linking improved cooperation on return and readmission to benefits in all policy areas, building on the experience with the pilot projects on return. The Council calls on the Commission, together with the EEAS, to propose, within six months, comprehensive and tailor-made packages to be used vis-à-vis third-countries in order to remedy problems encountered in implementing effective readmission. Such packages should be implemented immediately afterwards. Conditionality should be used where appropriate with the aim to improving cooperation. In this context, Member States are encouraged to identify leverage in the areas that fall under their national competence.”
Council of the EU (1994).
European Commission (2015d).
Ibid, p. 2.
The proposal states that “The objective of this proposal is to establish a dedicated European travel document for the return of third-country nationals subject to a return decision, which provides for a uniform format and enhanced technical and security features to ensure a wider acceptance by third countries and the increased use of such document for the purpose of readmission. Its use should be promoted in EU and bilateral readmission or other agreements”, p. 2.
Paragraph 11 of the Preface states that “The Content and technical specifications of the European travel document for return should be harmonized in order to ensure high technical and security standards, in particular as regards safeguards against counterfeiting and falsification. The document should be recognizable harmonized security features. High technical and security standards already exist and are set according to Article 2 of the Council Regulation No. 333/2002, which should therefore be applied to the European travel document for return”. Refer to Article 4 of the proposal.
Valletta Summit (2015). See also paragraph 9 of the Valletta Summit Political Declaration, which states that “We are determined to strengthen the fight against irregular migration in line with existing agreements and obligations under international law, as well as mutually agreed arrangements on return and readmission. We agree to give preference to voluntary return and reaffirm that all returns must be carried out in full respect of human rights and human dignity. We will improve cooperation on return and sustainable reintegration which can only enhance migration and mobility policy and make it more effective and comprehensive.”
The Joint Declaration states in paragraph 11 that: “Both parties agreed that an effective return policy is an integral part of migration management and will deter further irregular migration. The National Migration Policy for Ghana identifies return, readmission and reintegration of emigrant Ghanaians and recognizes the challenges in this area”. See http://eeas.europa.eu/statements-eeas/2016/160416_04_en.htm.
European Commission (2016d).
The Communication stipulates that “expanding the purpose of Eurodac beyond asylum is relevant considering Member States’ difficulties to effectively monitor the irregular entries at the external borders and subsequent movements. Eurodac can be used to substantially enhance Member States’ ability to track irregular migrants in the EU by storing fingerprint data under all categories and allowing comparisons to be made with all stored data”, p. 9.
Council of the EU (2016b).
Council of the EU (2016a), para. 8. The Council also welcomed “The Commission’s recommendation to authorize the opening of negotiations on a readmission agreement between the EU and the Republic of Nigeria”. Ibid. Paragraph 9 of the Conclusions state: “The combination of dialogues, missions and instruments outlined above must lead to visible improvement in the cooperation with key partner countries. This approach, as part of a strategic and operational plan, based on concrete short, medium and long-term measures, should be a central part of the external aspects of the European Agenda on Migration and the further preparations of the June European Council”.
European Commission (2016a), p. 7. As part of the “long-term objectives” the Communication stated that “As regards Asia, Afghanistan is a major source of irregular migrants and of refugees arriving to Europe. While continuing its long-standing effort to support the stabilisation of the country, the EU should step up its engagement to ensure Afghanistan’s cooperation on readmission. Other priority countries of origin in Asia are Pakistan and Bangladesh”, p. 16.
Carrera S, Guild E (2015) Can the new refugee relocation system work? Perils in the Dublin logic and flawed reception conditions in the EU. CEPS Policy Brief, Brussels
Council of the EU (1994) Recommendation of 30 November 1994 concerning the adoption of a standard travel document for the expulsion of third-country nationals
Council of the EU (2015a) Council Conclusions on the future of the return policy. 711/15, Brussels, 8 Oct 2015
Council of the EU (2015b) Increasing the effectiveness of the EU system to return irregular migrants. 10170/15, Brussels, 22 June 2015
Council of the EU (2016a) Conclusions on the external aspects of migration. 9111/16, Brussels, 23 May 2016
Council of the EU (2016b) Conclusions on the expulsion of illegally staying third country nationals. 8828/16, Brussels, 11 May 2016
European Commission (2015a) A European agenda on migration. COM (2015) 240, 13 May 2015
European Commission (2015b) Communication Managing the refugee crisis: State of play of the implementation of the priority actions under the European agenda on migration. COM (2015) 510, 14 November 2015
European Commission (2015c) EU action plan on return. COM (2015) 453, 9 September 2015
European Commission (2015d) Proposal for a Regulation on a European travel document for the return of illegally staying third country nationals. COM (2015) 668, 15 December 2015
European Commission (2016a) on establishing a new Partnership Framework with third countries under the European Migration Agenda, COM (2016) 385, 7 July 2016
European Commission (2016b) Annex to the Commission Communication on the state of play of implementation of the priority actions under the European agenda on migration: Greece - State of play report, COM (2016) 85, 10 Feb 2016
European Commission (2016c) Annex to the Commission Communication on the state of play of implementation of the priority actions under the European agenda on migration: Italy - state of play report, COM (2016) 85, 10 Feb 2016
European Commission (2016d) Proposal for a Regulation on the establishment of ‘Eurodac’ for the comparison of fingerprints for the effective application of [Regulation (EU) No 604/2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person], for identifying an illegally staying third-country national or stateless person and on requests for the comparison with Eurodac data by Member States’ law enforcement authorities and Europol for law enforcement purposes (recast). COM (2016) 272 final, 4 May 2016
Guild E, Costello C, Garlick M, Moreno-Lax V (2015) Enhancing the common European asylum system and alternatives to Dublin. CEPS Paper in Liberty and Security in Europe, Brussels
Valletta Summit (2015) Action Plan 11/12 Nov 2015
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Carrera, S. (2016). The EU and the Ineffectiveness of Expulsion Policies. In: Implementation of EU Readmission Agreements. SpringerBriefs in Law. Springer, Cham. https://doi.org/10.1007/978-3-319-42505-4_2
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