The Implementation Challenges and Dynamics of EURAs

Abstract

This chapter examines the challenges affecting the implementation of EURAs once entered into force. Particular attention is paid to the challenges emerging from the identity determination dilemma explained and substantiated in Chap. 3.

This Chapter examines the challenges affecting the implementation of EURAs once entered into force. Particular attention is paid to the challenges emerging from the identity determination dilemma explained and substantiated in Chap. 3 above. These include: first, lack of accountability and transparency (Sect. 5.1); second, the value added of EU intervention; (Sect. 5.2) third, inter-state and sovereign relations challenges (Sect. 5.3); and fourth, the blurring of rights and the agency of the individual (Sect. 5.4).

5.1 Lack of Accountability and Transparency

The criteria identified by the Council of the EU for justifying the need to conclude EURAs with third countries include cases where such an agreement would ‘add value’ to EU Member States bilateral negotiations and expulsion practices, including cases where there are “relevant obstacles to return, in particular in what concerns obtaining travel documents for the repatriation of people who do not fulfil or no longer fulfil entry or residence conditions.¹ How to measure this ‘value’ precisely when it comes to expulsion outcomes? A first challenge in examining the ‘effectiveness’ in the implementation of EURAs relates to the lack of transparency and accountability of the exact ways in which these legal instruments operate in practice, as well as regarding the implementing procedures that put them into effect.

As Chap. 2 above has illustrated, the way in which the European Commission and EU Member States currently measure ‘effectiveness’ is a predominantly numerical exercise comparing removal orders and enforced return rates. What do the official statistics tell us about the state of expulsions of irregular immigrants in the EU? According to EUROSTAT, and as outlined in Graph 5.1 and Table 5.1, over 470,000 third-country nationals were issued with an ‘order to leave’ or removal order in an EU Member State in 2014. Only 36 % of these were returned to a non-EU country (168,925).

Graph 5.1

TCNs subject to the enforcement of immigration legislation in EU. Source Eurostat (http://ec.europa.eu/eurostat/statistics-explained/index.php/Statistics_on_enforcement_of_immigration_legislation Accessed 8 June 2016)

Table 5.1 Total number of TCNs ordered to leave and returns EU-28 2008–2014

EUROSTAT data also tell us that the total number of removal orders and returns of TCNs, outlined in Graph 5.2, have remained by and large stable and in a decreasing trend since 2008.

Graph 5.2

EU member states authorities responsible for implementing EURAs. Source Author’s own elaboration based on EMN (2014)

A similar tendency can be identified in some countries with which the EU has concluded an EURA, in particular among the six under assessment in this book (see Table 5.2). As a way of illustration, the statistics on Pakistan, Georgia and Armenia (which are the only countries whose EURA has entered into force respectively in 2010 and 2011) do not show an increase of returns since the entry into force of the agreements with the EU.² The fact that countries with which the EU has a readmission agreement are the main sources of irregular immigration into the EU tell us little about the effectiveness of its use in comparison to other third countries where such EURAs do not exist. This picture does not substantiate the above-mentioned Commission’s argument that the conclusion of an EURA has resulted in an increased number of expulsions. It is therefore not at all clear what actual ‘impact’ the operation of an EURA has had in practice.

Table 5.2 Total returns and removal orders EU 28 2008–2014 to selected third countries

The quantitative picture provided by EUROSTAT tells us little about the nature, applied legal framework, scope and effects of expulsion practices of irregular and undocumented immigrants by EU Member States. EUROSTAT explains that the substantive variations identified across EU Member States when it comes to removal orders and expulsions can be understood due to “disparities in migration policies, as well as administrative, statistical and legal (legal acts, judicial procedure, etc.) among EU Member States.”³ It is difficult to drawn conclusive findings or results from this statistical coverage and aggregated figures.

There are a number of methodological caveats inherent to the available data as reported by EU Member States. These include for instance no clear indications as regards which expulsions have taken place inside or outside the scope of EURAs or other bilateral (formal and/or informal) frameworks and tools of cooperation. The statistics do not specify either the total number of EURA readmission requests which have been approved or refused by EU Member State concerned, the reasons of refusal or the number of travel documents issued for which countries of origin. Neither do they outline the total number of requests for travel documents in the context of EURAs and those which have been granted by the third countries concerned or requested.

The Commission has concluded that EURA are rarely used for ‘voluntary returns’.⁴ The removal orders and return rates reported by Eurostat do not however differentiate between those that have been ‘voluntary’ or ‘forced’; neither do they clarify whether the individuals are persons having received a negative decision on asylum applications or irregular immigrants or undocumented.⁵ Not every TCN who is returned is always served with an order to leave or removal order in all EU Member States, especially in those cases of ‘voluntary returns’.⁶ There is neither statistical coverage concerning detention of TCNs in the EU, or on what happens to people during and after the expulsion procedure.⁷

The resulting scene is one preventing a proper assessment and understanding of the implementation of EURAs. The difficulty in assessing the value added of EURA in expulsion procedures from a purely numerical perspective is exacerbated by a high degree of secrecy when it comes to the ways in which EURAs foresee their application and implementation procedures which have been described in Chap. 4 above. The role attributed to JRC and Implementing Protocols are of central importance in all the EURAs. That notwithstanding, all the decisions and internal deliberations in the scope of JRC specific to each EURA are not publicly available or disclosed.⁸ This is the case despite the fundamental importance of the decisions and discussions taking place in these Committees when it relates to: first, decisions amending the wording and procedural specifications of a particular EURA, including practical arrangements for conducting interviews for determining nationality in cases where the person involved is undocumented or in cases of accelerated procedures; and second, ways to address specific practical challenges affecting the correct application of the agreement in question, such as the EURA with Pakistan.

Chapter 4 above has showed how important the adoption of Implementing Protocols to EURAs can be. These Protocols are bilateral in nature, and, depending on the specific EURA in question, may be applicable to other EU Member States. Their importance resides in their role of designing and fleshing out the modalities for readmission under accelerated procedures and procedures applicable to interviews in cases where there are no documents proving nationality. The only requirement foreseen by EURAs as regards the Implementing Protocols is their notification to the relevant JRC. Similarly to JRC decisions, the number of EU Member States having concluded Implementing Protocols in the scope of EURAs and the texts of these Protocols are not publicly accessible. Table 5.3 shows a full list of Implementing Protocols which have been concluded between EU Member States and third countries in the scope of all existing EU Readmission Agreements. The exact content of these protocols remains confidential. It is noticeable that in the EURA with Pakistan only the UK counts with an Implementing Protocol. The only publicly available information about them has been provided by a couple of studies by the EMN in 2014 on the basis of responses by Member States’ national contact points. The EMN study on “Good Practices in the Return and Reintegration of Irregular Migrants: Member States” Entry Bans Policies and use of readmission agreements between Member States and Third Countries’ stated:

Table 5.3 List of implementing protocols in EURAs

By 2012 most Member States (Austria, Belgium, Bulgaria, Czech Republic, Estonia, Germany, Greece, Finland, France, Hungary, Lithuania, Luxembourg, Latvia, Netherlands, Poland, Portugal, Romania, Slovenia, Spain) and Norway had applied implementing protocols concluded under EU Readmission Agreements with third countries and in 2013, protocols to support the implementation of EU readmission agreements entered into force in three Member States (Hungary, Slovakia and the UK).⁹

5.2 The Value Added of Formal and Informal EU Readmission Instruments

This lack of transparency undermines any attempt to gain an understanding of the contribution and value added of EURAs in sending people back when compared to already existing formal and informal bilateral readmission instruments, clauses and agreements by EU Member States. The academic literature has documented and analyzed the turf wars between the European Commission and some EU Member States as regards the reach and scope of legal competence at times of concluding readmission instruments with countries with which the EU has a EURA.¹⁰

Article 79.3 of the Treaty on the Functioning of the European Union (TFEU) provides express legal mandate for the Union to conclude EURAs, and Article 218 TFEU stipulates the procedures for their conclusion. The European Commission is required to ask the Council for a mandate to negotiate with the third country concerned. DG Home Affairs is in the driver’s seat of the negotiations of the initial text of the agreement which will need to be adopted by the Council and receive the consent by the European Parliament. The issuing of the negotiating mandate/directives by the Council is irrespective of the actual interest or willingness by the third country concerned to even enter into any sort of negotiations with the Commission in the matter (European Commission 2011).¹¹ This has caused severe friction and repeated pressures from EU Member States on the Commission to ease and hasten negotiations for the agreements.

Of particular concern in this discussion has been the expansive use of informal paths of cooperation and policy instruments between some EU Member States and third countries, which too often escape the decision-making procedures envisaged by the EU Treaties, as well as proper democratic accountability and judicial oversight. In its 2011 evaluation of EURAs the Commission stated that “The Member States need to apply EURAs for all their returns. The Commission will closely monitor the correct implementation of EURAs by Member States and, if necessary, consider legal steps in case of incorrect or lack of implementation”.¹² In response to the 2015–2016 ‘European refugee crisis’, it seems that a similar working logic of informality on readmission deals and instruments is now being promoted and developed by the EU. As noted in Chap. 2 above, some European institutions are favouring the use of informal (including bilateral) arrangements or patterns of cooperation on readmission with third countries for the sake of increasing expulsion rates.

Informal and non-legally binding instruments covering readmission in the scope of High-Level Migration Dialogues of the EU may be deemed to facilitate negotiations with third countries, especially those unwilling or lacking interest in concluding a formal and publicly visible EURA. Interviews carried out as background to this book have clarified that one of the main purposes behind these informal methods of cooperation primarily aim at finding “the soft spot” in these third countries, i.e. the authority or actor which may be willing to cooperate in identity determination and/or issuing travel documents. EU officials have alluded to the lack of interest by third countries authorities to openly and publicly cooperate with the Union on readmission and identification issues of their own nationals (chiefly through the conclusion of a EURA) due to its lack of popularity in domestic populations as well as Diasporas in EU Member States. This stands in sharp contradiction with the EU’s growing appetite to widely disseminate and openly publicize the ‘success’ of readmission when it comes to increasing expulsion rates of irregular immigrants. The soft spot working logic constitutes in this way an excellent example of ‘venue shopping’ in the development of EU external migration law and policy.¹³ EU actors ‘go abroad’ through the use of new (formal and informal/bilateral and multilateral) readmission instruments, or attributing new functionalities to previously existing ones, in an attempt to avoid legal (rule of law) constraints and find new co-operating parties or new allies.

The dilemmas inherent in EU actions to cooperate with third countries to tackle irregular immigration were acknowledged by the Commission Communication on the work of the so-called “Task Force Mediterranean”, which stated: “Relations with partner countries will also have to take into account the specific sensitivities and expectations of partner countries on the migration dossier, and their perception that the EU wishes to focus primarily on security-related aspects, readmission/return and the fight against irregular migration” (European Commission 2013). As Carrera and Guild have previously argued “for these third countries, [EU-driven] security-related aspects may be interpreted as an allegation that their citizens are potential criminals; Readmission and return may be understood as meaning that their own citizens are framed as ‘illegal immigrants’; and the EU’s fight against irregular migration could mean that they should take measures for their citizens not to go on holiday to the EU”.¹⁴

Political (non-legally binding) and often secretive documents are also preferred by some authorities in these third countries in an attempt not to subject the issue to public light and domestic debates. That notwithstanding, these informalities do not properly address, and arguably may even exacerbate, the practical implementation challenges of states’ commitments related to identification and issuing of travel documents to own nationals examined in this book. A noticeable example may be the Pham case studied in Sect. 3.2 above, which has occurred despite the existence of a non-legally binding Memorandum of Understanding (MoU) on readmission between the UK and Vietnam since 2004.¹⁵

Informal patterns of cooperation and non-legally binding instruments including a readmission angle enhance the legal uncertainty and the lack of sufficient procedural guarantees designing inter-state challenges. What do they add in comparison to EURAs? It is not clear the extent to which non-binding informal arrangements and MoU complement or compete with formal EURAs. As the European Commission rightly pointed out in its 2011 evaluation of EURAs, the use of informal patterns of cooperation may make “More seriously, human rights and international protection guarantees in EURAs ineffective if MS do not return irregular migrants under EURAs.”¹⁶ Non-binding arrangements are equally contingent, compared to EURAs, on the state of diplomatic relations. This in turn will make ever more challenging the practical operability and sustainability of ‘the rules of the game’ in inter-state relations when it comes to readmission practices.

The above-mentioned 2016 Council Conclusions on the expulsions of illegally staying TCNs state: “Such legally non-binding arrangements should be fully compatible with existing bilateral readmission agreements of the Member States, and may in cases contribute to creating the conditions for the negotiation and conclusion of future readmission agreements as cooperation develops.” It is not entirely clear how this compatibility will be ensured. The development of informal arrangements can be only expected to increase the inconsistencies and, arguably, further undermine the credibility of the EU’s readmission policy. The non-legally binding nature will furthermore make them highly vulnerable and unstable to the state of diplomatic or inter-state relations. Some EU Member States’ representatives have declared that one of the main contributions of EURAs has been not so much the increased number of removals, but rather the “benefits in terms of strengthening our bilateral relationships with other countries, including on practical cooperation efforts combating illegal immigration”.¹⁷ As the next section shows, however, EURAs are still fraught with profound inter-state and inter-actor controversies.

5.3 Inter-state and Inter-actor Challenges: Re-modelling the Boundaries of Authority

Scholars have documented and assessed the origins of inter-state relations and cooperation in the readmission of their own nationals, as well as the different types of readmission-related instruments and agreements that have progressively developed in European cooperation, especially since the mid-1990s.¹⁸ A central issue underlying this development has been the need to develop these formal and/or informal instruments and EU frameworks of cooperation on readmission in light of the general duty by states of origin to ‘readmit’ their own nationals. If states are under an obligation to readmit their nationals, why are readmission agreements necessary?

The duty of states to take back their nationals has been widely accepted as a key component in customary international law. The Court of Justice of the European Union (CJEU) held in the Van Duyn v Home Office (Case 41/74): “For a national, however undesirable and potentially harmful his entry may be, cannot be refused admission into his own state. A state has a duty under international law to receive back its own nationals”.¹⁹ In paragraph 22, the Court concluded: “it is a principle of international law, which the EEC Treaty cannot be assumed to disregard in the relations between Member States, that a State is precluded from refusing its own nationals the right of entry or residence.”

What is lacking is a common understanding of the actual nature and fundamentals of that obligation in states practices.²⁰ There is no agreement on the ways in which that duty is to become operational in practical terms. Hailbronner has argued that “the obligation to readmit one’s own nationals is the correlate to the right to expel aliens”.²¹ There is however not such a wide consensus as regards the actual scope of that obligation, and the extent to which it relates to the right to leave and return by individuals of these same states as enshrined in international human rights instruments.²²

Irrespective of the discussion on ‘the duty to readmit’ by the country of origin, a key dilemma that leaves the implementation of EURAs unsettled is who is sovereign to determine who is a national of which country. EU Member States can try to substantiate the nationality of a person to be readmitted in various ways and forms. Yet, the procedure and resulting decision are by no means enforceable or have non international legal value, not least for the alleged or presumed country of origin or nationality. Irrespective of the success by states and later the EU in concluding legal and non-legal arrangements developing the particulars of the duty to readmit nationals, the question of ‘whose citizen’ is still the cause of ceaseless inter-state frictions.²³ In such a context, EURAs foresee a set of ‘technical’ procedures, rules and lists of documents intended to ease or facilitate the determination of who is to be considered a national of the country concerned, and which means of proof are considered to provide various degrees of proof of the persons’ citizenship and consequent legal status. As Peers et al. have argued

[Readmission agreements] are attractive to most Member States because no decision to expel a person can be effective unless another State agrees to take that person onto its territory, and most Member States believe that a formal treaty obligation will assist in accomplishing this objective…The agreements can be used to set out rules on means of “proof” and “evidence” to increase the prospect that the requested States will accept people back, and to include rules on transit through the requested State (not strictly speaking a readmission issue at all).²⁴

Chapter 4 has shown that some of these agreements equate cases where the nationality of the person to be readmitted is ‘proved’, with other situations where the latter is simply substantiated or presumed prima facie for the purposes of the application of the agreement at hand. There are at times important variations between the accepted means of documentation for determining prima facie nationality—functional identity-of the person to be readmitted. An exception is Annex of the EURA with Pakistan which in contrast to the other five EURAs only foresees that the list of documents “shall initiate the process of establishing nationality”. The comparative account of procedures and lists of documents in determining nationality reveals a largely heterogeneous and diversified picture which brings about complexity and a very high degree of heterogeneity from one agreement to another.

Differing rules on identification (and related travel documents) may add further practical obstacles to responsible authorities on the ground, which depending on who they are in each EU Member State and the third country at hand will encounter divergent set of administrative and accepted lists of documents as to who is a national of which country.²⁵ As shown by a study published by the EMN in 2014, the national actors responsible for implementing EURAs and issuing the readmission application vary widely across the EU Member States. Graph 5.2 shows the heterogeneity of actors and authorities involved in some EU Member States. In a majority of EU Member States the responsible authorities in the field of readmission are the police (12 Member States)²⁶ or the immigration authorities (11 Member States),²⁷ border guards (6 Member States)²⁸ and Ministries of Interior (5 Member States).²⁹ In some EU Member States more than one of these authorities share the various competences related to readmission. A more diversified picture can be expected to emerge when looking at the authorities and actors with competence or powers over the identification and issuing of travel documents for purposes of readmission in third (non-EU) countries.

The comparative analysis of the six EURAs in Chap. 4 above has revealed that a key contribution of these EU legal instruments has been formalising the transmission of readmission applications through competent diplomatic and/or consular channels of the states concerned. The EURA with Pakistan constitutes an exception here. As Annex of this book illustrates, Article 2 of the agreement dealing with readmission of own-nationals does not expressly mention the role of diplomatic and consular authorities. The involvement of diplomatic/consular authorities of the third country concerned does in principle ensure that the application is no longer handled directly or solely between border, police or immigration (or Ministries of Interior) authorities of the states concerned. Rather EU authorities need to go through the diplomatic channels and Ministries of Foreign Affairs of these third countries, which often entail heavier procedures. The consequence has been that the responsible third country authorities cross-examine and verify the evidence or list of documents provided in a detailed manner. This may not only increase the time spent, but most importantly allows requested states to take into account issues which transcend EU-centric security and policing (expulsion-driven) priorities.

The de-linking of the process of determining a person’s legal identity from the nationality of her/his state of origin opens up a rocky path which brings us to the ultimate shores of states’ sovereignty in international relations at times of deciding who their national actually are. EURA lay down a set of rules and practices that cross dangerously the boundaries of sovereignty of the requested state for readmission at times of deciding who is a national and who is not in its national law and practice. While substantiation or prima facie means of proof are generally considered acceptable in the scope of EURAs examined in this book, this does prevent that the processes of identification in inter-state relations continue representing one of the most important obstacles in the operability of EURAs.

Arguably EU Member States, and by extension the EU, are behaving as if they would be entitled to re-determine the identity of people for purposes of expulsion. EURAs function as tools intended to foster third countries changes as regards how they confer their nationality and who is considered by law and practice as a national of those countries. The Pham case studied in Chap. 3 constitutes a case in point. The decision stands in a difficult position in light of current international standards and the interpretation of these provided by the UN High Commissioner for Refugees (UNHCR).³⁰ Article 1.1 of the 1954 Convention relating to the Status of Stateless Persons states that the term ‘stateless person’ means “a person who is not considered as a national by any State under the operation of its law”. This provision has been interpreted as including both de jure and de facto statelessness. When considering the question as to whether a person is stateless, the UNHCR Guidelines³¹ make a clear and specific recommendation when determining the non-possession of any foreign nationality. They underline in paragraph 19 that

A Contracting State must accept that a person is not a national of a particular State if the authorities of that State refuse to recognize that person as a national. A Contracting State cannot avoid its obligations based on its own interpretation of another State’s nationality laws which conflicts with the interpretation applied by the other State concerned.

The 2014 UNHCR Handbook on the Protection of Stateless Persons provides further clarification that in the phrase “under the operation of its law” enshrined in Article 1.1 of the 1954 Convention, the law means “not just legislation, but also ministerial decrees, regulations, orders, judicial case law (in countries with a tradition of precedent) and, where appropriate, customary practice.”³² The UK Supreme Court considered UNHCR Guidelines and Handbook to present a too broad interpretation of what “its law” actually means and concluded that there was no evidence “of a decision made or practice adopted by the Vietnamese government which treated the appellant as a non-national by operation of its law”. Irrespective of these international and regional standards, the Court considered the UK Secretary of State for the Home Department entitled to carry out its own interpretation of Vietnamese nationality law and overtake the decision by Vietnamese authorities as regards who is a national in light of national legal system.

The UK Supreme Court ruling stands in a difficult relationship with the set of legal standards stemming from the jurisprudence of the CJEU in cases where EU Member States deprive an EU citizen of their nationality and therefore the status of citizenship of the Union. This is particularly so in respect of the 2010 CJEU ruling in Rottmann v. Freistaat Bayern,³³ where the Court held that in cases of withdrawal decisions national courts must pay due regard to the principle of proportionality.³⁴ The Court clarified that the national court would need to determine whether having regard to the relevant circumstances of the case at stake, the principle of proportionality would grant the person a “reasonable period of time in order to try to recover the nationality of his Member State of origin”.³⁵

As the Luxembourg Court stated in Rottmann, the essential criterion for the EU general principle of proportionality to be applicable in reviewing the legality of EU Member States’ decisions in cases of withdrawal is not prior possession of another EU Member State nationality, or the need of a cross-border element. Instead, paragraph 42 of the Rottmann judgment emphasizes that the determining factor in the legality test is the extent to which the decision leaves the individual “in a position capable of causing him to lose the status conferred by Article 17 EC and the rights attaching thereto”. ³⁶ All these considerations were not properly taken into account by the UK Supreme Court, which effectively led Mr. Pham to loose not only British nationality but also European citizenship, while also leaving open the inter-state dispute as regards whose national?.

5.4 The Blurring of Rights

EURAs represent the flagship legal instrument shaping the intersection between expulsion policies and international relations in the EU. Any assessment of their implementation would remain blind without properly acknowledging and examining their impact for the agency and status of the individual³⁷ subject to these readmission processes. Controversially, as tools of international relations EURAs are predominantly driven and focused on the ‘rights and duties’ of the states’ parties involved. They have been therefore designed, and studied by international relations scholars, in the context of inter-state interests and struggles. This study has illustrated how one of the key policy priorities shared by both EU Member States and the European Commission is the increase of expulsion rates of irregular immigrants present in the Union’s territories. The matching of the number of removal orders and actual expulsions has been discursively framed as the turning point in ensuring the ‘effectiveness’ of EU’s returns and readmission policy.

The EU’s current obsession with returns rates not only prevents a proper discussion of the asymmetries and tensions that the practice of readmission poses to inter-state relations regarding who is a national. It also nuances and blurs one of the main reasons why people cannot be returned, i.e. their rights and entitlements as citizens and holders of fundamental human rights. The reach and margin of states’ national sovereignty in the treatment of citizens and foreigners in migration regulations must remain delimited within the boundaries set by international human rights and European law standards. Several instruments composing the international human rights Treaty framework state clearly that everyone has the right to leave any country (including their own) and to return to their country. This is the case for example in Article 13.2 of the Universal Declaration of Human Rights (UNHR),³⁸ which was given specific form in Article 12 of the International Covenant on Civil and Political Rights (ICCPR).³⁹ They enshrine the individual’s claim or right towards her/his country of origin or nationality.

A majority of EURAs state that after giving a positive reply to the readmission application, the competent diplomatic mission or consular office shall issue the necessary travel document “irrespective of the will of the person to be readmitted”. The overlapping between readmission sovereign duties and individuals’ rights and is however far from uncontested. The exact weight between the right and willingness of the individual to return and the obligation/right of the state of origin to readmit its nationals remains controversial. This dilemma was acknowledged by the Council Legal Service (CLS) back in 1999 when asked to assess the impact of the Amsterdam Treaty over Member States’ competences on readmission.⁴⁰ The CLS Opinion stated that

… it is doubtful that in the absence of a specific agreement to this effect between the states concerned, a general principle of international law exist which would oblige those State to readmit their own nationals if they do not wish to return to their country of origin.⁴¹

Plender has highlighted how an increasing number of national constitutional regimes across the world are characterizing the right to enter in one’s country of origin as a fundamental human right.⁴² Noll raised central questions at times of assessing the relation between ‘the right’ of the state of destination to return irregular immigrants with the right of individuals to leave⁴³: Does the individual’s unwillingness to expulsion translate into a ‘right not to return’? Is the protective content of human rights law beyond state interests? What remains less contested in the academic discussion is the inherent relationship between the right of individuals to leave and to return to their country with other key human rights obligations enshrined in international and European legal instruments.⁴⁴ They chiefly include the principle of non-refoulement according to which no one will be expelled, returned or extradited to a state where s/he may face a risk amounting to torture.⁴⁵ These obligations are now embedded in the EU legal system through the Treaties and Article 19 of the EU Charter of Fundamentals Rights.⁴⁶ The six EURAs under assessment include (to a variety of degrees) express references to these international human rights obligations. Usually these take the form of so-called ‘Non-Affection Clauses’.

The content and scope of these provisions in EURAs have taken different forms and shapes depending on the country concerned. Some EURAs like the one with Pakistan do not provide any specific or expressly stipulated list of legal instruments that are of relevance for the application of the agreement. However, the EURA with Pakistan needs to be read in conjunction with the 2004 EC-Pakistan Cooperation Agreement (PAC) which states in Article 1 that the “respect for human rights and democratic principles as laid down in the Universal Declaration on Human Rights underpins the domestic and international policies of the Community and the Islamic Republic of Pakistan and constitutes an essential element of this Agreement.” The situation concerning human rights protection in Pakistan was in fact an issue of serious concern for the European Parliament during the negotiations of the EURA.⁴⁷ The EURAs with Armenia, Azerbaijan, Cape Verde, Georgia and Turkey all include express references to and list relevant international obligations in instruments such as the Universal Declaration of Human Rights of 1966, the 1951 UN Convention on the Status of Refugees (as amended by the Protocol of January 1967) on the Status of Refugee, international conventions determining the state responsible for examining applications for asylum lodged, the UN Convention of December 1984 against Torture, or other specific instruments such as the Convention on International Civil Aviation of December 1944.

As Peers et al. have argued a large number of those persons expelled by means of a readmission agreement are likely to be asylum seekers or applicants for other forms of international protection.⁴⁸ Beyond formalistic references to human rights instruments in EURAs, the literature has highlighted and documented the international protection challenges in their operability. A particularly problematic aspect inherent to the practice in the readmission logic is its linkage to “the safe third country principle”. According to UNHCR the safe third country concept is based on the principle that “asylum-seekers/refugees may be returned to countries where they have, or could have, sought asylum and where their safety would not be jeopardized, whether in that country or through return there from to the country of origin”.⁴⁹

Coleman has argued that “A particular problem in the implementation of safe third country policies is that the Member State objective of minimizing the amount of persons in the asylum procedure has reduced the guarantee of safety in individual cases”.⁵⁰ He has acknowledged that the wording of EURAs raises direct challenges to the rights of asylum seekers and refugees. However, the lack of specific provisions in some EURAs regarding the relationship between EURAs and safe third country principle makes it indeed difficult to pass the human rights test. The Achilles heel of EURAs from a human rights perspective is that there is not meaningful way to ensure that people with protection claims will be properly guaranteed in their implementation in the requested state.⁵¹ This protection gap is particularly problematic in the phase of ‘post-readmission’ in the third country concerned. As the European Commission highlighted in 2011, a key weakness in the operability of EURA is the absence of any mechanism to monitor what happens to persons (notably TCNs) after their readmission.⁵² Inter-state trust is simply not sufficient to ensure compliance. This has been confirmed by the Parliamentary Assembly of the Council of Europe (PACE) which called the EU to “instruct an appropriate body to monitor the implementation by member states of European Union-brokered readmission agreements” and to

ensure that readmission agreements provide for a system under which the implementation of the agreement may be properly monitored and evaluated, and that they provide for a public annual report to be drawn up by the authorities of the readmitting country including, as a minimum, statistical data on the fate of readmitted persons (on issues such as detention, release, expulsion, access to asylum system, etc.).⁵³

In addition to issues related to international protection and asylum, EURAs fall within the scope of existing EU immigration legislative instruments providing a harmonized set of Union rules in the field of expulsion of irregular immigrants, in particular the so-called Returns Directive.⁵⁴ This Directive, as well as all the case-law developed by the CJEU since its entry into force, are of direct application to EU readmission practices and instruments. EU Member States practices in the scope of EURAs must be in accordance to, and compatible with, the set of rules and standards enshrined in this piece of EU secondary legislation, and the subsequent jurisprudence by the Luxembourg Court. Among all the EURAs examined, only the EURA with Turkey makes express reference in the scope of Article 18 (Non-Affection Clause) to the need for the Agreement to comply with the rights and procedural guarantees in this Directive as well as other relevant legal instruments composing the current state of EU migration and asylum law.

The Returns Directive has received ample criticism in the academic literature due to its predominant focus on ensuring swift ‘return’.⁵⁵ Recital 4 of the Directive establishes as one of its objectives “Clear, transparent and fair rules need to be fixed to provide for an effective return policy as a necessary element of a well-managed migration policy”. Still, this Directive now sets a supranational framework of standards, procedural guarantees and rights subject to judicial scrutiny by the CJEU. This ‘supranationalisation’ has been understood to have displayed rather positive effects over the rights of irregular immigrants in the EU, in particular concerning the procedural remedies and time-limits concerning detention.⁵⁶ The Returns Directive envisages a set of procedural guarantees for TCNs which in practice may legitimately delay the actual expulsion procedure, chiefly the right to an effective remedy.⁵⁷ These circumstances are not deemed as ‘obstacles’ towards the effectiveness of the Directive. Rather, they are understood as a key way to ensure its legitimate, fair and effective functioning.

Article 13 of the Returns Directive foresees that irregular migrants must have an effective remedy to appeal against or seek review of decisions related to return before an independent competent judicial or administrative authority, “or a competent body composed of members who are impartial and who enjoy safeguards of independence.” The appeals body must have the power to suspend the enforcement of return decisions. The Directive also foresees that the third country national needs to have access to legal advice, representation and when necessary linguistic assistance. As long as the suspensory effect of the review by an independent authority is taking place the ‘postponement of removal’ is justified. Article 9 adds that EU Member States may postpone removal when it would violate the principle of non-refoulement or “for an appropriate period taking into account the specific circumstances of the individual case” and taking into account: “the third-country national’s physical state or mental capacity and, technical reasons, such as lack of transport capacity, or failure of the removal due to lack of identification.”⁵⁸

Pending removal, third country nationals are holders of a set of ‘safeguards pending return’ stipulated in Article 14 of the Directive. This provision emphasizes that EU Member States shall ensure that the following principles are taken into account: maintenance of family unit with family members present in their territory, provision of emergency health care and essential treatment of illness, access to basic education by minors and take into account special needs of vulnerable persons. According to the EU Returns Handbook drafted by the Commission in 2015, “The returnee is, however, not considered to be legally staying in a Member State, unless a Member State decides—in accordance with Article 6.4—to grant a permit or a right to legal stay to the returnee”. Article 6.4 of the Returns Directive provides EU Member States with the option to granting a residence permit “compassionate, humanitarian, or other reasons”. Recital 12 of the Directive further proclaims that EU Member States should provide non-removable persons with a written confirmation of their situation.⁵⁹

Peers (2015) has studied how the CJEU rulings interpreting the various provisions embodying the Returns Directive have attempted to ‘balance’ the often contradictory goals of ensuring the humane treatment of irregular migrants, with the objective of expelling irregular migrants as soon as possible. The Court has clarified the scope of detention in light of the Directive’s obligation to grant voluntary departure,⁶⁰ or the implementation of the right to be heard (as part of the right of good administration enshrined in Article 41 the EU Charter of Fundamental Rights) in the context of return and detention decisions. EU Member States are obliged to issue a removal order and enforce it, or regularize the individual involved.⁶¹ The CJEU concluded in case Mahdi C-146/14,⁶² that despite Article 6.4 and Recital 12, EU Member States are not obliged to issue an autonomous residence permit or other authorization conferring the right to stay

…to a third-country national who has no identity documents and has not obtained such documentation from his country of origin, after a national court has released the person concerned on the ground that there is no longer a reasonable prospect of removal within the meaning of Article 15(4) of that directive. However, that Member State must, in such a case, provide the third-country national with written confirmation of his situation.⁶³

The current policy priority paid by EU institutional instances on increasing returns rates irrespective of the proper implementation of these administrative and legal (including human rights) safeguards for individuals in the process of expulsion is thus problematic. As the Recital of the Returns Directive expressly mentions, testing effectiveness in return procedures must go hand-to-hand clear, transparent and fair rules, in full compliance with the fundamental human rights of irregular immigrants which may de jure prevent people to be returned irrespective of the existence of a removal order. Legal certainty, proportionality and fundamental rights are not just ‘technical barriers’ and cannot go at the expense of inter-state interests on migration control. The European Union Agency for Fundamental Rights (FRA) (2011) has provided a detailed account of the reasons preventing removal based on human rights considerations. These include considerations related to the protection of family and private life, medical and health conditions, humanitarian situations in the country of origin and best interests’ considerations. It is therefore regrettable that the 2016 Council Conclusions.

Measuring effectiveness in implementation when comparing removal orders and returns is of a limited value for understanding the effects of EURAs. The goal of increasing return rates in comparison to the total number of removal orders does not address effectiveness from the perspective of the extent to which there are in fact too many removal orders being issued for people whom the competent national authorities know for a fact are not expellable. Expulsion orders may be taken perhaps too lightly by relevant authorities at domestic levels without carefully looking at the information available in individual cases and passing it to migration enforcement authorities while there are procedures or appeal processes still pending. Moreover, return decisions are often not final in nature; especially in those cases where those concerned are contesting the legality of their removal order. Finally, the equation of removal orders and enforced return decisions is over-simplistic. It does not take into account that the administrative status of individuals is not something fixed in stone or static in nature. There is nothing existential about irregularity. The legal status or circumstances of those subject to a removal order may change over time, and the person may cross the bridge toward regularity of stay or residence. The EURA procedures constitute an attempt to artificially fixate or ‘freeze’ the individual into a migratory status of irregularity.