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 individualFootnote 37 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),Footnote 38 which was given specific form in Article 12 of the International Covenant on Civil and Political Rights (ICCPR).Footnote 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.Footnote 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.Footnote 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.Footnote 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 leaveFootnote 43: 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.Footnote 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.Footnote 45 These obligations are now embedded in the EU legal system through the Treaties and Article 19 of the EU Charter of Fundamentals Rights.Footnote 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.Footnote 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.Footnote 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”.Footnote 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”.Footnote 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.Footnote 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.Footnote 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.).Footnote 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.Footnote 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’.Footnote 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.Footnote 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.Footnote 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.”Footnote 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.Footnote 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,Footnote 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.Footnote 61 The CJEU concluded in case Mahdi C-146/14,Footnote 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.Footnote 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.