This book has identified and critically examined the implementation challenges of EURAs. The efficiency and legitimacy of EU and its Member States’ expulsion policies are being currently tested by several EU institutional instances from the perspective of enforced return rates as a percentage of the number of removal orders being issued.
- Migration Policy
- Joint Return
- Irregular Migration
- Practical Obstacle
- Travel Document
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This book has identified and critically examined the implementation challenges of EURAs. The efficiency and legitimacy of EU and its Member States’ expulsion policies are being currently tested by several EU institutional instances from the perspective of enforced return rates as a percentage of the number of removal orders being issued. On this basis, a number of policy initiatives have been put forward by the European Commission in order to increase the return rates of EU Member States. These include: first, enhancing the role of Frontex in supporting EU Member States in identifying and coordinating Joint Return (Flights) Operations to countries of origin; second, the development of biometric technologies and ensuring interconnections between national and EU/international databases; third, the adoption of a new EU travel document featuring higher technical and security standards; and fourth, the development of informal (non-legally binding) working arrangements on readmission with third countries.
It has shown that none of these EU proposals would satisfactorily address one of the most fundamental challenges facing the implementation of EURAs after their entry into force. A comparative analysis of six EURAs has shown that these legal instruments aim at establishing common rules, procedures and lists of documents seeking to facilitate the identification and removal of nationals to their countries of origin. While much attention has been paid in scholarly discussions to the dilemmas posed by the inclusion in EURAs of an obligation to readmit third-country nationals and stateless persons, a major point of controversy in the functioning of EURAs is the processes of identification (and subsequent issuing of travel documents by the relevant authorities of the requested state) of the nationality of the person to be readmitted.
The practical obstacles in the identification of own nationals to be readmitted raise far-reaching challenges which substantiate why removal orders cannot always be enforced by relevant authorities. These are summarised below.
First, EURAs trespass the sovereign boundaries of the requested third country in defining or assuming the nationality of the individual to be expelled. They foresee a number of rules and lists of documents used for determining nationality but which do not constitute irrefutable or complete proof of the nationality of the person. Instead, they presume substantiation of a ‘functional identity’ of the individual for the purposes of the application of EURAs irrespective of what the nationality legislation (law and practice) of the assumed country of origin specifies about who is or is not a national.
The controversy in the implementation or quasi-suspension of the EURA with Pakistan, or national cases such as Pham v. Secretary of State for the Home Department in the UK, illustrate the ongoing disagreements and kind of open questions that arise between states, and between the EU and third countries, over the legality of decisions determining legal identity of persons in the context of readmission policies. They also stand in constant friction with international and EU standards and principles limiting the margin of manoeuvre enjoyed by states and EU actors at times of documenting or determining the nationality of an individual, or in matters related to the withdrawal or deprivation of nationality.
Second, the nature of EURAs as tools of international relations relegate a proper focus of their effects over the agency and rights of individuals affected by readmission logics. The current EU’s obsession in increasing return rates blinds the fact that another key reason why people cannot be expelled is due to the obligations by EU Member States to guarantee their rights and entitlements as fundamental human rights holders stemming from the EU legal system. EURAs are now subject to the rights and guarantees foreseen by EU immigration and asylum legislation, such as those enshrined in the EU Returns Directive, as well as the judge-made standards and principles developed by the Luxembourg Court.
These standards ultimately recognize the need for irregular immigrants to have access to fair and effective remedies and good administration in relation to removal orders. This includes the fundamental right to appeal against a removal order before independent national authorities with the power to suspend the enforcement of expulsion. EU law guarantees also prevent the removal of individuals in cases where there is no guarantee of compliance with the principle of non-refoulement, on the basis of individual and fundamental rights (humanitarian, personal or family) circumstances or where practical obstacles (such as the lack of identification or travel documents) exist preventing removal.
The identified implementation challenges are further exacerbated by the lack of effective monitoring mechanisms to ensure proper and independent accountability of the ways in which concluded EURAs function. This is particularly so in respect of their implementation or post-readmission practices in third states, or in cases where EU agencies such as Frontex are involved through Joint Return Flights. The currently envisaged rules of Implementing Protocols or decisions adopted by Joint Readmission Committees in each of the EURAs, which remain confidential, fall short in ensuring the necessary level of transparency, democratic accountability and legal certainty in their practical application. The last written evaluation by the European Commission on the functioning of EURAs was issued in 2011. An objective and independent assessment of the value added of EURAs is equally jeopardized by the lack of accurate EU statistics regarding the nature, scope and effects of expulsions practices, and their relationship with EURAs.
Measuring the effectiveness of EURAs and EU expulsion policies on the basis of increasing the return rates puts the EU and its Member States in an existential conundrum: fastening and easing the enforcement of removal orders through readmission instruments opens up frictions with international and EU legal principles and standards applicable to the determination of who is a national of which state; the readmission logic also blurs the legal status of irregular immigrants as holders of fundamental rights and administrative guarantees envisaged in EU law and the EU Charter of Fundamental Rights. Proper compliance of inter-state and inter-personal standards are in turn central at times of ensuring humane, fair, human rights compliant and legitimate migration policies. These standards demand for expulsion rates to be ineffective.
This conundrum illustrates a deeper illusionFootnote 1 that the state—and the EU by default—can in fact effectively manage cross-border human mobility, and prevent irregular migration, irrespective of the agency of the individual. The implementation or practical obstacles examined in this book, which are inherent to the EURA logic in expulsion processes, might ultimately help us to understand why EU Member States have been so keen in calling and putting reiterated pressures on the European Commission to conclude EURAs with third countries. EURAs fail in overcoming the practical barriers to expulsion experienced at Member States’ arenas. They reveal a policy universe where national and EU actors intersect, compete and engage in ‘blame-shifting games’ over the ineffectiveness of expulsion policies.
The more recent EU policy priorities to move towards informal EU readmission arrangements and non-legally binding instruments may be read as an attempt by EU institutional instances and actors to find ‘the soft spot’ in third countries’ authorities which will be willing to cooperate on the readmission of the persons concerned outside existing venues and instruments subject to public, democratic and judicial accountability. In this way, EU external migration law and policy become an example of ‘venue shopping’. EU actors use or attribute new informal uses to readmission instruments and search for new fields of collaborations in an attempt to avoid legal (rule of law) constraints and find new co-operating parties or new allies in third countries.
These informal policy instruments and venues do not properly address, and may even exacerbate, the challenges in practical implementation related to the identification of own nationals which have been identified and studied in this book. EU readmission instruments lacking legal certainty and blurring individuals’ fundamental rights contravene the EU’s rule of law and fundamental rights foundations. They also undermine the credibility of the EU’s readmission policy. Assessing the effectiveness of EU migration policies must go beyond narrow numerical accounts of expulsion rates and the current policy obsession on increasing returns of irregular immigrants. For their legitimacy and value added to endure, EU policies must go firmly hand-to-hand with humane, fair and rights-compliant standards.
The analysis provided in this book reveals the complexities underlying the implementation dynamics of EU external migration law and policies and the external dimensions of the European Agenda on Migration. EURAs constitute one example of the wider toolbox of policy, legal and financial instruments delineating domestic and EU actors cooperation venues with third countries in the management of migration. The research findings substantiate the need for developing new theoretically grounded understandings of the foreign affairs-migration policy nexus which move beyond pure policy-transfer, implementation and instrumentation literature. The dynamics characterizing EU readmission policies show the need to pay attention to intersecting policy universes around which various (EU and third country) authorities and actors make use of legal and policy instruments according their interests, and the ways in which they relate, compete and collaborate when dealing with the inefficiencies inherent to irregular migration policies. Who are the main actors setting priorities, framing the agenda and using different instruments in the domains of migration, asylum and borders? Who benefits from the ‘external dimensions of the European Agenda on Migration’ and what are the main power dynamics and struggles at stake? How can we understand the complex and fragmented field of venues and multi-instruments framing EU’s relations with third countries on migration policies? This book has revealed how formal and informal readmission instruments and fields show frictions and present challenges escaping democractic rule of law and fundamental human rights of individuals.
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Bigo D (2005) Frontier controls in the European Union: Who is in control? In: Bigo D, Guild E (eds) Controlling frontiers: free movement into and within Europe. Ashgate Publishing, Aldershot, pp 49–99
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Carrera, S. (2016). Conclusions. In: Implementation of EU Readmission Agreements. SpringerBriefs in Law. Springer, Cham. https://doi.org/10.1007/978-3-319-42505-4_6
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