EU Return Research Articles

Democracy Matters (To Some Extent): Autocracies, Democracies and the Forced Return of Migrants from the EU

ABSTRACT This article analyses whether the European Union returns more irregular migrants to democratic or autocratic states. It establishes the EU’s return rates with the whole world over a period of twelve years (2008–2019) and connects it to non-EU countries’ democratic credentials. Democracy mattered to some extent in the sense that the EU had generally fewer return orders and higher return rates with democratic states. Yet, a macro perspective indicates that the EU was driven by an interest to maximise returns to non-EU countries, irrespective of the regime type. Some autocratic regimes – and those that became more autocratic – had high return rates and were actively targeted for achieving more returns. A non-EU country’s change towards more or less democratic standards had a comparatively minor likelihood of impacting the EU return rate.

A closer look at the dissertation with the title: Crimmigration and the EU Return Directive: fundamental rights, criminal sanctions and the legal position of the migrant

A closer look at the dissertation with the title: Crimmigration and the EU Return Directive: fundamental rights, criminal sanctions and the legal position of the migrant

Mutual trust through the looking glass: The protection of children’s fundamental rights in EU return proceedings

The principle of mutual trust underpins EU proceedings for the return of the child following abduction. On such a basis, the courts of the Member State of refuge shall trust the courts of the Member State where the child was habitually resident immediately before the abduction being willing and capable to protect the EU fundamental rights of the child concerned. Therefore, they should not refrain from enforcing a certified judgment requiring the immediate return of the child, even in situations where there is a clear risk that the return is contrary to that child’s best interests. The purpose of this article is to demonstrate that there is a necessity – in the field of EU proceedings for the return of the child following abduction – to move beyond absolute trust, in order to ensure adequate protection of the children concerned.

The EU Returns Agency: The Commissions’ Ambitious Plans and Their Human Rights Implications

Abstract The effective return of irregularly staying migrants is identified as an overriding objective in the New Pact on Migration and Asylum, while return operations are the fastest-growing activity of Frontex. Since the 2019 amendment of its Regulation, the agency has received a significant augmentation of its mandate and capacity in pre-return and return-related activities. This way, Frontex takes a centre-stage role in the Commission’s plan to intensify returns. This article fills the relevant gap in existing literature, updating our knowledge on the latest legislative developments in EU return operations and answering questions related to their human rights implications at a time when the scrutiny over Frontex is at its peak. The article discusses the human rights risks of these operations and the effectiveness of the available safeguards. This article is the product mainly of legal doctrinal research, i.e. the analysis of the relevant EU law and legal literature, along with civil society and institutional reports and other empirical documentation. At the same time, it also looks at quantitative data on the agency’s return activities from 2004 until 2019.

The impact of ECtHR case-law on the CJEU's interpreting of the EU's return acquis: More than it first seems?

Abstract After canvassing the CJEU's return-related case-law and identifying the references to the ECHR and the Strasbourg case-law within it, based on empirical research of CJEU rulings, this article explores the possible reasons and motivations for the EU Court's more guarded approach towards ECHR and ECtHR case-law in interpreting and developing the EU's return acquis (as opposed to the EU asylum legislation). Potential explanations are manifold. Nonetheless, one might still argue that, substance-wise, quite a number of human rights protected under the ECHR and ECtHR case-law have been presented in the CJEU rulings as EU law standards. Hence, it is also arguable that ECtHR jurisprudence does play a role behind the scenes in the CJEU's deliberations but does not surface in the judgments themselves.

En Route to Europe? The Anti-politics of Deportation from North Africa to Mali

ABSTRACT In the last 30 years Europe has attempted to strengthen its territorial borders with Africa through new migration governance practices. This article takes its point of departure in recent mass expulsions of Malian migrants from Algeria to reception centres in Niger to analyse the interlinked processes of deportation from North Africa to Mali and the increased dissatisfaction among the deportees ‘assisted’ by EU funded return and reintegration programmes in Mali. Through the analytical lens of the ‘anti-politics machine’ (Ferguson 1996), the article argues that the attempts to transform European borderwork practices into a ‘softer’ and ‘more humanist’ approach to migration management create new, contested, border zones aiming to obstruct African migrants’ mobility. The article shows how these new, EU-driven, migration management regimes, which are increasingly disconnected from local politics and mobility practices, spur contestations in Sahelian countries of origin, transit and reception. Thereby, the article provides insights into the unintended effects of how EU return governance is implemented, who it benefits, and who it leaves behind.

The EU's ‘return rate’ with third countries: Why EU readmission agreements do not make much difference

AbstractThe signing of EU readmission agreements is commonly believed to lead to a higher rate of returns of migrants found ineligible to stay in Europe. By analysing the EU’s ‘return rate’ with the whole world over a period of 11 years (2008–18), this article argues that (formal or informal) EU readmission arrangements may have less impact than widely assumed. They often lead only to temporary increases in the return rates of third countries – if at all. Their relevance may have been overstated, even in Eastern Europe and the Western Balkans, when looking at the return rates of neighbouring states without agreement. The return rates of third countries tend to follow regional dynamics. Most African states have converged at lower levels, irrespective of readmission cooperation with the EU. These regional trends imply a widening gap between regions with high and low EU return rates.

Legislating without Evidence: The Recast of the EU Return Directive

Abstract The article discusses the recast of the EU Return Directive (2008/115/EC) from the perspective of effectiveness and fundamental rights protection, as two underlying objectives of the Directive. Relying on the implementation assessment of the Directive carried out by the European Parliamentary Research Service, the article analyses the way in which Member States have implemented the Directive and how this has impacted the effectiveness of the Directive. If adopted as proposed, will the recast strengthen or further undermine the effectiveness? The assessment focuses on return decision, voluntary departure, entry ban, and detention. It also looks at omissions in the recast proposal, namely a missed opportunity to remedy the current shortcomings as regards non-returnable people. As the article concludes, the recast proposal will hardly improve the effectiveness of return and may lead to violations of fundamental rights of people in an irregular situation.

The EU return system under the Pact on Migration and Asylum: A case of tipped interinstitutional balance?

AbstractThe article holistically discusses the alleged new EU return system which the Pact on Migration and Asylum heralds. Absent any impact assessment accompanying the key draft legislative measures and any implementation report regarding the existing legislative instruments following the 2015 refugee‐protection crisis, it provides both a substantial and a formal assessment of the proposed reform. A substantial analysis reveals that the two main objectives of the EU return system, namely effectiveness and human rights compliance, are pitted against each other to the detriment of human rights compliance and that effectiveness is questionably narrowed to return rate. Looking at the key components of the return system under the Pact and taking into account past interinstitutional negotiations in the field, it shows that the draft proposals are not conducive to fulfilling these objectives. From a formal standpoint, the article questions the weight of the Commission's proposals on the future outcome of the current negotiations based on their lack of legitimacy.

Reforming me softly – how soft law has changed EU return policy since the migration crisis

In the wake of the 2015/2016 migration crisis, EU policy-makers have urged returning more irregular migrants. In order to achieve this, the EU has adopted a series of non-binding documents for European administrations (such as the EU Return Handbook) and agreed on informal return deals with countries of migrants’ origin including Afghanistan. This article argues that the EU’s shift towards soft law has not altered the EU’s return policy in a profound way. Yet, it has managed to ‘convert’ EU return policy by emphasizing a particular interpretation of existing hard law (towards more restrictive practices and a stronger focus on ‘efficiency’). The soft law approach has also allowed policy-makers to signal action in times of crisis at lower legislative and sovereignty costs.

An EU Regularization Directive. An effective solution to the enforcement deficit in returning irregularly staying migrants

A key challenge in migration governance at the EU level has been that of ‘combatting’ irregular immigration. Perhaps one of the most pressing structural problems regarding the EU’s return policy is the enforcement deficit in returning irregularly staying migrants. Even though Member States must issue a return decision according to the Return Directive, only 40% of such decisions are enforced. Despite all of the political and legal efforts made, the EU is not making any significant progress in enforcing the rules laid down in the Return Directive. This contribution explores a different legal approach that is already used rather extensively in national legislation of EU Member States, which targets irregular residence through a differentiated system of granting residence permits, that is, regularizations. Hence, this paper argues for an EU Regularization Directive, which could contribute to a reduction in the number of irregularly staying migrants. Through such a Directive, which would complement the existing EU return policy, a more effective ‘combatting’ of irregular immigration at the EU level could be achieved.

EURODAC AS AN INSTRUMENT OF THE EU RETURN POLICY

The proposed recast Eurodac Regulation of 2016 extends its previous scope so that both illegally residing third-country nationals and those who have entered the EU irregularly at its external borders could be identified and so that this information could be used by Member States to re-document them for return purposes. In this way Eurodac will, according to the European Commission, contribute to the fight against irregular migration. The proposal is meant to improve the effectiveness of the EU return policy by facilitating the identification of persons illegally on the territory of the EU. After it is adopted, the new Eurodac Regulation may be considered as an example of a flanking instrument of the EU return policy. It should be emphasised that on the one hand the provisions foreseen in the Regulation are highly valuable when it comes to ensuring the effectiveness of the EU return policy. On the other hand, however, it is still unknown what effects it will bring when adopted.

The EU Return Directive – Retour à la «case départ»?

The EU Return Directive has been adopted 10 years ago. The following article analyzes whether the system that has been created has met the objectives set in 2008. It will especially focus on shortcomings hat can be illustrated by CJEU judgments. The 2018 proposal for a recast of the Directive will also be studied. The article comes to the conclusion that it will be inevitable to go back to the start and think about a better legal regime tackling the issue of returning irregular migrants.

EU Institutions in Denial: Non-Agreements, Non-Signatories, and (Non-)Effective Judicial Protection in the EU Return Policy

Acts of the European Union’s institutions and agencies can only be declared invalid by the Court of Justice of the European Union (‘Court’), who is also in charge of ensuring the uniform interpretation of EU law. For this reason, effective judicial protection against Union’s acts depends largely on the scope of the Court’s jurisdiction. The Court can only interpret acts attributable to the Union and it can only declare invalid those Union’s acts that produce legal effects vis- a-vis third parties. How should these requirements be interpreted in light of the fundamental right to effective judicial protection? First, the paper answers this question based on the Court’s case law. Then, it relates that answer to the most recent developments of the EU return policy. This policy field has seen a proliferation of purportedly non-binding arrangements with third countries, sometimes difficult to attribute to the Union – as opposed to its Member States – due to the sui generis and opaque nature of their negotiating process. The paper verifies whether the right to effective judicial protection requires that all or some of these arrangements be subject to judicial scrutiny as acts ultimately attributable to the Union and capable of producing legal effects.

The EU and its Perilous Journey Through the Migration Crisis: Informalisation of the EU Return Policy and Rule of Law Concerns

The paper studies the effects of the migration crisis on the EU external action in the field of return and readmission of irregular migrants. It develops the following thesis: the external relations of the Union in the field of return have taken a different legal shape in response to the EU migration crisis. More particularly, they have gone through a process of informalisation, that casts doubt as to their compatibility with the rule of law. To prove this thesis, the paper starts by describing the tendency of the Union’s Institutions to rely increasingly on informal cooperation tools with third countries, as opposed to formal international agreements. Secondly, it explains in detail why this tendency is problematic from a rule of law perspective. It does so by analysing those primary law provisions intended to ensure the judicial and democratic accountability of the Union’s external action, and by testing their (in)applicability to informal deals.

Eurodac as an Instrument of the EU Return Policy

Eurodac as an Instrument of the EU Return Policy

EU migration law shaping international migration law in the field of expulsion of aliens – the case of the ILC draft articles

Since the Treaty of Maastricht, EU law has become more open to international law and has engaged with it in different forms of interactions. The influence of EU law on universal law-making has found its way through different legal channels and techniques. The article thoroughly scrutinizes the impact of EU return acquis on the development of the international law governing the ‘expulsion of aliens’, which can be best analysed through the work of the UN International Law Commission (ILC) on the expulsion of aliens (2004–2014). The ILC’s approach has come a long way from the mere ignorance of EU law and the EU’s submissions by the special rapporteur in the early stages of the codification work until it has gradually taking into account major EU migration law concepts in ILC reports and in the draft articles. The 2014 ILC draft articles on the expulsion of aliens have finally been, in many aspects, inspired and influenced by EU law, especially the Return Directive (2008/115/EC). This short piece meticulously explores the inroads EU return law made in relation to the ILC work on the expulsion of aliens, by identifying and critically evaluating the tangible impact of EU law on the UN codification project.

EU Migration Law Shaping International Migration Law in the Field of Expulsion of Aliens: The Empire Strikes Back?

Since the Treaty of Maastricht, EU law has become more open to international law and engaged with it in different forms of interactions. Influence of EU law on universal law-making finds its way through different legal channels and techniques. The article thoroughly scrutinizes the impact of EU return acquis on the development of the international law governing the ‘expulsion of aliens’, which can be best analysed through the work of the UN International Law Commission on the expulsion of aliens (2004-2014). For the ILC’s approach, it has come a long way from the mere ignorance of EU law and the EU’s submissions by the special rapporteur in the early stages of the codification work until gradually taking into account major EU migration law concepts in ILC reports and in the draft articles. The 2014 ILC draft articles on the expulsion of aliens have finally been in many aspects inspired and influenced by EU law, especially the Return Directive (2008/115/EC). This short piece meticulously explores the inroads EU return law made in relation to the ILC work on the expulsion of aliens, by identifying and critically evaluating the tangible impact of EU law on the UN codification project.

The Problem of Criminalisation of the Illegal Entry of a Third-Country National in the Case of Breaching an Entry Ban—Commentary on the Judgment of the Court of Justice of 1 October 2015 in Case C 290/14, Skerdjan Celaj

This article seeks to analyse the judgment of the Court of Justice in the Celaj case. The ruling in question concerns Italian national legislation which facilitates the imposition of criminal law sanctions on a third-country national who illegally enters the territory of a Member State accompanied by a breach of a previous entry ban. Although Advocate General Maciej Szpunar claimed in his opinion that such a national provision was incompatible with the main purpose of the Return Directive (which is, in principle, to return every undocumented migrant), the Court of Justice decided in the final judgment that the criminalisation of such an illegal entry should be allowed. Moreover, in its ruling, the Court of Justice suggests that authorities should differentiate between the first entry and subsequent entries and thus apply the provisions of the directive accordingly. The author analyses and compares the Advocate General’s opinion with the final judgement of the Court and examines the consequences of the ruling for eu return policy. The ruling in question, which, in the author’s opinion, has a precedent character and may raise controversies, implies a juxtaposition of conflicting values: the principle of effectiveness of the Return Directive as opposed to ensuring full respect for the rule of law, the effectiveness of law and of the principle of ‘nullum crimen sine lege’. By giving priority to the principles of the rule of law and legal certainty, the Court clearly indicates that ‘it is not a crime to be a foreigner,’ yet the law imposes certain rules and duties on foreigners, which they must abide by, whereas the duty of Member States is to uphold the rule of law.

EU RETURN POLICY AND INTERNATIONAL HUMAN RIGHTS LAW: KEEPING THE BALANCE BETWEEN BORDER SECURITY AND HUMAN DIGNITY

This article focuses on the current state of EU immigration legislation and aims to provide a critical analysis in light of international human rights law. Over the past ten years, EU Summits have emphasized the need for the adoption of new legislative measures to converge to a true European common policy on immigration. At present the mainstream debate on immigration in Europe focuses on several different topics. On the one hand, there is the need to secure the borders and control undocumented immigration, while on the other hand there is the question of the protection of migrants’ human rights and the improvement of the EU immigration system. There is also a third element, which is EU relations with the immigrants’ countries of origin. The current legal framework articulated around the Return Directive sets out the rules and principles to be applied by Member States to third country nationals who do not fulfil, or no longer fulfil, conditions of entry in accordance with EU legislation. I intend to examine the EU return policy in the light of EU law and of international human rights law. In addition, I discuss Italian and Spanish practices in their relations with the countries of origin.