2. The EU and the Ineffectiveness of Expulsion Policies

The European Migration Agenda, adopted by the European Commission in May 2015, acknowledged that the EU expulsions system is “ineffective” in view of the rates of successful returns of third-country nationals given a removal order. In order to tackle this challenge, the Agenda called for ensuring that third countries fulfil their international obligation to take back their own nationals residing irregularly in Europe, particularly in the context of readmission instruments.¹

In a letter drafted by the European Commissioner for Migration, Home Affairs and Citizenship Dimitris Avramopoulos to EU Member States on 9 June 2015 a similar issue was raised. The letter stated that “one of the incentives for irregular migration is the knowledge that the EU’s system to return irregular migrants, or those whose asylum applications are rejected, is not sufficiently fast and effective”.² The Commissioner highlighted that “we must make sure that the countries of origin of these irregular migrants cooperate and take them back.” The letter expressed concerns about EU Member States’ lack of enforcement of removal orders and the “low rate of returns”—less than 40 % during 2014—which in his view jeopardized the credibility of EU policy seeking to reduce irregular immigration.³ The annex of the letter included a Paper titled “Increasing the effectiveness of the EU system to return irregular migrants” which offered a number of concrete policy measures aimed at making return effective; i.e. increasing the rates of return. The paper first calls for the need to better enforce return by focusing on the “immediate identification of migrants upon arrival” and obtaining the necessary travel documents for readmission.

The paper referred to the role by Frontex (the EU external borders agency) in providing assistance to EU Member States in identification under the Hotspot approach in Greece and Italy⁴ and “obtaining the documents for readmission by taking the necessary steps with the authorities of the countries of origin, on behalf of EU Member States”. The Hotspot model entails the deployment of operational support by EU agencies such as Frontex, but also Europol and European Asylum Support Office (EASO), involved in the screening of TCNs (identification, fingerprinting and registration), provision of information and assistance to applicants of international protection and the preparation and removal of irregular immigrants.⁵ Following identification, the paper added, “Member States should use more systematically the possibility to return irregular migrants through Joint Return Operations organized and/or coordinated by Frontex”.

The Commission has more recently reported that “Frontex [guest officers] will support the Greek authorities in verifying the identity of third country nationals and whether they have been registered in the relevant databases” in Greece.⁶ It recommended that “IT systems should be updated to first deploy a fully-fledged Automated Fingerprinting Identification System (AFIS) and then to ensure that interconnections between national and EU/international databases are established, thereby allowing for a full check of arriving migrants against Schengen Information System (SIS) II/Interpol Stolen and Lost Travel Documents (STLD) databases.” Similar recommendations were advanced for the Hotspots in Italy.⁷

Increasing return rates were also confirmed as a priority by the Commission’s “EU Action Plan on Return” of September 2015 and as the most important way of enhancing the efficiency of the EU expulsion system.⁸ The Commission emphasized that boosting cooperation in returns and readmission with main countries of origin and transit of irregular immigrants constituted an essential ingredient for increasing the return rates. The Action Plan also underlined that expulsion is easier with countries that have entered into an EURA with the EU.

The Council Conclusions on the future of the returns policy adopted by EU Member States’ representatives in October 2015 welcomed the Commission’s calls for increasing the capacity of the Member States to return irregular migrants.⁹ Member States sent ‘the ball back’ to the EU authorities by stating that both “The EU and its Member States must do more in terms of return.”¹⁰ The Conclusions insisted on what has become a mantra in recent decades of European cooperation on migration with third countries: the European Commission should ensure that “ongoing negotiations on readmission agreements are accelerated and concluded as soon as possible.”¹¹ In this context, the Council welcomed the further development of the ‘more for more’ principle (conditionality) as a way to increase the Commission’s leverage when attempting to persuade third countries to sign EURAs.¹²

The Conclusions also invited the European Commission and the European External Action Service (EEAS) to promote the EU laissez-passer (standard document for expulsion of TCNs) in order for it to become the commonly accepted travel document for expulsion procedures.¹³ The European Commission presented a proposal for a European travel document for the return of illegally staying TCNs on 15 December 2015.¹⁴ The proposal underlines that “the effective return of third country nationals who do not fulfil or no longer fulfil the conditions for entry, stay or residence …is an essential part of a comprehensive approach to ensure the proper functioning of the EU migration policies and for maintaining public trust in the Union migration system”.¹⁵ The proposal for a Regulation also emphasizes that the lack of valid travel documents issued by the country of destination of the person to be removed constitutes one of the most important obstacles to ‘successful return’. It concluded that the recognition of the 1994 EU standard travel document is low “because of its unsatisfactory security features and standards”.¹⁶ The proposal, which is currently under inter-institutional negotiations, would introduce a new common format for a European travel document for return aimed at ensuring “high technical and security standards”.¹⁷

Another recent priority has given preference to informal or legally non-binding EU working arrangements on readmission in the scope of so-called high-level migration dialogues of the EU. This working logic is evident in the Action Plan agreed by EU Member States in the Valletta Summit of 11 and 12 November 2015 which concluded the priority to “develop practical cooperation arrangements and bilateral dialogues on implementation of returns with regard, in particular, to identification and issuance of travel documents”.¹⁸ A first outcome has been the Joint Declaration on Ghana-EU Cooperation on Migration of 16 April 2016, which states in paragraph 11 that “… both parties agreed on the need to significantly increase in the short-term the speed and efficiency of procedures for returning and receiving irregular migrants and the timely issuance of travel documents required for return. The parties agreed to deepen the discussions at the technical level. Ghanaian authorities committed to organize pilot identification missions in EU Member States [not later than June 2016]”.¹⁹

One of the most visible priorities of the EU responses to the 2015–2016 ‘European refugee crisis’ has been facilitating the identification of TCNs for the purposes of expulsion. The Commission Communication “Towards a reform of the common European asylum system and enhancing legal avenues to Europe” COM (2016) 197 of 6 April 2016 called Member States of first entry in Schengen territory to “identify, register, and fingerprint all migrants, and return those not in need of protection.” The Communication advanced a legislative reform of the large-scale database Eurodac, which currently includes data and biometrics of asylum seekers in the EU.²⁰ Controversially, the Commission announced the plan to

…extend the scope of Eurodac as a means to contribute to the fight against irregular migration by allowing the system to be used to facilitate the return of irregular migrants. In doing so, Eurodac will be used as a means to accelerate the identification and re-documentation of migrants and will enable a better assessment of the prospect of absconding, thus enhancing the effectiveness and speed of return and readmission procedures.²¹

The Council Conclusions “on the expulsion of illegally present third country nationals” adopted in May 2016 emphasized that the previosly mentioned legally non-binding EU readmission informal arrangements should pertain in particular own nationals.²² In the same vein, the Council Conclusions “External aspects of migration” of 23 May 2016 called for the full implementation of the Valletta Action Plan and the need “for full and effective implementation of existing readmission agreements” as central components of “the external aspects of the European Agenda on Migration”.²³ The Conclusions highlighted: “the Council, in close cooperation with the Commission, is committed to enhanced and more effective cooperation on return with key countries of origins and transit, in particular with Pakistan, Afghanistan and Bangladesh”.

The Commission Communication “on establishing a new Partnership Framework with third countries under the European Migration Agenda” of 7 June 2016 re-stated the need to increase returns rates to countries of origin and transit as a part of a “new comprehensive cooperation with third countries on migration”.²⁴ The Commission expressed its plans to develop “comprehensive partnerships (compacts) with third countries”, which would chiefly aim at including joint efforts to make readmission and return work. The Communication underlined the need to ensure that third countries readmit their nationals by focusing on:

Coordinated and coherent EU and Member State coordination on readmission where the paramount priority is to achieve fast and operational returns, and not necessarily formal readmission agreements. The facilitation of the identification of irregular migrants in view of their readmission by strengthening third countries’ capacity to ensure functioning civil registries and fingerprint or biometrics digitalisation, as well as capacity building on border and migration management. Stepping up Assisted Voluntary Return and Reintegration initiatives on the route to help countries of transit in returning third country nationals to their countries of origin whenever possible, including promoting regional cooperation among countries of origin and transit. The acceptance by partner countries to use the EU laissez-passer for return operations.