Maddalen Martin-Arteche , 16 janvier 2020

On 9 January 2020 a readmission agreement and an agreement on the facilitation of the issuance of visas were signed between the EU and the Republic of Belarus. Pursuant to Article 218 TFEU, following their signature, the two aforementioned agreements will be submitted to the European Parliament for its consent. In addition, their entry into force requires that the Belarus National Assembly ratify them.

Readmission agreements set out procedures for the identification and return of persons who do not, or no longer, fulfil the conditions for entry to, presence in, or residence on the territory of the third country or of a Member State of the EU.

By virtue of Article 79(3) TFUE, the EU enjoys explicit competence to conclude readmission agreements with countries of origin or provenance of third-country nations found to be illegally in the territory of a Member State. On the basis of said article, the EU has so far concluded 17 formal readmission agreements and negotiations are still in place to conclude agreements with Morocco, Algeria, China, Tunisia and Nigeria.

The competence to conclude readmission agreements is, in fact, shared between the EU and its Member States. Therefore, the 17 EU readmission agreements coexist with bilateral readmission agreements adopted between EU Member States and third countries.

Although readmission of a country’s own nationals is an obligation under international law, practice has shown that many third countries do not cooperate on readmission. This explains why almost all the 17 EU readmission agreements have been adopted in parallel to visa facilitation agreements (except for Hong Kong, Macao, Sri Lanka, Pakistan and Turkey). Visa facilitation agreements are offered as an incentive to third countries in order to cooperate with the EU on readmission.  

The EU is also willing to broaden the scope of policies which can contribute to enhancing cooperation with third countries on readmission. Opening up legal pathways for regular migration or reinforcing support for reintegration of the returnees have already been offered to third countries. Negative incentives, such as restrictions on issuance of visas to force a non-cooperating third country to cooperate on readmission, are also available. The Council has recently baptized this approach to migration management a “whole of government approach”.

Not only has the EU innovated in the leverage used in order to increase third countries’ cooperation on readmission, but also in the type of arrangements adopted which contain readmission clauses. Indeed, several political declarations have been adopted since the beginning of the new century, such as mobility partnerships with Cape Verde (2008), the Republic of Moldova (2008), Georgia (2009), Armenia (2011), Morocco (2013), Azerbaijan (2013), Tunisia (2014), Jordan and Belarus (2015), three Common Agendas on Migration and Mobility with Ethiopia (2015), Nigeria (2015) and India (2016) and good practice arrangements with Afghanistan (2016), Bangladesh and Guinea (2017) and Ethiopia, Ivory Coast and The Gambia (2018).

Even if the aforementioned innovative instruments and leverage used to cooperate on readmission provide for a higher level of flexibility, as they allow the EU to consider the specific situation and needs of each third country, they do not come without criticism. Informal agreements exclude the European Parliament from the procedure to adopt them and scape from the Court of Justice of the European Union’s jurisdiction. Their lack of transparency is also usually pointed out, since they are not always made publicly available. What is more, linking cooperation on readmission with other EU policy areas, such as development cooperation, is said to undermine the objectives pursued by the EU under those other fields.

Despite the above, the so-called “whole of government approach” will most probably pave the way for an increased use of migration conditionality in EU external relations.

Maddalen MARTIN ARTECHE, New EU readmission agreement signed with Belarus on 9 January 2020, actualité du CEJE n°1/2020, disponible sur www.ceje.ch