Jean-Pierre Cassarino

 

“No one knows the numbers who have died trying to get to Europe. No one knows the number of people who have died after seeking and being denied asylum at the borders of Europe. No one knows the numbers who have died at the hands of officials of their own countries on being returned as rejected asylum-seekers from Europe.” (Abell Albuquerque, Nazaré -1999)

 

 

What happens when illegal emigrants and rejected asylum-seekers are forced to return? Under which conditions is their readmission organised? The “management” of this phenomenon is not new in the history of international relations. For many decades, destination and origin countries have concluded bilateral agreements aimed at facilitating the return of their nationals. Since the early 1990s, the issue of readmission has become part of the immigration control systems developed by the EU and its Member States.

The vast majority of readmission agreements are concluded at a bilateral level and include reciprocal obligations as well as procedures pertaining to the identification process of undocumented migrants. The contracting states also commit to carrying out removal procedures without unnecessary formalities and within reasonable time limits, with due respect of their duties under their national legislation and the international agreements on human rights and the protection of the status of refugees, in accordance with the 1951 Geneva Convention relating to the status of refugees and its 1967 protocol.

Despite the letter of those agreements, various human rights organisations and associations in Europe and abroad have repeatedly denounced the lack of transparency that surrounds the implementation of readmission agreements and deportation operations. Such public denunciations have not only questioned the compliance with the obligations and principles contained in the bilateral readmission agreements. They also raised growing public concerns regarding the respect of the rights and safety of the removed persons.

In fact, the willingness of a country of origin to conclude a readmission agreement does not mean that it has the legal institutional and structural capacity to deal with the removal of its nationals, let alone the forced return of foreign nationals and the protection of their rights. Nor does it mean that the agreement will be effectively or fully implemented in the long run, for it involves two contracting parties that do not necessarily share the same interest in the bilateral cooperation on readmission, nor do they face the same implications, at the domestic and regional level.

Whilst the interest of a destination country sounds obvious (“unwanted migrants have to be effectively removed”), the interest of a country of origin may be less evident, above all when considering that its economy remains dependent on the revenues of its (legal and illegal) expatriates living abroad, or when migration continues to be viewed as a safety valve to relieve pressure on domestic unemployment. This statement is particularly true regarding the bilateral negotiations on readmission between some EU Member States (particularly France, Spain and Italy) and countries in the South Mediterranean and Africa.

Special trade concessions, preferential entry quotas for economic migrants, technical cooperation, increased development aid, and entry visa facilitations have been the most common incentives used by the EU-27 Member States to induce countries in the South Mediterranean and Africa to cooperate on readmission.

Making an inventory of all the bilateral readmission agreements concluded between these countries would not suffice to grasp the various mechanisms and cooperative instruments that have emerged, over the last decade, to sustain the removal of illegally resident third-country nationals.

Actually, the parties may opt for alternative ways of dealing with the issue of readmission including additional forms of mutual assistance – e.g., police cooperation agreement, arrangements – or by choosing to couch their cooperation in other types of deals, including exchanges of letters and memoranda of understanding

These alternative ways do not constitute formal readmission agreements. However, they are no less agreements for that, having various implications on state-to-state relations and other things besides.

 

Towards a new compromise

These alternative patterns of cooperation stem from changing circumstances and power relations.

Exerting pressure on migrants’ countries of origin or last transit to induce them to cooperate on readmission might be tactically mistaken, above all when these countries have been gradually empowered following their proactive involvement in joint police operations aimed at reinforcing the control of the external borders of the EU.

Indeed, various North African countries (particularly Algeria, Egypt, Libya, Mauritania, Morocco, and Tunisia) have been jointly involved in numerous police operations aimed at controlling the external borders of the EU, at bilateral and multilateral levels. These operations have been conducive to the emergence of unprecedented patterns of interconnectedness between the North and the South of the Mediterranean. Not only because they promote, among other things, exchanges between national law-enforcement agencies, but also because these operations have allowed various

South Mediterranean countries to play the efficiency card in migration talks and to enhance their international credibility in the management of migration and border controls. These countries, and their regimes, have become strategic partners in migration talks and they intend to capitalise on their empowered position.

Policy-makers in the EU member states, particularly France Italy and Spain, are becoming aware that a new compromise on readmission needs to be found in order to guarantee a modicum of cooperation with these strategic (and empowered) countries.

Miguel Angel Moratinos, Spain’s current Minister of Foreign Affairs, acknowledged in 2006 that the “old approach to readmission” has to be revisited, and that a broader framework of cooperation should be promoted including, among other things, the issue of readmission.

The point is to find quick and quiet solutions to deal with the issue of readmission while opting for the conclusion of bilateral arrangements which, in contrast with formal readmission agreements, are less visible and, consequently, more difficult to monitor. Readmission agreements are unpopular in North African and sub-Saharan emigration countries and governments do not like to publicise them.

The growing importance of these arrangements constitutes a fait accompli showing that there has been a shift in priority actions with regard to African countries. These flexible and informal arrangements have been conducive to enhanced technical assistance to the police forces of these countries. This implies that the operability of the bilateral cooperation on readmission with North African and sub-Saharan countries is being prioritised over its formalisation.

However, this shift in priority actions, motivated by short-term security concerns, may be at variance with the required protection of the human rights of the removed persons, let alone the promotion of a genuine legal system, in line with the aforementioned 1951 Geneva Convention, aimed at the respect of the rights of migrants and asylum-seekers in African countries.

The lack of formalisation implies an unacceptable lack of transparency in the readmission procedures. Furthermore, the enhanced cooperation between national police forces raises serious concerns as to its compatibility with any concrete progress in the field of good governance, democracy, and public accountability in African countries. Aren’t these issues the actual root causes of refugee movements and migration, together with underdevelopment and poverty?

 

Parts of this article draw on an essay published by the author in "The International Spectator" (Vol. 42, 2007), entitled "Informalising Readmission Agreements".