Conclusion and recommendations

• Author: Eisele, Katharina
• Pages: 199-200

Part III: The External Di mension of the EU Return Dire ctive

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9. Conclusion and recommendations

This stu dy explored the external dimension of the Retu rn Directive, with a par ticular focus on the

forma l and info rmal EU agreements that operationalise readmission, as well as th e role of Frontex

and the as sociated agr eements.

The stud y highlighted the development of EU return and readmission policy and showed how it has

developed from a normative-based approach to its current approach which is driven by the need

for flexibility and t he pr ior itisa tion of oper ationality. This has paralleled the em erge nce of

conditionality towards third countries and the enhanced role of Frontex both in return operations

and in and with third cou ntr ies.

Amongst the fundamental rights considerations pertinent to persons subject to return and

read mission are non-refoulement (includin g indirect refoulement), t he right to an effective remedy,

the prohibition on collective expulsion, the right to liberty and data protection.

The s tudy has rev ealed the inadequacies of the bo th formal and infor mal agreements t o ensure

fundamental rights safeguards in third countries for persons subject to return and readmission,

notwithst anding that, at times, these agreements make express reference to international human

rights conventions. In the case of persons returned under safe third country provisions, there is an

absence of corresponding obligations from the third country towards the returned person.

Althoug h readmission agreements have been described as operational in focus, it is arguable that

they cann ot be v iewed in is olation fr om EU se condary leg islation an d jurisprudence on international

protection and return. Indeed, da ta regarding the fate o f returned perso ns is conspicuous by its

absence – in ter ms o f indicat ors , dat a and po st ret urn mo nitoring.

In ter ms of account ability, the emer gence of informal agreements has had a concomitant effect on

Parlia mentar y and jud icial account ability. The role o f Front ex in mu ltiple-actor contexts presents

particular obstacles to judicial accountability that underscores the need for ECHR and EU public

liabilit y law t o deve lop in s uch a way as t o enable a ttributio n of respo nsibility and liabilit y in all cases.

Readmission and return have become a key priority in EU external affairs that has entrenched the

use of conditionality to secure readmission agreements or migration outcomes but which has also

blurred the lines between international development and hum anitarian aid principles. A

consequence of t he conclusion of readmission agreements with thir d countries has been a “domino

effect” of readmission agreements with other third countries. Such a consequence arguably

cont ribut es t o respons ibility sh ifting – rather than sharing – of forced migrant populations, contrary

to the int ention of the Globa l Compact on R efugees.

An emphasis on the return rate as the primary indicator of policy success should be approached

with caution. This is not only because of the methodological shortcomings for doing so and

concerns abo ut the reliability of the underlying data, but also because a qualitative assessment of

the return and readmission policy is necessary to form an accurate view about return and

readmiss ion policy in practice (including the consequences for persons returned). The express focus

on the return rate, combined with an emphasis on the operational over the normative, discounts

the im portance of fundamental rights obligations and an adherence to the rule of law.

A m apping of the for mal agreements a nd informal arrangements has r evealed the fundamental

rights imp lications these agreements can hav e on persons subject to r eturn and readmiss ion.

On the basis of these findings, the study makes the following policy recommendations: