Executive summary

• Author: Eisele, Katharina
• Pages: 137-140

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

137

Executive summary

This s tudy presents an over view of the exter nally applicable policy and legal framewor ks that

operationalise the return and readmission of irregularly staying third country nationals under the

Retur n Directive.

The increasing emphasis by the European Commission on the rate of return as a primary indicator

of effectiveness runs the risk of incentivising return ‘at all costs’. Against this backdrop, the study

seeks t o provide context by mapping the formal and informal agreements that operationalise return

and readmission and the key fundamental rights obligations owed to persons in a return situation.

The stud y provides an analysis of the extent to which those agreements (against the current legal

framework) make provision for safeguarding of fundamental rights. The study t hen proceeds to

explore th e avenues for accountability un der those agr eements, before exploring key implications

on EU external affairs. In exploring the concept of “effectivenes s”, the st udy seeks to learn whether

it is presently possible to come to a concluded view abou t the effectiveness of the EU return and

readmiss ion policy and whether the return rate is should be the pr imary indicator of “effectiveness”.

The study finds that EU return and readmission policy has increasingly resorted to informal

cooperation in the external dimension, which has paralleled the emergence of an informalisation of

EU ret urn policy in the interna l dimension. The emer gence of informal mea ns of cooperation has

also witness ed an increased emphas is on operationalis ing retur ns an d the r ising pro minence of

Frontex in the field of return and in the external dimension, particularly in light of the recent

conclusion of Status Agreements with third countries.

The study identifies four main types of agreements: (1) formal EU readmission agreements

(“EURAs”), (2) informal agreements, (3) Frontex Working Arrangements and (4) Frontex Status

Agreemen ts.

Against t he backdrop of key fundamental rights applicable to persons in a return context, it finds

that although EURAs contain references to international human rights conventions, there is a

disjunction in the procedural safeguards available to persons returned to third countries. Although

often char acterised as “technical instruments”, it is arguable that they cannot be viewed in isolation

from EU secondary law and jurisprudence on international protection and return.

Some EURA s may als o have an indirect effect on t he legality of pre-removal detention. The informal

agreement s on return conta in minimal refer ences to funda mental rights. Central to deter mining

immu nity fro m criminal, civ il, and ad ministrativ e proceedings in third countr ies is the O perational

Plan in Front ex Status Agreements, but which are absent in the context of return operations in third

countries. The provisions on data processing in Status Agreem ents do not reflect the current

prohibition under the EBCG Regulation against onward transfer of personal data.

In terms of accountability, the study finds a need for post -return monitoring to understand the fate

of returned persons. It notes the lack of accountability of informal agreements both to the European

Parliament and Court of Justice of the EU, and highlights the limited avenues for ex ante budgetary

accountability by the Parliament for EU Trust Funds directed towards EU external migration policy

as id entified in a n ear lier s tudy .

The inaccessibility, even t o affected perso ns, of complete Fr ontex Opera tional Plans is identified as

a sig nificant obs tacle t o judicia l accoun tability. In deed, t he ECHR a nd EU public lia bility m echanisms

do no t com pletely pro vide fo r the att ribut ion of re spons ibility o r liabilit y in m ultiple-a ctor contexts

in which Frontex operates.

The implications on EU external affairs has seen EU return and readmission policy resort to

incentivisation. Conditionality has obscured the lines between international development and