Policy Context and Legal Basis

• Author: Eisele, Katharina
• Pages: 150-154

EPRS | European Parli amentary Re search Servic e

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2. Policy Context and Le gal Basis

Over the past 25 years, EU readmission policy has transitioned from a relia nce on for mal

international treaties to informal cooperation with third countries.22 According to Cassarino, EU

readmiss ion policy has evolved through three phases: first, a normative phase (1999-2005), a

transition phase towards flexibility (2005-2009), and a phase driven by flexibility (2010 – present).23

The informalisation of the external dimension of EU return policy has also paralleled an

infor malis atio n of the in tern al dime nsion o f EU ret urn po licy. 24

Preceding the harmonisation of the internal dimension of return by the Ret urn Directive in 2008,

sta ndar d readm ission clau ses were co nceived wit h a vie w to be in cluded in itially on a s elective basis

(late r on a sys tematic ba sis) in Commu nity25 and mixed agreements 26 with third co untries from 1995,

thereby es tablishing a connection between readmission and other external relations desired

outcomes.27

Prior t o the Comm unity competence granted by the Tr eaty of A msterdam in 1999 t o enter into

readmiss ion agreements with third coun tries, Community agreem ents includ ed a politica l

declaration for the third cou ntry t o conclude a r eadmission agreement with Member States which

sought so to do. Mixed agreements, however, went a step further by obliging the p arties to readmit

their res pective “illegally pr esen t” na tion als “with out f urt her for malities” in addit ion t o com pelling

the third co untry t o conclude a readmission agreement with a Member Stat e at the Member State’s

request.28 The readmission of third country nationals and stateless persons (that is, non-natio nals of

the readm itting sta te) was contemplated.29

Following the Treaty of Amsterdam in 1999, the Council of the EU mod ified its a pproach to both

Comm unity a nd mixed agre ements. This ap proach consis ted of firs tly, adopt ing a stan dard clause

that gave primacy to concluding Comm unit y readmissio n agreements (t hat is, over bilateral

Member State readmission agreements) in line with the Community ’s newly established

competence; 30 and secondly, adopting a systematic, rather tha n selective, ap proach to in cluding

such clauses in these agr eements.31 Readmissio n clauses (a s dis tinct from re admission ag reements)

are, however , limited in a n operational sense because they do nothing more than compel third

22 Molinari, C. (2019), ‘The EU and its perilous journey through the migration crisis: informalisation of the EU return policy

and rule of law concer ns’, European Law Review, Vol . 44, No . 6, pp.82 4-840 at pp.831-835.

23 Cassari no, J.-P. (2018), Informalizing EU Readmission Policy in Ripoll Servent and Trauner (eds.) (2018), The Ro utledge

Handbook of Justice and Home Affairs Research, Routle dge, Abingdo n, pp. 86-94.

24 Slomi nski, P., and Tr auner ., F. (202 0), ‘Re forming me soft ly – how soft law has changed EU return policy since the

migration crisis’, West European Politics, 13 April.

25 Council of the European Union (1995), Document 12509/95, 8 December.

26 Council of the European Union (1996), Document 4272/96, 22 January.

27 Coleman, N. (2009), European Readmission Policy – Third Country Interests and Refugee Rig hts, Mart inus Nij hoff, Lei den,

p.212. See also Billet, C. (2010), ‘EC Readmission Agreements: A Prime Instrument of the External Dimension of t he

EU’s Fight against I rre gula r Immi grat ion. A n Asse ssment afte r Te n Year s of Pract ice ’, European Journal of Migration and

Law, Volume 12, pp.45 -79 at pp.47-48; Charles, C. (2007), Readmission Agreements and Respect for Human Rights in

Third Countries. Review and Prospects for the European Parliament, European Communiti es, Octo ber, Brussel s, pp.5-6.

28 Council of the European Union (1996), Document 4272/96, 22 January.

29 Ibid.

30 Council of the European Union (1999), Document 13409/99, 25 November.

31 Coleman (2009), op. cit., pp. 212-213; Billet (2010), op. cit., pp.48-49.