EU auditors: “Return systems encourage illegal migration”
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EU auditors: “Return systems encourage illegal migration”

Credit: Belga

The EU’s cooperation with non-EU countries has not been efficient in ensuring that migrants illegally present on EU territory return to their own countries, according to a special report published by the European Court of Auditors (ECA) this week.

According to the new report, named “Relevant actions yielded limited results”, the EU only achieved limited progress in concluding readmission agreements with non-EU countries during the 2015-2020 period. In addition, EU actions have not been streamlined enough to ensure that non-EU countries comply with their readmission obligations in practice.

“We expect our audit to feed into the debate on the EU’s New Pact on Migration and Asylum, because an effective and well-managed readmission policy is an essential part of a comprehensive migration policy”, said Leo Brincat, the Maltese ECA member responsible for the report, at a press briefing (13 September).

“Nevertheless, the current EU returns system suffers greatly from inefficiencies that lead to the opposite of the intended effect: encouraging, rather than discouraging, illegal migration.”

ECA’s assertion is among others based on the Commission’s own report from 2015 (A European Agenda on Migration). “One of the incentives for irregular migrants is the knowledge that the EU’s return system – meant to return irregular migrants or those whose asylum applications are refused – works imperfectly.”

“There is no EU migration policy but 27 migration policies,” Leo Brincat added. “When the member states were included in the negotiations, this improved the EU’s collective political influence, and proved beneficial in achieving results.”

Audit scope and methodology

In a previous audit from 2019, by the same ECA member, ECA concluded that there is much need for improvement in EU’s migration system.  That report also examined the hot spot approach applied in Greece and Italy. This time the objective of the audit was to determine whether the EU has effectively enhanced cooperation on readmission with third countries.

The audit team used the average number of all non-returned irregular migrants as the criterion for drawing up the list of 10 third countries for examination. The nationals of these 10 countries (excluding Syria) accounted for 38 % of all return orders issued during the 2014-2018 period, as well as for 46 % of all unreturned irregular migrants from the EU.

However, because of COVID restrictions, the team was unable to visit third countries and had to rely on desk reviews and contacts with the embassies of three third countries to obtain their views on readmission cooperation with the EU. Three member states, Germany, France and Spain, were selected because of their importance in terms of migratory pressure and returns.

Asked about the limitations in the audit, the auditors replied that it followed strictly the given mandate for the audit and did not enter into the merits of individual return decisions. Return decisions are issued by the national authorities, for which the member states have sole responsibility. Nor did the cover EU member states’ bilateral readmission agreements.

These agreements remain within the sole purview of the member states, and the Commission does not even have access to them. ECA did not consider to send a survey to all member states about them because it would have been outside its mandate. That said, “the member state stakeholders that we interviewed have been cooperative and transparent with us”.

What does the statistics say?

In a preview in July last year, when announcing the audit on EU’s cooperation with third countries on the return and readmission of irregular migrants, ECA mentioned that only 38 % of the migrants return to their country of origin or to the country from which they travelled to the EU. This average drops below 30 % for returns outside Europe.

In fact, the figures are even lower. Each year since 2008, about half a million non-EU citizens have been ordered to leave the EU because they had entered it, or were staying, without authorisation. However, only one third of them have actually returned to a third country (29 % in 2019). This “effective return rate” drops below 20 % for returns to countries outside the European continent.

This does not necessarily imply that the number of non-EU citizen illegally present in the EU is steadily increasing. According to Eurostat, after peaking at more than 2 million in 2015, the number of illegally present migrants has fluctuated around 550 000 – 600 000 since 2017. In 2020, the number was 557 500; this was down 11.2 % compared with one year earlier.

Eurostat refers to changes in national policies among the EU member states in reaction to the migration flows, either because persons left the territory or because their situation was regularised by grant of an asylum status or a residence permit.

The EU member states which reported the largest number of non-EU citizens found to be illegally present in 2020 was Germany (117 900), followed by France (103 900), Hungary (89 400) and Spain (72 300). Together, these four member states accounted for 69 % of all non-EU citizens found to be illegally present in the EU.

The COVID restrictions in 2020 had a significant impact both on arrivals of irregular migrants and on return operations. However, the increasing role of Frontex – support for returns by scheduled commercial flights as well as its assistance with voluntary departures and with voluntary returns – partly compensated for the decrease caused by the pandemic, according to the audit team.

Readmission agreements

Actual returns are split more or less equally between voluntary and enforced returns. One of the reasons for the low number of returning irregular migrants is the difficulty of cooperating with migrants’ countries of origin.

To deal with the situation, the EU has concluded legally binding readmission agreements with 18 countries (Hong Kong, Macao, Sri Lanka, Albania, Russia, Bosnia and Herzegovina, Moldova, Montenegro, North Macedonia, Serbia, Ukraine, Pakistan, Georgia, Armenia, Azerbaijan, Cape Verde, Turkey and Belarus).

The agreement with Belarus, however, has been suspended by the regime in Minsk. In her state of the union speech on Wednesday, Commission President von der Leyen said, that the regime there has “instrumentalised human beings, put people on planes and literally pushed them towards Europe’s borders. This can never be tolerated.”

Recently, EU has also negotiated non-legally binding arrangements for returns and readmissions with six countries (Afghanistan, Bangladesh, Guina, Côte d’Ivoire, Ethiopia, Gambia). Since the Taliban’s violent takeover of power in Afghanistan, however, no migrants and asylum seekers in the EU can be returned to the country.

In fact, among the half million non-EU citizens illegally staying in the EU, tens of thousands are nationals of countries to which they cannot be returned because the countries are not considered safe (for example Syria and Afghanistan. With some countries, there is no EU readmission agreement despite years of negotiations (Morocco, Algeria, and Tunisia).

Why did the agreements not deliver?

When presenting the new pact on migration and asylum last year, Ylva Johansson, the European Commissioner for Home Affairs, said that the Commission counts on the cooperation with the countries to which the migrants will have to return. “We have readmission agreements with most of them and don’t need to threaten them to accept returning migrants.”

The new ECA audit, however, shows that there are serious shortcomings in the way how the Commission and the member states have negotiated and managed the agreements.

Negotiations of EU readmission agreements are often jeopardised by persistent sticking points, such as the mandatory inclusion of the “third-country national” clause – accepting non-nationals who passed the country in their irregular migration to EU. The clause is often opposed by non-EU countries and questioned from a legal point of view.

In contrast, negotiations of non-legally-binding readmission arrangements have been more successful, mainly because their contents are flexible and customisable, according to ECA.

Another weakness highlighted by the report is the lack of synergies within the EU itself. The EU has not “spoken with one voice” to non-EU countries. The European Commission has not always associated key member states in facilitating the negotiations process. As a result, some non-EU countries do not see added value in pursuing an EU readmission agreement in preference to bilateral cooperation,

The auditors see also insufficient progress towards incentivising non-EU countries to implement their readmission obligations.

The only positive point in the report is that the Commission has made effective use of financial assistance for projects supporting development, reintegration and capacity-building. Among the many tools the EU has at its disposal, the auditors identified tangible results only for one: the EU visa policy, whose revised provisions can be helpful in encouraging non-EU countries to cooperate on readmissions.

This positive experience with the visa leverage mechanism led Coreper (Committee of the permanent representatives of the member states) to develop a “comprehensive leverage mechanism” for activating different policies to improve third-country cooperation on returns and readmissions. At the time of the audit, the mechanism had not yet been used.

What will happen now?

According to the auditors, there are mixed opinions on the issue of incentives. Negative incentives can be counter-productive since a country cannot be forced to cooperate on readmitting their irregular migrants. Instead, positive incentives should be strengthened. Until now the EU has been reluctant to use negative leverage to support readmission negotiations.

In its reply to the report, the Commission welcomed ECA’s audit and accepted all four recommendations. “The Commission sees the specific focus of the report as a timely contribution to the EU’s ongoing efforts in this field, as part of the Commission’s New Pact on Migration and Asylum of 23 September 2020.”

ECA recommends that the Commission should (1) agree with the Council on a more flexible approach in the negotiations, (2) create synergies with member states to facilitate readmission agreements negotiations and arrangements, (3) evaluate policies used as incentives for migration management and readmission cooperation, and (4) enhance data collection on readmissions and reintegration sustainability.

How concretely does ECA expect the audit recommendations to feed in into the upcoming pact on migration and asylum?

“Some of the proposals in the pact go in the same direction,” the audit team replied. “However, our recommendations should be implemented irrespective of whether and when the new pact is adopted. The recommendations mostly target the Commission’s way of working and its cooperation or interaction with member states and do not require major changes in the legal framework.

The Commission funded reintegration assistance in all the 10 countries covered by our audit. How would you summarize best practice or success stories in the EU funded projects you examined?

“In terms of capacity-building projects, we believe that the development of electronic readmission case-management systems with third countries has the potential to enhance cooperation on a structural level,” ECA replied.

“The system seeks to automate readmission processes and procedures, integrate stakeholders (in third countries and member states), reduce overall case-processing time, and provide up-to-date statistics and information.”

“Also, we believe that it is best practice for reintegration projects to systematically collect data on the sustainability of returned migrants’ reintegration. In particular, the International Organization for Migration (IOM) has developed comprehensive methodology for evaluating the sustainability of its reintegration support.”

As an example of a successful reintegration project, ECA referred to EU support to address the migrant crisis in Libya.

Will the EU address the problems identified in the audit report in the upcoming pact?

“A number of initiatives and tools put forward in the pact provide the basis for addressing several of the recommendations made by the ECA,” a source in the Commission replied.

“We have also followed up the first assessment of partner countries’ level of readmission cooperation as part of the Visa Code mechanism, which, as recognised by ECA, has the potential to improve readmission cooperation with partner countries.”

M. Apelblat
The Brussels Times

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