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Returning Irregular Migrants: Challenges and Pitfalls

Apart from the minority of proponents of a no border Europe there is a consensus about the need to send back migrants who are considered illegal. To put it clearly, most migration flows consist of a mix of refugees, asylum seekers and economic migrants. All of them are considered illegal after clandestinely stepping on shore of an EU country, crossing its borders or entering it by air. Once on European soil most of the illegal migrants lodge an asylum claim which automatically gives them a legal status, at least for the duration of the asylum procedure. Those who are refused asylum because of a lack of ground, as well as those who overstay after being granted a period of legal stay are obliged to leave EU territory. They are usually given a choice between returning voluntarily and facing deportation. However, enforcing the return proves to be very challenging. The statistics of only 39% successful returns speaks for itself. For various reasons many third country nationals who were given order to leave continue their stay in the host country. First of all many migrants do not possess passports, identity cards, let alone documents proving that they have faced persecution in their home countries. Some of them destroy or lose their documents en route, making it very difficult to prove their nationality. The recent case of the terrorist who drove the lorry into the crowd at the Berlin Christmas market is a case in point. Despite being on the list for return, Tunisia, his country of origin, refused to take him back claiming the lack of valid papers for repatriation (The Uzbek suspect who drove a track into the department store in Stockholm, just a few days before this blog went online, had been sought by the Swedish authorities after being denied residency in Sweden).

In the absence of documented evidence justifying the grant of asylum the authorities rely on a verbal narrative of refugees and illegal migrants. To assess the veracity of their claims takes time and is often fraught with difficulties caused by language barriers and determining which state is responsible for analysing the asylum claim. Unaccompanied migrants, trafficked persons and minors are a particular challenge as they are entitled to special protection due to their vulnerability. Even if their claim is refused, migrants still have the right to appeal which creates additional delays causing significant backlogs of cases. As a result, a number of migrants find themselves in limbo for months, even years. Meanwhile their lives move on: they start working illegally, their children attend schools and a clandestine existence begins to take shape. Another underlying problem is the high demand of cheap labour and the very few options for regular migration to Europe. Economic migrants try their luck where the job market is dynamic, offering them the opportunity to earn a bit of money in hope of a better life.

In order to respond to the pressures of their constituency to resolve the problem of undocumented migrants, EU Member States deploy various strategies: they send back irregular migrants offering the opportunity of voluntary return or resort to detention and deportation. Occasionally some states carry out ‘regularisation programmes’, a highly controversial tool often criticised for rewarding lawbreaking and creating a pull factor for future migrants. Yet, offering amnesty to irregular migrants reduces the size of a shadow economy and improves state finances once the migrants start paying taxes, which in turn lowers the risk of exploitation and improves the social security of migrants.

More importantly, the precondition for returning an illegal migrant is an agreement with third countries to take back their nationals and the nationals of other countries who have transited their territory on their way to the European Union. In a nutshell, the so called readmission agreement has always been challenging. Unless palpable benefits are offered in return, countries of origin are reluctant to honour their commitments. Often overpopulated and burdened with endemic unemployment these countries are happy to see their nationals off, who – once established abroad – can raise state revenues by way of remitting money into their home countries. In addition, a return of migrants is sometimes simply impossible because there is no functioning government in place to issue the necessary identity papers.

Until recently the readmission agreements were perceived by third countries as rather one sided and lacking incentives. But weary of a declining support for European integration and recurrent criticism of EU action in the field of migration the European Commission has devised a new two pronged return policy seeking to achieve a significant improvement in a number of returned migrants.

On the one hand, the new EU ‘results-oriented’ migration partnership framework, to be negotiated with a limited number of countries, seeks to offer a better tailored approach whereby migration management is combined with more substantial financial support, in addition to development aid, trade, energy and mobility stimulus. If implemented correctly, this approach is more likely to lead to an era of partnership among equals, where the emphasis is laid on balancing security concerns with shared interests and common objectives. Moreover, instead of increasing the number of returns these measures can create the conditions for reducing migration pressure in the first place.

On the other hand, the European Commission has presented in March 2017 a communication addressing urgent questions of swift and effective return of those who have no right to stay in the EU, while offering protection to those who fulfil conditions set by international and EU legislation. Faster asylum procedures combined with increased financial support to Member States, effective information exchange and cooperation among Member States authorities and tougher measures against absconding (even if this means prolonged detention) form the backbone of the new approach towards return. This will be complemented by a reformed Schengen Information system and Eurodac (fingerprints database) measures aimed at improving control of border crossings.

Doubts have been raised, however, over human rights becoming a second tier concern along the way, notably with respect to extended use of detention and derogations from the full application of safeguards in the EU Directive on Return. But the legacy of the 2015 migration surge combined with repeated terrorist attacks across Europe have left a deep mark on the EU consciousness. It seems that the Commission and the Member States are decided to anticipate on rather than react to any further increase in migrant arrivals. They have now chosen to prioritise faster returns even if there is a risk of lowering human rights standards and compromising on traditional EU values.

The past years divisions over how to manage illegal migration are slowly giving way to a new era of realpolitik.

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