EU moves ahead with plans to use visa policy as "leverage" to increase deportations

Since 2020, the EU has been able to use its visa policy as “leverage to improve cooperation with third countries on return and readmission,” as part of the drive to increase deportations. Non-EU states can be threatened with visa restrictions for their nationals if they are not deemed to cooperate sufficiently with the readmission process. A recent European Commission document, published here, sets out the perceived level of cooperation by those non-EU states. The Council is now considering potential next steps to ensure compliance with EU migration policies.


Increasing the “return rate”

The procedure set out in the renewed Visa Code, which came into force in 2020, is part of the decades-long drive to step up deportations from the EU by increasing the annual “return rate” – the number of people handed an expulsion order whose removal is actually enforced. As remarked in the Statewatch report Deportation Union¸ these efforts “will cost hundreds of millions of euros, create giant, opaque and unaccountable agencies and further undermine claims that the EU occupies the moral high ground in its treatment of migrants”.

Attempts to step up the return rate involve renewed efforts to “incentivise” non-EU states to cooperate with the readmission of their citizens, as part of the long-standing “carrot-and-stick” approach. This was given further emphasis by last September’s ‘Pact on Migration and Asylum’, which called for “a new drive to improve cooperation on readmission with third countries, complemented by cooperation on reintegration, to ensure the sustainability of returns” (where “sustainable return” means “get out and stay out”).

In its communication on the Pact, the Commission said that:

“This first and foremost requires the full and effective implementation of the twenty-four existing agreements and arrangements on readmission with third countries, the completion of ongoing readmission negotiations and as appropriate the launch of new negotiations, as well as practical cooperative solutions to increase the number of effective returns.

These discussions should be seen in the context of the full range of the EU’s and Member States’ policies, tools and instruments, which can be pulled together in a strategic way. A first step was made by introducing a link between cooperation on readmission and visa issuance in the Visa Code.” (emphasis added)

The Visa Code report

The Commission’s report, marked ‘RESTREINT UE/EU RESTRICTED’ was circulated to member states in February alongside a public communication that provides significantly less detail. It assesses the level of cooperation in readmission proceedings by 39 states whose nationals require a visa to enter the EU, ranging from Afghanistan to Vietnam. The states covered by the report and the principal conclusions drawn by the Commission are summarised in a table below. Amongst the annexes to the report is a table setting out with which of the assessed states the EU has signed readmission agreements or more informal “arrangements” (which do not require any scrutiny by the European Parliament, such as the ‘Joint Way Forward’ with Afghanistan), and with which one or more member state has a bilateral instrument.

See:

The report is based on quantitative and qualitative data provided by the member states and Frontex, and is concerned with the bureaucratic necessities that must take place before someone can be removed from EU territory. (Decisions on whether or not to remove someone lie with national authorities, although many expulsions take place on the basis of EU law, and negotiations are ongoing on a proposal that would make it simpler to enact deportations by lowering standards and restricting rights currently available to migrants).

Thus, the report focuses on the bureaucratic obstacles faced by member states when trying to remove individuals to particular countries, including to states such as Afghanistan, Ertitrea and Libya. The main issues, as highlighted in the public communication, concern the identification of individuals subject to removal proceedings by the state of destination, and the issuance of travel documents. The restricted report goes into more detail on these points, noting that some states refuse to or cause difficulties for identification interviews, delay the provision of travel documents, refuse to accept charter flights, require that deportation ‘escorts’ acquire visas to enter the country, or refuse to accept biometric data or data taken from the EU’s Visa Information System (VIS) as proof of an individual’s identity (the forthcoming expansion of Eurodac and other EU databases will provide an extended pool of biometric and other data for use in removal proceedings, although it does not necessarily mean destination states will accept that information).

The report largely restricts itself to describing the issues identified by the member states and setting out what would assist in increasing the return rate – for example, it reiterates time and again that cooperation with identification procedures could be improved, and refers a number of times to the possibilities offered by Return Case Management Systems (RCMS) and European Return and Migration Liaison Officers (EURLO). It also notes that Senegal’s biometric population database – which is funded by the EU – will likely support removal efforts. In general, however, it does not give any clear guidance on how new arrangements could be put in place, or which countries should be targeted first – a job that is now in the hands of the Council.

See:

Carrot and stick

The Commission’s report is merely the first part of a longer process. A document produced by the Portuguese Presidency of the Council of the EU in response to the Commission’s communication summarises the ‘carrot and stick’ procedure set out in the renewed Visa Code, which came into force in 2020.

See:

The first step is for the Commission to produce its report assessing non-EU states’ level of cooperation on readmission. This is followed by the second step:

“…where the Commission considers that a third country is not cooperating sufficiently, the Commission shall propose the Council to adopt an implementing decision applying specific restrictions related to visa processing and, possibly, a higher visa fee. At the same time, if the Commission finds a third country to be cooperating sufficiently on readmission, it may propose to the Council to adopt an implementing decision providing for a reduction of the visa fees, a reduction of the processing time or an increase in the period of validity of multiple-entry visas.”

The Presidency notes, however, that there is an interim stage. Before putting forward a proposal for a Council Decision that would introduce visa restrictions, the Commission “shall take steps to improve the level of cooperation of the third country concerned”. If this approach fails, then the Commission would submit a proposal for the Council to adopt binding measures. The Visa Code itself does not set a time period for these attempts to increase cooperation, says the Presidency, and before any proposal is put on the table:

“…a second condition has to be fulfilled – i.e. the Union’s overall relations with the concerned third country, including in the field of migration, have to be assessed and taken into account. The Presidency deems that following this procedure is of the utmost importance.”

Visas and beyond

The Presidency’s note does not dwell on this point, however, and moves on to the different forms of “leverage” that are available. The renewed Visa Code provides one type but it is not the only one, the Presidency highlights. The Commission’s report:

“…may help to identify incentives, which would be applied to third countries within the sphere of return and readmission, outside the visa area, considering the Union’s interests and relations and it may be a contribution to step up and strengthen the readmission cooperation with partners, towards a more comprehensive approach.”

Development and trade policy have been highlighted as key tools in this regard, and further measures are on the table that would formalise their use as “leverage”. Article 7 of the proposed Asylum and Migration Management Regulation, put forward as part of the Pact on Migration and Asylum, permits the Visa Code report to be used as a basis for “the identification of any measures which could be taken to improve the cooperation of that third country as regards readmission,” rather than just restrictions on visa issuance.

This would provide a legal basis for political measures that have already been introduced – the Presidency notes that the member states approved an “informal mechanism” at a COREPER meeting in June 2020. This mechanism “foresees that additional leverage can be taken in addition to visa measures, in the absence of visa measures, or when visa measures did not deliver the desired result.”

Critical reception

Although the Commission’s report was “broadly welcomed” in the Council’s Integration. Migration and Expulsion working party (IMEX) at the end of February, “some delegations considered that the report could have included more clear conclusions on which third countries assessed should be considered as not cooperating sufficiently on readmission,” says the Presidency’s note.

A discussion followed on the criteria that should be used to determine:

“…which visa-bound third countries should be further examined. Some proposed to focus on countries not cooperating on forced returns, or where there is a significant caseload, or where attempts to improve cooperation failed in the past. One delegation also considered that the focus could be on countries that are most relevant for the frontline Member States [Greece, Italy, Spain, Malta].”

The intention now is for the member states to determine which of the countries covered in the Commission’s report “are most non-cooperative and which are cooperating in an excellent manner.” The Presidency called for a “debate” amongst ministers in the Justice and Home Affairs Council on two points – whether the Presidency could draw up lists of countries to be targeted for restrictive measures, and to agree on a deadline after which the Commission would have to take action.

Following the Council meeting on 12 March, a press release merely stated:

“They [ministers] agreed that work in this area should rapidly continue with a view to improving cooperation with key countries as quickly as possible. The Presidency will now take work forward at technical level on the basis of this discussion.”

It seems unlikely that these “technical” discussions will be the subject of much formal public or democratic scrutiny – which is unfortunate given what is on the table. One side of the EU’s push to increased forced removals threatens to undermine the rights and protections afforded to individuals subject to deportation proceedings and propel the development of unaccountable and opaque agencies and activities. The other side – which involves trying to force non-EU states into line, backed up by various threats – may well undermine development efforts, the livelihoods of people dependent on foreign trade, and the rights of those in receipt of aid. Is increasing the “return rate” by a few percentage points really worth it?

Chris Jones

Table: States assessed by the Commission and general conclusions

The main findings of the Commission’s report are reproduced below, with links to the individual report on each country (extracted from the main document).

Source: European Commission: Assessment of third countries' level of cooperation on readmission in 2019 (COM(2021) 55 final, RESTREINT, 10 February 2021, pdf)

State

Conclusion

Afghanistan

Cooperation could be improved further by identifying nationals and issuing travel documents within the agreed deadlines, as well as by avoiding visa requirements for escorts. This should result in a better rate of issuance of travel documents and a higher return rate.

Algeria

For a more effective and predictable readmission cooperation, the good cooperation practices should be extended to all cases and to all Member States, with identification processes being further expedited and travel documents issued without interviews for documented cases. In addition, cooperation could be improved by accepting charter flights and not restricting scheduled flights to direct flights only. This should result in a better rate of issuance of travel documents and a higher return rate.

Armenia

The efficiency of cooperation could be improved further by allowing identification by biometric data, when needed, and direct printing of travel documents from RCMS. This should result in a better rate of issuance of travel documents and a higher return rate.

Azerbaijan

While the return rate is in 2019 at 95% and no issues of effectiveness have been signaled, the new RCMS platform to be launched in 2021 has the potential to diminish the workload per case for practitioners in both the EU Member States and Azerbaijan.

Bangladesh

Cooperation could be improved by extending the good practices to Bangladesh diplomatic missions in all Member States. This would require respecting the deadlines foreseen in the SOPs, improving its performance in the area of identification, organising interviews when requested by Member States, expediting the process by issuing travel documents without interviews for documented cases, not restricting the number of returnees per flight and accepting charter flights from all Member States that may request it. This, facilitated also by a functional RCMS and increased capacity to use biometric data for identification, should result in a better rate of issuance of travel documents and a higher return rate.

Belarus

While the return rate is in 2019 already at 91% and no issues of effectiveness have been signaled, the new EU Readmission Agreement is likely to bring uniformity of practices, increase effectiveness and therefore diminish the administrative burden of the readmission process on both Member States and Belarus.

Cameroon

For a more effective and predictable readmission cooperation, the existing good cooperation practices would need to be extended to all Member States. Identification could be expedited by issuing travel documents without interviews for documented cases and prohibitive restrictions for charter flights could be reconsidered. Subsequently, a more predictable and even level of cooperation will encourage a higher number of readmission requests from Member States and trigger a higher return rate.

China

For a more effective and predictable readmission cooperation, the better cooperation practices would need to be extended to all Member States, by expediting identification processes and issuing travel documents without interviews for documented cases. In addition, cooperation could be improved by accepting charter flights. This should result in a better rate of issuance of travel documents and eventually in a higher return rate.

Comoros

…the single Member State managing 94% of the caseload of Comorian nationals ordered to leave, Comorian authorities cooperate well for identification and issuance of travel documents on the basis of the bilateral agreement in place, and there are no significant obstacles to return. This level of cooperation could be extended to the other requesting Member States.

Congo

To improve overall cooperation with the EU on readmission, the better practices on identification and on issuance of travel documents would need to be extended to the other requesting Member States.

Côte d’Ivoire

Cooperation could be improved further by consolidating and extending the better practices on identification and issuance of travel documents and the acceptance of charter flights to all requesting Member States. This would encourage a higher number of readmission requests potentially resulting in a higher return rate.

Democratic Republic of the Congo

For a more effective and predictable readmission cooperation, the better cooperation practices would need to be extended to all Member States, by expediting identification processes and issuing travel documents without interviews for documented cases. This, together with Member States increasing the number of readmission requests channeled through the EURLO, should eventually result in a higher return rate.

Egypt

For a more effective and predictable readmission cooperation, the better cooperation practices would need to be extended to all Member States. Identification processes would need to be expedited and followed through swiftly with issuing travel documents, also without interviews for documented cases. Clear, agreed procedures would provide for a more predictable and efficient process and the EURLO in Cairo could support such process. Further improvements could be envisaged by accepting charter flights from all requesting Member States. This should result in a better rate of issuance of travel documents and a higher return rate.

Eritrea

Taking into account the evolution of the situation in the country, for a more effective and predictable readmission cooperation a structured practice would need to be built with clearly agreed procedures, including commitment to accept forced returns.

Ethiopia

Cooperation could be improved by Ethiopia, by building solid practices and decision making workflows within its administration, conducive to the correct implementation of the arrangement for forced returns. Furthermore the respect of timelines agreed for identification and swift issuance of travel documents, without interviews for documented cases is necessary. This, potentially facilitated by a capacity building project including an RCMS, as well as the EURLO should result in a better rate of issuance of travel documents and a higher return rate.

Ghana

For a more effective, even and predictable readmission cooperation, the better cooperation practices could be extended to all Member States. Identification could be further expedited by issuing travel documents without interviews for documented cases and availing itself of alternative means of identification (missions, phone or videoconference). This should result in a better rate of issuance of travel documents and a higher return rate.

Guinea

Cooperation could be improved further by extending the better practices, developed along the EU arrangement, to all requesting Member States, in particular by reducing the time for the identification and issuance of travel documents, thus encouraging a higher number of readmission requests potentially resulting in a higher return rate.

Guinea Bissau

For an improved cooperation on readmission, the identification procedures would need to be improved, by including consular interviews and identification missions as necessary, and travel documents would need to be issued in a timely manner for all cases and towards all Member States. This should result in an increased caseload processed, a better issuance rate for travel documents and eventually a higher return rate.

India

For a more effective and predictable readmission cooperation, the better cooperation practices would need to be consolidated and extended to all Member States. Identification processes could be expedited, by issuing travel documents without interviews for documented cases, by availing itself of alternative means of identification (missions, phone or videoconference) and by accepting biometrics as evidence from all Member States. Further improvements could be envisaged by accepting charter flights from all requesting Member States.

Iran

Cooperation could be improved by agreeing on ways to cooperate on forced return along a clear and predictable procedure, and swift issuance of travel documents. This, potentially facilitated by capacity building projects, should result in a better issuance rate of travel documents and a higher return rate.

Iraq

Cooperation could be improved by agreeing on ways to cooperate on forced return along a clear and predictable procedure, and swift issuance of travel documents. This, potentially facilitated by capacity building projects, should result in a better rate of issuance of travel documents and a higher return rate.

Kosovo

Despite the absence of an EU readmission agreement, cooperation with Kosovo proceeds smoothly, based on a large number of bilateral agreements with the Member States. Identification processes are conducted successfully for all Member States, including through interviews, travel documents are issued timely or EU travel documents accepted and charter and scheduled flights operate as planned.

Libya

There are currently few effective channels of cooperation established, due to the non-acceptance by Libya of forced returns. Processing of additional requests could be considered by Member States provided that conditions are met so that the principle of non-refoulement is respected. Cooperation could be improved by establishing the necessary cooperation channels for swift identification and issuance of travel documents.

Mali

For a more effective and predictable readmission cooperation, the better cooperation practices would need to be extended to all Member States. Identification processes could be expedited, by performing interviews as requested by all Member States, by availing itself of alternative means of identification (missions, phone or videoconference), by extending to all Member States the acceptance of a range of evidence, and be followed through swiftly with issuing travel documents. Following one single set of procedures – such as those already agreed in 2016 - would provide for a more predictable and efficient process. Further improvements could be envisaged by accepting charter flights as requested by all Member States. This should result in a better rate of issuance of travel documents, encourage a higher number of readmission requests and, subsequently, trigger a higher return rate.

Mauritania

For a more effective and predictable readmission cooperation, the identification procedure could be improved, including on the basis of biometric evidence and VIS information, the use of consular interviews with all requesting Member States, as well as the organisation of identification missions, and travel documents could be issued in a timely manner. Improvements could be brought by further acceptance of charter flights. This should improve the issuance rate of travel documents, encourage Member States to submit more readmission requests and result in a higher return rate.

Mongolia

For a more effective and predictable cooperation, identification processes could be expedited by performing interviews as requested by all Member States and by availing itself of alternative means of identification (missions, phone or videoconference), and be followed through swiftly with issuing travel documents for all irregularly staying nationals. This, potentially facilitated by targeted capacity building support, should result in a better rate of issuance of travel documents and a higher return rate.

Morocco

For a more effective and predictable readmission cooperation, the better cooperation practices would need to be extended to all Member States, while taking into account the specific bilateral practices with some Member States. Given the very high number of cases, a set of commonly agreed procedures would bring effectiveness and predictability. Such process could be supported by a EURLO and potentially a RCMS. Identification processes could be expedited, by including interviews as requested by all Member States and information from VIS. The timing in issuing travel documents could also be improved for several Member States. Further improvements could be envisaged by accepting charter flights. All this should result in a better rate of issuance of travel documents, encourage a higher number of readmission requests by Member States and, subsequently, trigger a higher return rate.

Nigeria

Cooperation could improve further by extending the better cooperation practices to all Member States. Identification could be expedited, by excluding interviews for cases supported by sufficient evidence, including valid documents, biometric data and VIS hits, and be followed through swiftly with issuing travel documents to all confirmed nationals. Such improvements could be facilitated by the conclusion of the EU-Nigeria readmission agreement, under negotiation. All this should result in a better rate of issuance of travel documents, encourage a further increase in the number of readmission cases submitted by Member States, and, subsequently, trigger a higher return rate.

Pakistan

For a more effective and predictable readmission cooperation, the provisions of the agreement would need to be implemented correctly towards all Member States, in particular regarding identification practices and deadlines on issuance of travel documents. The extension of the RCMS to all Member States could be particularly instrumental in addressing the consistency of practices and increasing efficiency, which should then result in a higher caseload handled timely and a higher return rate.

Palestine

To improve cooperation, identification processes could be expedited and followed through swiftly with issuing travel documents, also without interviews for documented cases. For the readmission process to be finalised with effective return, however, due to the lack of direct access to Palestine, transit requires approval by its neighbours which postpones or completely hampers returns.

Russia

To improve cooperation, identification processes would need to be expedited, by engaging in communication through electronic means and by extending to all Member States identification through biometrics, and be followed through swiftly with issuing travel documents, without interviews for documented cases. This should result in a better rate of issuance of travel documents and a higher return rate.

Senegal

For a more effective and predictable readmission cooperation, the good practices already established with some Member States would need to be built upon and consistency and predictability ensured for all. Identification processes could be expedited, by performing interviews as requested by all Member States, but concluding identification without interviews for well documented cases, and by availing itself of remote means of identification (videoconference), and be followed through swiftly with issuing travel documents. A consolidated procedure at EU level, potentially supported by a RCMS, in particular when the biometric data base will be completed, could support consistent practices. This should result in a better rate of issuance of travel documents, encourage more readmission requests from Member States and a higher return rate.

Somalia

For an enhanced cooperation on readmission, the identification procedures would need to be improved, by accepting relevant evidence and responding in a timely manner to all Member States, and be followed through swiftly with issuing travel documents, in all cases and for all Member States. This should result in an increased caseload processed, a better issuance rate for travel documents and eventually a higher return rate.

Sri Lanka

The Readmission Agreement provisions (and the equivalent provisions of the bilateral agreements) are mostly respected. Identifications processes are conducted satisfactorily with good results for Member States representing more than 90% of return decisions issued, including through interviews, and issuance of travel documents is mostly timely. While most Member States have not availed of using charter flights, these have been accepted by Sri Lanka in the past. As stated above, Member States have reflected the February 2020 launch of the new RCMS in their assessment for 2019 and have already seen a significant improvement in the cooperation, resulting in timely identification and issuance of travel documents. In order to increase the return rate, these recent efforts need to be further sustained, potentially with further capacity-building support.

Sudan

With half of these Member States, covering more than two thirds of return decisions issued, identification processes are conducted in a satisfactory manner, including by accepting a wide range of documents and through interviews. Once identification is preformed the issuance of travel documents takes place in a timely manner for the Member States standing for more than three quarters of return decisions issued. To improve cooperation, this good practice would need to be extended to all Member States and charter flights accepted from all requesting Member States. If the number of readmission requests increased, this should result in a higher return rate.

The Gambia

The Gambia unilaterally imposed a moratorium on returns in 2019, which remained in place for a full year despite the EU and Member States’ efforts to engage. For a more effective and predictable readmission cooperation, the good cooperation practices would need to be extended to all Member States, the relevant provisions of the EU readmission arrangement implemented correctly, and return operations should take place in accordance with the modalities agreed, with the support of EU funded capacity building projects foreseen and of the EURLO. Swifter issuance of travel documents and effective returns should result in a higher return rate.

Tunisia

For a more effective and predictable readmission cooperation, identification processes would need to be expedited, including by performing interviews as requested by all Member States, and be followed through swiftly with issuing travel documents. Further improvements could be envisaged by accepting charter flights from all requesting Member States. This should result in a better rate of issuance of travel documents and a higher return rate.

Turkey

For a full implementation of readmission obligations as enshrined in the Readmission Agreement, the third country nationals provisions need to be implemented and the bilateral readmission obligations with the Member State should be observed. Returns under the EU-Turkey Statement should resume.

Vietnam

For more than two-thirds of Member States, representing more than two-thirds of return decisions issued, identification processes, including through interviews and evidences of nationality accepted, are conducted successfully, and issuance of travel documents is timely. The better cooperation practices could be extended to all Member States, and the EURLO could support the process. This, potentially facilitated by capacity building support, should result in a better rate of issuance of travel documents, encourage a higher number of readmission requests from Member States and, subsequently, trigger a higher return rate.

 

 

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