by Jean-Pierre Cassarino
Over the last few years, the Maghreb countries (Algeria, Libya, Mauritania, Morocco and Tunisia) have been increasingly involved in migration talks and negotiations, at bilateral and multilateral levels, related to migration management issues, including the readmission of third-country nationals and the reinforced control of the external borders of the European Union (EU).
There is no question that the participation of the Maghreb countries in these talks is reflective of their willingness to open a dialogue on such issues as the management of migration flows (whether legal or illegal), reinforced border controls and police cooperation. However, despite the openness of the Maghreb countries to dialogue on migration management, the conclusion of readmission agreements remains a tricky issue.
This situation stems from the resilience of various obstacles that have acquired mounting importance in multilateral and bilateral migration talks. Actually, the capacity of the Maghreb countries to deal effectively with the reintegration of their forcibly removed nationals remains extremely limited, from an institutional, structural, financial and economic point of view. Moreover, readmission agreements have been predominantly viewed by most Maghreb countries as being responsive to the sole interests of the EU and its member states. The former have been reluctant to engage in formal readmission agreements with the latter.
These obstacles are reflective of resilient contrasting visions pertaining to the management and impact of readmission. Also, they are reflective of an unequal relationship between EU member states and African countries when it comes to dealing with readmission or enforced return.
Unbalanced reciprocity in the cooperation
The vast majority of readmission agreements are concluded at a bilateral level and include reciprocal obligations as well as procedures pertaining to the identification process of undocumented migrants. The contracting states also commit to carrying out removal procedures without unnecessary formalities and within reasonable time limits, with due respect of their duties under their national legislation and the international agreements on human rights and the protection of the status of refugees, in accordance with the 1951 Geneva Convention relating to the status of refugees and its 1967 protocol.
Although they are framed in a reciprocal context, the obligations contained in the readmission agreement are typically unequal. In fact, the willingness of a country of origin to conclude a readmission agreement does not mean that it has the legal institutional and structural capacity to deal with the removal of its nationals, let alone the forced return of foreign nationals and the protection of their rights. Nor does it mean that the agreement will be effectively or fully implemented in the long run, for it involves two contracting parties that do not necessarily share the same interest in the bilateral cooperation on readmission, nor do they face the same implications, at the domestic and regional level.
Alternative patterns of bilateral cooperation on readmission
It is a well-known fact that negotiations on the conclusion of standard readmission agreements with Mediterranean third countries have been difficult. This does not mean that bilateral cooperation on readmission has been shelved. On the contrary, various rounds of negotiations, at bilateral and multilateral levels, are taking place. These have allowed both some EU Member States to adaptively develop alternative patterns of cooperation on readmission. Exerting pressure on migrants’ countries of origin or last transit to induce them to cooperate on readmission might be tactically mistaken, above all when these countries have been gradually empowered following their proactive involvement in joint police operations aimed at reinforcing the control of the external borders of the EU.
Indeed, various North African countries (particularly Algeria, Egypt, Libya, Mauritania, Morocco, and Tunisia) have been jointly involved in numerous police operations aimed at controlling the external borders of the EU, at bilateral and multilateral levels. These operations have been conducive to the emergence of unprecedented patterns of interconnectedness between the North and the South of the Mediterranean. Not only because they promote, among other things, exchanges between national law-enforcement agencies, but also because these operations have allowed various South Mediterranean and African countries to play the efficiency card in migration talks and to enhance their international credibility in the management of migration and border controls. These countries, and their regimes, have become strategic partners in migration talks and they intend to capitalise on their empowered position.
Policy-makers in the EU Member States, particularly France Italy and Spain, are becoming aware that a new compromise on readmission needs to be found in order to guarantee a modicum of cooperation with these strategic (and empowered) countries. Their adaptive inclination is now more a necessity than an option. Clearly, not all the EU Member States are equally affected by the issue of readmission in their interaction with the Maghreb and African countries. At the level of the EU-27, France, Italy and Spain are the most prominently involved in readmission cooperation and in on-going negotiations with the Maghreb and African countries.
Indeed, as of June 2008, regardless of the number of agreements that are currently negotiated, more than 65 per cent of the 36 bilateral agreements linked to readmission that have been concluded between the EU-27 Member States and African countries (including the Maghreb countries) remained concentrated on these three Member States, reflecting the fact that France, Italy and Spain have been the most proactive over the last few years in mulling ways of inducing Maghreb and African countries to become more cooperative on readmission or enforced return.
More interestingly, more than half of the concluded agreements are based on alternative patterns of cooperation on readmission including exchanges of letters, memoranda of understanding, administrative deals and police cooperation agreements with a clause on readmission.
Securing the operability of the cooperation on readmission
The main rationale for the adoption of non standard deals is to secure bilateral cooperation on readmission and to avoid defection as far as possible by responding flexibly to new situations. Various EU Member States have been prone to flexibly readjust their cooperative patterns with some Mediterranean third countries with a view to addressing the pressing problem of re-documentation, i.e., the delivery of travel documents or laissez-passers by the consular authorities of the third country needed to remove undocumented migrants. Such flexible arrangements result from repeated consultations allowing cooperative patterns to be readjusted with a view to complying with the terms of the bilateral arrangements.
Undoubtedly, the incentives offered to African countries have certainly played a crucial role in inducing the latter to engage in such informal deals on readmission. However, the low level of public visibility and the high adaptability and flexibility of these deals to changing circumstances also explain the reason for which these arrangements have been gaining importance over the last few years.
These characteristics are sufficient to explain the gradual importance of the informal patterns of cooperation on readmission. They are also key to understanding why and how the Maghreb and African countries have been responsive to the call for enhanced cooperation on readmission with some EU Member States and why the latter have been prone to readapt their patterns of cooperation with the former.
A whole spectrum of agreements linked to readmission has been emerging over the last decade in the bilateral cooperation patterns existing between African and European countries. Standard readmission agreements constitute just one pattern of cooperation. Furthermore, incentives do play a crucial role in inducing third countries to cooperate on readmission. However, they do not adequately account for the sustainability of the bilateral cooperation in the long term. Actually, the perceived costs and benefits facing each country also shape the durability as well as the pattern of cooperation.
The issue of readmission permeates an array of policy areas in Euro-African and Euro-Maghreb relations. It is strategically embedded in a whole range of cooperative patterns which shape the terms of the cooperation sometimes favouring and sometimes hampering the conclusion of standard readmission agreements.
African and European migration stakeholders know that the conclusion of agreements linked to readmission (whether standard or not) is no guarantee for their effective implementation, owing to the strong asymmetry in costs and benefits that typically characterises their bilateral cooperation.
The gradual proliferation of deals (e.g., memoranda of understanding, pacts, administrative arrangements and police cooperation agreements including a clause on readmission) shows that the issue at stake lies in finding flexible solutions aimed at cooperating on readmission more than in the mere conclusion of bilateral readmission agreements per se. The agenda remains unchanged, but there has been a shift in priority actions with regard to the Maghreb and African countries. Actually, the operability of the cooperation on readmission has been prioritised over its formalisation.
This shift in priority has various implications in terms of policy-making:
- The patterns of cooperation have been primarily conducive to judicial and police reforms in the Maghreb and African countries as well as to enhanced technical assistance to police forces and law-enforcement agencies aimed at strengthening their border management capabilities. One is entitled to question whether the prioritisation of such security concerns and the technical assistance provided to law-enforcement agencies and border police authorities in origin and transit countries may be compatible with the promotion of good governance, democracy and public accountability in the Maghreb and in Africa, let alone the development of a genuine legal system aimed to the respect of the rights of migrants and the protection of asylum-seekers.
- Another implication stemming the prioritization of security concerns in the field of the cooperation on readmission lies in the fact that the bilateral cooperation is aimed at securing the effective removal of unwanted migrants but does not foresee any mechanisms aimed at supporting the social and professional reintegration of the persons subjected to a removal order. Such reintegration mechanisms will necessarily have to be considered, for they will determine the efficacy of the bilateral cooperation on readmission as well as its durability.
A new compromise is emerging in the field of readmission in the Euro-African relations, resulting predominantly from the convergence of short-term security concerns. This compromise reflects the emergence of power relations which substantially differ from the ones that prevailed few years ago leading to flexible patterns of cooperation on readmission.
However, the patterns of cooperation stemming from this new compromise may not be self-sustaining in the long term if they continue to prioritise security concerns over the pressing development problems facing the Maghreb and African countries; these remain the actual root causes of migration flows and refugee movements, together with poverty and the search for major civil and political rights.
Download relevant article of Jean-Pierre Cassarino: Informalising Readmission Agreements in the EU Neighbourhood
Jean-Pierre Cassarino is scientific director of the Project Return Migration to the Maghreb (MIREM), a three-year research project on migrants' reintegration patterns in the Maghreb countries.