When principles are compromised: EU return sponsorship in light of the UN Global Compacts

Forum on the new EU Pact on Migration and Asylum in light of the UN GCR

Contribution by Lina Vosyliūtė, Research Fellow at CEPS Justice and Home Affairs Unit
17 February 2021

1. Background

Some ‘rebelling’ EU member states have been challenging the principle of equal solidarity and fair responsibility-sharing over asylum seekers and refugees for the last five years. In response, the new European Commission came up with a compromised solution in the new Pact on Migration and Asylum, attempting to get the same rebels on board by blending a political priority to increase the EU’s return rate (a policy dubbed ‘return at any costs’), with the so-called ‘new forms of solidarity’.

Return sponsorship is the new option on the menu. The proposed directive on asylum and migration management (Article 55, para. 1) outlines: “a Member State may commit to support a [benefiting] Member State to return illegally staying third-country nationals by means of return sponsorship”. In essence, the ‘new approach’ allows those who are unwilling to show heartfelt solidarity in relocating asylum seekers from frontier EU Member States (labelled as ‘benefiting Member States’), to offer ‘half-hearted’ solidarity. It seems that a committed marriage of solidarity (in sickness and in health, in poverty and in wealth…) within the Union under Article 80 of the TFEU, has been replaced with a ‘friends with benefits’ arrangement, referred to as the oxymoronic phrase ‘mandatory flexible solidarity’.

The ‘sponsoring’ member state (e.g. Hungary or Poland) would arrange returns of certain nationalities directly from and in close cooperation with the ‘benefiting’ or frontier EU member states (e.g. Greece or Italy). The assumption is that the sponsoring member state would use their bilateral agreements with third countries to push ‘voluntary’ returns or deportations. If both countries do not manage to return a person within eight months (under normal circumstances), such a person would be ‘relocated’ to continue the return procedure directly from the sponsoring country. This inevitably prompts the question: was it realistic for the European Commission and the EU member states to count on governments such as the Visegrad group (the Czech Republic, Hungary, Poland and Slovakia) to sponsor returns of irregular migrants? More importantly, how can the EU guarantee vis-à-vis third countries that such returns will be implemented in line with EU and international law?

I argue that the ‘sponsored returns’ strategy is neither a solidarity-advancing nor an evidence-based strategy. It stands at odds with the EU’s commitment to its own Better regulation guidelines. Furthermore, this ‘compromised solution’ does not build on lessons learned from carrying out the EU readmission agreements and arrangements with third countries or implementing the EU return directive.

Firstly, governments that do not uphold internationally agreed and legally binding human rights standards cannot be seen as trustworthy partners among third countries – especially in the sensitive area of returns and readmissions. The EU is compromising the standards and principles agreed upon with the rest of the world just two years ago within the scope of the United Nations Global Compact for Safe, Orderly and Regular Migration (GCM) and the Global Compact on Refugees (GCR).

Secondly, the Pact’s proposal for ‘sponsoring returns’ requires an even higher degree of trust among the EU member states of the first arrival of asylum seekers and other migrants and countries ‘sponsoring returns’ – those same countries who have not agreed to cooperate with relocations in the first place. Many things could go wrong here without making explicit the EU’s internal and external cooperation principles as well as ongoing independent monitoring.

Finally, we must grapple with the reality that is the mishandling of returns by ‘sponsoring countries’. The Commission’s proposal to recast the EU Return Directive has introduced a ‘border procedure’, lowered procedural safeguards, and encouraged returns to be based on informal bilateral agreements in the absence of post-return monitoring. It also foresees that EU institutions and agencies will get even more involved in handling returns and readmissions.

The ‘return sponsorship’ increases the likelihood of fundamental rights violations while simultaneously diffusing accountability across the ‘benefiting’ member state, ‘sponsoring’ member state and the relevant EU agencies and institutions. If such breaches are enabled by the EU return policy via laws, policies, funding or operations, the glaring problematic is: who will be held accountable for the violations of fundamental rights?

2. New EU vocabulary: what ‘solidarity’ means in the EU

The Court of Justice of the European Union (CJEU) in the case of Commission v. Poland, Hungary and the Czech Republic has confirmed that the principle of solidarity is a legally binding obligation under Article 80 of the TFEU. Nevertheless, instead of applying political pressure to implement this CJEU decision, the European Commission decided to reformulate what ‘solidarity’ means in the EU political vocabulary by coining a new oxymoron, namely ‘mandatory flexible solidarity’ in their New Pact on Migration and Asylum, launched on 23 September 2020. The new approach to solidarity has been detailed in the Commission Staff Working Document accompanying the Pact and its proposal for directive on asylum and migration management.

The EU member states were given a new menu with several options. They could choose between ‘sweet and salty’ – whether to show solidarity in relocating asylum seekers and/or in sponsoring return. The Commission expected that the Visegrad group would take the latter bait. In some instances, the Commission also allowed for a ‘dessert’ – to make other contributions, for example in capacity building, operational support or an external dimension.

The European Commission has foreseen that once the flexible aspect fails, ‘compulsory solidarity’ via a ‘corrective mechanism’ would kick in, after a long back-and-forth procedure. Nevertheless, the Commission left implementation of ‘sponsored returns’ for a member state-run show with ‘built-in flexibility’. For instance, “Member States would have to submit Solidarity Response Plans indicating which solidarity contributions they will make.” The Commission would simply cross-check these submissions against the distribution key based on 50% GDP and 50% population.

The Commission has proposed a time-frame for sponsoring member states to carry out a return: “a period of 8 months (4 months in situation of crisis)”. If this period has expired, the person concerned would need to be relocated to a sponsoring country to continue return procedures from that territory. The frontier EU member states, namely Greece, Italy, Malta and Spain called to reduce this time-frame to 6 months or even 3 months. Those, labelled as ‘benefiting ones’ were not convinced. The frontier member states, dubbed the Mediterranean axis, voiced their concerns over the lack of ‘mandatory solidarity’ and called for greater clarity in assigning responsibilities on ‘return sponsorships’. One of their concerns related to their liability for (in)actions of the sponsoring country. The proposed directive on asylum and migration management (Article 55 para. 4) foresees that ‘These [return sponsorship] measures shall not affect the obligations and responsibilities of the benefitting Member State laid down in [EU return] Directive 2008/115/EC.’

On the surface, this seemed to at least benefit some ‘rebelling’ EU member states playing ‘bad cop’ – quickly brokering bilateral deals and deporting irregular migrants on behalf of another EU member state without fear of public shaming or repercussions from human rights bodies. Such sponsoring member states would be seen as improving EU return rates, while maintaining anti-migrant sentiments in front of their voters.

Instead, the day after the Commission launched the New Pact on Migration and Asylum, the Hungarian and Polish prime ministers rushed to Brussels to denounce any mandatory aspect of ‘solidarity’ in the EU return policy on behalf of the Visegrad bloc. They knew too well that the task ahead would not be an easy one. Such ‘sponsors’ would need to broker returns with ‘countries of origin’ and ‘safe third countries’ with which they may not have good relations.

However, leaving aside a Eurocentric approach, it may be useful to explore on which bases partners around the globe could trust them.

3. The basis of trust for international cooperation in the area of returns and readmissions

The international trust-based cooperation in migration and asylum would require a different set of principles be followed than the flexible approaches proposed in the Commission’s New Pact. For instance, in the area of migration, all cooperating states are seen as equal partners. They treat migrants – citizens of another state – with equal dignity and respect. In the area of asylum, the UN Geneva Convention foresees that refugees are entitled to international protection and non-refoulement by the receiving state because the refugee’s country of origin cannot be trusted. These principles were recently reiterated and re-confirmed in the New York Declaration of 2016. It led to the drafting of two UN Global Compacts in 2018 – one on refugees and the other on migration.

Both Compacts upheld previously existing international and regional human rights standards on returns. The GCR proclaimed that states should aim at “durable solutions” (para. 89). The GCR also called states “to expand access to third-country solutions and to support conditions in the country of origin for return in safety and dignity”. The GCR promotes “enabling conditions for voluntary repatriations” as opposed to “forced returns” (para. 87). Similarly, Objective 21 of the GCM emphasises the commitment to “facilitate safe and dignified returns” and “to guarantee due process, individual assessment and effective remedy” to protect from ‘refoulement’.

The few EU governments who abstained or voted against the Global Compact for Migration (GCM) demonstrated a political choice to depart from already internationally agreed standards. The GCM has not been signed or ratified by nine EU member states: the Czech Republic, Hungary and Poland (voted against the GCM); Austria, Bulgaria, Italy, Latvia and Romania (abstained) and Slovakia (did not attend this UN General Assembly meeting to adopt the GCM).

Hungary is also not a party to the Global Compact on Refugees (GCR). While 181 countries voted in favour, Hungary and the United States were the only two nations that voted against the GCR. Thus, the Hungarian government demonstrated a clear stance of unilateralism and departed further from non-negotiable standards undermining its national constitution and the Common European Asylum System (CEAS). Such a departure of EU member states is somewhat anecdotal since Ferris and Donato 2019 argue that the EU has initiated this process to find a global solution to the so-called ‘European refugee crisis’.

The misunderstanding shared by the Hungarian government and others who haven’t approved the GCM is that they are not obliged to comply with international and regional human rights standards. The GCM summarises existing commitments in international human rights and labour law without adding any new legal obligations. It does, however, propose an evidence-based and human-centred narrative around human mobility. The EU delegation in New York and the European Commission have confirmed that the GCM was reflecting EU’s acquis. The Commission even put forward a proposal for the EU Council to approve the GCM on behalf of the Union (it was later revoked due to lack of support).

Thus the controversy around the GCM is a clear indicator of how these member states are also departing from EU treaty principles of the rule of law, fundamental rights and democratic accountability. The European Union is likely loathe to admit that such member states are invariably pushing the Union’s migration and asylum policies further away from the EU’s founding values and those agreed in Global Compacts.

In spite of the concessional wording, the Visegrad countries initially have not agreed to ‘mandatory flexible solidarity’, perhaps because they know too well that returns and readmissions require international cooperation and not unilateralism. Indeed, Carrera 2016 finds that for the sensitive area of readmissions, trust and international reputation may be crucial for the much sought-after ‘efficiency’ of returns. The abovementioned study argues that “identification procedures in light of the EU’s Readmission Agreements, present many challenges and require verifiable and rebuttable (not blind) trust-based international cooperation with third countries”.

The New EU Pact on Migration and Asylum encourages member states to ‘pool’ their bilateral agreements and informal arrangements – as it regards who could return which third country nationals. The Commission had tested this approach when member states were cherry-picking asylum seekers rescued at sea for their potential returns based on their nationalities. While this approach has worked on a small scale, the dynamics in bilateral agreements and arrangements are far more complex.

For instance, Cassarino and Marin 2020 argue that although there are “320 bilateral agreements linked to readmissions” concluded by EU27 and third countries, “bilateral cooperation on readmission [cannot] be viewed as an end in itself, for it has often been crafted onto a broader framework of interactions.” Bilateral agreements and arrangements have stakes on both ends. They are unlikely to become the Trojan horse to pursue the EU’s self-interested goal to deport all irregularly staying third-country nationals through the doors of the EU member state who have the best relations with the given third country of origin. This would very likely upset such bilateral relations.

Besides, European countries often underestimate other competing priorities with the third countries. For instance, remittances in many developing countries continue to be a far more relevant income source than development aid. They also overestimate incentives from the EU’s visa policies (Cassarino 2020). Consequently, EU-centred readmission agreements or informal deals may also be implemented half-heartedly by third countries.

Cassarino and Marin 2020 summarise it aptly: “readmission is inextricably based on unbalanced reciprocities”. Carrera 2016 provides evidence for how such a top-down approach backfires. For instance, in readmission procedures, mobility of certain nationals is treated as quasi-criminal activity. Thus, the country of origin may be less willing to cooperate in issuing documents as such treatment of its citizens undermines sovereignty and equal standing in the international arena.

The European Parliament report on return highlights that lack of cooperation from third countries in identification and documentation procedures is “one of the main reasons for non-return”. Therefore, Parliament called “to improve relations with third countries in a constructive migration dialogue based on equality” and to aim at “sustainable returns.” Parliament also criticised the use of informal bilateral deals, which escape democratic control, unlike formal EU readmission agreements (EURAs). The latter have better-defined responsibilities and require ex-ante and ongoing human rights impact assessments. However, this list of EURAs raises serious questions about EU principles, too. For instance, the latest EU Readmission agreement was concluded with Belarus in July 2020, in the midst of violent suppression of civic protests against the dictatorial regime.

4. What is the basis of trust among the EU member states cooperating on returns?

The Commission’s explanatory memorandum of the proposal to recast the Return Directive highlighted the importance of “common standards and procedures”. However, fundamental rights standards have been reframed as obstacles for ‘efficiency’ of return rates (Vosyliūtė 2019). The European Parliament conducted an Impact Assessment of the implementation of the EU return directive. This assessment concluded that the EU’s return policy is over-relying “on inter-state trust and the procedural safeguards available to the person prior to removal or readmission”. These findings are in line with the academic evidence highlighting the importance of verifiable trust (see Carrera 2016; Cassarino and Marin 2020; Cassarino 2020).

The Commission’s proposal to recast the EU Return Directive attempted to lower procedural safeguards. For instance, the EU’s Fundamental Rights Agency (FRA) argued that no person shall be returned before the negative decision on asylum application becomes final. The FRA raised concerns over the speed and quality of such decisions, particularly in the context of border procedure. The border procedure (if approved) would introduce an alternative return regime with even lower procedural safeguards than those proposed in the recast Return Directive.

The Commission stressed increasing efficiency of returns as a primary reason behind the ‘targeted revisions’ in the proposed directive. The European Parliament’s implementation assessment of the current EU Return Directive cautioned that: “To prioritise the return rate as the primary indicator runs the risk of incentivising ‘return at all costs’, without taking stock of the full human, foreign relations and other costs”.

The new EU return policy has been an outcome of a blame-shifting game among the EU member states, the European Commission and Frontex. For instance, the Commission stressed that “the shortcomings of Member States’ return procedures and practices hamper the effectiveness of the EU return system.” The EU return policy has shifted towards more coercive approaches over durable solutions and migrants’ agency (Vosyliūtė 2019). The Commission’s ‘targeted revisions’ are likely to fall short of ‘efficiency’ in light of its better regulation guidelines (Vosyliūtė 2019). ‘Efficiency’ requires an assessment of individual and fundamental rights impacts.

The EU return policy has been moving further away from the GCM. The EU draft law foresees the EU member states’ obligation to detain those “at risk of absconding”. Such a political choice does not encourage investing in alternatives to detention. Detention risks becoming a default option in the EU, including for minors. As such, the Commission’s current proposal is incompatible with GCM Objective 13 “using detention as a last resort”. Besides, GCM Objective 7 calls on States to ensure “basic rights”, including procedural rights, despite the status and “to facilitate access […] to an individual assessment that may lead to regular status” to those migrants that cannot be removed. The Commission’s proposal has not reflected these considerations. However, the European Parliament proposes an alternative view on return management in the EU. Parliament argues for including possibilities to regularise non-removable persons’ status, as it would resolve administrative limbo, would “reduce vulnerability to labour exploitation and may facilitate individuals’ social inclusion and contribution to society”.

5. When everyone gets involved in returns – who is responsible for breaches?

As foreseen with the New Migration and Asylum Pact, EU institutions and agencies will become more involved in handling returns, thus creating a chain of responsibility. As argued by Carrera and Stefan 2018 the more players are cooperating without clear mandates and responsibilities the harder it is to access justice and seek effective remedies. The explanatory memorandum of the proposed EU Return Directive highlighted that challenges for ‘efficient returns’ arise from EU member states’ non-flexible interpretation of the current Return Directive and for third countries that are not keen to readmit their nationals.

Meanwhile, the European Commission has equipped Frontex with more power in returns operations. Some academics have dubbed it ‘EU’s deportation machine’. As the EU’s return agency, Frontex only has a mandate “to support and monitor” member states, and decisions on merits (i.e. whether there are risks of refoulement) in return procedures remain the sole responsibility of a member state. Frontex – as other EU agencies – should be accountable to both EU institutions, EU supervisory authorities and courts. However, the increasing role of member states in the management board once again blurs the lines of accountability. While Frontex is required to monitor the treatment of migrants during deportations, there is no subsequent post-return monitoring to ensure that a returnee was re-integrated and did not experience any further violations of human rights. So: how would Frontex would go about following instruction that is ‘international and EU law’ non-compliant? Mishandling of returns by ‘sponsoring countries’ is already an inconvenient reality. The following case study illustrates the point of likely controversies.

In May 2019 Hungarian authorities attempted to return an Afghani family in contradiction with EU asylum acquis and international laws. The watchdog civil society applied for interim procedures at the European Court of Human Rights and managed to suspend deportation of the family. UNHCR raised public concerns for the grave violations of the Geneva Convention since Hungarian authorities have not considered their asylum claims, declaring them ‘inadmissible’. Media have vividly depicted this episode, reporting deprivation of food and other inhuman and degrading treatment, including intimidation with the return procedure to Afghanistan so as to force people to turn back to Serbia. Eleven of them did so.

In this case, the Hungarian authorities used the EU’s involvement to legitimise such returns. The Hungarian Immigration and Asylum Office (IAO) said to journalists that “the measures were part of a joint operation with European border and coastguard agency Frontex, in which 39 people were flown to Afghanistan altogether”. Later, Frontex refused to deport some Afghani nationals due to pressure from civil society and human rights bodies.

In January 2021, Frontex announced “suspending operations in Hungary”. According to the media, Frontex became concerned that despite the CJEU decision in December 2020, Hungarian authorities pushed out more than 4400 people without assessing their asylum claims. The Frontex Consultative Forum, composed of civil society representatives, has been calling for years not to support Hungarian authorities in returns. The LIBE mission report in 2020 reiterated that Frontex is under obligation to withdraw support in operations where fundamental rights are not respected. It led to the European Parliament launching an inquiry into the agency’s activities in January 2021. This episode illustrates that the EU agencies and even EU institutions carry the ‘chain of responsibility’ whenever human rights violations arise.

‘Return sponsorship’ places EU member states – especially those that departed from ‘equal solidarity’ and human rights standards reiterated at the GCM – at the core of implementing the return decisions made by ‘the benefiting country’. Thus, such breaches are ‘enabled’ by EU return policy via laws, policies, funding or operations and it will invoke the Union’s responsibility via the portable justice approach. But who would be responsible to define who is accountable for fundamental rights violations if everyone gets involved? A chain of responsibility model could be useful in capturing the direct or indirect roles of all actors involved in fundamental rights violations during and after returns. This could lead to more effective remedies for rights violations of returnees.

It seems that immense pressure is mounting on the international and regional human rights bodies, EU supervisory institutions and independent ‘watchdog’ actors – civil society and journalists. ‘Sponsored returns’ are likely to be brokered and implemented by some member states where the EU rule of law, fundamental rights and democratic accountability principles are already compromised. CEPS’ recent report on civil society space demonstrated that governments that fear accountability and liability are curtailing watchdog actors in the area of migration. Some EU member states are policing and criminalising those who are trying to uphold EU and international legally binding principles. When principles agreed upon in both Global Compacts and among the EU member states are compromised, the EU founding values become an empty shell rhetoric.

6. Three scenarios on how ‘sponsoring returns’ can backfire

The New EU pact on Migration and Asylum already blurs the lines of ‘who does what?’ I argue that return sponsorship as a ‘new approach on solidarity’ further blurs accountability. The EU return policy by design creates a chain of responsibility. What follows are three hypothetical and equally concerning scenarios that illustrate this point. They are based on previous experiences with the EU mandatory relocation schemes and with the implementation of EU returns policy, both attempts to externalise responsibility for asylum seekers:

• first scenario: quick returns to third countries;
• second scenario: ‘sponsoring countries’ overtake pre-return detention; and
• third scenario – ‘sponsoring countries’ leave the burden of detention to the ‘benefiting countries’.

First scenario: quick returns to third countries

The New EU Pact on Migration and Asylum foresees that migrants who could not be deported within eight months in a normal situation and within four months in a situation of crisis would need to be brought into a sponsoring country and deported from there. So, a ‘sponsoring country’ e.g. Hungary would need to proceed speedily with returns, as otherwise they would risk ending up with irregular and non-removable migrants from the ‘benefiting country’, e.g. Greece.

The speed and lack of oversight of how the return decisions are made by the ‘benefiting’ country and implemented by the ‘sponsoring’ one, would risk violating procedural safeguards, including effective remedies and the ‘non refoulement principle’. Persons would be sent to third countries with the knowledge and involvement of EU agencies, regardless of whether they would be ‘safe’ for the person in question (i.e. LGBTQ+ to Pakistan, where it is a criminal offence) and whether individuals have any prospect of a dignified, humane and just existence. In some third countries, returnees face automatic detention, for instance in Libya; in others they have to pay penalties for ‘unauthorised exit’, as in Egypt, Morocco, Tunisia and others.

The first scenario aims to externalise responsibility and delegate the containment practices to countries of transit and origin via various informal bilateral deals and multilateral arrangements that do not consider human rights impact. Simultaneously, the EU would lose any political leverage to criticise how such returnees are treated after their return, as has happened with similar third country arrangements, such as in Turkey, Afghanistan or Pakistan. In this scenario, returnees are left at high risk of human rights violation during and after the return procedure, so who would be responsible in courts?

Second scenario: ‘sponsoring countries’ do not manage to complete returns quickly and thus have to overtake pre-return detention

The second scenario foresees that if ‘sponsoring countries’ (working in close coordination with ‘benefiting countries’) are not successful in brokering voluntary returns or obtaining valid documents and sending people to third countries, they would overtake pre-return detention in their territory. Thus the ‘concentration of arrivals’ in benefiting countries such as Greece or other EU frontier countries would be replaced by ‘concentration of returns’ in sponsoring countries. As discussed above, the ‘return sponsorship’ was invented to bring on board Hungary or other countries in the Visegrad group that were unwilling to cooperate in relocations. Those same countries were also not willing to recommit to the international standards in the GCM. Some of them have poor migrants’ rights record, thus making the EU vulnerable to inviting another more dangerous situation.

Illegal pushbacks, collective expulsions, torture and other inhuman and degrading treatment practices have already been reported by the European and international human rights bodies. They are likely to escalate further and give rise to the EU’s complicity in crimes against humanity. The UN Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment has openly warned that: “personal involvement in shaping, promoting and implementing policies and practices which expose migrants to torture or ill-treatment may amount to complicity or other participation in crimes against humanity or war crimes.”

The prolonged detentions of non-removable migrants in sponsoring countries would risk going in that direction. Thus, if a M.S.S. v. Belgium and Greece type of judgment logic is applied by the courts, it could already preclude benefiting countries to relocate irregular migrants to certain sponsoring countries due to the likely fundamental rights violations. Again, how would benefiting and sponsoring country and EU agencies resolve their inter-related accountability?

Third scenario: ‘sponsoring’ countries leave the burden of detention to ‘benefiting’ countries

Let’s imagine that the ‘sponsoring return’ state does a lousy job of obtaining documents, finding voluntary return solutions or using its bilateral deals – and a person is detained for a prolonged period in the ‘benefiting country’. Eventually, the sponsoring country would find operational or even legal excuses (including on the grounds of EU law), as to why such individuals should not be relocated to ‘sponsoring’ countries for return (for example, the health risks in light of the pandemic, public policy or national security).

In the past, for instance, the Hungarian authorities have been very creative in placing obstacles for asylum seekers (coming from Serbia) – with measures such as accepting applications at only two border crossings to capping the number of applications at a few people per day. The CJEU, the EU’s highest court in Luxembourg concluded that Hungarian authorities created a ‘virtual impossibility of making their [asylum] application’. Such creativity would likely be revived.

The third scenario leads to lengthier detention and overcrowding detention facilities and increased risks for inhuman and degrading treatment in the countries of asylum seekers’ first arrival. The ‘benefiting’ countries would be left alone to carry out illegal pushbacks, pull-backs, collective expulsions or returns incompatible with the non-refoulement principle. The EU institutions would have little say, since ‘equal solidarity’ and ‘fair responsibility-sharing’ are no longer the EU’s principles.

In this scenario, the European Commission would be engaging in attempts to further lower fundamental rights safeguards to accommodate the situation. The benefiting countries would aim to limit democratic accountability and access to justice for the mistreatment of irregular migrants. This would lead to greater secrecy, informality and silencing of any watchdog civil society, independent journalists, supervisory authorities and even courts. In this case, again, clarity is sorely lacking as to who would be the accountable one – the benefiting country, the sponsoring one or the European Commission.

7. Conclusion

It was a risky bet for the European Commission to entrust countries that were unwilling to participate in global solutions, such as the GCR and GCM, to sponsor returns and readmissions of irregular migrants. Such a sensitive issue requires verifiable and rebuttable ‘international trust-based cooperation’ with third countries. Who is going to trust those who are putting themselves above internationally agreed standards and principles?

For the EU, the headache is not only its international reputation as a partner that ‘walks the talk’ but also the risk of legal liability. ‘Return sponsorship’ blurs who is accountable for what. On the one hand, the long ‘chain of responsibility’ makes it is increasingly difficult to assign the accountability for fundamental rights violations of detained or expelled individuals. On the other, it is hard to imagine the situation where all the relevant actors directly or indirectly involved (‘benefiting’ and ‘sponsoring’ EU member states, EU institutions and agencies, namely Frontex) would be called out. This will only increase the blame-shifting game among them. To avoid such chaos, the EU needs to stand firmly – with actions and words — behind the meaning of solidarity.

The implementation of Global Compacts and independent monitoring of the EU treaties principles are ever more critical for establishing trust among member states, EU institutions and agencies, third countries and – not least – migrants and refugees themselves.