EU Experience with Externalisation

 Attempts to manage migration outside EU territory (externalisation), as well as the related cooperation with third countries, have become one of the key elements of the post-2015 anti-crisis migration strategy. The effectiveness of the EU-Turkey migration agreement signed in 2016, which in a short period led to a 90% reduction in the number of irregular migrants to Europe in exchange for financial assistance to Turkey, raised hopes that similar solutions would be successfully replicated in other regions.

In 2017, Italy signed an agreement with Libya. In the following years, the EU established partnerships with North African countries under the “Team Europe” initiative. In 2023, it signed a migration agreement with Tunisia, and in 2024 with Egypt and Mauritania. Based on these agreements, in exchange for financial assistance, these countries committed to cooperating with the EU in halting irregular migration.

In 2018, at the European Council summit, heads of state and government put forward an initiative to create regional disembarkation platforms in non-European countries for migrants rescued at sea. Due to legal controversies and scepticism from potential host countries, mainly in Africa, this project never was implemented by the EU. It was, however, tested at the national level—in 2023, Italy signed an agreement with Albania that provided for the establishment of two detention centres in the latter country for migrants rescued in the Mediterranean Sea by Italian vessels. After going through the asylum procedure, they were to be deported from Europe to their countries of origin or to recognised safe countries that agreed to accept them, or transferred to Italy. Despite multiple modifications to the agreement due to legal barriers, its implementation is still blocked by Italian courts and the EU Court of Justice (which, in its ruling from 1 August of this year, challenged the decision to send two Bangladeshi citizens to Albania).

Although since 2015 the EU has managed to significantly reduce irregular migration, the effectiveness of its return policy remains a challenge. Member States are currently able to return only about 20% of persons who do not have the right to stay in the EU to third countries (of origin and transit).

The Latest Changes in EU Law

 A new common European system for returning migrants without residence rights in the EU is aimed at improving the effectiveness of return policies, a proposal presented by the European Commission (EC) in March of this year. It establishes a European return order, which is intended to counteract the fragmentation caused by 27 different national systems. It also imposes stricter obligations on individuals qualified for return regarding cooperation with the authorities of the Member States. The system also provides for the possibility of creating return centres in third countries for individuals who are residing in the EU without proper documentation and who have received a final return decision. The existence of such centres is primarily intended to discourage migrants from irregular travel to Europe, limiting the prospect of their staying on the continent. The legal basis for creating these centres include agreements concluded by the EU or individual Member States with the interested third country. They should include guarantees regarding human rights and foresee the operation of an independent monitoring body overseeing the implementation of the agreement.

To complement the new system of sending back migrants is a proposal to change the definition of a safe third country, presented by the EC in May this year. Based on the new definition, it will not be necessary to demonstrate a connection between the safe country and the migrant. The mere transit through a safe third country before reaching the EU may constitute a basis for returning the person to its territory, and in the absence of such transit, it will be possible to apply a return to a third country with which the EU or Member States sign an appropriate agreement. Appeals against decisions of inadmissibility should not automatically suspend deportations.

In order to exert pressure on transit countries avoiding cooperation in preventing and combating irregular migration to the Union, in June of this year, the European Parliament and the EU Council reached an agreement on an amendment to the regulation concerning the principles of suspending visa-free travel. According to the updated regulations, the grounds for suspending visa-free travel may include the failure of a third country to comply with EU visa policy when this may increase the number of people arriving in the EU (e.g., due to the geographical proximity of that country); the operation of a citizenship-by-investment programme that allows granting citizenship without a genuine connection to the respective country; hybrid threats and deficiencies in the document security system; and, the deterioration of the EU’s external relations with that country, particularly in relation to violations of human rights protection standards.

Modifications in EU law are accompanied by changes in national migration regulations. Many Member States are tightening asylum regulations (e.g., Poland, Finland, Greece) and are also intensifying diplomatic efforts in third countries—both the EC and the Member States are seeking partners for cooperation in the field of migration, especially in establishing centres for locating migrants. These actions are reinforced by political signals, such as the open letter issued in May this year by nine leaders (from Austria, Belgium, Czechia, Denmark, Estonia, Lithuania, Latvia, Poland, and Italy) regarding an interpretation of the European Convention on Human Rights advocating for greater freedom for states to decide on the deportation of migrants who have committed crimes.

Challenges

 Cooperation with third countries in the field of migration requires both a stabile security situation in partner countries and increased financial contributions from the EU. Meanwhile, in the face of the United States’ reduction of foreign aid (including the elimination of the American aid agency USAID) and the steadily growing humanitarian needs worldwide (wars in recent years in Gaza, Sudan, Ukraine, and prolonged crises in Yemen, Venezuela, and Afghanistan), the gap in financing of humanitarian and development assistance is widening. Cuts in budgets for this purpose in EU countries (often caused by the need to generate additional funds for armaments in connection with the need to support Ukraine in its conflict with Russia and to rebuild the Member State’s own military capabilities) may further exacerbate the socio-economic situation in the Global South, which in turn could lead to an increase in irregular migration.

The reduction of the West’s engagement in developing countries also creates the risk of increased influence from authoritarian powers in Europe’s southern neighbourhood. The consequence will be the exploitation of the unstable situation in the Middle East and North Africa to instrumentalise migration on the southern routes to the EU (a practice known from the eastern border of the EU with Belarus, among others). This is already visible in the case of Libya, which in recent months has become a major transit hub for migrants to Greece and Italy. In connection with the intensification of flights from Minsk to Benghazi, the EC has initiated an inquiry into Russia’s cooperation with the pro-Russian Gen. Khalifa Haftar in the transport of migrants to Europe.

Conclusions and Perspectives

 The changes in EU law aimed at externalisation of migration policy, although criticised by human rights organisations, are increasingly gaining political support in EU Member States and will likely continue. This trend largely results from domestic political rivalries in which the fear of migrants is increasingly exploited by far-right parties. It is also visible in other Western, non-European countries, for example, in solutions tested by the United States and others.

Changes in EU law will allow for tightening national systems of deporting migrants, facilitate coordination of returns among Member States, and limit the ability of national and European courts to suspend decisions on the deportation of migrants. However, they may prove insufficient for a clear improvement in the effectiveness of return policy.

However, a significant change in this area requires broader EU engagement in the Global South, including increased financial involvement. The U.S. retreat from funding development aid is likely to strengthen the argument for increasing EU external spending during the negotiations on the EU budget for the years 2028-2034. The draft budget presented by the EC provides for an increase in funds for both migration and border management, as well as the Union’s external actions. Cooperation of third countries with the EU in the field of migration is set to be one of the conditions for financing external actions by the Union. Linking access to EU funds with the implementation of the migration and asylum pact and the European internal security strategy may, in turn, serve as leverage on Member States in the area of migration.