EU Return Sponsorships: High Stakes, Low Gains?

DISCUSSION PAPER EUROPEAN MIGRATION AND DIVERSITY PROGRAMME 19 JANUARY 2021 EU return sponsorships: High stakes, Olivia Sundberg Diez low gains? Florian Trauner Credit: STEPHANIE LECOCQ / ANP / AFP Table of contents Executive summary 3 Introduction 4 1. The concept of return sponsorship 4 1.1. Return sponsorships under the New Pact 4 1.2. The rationale of the proposal 5 1.3. Political fault-lines: Too much, or not enough 6 2. The key challenges of return sponsorships 8 2.1. Can return sponsorships provide tangible solidarity to EU border states? 8 2.2. Will return sponsorships increase migrants’ vulnerabilities? 11 2.3. Will third countries cooperate more on return and readmission? 13 Conclusions: Towards a more balanced approach? 16 Endnotes 18 ABOUT THE AUTHORS Olivia Sundberg Diez Florian Trauner is a Policy Analyst in the holds a Jean Monnet European Migration and Chair at the Institute for Diversity programme. European Studies of the Vrije Universiteit Brussel. ACKNOWLEDGEMENTS/DISCLAIMER The authors are indebted to Marie De Somer for her constructive comments throughout the development of this Discussion Paper, as well as to Janis A. Emmanouilidis, Emi Vergels and Izabella Majcher for their review of an earlier draft. Any errors that remain are the authors’ own. The authors would also like to thank officials of the European Commission and EU member states for their willingness to be interviewed. The support the European Policy Centre receives for its ongoing operations, or specifically for its publications, does not constitute an endorsement of their contents, which reflect the views of the authors only. Supporters and partners cannot be held responsible for any use that may be made of the information contained therein. Executive summary The concept of ‘EU return sponsorships’ is one of the New CONCLUSION 4 Pact on Migration and Asylum’s central and most novel proposals. It may also prove to be the most controversial. Return sponsorships are ill-suited to the high stakes of return procedures in terms of human At its core, this proposal put forward by the European rights. They may even create new vulnerabilities Commission introduces return sponsorship as an for migrants issued return orders. The involvement expression of responsibility-sharing between of multiple states in return procedures is not member states. Member states would be required to accompanied by appropriate harmonisation on return support other EU countries facing migratory pressure. standards or clear accountability in case of a human If they oppose the option of relocating asylum seekers, rights violation. The proposed transfers to sponsoring they can facilitate the returns of migrants who lack states are also rights-sensitive: few guarantees permission to remain in Europe instead. regarding the legal status and protection of those migrants with weak return prospects are provided. The Commission’s objective was to bridge the political divisions between member states while simultaneously achieving policy objectives of internal solidarity and CONCLUSION 5 returns. However, making this work in practice is not without challenges. This Discussion Paper unpacks the As it stands, return sponsorship will only be return sponsorship mechanism and discusses its likely successful if returns can be done faster and in implications, coming to the following five conclusions: far greater numbers. This will be difficult given the established reluctance of many third countries to readmit their own (and other) nationals. If this is CONCLUSION 1 not feasible, intra-EU transfers of migrants whose returns are pending will gain importance – with The concept of return sponsorship is unlikely a high probability of continued conflicts among to succeed in resolving political divisions over member states. responsibility-sharing in Europe. Rather, pre- existing conflicts are being transposed onto the Overall, the Commission is taking a considerable risk precise requirements of return sponsorship, such with its return sponsorship concept. It may prolong the as the transfer of migrants within Europe if returns polarised discussions among member states on the fair are unsuccessful. distribution of migrants within Europe. It may provide only modest support to countries at the EU’s external border. The concept provides cooperation-reluctant CONCLUSION 2 member states with discretion and possibilities to shift and shirk responsibilities. It is difficult to see how the The flexibility embedded in the solidarity mechanism proposal’s high stakes will translate into high gains in comes at the expense of predictable and tangible terms of outcomes. support for EU states facing migratory pressure. The proposal may only provide a limited correction If the proposal is to move forward, negotiators of the disproportionate responsibility borne by EU should prioritise strengthening the predictability border states. and tangibility of support provided by the solidarity mechanism to the EU’s border states, ensure that return sponsorships do not create new human rights risks CONCLUSION 3 for migrants issued return orders, and avoid inflated expectations regarding the impact of a growing use of The Commission proposes various mechanisms conditionality on returns. to match the preferred contributions of a sponsor with a border state’s urgent needs. This will be an administratively heavy matching exercise which lacks effective enforcement tools. Repeated delays and the politicisation of solidarity processes are likely. 3 Introduction On 23 September 2020, the European Commission Whether the return sponsorship proposal unveiled its long-awaited New Pact on Migration and stands or flounders will determine the Asylum.1 Aiming to mark a “fresh start on migration”, the Commission put forward a complex package of five acceptance and prospects of the New Pact new legislative proposals, three recommendations and as a whole. one guidance, with further legislative initiatives to follow in the coming year.2 Many ideas in the proposals are not new, prompting many commentators to brand the Pact as old wine in new This Discussion Paper unpacks the return sponsorship bottles. This is not true for all the proposals, however. proposal and discusses its likely implications. The The most novel among them is part of the proposed first section explains its key features and the role the solidarity mechanism at the heart of the Pact. According Commission attributes to it. Above all, the proposal to this proposal, member states will be required to constitutes a clear attempt to bridge the considerable support other states that face migratory pressure. If they divisions between member states by advancing on oppose the option of relocating asylum seekers, they solidarity and return policy objectives simultaneously. can support the return of migrants who lack permission The second section studies the effectiveness and possible to stay in Europe through ‘return sponsorships’. Various outcomes of return sponsorships once used in practice. forms of flexible mandatory solidarity have been Three crucial questions are explored: discussed in recent years. However, return sponsorship as an expression of responsibility-sharing between 1. Will the proposal be able to provide tangible support member states has hardly featured in any of them and is to member states at the EU’s external border? new in EU law. 2. Is the instrument a suitable addition to EU return policy, capable of navigating the complexity and human rights sensitivity of returns? Return sponsorship as an expression of 3. Are the proposed measures likely to secure the New Pact’s wider objective of increasing returns, responsibility-sharing between member and what fate awaits the Pact if this expectation states is new in EU law. cannot be met? The concept of return sponsorship is likely to be modified over the coming months. Important practical and operational details were purposely omitted from The concept of return sponsorship may also prove to be the Commission’s proposal, to allow for room for the most controversial element of the New Pact in inter- manoeuvre in the upcoming negotiations. As Home as well as intra-institutional negotiations. Different Affairs Commissioner Ylva Johansson has noted, political actors have already started to firmly defend or, whereas “the devil is in the details”, the same is true instead, oppose different aspects of the concept. Return for the opportunities within the proposals.4 Although sponsorships are also central to the Commission’s much remains uncertain, this Discussion Paper outlines understanding of how all the different elements of the several practical challenges that must be resolved if the Pact come together.3 Whether this proposal stands or mechanism’s functioning is to be secured. flounders will determine the acceptance and prospects of the New Pact as a whole. 1. The concept of return sponsorship 1.1. RETURN SPONSORSHIPS UNDER THE of the Dublin III Regulation (604/2013), determining NEW PACT which state takes responsibility for asylum applications, remain in place. However, if the Commission deems The return sponsorship mechanism appears in the that a state is faced with migratory pressure (including Commission’s proposal for a new Asylum and Migration a risk thereof), other member states will have to step Management Regulation (AMR).5 At its core, this in, depending on their GDP and population size.6 proposal establishes a form of mandatory yet flexible States may choose to contribute via the mechanism solidarity among member

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