The EU Pact Embraces Member States’ Special Proximities Towards Selected Migrant Sending Countries

Under the EU’s New Pact on Migration and Asylum, bilateral migration agreements are revived with strings attached. Once formed by national interests, they must now respect EU rules on migration management and uphold the principle of sincere cooperation. Because the solidarity mechanism now includes Member States’ special ties with third countries, the traditional division of power between the Union and the states gets lost. The key question is how much Member States stand to gain or lose from this stronger Union focus on their bilateral migration relations.

In only three years since the end of the COVID-19 pandemic, several EU Member States, on the EU’s eastern border, have initiated bilateral labor migration agreements. Germany and Poland engaged Uzbekistan; Bulgaria has signed an MOU with Turkey; Austria and Germany each have concluded a migration and mobility agreement with India. These efforts were made to recruit much-needed skills to support aging populations, while increasing the readmission of irregular migrants (Vankova 2018).

Parallel to these national efforts, the EU Pact on Migration and Asylum entered into force on 21 May 2024. Of its eight legislative acts, the Asylum and Migration Management Regulation (AMMR 2024/1351/EU) alters the rules of the game for EU Member States engaging in externalizing their migration policies.

From the Global Approach to the EU New Pact: Wavering Positions

For a long time, bilateral migration agreements (BMAs) had flown under the radar of the EU. If at all, they were considered complementary to EU tools (Zlotnik, Lavenex & Lutz 2023). Yet, as the EU expands its legislative authority over readmissions, its actions are becoming increasingly intertwined with Member States’ labor mobility policies (Molinari 2022).

Under the 2015 Global Approach to Migration and Mobility (GAMM), migrant sending countries that cooperate on readmission of nationals or third-country nationals were regularly rewarded by the EU or Member States through a mix of visa facilitation, regular pathways for certain migrant categories, and capacity-building (Tsourdi, Neidhart, Hahn eds. 2024). These positive incentives could also be taken back by the EU, if the sending country neglected or refused to implement the arrangement. Following Ethiopia’s refusal to readmit its own nationals, the EU revoked Schengen visa fee waivers, and the timeframes for visa processing were extended. Against Gambia, Art. 25a of the Visa Code was similarly used “punitively” for its lack of cooperation on readmissions (Frasca 2023).

Despite such efforts, the sixteen readmission agreements and six non-binding EU frameworks seem stuck, as only a third of non-voluntary returns are actually being enforced. The EU Commission has criticized certain Member States for a selective implementation of returns and for piggybacking on other Member States’ strict enforcement of EU law. Such a hands-off approach under the GAMM made it easier for third-country nationals to head to Member States that offered better financial return deals, were more lenient with hardship applications, or were less strict about enforcing the EU Schengen Code.

The EU’s Tightening Grip on Member States’ Bilateralism Under the EU Pact

Once the EU adopted the new Pact in 2020, Member States’ bilateral agreements (BMAs), for the first time in EU history, were subjected to benchmarks of international and human rights law under Article 5 of the Asylum and Migration Management Regulation (AMMR).

Secondly, any new BMA is to be reported to the EU Commission. Thirdly, BMAs must comply with subsidiarity. Under the principle of subsidiarity, law-making authority shifts to a level considered more effective, potentially resulting in forming an exclusive EU competence (Garcia-Andrade 2023). For Member States, this means that, for a certain duration, both the Union and Member States conclude BMAs in parallel, resulting in a dualism of agreements (Panizzon 2014).

In our view, the EU’s express acknowledgment of Member States’ bilateral migration agreements (BMAs) as a new asset for the EU’s externalized migration policy symbolizes both appreciation and strategy. It highlights that the Union values how its Member States have been cultivating bilateral diplomatic relations with migrant source or transit countries all along, especially those with which they share close cultural, political, and commercial connections, since such linkages prove to be key assets towards the EU’s broader migration strategy.

The Union expects Member States to continue to uphold such relations. As the Commission writes in its communication about the New Pact, the “EU level engagement alone is not sufficient. (…) The EU should, in particular, draw on the experience and privileged relationships of some Member States with key partners – experience has shown that the full involvement of Member States in the EU migration partnerships (…) is key to success.”

Conversely, when it comes to the Union’s very own bilateral initiatives, the EU Pact on Migration and Asylum remains quite vague. Some critics argue that it simply “reproduces the externalization” of old migration policies already proven ineffective. Others see renewed momentum in the EU Talent Partnerships and the recent strategic agreements with Tunisia, Mauritania and Egypt.

But what exactly will happen to the “old GAMM” measures, like the EU mobility partnerships, the Common Dialogue on Migration and Mobility (Niger) or the Compacts with Lebanon and Jordan in the meantime? While President von der Leyen ensured their continuity, skepticism over their phasing out and defunding is mounting.

In this situation, it is all the more helpful, that the EU Pact has come to clarify what role it attributes to Member States’ bilateral migration arrangements and what legal consequences could be attached to BMAs failing to comply, as discussed below.

When are Member States liable under the EU “Comprehensive Approach”?

The New Pact significantly restricts what BMAs can achieve, compelling Member States to align with EU-led initiatives such as Mobility Partnerships, Common Agendas on Mobility and Migration, Strategic and Comprehensive Partnerships or EU Readmission Agreements.

In addition, Member States can no longer unilaterally negotiate migration agreements without incorporating the EU’s international commitments and reporting to the EU Commission is now mandatory. For example, the Visegrad countries’ past attempts to offload responsibility during the Syrian refugee crisis would now be considered a breach of the EU’s fair-sharing obligations (de Bruycker 2024). Lastly, for the first time, the EU expressly seeks to “draw on their (Member States’) privileged relationships with key partners.”

In practice, the Pact is already influencing Member States’ behavior. Hungary has begun limiting the availability of guestworker and employment permits to citizens from countries that have signed an EU or bilateral readmission agreement. Hungary’s “punitive” conditionality between readmission and labor migration has narrowed the list of countries eligible for work permits from ten to just Armenia and Georgia.

Reviving Bilateralism, But on EU Terms

The goal of expanding the EU solidarity mechanism to bilateral agreements is to ensure that no Member State benefits disproportionately from another state’s arrangement with a third country. In this way, any practice of “free riding” on members’ strict enforcement of EU law or even national immigration law, can be treated as a violation of the duty of Member States to assist each other under Article 4:3 of the Treaty on the Functioning of the European Union.

This creates a paradox: Member States are encouraged to entertain their “privileged” ties with specific migrant-sending states, but they must do so within a framework that safeguards the solidarity and fair-sharing among EU Member States. In a nutshell, national flexibility is encouraged but only if it reinforces collective responsibility.

*This is the second installment in a two-part blog series. The first post is titled: “Europe’s Renewed Migration Agreements: The Lingering Coloniality of Migration Governance.”

Marion Panizzon is a Senior Research Fellow at the World Trade Institute at the University of Bern, a former nccr – Trade Regulation project leader and nccr – on the move associated researcher. She has contributed to the study of legal frameworks for bilateral migration agreements.

References:

–Andrade Garcia, P. (2023). ‘The external dimension of the EU migration policy: the legal framing of building partnerships with third countries’. In: de Bruycker, P. and Tsourdi, L. (eds.) Research Handbook on EU Migration and Asylum Law, Edward Elgar Publishing, pp. 365-388.
–De Bruycker, P. (2024). “The new European solidarity mechanism: Towards a fair sharing of responsibility between member states?”. Policy Study, Foundation for European Progressive Studies, Friedrich-Ebert-Stiftung and European Policy Centre, Brussels.
–Frasca, E. (2023) ‘Informal agreements and quasi-legal mechanisms in EU-Africa cooperation on migration: how the EU takes advantage of the GCM commitments’, Front. Hum. Dyn., 5.
–Molinari, C. ( 2022) The EU Readmission Policy to the Test of Subsidiarity and Institutional Balance: Framing the Exercise of a Peculiar Shared Competence. In : The EU’s Shifting Borders Reconsidered: Externalisation, Constitutionalisation, and Administrative Integration, Tsourdi, L., Ott , A. and Vankova, Z. (eds.) European Papers 7(1) 151-170.
–Panizzon, M (2012) “Readmission Agreements of EU Member States: A Case for EU Subsidiarity or Dualism?” Refugee Survey Quarterly, 31(4) 101–33.
–Tsourdi, L., Neidhart, A.-H. and Hahn, H. (2024) From Compromise to Implementation: A New Era for EU Migration Policy, European Policy Center.
–Van Elsuwege, P. (2019) The duty of sincere cooperation and its implications for autonomous Member State action in the field of external relations. In : Varju, M. (ed.) Between Compliance and Particularism: Member State Interests and European Union Law, Springer 283-298.
–Vankova, Z. (2018). Poland and Bulgaria’s bilateral agreements with Eastern partnership countries in the context of circular migration. European Journal of Social Security, 20(2), 188-203.