Informal Readmission Agreements - Beyond the reach of the law?

Abstract: During the last years, there has been a shift in the European Union’s migration policy towards an increased use of informal readmission agreements. A common criticism of informal readmission agreements is that the informality obstructs parliamentary and judiciary reviews. This can have serious consequences because the negative impact informal readmission agreements can have on migrants’ right to seek asylum. Because of the impact informal readmission agreements have on migrants and the increased use of the informal format, it is important to understand the legal consequences of the informality. Therefore, this thesis intends to find out if the informal format makes it more difficult to annul informal readmission agreements under EU law and international law. The focus of the investigation is on two of the of most debated and criticized informal readmission agreements, the EU-Turkey Statement and the Joint Way Forward Declaration. The investigation was conducted by examine the possibilities to annul the EU-Turkey Statement and the Joint Way Forward Declaration. An essential part of this investigation was to establish if the EU was a party to the Statement and the legal nature of the informal readmission agreements. For an annulment to be possible under EU law the Union must be a party to the informal readmission agreements This became clear when the General Court dismissed three actions for annulment of the EU-Turkey Statement. The court argued that the Statement was not concluded by any EU institution but instead all 28 Member States and therefore the court lacked jurisdiction. The court orders have been criticised for ignoring international law and important principles in EU law. Thus, there are grounds for arguing, contrary to the orders of the court, that the EU is a party to the EU-Turkey Statement. The legal nature of an agreement is primary determined by the intention of the parties. Due to the ambiguous character of the EU-Turkey Statement and the lack of public information about the circumstances surrounding its conclusion, it is difficult to determine if it is legally binding. On the other hand, there are no doubts regarding the legal nature of the Joint Way Forward Declaration since the parties stated in the document that it should have no legal effect. The investigation concluded that the informality was an obstacle to annul the informal readmission agreements, but it did not completely prevent it. The investigation also identified different ways the informality posed problems for the annulment.