The EU and its Perilous Journey Through the Migration Crisis: Informalisation of the EU Return Policy and Rule of Law Concerns

Abstract

The co-operation between the European Union (EU or Union) and third countries on the return and readmission of irregular migrants is increasingly informal, enshrined in political or administrative deals rather than formal international treaties. This article explores the effect of the systematisation in the use of informal deals on the rule of law compliance of the Union’s return policy. It argues that the systematic recourse to informal deals relates to a strategic avoidance of judicial and democratic accountability of the Union’s action. More particularly, EU Institutions make use of the distinction between international treaties and non-binding informal deals to sever an area of governance with clear fundamental rights implications, i.e. the EU return policy, from judicial and democratic oversight. This compromises the rule of law compliance of the EU return policy. In fact, as constitutional principle of the EU legal order, the rule of law inextricably connects and encompasses the pre-eminence of the law, democratic guarantees, and fundamental rights protection.