Law versus Politics? Understanding the Rise of Informality in EU Readmission Policy

Against the backdrop of the recent constitutionalization of the EU migration and asylum policy domain, scholars have since 2015 observed the tendency of the EU executive to choose soft law policy ‘instruments’ and ‘tools’ at the expense of hard law. This (re)turn to informality is particularly visible in return and readmission cooperation with third countries, where the EU has since 2016 negotiated a number of ‘readmission arrangements’ with countries such as Turkey, Ethiopia, Ivory Coast, Bangladesh, the Gambia, Guinea or Afghanistan. Legal scholars have underscored the potential negative impact of this turn in terms of human rights protection and, particularly, of diminished accountability of the EU executive. As the use of soft law sidelines EU institutions such as the European Parliament or the European Court of Justice to the benefit of the European Commission or the Council, some Members of the Parliament and international civil society organizations have questioned the (democratic) legitimacy of such practice. Executive EU institutions have however justified the use of arrangements on grounds of efficiency and political expediency (particularly regarding relations with third countries). With this paper I aim to investigate two interrelated questions: 1) how and why has informalization become a dominant paradigm in EU readmission policy; 2) how has this turn been justified and legitimized to other institutions and the general public. To answer these questions, I will draw on a qualitative analysis of three sets of data: policy documents produced by the EU institutions and other stakeholders; recordings of events where different EU institutional actors discussed readmission policy (e.g. Parliamentary plenary meetings, Committee meetings); interviews with EU policy officials and practitioners.