international law — deportation
Do States have an obligation to take their nationals back?
Will the deportation plans recently announced by some countries work without the agreement of the receiving countries?
Also EU countries have faced during the last decades the problem of returning irregular migrants to their countries of origin. Every year, between 400,000 and 500,000 foreign nationals are ordered to leave the EU because they have entered or they are staying irregularly. However, only 40 % of them are sent back to their home country or to the country from which they travelled to the EU.
Readmission agreements
One of the reasons for the low rate of effective return among migrants who have been ordered to leave the EU is the lack of cooperation from some third countries in identifying and readmitting their nationals. This is the reason why the EU co-operates very actively with the home countries of irregular migrants, in particular through ‘readmission agreements’. These agreements set out clear obligations and procedures for the authorities of the non-EU countries and of EU Member States as to when and how to take back people who are irregularly residing in the EU territory.
EU Readmission Agreements are based on reciprocal obligations and are concluded between the European Union and non-EU countries to facilitate the return of people residing irregularly into their country of origin or to a country of transit. They operate alongside but take precedence over bilateral readmission agreements between the concerning EU Member States and non-EU countries. They are negotiated in a broader context where partner countries are usually granted visa facilitation and other incentives such as financial support for implementing the agreement or special trade conditions in exchange for readmitting people residing without authorisation in the EU.
Do States have an obligation to readmit their own nationals, irrespective the existence of a readmission agreement?
Yet, do States have an obligation under international law to readmit their own nationals even in the absence of a readmission agreement? The obligation of a State to readmit its own nationals is deemed as a firmly established norm of customary law because of the coexistence of opinio iuris and consistent State pratice.
The European Court of Justice affirmed in 1974 (Case 41–74 Van Duyn v. Home Office) that a principle of international law prevents States from refusing the right of entry or residence to its own nationals. The Legal Service of the EU Council of Ministers expressed a different view on the matter (Council Doc 6658/99) affirming that it is doubtful whether, in the absence of a specific agreement between the concerned States, a general principle of international law exists, whereby these States would be obliged to readmit their own nationals when the latter do not wish to return to their State of origin.
While the doctrine unanimously affirms the existence of such an obligation, there are however two different views on the grounds that justify the States’ obligation:
a) Part of the doctrine affirms that the obligation derives from the right of every State to expel foreigners and the right of everyone to return to its own country, right which is set forth in several international Conventions, such as art. 13(2) of the Universal Declaration of Human Rights and art. 3(2) of the European Convention of Human Rights. The State’s obligation would therefore be against the individuals as a consequence of the rights deriving from their nationality;
b) Another part of the doctrine affirms, instead, that the obligation to readmit its own nationals would derive on the States’ right to regulate access to and expulsion from their territory. The refusal of a country to readmit its own nationals expelled from the territory of another State would therefore entail a breach of the territorial soverignty of the host State and jeopardize the right of the host State to expel foreigners.
Conclusions
Readmission agreements are surely important to facilitate host States to send irregular migrants back to their country of origin. It is however important to highlight that, from a strict legal point of view, States would have in any event an obligation under international law to readmit their own nationals. The execution of readmission agreements (which usually include the granting of benefits and incentives to the receiving State) does not contrast with or in any way affect or limit the existence of the general obligation of States to readmit their own nationals.
The political implications of deportation orders issued without the agreement of receiving countries are both complex and contentious. Unilateral deportation policies can significantly strain diplomatic relations, particularly with nations that have historically resisted accepting deportees. Many countries view such actions as an infringement on their sovereignty, which can escalate tensions and provoke retaliatory measures, such as restricting visas, curtailing security cooperation, or even undermining broader diplomatic efforts.
Beyond bilateral relations, deportation policies have far-reaching consequences in the geopolitical sphere, potentially affecting trade agreements, security partnerships, and international diplomatic goodwill. Countries that rely on remittances from their nationals in a foreign country may resist deportation efforts, fearing economic repercussions, while others may leverage their cooperation on immigration issues as a bargaining chip in broader negotiations.
Useful resources
IOM-Thematic-Paper-Readmission.pdf
Map Shows Which Countries Refuse to Take Back Deported Migrants — Newsweek
Disclaimer: The information provided on this article (i) does not, and is not intended to, constitute legal advice; (ii) are for general informational purposes only and may not constitute the most up-to-date legal or other information (iii) this website may contain links to other third-party websites. Such links are only for the convenience of the reader; (iv) readers should contact their attorney to obtain advice with respect to any particular legal matter.
