Externalising the EU’s border management as intergovernmental setback and rights hampering

The EU has adopted policies of transferring external border controls to neighbour countries (Turkey, Libya, Albania, etc.) to manage migration lato sensu from a distance. The New Pact on Migration and Asylum further supports this strategy. Different types of migratory flows are, accordingly, handled away from the EU territory, officials and surveillance. The enforcement of this policy raises serious EU law questions. Despite the provision of Article 67(2), TFEU, those agreements can be celebrated under intergovernmental procedures where the CJEU lacks jurisdiction (cases C‑208/17 P to C‑210/17 P). In addition, externalisation may downgrade fundamental rights protection of migrants and asylum-seekers in general (v.g. detention and ‘pushbacks’) and could cause their unlawful removal. All in all, this presentation will address these two lines of legal shortcomings of outsourcing the EU’s border controls, i.e., the intergovernmental setback as well as incompliances with migrants’ rights.