Ridam Gangwar – Dr. Ram Manohar Lohiya National Law University, Lucknow (India) – Final Year B.A. LL.B. (Hons.) Student and Researcher in Migration and Law
This is not just another externalisation agreement – it is a constitutional development that threatens to replace EU asylum law with a patchwork of bilateral deterrence regimes and may permanently fracture the idea of a common asylum system.
Image created by the author
Bilateral Returns and the Undermining of CEAS
The UK, under the new Labour government led by Keir Starmer, is seeking a bilateral returns arrangement to send irregular Channel-crossing migrants back to France and a formal agreement has now been reached and according to reports EU–level support is anticipated, even if formal re–entry into the Dublin system remains off the table.
Yet this moves cuts directly against the core principles of the CEAS: solidarity, harmonised procedures, and equal protection. Article 78(1) TFEU mandates a “common policy on asylum”. The Dublin Regulation (Reg. No. 604/2013), though contested, institutionalises burden–sharing and prevents forum–shopping and ad hoc outsourcing it prevents the Undermining the CEAS’s institutional coherence.. If the UK – a third country with no access to CEAS enforcement tools such as Eurodac or the Charter is permitted to return migrants into EU jurisdiction, this weakens the mutual trust principle that underpins the CEAS legal framework. This opens the door for third countries to become active participants in internal asylum redistribution, a legally untested and constitutionally awkward mechanism. Permitting Member States to outsource protection obligations to third countries particularly ones no longer bound by the Charter of Fundamental Rights –undermines the uniformity that Dublin III (Reg. No. 604/2013) was designed to enforce, replacing a coordinated regime with fragmented bilateralism. The EU has criticised such fragmentation elsewhere – it cannot now legitimise it internally without sacrificing both legal coherence and credibility.
Italy Albania and Externalisation Precedent
This is not an isolated development. Italy’s 2023 deal with Albania – allowing asylum seekers rescued at sea to be processed in Albanian territory – mirrors the UK–France logic of offshoring processing and legal responsibility, albeit with the UK no longer legally embedded within the CEAS regime, the difference here is that the UK, unlike Albania, is a former Member State, raising questions about constitutional forum-shopping from within the EU’s own legal past. This is intended to prevent disembarkation, deter future arrivals, and bypass EU procedural safeguards.
A bilateral externalisation agreementsuch as the UK – France deal risks operating entirely outside these judicially required safeguards, sidestepping both Charter standards and judicial review. At the time, legal scholars raised alarm over potential violations of procedural guarantees, limited access to remedies, and risks of refoulement – issues relevant under both Article 18 (right to asylum) and Article 19(2) (non–refoulement) of the Charter of Fundamental Rights. The CJEU further elaborated in Jawo v. Germany (C–163/17) that asylum seekers must not be transferred under Dublin where there is a real risk of inhuman treatment due to deficiencies in the reception system. Instead of resisting this drift, the UK – France case shows the EU acquiescing in the Balkanisation of asylum governance even with a third country no longer bound by the Charter or the CEAS. This sets a dangerous precedent for legal inconsistency, constitutional forum – shopping, and the hollowing out of a rights–based asylum regime.
Legal Grey Zone of UK France Arrangement
From a legal standpoint, the proposed UK – France arrangement occupies a troubling grey zone. For the UK to send asylum seekers to France, two legal routes could be pursued, first, classifying France as a safe country of return under UK domestic law, or striking a bespoke bilateral deal with France, potentially invoking Articles 78(3) and 216 TFEU.
Procedural and Rights Risks: The Subtle Yet Profound Shift and Political Temptations at Constitutional Cost
Beyond institutional risks, this model threatens the individual rights that CEAS was meant to guarantee. The European Court of Human Rights in M.S.S. v. Belgium and Greece (App. No. 30696/09) held that the transfer of an asylum seeker’s application under the Dublin system violates Articles 3 and 13 ECHR due to inhuman detention conditions and the lack of effective remedies in Greece. As past jurisprudence shows returns without safeguards risk violating non-refoulement and due process. The UK–France joint declaration promises “expeditious” returns “in accordance with national law” but offers little clarity on rights protections.
Politically, such deals offer quick wins. For the UK, it signals “control” post – Brexit. For France, it shifts the burden. For Brussels, it reduces irregular inflows. But the constitutional cost is immense. This trend also Jeopardises “common” asylum policyand solidarity mechanisms as such deals undermine burden-sharing and erode trust.
The EU is constructing a Neo – Dublin architecture which risk’s establishing a stratified asylum system driven not by legal harmonisation or rights protection, but by deterrence and geopolitical expediency.
Europe Must Choose Legal or Logistical Unity
The UK–France deal would mark the first attempt to integrate a non-EU third country into the operational returns structure of CEAS –without access to its legal instruments or safeguards. The UK–France deal is more than a migration control measure. It is a constitutional test – not of Europe’s borders, but of its legal identity. If such practices continue, CEAS risks becoming an empty façade of shared governance without legal substance.
Outsourcing Through the Back Door. The UK France Deal Undermines the Legal Basis of CEAS
Ridam Gangwar – Dr. Ram Manohar Lohiya National Law University, Lucknow (India) – Final Year B.A. LL.B. (Hons.) Student and Researcher in Migration and Law
The UK’s attempt to negotiate migrant returns deal with France – with apparent EU support –may seem like yet another step in Fortress Europe’s expansion. But unlike deals with Tunisia, Libya, or Albania, this arrangement brings the logic of legal outsourcing into Europe’s core, by using a former EU member state as a return destination without CEAS safeguards. This model sidesteps the obligations and oversight mechanisms outlined under the Common European Asylum System (CEAS), particularly Article 78(1) TFEU and the Dublin III Regulation.
This is not just another externalisation agreement – it is a constitutional development that threatens to replace EU asylum law with a patchwork of bilateral deterrence regimes and may permanently fracture the idea of a common asylum system.
Bilateral Returns and the Undermining of CEAS
The UK, under the new Labour government led by Keir Starmer, is seeking a bilateral returns arrangement to send irregular Channel-crossing migrants back to France and a formal agreement has now been reached and according to reports EU–level support is anticipated, even if formal re–entry into the Dublin system remains off the table.
Yet this moves cuts directly against the core principles of the CEAS: solidarity, harmonised procedures, and equal protection. Article 78(1) TFEU mandates a “common policy on asylum”. The Dublin Regulation (Reg. No. 604/2013), though contested, institutionalises burden–sharing and prevents forum–shopping and ad hoc outsourcing it prevents the Undermining the CEAS’s institutional coherence.. If the UK – a third country with no access to CEAS enforcement tools such as Eurodac or the Charter is permitted to return migrants into EU jurisdiction, this weakens the mutual trust principle that underpins the CEAS legal framework. This opens the door for third countries to become active participants in internal asylum redistribution, a legally untested and constitutionally awkward mechanism. Permitting Member States to outsource protection obligations to third countries particularly ones no longer bound by the Charter of Fundamental Rights –undermines the uniformity that Dublin III (Reg. No. 604/2013) was designed to enforce, replacing a coordinated regime with fragmented bilateralism. The EU has criticised such fragmentation elsewhere – it cannot now legitimise it internally without sacrificing both legal coherence and credibility.
Italy Albania and Externalisation Precedent
This is not an isolated development. Italy’s 2023 deal with Albania – allowing asylum seekers rescued at sea to be processed in Albanian territory – mirrors the UK–France logic of offshoring processing and legal responsibility, albeit with the UK no longer legally embedded within the CEAS regime, the difference here is that the UK, unlike Albania, is a former Member State, raising questions about constitutional forum-shopping from within the EU’s own legal past. This is intended to prevent disembarkation, deter future arrivals, and bypass EU procedural safeguards.
A bilateral externalisation agreement such as the UK – France deal risks operating entirely outside these judicially required safeguards, sidestepping both Charter standards and judicial review. At the time, legal scholars raised alarm over potential violations of procedural guarantees, limited access to remedies, and risks of refoulement – issues relevant under both Article 18 (right to asylum) and Article 19(2) (non–refoulement) of the Charter of Fundamental Rights. The CJEU further elaborated in Jawo v. Germany (C–163/17) that asylum seekers must not be transferred under Dublin where there is a real risk of inhuman treatment due to deficiencies in the reception system. Instead of resisting this drift, the UK – France case shows the EU acquiescing in the Balkanisation of asylum governance even with a third country no longer bound by the Charter or the CEAS. This sets a dangerous precedent for legal inconsistency, constitutional forum – shopping, and the hollowing out of a rights–based asylum regime.
Legal Grey Zone of UK France Arrangement
From a legal standpoint, the proposed UK – France arrangement occupies a troubling grey zone. For the UK to send asylum seekers to France, two legal routes could be pursued, first, classifying France as a safe country of return under UK domestic law, or striking a bespoke bilateral deal with France, potentially invoking Articles 78(3) and 216 TFEU.
Under Article 78(3) TFEU, the EU can take provisional measures in cases of sudden inflow –but it is the Union, not individual Member States, that acts. This mirrors the concerns raised in the CJEU’s judgment in N.S. v. Secretary of State for the Home Department (C–411/10), where the Court held that Member States must not transfer asylum seekers if systemic deficiencies in the receiving state’s asylum system risk violating Article 4 of the Charter (prohibition of inhuman or degrading treatment). Moreover, the Dublin Regulation (currently being replaced by the Asylum and Migration Management Regulation) was designed to prevent precisely this kind of ad hoc, opportunistic returns diplomacy.
Procedural and Rights Risks: The Subtle Yet Profound Shift and Political Temptations at Constitutional Cost
Beyond institutional risks, this model threatens the individual rights that CEAS was meant to guarantee. The European Court of Human Rights in M.S.S. v. Belgium and Greece (App. No. 30696/09) held that the transfer of an asylum seeker’s application under the Dublin system violates Articles 3 and 13 ECHR due to inhuman detention conditions and the lack of effective remedies in Greece. As past jurisprudence shows returns without safeguards risk violating non-refoulement and due process. The UK–France joint declaration promises “expeditious” returns “in accordance with national law” but offers little clarity on rights protections.
Politically, such deals offer quick wins. For the UK, it signals “control” post – Brexit. For France, it shifts the burden. For Brussels, it reduces irregular inflows. But the constitutional cost is immense. This trend also Jeopardises “common” asylum policy and solidarity mechanisms as such deals undermine burden-sharing and erode trust.
The EU is constructing a Neo – Dublin architecture which risk’s establishing a stratified asylum system driven not by legal harmonisation or rights protection, but by deterrence and geopolitical expediency.
Europe Must Choose Legal or Logistical Unity
The UK–France deal would mark the first attempt to integrate a non-EU third country into the operational returns structure of CEAS –without access to its legal instruments or safeguards. The UK–France deal is more than a migration control measure. It is a constitutional test – not of Europe’s borders, but of its legal identity. If such practices continue, CEAS risks becoming an empty façade of shared governance without legal substance.