{"id":314,"date":"2025-09-19T16:07:11","date_gmt":"2025-09-19T15:07:11","guid":{"rendered":"https:\/\/blogs.sussex.ac.uk\/sussex-centre-for-migration-research\/?p=314"},"modified":"2025-09-25T09:12:20","modified_gmt":"2025-09-25T08:12:20","slug":"outsourcing-through-the-back-door-the-uk-france-deal-undermines-the-legal-basis-of-ceas","status":"publish","type":"post","link":"https:\/\/blogs.sussex.ac.uk\/sussex-centre-for-migration-research\/2025\/09\/19\/outsourcing-through-the-back-door-the-uk-france-deal-undermines-the-legal-basis-of-ceas\/","title":{"rendered":"Outsourcing Through the Back Door. The UK France Deal Undermines the Legal Basis of CEAS"},"content":{"rendered":"\n

Ridam Gangwar \u2013 Dr. Ram Manohar Lohiya National Law University, Lucknow (India) – Final Year B.A. LL.B. (Hons.) Student and Researcher in Migration and Law<\/em><\/p>\n\n\n\n

The UK\u2019s attempt to negotiate migrant returns deal with France<\/a> \u2013 with apparent EU support \u2013may seem like yet another step in Fortress Europe\u2019s expansion. But unlike deals with Tunisia<\/a>, Libya<\/a>, or Albania<\/a>, this arrangement brings the logic of legal outsourcing into Europe\u2019s core, by using a former EU member state as a return destination without CEAS safeguards<\/a>. This model sidesteps the obligations and oversight mechanisms outlined under the Common European Asylum System (CEAS)<\/a>, particularly Article 78(1) TFEU<\/a> and the Dublin III Regulation<\/a>. <\/p>\n\n\n\n

This is not just another externalisation agreement \u2013 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. <\/p>\n\n\n\n

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Image created by the author<\/figcaption><\/figure>\n\n\n\n

Bilateral Returns and the Undermining of CEAS<\/strong> <\/h4>\n\n\n\n

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<\/a> has now been reached and according to reports<\/a> EU\u2013level support is anticipated, even if formal re\u2013entry into the Dublin system remains off the table. <\/p>\n\n\n\n

Yet this moves cuts directly against the core principles of the CEAS: solidarity, harmonised procedures, and equal protection. Article 78(1) TFEU<\/a> mandates a \u201ccommon policy on asylum\u201d<\/a>.<\/a> The Dublin Regulation (Reg. No. 604\/2013),<\/a> though contested, institutionalises burden\u2013sharing and prevents forum\u2013shopping and ad hoc outsourcing it prevents the Undermining the CEAS\u2019s institutional coherence.. If the UK \u2013 a third country with no access to CEAS enforcement tools such as Eurodac or the Charter <\/a> 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 \u2013undermines the uniformity that Dublin III (Reg. No. 604\/2013)<\/a> was designed to enforce, replacing a coordinated regime with fragmented bilateralism. The EU has criticised such fragmentation elsewhere \u2013 it cannot now legitimise it internally without sacrificing both legal coherence and credibility. <\/p>\n\n\n\n

Italy Albania and Externalisation Precedent <\/h4>\n\n\n\n

This is not an isolated development. Italy\u2019s 2023 deal with Albania<\/a> \u2013 allowing asylum seekers rescued at sea to be processed in Albanian territory \u2013 mirrors the UK\u2013France 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\u2019s own legal past. This is intended to prevent disembarkation, deter future arrivals, and bypass EU procedural safeguards. <\/p>\n\n\n\n

A bilateral externalisation agreement<\/a> <\/a>such as the UK \u2013 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 \u2013 issues relevant under both Article 18 (right to asylum) <\/a>and Article 19(2<\/a>)<\/strong><\/a> (non\u2013refoulement)<\/a> of the Charter of Fundamental Rights.<\/a> The CJEU further elaborated in <\/a>Jawo v. Germany (C\u2013163\/17<\/a>) 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 \u2013 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 \u2013 shopping, and the hollowing out of a rights\u2013based asylum regime. <\/p>\n\n\n\n

Legal Grey Zone of UK France Arrangement <\/h4>\n\n\n\n

From a legal standpoint, the proposed UK \u2013 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<\/a>.  <\/p>\n\n\n\n

Under <\/a>Article 78(3) TFEU,<\/a> the EU can take provisional measures in cases of sudden inflow \u2013but 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\u2013411\/10)<\/a>, where the Court held that Member States must not transfer asylum seekers if systemic deficiencies in the receiving state’s asylum system risk violating <\/a>Article 4 of the Charter <\/a>(prohibition of inhuman or degrading treatment). Moreover, the Dublin Regulation<\/a> (currently being replaced by the <\/a>Asylum and Migration Management Regulation<\/a>) was designed to prevent precisely this kind of ad hoc, opportunistic returns diplomacy.  <\/p>\n\n\n\n

Procedural and Rights Risks: The Subtle Yet Profound Shift and Political Temptations at Constitutional Cost <\/h4>\n\n\n\n

Beyond institutional risks, this model threatens the individual rights that CEAS was meant to guarantee. The European Court of Human Rights in <\/a>M.S.S. v. Belgium and Greece (App. No. 30696\/09)<\/a> held that the transfer of an asylum seeker\u2019s application under the Dublin system violates Articles 3 and 13 ECHR<\/a> 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\u2013France joint declaration<\/a> <\/a> promises \u201cexpeditious\u201d returns \u201cin accordance with national law\u201d but offers little clarity on rights protections. <\/p>\n\n\n\n

 Politically, such deals offer quick wins. For the UK, it signals \u201ccontrol\u201d post \u2013 Brexit. For France, it shifts the burden. For Brussels, it reduces irregular inflows. But the constitutional cost is immense. This trend also Jeopardises \u201ccommon\u201d asylum policy<\/a> <\/a>and solidarity mechanisms as such deals undermine burden-sharing and erode trust.  <\/p>\n\n\n\n

The EU is constructing a Neo \u2013 Dublin architecture which risk\u2019s establishing a stratified asylum system driven not by legal harmonisation or rights protection, but by deterrence and geopolitical expediency.  <\/p>\n\n\n\n

Europe Must Choose Legal or Logistical Unity <\/h4>\n\n\n\n

The UK\u2013France deal would mark the first attempt to integrate a non-EU third country into the operational returns structure of CEAS \u2013without access to its legal instruments or safeguards. The UK\u2013France deal<\/a> is more than a migration control measure. It is a constitutional test \u2013 not of Europe\u2019s borders, but of its legal identity. If such practices continue, CEAS risks becoming an empty fa\u00e7ade of shared governance without legal substance.  <\/p>\n","protected":false},"excerpt":{"rendered":"

Ridam Gangwar \u2013 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\u2019s attempt to negotiate migrant returns deal with France \u2013 with apparent EU support…<\/span><\/p>\n

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