Page 123 - Rassegna 2020-1

EXTERNALIZING MIGRATION MANAGEMENT

As a result, relevant legal regimes are different from each other as well as cir-
cumstances and preconditions for their application. For instance, States reserve
the right not to admit migrants to their territories (and return them home)
while they have the duty to let asylum-seekers enter and grant them protection.
The most important difference between these legal regimes lies in the fact that
international protection is, in its essence and with some exceptions, a tempora-
ry status because asylum-seekers are supposed to return home once the push-
factor which forced them to flee have ceased to exist (or have changed to such
a degree that protection is no longer required) while the status of migrant tends
to be permanent. International and national rules concerning long-term per-
mits of residence and work and naturalization for migrants confirm the ten-
dential permanent nature of migratory phenomenon.
Yet, the «law in books» is different from the «law in action»(1) as well as
the reality of migratory and humanitarian flows is far from the one depicted
and regulated by legal regimes.
Pragmatic difficulties seriously hamper the enforcement of the Common
European Asylum System, including the rules on return and readmission.
Accurate identification of irregular third-country nationals is the critical step
for applying to each of them proper rules and appropriate assistance. The fear
of being identified as migrants and being returned back makes most third-
country nationals lie about their status and history and inflates the number of
applications for international protection. The process of identification often
becomes complex, uncertain and time-consuming. The process of return is
even more random. Since 2010 EU common rules on return have been entered
into force. Each year between 400.000 and 500.000 foreign nationals become
eligible for the application of the Return Directive(2) but only the 40% of them
are effectively returned. Reasons for this low rate are many to begin with the
lack of cooperation from some third countries in identifying and readmitting
their own nationals.

3. There is another reason that helps understanding the overall failure of
EU policies in the field of international protection and return/readmission.
Every asylum-seeker is indeed an aspirational migrant. Behind each of them, in
fact, there is a potential long-term resident or future citizen of the country
which grants him international protection. If one flees from Syria, Eritrea or
Boko Haram and is forced to stay abroad for several years waiting for some-
thing to happen in his homeland, can he really come back to his torn-apart
country once the threat or the armed conflict is over and after that over the
years he and his family have become an integral part of the hosting society?

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