Migration remains at the top of the agenda of the EU institutions, and its Member States. A distinct trend towards informality has been detected by scholars from different intellectual traditions and disciplines, all of whom note that whilst informal means of governance are by no means novel, their use in migration is concerning. Accompanied by a rhetoric of exclusion, and bolstered by populist language, it is beginning to seem that informality in governance is the way to solve Europe’s migration ‘crisis’. The EU-Turkey Statement of 2016, the EU-Afghan ‘way forward’, the Italy-Albania MOU and other, less prominent (but no less significant) examples of governance which bypass established, legal frames, are now at the forefront. In this panel, scholars drawn from Political Science & International Relations, Anthropology and Law consider the theoretical and practical means by which informality in migration governance is in evidence – and its consequences.

Informal rules are considered in IR’s literature as ‘unofficial guidelines and practices’ able to drive expectations and produce tangible effects in international politics. This paper looks at one such informal rule consolidated in the last years, built upon a recurrent trope: ‘the instrumentalization of irregular immigration’. Drawing from such rhetoric, the European Union and the Member States were able to harden measures at the external border, irrespective of the specific needs of persons and hence in violation of the existing rule on reception and protection. The viability of the process has been guaranteed by a discursive connection between the ‘instrumental’ use of migration by third actors and physical and ontological threats to the Union. Ensuing implications seem to drive towards a ‘geopoliticization of migration’. In fact, a hardened border seems to provide substance to the aspiration of the ‘geopolitical Commission’, able to counter and fight back threats to the Union. Also, the soon formalization of the ‘instrumentalization of irregular immigration’ will lead the way to a geopolitical approach to migration, where policies adopted by the EU and Member States will answer geopolitical needs rather than human rights concerns.

Informality is acknowledged to play an increasing role in the external dimension of EU migration law. In the context of EU-Africa cooperation on migration, we observe a proliferation of informal agreements with third countries. These agreements often envisage the implementation of cooperation projects funded by the European Union and framed as “technical support”. Many EU-funded projects foresee the design or review of legislation and policy documents or specific forms of law enforcement by the African States by providing advisory services, training programmes, equipment and technology. From an EU law perspective, this can be framed as a form of “legal influence” over third countries by the European Union, which can result in third countries adopting or applying rules identical to the rules of the European Union in a given policy field, as a unilateral sign of normative alignment with the Union. It is debatable if the content of EU-funded cooperation projects, the choice over the allocation of funding, and the objectives pursued while offering the African States “technical support” are the result of actual ownership and consent from the third countries involved or if they are, instead, the outcomes of bargaining based on power dynamics. This paper will examine whether the EU’s legal influence can be regarded as a form of intervention in third countries.

Migration management is an approach aimed to filter migration from the Global South to the benefit and according to the modalities of countries in the Global North. The EU is at the forefront of the financing of migration-management activities in Africa. Beyond border-related interventions, migration management includes activities regarding the tackling of the so-called root causes of irregular migration as well as addressing the so-called reintegration of migrants who have been returned. Due the determination to have a more direct access to target communities, the EU normally involves local non-state actors in the implementation of such activities. Ethnographic research allows to elucidate the unexpected and idiosyncratic ways in which EU-designed projects are actually implemented by local non-state actors, beyond European rationalistic and technical narratives. The assemblage ethnography I conducted about The Gambia between 2020 and 2022 highlighted that a good deal of informality is indeed involved in how Gambian non-state actors implement migration-management activities. Following an association made up of migrants assisted in their return to The Gambia through EU funding, I observed, among other examples, the informal relationships between the members of the association and the participants of the migration-management activities, the group’s informal approach to accounting and reporting as well as the primacy of culture and religion in its implementation approach. Capacity-building projects attempt to minimise informality, which may ultimately be considered a mechanism of resistance to the European rationalistic and technical developmental approach.

The EU Treaties place the protection of human rights and the respect of international law at the heart of the Union’s raison d’etre. However, the recent shifts in EU migration policy and practice from the mechanism foreseen by the Treaty towards informal tools and instruments concluded outside the Treaty framework bring into question how human rights can be protected. The aim, accompanied by a boosted but unclear role for agencies including Frontex, appears to be to affirm the protection of rights but only on a theoretical level. By attempting to ensure that would-be migrants are prevented from reaching the territory of the EU, or ensuring that they do not have the means to exert their rights under national, EU or international law after arrival, the commitment to the protection of rights appears to exist at a theoretical and exclusionary level only. The paper considers how the existing legal mechanisms might be strengthened to ensure that EU institutions can neither ignore nor bypass the clear commitments in the Treaties.