Migrant repatriations as a transatlantic challenge: Some legal,methodological and democratic considerations

Introduction

In democracies, deporting people who are found staying illegally on the territory of a state has always been a problem. Domestic regulations, political opposition, administrative inefficiencies, international legal obligations and pressure from employers, as well as resistance from the countries of origin, all put obstacles in the way of the efforts of national authorities to conduct repatriations.

The present article draws comparisons between the EU ¹ and the US, looking at a number of select criteria. It does not pretend to provide a comprehensive overview. The article uses the term ‘repatriations’. ‘Repatriation’ is understood as being identical to ‘return’, which the European Migration Network (EMN) defines as the ‘movement of a person going from a host country back to a country of origin, country of nationality or habitual residence usually after spending a significant period of time in the host country whether voluntary or forced, assisted or spontaneous’ (EMN 2018, 329). The term ‘compulsory return’ is synonymous with ‘forced return’, ‘removal’ (European Parliament and Council 2008, art. 8) and ‘deportation’. Due to its limited focus, this article largely avoids addressing the EU’s (legal) ‘refusals of entry’ ² and (mostly illegal) ‘pushbacks’, that is, refusals of entry without examining the person’s humanitarian status. Correspondingly, it largely avoids the US’s analogous (and legal) ‘expedited removals’. ³

Political context

Despite the momentous geopolitical events that seem to be setting the EU and the US further apart than ever before, the migration policies of the two jurisdictions provide a lot of scope for comparison and mutual learning. At the same time, political demand for more effective repatriations has recently grown to levels previously unseen. In view of the dismally low repatriation rates, during her candidacy for the role of European Commission president, Ursula von der Leyen announced a new legislative framework for returns in her Political Guidelines for 2024–9 as part of her offer to the European Parliament (European Commission 2024a). This was, at least in part, in response to far-right parties in the EU capitalising on the issue (Wallis 2025). During his presidential campaign in the US, Donald Trump promised the mass deportation of illegal immigrants, announcing his intention to declare a national emergency and use the US military for removals (Debusmann and Wendling 2024).

This similarity in campaigns aside, the historical legacies could not be more different. The US is an archetypal immigration country. In contrast, emigration from Europe outstripped immigration for many centuries. Europe only became a continent of net migration in the mid-1980s (Eurostat n. d.), with its countries displaying highly divergent patterns of immigration and emigration.

Methodological issues

The examination of deportations, and deportation rates, is beset with difficulties. The sizes of the undocumented populations differ greatly and so do the EU and the US legal systems. In addition, we only have estimates of the numbers of people staying without the required documentation.

In 2017 the Pew Research Center made an estimate of Europe’s undocumented populations. According to this estimate, there were 3.1 million to 4.6 million illegal migrants living in the EU27+ ⁴ in 2017 (Pew Research Center 2019). The mean of these two figures, 3.85 million, would represent 0.85% of the 460 million population of the EU27+. ⁵ By contrast, the US had, by April 2024, about 13.3 million residents without a permanent legal status, who were thus facing the possibility of removal (American Immigration Council 2024). This represented 3.96% of the total population of some 336 million.

Crucially, the boundary between being authorised (documented) and unauthorised (undocumented) is fluid. A person may enter a jurisdiction illegally, then obtain legal status, for example, as an asylum seeker. An illegally staying person may also obtain legal status through government regularisation. Vice versa, a person who enters on a visa or through a visa-free regime, becomes ‘unauthorised’ when their permitted visa-free stay or their visa expires.

For the EU, the complexity continues with the delineation of territory. Whereas the last change to the US mainland territory was the purchase of Alaska in 1867, the territory of the EU keeps changing as countries join or leave the bloc. For example, the EU’s latest member, Croatia, joined in 2013. Until that year, any migration between the existing EU and Croatia counted as international migration. ⁶ Hence, while before 2013 an illegally staying Croatian national would have been deported from the EU based on the EU’s Return Directive (European Parliament and Council 2008), since 2013 Croatia has used the same legislation to repatriate, for example, an illegally staying Turk or Angolan. To make matters even more complicated, the Return Directive also applies to those countries that are members of the passport-free Schengen zone but are not EU members, that is, Iceland, Liechtenstein, Norway and Switzerland. It does not apply to Ireland as the country is not in the Schengen zone and has an opt-out from home affairs legislation.

Legal provisions

In both the EU and the US, the law allows governments to repatriate people who stay illegally on the territory. The EU’s Lisbon Treaty states, in article 79, that the EU institutions ‘shall adopt measures in . . . illegal immigration and unauthorised residence, including removal and repatriation of persons residing without authorisation’.

This policy objective is then detailed in the 2008 Return Directive. EU members have incorporated this Directive into their national legislations. The Directive mandates in article 6.1 that member states ‘shall issue a return decision to any third-country national staying illegally on their territory’ (European Parliament and Council 2008).

Similarly, in the US, the Immigration and Nationality Act of 1952 (as amended) stipulates that ‘any alien . . . in and admitted to the United States shall, upon the order of the Attorney General, be removed if the alien is within one or more of the following classes of deportable aliens’; this is then followed by a long list of categories (US Citizenship and Immigration Services n.d., para. 1227; Rappaport 2025a).

Both EU law (European Parliament and Council 2008, recital 10 and art. 7) and US law (US Citizenship and Immigration Services n.d., para. 1229c) give preferential treatment to those who want to return to their country of origin voluntarily. EU members tend to reward such behaviour with financial incentives and the possibility of reintegration assistance for the deportees. In the US, if a person is removed following a court order, that person is usually banned from legally returning to the country for a period of 5 to 20 years. This ban can only be lifted if the person receives special permission (called a waiver) from the immigration authorities (Rappaport 2025b). However, if a person chooses to leave the country voluntarily instead of being deported, they will not have a deportation order on their immigration record, can avoid the usual ban on returning to the US legally and will not need a waiver to come back (Justia 2024; Rappaport 2025b).

The EU member states are signatories to the 1951 Convention Relating to the Status of Refugees. The US is a signatory to the 1967 Protocol that expanded the Convention to apply beyond Europe. The Convention prohibits, in article 33, the expulsion and return of a refugee to a territory where their life or freedom would be threatened on account of their race, religion, nationality, membership of a particular social group or political opinion (UN High Commissioner for Refugees 1951). In addition, EU members are signatories to the European Convention on Human Rights. The latter further increases the legal burdens on deportations. It prohibits putting an individual at risk of torture or other forms of inhuman or degrading treatment or punishment. The jurisprudence of the European Court of Justice and of the European Court of Human Rights have set a very high threshold for repatriations. The rulings of the European Court of Human Rights apply to refugees who are victims of individual persecution within the meaning of the Refugee Convention, to persons fleeing the consequences of armed conflict and natural disaster, and to those whose right to a private and family life would be violated by repatriation (Šimoňák and Scheu 2021, 20).

Very often, the relevant authorities do not attempt to repatriate an illegally staying person (see the last section). In other cases, they try but fail. In relation to both possibilities, the option of regularisation may be available to the authorities. EU members are free to regularise any person’s status by offering the ‘right to stay for compassionate, humanitarian or other reasons’ (European Parliament and Council 2008, art. 6.4). US law does provide limited opportunities for legalisation. However, the US Congress has long been divided on immigration enforcement in the interior of the country and on border security. This has prevented the passage of a comprehensive immigration reform bill since the Immigration Reform and Control Act was adopted in 1986 (US Congress 1986). As a result, the US has not had a wide-ranging legalisation programme for almost 40 years.

Population surveys

Contrary to the realities on the ground, majorities on both sides of the Atlantic prefer the successful repatriation of those without a legal status. The available US surveys are more detailed and nuanced than European ones and have produced more ambiguous results than those conducted in the EU. In 2017 the Pew Research Center published the results of a survey of citizens in 10 EU countries. ⁷ Whereas majorities in nine countries voiced support for taking in refugees, large shares (a median of 69%) were in favour of deporting immigrants who stayed illegally (Wike et al. 2017). Another survey published by Pew in 2019 produced similar results for the EU. In 7 of the 10 EU countries polled, the majority supported the deportation of people living in their country illegally (Gonzalez-Barbera and Connor 2019).

In the same survey, the US public was evenly divided on the issue, with about half (46%) backing deportations of people staying illegally and the other half (47%) opposing forced repatriations (Gonzalez-Barbera and Connor 2019). In an Associated Press–NORC Center for Public Affairs Research poll published in early 2025, 83% of Americans polled supported deporting immigrants living in the US illegally who have been convicted of a violent crime. Nevertheless, 55% opposed deporting immigrants living in the country illegally if it resulted in separating them from their children who were US citizens (Associated Press–NORC Center for Public Affairs Research 2025). An Axios/Ipsos poll conducted in January 2025 found that while 66% of Americans supported the idea of deportation, only 38% were in favour of military enforcement of those removals (Talev and Contreras 2025; Rosas 2025). Curiously, Eurobarometer, the EU’s official survey programme established in 1973, has never asked respondents about their views on repatriations, despite the programme’s extensive reach and resources.

From a broader perspective, there may be a link between repatriations and public support for the government of the day or, more generally, the governing political regime. However, this author has not found any population surveys to validate or reject such a hypothesis. Nevertheless, numerous studies and surveys exist that link the perception of uncontrolled migration with voting intentions. In a Fondapol/Ipsos survey of the 27 EU member states and the UK, published in 2024, 27% of the respondents cited illegal migration as the first or second factor influencing their electoral choices, after Russia’s invasion of Ukraine and the economic situation (Reynié 2024).

Ineffectiveness of migrant repatriations

The democratic requirement of an efficient repatriation policy contrasts with the actual figures for migrants that return or are returned to their home countries. A direct comparison of return rates would only be possible following a detailed legal and statistical analysis, which is beyond the scope of this article. It can be safely stated, though, that neither the US nor the EU do particularly well on repatriations.

There are also numerous methodological issues with measuring repatriations. In the EU, there are sizeable discrepancies between the member states’ approaches to reporting repatriations, and the data available may be incomplete. In addition, Eurostat, the EU’s statistical agency, and Frontex, the EU’s border control agency, tend to provide somewhat different figures (Dumbrava 2025, 7–8). Methodological doubts aside, the annual return rate for the EU27+ area between 2014 and 2023 oscillated between 17.6% in 2020 and 44.1% in 2016, according to Eurostat. The long-term overall trend was a downward one, with the effective return rate not exceeding 20% between 2020 and 2023 (Dumbrava and Radjenovic 2024, 3). Credible analyses of this development have not been published. Preliminary data show that in 2024, the return rate may have reached over 20% (European Commission 2024b) for the first time since 2019. The available US statistics provide only absolute numbers of deportees and not repatriation rates (see Chishti and Bush-Joseph 2024).

Thanks to its centralised immigration system, the US does not suffer the same methodological issues in measuring repatriation rates. However, deficiencies in repatriating ‘deportable aliens’ (US Citizenship and Immigration Services n.d., 1952, para. 1227) may be almost as pronounced in the US as they are in the EU. Repatriation rates in the US depend heavily on the individual’s detention status and the enforcement priorities in place. (Neither category is a feature of published EU statistics.) Once a person has been detained in the US, the chance of him or her being deported is high. While up-to-date information is not readily available, in the 1990s this rate was between 92% and 94% (US Department of Justice 2003).

The EU member states differ on who should be returned and where to return people to safely (Dumbrava and Radjenovic 2024, 4). In addition, repatriation priorities may vary over time. Germany, for example, has recently introduced changes to deport criminals and members of criminal organisations more quickly (Germany, Federal Ministry of the Interior 2023). French law also provides for the possibility of expelling a foreigner who represents a serious threat to public order, even if he or she is legally resident (France, Service-public 2024). US repatriation priorities tend to differ somewhat from one president to the next (Chishti and Bush-Joseph 2024). Until recently, deportations have focused on deportable aliens who fall within the priority category of the given presidential administration. However, Trump has said that in his second term, which started in January 2025, he wants to deport everyone living illegally in the US, with convicted criminals to be deported first (Nicholas 2024).

Although it is not possible to directly compare repatriation rates, we can compare the absolute numbers of people who have been recently repatriated. In 2023 the EU’s national authorities managed to remove 95,000 third-country (non-EU) nationals out of the 493,000 who were issued with a return order (Dumbrava and Radjenovic 2024, 2). In the same year, the US authorities conducted 721,000 repatriations (US Office of Homeland Security Statistics 2025). If the EU’s refusals of entry (Eurostat 2024) and the US’s expulsions are added to the count, the total tally is 214,000 for the EU and 1,086,000 for the US in 2023. Compared to the estimated total populations of undocumented migrants on each side of the Atlantic, the effectiveness of the US system appears to be somewhat greater.

A host of reasons makes the two jurisdictions’ repatriation efforts ineffective. Internally (for both the EU and the US), the main problems tend to be a lack of capacity, which includes the capacity of administrative bodies and courts; a lack of inter-agency cooperation; and, in the EU, a lack of cooperation between national authorities. There is no automatic recognition of EU member states’ return decisions. Removable third-country nationals can avoid deportation by simply moving to a different EU member state (Dumbrava and Radjenovic 2024). A recent analysis by the German government showed that most forced repatriations fail because the deportee has disappeared from their registered address on the day of their removal to the airport (Leubecher 2024). The Return Directive allows the detention of non-EU nationals if there is a risk of absconding, but many EU governments do not use this provision due to cost and political expediency. In the US, political opposition has, until recently, hampered efforts to enact measures to effectively deport illegal migrants. Separately, authorities in both the US and the EU have to deal with numerous unfounded or fraudulent appeals from individuals who use procedural and legal loopholes to delay or prevent their repatriation (see European Commission 2020, 43).

There is another aspect to this. The two jurisdictions’ labour markets thrive on undeclared labour. In the EU, it is especially small and medium-sized businesses in construction, accommodation, catering, manufacturing and agriculture that illegally employ non-EU nationals (EMN 2025, 5). Similarly, large swathes of US agriculture, retail and services would collapse if all the illegal migrants were suddenly removed. According to an analysis from 2016, ‘a policy of mass deportation would immediately reduce the nation’s GDP by 1.4 percent, and ultimately by 2.6 percent, and reduce cumulative GDP over 10 years by [4.7 trillion US dollars]’ (Edwards and Ortega 2016).

To this author’s knowledge, no similar estimates have been produced for the EU. Given the EU’s smaller population of irregular migrants, the effects on the EU’s GDP of a mass deportation would be bound to be lower. In both the US and the EU, the enforcement of legislation that prevents illegal migrant work is lax or even non-existent due to the pressure from businesses on local and national governments. Furthermore, as one US-based observer explained, employers also feel a moral obligation to employees who have worked for them for many years (Campo-Flores and Deng 2025).

The external side of repatriations includes a number of other challenges. The EU, despite having concluded 18 binding readmission agreements, has struggled to create incentives for countries of origin to fulfil their readmission obligations (European Court of Auditors 2021). Over the years, individual EU members have also created hundreds of bilateral readmission agreements with third countries: according to a 2023 count, there were 344 such agreements in place (Cassarino 2023, 5). Often, these bilateral agreements are somewhat more effective than the EU ones, as Europe’s national governments are in a better position to create incentives for third countries to readmit their nationals.

Due to its federal-level immigration policy, economic clout, readiness to utilise the military and willingness to apply pressure to foreign governments, the US is probably able to repatriate third-country nationals more effectively than the decentralised EU. Neither the EU nor any of its 27 members could replicate what Trump managed within 30 days of taking up his second-term office in early 2025—to forge new repatriation arrangements with El Salvador, Guatemala, Panama, Venezuela and Costa Rica and immediately put them into effect. On the other hand, compared to the US, the EU has an easier recourse to the regularisation of those people whom the member states cannot repatriate. In this regard, the EU’s national policymaking is more consensual and more efficient, although certainly not free of political conflict.

Conclusions

Repatriations pose huge challenges for both the US and the EU, and this is unlikely to change in the near future. The issue of repatriating illegally staying individuals involves a number of conflicts: between a country’s international obligations to guarantee the rights of asylum seekers and the legal requirement to remove illegal migrants; between employers’ demands for low-cost labour and some political parties’ desire that only citizens of the home jurisdiction are employed; between the capacity requirements of repatriations and competing security priorities; and between the political pressure to conduct repatriations and the opposition of pro-migrant lobbies and left-wing politicians. All these considerations make the decision-making of governments rather complicated. All that said, it is difficult to imagine the political centres in the US and the EU holding on without more effective repatriations in place.