The European Ombudsman and the Informalization of Readmission Policy: A Case Study

The recent informalization turn in European Union (EU) readmission policy has raised concerns about effective control of the EU executive in the external dimension of migration and asylum policy. Taking separation of powers as a starting point, this article examines the role of the European Ombudsman, a quasi-judicial body and part of the ‘fourth branch’ of EU institutional architecture, in overseeing the informalization and transparency of EU readmission policy. The analysis is based on a strategic litigation case study in which access to documents requests were first submitted to the Council of the EU concerning informal readmission arrangements and the case was then brought before the Ombudsman. The Ombudsman accepted the non-disclosure of documents and held that the broader practice of informal readmission arrangements falls outside her mandate. The article argues that perceiving the choice of instrument as falling completely within executive discretion displays deference towards the executive. While the Ombudsman’s mandate would arguably allow her to actively oversee informalization readmission policy, she seemed reluctant to take this role. The Ombudsman’s conduct thus amplifies the lack of effective checks and balances on executive action that increasingly characterizes EU readmission policy and the external dimension of migration and asylum policy more in general.