Externalisation of EU Borders: A Critical analysis of the Memorandum of Understanding between the EU and Tunisia
By Nora Marlene Neubauer
Edited by Veronica Corcodel and Havva Yeşil
Abstract: The EU-Tunisia Memorandum of Understanding reflects Europe’s strategy to externalize migration control, prioritizing border security over human rights. This blogpost critically analyses this informal agreement, highlighting the issues related to its form, as well as its impact on refugees and asylum seekers.
Keywords: externalization, border control, EU-Tunisia Memorandum of Understanding, human rights
1. Introduction
On July 16, 2023, Olivér Várhelyi, the European Commissioner for Neighbourhood and Enlargement, and Mounir Ben Rjiba, the Tunisian Secretary of State of the Minister of Foreign Affairs, Migration and Tunisia, signed a Memorandum of Understanding establishing a “strategic and global partnership” between the European Union (EU) and Tunisia. As a key transit and departure country in the central Mediterranean, Tunisia plays a crucial role in EU’s migration management strategy. The EU, along with member states like Germany, France, Italy, Belgium, and others, has increasingly engaged in various activities within Tunisia to advance their objectives of safeguarding its borders and tackling the issue of undocumented migrants.[1] Over recent years, the EU and its member countries have implemented several agreements with neighbouring nations to manage migration, such as the 2016 EU-Turkey Statement[2] and the 2017 Malta Statement[3], which approves the partnership between Italy and Libya.[4]
According to data from the UNHCR[5] and Frontex,[6] Tunisia overtook Libya in 2022 as the primary transit country for migrants crossing the Mediterranean with around 45 000 people crossing from Tunisia in 2023.[7] Meanwhile, the Tunisian National Guard reported that between January and the end of June 2023, they prevented 34,290 individuals from departing Tunisia, which is nearly four times the number of intercepted individuals during the same time span in 2022.[8] Toward the end of 2023, Tunisia became however less important, as Niger regained its position as the main migration hub for sub-Saharan migrants heading for Europe, following the coup in July 2023 and the reopening of migratory routes by Niger’s military junta.[9]
Prior to this change, on July 16, 2023, and in response to the growing migration flows from Tunisia to Europe, the EU and Tunisia entered a Memorandum of Understanding (MoU), reinforcing EU-Tunisia collaboration across multiple sectors, with migration control as central focus. This agreement also reflects the broader turn to upscaling migration control through externalisation;[10] thus, its analysis can offer a broader understanding of how EU asylum and migration policies are implemented. Although Tunisia repaid 60 million euros in budget aid to the EU in October 2023 following tensions over the controversial migration deal,[11] the European Commission spokesperson emphasised that the return of the EU funds would not change the fact that the principles of the agreement would continue to be adhered to.[12] Despite these tensions, the EU disbursed another 150 million euros to Tunisia in March 2024.[13]
This blog post critically examines the EU-Tunisia MoU by first providing an overview of the most important elements of the MoU and then assessing its impact. It examines in particular the issue of democratic accountability and the challenges of protecting refugee and migrant rights.
2. The Memorandum of Understanding (MoU): what was agreed?
According to the European Commission, the MoU is designed to “support the Tunisian government’s efforts to boost the economy by improving the management of public finances and the business and investment climate.”[14] As part of the broader financial framework,[15] the pact allocates EUR 105 million specifically to reduce irregular migration.[16] This allocation occurs within the MoU’s five distinct pillars: macroeconomic stability, economy and trade, the green energy transition, people-to-people contacts, and migration and mobility.[17]
The key goals supporting the migration pillar include border protection, combating smuggling, sea rescue, and returns.[18] While the MoU highlights the parties’ commitment to establish a comprehensive strategy to tackle the underlying causes of irregular migration, adopting a holistic approach, including fostering sustainable development in underprivileged regions,[19] as seen in other deals such as the EU-Turkey Statement[20] or the Malta Declaration[21], the priority of both parties is officially the fight against irregular migration to save lives and the fight against human trafficking and smugglers[22], although it is actually about scaling up the control of migration to the EU.
Tunisia’s President Saied is known to have frequently used racist and Islamophobic rhetoric.[23] Under his political direction, the agreement reflects the government’s refusal to receive returned migrants from the EU of nationalities other than Tunisian. The official justification, however, frames Tunisia as a country that is not a destination for irregular migrants.[24]
The arrangement also includes provisions for assisting Tunisia in returning other “irregular migrants” from Tunisia to their home countries even though Tunisia has not yet enacted a national asylum law.[25] This legal gap is a major concern. The UNHCR continues to pressure Tunisian authorities to adopt legislation that ensures the rights of refugees and asylum seekers.[26] Tunisia’s consistent denial to improve its legislation in this direction reflects its refusal to be viewed as a caretaker of European borders.[27]
3. What is problematic?
- Form and procedural aspects of the MoU
The Memorandum of Understanding was first presented by Commission President Ursula Von der Leyen, Italian Prime Minister Giorgia Meloni and Dutch Prime Minister Mark Rutte (as “Team Europe”) on 11 June 2023, during a visit to Tunis.[28] “Team Europe” fundamentally serves as a mechanism for collaborative action between the EU and its member states, typically under development cooperation frameworks utilising EU external financing.[29] However, the procedural legitimacy of the MoU is highly contested, being framed as a non-binding arrangement that circumvents the procedural rules and safeguards applicable to international treaties. According to Art. 218 of the Treaty on the Functioning of the EU (TFEU), international treaties concluded by the EU with third countries require the consent of the European Parliament.[30] In this case, the MoU was executed by the Commission (instead of the Council) without prior consultation with the Parliament[31] (Art.14 TEU) and without the Council having formally confirmed its approval (Art.16 TEU).
Nevertheless, the procedure cannot be challenged as a violation of the institutional division of powers established by the EU Treaties, as no formal objection was raised by the Council – a prerequisite for initiating such a challenge. Moreover, available evidence suggests that the Council was consulted prior to the conclusion of the Memorandum of Understanding.[32] This raises the question of whether such consultation was intentional to avoid responsibilities that would stem from the conclusion of an international treaty.[33]
As a non-legally binding international instrument, the MoU entails political rather than legal commitments.[34] This has been a source of criticism from Members of the European Parliament, who describe it as a contradiction between the fundamental values of the European Union and Tunisia’s ongoing democratic backsliding. They also lament the lack of democratic transparency and financial accountability in the agreement’s negotiation and content.[35]
To be sure, the use of informal agreements in international relations can be beneficial because they can be swiftly adjusted to changing conditions and enable rapid implementation without necessitating parliamentary ratification or approval, as noted by the EU Court of Auditors.[36] However, such instruments can be also used to circumvent the rules applicable to international treaties. As a result, although they might shape in important ways parties’ behaviour, and have significant human rights implications, the MoUs often escape democratic oversight, transparency and judicial review. Indeed, concerning the latter, these agreements create challenges for actions under Article 263 of the TFEU before the Court of Justice of the EU (CJEU),[37] because the action for annulment requires the existence of an EU act intended to produce legal effects. Nevertheless, the legality of the MoU could be referred to the CJEU. However, despite MoU’s lack of binding character, the usurpation of powers of one institution over another could be seen as a “legal effect” within the meaning of Article 263 TFEU as seen in the decision of the case C-660/13, Council of the European Union v. European Commission.[38]
Looking at the language of the agreement the word “shall” is used more frequently than “will” or “should,”[39] implying a stronger intent to commit, yet these commitments remain somewhat ambiguous and focus more on processes rather than concrete outcomes. Notably, though, the MoU doesn’t include a typical clause often found in such agreements that explicitly states the parties’ intention to avoid entering legally binding obligations. However, the overall tone and the document’s title could be also understood as suggesting that the MoU is meant to be a non-binding instrument, thus creating a situation of ambiguity.[40]
Ultimately, this lack of legal certainty and democratic oversight challenges the foundational principles of the EU, namely democracy, the rule of law, and human rights.Although Article 21 of the Treaty on European Union stipulates that the EU must be guided by these very principles in its partnerships with third countries, the MoU with Tunisia appears to undermine them, further highlighting the tensions between the EU’s proclaimed values and its pragmatic political actions. Apart from the significant impact of such an agreement on the rights of refugees and asylum seekers, to be explored right below, the problem of erosion of EU values is also of great significance.
- Impact on refugees and asylum-seekers
Beyond its procedural flaws, the MoU has serious implications for the rights of refugees and asylum seekers. There are no specific guarantees to protect the human rights of people on the move in the MoU, nor does the agreement provide for a mechanism to monitor human rights.[41] The fact that the human rights situation in Tunisia is barely addressed in the agreement,[42] indicates the attention to highly concerning developments and the critique of NGOs and academia.
Tunisia does not have a functioning national asylum system or a legal framework that guarantees protection for asylum seekers and provides for the issuance of residence permits.[43] Although Tunisia has signed the 1951 Refugee Convention and the 1967 Protocol, it has not incorporated a national asylum law into its domestic legal system. Multiple human rights organizations have documented human rights violations and inhuman and degrading treatment of asylum seekers committed by Tunisian authorities.[44] For example, Tunisian security forces have expelled hundreds of people from sub-Saharan African countries from the coastal city of Sfax and left them stranded in an isolated desert area without food, water or shelter.[45] Also, techniques such as the denial of food as a tactic to enforce obedience have been officially registered. [46]
Human Rights Watch has reported that Tunisian police, military, and national guard forces, including the coast guard, have been involved in severe mistreatment of black African migrants, refugees, and asylum seekers. The documented violations include beatings, excessive force, instances of torture, unjust arrests and detentions, mass expulsions, perilous maritime operations, forced removals, and theft of money and personal property.[47]
Furthermore, there are numerous concerns over reports of widespread arbitrary arrests of migrants,[48] including women, children, and students, executed by law enforcement without any procedural safeguards. Such arrests were part of an initiative to “enhance security measures and address illegal residency in Tunisia”.[49]
These developments show that the respect of human rights law, to which the EU is committed[50] —including the principle of non-refoulment, the prohibition of torture and inhuman or degrading treatment and the right to liberty — are being violated.
The EU has opted to invest in autocratic regimes in the hope of outsourcing its migration challenges, instead of supporting legal and institutional reforms to protect migrants, asylum seekers and refugees. The EU’s current hypocritical strategy of “solving” the migration problem through financial contributions to autocratic leaders such as Tunisian President Kais Saied is short-sighted and naive. This policy makes the EU vulnerable to political blackmail and increasingly dependent on undemocratic actors, risking both regional stability and long-term harm to migrants, asylum seekers and refugees.
4. Conclusion
Such informal agreements reveal how some European leaders exploit EU migration funding and external partnerships to appear strong on migration issues. The MoU between the EU and Tunisia is a product of the anti-migration movement and the rise of the far-right movement throughout Europe.
At the same time, perhaps even more concerning than the content of the Memorandum of Understanding itself, is the lack of counteraction in the face of the clear erosion of EU institutions and fundamental values. Member States that could have mobilized the Council to challenge such practices remained passive, while the Court of Justice of the European Union has yet to assert its authority by sanctioning unlawful actions. This collective inaction suggests that the current situation might reflect a broader structural failure to uphold the core values of the European Union.
The EU’s current migration policy is neither sustainable nor in line with its own values. Externalization measures disproportionately impact those who are already in particularly vulnerable situations, especially individuals seeking international protection, exposing them to widespread human rights violations. The EU-Tunisia Memorandum is only one example among many within a broader pattern of shifting migration control outward at the expense of human rights protections.
HOW TO CITE THIS BLOG POST:
Neubauer, Nora. “Externalisation of EU-Borders: A Critical analysis of the Memorandum of Understanding between the EU and Tunisia.” NOVA Refugee and Migration Clinic Blog, May 2025, available at: https://novarefugeelegalclinic.novalaw.unl.pt/?blog_post=externalisation-of-eu-borders-a-critical-analysis-of-the-memorandum-of-understanding-between-the-eu-and-tunisia
[1] Haïfa Mzalouat, ‘How Is Europe Controlling Borders in Tunisia?’ (Inkyfada, 20 March 2020) <https://inkyfada.com/en/2020/03/20/financing-eu-tunisia/ >accessed 2 May 2025.
[2] Council of the EU, ‘EU-Turkey statement’ (18 March 2016) <https://www.consilium.europa.eu/en/press/press-releases/2016/03/18/eu-turkey-statement/pdf> accessed 2 May 2025.
[3] Council of the EU, ‘Malta Declaration by the members of the European Council on the external aspects of migration: addressing the Central Mediterranean route’ (03 February 2017) <https://www.consilium.europa.eu/en/press/press-releases/2017/02/03/malta-declaration/pdf> accessed 2 May 2025.
[4] Annick Pijnenburg, ‘Team Europe’s Deal: What’s Wrong with the EU-Tunisia Migration Agreement?’ (Verfassungsblog, 21 August 2023) < https://verfassungsblog.de/team-europes-deal/ > accessed 1 May 2025.
[5] Erik Marquardt, ‘EU- Migrationsabkommen mit Tunesien’ (Erik Marquardt, 24 August 2023) <https://erik-marquardt.eu/eu-migrationsabkommen-mit-tunesien/ > accessed 1 May 2025.
[6] Frontex, ‘Central Mediterranean Accounts for Half of Irregular Border Crossings in 2023’ (Frontex, 14 September 2023) <https://www.frontex.europa.eu/media-centre/news/news-release/central-mediterranean-accounts-for-half-of-irregular-border-crossings-in-2023-G6q5pF#:~:text=The%20Central%20Mediterranean%20remains%20the,for%20this%20period%20since%202016. > accessed 5 May 2025.
[7] European Council on Refugees and Exiles, ‘Editorial: The EU’s Dodgy Deal with Tunisia Is a Classic of the Genre: Undemocratic, Unlawful and Unlikely to Work’ (ecre.org, 26 July 2023) <https://ecre.org/editorial-the-eus-dodgy-deal-with-tunisia-is-a-classic-of-the-genre-undemocratic-unlawful-and-unlikely-to-work/ > accessed 2 May 2025.
[8] Erik Marquardt, ‘EU- Migrationsabkommen mit Tunesien’.
[9] Frontex, ‘Annual Risk Analysis 2024/2025’ (2024), <https://www.frontex.europa.eu/assets/Publications/Risk_Analysis/Annual_Risk_Analysis_2024-2025.pdf> accessed 2 May 2025.
[10] Annick Pijnenburg, ‘Team Europe’s Deal’.
[11] ‘Migrationspakt: Tunesien zahlt 60 Millionen Euro an EU zurück’ (Tagesschau, 14 October 2023) <https://www.tagesschau.de/ausland/europa/tunesien-eu-migrationspakt-rueckzahlung-100.html#:~:text=Streit%20%C3%BCber%20Migrationspakt%20Tunesien%20zahlt%2060%20Millionen%20Euro%20an%20EU%20zur%C3%BCck&text=Die%20EU%20will%20Tunesien%20viel,Tunis%20nun%20einen%20Teil%20zur%C3%BCckgezahlt. > accessed 2 May 2025.
[12] Jorge Liboreiro, ‘Tunesien brüskiert Brüssel und zahlt 60 Millionen Euro an EU-Hilfen zurück’ (Euronews, 12 October 2023) <https://de.euronews.com/my-europe/2023/10/12/tunesien-bruskiert-brussel-und-zahlt-60-millionen-euro-an-eu-hilfen-zuruck > accessed 1 May 2025.
[13] Tarek Amara, ‘EU disburses 150 mln euros to Tunisia to support financial stability’ (Reuters, 4 March 2024), <https://www.reuters.com/world/africa/eu-disburses-150-mln-euros-tunisia-support-financial-stability-2024-03-04/> accessed 2 May 2025.
[14] European Commission, ‘The European Union and Tunisia Come to an Agreement on a EUR 150 Million Programme’ (20 December 2023) <https://ec.europa.eu/commission/presscorner/detail/en/ip_23_6784> accessed 2 May 2025.
[15] Jorge Liboreiro, ‘In Stunning Move, Tunisia Snubs Brussels and Refunds €60 Million in EU Aid’ (Euronews, 12 October 2023) <https://www.euronews.com/my-europe/2023/10/12/in-stunning-move-tunisia-snubs-brussels-and-refunds-60-million-in-eu-aid> accessed 1 May 2025.
[16] Bram Frouws/ Roberto Forin/ Sarah Doyel, ‘A Damaging Deal: Abuses, Departures from Tunisia Continue Following EU Agreement’ (Mixed Migration Centre, 15 September 2023) <https://mixedmigration.org/eu-tunisia-damaging-deal/ > accessed 6 May 2025.
[17] European Commission, ‘The European Union and Tunisia’.
[18] Erik Marquardt, ‘EU- Migrationsabkommen mit Tunesien’.
[19] European Commission, ‘Memorandum of Understanding’.
[20] Council of the EU, ‘EU-Turkey statement’.
[21] Council of the EU, ‘Malta Declaration’.
[22] Annick Pijnenburg, ‘Team Europe’s Deal’.
[23] European Council on Refugees and Exiles, ‘Editorial: The EU’s Dodgy Deal’.
[24] Annick Pijnenburg, ‘Team Europe’s Deal’.
[25] Although Tunisia has signed the 1951 Convention and Protocol and has adopted a new Constitution in January 2014, guaranteeing political asylum.
[26] UNHCR, ‘Operational Update Tunisia 01 October – 01 January 2018’ (UNHCR.org) <https://reporting.unhcr.org/sites/default/files/UNHCR%20Tunisia%20Operational%20Update%20-%20October-December%202017.pdf >accessed 2 May 2025.
[27] Angeliki Dimitriadi and Julian Lehmann, ‘The Tunisian Red Flag Lessons from the EU- Tunisia Strategic Partnership for the External Dimension of EU Asylum Policy’ (Asile, 2 Ocotber 2023) <https://www.asileproject.eu/wp-content/uploads/2024/02/Tunisia-paper-ASILE-final-update.pdf> accessed 2 May 2025.
[28] Erik Marquardt, ‘EU- Migrationsabkommen mit Tunesien’.
[29] European Council on Refugees and Exiles, ‘Editorial: The EU’s Dodgy Deal’.
[30] Erik Marquardt, ‘EU- Migrationsabkommen mit Tunesien’.
[31] Annick Pijnenburg, ‘Team Europe’s Deal’.
[32] as shown in the Council’s briefing on the Foreign Affairs formation meeting of 23 June 2023, and as declared in Commissioner Várhelyi’s answer to a parliamentary question and with the European Council too (Conclusions of 29 and 30 June 2023): Eleonora Frasca and Paula García Andrade, ‘The Memorandum of Understanding between the EU and Tunisia: Issues of Procedure and Substance on the Informalisation of Migration Cooperation – EU Immigration and Asylum Law and Policy’ (6 January 2024) https://eumigrationlawblog.eu/the-memorandum-of-understanding-between-the-eu-and-tunisia-issues-of-procedure-and-substance-on-the-informalisation-of-migration-cooperation/#:~:text=On%2016%20July%202023%2C%20the,Tunisia%20in%20macroeconomic%20stability%2C%20economy > accessed 2 May 2025.
[33]Andreas Zimmermann, ‘Possible indirect legal effects of non-legally binding instruments, CADHU Exert Workshop, Non-Legally Binding Agreements in International Law’, (University of Potsdam, 26 March 2021) <https://rm.coe.int/1-2-zimmermann-indirect-legal-effects-of-mous-statement/1680a23584 > accessed 2 May 2025.
[34] Stefan Talmon, ‘Germany directs attention to questions surrounding non-legally binding international agreements’ (GPIL-German Practice in International Law, 21 May 2021) <https://gpil.jura.uni-bonn.de/2021/05/germany-directs-attention-to-questions-surrounding-non-legally-binding-international-agreements/ > accessed 2 Mahy 2025.
[35] Jorge Liboreiro, ‘MEPs Blast European Commission for Signing Deal with Tunisia’s ‘Cruel Dictator’ (Euronews, 18 July2023) <https://www.euronews.com/my-europe/2023/07/18/meps-blast-european-commission-for-signing-deal-with-tunisias-cruel-dictator> accessed 1 May 2025.
[36] European Court of Auditors, ‘EU readmission cooperation with third countries: relevant actions yielded limited results’ (13 September 2021) 20 f, <https://www.eca.europa.eu/Lists/ECADocuments/SR21_17/SR_Readmission-cooperation_EN.pdf > accessed 6 May 2025.
[37] Andreina De Leo, ‘The EU-Tunisia Memorandum of Understanding: A Blueprint for Cooperation on Migration? – The Tahrir Institute for Middle East Policy’ (The Tahrir Institute for Middle East Policy, 19 October 2023) <https://timep.org/2023/10/19/the-eu-tunisia-memorandum-of-understanding-a-blueprint-for-cooperation-on-migration/> accessed 6 May 2025.
[38] Case C-660/13, Council of the European Union v. European Commision [2016] ECLI:EU:C:2016:616
para 62 (CJEU)
[39] Eleonora Frasca and Paula García Andrade, ‘The Memorandum of Understanding’.
[40] Ibid.
[41] Annick Pijnenburg, ‘Team Europe’s Deal’.
[42] ‘Flüchtlingsdeal mit Tunesien – mehrere EU-Mitglieder kritisieren Kommission’ (Der Spiegel, 2 August 2023) <https://www.spiegel.de/ausland/tunesien-abkommen-mehrere-mitgliedsstaaten-kritisieren-eu-kommission-a-05c75ed3-8204-4e6a-a018-608938d82e3e. > accessed 2 May 2025.
[43] Erik Marquardt, ‘EU- Migrationsabkommen mit Tunesien’.
[44] European Council on Refugees and Exiles, ‘EU External partners: Investigation Reveals EU Funding Security Forces Accused of Migrant Abuse in Tunisia ― Leaked Report Reveals EU Concerns About Credibility Risk of Migration Co-operation with Tunisia ― European Court of Auditors Report Criticises Use of EU Trust Fund for Africa in Libya – NGOs Denounce Morocco and Spain for Forced Returns from Ceuta’ (ecre.org, 27 September 2024) <https://ecre.org/eu-external-partners-investigation-reveals-eu-funding-security-forces-accused-of-migrant-abuse-in-tunisia-%E2%80%95-leaked-report-reveals-eu-concerns-about-credibility-risk-of-migration-co-operation/> accessed 2 May 2025.
[45] ‘The IRC: The EU’s Migration Agreement with Tunisia “risks Driving Migrants and Refugees onto Even More Dangerous Routes’ (Rescue.org, 19 July 2023) <https://www.rescue.org/press-release/irc-eus-migration-agreement-tunisia-risks-driving-migrants-and-refugees-even-more> accessed 2 May 2025.
[46] European Council on Refugees and Exiles, ‘Editorial: The EU’s Dodgy Deal’.
[47] Human Rights Watch, ‘Tunisia: No Safe Haven for Black African Migrants, Refugees’ (hrw.org, 19 July 2023) <https://www.hrw.org/news/2023/07/19/tunisia-no-safe-haven-black-african-migrants-refugees> accessed 2 May 2025.
[48] Amnesty International, ‘Tunisia: Human Rights at Risk Two Years after President Saied’s Power Grab’ (amnesty.org, 24 July 2023) <https://www.amnesty.org/en/latest/news/2023/07/tunisia-human-rights-at-risk-two-years-after-president-saieds-power-grab/> accessed 2 May 2025.
[49] United Nations Human Rights Office of High Commissioner, ‘Tunisia Must Immediately Stop Hate Speech and Violence against Migrants from South of Sahara, UN Committee Issues Early Warning’ (ohchr.org, 4 April 2023) <https://www.ohchr.org/en/press-releases/2023/04/tunisia-must-immediately-stop-hate-speech-and-violence-against-migrants> accessed 2 May 2025.
[50] Article 2 TEU: „The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.“
