Documents considered by the Committee on 23 March - European Scrutiny Committee Contents

5   EU Readmission Agreements



COM(11) 76

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Commission Communication: Evaluation of EU Readmission Agreements

Commission staff working document: EU Readmission Agreements: Brief overview of state of play (February 2011)

Commission staff working document: Aggregated data collected by the Commission from Member States

Commission staff working document: Eurostat data

Commission staff working document: Implementing protocols signed/concluded by Member States under EU Readmission Agreements in force

Legal base
Document originated23 February 2011
Deposited in Parliament28 February 2011
DepartmentHome Office
Basis of considerationEM of 14 March 2011
Previous Committee ReportNone
To be discussed in CouncilNo date set
Committee's assessmentLegally and politically important
Committee's decisionNot cleared; further information requested


5.1  The Stockholm Programme, which establishes the EU's priorities in the Area of Freedom, Security and Justice for the period 2010-14, says that "an effective and sustainable return policy is an essential element of a well-managed migration system within the Union." EU Readmission Agreements are intended to play an important role in tackling illegal immigration by establishing a contractual framework, based on reciprocal obligations, for the readmission of illegal immigrants. The obligation to readmit applies to nationals of the countries that are parties to the readmission agreements and to third country nationals and stateless individuals who have transited the territory of one of the parties.

5.2  The EU has had competence to conclude Readmission Agreements since 1999, but the Lisbon Treaty introduced an express legal base in Article 79(3) of the Treaty on the Functioning of the European Union (TFEU). It provides:

"The Union may conclude agreements with third countries for the readmission to their countries of origin or provenance of third country nationals who do not or who no longer fulfil the conditions for entry, presence or residence in the territory of one of the Member States."

5.3  EU Readmission Agreements are negotiated by the Commission on the basis of a negotiating mandate given to it by the Council. So far, the Council has issued 18 negotiating mandates. Thirteen EU Readmission Agreements have entered into force with Hong Kong and Macao (in 2004), Sri Lanka (in 2005), Albania (in 2006), Russia (in 2007), Ukraine, the former Yugoslav Republic of Macedonia, Bosnia and Herzegovina, Montenegro, Serbia and Moldova (in 2008), Pakistan (in 2010) and Georgia (in 2011). Negotiations are underway with Morocco, Turkey and Cape Verde, and have yet to start with China and Algeria. EU Readmission Agreements are subject to the UK's opt-in and so only apply to the UK if the Government expressly decides to opt in.

5.4  The Stockholm Programme says that the "objective of the Union's efforts on readmission should add value and increase the efficiency of return polices" and so asks the Commission to produce an evaluation of EU Readmission Agreements and to propose a mechanism to monitor their implementation. The evaluation should provide the basis for the Council to "define a renewed coherent strategy on readmission . . . . taking into account the overall relations with the country concerned, including a common approach towards third countries that do not cooperate in readmitting their own nationals."

The Commission's Communication

5.5  The Communication makes fifteen Recommendations for the EU's future readmission policy which are based on an evaluation of the thirteen EU Readmission Agreements already in force and the five sets of negotiations which have not yet concluded. The Communication also considers whether there is a need for additional monitoring of the implementation of EU Readmission Agreements, notably as regards compliance with human rights safeguards.

Evaluation of EU Readmission Agreements already in force

5.6  The Commission notes, at the outset, that its evaluation is mainly dependent on data on returns provided by Member States, since they are responsible for implementing EU Readmission Agreements, but says that the lack of data from five Member States, "including some very much affected by irregular migration, significantly limits the conclusions that can be drawn."[23] The Commission also highlights deficiencies in the EU's statistical database, Eurostat. It therefore recommends extending the scope of Eurostat to collect more reliable data on the actual number of returns effected under EU Readmission Agreements and, in the meantime, tasking FRONTEX (the EU Agency responsible for the management of operational cooperation at the EU's external borders) to gather comprehensive statistical data on returns.

5.7  The Commission says that a minority of Member States continue to rely on bilateral arrangements rather than EU Readmission Agreements and considers that this "undermines greatly the credibility of the EU Readmission Policy towards the third countries, which are expected to apply the EURA [EU Readmission Agreement] correctly."[24] The Commission therefore recommends that Member States apply EU Readmission Agreements for all their returns and indicates that it will take enforcement action if they fail to do so.

5.8  The Commission highlights the substantial number of readmission applications to third countries covered by EU Readmission Agreements but says that there is insufficient data on the actual number of returns. The Commission therefore recommends more dialogue with third countries to increase the rate of returns.

5.9  Although all EU Readmission Agreements contain a clause — the so-called "third country national clause" — providing for the readmission of individuals who are not nationals of an EU Member State or the third country which is a party to the Agreement, but who have transited the territory of one of the parties, the Commission says that the clause has rarely been used except in the EU Readmission Agreement with Ukraine. The Commission therefore recommends that the need to include such a clause should be subject to a thorough evaluation before opening negotiations.

5.10   EU Readmission Agreements also include clauses which provide for the use of accelerated procedures or for transit, but the Commission says that these are often difficult to negotiate and are rarely used. It therefore recommends excluding them from future negotiating mandates if they are unlikely to be widely used in practice.

Evaluation of negotiations which have not yet concluded

5.11  The Commission highlights the often lengthy delays between the opening and conclusion of negotiations for EU Readmission Agreements. For example, a negotiating mandate for Morocco was agreed in 2000, and for China and Algeria in 2002. Negotiations have yet to start with China and Algeria and, after fifteen rounds of negotiation with Morocco, there is still little prospect of agreement. The main cause for the delay in negotiations, according to the Commission, is the lack of incentives to reach an agreement and a lack of willingness on the part of some Member States to compromise on "technical" issues.

5.12  The Commission says that "a fundamental shift has to be made in devising EU Readmission Agreements, in particular as concerns the incentives" and identifies the following four incentives:

  • offering visa facilitation agreements which make it easier and cheaper for third country nationals to obtain a short stay visa (the UK does not take part in such agreements);
  • providing more substantial financial assistance, for example, by supporting reintegration policies and funding reception facilities for third country nationals awaiting onward readmission to their country of origin;
  • developing more "mobility partnerships" between EU Member States and third countries which offer improved opportunities for legal migration in return for enhanced cooperation on illegal immigration and readmission; and
  • embedding readmission in framework (partnership, cooperation or association) agreements with third countries so that it forms part of a broader negotiating package, with appropriate sanctions for failing to cooperate effectively in tackling illegal immigration.

The Commission recommends developing these four incentives into a coherent package and identifying in future negotiating mandates the particular incentives on offer to a third country, while also indicating possible retaliation measures which the EU would take in the event of unjustified and persistent lack of cooperation in tackling illegal immigration.

5.13  The Commission says that the time limits proposed by the EU within which third countries have to complete the formalities needed to readmit an individual are often too tight and present "one of the biggest obstacles to speedy conclusion of negotiations." These time limits usually reflect the shortest maximum detention period across all EU Member States. The Commission therefore recommends agreeing "one fixed time limit which is realistic and do-able both for third countries and Member States", without being excessively long, and urges Member States to support the Commission's readmission negotiating efforts more wholeheartedly.

5.14  The Commission emphasises the "deep aversion" felt by all third countries regarding the obligation (contained in all EU Readmission Agreements, but rarely in bilateral ones) to readmit individuals who have transited through their territory but are not nationals (the third country national clause). While the Commission recognises that the conclusion of an EU Readmission Agreement with a major transit country for illegal immigration to the EU would be of little value without a third country national clause, it notes also that the clause is rarely used in practice. The Commission therefore recommends limiting the inclusion of a third country national clause to EU Readmission Agreements with countries which, because of their geographical proximity to the EU, present a "big potential risk of irregular immigration" and that insistence on the clause should be accompanied by appropriate incentives. The Commission adds that the EU should focus more on important countries of origin, rather than transit.

Monitoring implementation of EU readmission agreements

5.15  The Commission says that each EU Readmission Agreement establishes a Joint Readmission Committee to monitor its application but recommends encouraging greater participation of Member State experts in the Committee's meetings while also opening them up, on a case-by-case basis, to NGOs concerned with human rights and international protection standards. The Commission also recommends more involvement of actors on the ground in third countries, such as EU delegations, Member State Embassies and NGOs, to help monitor the treatment of those who have been readmitted.

5.16  EU Readmission Agreements operate on the basis that the procedural rules applied by EU Member States and by the relevant third country to determine whether an individual is an illegal immigrant and subject to return comply with fundamental human rights. The Commission considers, however, that there is scope for further measures to strengthen human rights safeguards in the Agreements themselves and in the procedures for monitoring their implementation. The Commission recommends practical action to inform individuals apprehended within a border region (including an airport) of their right to seek international protection and to ensure that EU Readmission Agreements state clearly that they apply only to individuals whose return or removal has not been suspended by virtue of a legal appeal.

5.17  The Commission cites doubts raised about the conclusion of EU Readmission Agreements with countries with a poor record on human rights and international protection and recommends inclusion in every future Agreement of a "suspension clause" allowing for its temporary suspension "in the event of a persistent and serious risk of violation of the human rights of readmitted persons."

5.18  In order to encourage voluntary departure rather than forced return, the Commission recommends including in future EU Readmission Agreements a provision stating that the parties will not impose sanctions for breach of migration rules on those who agree to return voluntarily.

5.19  Where EU Readmission Agreements contain a third county national clause, the Commission recommends the inclusion of an additional clause committing the parties to ensuring that readmitted third country nationals are treated in line with international human rights standards.

5.20  Finally, the Commission notes the absence of any mechanism to monitor what happens to individuals (especially third country nationals) after their redamission. The Commission therefore recommends launching a pilot project in one of the countries which already has a Readmission Agreement with the EU (possibly Pakistan or Ukraine) to establish an EU monitoring mechanism to report on the treatment of those readmitted. Evaluation of the pilot project could lead to its extension to all countries with Readmission Agreements with the EU.


5.21  The Commission concludes that EU Readmission Agreements, where used properly, do provide added value and are an important tool for tackling illegal immigration. It believes that greater flexibility and more incentives are needed to bring negotiations to a successful conclusion, and that there is scope to improve both the implementation and monitoring of the Agreements, especially in terms of compliance with human rights. The Commission urges the Council and European Parliament to accept its Recommendations

The Government's view

5.22  The Minister of State for Borders and Immigration (Damian Green) says that the UK has chosen to participate in all of the 13 EU Readmission Agreements which are in force. He highlights the following Recommendations proposed by the Commission which the Government supports, largely because they "reinforce what is already common practice":[25]

  • ensuring that those apprehended at or near a border have effective access to international protection and/or legal remedies — UK Border Agency staff already offer help to those who wish to seek international protection;
  • including an express provision in EU Readmission Agreements to ensure that readmission applies only to individuals whose return has not been suspended by virtue of a legal appeal;
  • limiting the inclusion of the third country national clause to EU Readmission Agreements with countries which are a major source of transit migration; and
  • stipulating, in those Agreements which contain a third country national clause, that the rights of any readmitted third country nationals must be respected in line with international human rights standards.

5.23  The Government's list of concerns is somewhat longer. For example, the Minister says that expansion of Eurostat would "impose additional costs to the UK; see an increase in our data collection workload and deliver an end product of limited value due to different definitions for recording returns amongst Member States."[26]

5.24  On the incentives needed to help speed up the conclusion of EU Readmission Agreements, the Minister notes that the UK does not participate in EU visa facilitation agreements. He accepts that some EU financial assistance may be needed, but it would have to be found within existing EU funding programmes. He says that the UK is involved in a Mobility Partnership with Georgia, sharing identity and passport expertise, but adds that participation in other Partnerships would have to be considered on a country by country basis.

5.25  At a more fundamental level, the Minister states:

"It is Her Majesty's Government's view that Readmission Agreements are and should remain primarily tools for administering returns and not be linked to human rights which are already carefully considered in a separate part of the returns decision making process."[27]

5.26  He says that the Government would not support the inclusion of a human rights suspension clause in EU Readmission Agreements because

"[...] the procedural effect of stopping immigration removals to countries where the EU decides that it is unsafe to return would take away UK discretion on conducting immigration removals. Current UK returns policy is based on an assessment as to whether an immigration return will violate the individual returnee's fundamental rights and not whether the country of return violates human rights of others." [28]

5.27  The Minister expresses caution about the Commission's recommendation for a post-return EU monitoring mechanism. He says that the UK "would not seek to return any individual to a third country where to do so would breach our obligations under the Refugee Convention or the European Convention on Human Rights."[29] He continues:

"The UK does not routinely monitor the treatment of foreign nationals after they have been returned as there are a range of safeguards to prevent the return of individuals at risk. Monitoring the treatment of people whom we consider not to be at risk would be both impractical and inappropriate. If specific allegations are made that any returnee has experienced ill-treatment on return then these would of course be followed up."[30]

5.28  The Minister adds that the Commission's recommendation to remove sanctions for those who chose to return voluntarily "[...] goes directly against our policy on re-entry bans. Under the immigration rules a grant of entry clearance is prohibited for proscribed periods where a person has chosen to breach UK immigration law."[31]

5.29  In terms of next steps, the Minister indicates that the Justice and Home Affairs Council in April is likely to consider draft Council Conclusions on the Commission's Recommendations.


5.30  We note that the decision to opt into all bar one of the EU's Readmission Agreements now in force was taken by the previous Government. Although the Government has, so far, continued this trend by opting into the latest EU Readmission Agreement with Georgia, it appears to have considerable reservations about many of the Commission's Recommendations which are intended to form the basis for "a renewed coherent strategy on readmission". We think that the Communication provides a timely opportunity for the Government to tell us whether it believes that EU Readmission Agreements meet the objectives set by the Stockholm Programme of increasing value and efficiency. In particular, we ask the Minister to tell us:

  • whether he accepts the Commission's conclusion that the Agreements provide "added value" and, if so, how; and
  • whether the UK relies exclusively on EU Agreements, where in force, to return illegal immigrants or continues to use bilateral arrangements; and, if the latter, its reasons for doing so.

5.31  The Government expresses concern that the Recommendation to collect and provide more statistical data to Eurostat would increase costs and workload for "an end product of limited value." However, we think that the Commission staff working documents accompanying the Communication illustrate the lack of reliable and comparable data on the use made by Member States of EU Readmission Agreements and, in particular, on the actual number of returns. We share the Commission's concern that the paucity of data significantly affects the conclusions that can be drawn from this first evaluation of the Agreements. We therefore ask the Minister to explain what alternative methodology he contemplates for evaluating the real impact and effectiveness of EU Readmission Agreements.

5.32  We note the Government's opposition to the inclusion of a human rights suspension clause in EU Readmission Agreements and its lack of enthusiasm for an EU mechanism to monitor the treatment of individuals following their readmission pursuant to an EU Readmission Agreement. We understand that these two Commission Recommendations derive, at least, in part from a concern that the EU is increasingly likely to seek to conclude Readmission Agreements with countries with a poor record of compliance on human rights issues.

5.33  We note that the principle of monitoring returns has already been established at EU level. An EU Directive on Returns, adopted in 2008, establishes common rules and procedures for the return of illegally staying third country nationals and requires participating Member States to establish an "effective forced-return monitoring system."[32] Although the UK did not opt into the 2008 Directive, we ask the Minister whether it would not be anomalous for the EU to establish a mechanism to monitor returns effected under the Directive, but not those effected pursuant to EU Readmission Agreements, when the consequences for the individuals concerned are likely to be the same.

5.34  Finally, we note that the EU has for some considerable time insisted on the inclusion of a standard EU human rights suspension clause in its framework agreements with third countries, but that the clause has rarely been invoked in practice. We therefore ask the Minister why he is opposed to the inclusion of a similar clause in EU Readmission Agreements, given that the threshold for triggering its use ("a persistent and serious risk of violation of human rights of readmitted persons") would appear to be high and the impact on returns from the UK correspondingly low.

5.35  Pending the Minister's response to our questions, the Communication remains under scrutiny.

23   The five Member States are Italy, Cyprus, Lithuania, Luxembourg and Austria. Denmark is not bound by any EU Readmission Agreements. See page 3 of the Commission's Communication.  Back

24   See page 4 of the Commission's Communication. Back

25   See para 11 of the Minister's Explanatory Memorandum.  Back

26   See para 17 of the Minister's Explanatory Memorandum.  Back

27   See para 20 of the Minister's Explanatory Memorandum.  Back

28   See para 11 of the Minister's Explanatory Memorandum.  Back

29   See para 12 of the Minister's Explanatory Memorandum.  Back

30   See para 19 of the Minister's Explanatory Memorandum.  Back

31   See para 21 of the Minister's Explanatory Memorandum.  Back

32   See Article 8(6) of Directive 2008/115/EC of 16 December 2008, OJ L 348, 24.12.2008, p.98. Back

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