5 EU Readmission Agreements
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7044/11
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
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| Legal base | —
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| Document originated | 23 February 2011
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| Deposited in Parliament | 28 February 2011
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| Department | Home Office
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| Basis of consideration | EM of 14 March 2011
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| Previous Committee Report | None
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| To be discussed in Council | No date set
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| Committee's assessment | Legally and politically important
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| Committee's decision | Not cleared; further information requested
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Background
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.
Conclusions
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.
Conclusion
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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