8 Readmission Agreement with Cape
Verde
| (a)
(34258)
14237/12
COM(12) 557
(b)
(34257)
14235/12
COM(12) 558
|
Draft Council Decision concerning the signing of the agreement between the European Union and the Republic of Cape Verde on the readmission of persons residing without authorisation
Draft Council Decision concerning the conclusion of the agreement between the European Union and the Republic of Cape Verde on the readmission of persons residing without authorisation
|
| Legal base | (a) Articles 79(3) and 218(5) TFEU; QMV
(b) Articles 79(3) and 218(6)(a) TFEU; QMV; EP consent
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| Document originated | (Both) 25 September 2012
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| Deposited in Parliament | (Both) 27 September 2012
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| Department | Home Office
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| Basis of consideration | EM of 8 October 2012
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| Previous Committee Report | None
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| Discussion in Council | No date set
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| Committee's assessment | Politically important
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| Committee's decision | Not cleared; further information requested
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BACKGROUND
8.1 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 return and
readmission of nationals of countries that are parties to the
agreements, as well as third country nationals and stateless individuals
who have transited the territory of one of the parties. EU Readmission
Agreements are negotiated by the Commission on the basis of a
negotiating mandate given to it by the Council and are concluded
pursuant to Article 79(3) of the Treaty on the Functioning of
the European Union (TFEU), which provides for the Union to "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."
8.2 The EU has so far concluded 13 readmission agreements
with third (non-EU) countries,[37]
and is likely to conclude a readmission agreement with Turkey
shortly. It has a mandate to negotiate agreements with Algeria,
Armenia, Azerbaijan, Belarus, Cape Verde, China and Morocco.
EU Readmission Agreements are subject to the UK's Title V opt-in
and, as the process for reaching agreement is divided into three
stages — approval of the negotiating mandate, signature
of the draft agreement, and conclusion of the agreement —
the UK has three opportunities to opt in. The most important stage
is the draft Decision to conclude the agreement as this is the
point at which the EU and Member States are legally bound by the
agreement. The UK participates in the 13 agreements currently
in force, and has opted into the EU Readmission Agreement with
Turkey, as well as most of the negotiating mandates for new EU
readmission agreements, with the exception of Armenia and Belarus.
8.3 The Commission describes Cape Verde as "a stable
and democratic country characterised by high standards of governance
and respect for the rule of law and human rights."[38]
Several Member States (Spain, France, Luxembourg and Portugal),
acting within the framework of the EU's Global Approach to Migration,
have entered into a Mobility Partnership with Cape Verde to strengthen
dialogue and cooperation on migration issues. In June 2009, the
Council agreed a mandate to negotiate a Readmission Agreement
with Cape Verde, and negotiations began the following month.
THE DRAFT
COUNCIL DECISIONS
ON THE
SIGNATURE AND
CONCLUSION OF
AN EU READMISSION
AGREEMENT WITH
CAPE VERDE
8.4 Document (a) is a draft Council Decision to sign an EU
Readmission Agreement with Cape Verde (it was initialled by the
parties on 24 April 2012) and document (b) is a draft Council
Decision to conclude the Agreement. The text of the Agreement
is attached to both draft Decisions. Once the Council has adopted
the draft Decision on signature, the Agreement is sent to the
European Parliament for approval. The draft Decision to conclude
the Agreement may only be adopted after the European Parliament
has given its consent.
8.5 The content of the Agreement is similar to the recently
proposed Readmission Agreement between the EU and Turkey which
was debated in European Committee on 10 September 2012.[39]
It creates reciprocal obligations for Cape Verde and participating
EU Member States[40]
and applies to individuals who do not (or no longer) fulfil the
conditions for entry into, presence or residence in, Cape Verde
or any EU Member State bound by the Agreement. The Agreement establishes
the readmission obligations for the participating countries (Sections
I and II) as well as the procedures for submitting a request for
readmission (Section III). So, for example, a requested State
is bound to readmit its own nationals (including their spouses
and unmarried minors), and to readmit third country nationals
and stateless persons for whom it has issued a valid visa or residence
permit or who have transited through its territory in order to
make an illegal entry into the territory of the State requesting
readmission.
8.6 The Agreement includes "transit principles"
which apply to third country nationals or stateless persons who
are in transit to their destination State (Section IV). It specifies
that Cape Verde or a participating EU Member State may refuse
transit in the following circumstances:
- if there is a real risk that the person in transit would face
torture, inhuman or degrading treatment or punishment, the death
penalty, or persecution on grounds of race, religion, nationality,
membership of a particular social group or political conviction
in the State of destination or another State of transit; or
- if the third country national or stateless person
would be subject to criminal sanctions in the requested State
or another State of transit; or
- on grounds of public health, domestic security,
public order or other national interests of the requested State.
8.7 The Agreement sets out a number of data protection
principles which apply in addition to any relevant domestic legislation
and makes clear that the application of the Agreement as a whole
is without prejudice to obligations arising from international
refugee and human rights conventions (Section VI). The Agreement
establishes a Joint Readmission Committee to monitor the application
of its provisions and recommend any changes. It also includes
provision for optional bilateral Implementing Protocols to establish
more detailed rules on the practical implementation of the Agreement
(Section VII).
THE
GOVERNMENT'S
VIEW
8.8 The Minister for Policing and Criminal Justice
(Damian Green) notes that the draft Council Decisions are subject
to the UK's Title V opt-in and says that, in determining whether
or not to exercise its opt in, the Government will consider the
likely impact of the Agreement on immigration and the extent to
which it supports UK policy objectives. He adds that there is
little irregular migration from Cape Verde to the UK, with statistics
for 2011 and the first half of 2012 indicating: one forced removal;
a total of 26 refusals of entry at ports of entry; and four asylum
applications.
8.9 In weighing the factors to be taken into
account in deciding whether or not to opt in, the Minister suggests
that participation in the Readmission Agreement "would be
a means of demonstrating solidarity with other Member States regarding
readmission of illegal migrants, but if the UK were not to participate,
this would not prevent other Member States from benefiting from
the Agreement."[41]
8.10 However, the Minister considers that the
UK already has good existing returns arrangements with Cape Verde
and that "there would be no operational benefit to be gained
from participation in this Readmission Agreement. Although Cape
Verde is reported to be on an irregular migrant sea route to the
Canaries and southern Europe, there is not believed to be a significant
problem regarding illegal entry to the UK by migrants of other
nationalities who have passed through Cape Verde."[42]
8.11 The Minister says that a decision to opt
into the Agreement would not raise any additional fundamental
rights issues, "as it reinforces what is already common practice:
human rights issues are closely examined as an integral part
of any enforcement action. This Agreement reaffirms commitments
to international obligations relating to fundamental rights when
enforcing returns."[43]
8.12 Finally, the Minister indicates that the
Commission President would like to sign the Agreement during his
visit to Cape Verde at the end of October. He has reminded the
Presidency and Commission that the UK has a three-month period
in which to decide whether to exercise its opt-in, and considers
that there are no grounds for expediting the timetable.
CONCLUSION
8.13 We welcome the Minister's assurance that
the draft Decisions on signature and conclusion of the Readmission
Agreement will not be adopted before the expiry of the three-month
period available to the UK to decide whether or not to opt in.
Although the Minister does not indicate whether the UK will choose
to exercise its opt-in, his assessment that participation in the
Agreement offers "no operational benefit" for the UK
would appear to make it difficult to do so. We ask the Minister
to inform us of the Government's opt-in decision, and the reasons
for it. Meanwhile, the draft Council Decisions remain under scrutiny.
37 Hong Kong, Macao, Sri Lanka, Albania, Russia, Ukraine,
the former Yugoslav Republic of Macedonia, Bosnia and Herzegovina,
Montenegro, Serbia, Moldova, Pakistan and Georgia. Back
38
See p.2 of the Commission's Explanatory Memorandum accompanying
the draft Council Decisions. Back
39
See (34040) and (34041); HC 86-viii (2012-13), chapter 2 (11 July
2012). Back
40
The participation of Ireland and the UK is subject to their Title
V opt-in. Denmark does not participate in EU Readmission Agreements,
but a Joint Declaration to the Agreement states that it is "desirable
that Cape Verde and Denmark should conclude a readmission agreement
in the same terms as this Agreement." Back
41
See para 17 of the Minister's Explanatory Memorandum. Back
42
See para 16 of the Minister's Explanatory Memorandum. Back
43
See para 12 of the Minister's Explanatory Memorandum. Back
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