5Application of the EU-Turkey Readmission Agreement
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Committee’s assessment |
Legally and politically important |
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Not cleared from scrutiny; further information requested; drawn to the attention of the Home Affairs Committee |
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Document details |
Proposal for a Council Decision bringing forward the implementation of Articles 4 and 6 of the EU-Turkey Readmission Agreement on the readmission of third country nationals and stateless persons |
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Legal base |
Articles 79(3) and 218(9) TFEU; QMV |
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Department |
Home Office |
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Document Numbers |
(37516), 6020/16 + ADD 1, COM(16) 72 |
Summary and Committee’s conclusions
5.1The EU concluded a Readmission Agreement with Turkey in April 2014.15 It establishes reciprocal obligations requiring each participating EU Member State (all bar Denmark and Ireland) and Turkey to readmit their own nationals if they do not meet the necessary conditions for entry, stay or residence in each other’s territories. These obligations, as well as the procedures governing their application, entered into force on 1 October 2014. The Agreement also includes provisions requiring the parties to readmit third country nationals or stateless persons for whom they are deemed to be responsible by virtue of issuing a visa or residence permit or by allowing them to remain in or transit through their territory before “directly and illegally” entering the territory of another party. These provisions (Articles 4 and 6 of the Agreement) only enter into force on 1 October 2017.
5.2Following a meeting with the Turkish Prime Minister last November, EU leaders issued a Statement on relations between the EU and Turkey which includes a commitment to apply all of the provisions of the EU-Turkey Readmission Agreement from June 2016.16 The accelerated application of the Agreement is intended to make it easier to return irregular migrants entering the EU from Turkey who are not authorised to remain in the EU. In return, the EU has said it will consider lifting short-stay visa requirements for Turkish nationals travelling to the Schengen free movement area by October 2016.17 In a more recent Statement, EU leaders indicated that visa requirements could be lifted by the end of June 2016.18
5.3The EU-Turkey Readmission Agreement establishes a Joint Readmission Committee to monitor the application of the Agreement, decide on implementing arrangements and recommend amendments to the Agreement. The proposed Council Decision establishes the EU’s position within the Joint Readmission Committee. Its effect is to give approval for Articles 4 and 6 of the EU-Turkey Readmission Agreement to be applied from 1 June 2016.
5.4The UK opted into the EU-Turkey Readmission Agreement in 2012 and considers that the UK’s Title V (justice and home affairs) opt-in also applies to the proposed Council Decision, although this is contested by the Council and the Commission.19 The Immigration Minister (James Brokenshire) told us that consideration of the proposal had been expedited with a view to formal adoption by the Council on 24 March and requested our views on the Government’s opt-in decision by 23 March. He indicated that the proposal was likely to have “a significant impact on managing migration flows” to the EU and that UK participation would “assist us in returning third country nationals to Turkey”.
5.5We acknowledged the political and operational imperative of securing full implementation of the EU-Turkey Readmission Agreement, given its link to the deal secured with Turkey in March to end irregular migration to the EU.20 We nevertheless questioned the means proposed to achieve this objective, suggesting that the Council was seeking a “quick fix” which was difficult to reconcile with the requirements of the Readmission Agreement. We asked the Minister how great a risk there was that an individual seeking to resist or delay return to Turkey might challenge the legality of the proposed Decision. We made clear that we were unwilling to clear the proposal from scrutiny until the Government had indicated whether or not it intended to opt in. We sought an explanation for the late submission of the Minister’s Explanatory Memorandum as well as further information on the legal implications of the UK’s opt-in decision. In the event that the Government decided to opt in, we asked the Minister to tell us how the UK intended to vote and what steps the Government would take to ensure that its position on the application of the UK’s Title V opt-in Protocol was formally placed on record.
5.6In his response, the Minister informs us that the Government decided, on 22 March, to opt into the proposed Decision, given its importance for “the UK’s wider interest”, and that it has clarified the UK’s position on the application of the Title V opt-in Protocol by making a statement in the Council minutes. He considers that the decision of the Joint Readmission Committee on the early application of Articles 4 and 6 of the Agreement constitutes an “implementing arrangement”, rather than an amendment of the Agreement itself, and that the risk of a legal challenge is “low”. In any event, “there would be nothing to stop the Parties voluntarily applying the relevant Articles of the Readmission Agreement earlier”.
5.7The Minister has provided a reasonable explanation for treating the decision of the Joint Readmission Committee as an implementing arrangement and we agree with his assessment that the risk of legal challenge is likely to be low.
5.8The Minister informs us that the Government decided to opt into the proposed Council Decision on 22 March. The Decision was formally adopted by the Council on 23 March. It includes a recital reflecting the view of the Commission and the Council that the UK is automatically bound to take part in the Decision by virtue of its participation in the EU-Turkey Readmission Agreement and that the UK’s Title V opt-in Protocol does not apply.21 Whilst we disagree with this view, we consider that a decision not to opt into a measure implementing an Agreement which is already binding on the UK would have resulted in legal and operational uncertainty. In these circumstances, we consider that the Government’s decision to opt in was pragmatic and necessary.
5.9We nevertheless reiterate our concern at the Government’s handling of this proposal. We note the Minister’s assurance that officials work hard to ensure that the Government adheres to its Code of Practice on parliamentary scrutiny of Title V (justice and home affairs) opt-in decisions. It is all the more disappointing that it has taken the Minister four weeks to inform us of the Government’s opt-in decision—the Code stipulates that the Minister will write “as soon as the Presidency has been notified”. To compound matters, although asked to do so, the Minister does not tell us how the UK voted. He will be aware that a positive vote by the UK would constitute a scrutiny override and that, in such circumstances, he is required under the terms of our Scrutiny Reserve Resolution to explain his reasons for overriding scrutiny “at the first opportunity”.
5.10We therefore invite the Minister to explain how the UK voted and, if the Government has overridden scrutiny, to set out the “special reasons” justifying its decision to do so. We also ask him to provide a copy of the UK’s Minute Statement. Meanwhile, the proposed Decision remains under scrutiny.
Full details of the documents
Proposal for a Council Decision establishing the position to be taken on behalf of the European Union within the Joint Readmission Committee on a Decision of the Joint Readmission Committee on implementing arrangements for the application of Articles 4 and 6 of the Agreement between the European Union and the Republic of Turkey on the readmission of persons residing without authorisation as of 1 June 2016: (37516), 6020/16 + ADD 1, COM(16) 72.
Background
5.11The proposal to apply all of the provisions of the EU-Turkey Readmission Agreement from 1 June 2016 forms part of a wider context to strengthen the EU’s relations with Turkey and reduce irregular migration which we summarised in our earlier Report listed at the end of this chapter.
5.12Whilst recognising this broader context, we noted that Article 19(1) of the EU-Turkey Readmission Agreement only authorises the Joint Readmission Committee to “decide on implementing arrangements necessary for the uniform application” of the Agreement—in other words, arrangements to determine how (not when) the Agreement is applied. Article 19(1) does not authorise the Committee to amend the Agreement—a much lengthier process involving ratification of any changes agreed by the Council and by Turkey. We suggested that altering the date on which the obligations contained in Articles 4 and 6 of the Agreement are to apply would constitute an amendment of Article 24(3) of the Agreement and would therefore exceed the powers given to the Joint Readmission Committee under Article 19(1) of the Agreement. We asked the Minister for his view, as well as his assessment of the risk that the legality of the Council Decision and/or the Decision of the Joint Readmission Committee could be challenged, for example by an individual seeking to resist or delay return to Turkey.
5.13We observed that the late submission of the Minister’s Explanatory Memorandum, more than two weeks after the ten day deadline imposed by the Government’s own Code of Practice on Parliamentary scrutiny of Title V opt-ins, reduced the time available for us to consider the Government’s opt-in decision and all but eliminated the possibility of recommending an opt-in debate to allow Members to express their views. We sought a clear assurance from the Minister that the Government would adhere to the Code of Practice in future and an explanation of the reasons for failing to do so in this case.
5.14We noted that the Commission and Council contested the Government’s view that the UK’s Title V opt-in Protocol applied to the proposed Council Decision since they considered the UK to be automatically bound by virtue of its participation in the EU-Turkey Readmission Agreement. We supported the Government’s position on the grounds that the proposal cited a Title V legal base and asked the Minister to inform us of the Government’s opt-in decision and how (if it did opt-in) the UK intended to vote and the steps the Government would take to ensure that the UK’s position on the application of the UK’s Title V opt-in Protocol was formally placed on record.
The Minister’s letter of 19 April 2016
5.15The Minister considers that the means employed to bring forward the implementation of Articles 4 and 6 of the EU-Turkey Readmission Agreement are appropriate. Commenting on the draft Decision to be adopted by the Joint Readmission Committee (JRC), he adds:
“We consider that the JRC’s Decision is an ‘implementing arrangement’ and therefore within the JRC’s mandate to adopt under Article 19(1)(b) of the Readmission Agreement. This is because it is not changing the nature of the obligations between the Parties; it is only bringing an obligation into force earlier. In terms of the risk of challenge, we consider that this is low. In any case, if it were found to be unlawful, there would be nothing to stop the Parties voluntarily applying the relevant Articles of the Readmission Agreement earlier. Consequently, we do not consider that an individual who is being readmitted to Turkey could successfully challenge the process on the basis of the flawed legality of the JRC Decision.”
5.16The Minister apologises for the delay in submitting his Explanatory Memorandum and assures us that “my officials continue to work hard to ensure we adhere to the Code of Practice”. He confirms that the Government decided, on 22 March, to opt into the proposed Decision, given its importance for the UK’s wider interest. He continues:
“The UK informed the Presidency of the Council via written procedure and clarified the UK’s position on the application of the UK’s Title V opt-in Protocol by laying a minute statement.”
Previous Committee Reports
Twenty-seventh Report HC 342-xxvi (2015-16), chapter 4 (23 March 2016).
15 See the Council Decision concluding the EU-Turkey Readmission Agreement.
16 See the EU-Turkey Statement issued on 29 November 2015.
18 See the EU-Turkey Statement of 18 March 2016.
19 The previous Coalition Government formally notified our predecessor Committee of its decision to opt into the Council Decision concluding the Agreement on 24 October 2012. An opt-in debate was held on 10 September 2012.
20 See the EU-Turkey Statement of 18 March 2016.
21 See recital (4) to Council Decision (EU) 2016/551 adopted on 23 March 2016.
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10 May 2016