Documents considered by the Committee on 29 November 2017 Contents

36Implementation of the EU/Russia Readmission Agreement

Committee’s assessment

Legally and politically important

Committee’s decision

Cleared from scrutiny

Document details

Proposal for a Council Decision determining the EU position on readmission applications requiring the arrangement of an interview

Legal base

Articles 79(3) and 218(9) TFEU, QMV

Department

Home Office

Document Number

(37426), 15520/15 + ADD 1, COM(15) 666

Summary and Committee’s conclusions

36.1This proposal concerns the implementation of an EU readmission agreement with Russia which entered into force on 1 June 2007. EU readmission agreements establish procedures for the return to their countries of origin of third country nationals who are not entitled to enter or stay in an EU Member State. They are subject to the UK’s Title V (justice and home affairs) opt-in, meaning that they only apply to the UK if the UK has chosen to opt in. The UK has opted into the EU/Russia Readmission Agreement but has not concluded a bilateral implementing protocol (setting out the detailed arrangements for applying the agreement) “due to wider bilateral issues”.478

36.2The purpose of the proposed Council Decision is to clarify the arrangements for interviewing individuals in order to establish their nationality. Proof of nationality is necessary to demonstrate that an individual qualifies for readmission. The arrangements themselves are set out in a Recommendation annexed to the Decision which has to be agreed by the Joint Readmission Committee—the body responsible for deciding on arrangements to implement the Agreement. The Recommendation clarifies the deadlines applicable to readmission interviews in cases where these are not already specified in bilateral implementing protocols between Russia and individual Member States.

36.3As our predecessors made clear in their earlier Reports, the content of the proposed Council Decision is unobjectionable but it raises important questions about the application of the UK’s Title V opt-in Protocol. Although the proposal cites a Title V legal base, it does not include a recital indicating that the UK’s Title V opt-in Protocol (Protocol No 21) applies. The Government contends that it does apply and disputes the view (shared by the Commission and the Council) that the proposed Decision automatically binds the UK by virtue of its participation in the EU/Russia Readmission Agreement. It told our predecessors in April 2016:

“The UK position remains that as the proposal cites a legal base in Title V TFEU, in accordance with Protocol No 21, our position is that the UK’s opt-in applies to this proposal. The Government has made a decision not to opt in, and will lay a minute statement to clarify that position” (our emphasis).479

36.4The Government also questioned the Commission’s choice of a legally binding Council Decision:

“For a Council Decision to be used, the Recommendation or other measure on which it is agreeing an EU position must include a binding obligation which has legal effect. In this case there is no such legally binding obligation. It is now clear that a Council Decision will remain as the chosen vehicle in this particular case, despite the fact that this Recommendation has no legal effect. We maintain the view that Council Conclusions remain the correct vehicle for the EU to agree to its position in relation to measures with no legal affect and will lay a minute statement to this effect” (our emphasis).”480

36.5Our predecessors agreed with the Government that the UK’s Title V opt-in Protocol should apply to EU measures, such as this one, which cite a Title V legal base they supported the Government in pressing for the inclusion of a recital reflecting this position. Unlike the Government, however, they considered that it was not tenable for the UK to opt into the primary instrument—in this case the EU Readmission Agreement with Russia—but not opt into related implementing measures. They expressed a preference in such cases for the Government to assert that the UK’s Title V opt-in applies and to opt in, adding that any other outcome would create legal uncertainty. They noted the Government’s intention to make a statement in the Council minutes setting out its position on the application of the UK’s Title V opt-in Protocol and said:

“We trust that the minutes statement will also clarify the legal and practical effects of the UK’s opt-in decision. We ask the Minister to tell us when the proposed Council Decision has been adopted, to explain how the UK voted, and to provide a copy of the UK’s Minute Statement.”481

36.6In his letter of 13 July 2017, the Immigration Minister (Brandon Lewis) apologises for the delayed response (more than a year) which he attributes to “an administrative oversight”. He says that the Council Decision was adopted in April 2016.482 Although it includes a recital stating, “The United Kingdom is bound by the Readmission Agreement and is therefore taking part in the adoption of this Decision”, he reiterates the Government’s position that the UK is not bound by the Decision and did not, therefore, take part in the vote preceding its formal adoption by the Council. He adds:

“Whilst the UK had intended to lay a minute statement, it did not take place due to an administrative error, and unfortunately it is too late now to rectify this. Although our position has not been formally noted in writing, we will continue to take this position on the opt-in with the Commission and Council.”

36.7The Minister confirms that the Government does not intend to challenge the validity of the Decision in the Court of Justice (CJEU) as “it is our view that the UK position on returns to Russia remains unaffected by this Decision”.

36.8The Government is well aware that the Commission and the Council contest its position that the UK’s Title V (justice and home affairs) opt-in applies in this case and do not accept that the UK is entitled not to opt into the Council Decision. Recital (7) of the Decision states that the UK is bound by the EU Readmission Agreement with Russia and by this implementing measure. The absence of a formal record in the Council minutes contradicting recital (7) undermines the Government’s position that the UK has opted out and is not bound by the Decision. One consequence of the Government’s “administrative oversight” is that there is greater legal certainty as to the effect of the Council Decision—the UK lacks any basis for asserting that it is not bound and it is clear that the Government does not intend to test its position by bringing the matter before the Court of Justice.

36.9We accept that the Government’s mishandling is unlikely to have any practical consequence, given the absence of a bilateral implementing protocol between the UK and Russia fleshing out the detailed arrangements for applying the EU/Russia Readmission Agreement. Nonetheless, it does little to inspire confidence in the Government’s ability to ensure a coherent and consistent approach to the application of the UK’s Title V opt-in Protocol, particularly when its approach is under challenge from the Commission and Council.

36.10As the Council Decision has been in force for over a year and the Government is no longer in a position to remedy its administrative oversight, we are clearing it from scrutiny.

Full details of the documents

Proposal for a Council Decision determining the EU position for a Recommendation of the Joint Readmission Committee set up under the Readmission Agreement between the European Community and the Russian Federation with regard to readmission applications requiring the arrangement of interviews: (37426), 15520/15 + ADD 1, COM(15) 666.

Background

36.11Our predecessors’ earlier Reports listed at the end of this chapter provide further details on the proposed Council Decision and the Government’s position.

The Minister’s letter of 13 July 2017

36.12The Minister first apologises for the delay in responding to the questions raised by our predecessors in June 2016 which he attributes to “an administrative oversight”. He says that the Council Decision was adopted on 11 April 2016 and took effect on 16 May 2016. Although recital (7) provides: “The United Kingdom is bound by the Readmission Agreement and is therefore taking part in the adoption of this Decision”, the Government remains of the view that the UK’s Title V opt-in Protocol applies and that, as the UK did not opt in, the UK is not bound by the Decision.

36.13The Minister continues:

“I note that you consider that the Council Decision is likely to be regarded as binding on the UK unless the Government challenges its validity in the Court of Justice. The Government does not intend to challenge this Decision in the CJEU as it is our view that the UK position on returns to Russia remains unaffected by this Decision.

“You remain unconvinced that it is tenable for the UK to opt into the EU Readmission Agreement with Russia but not opt into related implementing measures. The Government’s position is that each opt-in decision needs to be taken on its own merits, taking into account the national interest.”

36.14Turning to the adoption of the Council Decision and the minute statements promised by the Government, the Minister explains:

“As the UK has not opted in to this measure, the UK did not vote on the adoption of this Decision. Whilst the UK had intended to lay a minute statement, it did not take place due to an administrative error, and unfortunately it is too late now to rectify this. Although our position has not been formally noted in writing, we will continue to take this position on the opt-in with the Commission and Council.”

Previous Committee Reports

Fourth Report HC 71– (2016–17), chapter 5, (8 June 2016), Twenty-ninth Report HC 342–xxviii (2015–16), chapter 11 (20 April 2016) and Twenty-third Report HC 342–xxii (2015–16), chapter 9 (10 February 2016).


478 See the Explanatory Memorandum dated 1 February 2016, provided by the then Immigration Minister (James Brokenshire).

479 See the letter of 13 April 2016 from the then Immigration Minister (James Brokenshire) to the Chair of the European Scrutiny Committee.

480 See the letter of 13 April 2016 from the then Immigration Minister (James Brokenshire) to the Chair of the European Scrutiny Committee.

481 See the Committee’s Twenty-ninth Report HC 342–xxviii (2015–16), chapter 11 (20 April 2016).

482 See Council Decision (EU) 2016/630, OJ L 110, 26.4.2016.




1 December 2017