Bruxelles, 7th October
WHY AEDH IS AGAINST THE SIGNING OF EUROPEAN UNION READMISSION AGREEMENTS I.
What are readmission agreements?
Readmission agreements are conventions between one or several States and a third State,
under which each party is obliged to readmit irregular migrants arrested on the territory of the
partner State (the requesting State). These are usually nationals of the third country (the
requested State) but the procedure may also concern persons who were in transit on the
latter’s territory.
The first agreements of this kind were signed in the 1960s. Initially bilateral (i.e. between two
countries: France and Gabon, Republic of Congo, Benin; Italy and Libya, 1 Tunisia, Egypt;
etc.), they have existed in multilateral form since 2000 (EU and Pakistan, Georgia, Albania,
Russia, etc.).
For the EU, these agreements are an important element of concerted migration flow
management with its partners, in particular Southern and Eastern ENP countries. They form
part of the EU strategy on irregular immigration and return. They can also be considered part
of a strategy to externalise migration controls, 2 since it is in the interest of third-country
partners to protect borders beyond the EU and oversee the return of migrants readmitted to
their country of origin.
They actually follow on from the readmission clauses found in most cooperation or
association agreements, in line with the conclusions of the Seville European Council (2002); 3
they are a supporting feature of the ‘mobility partnerships’ that the EU is trying to develop
1
This was in fact more of an ‘informal’ agreement signed in 2000 between Italy and Libya, which was hotly contested because it led to the forced return of migrants to Libya without prior verification of their need for protection or other signs of vulnerability. See “Italy/Libya: Migrants Describe Forced Returns, Abuse”, Human Rights Watch (21 September 2009): http://www.hrw.org/news/2009/09/17/italylibya‐migrants‐describe‐forced‐returns‐abuse 2
“At the margins of Europe: externalisation of migration controls”, Migreurop report (2010‐2011): http://www.migreurop.org/IMG/pdf/Rapport_Migreurop_2011_Version_anglaise_27012012_pour_derniere_r
electure_et_validation_FASTI‐SM.pdf 3
Seville European Council (21 and 22 June 2002) ‐ Presidency Conclusions: “The European Council urges that any future cooperation, association or equivalent agreement which the European Union or the European Community concludes with any country should include a clause on joint management of migration flows and on compulsory readmission in the event of illegal immigration.” ‐ Brussels, 24 October 2002 ‐ 13463/02 ‐ POLGEN 52: http://register.consilium.europa.eu/pdf/en/02/st13/st13463.en02.pdf October 2013 Association Européenne pour la Défense des Droits de l’Homme European Association for the Defence of Human Rights 1/9 with migrant-sending countries, particularly in the Euro-Mediterranean area. This so-called
win-win strategy is now reinforced by parallel ‘facilitation’ agreements on visas.
AEDH is particularly concerned by the multilateral agreements that the European
Union intends to sign with a growing number of countries. Our association has
repeatedly expressed its opposition to the signing of such agreements, particularly
with certain countries.
II.
The readmission agreements signed by the EU
The EU has signed 13 readmission agreements (see Annex 1) since the adoption of the
Amsterdam Treaty. It is currently negotiating such treaties with Cape Verde (which received
the approval of the European Parliament on 11 September), Armenia, and with China,
Algeria, Morocco, Tunisia, Turkey, Belarus and Azerbaijan. Moreover, some 30 other
agreements signed by the EU – with Mediterranean countries and in the framework of the
Cotonou Agreement – contain readmission clauses. 4
The legal basis of the legislative procedure is contained in Articles 79 and 218 of the
Treaty on the Functioning of the EU (TFEU). Following a Commission recommendation, the
Council adopts by qualified majority a decision authorizing the opening of negotiations and
appointing the EU’s negotiator for the agreement. The Council then adopts a decision
authorizing the signature and conclusion of the agreement. Lastly, as provided for under
Article 218(6) of the TFEU, the validation by Parliament is a necessary prerequisite for the
agreement to be concluded.
The European Parliament can, despite being unable to propose amendments, accept or
reject an agreement. This is why the AEDH is turning to members of the European
Parliament (MEPs) for them to use their prerogatives.
The content and form of readmission agreements follow a fairly standardized template,
concerning both reciprocal readmission obligations and more technical matters such as timeframes and procedures for transfer, transport and transit. The follow-up of agreement
implementation is carried out by a Joint Readmission Committee, whose decisions are
binding for the contracting parties.
Several provisions call for particular attention:
All agreements include a non-affectation cause, stating that the obligations under
customary or conventional international law can in no way be affected by the
provisions of the agreement.
Certain agreements explicitly refer to the most significant international
conventions on migrant rights, including the Geneva Convention.
In order to enhance human rights safeguards, the European Commission recently
recommended including a temporary suspension clause in the event of serious
human rights violations being observed. 5
Certain agreements include an accelerated readmission procedure for persons
arrested in border regions. This procedure currently appears in six agreements. 6
4
FRA: “Fundamental rights at the EU’s southern sea borders: Deficiencies, promising practices and
challenges”, European Union Agency for Fundamental Rights (FRA) report, 2013. p. 99 5
“Evaluation of EU Readmission Agreements”, European Commission, 23 February 2011 October 2013 Association Européenne pour la Défense des Droits de l’Homme European Association for the Defence of Human Rights 2/9 III.
Critical points
The AEDH’s reserves and criticisms, like those of many other organizations, concern both
the risk of non-respect of migrant rights – or even their endangerment – and the method
employed by the EU during the negotiation and implementation of the agreements.
III – 1 - Readmission v. fundamental migrant rights
Beyond the human and ethical problems posed by arrest and return procedures for irregular
migrants, the implementation of a readmission agreement can constitute a denial of rights in
at least three circumstances.
1 - The agreements include an accelerated procedure for migrants caught in border
regions.
Apart from the fact that it often deprives people of effective avenues for recourse against the
return decision, this special procedure has allowed certain Member States, and particularly
those that consider themselves subject to high migratory pressure because of their
geographical position, to return migrants without prior verification of the presence of criteria
which could justify the granting of refugee status or their belonging to a vulnerable group.
Must we recall that thousands of citizens of Armenia and Turkey 7 request asylum in EU
countries every year and that there is currently, for tens of thousands of people, no route
other than Turkey to attempt to reach international protection?
2 - Readmission agreements are often signed with countries which do not offer guarantees
compliant with international migrant rights protection standards, or even the right of
asylum. As highlighted by many NGO reports, this context can therefore prove tragic for
readmitted persons who have transited via EU partner countries.
For example, Human Rights Watch noted on 16 December 2010 that “EU states are
returning people to Ukraine to face abuse.” and that “Migrants and asylum seekers, including
children, risk abusive treatment”. 8 It should also be recalled that an agreement was
concluded between the EU and Pakistan, which has still not signed the 1951 Geneva
Convention relating to the Status of Refugees. 9 In some countries with which the EU is trying
to conclude agreements, such as Morocco, Algeria and Tunisia, “refugees” (as recognized by
the UNHCR) do not have residency permits, cannot work, and do not have access to social
protection. And as for Armenia, with which an agreement may soon be concluded, it is not a
signatory of the International Convention on the Protection of the Rights of All Migrant
Workers and Members of Their Families. The Euro-Mediterranean Human Rights Network
6
Readmission Agreement EC‐Russia, Art. 6 (3); Readmission Agreement EC‐Ukraine, Art. 5 (3); Readmission Agreement EC‐Macedonia, Art. 6 (3); Readmission Agreement EC‐Serbia, Art. 6 (3); Readmission Agreement EC‐
Moldavia, Art. 6 (3); Readmission Agreement EU‐Georgia, Art. 6 (3) 7
For 2012, 4320 and 5211 individuals, respectively, according to the UNHCR’s “Asylum Trends 2012 – Levels and Trends in Industrialized Countries” (UNHCR, March 2013) ‐ http://www.unhcr.org/5149b81e9.html 8
“Ukraine: Migrants and Asylum Seekers Tortured, Mistreated”, Human Rights Watch press release (16 December 2010): http://www.hrw.org/news/2010/12/16/ukraine‐migrants‐and‐asylum‐seekers‐tortured‐
mistreated 9
See AEDH press release (12 July 2010) – “The AEDH asks members of the European Parliament not to approve the readmission agreement with Pakistan”: http://www.aedh.eu/plugins/fckeditor/userfiles/file/Communiqu%C3%A9s/Press%20release%20readmission%
20agreement%20Pakistan_12_07_2010.pdf October 2013 Association Européenne pour la Défense des Droits de l’Homme European Association for the Defence of Human Rights 3/9 (EMHRN) recently expressed similar concerns concerning the future agreement with
Turkey. 10
Generally, the EU cannot be unaware that, where readmission concerns migrants who have
transited via requested States, they will be confronted with difficulties linked to the “irregular”
nature of the status, risking detention and deportation to their country of origin, which they
may have wanted to flee – without their asylum application being considered.
Lastly, even where the EU has guarantees on the respect of migrant rights in the country of
return, nothing guarantees that the same will apply in the case of ‘cascade’ returns to third
countries with which the EU partner country has itself signed readmission agreements. This
is the case for example of Russia, which in July 2007 signed a bilateral readmission
agreement with Uzbekistan, a country accused by many NGOs in Central Asia of torture,
suppressing political and religious opposition, and limiting press freedom. 11 This is also the
case in Cape Verde, which has signed agreements with its African neighbours including
Guinea-Bissau, which has seen recent turmoil.
3 - It should also be recalled that in certain countries (Tunisia, for example), the freedom to
emigrate is controlled and limited. This means that any migrant arrested in an irregular
situation in the EU and returned to their home country may face detention.
This emigration control by third countries is both a form of outsourced EU border control and
a way for third countries to earn favour with the EU. Furthermore, the role of “immigration
liaison officers” – representatives of Member States posted in a non-Member State in order
to facilitate the measures taken by the EU to combat clandestine immigration – is, among
other things, to help the concerned third countries control exits from their territory, thereby
assisting in “concerted” management of migratory flows as intended by the EU.
III - 2 – Lack of transparent monitoring
The method used by the EU poses three types of problems:
1 - Illegal bargaining. To make readmission agreements more attractive for third country
partners, the EU’s negotiations are held as part of a larger arrangement, often offering
facilitated procedures for issuing visas in exchange.
AEDH could view this as a positive opening of European borders. However, it should be
noted that the “facilitated procedures” are minimal: they concern only short stay visas and
those issued for work under very limited conditions (e.g., business trips, skilled work); they
do no not apply to family reunification. Our association considers that facilitated visas, while
a positive step 12 , should not be granted in exchange for border security policies, and that
they are an inadequate solution to meeting migrants’ actual needs.
2 - A decision-making process without citizen participation. The preparation and
negotiation stages of readmission agreements are characterised by their lack of
transparency. Negotiations and agreement application are all handled by the Commission
and the Council in an opaque manner that is not very democratic. Admittedly, the European
10
EMHRN: “An EU‐Turkey Readmission Agreement – Undermining the Rights of Migrants, Refugees and Asylum Seekers?” – Copenhagen, 21 June 2013 http://www.euromedrights.org/eng/wp‐content/uploads/2013/06/En_TurkeyReadmis_Pb_web.pdf 11
See for example: http://www.fidh.org/2011_UZ/ 12
AEDH calls for the abolition of short‐stay visas. October 2013 Association Européenne pour la Défense des Droits de l’Homme European Association for the Defence of Human Rights 4/9 Parliament is required to give its approval since the entry into force of the Lisbon Treaty;
however, despite repeated requests by elected European officials, this institution is excluded
from the negotiation process and its only power is to validate – or not – the decision once
negotiations are over. Furthermore, civil associations and NGOs are never consulted, even
when they often have relevant and reliable information regarding the situation of migrants in
the concerned countries.
3 - A lack of knowledge about the consequences of the agreements. As part of the
monitoring of agreement application, the Commission and Member State representatives
participate in joint committees, which the European Parliament and NGOs are not invited to
join, in spite of numerous repeated requests by the Council of Europe’s Parliamentary
Assembly 13 . The European Commission has even recognized that the follow-up stage should
be improved, particularly with regards to collecting data and setting up pilot projects to
evaluate agreements 14 . For its part, the Council of Europe’s Parliamentary Assembly has
underlined the need for the EU to be more committed to studying the impacts of agreement
application before and after the fact, with greater involvement of civil society. 15
***
It is for these reasons the AEDH considers that the EU should not agree to sign readmission
agreements until it has undertaken a major reform of its methods, obtained unequivocal
guarantees that the rights of migrants and people seeking international protection will be
respected, and implemented a procedure monitoring the consequences of return operations
on migrants.
At the very least, the association requests the EU to implement the provisions put forward by
the European Union Agency for Fundamental Rights 16 ; the Council of Europe 17 ; the Office of
the United Nations High Commissioner for Refugees (UNHCR) 18 ; the United Nations Special
Rapporteur on the Human Rights of Migrants, François Crépeau 19 , and the European
Parliament 20 . In particular, the EU should:
1. Review the criteria that third countries must meet before signing readmission
agreements. This includes ensuring there is effective access to asylum procedures,
making explicit mention of the obligations set out in the 1951 refugee convention and
13
European Parliament resolution of 18 April 2012 on the EU‐Armenia Association Agreement “Evaluation of EU Readmission Agreements”, European Commission, 23 February 2011, recommendations 1 and 15 15
“Readmission agreements: a mechanism for returning irregular migrants”, report from the Committee on Migration, Refugees and Population of Council of Europe’s Parliamentary Assembly (17 March 2010): http://assembly.coe.int/ASP/Doc/XrefViewHTML.asp?FileID=12439&Language=en 16
“Fundamental rights at the EU’s southern sea borders: Deficiencies, promising practices and challenges”, European Union Agency for Fundamental Rights (FRA) report, 2013 17
Report from the Committee on Migration, Refugees and Population of Council of Europe’s Parliamentary Assembly, op. cit. 18
UNHCR: “Position on Readmission Agreements, 'Protection Elsewhere' and Asylum Policy” (1994) http://www.refworld.org/docid/3ae6b31cb8.html 19
“Regional study: management of the external borders of the European Union and its impact on the human rights of migrants”, report of the UN Special Rapporteur on the human rights of migrants, François Crépeau (24 April 2013): http://daccess‐dds‐ny.un.org/doc/UNDOC/GEN/G13/133/91/PDF/G1313391.pdf?OpenElement 20
Jean Pierre Cassarino, “Readmission Policy in the European Union”, European Parliament study (September 2010): http://www.statewatch.org/news/2010/sep/ep‐study‐eu‐readmission.pdf 14
October 2013 Association Européenne pour la Défense des Droits de l’Homme European Association for the Defence of Human Rights 5/9 2.
3.
4.
5.
6.
7.
1967 protocol, and providing guarantees with respect to the economic and social
rights of third-country nationals in transit on its territory.
Include a suspension clause in all agreements in case a risk of persistent violations to
human rights exists.
Expressly include a clause for the protection of human rights in all agreements.
Exclude any accelerated return procedure.
Implement training programmes for border guards so they can make sure migrants
have access to asylum procedures and that migrants’ rights are protected –
especially those of the most vulnerable.
Create an efficient mechanism to compile data, and carry out impact studies before
and monitoring after readmission agreements are implemented. This includes
ensuring civil society, international human rights organisations and the European
Parliament are more involved in the monitoring process.
Work in close partnership with the European Parliament during the different drafting
and negotiation phases.
Press contact:
Catherine Teule, vice-chairwoman
Marianna Moioli, assistant
AEDH, Association Européenne pour la défense des Droits de l’Homme
33, rue de la Caserne. B-1000 Bruxelles
Tél : +32(0)25112100 Fax : +32(0)25113200 Email : [email protected]
The European Association for the Defence of Human Rights (Association Européenne pour la
défense des Droits de l’Homme - AEDH) consists of associations and leagues defending human rights
in the countries of the European Union. AEDH is an associate member of the International Federation
of Human Rights (Fédération internationale pour la défense des droits de l’Homme - FIDH). For more
information, visit www.aedh.eu.
October 2013 Association Européenne pour la Défense des Droits de l’Homme European Association for the Defence of Human Rights 6/9 Appendix I
List of readmission agreements concluded by the UE
Country
Mandate
Date of signature
Date of entry into
force
Albania
November 2002
14 April 2005
1 May 2006
Bosnia
Herzegovina
November 2006
18 September 2007
1 January 2008
Georgia
September 2008
17 June 2010
18 January 2011
Hong Kong
April 2001
27 November 2002
1 March 2004
Macao
April 2001
13 October 2003
1 June 2004
Macedonia
November 2006
18 September 2007
1 January 2008
Moldavia
December 2006
10 October 2007
1 January 2008
Montenegro
November 2006
18 September 2007
1 January 2008
Pakistan
September 2000
26 October 2009
7 October 2010
Russia
September 2000
25 May 2006
1 June 2007
Serbia
November 2006
18 September 2007
1 January 2008
Sri Lanka
November 2000
4 June 2004
1 May 2005
Ukraine
June 2002
18 June 2007
1 January 2008
October 2013 Association Européenne pour la Défense des Droits de l’Homme European Association for the Defence of Human Rights 7/9 APPENDIX 2
References:
I.
Institutional documents
•
European Parliament of 18 April 2012 containing the European Parliament’s
recommendations to the Council, the Commission and the European External Action
Service on the negotiations of the EU-Armenia Association Agreement
(2011/2315(INI))
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+REPORT+A72012-0079+0+DOC+XML+V0//EN
•
“Readmission agreements: a mechanism for returning irregular migrants”, report from
the Committee on Migration, Refugees and Population of Council of Europe’s
Parliamentary Assembly (17 March 2010)
http://assembly.coe.int/ASP/Doc/XrefViewHTML.asp?FileID=12439&Language=en
•
“Fundamental rights at the EU’s southern sea borders: Deficiencies, promising
practices and challenges”, European Union Agency for Fundamental Rights (FRA)
report, 2013
http://fra.europa.eu/en/press-release/2013/fundamental-rights-eus-southern-seaborders-deficiencies-promising-practices-and
•
“Regional study: management of the external borders of the European Union and its
impact on the human rights of migrants”, report of the UN Special Rapporteur on
the human rights of migrants, François Crépeau (24 April 2013)
http://daccess-ddsny.un.org/doc/UNDOC/GEN/G13/133/91/PDF/G1313391.pdf?OpenElement
•
Jean Pierre Cassarino, “Readmission Policy in the European Union”, European
Parliament study (September 2010)
http://www.statewatch.org/news/2010/sep/ep-study-eu-readmission.pdf
•
“Evaluation of EU Readmission Agreements”, European Commission, 23 February
2011
http://ec.europa.eu/dgs/home-affairs/what-isnew/news/pdf/comm_pdf_com_2011_0076_f_communication_en.pdf
II. NGO’s documents
•
“Readmission agreements: Using “Cooperation” to Deport Migrants”, Migreurop
report (December 2012)
http://www.migreurop.org/IMG/pdf/note_de_migreurop_062012_accords_de_r_r_adm
ission_version_anglaise_web_version.pdf
•
“At the margins of Europe: externalisation of migration controls”, Migreurop report
(2011/2012)
http://www.migreurop.org/IMG/pdf/Rapport_Migreurop_2011_Version_anglaise_2701
2012_pour_derniere_relecture_et_validation_FASTI-SM.pdf
October 2013 Association Européenne pour la Défense des Droits de l’Homme European Association for the Defence of Human Rights 8/9 •
EMHRN: “An EU-Turkey Readmission Agreement-Undermining the rights of Migrants,
Refugees and Asylum Seekers?” - Copenhagen, 21 June 2013
http://www.euromedrights.org/eng/wpcontent/uploads/2013/06/En_TurkeyReadmis_Pb_web.pdf
•
“Ukraine: Migrants and Asylum Seekers Tortured, Mistreated”, Human Right Watch
press release (16 December 2010)
http://www.hrw.org/news/2010/12/16/ukraine-migrants-and-asylum-seekers-torturedmistreated
•
“The AEDH asks members of the European Parliament not to approve the
readmission agreement with Pakistan”, AEDH press release (12 July 2010)
http://www.aedh.eu/plugins/fckeditor/userfiles/file/Communiqu%C3%A9s/Press%20re
lease%20readmission%20agreement%20Pakistan_12_07_2010.pdf
•
“Managing Migration Means Potential EU Complicity in Neighboring States’ Abuse of
Migrants and Refugees”, Human Right Watch report (October 2006)
http://www.hrw.org/legacy/backgrounder/eca/eu1006/eu1006web.pdf
October 2013 Association Européenne pour la Défense des Droits de l’Homme European Association for the Defence of Human Rights 9/9