1. Introduction
1. Readmission agreements are an important element in
migration management strategies of Council of Europe member states
and in the common return policy of the European Union. They facilitate
and expedite the enforcement of return decisions in respect of irregular
migrants and presumably also function as an incentive for countries
of origin or transit, that are parties to readmission agreements,
to improve their border control. The main question discussed in
this report is whether the existence or implementation of readmission agreements
poses a threat, directly or indirectly, to the human rights of irregular
migrants. This concerns in particular the risk that the sending
or the readmitting country fails to honour their obligations under
the 1951 Geneva Convention Relating to the Status of Refugees and
its 1967 Protocol (the 1951 Geneva Convention) and the European
Convention on Human Rights.
2. Readmission agreements set out the conditions under which
the states parties to them are obliged to readmit their own citizens
and sometimes also third-country citizens who have passed through
their territory. The human rights concerns arise in particular with
regard to the latter. It has been argued that irregular migrants who
are returned to a country which is not their country of origin might
risk being deprived of the possibility to submit an asylum application
or to have it examined in substance, thus becoming subject to so-called
“chain refoulement”, or placed
in an unsustainable situation in terms of social rights.
3. Unsurprisingly, representatives of national governments and
the European Union claim that readmission agreements are safe and
neutral in terms of human rights. They argue that a readmission
agreement is merely a tool for the effective removal of irregular
migrants and that all human rights issues must be raised when the decision
to expel the person concerned, the return decision, is taken.
4. Representatives of NGOs, for example, do not agree with this
view, but maintain that it is in fact relevant to question the neutrality
of readmission agreements as regards human rights. Their argument
is that one cannot isolate the different links in the chain which
lead to the return of a person, but have to see the process as a
whole. Readmission agreements are a very important part of this
whole, it is claimed, and should not be detached from it. Moreover,
the existence of a readmission agreement may serve as a catalyst
for questionable return decisions. The impact of readmission agreements
must therefore also be evaluated. A particular problem arises if
there has been no examination of the claim on the merits of the
individual protection needs (for example, persons whose applications
have been rejected on “safe third country” grounds) before readmission
is requested or if the situation in the readmitting country has
deteriorated between the taking of the return decision and the request
for readmission.
5. The European Union is a driving force in the promotion of
readmission agreements. It negotiates readmission agreements which
are then put at the disposal of and implemented by its member states.
Also many purely bilateral readmission agreements are in force between
countries. States members of the Council of Europe but not of the
European Union are also parties to bilateral readmission agreements
with third countries. These states are, however, first and foremost
at the receiving end of readmission agreements with European Union
member states. In 2007, for example, “the former Yugoslav Republic
of Macedonia” readmitted 528 persons, all from either Austria, Germany,
Hungary or Switzerland.
6. The European Union has concluded readmission agreements with
the following countries: Hong Kong, Macao, Sri Lanka, Albania, Russia,
Bosnia and Herzegovina, “the former Yugoslav Republic of Macedonia”, Georgia,
Moldova, Montenegro, Pakistan, Serbia and Ukraine. Negotiations
are ongoing with Morocco and Turkey, whereas mandates for the European
Commission to negotiate readmission agreements exist also in respect
of China, Algeria and Cape Verde. The Council of the European Union
has invited the Commission to prepare a mandate with a view to initiate
negotiations concerning a readmission agreement with Belarus.
7. Over and above the European Union readmission agreements,
hundreds of bilateral readmission agreements have been concluded.
Germany, for example, has 29 agreements; Italy has 30; Poland is
party to 19 agreements and Hungary to 25. Many of these bilateral
agreements are between European Union member states. Some 13 of
Germany’s agreements are with other European Union member states,
as are 15 of Italy’s. “The former Yugoslav Republic of Macedonia”
has 21 readmission agreements and Moldova is party to three agreements.
8. Statistics on the number of returns enforced with the help
of readmission agreements are sometimes difficult to obtain. States
have not assembled statistics or are reluctant to publish them.
When statistics do exist, they can be on returns in general and
not broken down with regard to the number enforced through the application
of readmission agreements. The situation of returnees is rarely
evaluated, and even less so with regard to the effect the implementation
of readmission agreements has on their situation. This lack of information
prevents a thorough evaluation of the advantages and disadvantages
of these instruments.
9. In the light of the above the rapporteur has prepared this
report on the human rights implications of readmission agreements.
As part of the preparations, on 15 and 16 February 2009, the rapporteur
conducted a study visit to Brussels where she met with representatives
of the United Nations High Commissioner for Refugees (UNHCR), the
European Commission, Amnesty International and the Centre for European
Political Studies as well as with independent experts, all of whom
provided a great deal of valuable information. Furthermore, on 27
May 2009 a hearing was organised in Paris on the topic of the report.
The meeting benefited from an exchange of views with, inter alia, civil servants from
the European Commission staff, UNHCR and the International Organization
for Migration (IOM), and with representatives from civil society.
In the course of the preparations, questionnaires were sent to and
replied to by members of the European Committee on Migration (CDMG).
The rapporteur was also greatly assisted by a consultant, Ms Joanne
van Selm, who prepared a paper on this topic from which the rapporteur
has derived input for the report. The rapporteur would like to warmly
thank all those mentioned for their valuable contributions.
2. What
are readmission agreements?
10. Countries have an obligation under international
law to readmit their own citizens.
When
a country in which a person resides wishes to return him or her
to his or her country of origin, it might, however, sometimes occur
that the latter country does not honour this obligation. The formal
reason can, for example, be that the individual lacks the necessary
documents, whereas the real reason might be that he or she is simply undesirable
or that there are political or economic reasons why the government
does not want to readmit some of its own citizens. In order to facilitate
and expedite returns, countries have concluded readmission agreements.
Such agreements set out a number of conditions that, if fulfilled,
impose upon the country of origin a contractual obligation to readmit
the person in question onto its territory, in addition to the obligation
already flowing from international law. The agreement sets out the
precise conditions that are to be fulfilled in order for the requested
readmission to be granted.
11. Countries that wish to expel individuals who for some reason
are no longer allowed to stay on their territory might sometimes
have an interest in sending that person, not to his or her country
of origin, but to a third country, usually one through which the
person has passed on his or her way to the country that wishes to expel
him or her. The reason can be that the transit country is easier
to co-operate with. However, countries have the prerogative to decide
upon the entry of foreign citizens on their territory, and are thus
not obliged under international law to admit individuals who are
not their citizens. Readmission agreements therefore sometimes contain
clauses obliging the receiving country to readmit returnees who
are not citizens of that country. These persons are referred to
here as “third-country nationals”.
12. Readmission agreements concern the readmission of irregular
migrants, individuals who for one reason or another have no right
to reside on the territory of a certain state. A migrant can be
considered irregular for several different reasons.
He
or she can be an asylum seeker whose asylum application has been
rejected or not even considered or might have entered the country
without the necessary documents. Countries have the right to expel
irregular migrants, provided the expulsion is not in violation of
the 1951 Geneva Convention,
or other international human
rights instruments including the European Convention on Human Rights,
the International Covenant on Civil and Political Rights or the
United Nations Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment. This does not necessarily
mean that it can always be considered humane to expel an individual,
but the right to do so is still there with the proviso mentioned
above. In this context, it is particularly important to focus on
the rights of third-country nationals. Such returnees are at even
greater risk of ending up in a situation where they lack access
to an asylum system.
13. The European Commission defines European Union readmission
agreements in the following way: “A Community Readmission Agreement
is an international agreement between the European Community and
a third country which sets out reciprocal obligations, as well as
detailed administrative and operational procedures, to facilitate
the return of illegally residing persons to their country of origin
or country of transit”.
The
same definition normally applies for bilateral readmission agreements,
except that they do not involve the European Union.
14. Readmission agreements set out that, upon application by the
requesting state, without any further formalities than those specified
in the agreement, the requested state must readmit any person who
does not, or who no longer, fulfils the entry or residence conditions
applicable in the territory of the requesting state, on the condition
that it can be proved or indicated by prima
facie evidence that the person concerned is a national of
the requested state. The various documents serving as proof or evidence
of nationality are listed in the annexes to each readmission agreement.
If the conditions are fulfilled, the requested state must issue
the person to be readmitted with the travel document required for
his or her return, with a period of validity of at least six months.
15. Readmission agreements normally also provide that the requested
state must readmit to its territory, upon application by the requesting
state, any third-country national or stateless person who does not
fulfil, or who no longer fulfils, the conditions for entry to or
residence in the territory of the requesting state, where it can be
proved that such a person:
- has
unlawfully entered the territory of the requesting state directly
from the territory of the requested party;
- held, at the time of entry, a valid residence authorisation
issued by the requested state;
- held, at the time of entry, a valid visa issued by the
requested state.
If the conditions are fulfilled,
the requested state must issue the person to be readmitted with
the travel document required for his return, with a period of validity
of at least six months.
16. The “detailed and operational procedures” mentioned in the
definition above refer to the way in which an irregular migrant
is returned in application of the agreement. The provisions setting
out these procedures concern, inter alia,
the means of evidence regarding the nationality of the returnee
that must be accepted by the readmitting country, transit operations,
protection of personal data, implementation and territorial application
of the agreement and rules on costs and data protection. The agreements
also contain a “non-affection clause”, which commits the parties
to respect the human rights of the migrants concerned, or refers to
“obligations and responsibilities arising from International Law
and from any applicable International Convention or agreement …”.
17. Readmission agreements have occurred in different forms for
many years. Three main waves can be identified: the 19th century,
the 1950s and a third one which started in the early 1990s.
During the 1990s most European
Union member states pursued bilateral readmission agreements with
the countries most important to them with respect to migration policy.
With national return policies facing increasing difficulties in implementation,
European Union member states turned to collective action to create
a climate for co-operation with non-member states.
18. As mentioned earlier, hundreds of bilateral readmission agreements
have been concluded. Bulgaria, France, Germany, Italy, Latvia, Lithuania,
Romania, and Spain are the European Union member states most involved
in bilateral readmission co-operation. Bosnia and Herzegovina, Croatia,
“the former Yugoslav Republic of Macedonia”, Switzerland and Ukraine
are the non-European Union Council of Europe member states which
co-operate most at a bilateral level with European Union member
states. The European Union encourages states with which it has readmission
agreements to conclude readmission agreements in their turn with
other habitual countries of origin.
19. In some cases countries have agreed to co-operate on readmission
issues without necessarily formalising the co-operation in a readmission
agreement. They may have opted for alternative ways of dealing with
the issue of readmission by placing it in a broader framework of
co-operation including additional forms of mutual assistance or
by choosing to confirm their co-operation via other types of deals.
These can include exchanges of letters and memoranda of understanding.
20. In 1999, through the Amsterdam Treaty, the European Community
was given the competence by member states to start negotiating readmission
agreements, which have then, once concluded, been put at the disposal
of member states.
The
competence with regard to readmission agreements is a matter of
discussion. It is not clear whether the European Union enjoys sole
competence in this area. European Union member states contest that
this would be the case. The customary practice between the Commission
and member states is one of shared competence governed by certain
rules. Previous state-negotiated bilateral readmission agreements
of European Union member states are still in force and used. European
Union readmission agreements, however, take precedence over state-negotiated
ones. Member states can also enter into readmission agreements with
countries that are not encompassed by the Council of the European
Union mandate referred to below. Although the European Commission
is responsible for the negotiation of readmission agreements, it
does not take part in their implementation. The actual decision
to return an individual and request readmission rests entirely with
the individual country.
21. European Union readmission agreements are, as already stated,
negotiated by the European Commission, which is authorised to do
so by the European Union Council. Since 2000, partnership and co-operation
agreements between the European Union and third countries, notably
the Cotonou Agreement and its Article 13, contain clauses which
demand that the parties readmit their own citizens.
22. The European Pact on Migration and Asylum, which was adopted
by European Union heads of state and government at the European
Summit of October 2008, endorses and recommends the conclusion of readmission
agreements by the European Union. It states that the effectiveness
of European Union readmission agreements will be evaluated and that
member states and the Commission will consult closely when future
readmission agreements are negotiated. The “Stockholm Programme
– An open and secure Europe serving and protecting the citizens”,
adopted in December 2009, mentions readmission agreements as an
important element in European Union migration management. It considers
that the Council of the European Union should put its focus on “the
presentation by the Commission of an evaluation, also of ongoing negotiations,
during 2010 of the EC readmission agreements and propose a mechanism
to monitor their implementation. The Council should define a renewed,
coherent strategy on readmission on that basis, taking into account
the overall relations with the country concerned, including a common
approach towards third countries that do not co-operate in readmitting
their own nationals” (Section 6.1.6).
23. Bilateral readmission agreements are international treaties
and must therefore, in a vast majority of countries, be signed by
the government of the parties and ratified by their parliaments
and in some cases incorporated into domestic law before entering
into force in respect of that country. In the case of European Union-negotiated
readmission agreements, under the Nice Treaty, the European Parliament
was consulted and gave a non-binding opinion. This has changed with
the Lisbon Treaty under which the agreements will have to be ratified
by the European Parliament (Article 216). Readmission agreements
concluded by the European Union are not so-called “mixed agreements”,
and consequently do not require separate ratification by member
states’ governments or parliaments.
24. Statistics on the number of returns enforced with the help
of readmission agreements are hard to obtain. States have not assembled
statistics or are reluctant to publish them. When statistics are
published they most often show returns in general and are not broken
down by the number enforced under readmission agreements.
25. Some figures have, however, been provided by states responding
to the rapporteur’s questionnaire. The European Union readmission
agreement with Russia entered into force on 1 June 2007 (the provision
in respect of third-country nationals will enter into force only
on 1 June 2010). Despite having signed bilateral agreements with
a few states only, in order to implement the European Union readmission
agreement Russia had been applying it in practice in respect of
Russian citizens illegally present on the territory of European Union
member states. As at May 2009, Russia had received 2 025 readmission
requests from 16 European Union member states. Of the 820 requests
granted, 211 Russian nationals had returned. Almost a third of the people
readmitted by Russia attempted to go back to the countries from
which they had been returned.
26. Italy states in its reply to the questionnaire sent out by
the rapporteur that in 2008, 8 651 readmission requests were made
by Italy, of which 8 340 were accepted. The total number of returned
foreign citizens in 2008 in Italy was 9 606. A great majority were
thus returned under readmission agreements. It should be noted that
in 2008 in Italy, an additional 46 391 expulsion or rejection decisions
were taken in respect of irregular migrants, but which could not
be enforced. The non-enforcement was due to the fact that the migrants
in questions lacked passports or other valid travel documents. Serbia
replied to the rapporteur’s questionnaire that, under its 17 bilateral
readmission agreements, in 2007, the country received 2 577 readmission
requests of which 2 465 were accepted. The corresponding figures
for 2008 were 1 572, all of which were accepted. Spain has replied
that it is party to 24 readmission agreements. In 2007, a total
of 55 938 persons were expelled or refused entry into Spain. Of
these returns, 6 248 took place under readmission agreements. The corresponding
figures for 2008 were 46 426 and 6 178.
3. Human rights concerns
associated with readmission agreements
3.1. Introduction
27. The removal of a migrant from a country against his
or her will is normally the result of a return decision taken under
national law. If the country in question is a member state of the
European Union, the legislation under which the decision is taken
should be based on the European Union Returns Directive.
Readmission agreements
are an instrument used to enforce such a decision. Consequently,
the agreements are implemented only once the competent authorities
of the sending country have finally established that a person does
not have a right to stay in that country.
28. Although countries have the prerogative to decide who shall
be allowed to enter and reside in their territory, a decision to
expel an individual might still be in violation of that person’s
human rights as guaranteed by the European Convention on Human Rights
and other human rights instruments. This is the case if, for example,
upon arrival in the country to which he or she is returned there
is a risk that the individual will be subjected to torture or inhuman
or degrading treatment as defined in the case law of the European
Court of Human Rights, or will be deprived of basic social rights,
particularly if sent to a country which is not his or her country
of origin, thus being put in an unsustainable situation. Furthermore,
an expulsion can be a violation of the country’s obligations under
the 1951 Geneva Convention, if an individual faces persecution on
return. Also the process leading up to the enforcement of an expulsion,
including the removal of the individual, may give rise to human
rights concerns.
29. Those who advocate the utility and harmlessness of readmission
agreements claim that it is not relevant to ask whether readmission
agreements are in conformity with human rights or not. If a human
rights issue arises – and it might very well do so – this happens
when taking the return decision, not when enforcing that decision
through the application of a readmission agreement. This is because
the human rights concern should already
have
been taken into account when making the decision. Readmission agreements
provide a legal framework and are merely an instrument facilitating
return. Readmission agreements even provide transparency in the
sense that the procedural conditions for readmission are clearly
stated prior to the enforcement of a return decision. If implemented
with care, the agreements may contribute to reducing the migrant’s
period of uncertainty or detention. Amnesty International, for example,
is not in principle opposed to readmission agreements.
30. The critics of readmission agreements claim that it is in
fact relevant to question the human rights neutrality of readmission
agreements. The argument is that one cannot isolate the different
links in the chain that lead to the return of a person – a return
that may be questionable in terms of human rights – but have to see
the process as a whole. Readmission agreements are part of this
whole, it is claimed, and should not be detached from it. The existence
of a readmission agreement may also encourage the taking of bad
return decisions, and consequently serve as a catalyst for the enforcement
of such questionable decisions. Here it is particularly important
to focus on the rights of third-country nationals, who are at greater
risk of finding themselves in a situation of vulnerability and might
lack access to an asylum system.
31. Furthermore, certain readmission agreements contain provisions
on accelerated procedures at borders, which require examination
from a human rights point of view. Moreover, the speed with which
a return is enforced under readmission agreements might prevent
the returnee from properly accessing all legal remedies that would
or should be at his or her disposal. Important questions also remain
the monitoring and collection of information on readmission agreements.
32. Besides the formal readmission agreements in place between
countries, there is also a strong increase in other kinds of informal
readmission arrangements, such as memoranda of understanding, exchanges
of letters, informal co-operation and concerted practice between
border authorities or between diplomatic personnel. Agreements on
voluntary returns also include readmission elements. These kinds
of less transparent practices constitute a particular threat to
the human rights of irregular migrants and should be carefully monitored.
33. A particular problem can arise in situations where a readmission
request is made to a state, which has succeeded another state during
the period which the returnee has spent in the requesting country,
or to a breakaway region, whose status under international law has
not yet been finally decided. This issue should be considered by
states when signing and implementing readmission agreements.
34. In 2007, the Assembly adopted its
Recommendation 1807 (2007) on regularisation programmes for irregular migrants
(rapporteur: Mr John Greenway, United Kingdom, EDG). Today in Europe,
there are millions of irregular migrants who cannot be expected
to go back to their countries of origin. Considering this, the recommendation
urges member states to examine the option of regularisation programmes
as part of an overall strategy for tackling irregular migration.
This option should also be kept in mind when discussing the issue
of return under readmission agreements. The rapporteur encourages
member states to consider regularisation as an option to return.
3.2. Human rights clauses
35. The first three readmission agreements concluded
by the European Union include a summary “non-affection clause”.
The clause provides that the agreement shall be “without prejudice
to the rights, obligations and responsibilities of the Community,
the member states and [the third country], arising from international
law and, in particular, from any applicable international convention
or agreement to which they are parties”. Subsequently, starting
with the 2004 agreement with Albania, explicit references to human
rights instruments, such as the European Convention on Human Rights,
the 1951 Geneva Convention and the 1984 United Nations Convention
against Torture, were introduced into some readmission agreements.
Bilateral agreements can include similar clauses, which might, however,
not always be implemented. This is the case in countries where the
readmission procedure often takes on an informal character.
36. Readmission agreements normally do not include safeguards
with regard to the non-application of the agreement in individual
cases. The reason for this is presumably, that if concerns with
regard to human rights existed, the return decision should not have
been taken in the first place, and the readmission agreement thus never
been applied.
37. Another problem might arise. Considering that countries normally
wish to readmit as few migrants as possible, setting out as a prerequisite
for readmission that the readmitting country respects human rights, would
not serve as a positive incentive for achieving that objective,
but rather encourage the readmitting country not to respect human
rights (in order thus to prevent unwanted returns).This is, however,
more of a theoretical observation, and there should be nothing preventing
enhancing protection by inserting safeguards also into the readmission
agreements, which the rapporteur in fact encourages. This way migrants
would be provided enhanced safeguards and the human rights commitments
of the parties clearly manifested. A starting point should be that
sending countries make sure, when negotiating readmission agreements,
that the relevant international instruments are ratified by receiving
countries, but also that they are correctly implemented.
38. In the present discussion, it should be remembered that the
contracting parties are of course already under the obligation to
respect human rights as a result of their being parties to international
human rights treaties. The need to include human rights in negotiations,
however, arises from the fact that these obligations are not always
respected. Forced returns from Council of Europe member states to
states with long-standing, proven records of torture have been an
issue of particular concern for the Council of Europe Commissioner
for Human Rights, who has highlighted them.
3.3. Might readmission
agreements be a catalyst for return decisions which breach human rights?
39. Might the existence of a readmission agreement be
a necessary condition for, or even encourage, authorities to take
questionable return decisions – decisions which would thus not have
been taken, had the agreement not been in place?
40. An example of such a situation could be the return from western
and central European countries to Serbia of asylum seekers originating
from Kosovo and Serbia proper, many of whom are Roma.
These returns
have been questioned and criticised in view of the UNHCR 2006 and
2009 recommendations on the return of Roma and related groups to
Kosovo or Serbia proper.
The position of the UNCHR
was, and still remains, that the social conditions in Kosovo and
in Serbia proper, and as far as Kosovo is concerned also the security
situation, is such that Roma and related groups should not be returned
there.
41. As of October 2009, Kosovo has negotiated readmission agreements
with several member states and signed with some, including Germany
and France. In the opinion of the Council of Europe Commissioner
for Human Rights, Kosovo is under political pressure to accept these
agreements without having the budget or the capacity to receive
the returnees in dignity and security.
According to
the Director of the Kosovo Department for Border Management, Asylum
and Migration (DBAM), Germany is prepared to request readmission
for 18 500 Kosovans. Of these, 15 000 are minority members and amongst
them, some 11 500 Roma. It may be assumed that the entry into force
of a readmission agreements will be a precondition for, or at least
greatly facilitate, return of these individuals.
Since
1999, 92 000 Kosovans have returned voluntarily from Germany, whereas
22 000 have been returned forcibly, according to the German Minister
of the Interior.
42. In 2002, Germany and the then Federal Republic of Yugoslavia
signed a readmission agreement that regulated the return of individuals
who did not have a legal basis to remain in Germany, many of whom
were Roma. It may be assumed that the entry into force of this readmission
agreement was a precondition for, or at least greatly facilitated,
return of these individuals to conditions that might have been unsustainable
in social and economic terms, albeit not directly in terms of physical
security. At the time of writing, no statistic was available to
the rapporteur with regard to the number of readmissions effected
from Germany to Serbia under this readmission agreement.
43. In view of the position of the UNHCR and the Commissioner
for Human Rights described above, it is thus legitimate to question
these readmission agreements as such, in terms of human rights.
The rapporteur is of the opinion that the return of irregular migrants
to Kosovo and Serbia proper, and the impact of the apparently crucial
readmission agreements in this process, should be examined further.
3.4. Third-country nationals,
access to asylum in transit countries and the problem of chain refoulement
44. The most sensitive issue in the context of readmission
agreements is their role in the return of irregular migrants to
countries of which they are not citizens. Third-country nationals
risk becoming victims of “chain refoulement”
to their country of origin. This means that a migrant eventually
has to return to his or her country of origin, without having had
the chance to submit an asylum application or to have it reviewed
either in the returning country or in the transit country to which
he or she has been readmitted. Third-country nationals should be
protected from chain refoulement.
45. It should, however, also be understood that it might be difficult
to implement a readmission agreement with regard to third-country
nationals. The reason is that it is very difficult for the sending
country to meet the criteria and provide the evidence as required
by the agreements. Essentially, it will only be possible to seek readmission
of a third-country national if he or she is caught in the act of
illegally crossing the border or is in possession of a visa or residence
permit from the transit country. An official working for the European Commission
has informed the rapporteur that the readmission of third-country
nationals under European Union readmission agreements has indeed
been very limited. Nonetheless, as the number of returns to transit countries
might be expected to rise, it is important to pay close attention
to this development.
46. States which request readmission sometimes claim not to be
responsible for the fate of the person to be readmitted, as regards
the possibility of accessing an asylum system. However, it follows
from the judgment of the European Court of Human Rights in the case
of
T.I. v. the United Kingdom,
that the sending state has the responsibility to ensure that procedural
safeguards are in place in the receiving state and that these are effective
in the individual case.
There is a need to look at
the transfer of responsibility of examination of asylum claims in
general, such as safe third-country policies. Although these policies
are not included in readmission agreements, the two systems work
together. Another important concern, pointed to by the European
Council on Refugees and Exiles (ECRE), is that readmission agreements
can act as effective barriers at the second stage of access to the
asylum procedure as they may facilitate a return in a very short time
span, thus preventing access to legal remedies.
47. Although the taking of the return decision might be seen as
the moment at which the human rights assessment should be made,
one should be aware that the situation in the readmitting country
might change between the taking of the return decision and its enforcement
through a readmission agreement.
48. Moreover, there might be cases in which an asylum seeker’s
application has not been examined on the merits, but has been rejected
on “safe third country” grounds. Readmission of an asylum seeker
will in such cases be sought without him or her having benefited
from an assessment of his or her individual risk situation. The
rapporteur strongly advises against this procedure and urges member
states always to assess the individual claims of asylum seekers.
The rapporteur also emphasises that asylum seekers whose claims
have not been examined on the merits should never be sent to a country
which is not their country of origin and in which they will not
be able to submit an asylum claim or have it examined. The person
concerned should of course also not be sent to the country of origin
without a prior negative decision on the asylum application, which
must first have been properly examined. Below are a few examples
in which the application of readmission agreements give rise to
concerns for third-country nationals.
49. Libya is a country to which many non-Libyan irregular migrants
are returned every year under bilateral readmission agreements.
Libya has not signed the 1951 Geneva Convention and lacks an asylum
system. Asylum seekers returned to Libya will thus face a situation
in which they cannot submit an asylum application. Recently, the
eyes of migration and asylum experts and the general public turned
to a situation in which Italy returned to Libya hundreds of irregular
migrants and possibly asylum seekers that were heading for the Italian shores.
The migrants were intercepted at sea and were not allowed to set
foot on Italian soil.
It appears that this
course of action was based on a bilateral readmission agreement
or a readmission clause between the two countries.
50. The Italian authorities have claimed that the vessels which
intercepted the boat people at sea carried mobile asylum determination
units. None of the applications were found to prompt the Italian
authorities to grant refugee status or complementary protection
and all the boat people were immediately returned to Libya. It is likely
that among those on board were people in need of international protection.
In 2008, an estimated 75% of sea arrivals in Italy applied for asylum
and 50% of them were granted some form of protection.
51. While recognising the particular pressure put on countries
at the borders of Europe in terms of migration, the rapporteur strongly
condemns any action taken by the member states of the Council of
Europe where migrants are turned away without having had the possibility
to pursue their right to submit an asylum application and to do
so effectively. In order for that right to be effective, for the
asylum seeker to be able to present his or her case properly, there
has to be sufficient time to prepare, to consult with experts and
legal counsel and to collect evidence. Being arrested in a boat
in the middle of the sea following a long and very hazardous journey is
not conducive to the formulation of a coherent asylum application,
even a preliminary one. The rapporteur doubts strongly that Italy
honoured its obligations under the 1951 Geneva Convention in the
case of the migrants pushed back to Libya.
52. Consequently, the rapporteur demands that similar operations
are stopped, hereinafter, that the relevant readmission agreements
between Italy and Libya be made public in their entirety and that
the situation is properly examined, also from the point of view
of the application of the readmission agreements. If readmission agreements
are a precondition for the said returns, albeit neutral in themselves,
they also have to be closely scrutinised and appropriately refashioned
or cancelled.
53. The application of the 2001 bilateral readmission agreement
between Greece and Turkey has given rise to concern. Under this
agreement, Iraqi and Iranian citizens have been returned from Greece
to Turkey. From Turkey some of the migrants were allegedly returned
to Iran or Iraq, having not had the opportunity to apply for asylum
in Greece or in Turkey. Turkey maintains limitations on the application
of the 1951 Geneva Convention to non-Europeans. Most of the returns
in question appear to have taken place, however, without application
of the readmission agreement.
54. A further country to which many irregular migrants are returned
under readmission agreements is Mauritania. In a 2008 report, Amnesty
International described the plight of these returnees.
In 2003, Mauritania agreed to sign an
agreement with Spain which obliges it to readmit onto its territory
not only Mauritanian citizens but also third-country nationals where
it has been “ascertained” or “presumed” that they have attempted
to travel to Spain from the Mauritanian coast. Several thousand
third-country nationals have been readmitted by Mauritania from
Spain. This has created problems for those returnees who wished
to submit an asylum application, since Mauritania practically lacks
a functioning asylum system. Mauritania also claims that the readmission
of third-country citizens who have subsequently been expelled from
Mauritania, has caused tensions with its neighbouring countries.
55. Ukraine, which is party to several bilateral readmission agreements,
as well as one with the European Union, has had problems with its
asylum system. Human Rights Watch has advocated that a “transition
clause” be inserted into the readmission agreement between the European
Union and Ukraine. Such a clause would have delayed any returns
of third-country nationals from the European Union to Ukraine until
Ukraine provided effective protection and guaranteed the human rights
of asylum seekers. However, no such clause was inserted into the
agreement.
56. The European Union is negotiating a framework agreement with
Libya which includes a readmission clause. The human rights record
and the presence of a well-functioning asylum system of countries
such as Algeria, China and Morocco, with which the European Union
wants to negotiate readmission agreements, also suffer from serious
flaws. With the exception of Libya, all North African countries
have ratified the 1951 Geneva Convention and they all have UNHCR
offices. However, none of these countries has its own asylum system
or a framework for the legal protection of refugees. Egypt is the
only country offering residence permits. In December 2008, Egypt
expelled 1 200 Eritreans without even allowing them into the detention
centre to which the UNHCR has access, where their refugee status
could have been assessed.
Member
states have also been willing to negotiate bilateral readmission
agreements with countries lacking a proper asylum system.
57. The rapporteur notes that the “Dublin system” implies that
every asylum seeker entering the European Union will have his or
her request assessed on substance at least once. The rapporteur
calls upon the member states of the European Union not to violate
this principle by returning persons to countries outside the European Union
without an examination of the asylum claim, and to comply with the
European Union qualification and procedures directives.
58. Furthermore, the rapporteur emphasises the importance of ensuring
that, before requesting readmission of an asylum seeker whose asylum
application has been rejected, the person in question has had access
to an effective remedy. An effective remedy according to the European
Court of Human Rights implies a review by an independent authority,
which has a suspensive effect. Readmission agreements should include
this requirement. Returning an asylum seeker whilst a court has
not yet decided on his appeal violates the principle of
non-refoulement and Article 13 of
the European Convention on Human Rights.
In
fact, European Union countries are obliged under Article 13 of the
returns directive to provide an effective remedy for irregular migrants
about to be returned.
3.5. Conditions upon
return either to country of origin or country of transit
59. The example of migrants returned to Kosovo or Serbia
proper outlined above illustrates a situation in which the returnee
faces difficult economic or social conditions upon return. It can
be suspected that the return will not be sustainable and that consequently,
the returnee might feel obliged to quickly leave the country again. If
the returnee is a third-country national or stateless, he or she
will have even greater problems than a national of the receiving
country. Vulnerable persons such as parents with young children,
elderly persons or single women are at greater risk. The same is
true for members of minorities such as Roma who suffer from systemic discrimination
in a number of Council of Europe member states. The rapporteur is
of the opinion that readmission agreements should contain additional
safeguards preventing the enforcement of returns which are likely
to be unsustainable.
60. The sending country should always assure access to minimum
economic, social and cultural rights for irregular migrants as long
as they are still in the sending country.
If
the irregular migrant cannot be sent to his or her country of origin
and the transit country to which he or she could be sent is not
likely to fulfil these rights, the sending country should refrain
from requesting readmission. The rapporteur is of the opinion that
it is contrary to the human dignity of irregular migrants to have
them removed to a country which is not their country of origin and
in which they are likely to be denied access to basic rights such
as the right to housing, health care, primary education, work and
social welfare, in particular if they can be supposed to become stranded
in that third country.
61. The International Organization for Migration (IOM) has informed
the rapporteur that almost a third of the people taken back by the
Russian Federation under readmission agreements attempt to return
to the countries from which they were readmitted. It would thus
seem essential to provide readmission-related assistance. Such assistance
should be outlined in readmission agreements. The Russian Government
has begun a six-month evaluation programme for returnees under the
readmission agreements. It is designed to help identify their needs,
especially in terms of employment and housing. So far, as of May
2009, IOM reports, none of the persons readmitted had found employment.
62. Human Rights Watch has found that Libyan security officials
typically arrest refugees and other migrants who are entering or
departing from the country at or near the borders. In both cases
the migrants reported physical abuse by Libyan police and prison
guards, sometimes allegedly resulting in deaths. There have been complaints
of overcrowding in detention facilities, poor sanitation and food,
absence of justification given for their detention and refusal of
access to a lawyer or legal review. Libya is a country that readmits
many migrants under readmission agreements.
63. In some countries, for example Morocco or Tunisia, leaving
the country irregularly is criminalised, with the result that, upon
return, the readmitted person risks imprisonment or heavy fines.
This constitutes a breach of the human right to leave any country,
including one’s own.
In some
countries irregular entry by an alien is also criminalised. If the
person concerned is returned to that country after having moved
on, thus as a third-country national, he or she risks being punished
upon return to the transit country. The rapporteur is of the opinion
that returns should not be enforced to countries in which these
scenarios are likely to occur and that, therefore, readmission agreements
should not be used for such returns.
64. A problem for irregular migrants who are returned to their
country of origin has been pointed out by the UNHCR. It has been
noted that governments in countries under pressure to readmit individuals
might take a different approach to recognising citizenship. In some
cases the authorities in a country asked to readmit citizens have
denied that these people are actually nationals of their state.
The UNHCR has stated: “Denial of readmission could, in some instances,
amount to de facto expulsion of a national or a stateless person
by his or her own country, which is prohibited under international
law. Measures designed to evade these international obligations,
including administrative and bureaucratic obstacles and unwarranted
delays, are contrary to the general principles of international
co-operation and good faith. They may also have adverse effects
on the individuals concerned who, often detained, would benefit
from expeditious return.”
3.6. Stranded third-country
nationals
65. As described above, third-country nationals risk
becoming victims of chain
refoulement.
But they also run the risk of being stranded in the country of transit.
Not having the means to return independently, regardless of whether
the countries of origin and transit are favourable to their return,
they might find themselves unable to make use of the right to return
to their country of origin. On the other hand, it must also be remembered
that third-country nationals might be stranded in a country, precisely
because of the lack of a readmission agreement between that country
and their country of origin.
66. Although this might already be established practice, and already
provided for in the readmission agreements concluded by the European
Union, readmission agreements should contain a provision requiring states
to first make an attempt to return a person to his or her country
of origin. Respect of this obligation should also be verified in
every individual decision to transfer a person. Only when this fails
should he or she be returned to a transit country under a readmission
agreement. Even if states do follow this principle, the question arises:
How will the requested transit country be able to identify and return
the individual concerned to his or her country of origin, if the
requesting state, which has often far greater resources at its disposal,
has failed to do so? The readmitted third-country national may thus
risk either becoming stuck with very limited rights and possibilities
in the transit country, or returned to his or her country of origin
without having had the chance to put forward an asylum application
or having had a fair assessment of such an application.
3.7. Externalised migration
control, border procedures and accelerated asylum procedures
67. The objective of readmission agreements is to facilitate
the return of irregular migrants. As such they have become an important
tool in the project of European countries to clamp down hard on
irregular migration. Readmission agreements can also be seen as
an element in the much criticised “externalising of migration control”
policy of European countries.
The
fact that a country outside Europe is obliged under readmission agreements
to take back third-country nationals which have passed over their
territory works as an incentive for it to intensify its border controls.
Added to this is pressure exerted by the European Union and individual member
states (in terms of trade, aid, visa requirements, political support)
vis-à-vis the countries in question. There is serious ground for
fearing that this shifting of responsibility can indeed lead to
a better border control, but without the necessary safeguards for
asylum seekers. This potential consequence should be of concern for
the European Union. Transit countries should thus be assisted in
organising access to a proper asylum procedure.
68. European Union neighbouring countries are experiencing increasing
numbers of asylum seekers and other migrants in transit trying to
reach the European Union. The European Union is pursuing partnerships
with countries that do not have systems for handling migrants and
asylum seekers. Although they are not necessarily “safe countries,”
it is expedient for the European Union to characterise them as such.
Irregular migrants are returned to these countries under readmission
agreements. In addition to the risk thus faced by individual asylum
seekers and other migrants as a result, a heavy responsibility is
put on these states for the identification, apprehension, detention,
and return of migrants, as well as the responsibility for identifying asylum
seekers and providing them with a full and fair asylum determination
procedure.
69. The IOM has provided the rapporteur with a study on Albania,
illustrating the problems faced by a country which is obliged to
implement readmission agreements with regard to third-country nationals.
The main problem identified in Albania in the course of implementing
readmission agreements was a serious lack of exchange of information
between, on the one hand, the requesting state, and, on the other
hand, Albania and neighbouring countries. Furthermore, the Albanian
authorities were faced with a massive number of returnees at border
points, and were unprepared to respond to the needs of such returnees.
70. The readmission agreements between the European Union, on
the one hand, and Russia and Ukraine, respectively, on the other,
entered into force on 1 January 2008 and its provision with regard
to third-country nationals entered into force on 1 January 2010.
These two agreements contain provisions which allow for the request
of readmission within two working days following the apprehension,
within 30 kilometres from the border between the two countries in
question, of a migrant having illegally crossed the border. A reply
is required within two days of the reception of the request and
the person concerned must then be returned within two working days
from the date of the reply. It can be assumed that apprehension
will take place predominantly on the territory of the state party
to the agreement which is not Russia or Ukraine.
71. This arrangement is a cause for concern, since the very short
time during which the person concerned is allowed to physically
stay in the country of destination might be too short for him or
her to lodge an asylum application. If the asylum seeker actually
manages to submit such a claim, it is of course of utmost importance that
the readmission procedure be halted until the application has been
properly evaluated. Nevertheless, with the very narrow time frame,
there is a greater risk that an application is ignored, in particular
if submitted to border guards that might not have the right education
to deal with such applications or that a claim is dealt with without
a proper examination or an effective remedy.
72. A study carried out by Human Rights Watch has indicated that
upon entry into force of the readmission agreements between Ukraine,
and Poland and Slovakia respectively, Polish and Slovak border police intercepting
people arriving from Ukraine sent them back within forty-eight hours
without having properly attempted to ascertain their legal status
or whether they needed international protection.
The
rapporteur emphasises the importance of compliance with the relevant
European Union directives and with the principle of
non-refoulement. Furthermore, the
readmission agreements in question should be interpreted in a broad way
and implemented under close monitoring. All persons in need of international
protection should immediately be provided with adequate information
on the asylum procedure in a language they understand, be given
sufficient time to state whether they wish to submit an asylum application
and to do so.
3.8. The need for monitoring
and training
73. It is the rapporteur’s understanding that there is
currently no particular monitoring process in place as far as the
implementation of returns under readmission agreements are concerned.
In order to ensure that readmission agreements do not contribute
to the abuse of the human rights of irregular migrants, their implementation
should be closely monitored, including the situation following return
of an irregular migrant. As far as European Union member states
are concerned, the rapporteur therefore welcomes Article 8.6 of
the European Union Returns Directive, which provides that “member
states shall provide for an effective forced-return monitoring system”.
74. All readmission agreements should contain clear provisions
protecting the rights of irregular migrants and asylum seekers.
These must include their rights to liberty and freedom from arbitrary
detention, protection against torture or other ill-treatment, their
rights to access to a fair and satisfactory asylum procedure, and protection
from refoulement and return
to a country or territory where they would be at risk of serious
human rights violations. Monitoring should be aimed at the respect
of these provisions.
75. It is, however, difficult to put monitoring in place, since
it has proven to be very costly. Monitoring must be independent
and NGOs could be entrusted with the task. Also parliamentarian
delegations from international organisations could carry out monitoring
in countries that readmit migrants under readmission agreements.
The rapporteur has been informed by staff at the European Commission
that a monitoring committee – a “Joint Readmission Committee” –
meets on a regular basis to consider readmission agreements and
the relation between European Union readmission agreements and bilateral
ones. These committees, however, examine technical issues with regard
to these agreements and not their implementation. The rapporteur
is of the opinion that the mandate of this committee could be extended
to encompass issues concerning human rights protection.
76. It is important to ensure that all civil servants and others
involved in the handling of asylum applications are well trained
in their tasks and in human rights and refugee law. This of course
also applies to the implementation of readmission agreements. Some
initiatives and co-operation programmes already exist, with a view
to training personnel from readmitting countries in the implementation
of readmission agreements. For example, the “Budapest Process” organised
two seminars in Warsaw in September 2007 and 2008 on the topic of
returns and readmission, and a colloquy in August 2009 in Zagreb
entitled “Practical implementation of readmission agreements in
the South East European region”. In March 2010 the “Söderköping
Process” will organise its first conference, which will examine
the return politics of the participating states and the practical application
of European Union readmission agreements and readmission agreements
with regard to Belarus, Moldova and Ukraine. The rapporteur is of
the view that training of personnel handling readmission agreements should
be institutionalised, made permanent and subject to high quality
demands.
3.9. Statistics and
transparency
77. Statistics on the number of returns enforced with
the help of readmission agreements are difficult to obtain. States
have not assembled statistics or are reluctant to publish them.
Many readmission agreements are not public at all. The situation
of returnees is rarely evaluated and even less so with regard to
the effect that the implementation of readmission agreements has
had on their situation. This lack of information prevents a thorough
evaluation of these instruments and steps should be taken to remedy
this situation.
78. It would be important, as a starting point, to have statistics
on the extent to which readmission agreements are being implemented
and the degree to which they are effective, in the sense that readmission is
being granted and enforced. Secondly, it would be useful to have
statistics on the character of those returns: How long do they take?
Are they preceded by detention? Are the returnees citizens or not
of the country to which they are readmitted? What happens to them
following return? To what extent do returnees make renewed attempts
to migrate? The rapporteur encourages the governments of the member
states of the Council of Europe and the European Commission to work
together to set up a system for the collection of such statistics
and information. This should be co-ordinated with the setting up
of a monitoring mechanism.
3.10. The negotiation
process
79. The negotiation of readmission agreements often involves
two parties which have different bargaining positions. For European
Union member states the added value of European Union-brokered readmission agreements
as compared to those negotiated bilaterally is that the bargaining
position of the European Union is stronger than that of individual
countries. But what are the parties actually bargaining about? The
starting point is that the typical returning country wants to return
as many irregular migrants as possible, whereas the readmitting
country wishes to readmit as few as possible. Since countries have
an obligation to readmit their own citizens, the crucial issue will
thus be the readmission of third-country nationals.
80. NGOs and others wish to highlight that the inequality in strength
between the negotiating parties might lead to countries with a weaker
bargaining position being “exploited” by the stronger, returning
countries. Others, again, argue that this it not at all the case,
or even that the situation is in fact the contrary, and that the “weaker”
countries are in fact exploiting the stronger ones in order to obtain
benefits of different sorts. The rapporteur is of the opinion that
criteria on the respect and protection of human rights for the selection
of countries with which negotiations could be opened should be defined
beforehand.
81. An example of what is offered by a country which can be expected
to return migrants under a readmission agreement is provided on
the website of the French Ministry for Foreign Affairs. It is explained
that France decided to grant Pakistan concessions for entry of goods
onto the European market, and that there were agreements with it
covering the fields of development, science and the environment.
This agreement was signed in 2005, but its implementation depended
on Pakistan’s signing a readmission agreement. This shows the bargaining
process in practice on a bilateral level. Pakistan has not ratified
the 1951 Geneva Convention.
82. As far as human rights are concerned, representatives of the
European Commission claim that in the European Union context the
negotiation of a readmission agreement is not the right place for
negotiating with third countries on human rights. The issue of human
rights should rather be introduced in connection with negotiations
on, for example, visa rules. The rapporteur can understand this
argument. In the case of visa negotiations, it is the European Union
that offers something (liberalised visa requirements) for which
it can claim something in return (enhanced de facto respect for
human rights). In the case of negotiations on readmission agreements,
the situation is reversed. Here it is not the sending, butthe readmitting party that provides
a service, namely to readmit third-country nationals who have been
deemed undesirable in the European Union. This is thus not the right
place to demand an additional obligation.
83. This understanding is relevant to the comprehension of readmission
agreements, but does not mean that human rights clauses should be
excluded from them. Insisting on the insertion of such clauses could
make it harder to achieve results, following the argument in the
previous paragraph. However, the European Union must ensure these
safeguards. The hesitation of the receiving country to insert these
clauses can rightly be regarded as a negative indication. In some
cases the readmission agreements are only one element of more extensive
negotiations including many other topics, such as trade and visa
arrangements, in which the human rights aspects may be easier to
include. Transparency in all negotiations is vital.
84. The following facts stem from the replies to the questionnaire
sent out by the rapporteur to governments of member states as part
of the preparations for the report and illustrate the topic of negotiations
on readmission agreements. Germany, Italy and Poland have been chosen
as examples.
85. Germany noted that countries of origin and transit present
problems in negotiating readmission agreements and their implementation
primarily due to domestic political factors (for example, frequent
change of government) as well as economic instability (such as natural
disasters or financial crises).
86. The Italian authorities indicated that problems arise mainly
in the implementation of readmission agreements. These problems
are usually caused by a lack of collaboration between the parties.
The Italian authorities indicated that the other parties to readmission
agreements did not respect the procedures and modalities for the
application of the agreements (interviewing the person to be readmitted,
answering the application of readmission, issuing travel documents
within the established deadlines, providing written motivation in
case of refusal of the readmission application).
87. Poland sees difficulties both in initiating negotiations,
which sometimes requires political or economic incentives, and in
the implementation of agreements. Implementation problems arise
with respect to receiving answers to readmission requests, confirmation
of citizenship and obtaining adequate travel documents for returnees
on time. Poland notes, however, that the situation is improving.
88. The German authorities indicate that they do not make direct
links between incentives and readmission agreements, as to do so
would contradict the principle that countries of origin are obliged
to readmit their own citizens without any precondition. Nonetheless,
the German authorities state that experience has shown that in relations
between countries of origin, transit countries and countries of
destination, good co-operation, for example in the field of readmission,
can contribute to favourable conditions in many areas.
89. Italy offers more open and direct incentives to foster co-operation
on readmission, and has often offered countries reluctant to conclude
readmission agreements due to their economic, social and political
costs, preferred quotas for work entry visas and technical assistance
programmes, based on the supply of equipment. Looking at the high
number of readmission requests lodged by Italy (see paragraph 26)
and the high success rate, this policy seems to work quite well.
Poland offers technical assistance and an exchange of good practices.
For example, in 2008 the Polish Ministry of the Interior hosted
experts from Sierra Leone within the framework of a project aimed
at enhancing Sierra Leone’s border services’ capabilities and to
facilitate dialogue between the migration services of both countries.
Poland, Italy and Germany all seek to promote voluntary returns.
4. Conclusion and
proposals
90. It is important in the evaluation of readmission
agreements not to confuse, on the one hand, one’s standpoint as
regards migration policy and, on the other hand, the mainly legal
issue of the human rights compatibility of readmission agreements.
The rapporteur sees the benefits of readmission agreements from the
point of view of migration management and understands that, at least
on the surface, they are neutral. Readmission agreements provide
foreseeability, in the sense that the conditions for readmission
are clearly stated prior to the enforcement of a return decision.
If implemented with care, the readmission agreement may contribute
to rendering the return process more humane by shortening the period
of uncertainty of the person concerned, as well as the period in
detention. The view that readmission agreements are a positive aspect
of migration policy would necessarily be accompanied by the view
that there would not be serious human rights concerns with the agreements.
91. Some points should be raised as concerns the human rights
implication of these agreements. The existence of readmission agreements
might accelerate the taking of bad readmission decisions, as has
been the case with returns of, for example, Roma from western Europe
to Serbia and other countries. Once again, the readmission agreement
as such is neutral and the problem relates to the decision to expel
the people concerned. Nevertheless, since readmission agreements
have been a necessary condition for the implementation of these
decisions, they should at the very least include clauses that reiterate
the obligations of state parties in terms of human rights and asylum
and make the honouring of these obligations a precondition for the
use of the agreement.
92. The readmission agreement should thus reiterate the obligation
of both the sending and the receiving countries to respect the human
rights of a person readmitted to its territory, and not to request
readmission if it can be suspected that the other party will not
respect, or will be unable to protect, the human rights of these persons.
Special attention should generally be paid in negotiating, drafting
and implementing readmission agreements to the situation of third-country
nationals.
93. It should be ensured that a transit country to which a person
is readmitted offers him or her effective access to a proper asylum
procedure and is notified by the sending country if an application
has not yet been examined in substance or if the asylum seeker has
not been able to profit from an effective remedy. The rapporteur
stresses that, even if the safe third country concept is applied,
there should be an individual assessment and an effective remedy
for the asylum seeker, before returning him or her. There is a need
to look at the transfer of responsibility of the examination of
asylum claims in general. This is linked to arrangements which are
normally not included in readmission agreements, such as safe third-country
policies. However, the two systems work together. It is necessary
to ensure that asylum applications and appeals against negative asylum
decisions always have suspensive effect, which is currently not
the case in many member states. It would be advisable to have special
agreements in place on the determination of nationality.
94. The rapporteur strongly condemns any action taken by the member
states of the Council of Europe which results in asylum seekers
being turned away or “pushed back” to countries of origin or transit
countries, without having had the possibility to effectively present
asylum applications. This applies even more soin
the case of receiving countries which lack an adequate asylum system.
95. Criteria on the respect and protection of human rights for
the selection of countries with which negotiations could be opened
should be defined beforehand. These criteria should include the
presence in these countries of relevant human rights safeguards
and the respect of the principle of non-refoulement.
96. Member states who request readmission should do so with regard
to a third-country national only if it has not been possible to
return him or her to their country of origin and, concerning asylum
seekers whose claim has not been assessed substantially, the transit
country must be a third safe country for that particular person.
97. When requesting a transit country to readmit an irregular
migrant, it should first ensure that the requested country is able
to offer the returnee a sustainable situation, or, as a minimum,
ensure access to basic social rights. If these conditions are not
fulfilled, the sending country should refrain from enforcing the
readmission and, in any case, grant the migrant access to minimum
social rights as long as he or she remains on its territory.
98. As readmission agreements with regard to third-country nationals
have been applied only quite recently, only a small number of third-country
nationals have been transferred to a transit country on the basis
of such an agreement. However, this might rapidly change. As there
is no legal obligation for a transit country to readmit a third-country
national, the rapporteur would like to stress that there is a moral
question to address, namely whether member states of the Council
of Europe should shift their responsibility for irregular migrants
to countries that are normally in a worse position economically
and regarding the rule of law. Even if such countries have signed
an agreement on the readmission of third-country nationals, it is
not clear whether they can and will take due responsibility for
these people.
99. If the member states use “carrots” such as trade benefits,
assistance programmes and visa liberalisation, the transit countries
might well sign the agreements without taking the consequences for
the human dignity of the migrants into account. Member states should
therefore be aware of the impact of the arrival of huge numbers
of third-country nationals on these sometimes fragile countries.
Furthermore, they should be very careful to shift their own responsibility
with regard to migrants to other countries as part of a deal.
100. Member states of the Council of Europe and the European Union
would gain from working closely together with NGOs, who are often
very committed and have extensive knowledge of the relevant facts,
and with international organisations such as the UNHCR and IOM.
An exercise that could be undertaken in co-operation with civil
society is monitoring of the implementation of readmission agreements.
The rapporteur considers monitoring crucial to safeguard the interest
of the migrants and to gain a better understanding of the workings
of readmission agreements. It is important that monitoring is carried
out by independent powers.
101. The collection of statistics is also crucial. The rapporteur
encourages member states of the Council of Europe and the European
Commission to work together in order to compile national data with
a view to drawing up an annual report on the implementation of readmission
agreements. Countries must improve transparency in order to facilitate
the collection of statistics and the evaluation of readmission agreements.
This applies all the more so with regard to the numerous informal
readmission arrangements currently used by member states.
102. Since many countries, in particular readmitting ones, are
not always fully up to date with the procedure to follow in the
implementation of readmission agreements, it is advisable to develop
training programmes for readmitting countries and to follow up on
those already in place.
103. The rapporteur is convinced of the need to carry out further
investigation, both qualitative and quantitative, into readmission
agreements and their consequences. This is the only way of ascertaining
the human rights impact of these agreements.
***
Reporting committee: Committee
on Migration, Refugees and Population
Reference to committee: Doc. 11519, Reference 3429 of 14 April 2008
Draft resolution and draft recommendation unanimously
adopted by the committee on 28 January 2010
Members of the committee: Mr
John Greenway (Chairperson),
Mr Giacomo Santini (1st Vice-Chairperson), Mr Tadeusz Iwiński (2nd Vice-Chairperson),
Ms Tina Acketoft (3rd Vice-Chairperson),
Mr Francis Agius, Mr Pedro Agramunt, Mr Francisco Assis (alternate:
Ms Ana Catarina Mendonça,
Mr Alexander van der Bellen,
Mr Ryszard Bender, Mr Márton
Braun, Mr André Bugnon, Mr
Sergej Chelemendik, Mr Vannino Chiti, Mr Christopher Chope (alternate:
Mr Michael Hancock), Mr Desislav
Chukolov, Mr Boriss Cilevičs,
Mr Titus Corlăţean, Ms Claire Curtis-Thomas (alternate: Lord Donald Anderson), Mr David Darchiashvili
(alternate: Mr Guiorgui Kandelaki),
Mr Nikolaos Dendias,Mr Arcadio Díaz Tejera, Mr Tuur
Elzinga (alternate: Ms Tineke Strik),
Mr Valeriy Fedorov, Mr Oleksandr
Feldman, Mr Relu Fenechiu, Ms Doris Fiala,
Mr Bernard Fournier, Mr Aristophanes Georgiou, Mr Paul Giacobbi,
Ms Angelika Graf, Ms Anette Groth, Mr Michael Hagberg (alternate:
Mr Göran Lindblad), Ms Gultakin
Hajibayli, Mr Doug Henderson, Ms Anette Hübinger,
Mr Jean Huss, Mr Denis Jacquat,
Mr Zmago Jelinčič Plemeniti, Mr Mustafa Jemiliev, Mr Tomáš Jirsa, Ms Corien W.A. Jonker, Mr Reijo Kallio, Mr Ruslan
Kondratov, Mr Franz Eduard Kühnel,
Mr Geert Lambert, Mr Pavel Lebeda, Mr Arminas Lydeka, Mr Jean-Pierre
Masseret, Mr Slavko Matić, Ms Nursuna Memecan, Mr Ronan Mullen (alternate:
Mr Frank Fahey), Mr Gebhard
Negele, Ms Korneliya Ninova, Ms Steinunn Valdís Óskarsdóttir, Mr Alexey
Ostrovsky, Mr Evangelos Papachristos,
Mr Jørgen Poulsen, Mr Cezar
Florin Preda, Mr Gabino Puche, Mr Milorad Pupovac,
Mr Volodymyr Pylypenko, Ms Mailis Reps, Mr Branko Ružić,Mr Džavid Šabović,Mr Samad Seyidov, Mr Joachim Spatz,
Mr Florenzo Stolfi, Mr Giacomo Stucchi,
Mr László Szakács, Ms Elke Tindemans,
Mr Dragan Todorović, Ms Anette Trettebergstuen, Mr Tuğrul Türkeş, Ms Özlem Türköne, Mr Michał Wojtczak (alternate:
Mr Bronisław Korfanty), Mr
Marco Zacchera, Mr Yury Zelenskiy, Mr Andrej Zernovski,
Ms Naira Zohrabyan
NB: The names of the members who took part in the meeting
are printed in bold
Secretariat of the committee: Mr
Neville, Ms Odrats, Mr Ekström