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Resolution 1741 (2010) Final version
Readmission agreements: a mechanism for returning irregular migrants
1. Readmission agreements reiterate
and define a country’s obligation to readmit its own citizens and
set out the conditions under which states parties to such agreements
are obliged to readmit citizens of third countries who have passed
through their territory. They facilitate and expedite the enforcement
of return decisions in respect of irregular migrants and may also
function as an incentive for countries of origin or transit to enhance
their migration control. Depending on one’s viewpoint, readmission
agreements can either be considered an important element in the
migration management strategies of Council of Europe member states, or
as facilitators of questionable return decisions and part of the
criticised “outsourcing of migration control” of European countries.
2. It can be argued that readmission agreements provide transparency,
since they clearly state the procedural conditions for readmission
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 by facilitating and speeding up the
enforcement of return decisions. Advocates of readmission agreements
claim that these are neutral in terms of human rights and merely
a tool for the removal of irregular migrants. The stage at which
a human rights concern may arise is usually when the decision to
expel the person concerned, the return decision, is taken and not
when that decision is enforced by way of the readmission agreement,
unless the situation in the readmitting country has changed in the
meantime.
3. There is, however, a risk that readmission agreements pose
a threat, directly or indirectly, to the human rights of irregular
migrants or asylum seekers. This concerns, in particular, the risk
that the sending or the readmitting country fails to honour their
obligations under the Geneva Convention relating to the Status of Refugees
(the 1951 Geneva Convention) and its 1967 Protocol and the European
Convention on Human Rights (ETS No. 5) and then uses a readmission
agreement to enforce a flawed decision. The return process should
be seen as a whole, in which readmission agreements are one important
element.
4. The main cause for concern relates to the readmission of third-country
nationals. Irregular migrants who are returned to a country which
is not their country of origin might risk ending up in an unsustainable
situation. There is a risk that third-country returnees be subject
to so-called “chain refoulement”,
which means being shuttled back to their country of origin without
having had the possibility to submit an asylum application or having
had the asylum claim reviewed in any of the countries through which
they pass. Some readmission agreements provide for accelerated procedures
at borders, which might in effect hinder migrants from submitting
an asylum application or give rise to an assessment of poor quality.
5. 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. The situation of returnees
is rarely evaluated. This lack of information prevents a thorough
evaluation of these instruments.
6. It is essential to negotiate and apply readmission agreements
which take fully into account the human rights of the irregular
migrants concerned. Furthermore, it is crucial, in order to better
understand and evaluate these instruments, to collect data on their
effects and implementation. The Parliamentary Assembly therefore calls
upon Council of Europe member states to:
6.1. conclude readmission agreements only with countries that
comply with relevant human rights standards and with the 1951 Geneva
Convention, that have functioning asylum systems in place and that
protect their citizens’ right to free movement, neither criminalising
unauthorised entry into, nor departure from, the country in question;
6.2. comply fully with their obligations under the European
Convention on Human Rights, and in particular Article 3 thereof,
the 1951 Geneva Convention and other relevant human rights instruments and
to follow the 20 Guidelines on Forced Return of the Committee of
Ministers when readmitting an irregular migrant under a readmission
agreement, or when requesting the enforcement of a decision to return
an irregular migrant under such an agreement;
6.3. ratify and abide fully and effectively by Protocol No.
4 to the European Convention on Human Rights (ETS No. 46) which, inter alia, prohibits collective
expulsion of aliens;
6.4. abide by the Council of Europe Guidelines on human rights
protection in the context of accelerated asylum procedures;
6.5. ensure that, before a readmission agreement is put to
use, asylum seekers have had the possibility to submit an asylum
application, and the right to an effective remedy with suspensive
effect, which implies a review of facts and law by an independent
national authority;
6.6. verify that, if the member state applies the concept of
“safe third country” with regard to asylum seekers whose claims
are not assessed substantially, the country of destination is safe
for that particular asylum seeker, implying that it will respect
the human rights of the person concerned, provide access to a proper
asylum procedure and comply with the 1951 Geneva Convention;
6.7. include a provision in readmission agreements which requires
that a sending country always first tries to return a person concerned
to his or her country of origin before requesting readmission by
a country through which that person has merely transited;
6.8. include a provision into readmission agreements which
requires that the requesting country, prior to requesting readmission
by a third country, verifies that the readmitting third country
will grant the person concerned access to minimum social rights.
If this cannot be verified, readmission must not take place and
the requesting country shall instead give the person concerned access
to such rights as long as he or she stays in that country;
6.9. ensure that a readmitted third-country national does not
become stranded in a readmitting transit country without the possibility
to go back to his or her country of origin;
6.10. study the impact of provisions in readmission agreements
that provide for accelerated procedures with regard to migrants
apprehended close to the border between the parties, with a view
to ascertaining whether or not there are questionable practices
at borders;
6.11. take care that readmission agreements contain appropriate
legal safeguards to protect the migrants against any abuse of their
human rights and that the agreements are specific about their rights, in
particular as concerns vulnerable categories;
6.12. ensure that the country of origin of the person concerned
will not receive any evidence of or information on an asylum claim
lodged in the sending country;
6.13. ensure that readmission agreements provide for a system
under which the implementation of the agreement may be properly
monitored and evaluated, and that they provide for a public annual
report to be drawn up by the authorities of the readmitting country
including, as a minimum, statistical data on the fate of readmitted
persons (on issues such as detention, release, expulsion, access
to asylum system, etc.);
6.14. phase out older bilateral readmission agreements, replacing
them with more modern ones which fully respect the Council of Europe’s
human rights standards;
6.15. carry out quantitative and qualitative studies on the
functioning and impact of readmission agreements to which they are
parties, in readmitting as well as sending countries, in order to
ascertain whether they might result in human rights abuses;
6.16. ensure that readmission agreements are always made public;
6.17. avoid using informal readmission arrangements, or at least
ensure that the recommendations set out in this resolution are also
applied with regard to such arrangements;
6.18. seek co-operation with the European Commission in order
to set up adequate monitoring bodies and to co-ordinate the collection
and analysis of statistics in respect of readmission agreements;
6.19. set up training schemes for border guards, civil servants
and others involved in the implementation of readmission agreements,
in both sending and readmitting countries;
6.20. consider regularisation programmes as an alternative to
the return of irregular migrants, where appropriate.
7. The Assembly invites the European Union to take into account
the recommendations made in this resolution in negotiating and promoting
its readmission agreements, ensuring that these are consistent with relevant
human rights standards, in particular Article 3 of the European
Convention on Human Rights and Article 19 of the Charter of Fundamental
Rights of the European Union, and that they do not induce member states
to operate return policies which are contrary to these standards,
to make all statistics in respect of readmissions public and to
set up a monitoring mechanism with regard to readmission agreements.
In particular, the European Union is invited to:
7.1. properly consider the human
rights situation and the availability of a well-functioning asylum system
in a country prior to entering into negotiations on readmission
agreements with that country;
7.2. use its strong bargaining position to negotiate provisions
in readmission agreements that safeguard the human rights of the
persons to whom they are to be applied;
7.3. include in its readmission agreements as a condition for
their application, that an asylum seeker to whom the agreement is
applied shall first have had access in the European Union member
state to an effective remedy in the sense of Article 13 of the European
Convention on Human Rights, and that the agreements shall not be
applied until the competent authority has ruled on the asylum seeker’s appeal;
7.4. include in its readmission agreements as a condition for
their application, that third-country nationals are not sent to
transit countries where they might risk facing a situation threatening
their human dignity in terms of social rights;
7.5. instruct an appropriate body to monitor the implementation
by member states of European Union-brokered readmission agreements
and to provide relevant training to the European Union member states;
7.6. co-operate closely with its member states in the collection
and evaluation of statistics with regard to the implementation of
readmission agreements and ensure that these statistics are made
public;
7.7. examine the interaction between the rules of the “safe
third country” concept, the implementation of readmission agreements
and whether there are any flaws in the system;
7.8. study the impact of the signing of readmission agreements
in respect of third-country nationals as a condition for visa liberalisation
and co-operation, with regard to the goals of the European Neighbourhood
Policy and the international development policy of the European
Union.