Friday, 21 August 2020

Analysis of the United Kingdom’s Proposal for a UK-EU Readmission Agreement

 


Ben Hulme, PhD Warwick University

Among the collection of draft texts for the future UK/EU relationship released by the UK government in May 2020, one which has received little attention thus far has been the draft UK-EU Readmission Agreement. Readmission is the process by which an individual who did not fulfil, or no longer fulfils, the requirements for entry, presence or residence in a state, is returned to their state of origin or, in certain circumstances, to a third country.          

Although it is accepted customary international law that a state accepts the return of its own nationals, no such obligation exists towards those of a third country or who are stateless. Instead, the EU has sought to conclude readmission agreements which contain these additional reciprocal obligations, which is a contrast from the approach of many of its Member States who do not seek to include these additional obligations in their own bilateral agreements. For the UK, the only readmission agreement with provisions on third country nationals, but not stateless persons, is with Albania.

The readmission process under an agreement involves a state (the Requesting State) submitting a readmission application to the other state (the Requested State) to readmit either their own national, a third country national or a stateless person once their identity, nationality, presence or residence in the Requested State has been established. These criteria are normally satisfied by reference to an agreed list of common documents which can be submitted as evidence.

The increased media attention towards recent Channel crossings have raised the question of the UK’s options for future cooperation with the EU, in the event that some form of continuation of the Dublin Regulation is not negotiated and indeed, thus far we have seen little if no engagement from the EU on this. While a readmission agreement could form part of the solution (discussed here), its objectives are not the same as the Dublin Regulation. The Regulation establishes the criteria and mechanism to determine which EU Member State is responsible for an application for international protection. In contrast, and controversially, a readmission agreement does not distinguish between those individuals seeking international protection and those that are not. The Regulation is also solely concerned with third country nationals and stateless persons, whereas readmission agreements also include a state’s own nationals.  

The UK’s proposal cannot, in many respects, be viewed as a ‘standard’ readmission agreement. It represents a departure from the UK’s previous readmission policy, which, outside of its participation in 14 EU agreements (the status of which have not been confirmed post-transition period), has relied primarily on memoranda of understanding with third countries, supplemented by a small number of bilateral readmission agreements (such as with Algeria and the Republic of Korea). It is also a departure from existing EU readmission agreements. Although the core of the readmission process itself is identical, the UK’s proposal departs in its content and interpretation on other important elements, with several new provisions and alterations on data protection, governance, interpretation, non-affection and direct effect.

Preamble and Definitions

It cannot go unnoticed that, in its current form, the preamble to the draft agreement would make it only the second agreement (following Azerbaijan) concluded by the EU with a Council of Europe member that does not include a reference to the European Convention on Human Rights.  

In Article 1, on definitions, the UK has departed from its previous bilateral agreements by including a definition section, and departs from EU agreements in defining additional terms such as “personal data” and “child”. The agreement uses the term “British Citizen” to mean a British Citizen or a UK national who has the right of abode in the UK. The definition of a “border region” as being an area extending inwards for a maximum of 20 km from an external border, seaport or international airport is congruent with existing EU agreements. The border region definition is relevant for the purposes of an accelerated readmission procedure. It is important to also note that, due to the Common Travel Area, this agreement would not apply to the Republic of Ireland and therefore does not apply to the Irish border.

It must be further noted that, due to Protocol No 22, Denmark would not participate in any future UK-EU Readmission Agreement. 

Scope

Article 2, on the scope of the Agreement, is a new provision and, under 2(2) contains a new restriction on the obligations towards third country nationals. The Agreement would not apply to those third country nationals who left the Requested State more than five years before the Requesting State’s authorities gained knowledge of the individual’s presence, unless it can be established through the agreed documentary evidence to be negotiated under Annex 3. This is a significant departure from the common EU approach of whether the individual held a valid visa or residence permit issued by the Requested State at the time of their entry into the Requesting State.   

Readmission of Own Nationals

Under Article 3 of the proposal, the UK is obliged to accept the return of three categories of persons who did not or no longer fulfil the requirements of entry, residence or presence in an EU Member State: (1) British citizens; (2) unmarried children of British citizens regardless of their nationality and (3) spouses of British citizens, who do not have British citizenship, but have a right to enter or remain in the UK. It is, however, possible for the latter two categories of persons to possess an independent right to residence in a Member State which would prevent their readmission. In the event of a non-British spouse, it is also open for the UK to demonstrate that the marriage is not recognised under its national legislation. These obligations are replicated for the EU Member States and their nationals under Article 5 of the Agreement.

However, there is no obligation on the UK or Member States to readmit individuals who have renounced, lost or been deprived of their British/Member State citizenship since entering a Member State/UK. This is, however, an obligation under Article 1(2) of the UK-Korea Agreement of 2011 and indeed in most EU agreements (except Pakistan).   

If the readmission application is accepted, within three working days the British/Member State citizen concerned is to be issued with a valid travel document with a validity period of three months. What is most interesting in respect of the issuing of travel documents is that, if the document is not issued, or the return is not fulfilled within the period of validity of the document, the parties will accept the response to the application as the valid travel document.  

Readmission of Third Country Nationals and Stateless Persons

The UK, in Article 4, and the EU, under Article 6, commit to readmitting third country nationals and stateless persons who do not or no longer fulfil the requirements for entry, presence or residence in the other party. This is dependent on it being established that, at the time of the readmission application, the individual held a valid visa or residence permit in the Requested State. Otherwise, the individual must have illegally and directly entered the territory of the UK/Member State after having stayed or transited through the territory of the Requested State. This obligation is subject to three instances where it does not apply: (1) the individual had only ever been in airside transit in the Requested State; (2) the Requesting State had issued the individual with a valid visa or residence permit, unless they had been issued with a visa or residence permit of longer duration by the Requested State or (3) the individual has visa free access to the Requesting State.

It is common practice in EU readmission agreements for the entry into force of obligations on third country national and stateless persons to be delayed, often for two or three years, following own nationals and is subject to negotiation. This delay can be reduced or removed after the conclusion of an agreement through a decision of the Joint Readmission Committee (as was the case with Turkey).

The travel documents, validity and processes, are broadly the same for third country nationals, stateless persons and own nationals. However, although the parties will accept the response to the readmission application as a valid travel document for their own nationals, this is not the case for third country nationals and stateless persons, with the UK requiring the standard EU expulsion travel document. For Member States, there are two considerations. First, under Article 6(4) and (5), if a response is not received from the UK within the time limit, or the travel document’s validity expires, the standard UK travel document for expulsion purposes is to be accepted. The response to the readmission application is not accepted as a travel document. Second, under 6(3), if two or more Member States have issued a visa or residence permit to the individual, they are to be readmitted to the Member State that issued it with the longer period of validity or most recent expiry date. If such documents do not apply, the Member State from which they last exited is responsible under Article 6.  

These obligations are effectively a copy and paste exercise from previous EU readmission agreements.

Readmission Applications and Procedure

One significant absence from the principles listed under Article 7 of the Agreement is reference to an accelerated procedure. Instead, Article 19(1)(d) provides for the future negotiation between the UK and a Member State for an accelerated procedure, which typically reduces the amount of time after their apprehension that a Contracting Party may submit a readmission application. Of course, this proposal is the basis for a negotiation submitted by the UK, but the absence of an accelerated procedure in the text is curious considering that the UK government also represents the interests of British Overseas Territories such as Gibraltar and the Sovereign Base Areas in Cyprus, which share external borders with Spain and Cyprus respectively.  This links back to the wider issue in the negotiations as to the territorial application of the future relationship agreements and is an issue which would also have to be determined for the purposes of a UK-EU Readmission Agreement.   

The readmission application itself, under Article 8, contains details about the individual, unmarried children and/or spouse being readmitted, evidence of nationality, a photograph, any health requirements, protection or security information and, for third country nationals/stateless persons, evidence of their qualification for readmission. What has been added in Article 8(1)(2) is the requirement for evidence of connection or transit through the Requested State. This separate provision is unnecessary as it would already be satisfied under the preceding requirements. The application form would be subject to agreement and attached as an annex to the Agreement.

The provisions on the transfer itself, the method of transport (Article 12) and readmission in error (Article 13) are the same as those found in other EU readmission agreements.

Evidence and Time Limits

Articles 9 and 10 of the Agreement govern the evidential requirements in order to establish nationality and responsibility. Readmission agreements provide agreed lists of acceptable forms of evidence in the annexes, which are subject to negotiation. Therefore, in the proposal these have been left blank. In the absence of any agreed form of evidence for own nationals, provision is made under Article 9(3) for the Requested State to conduct an interview of the individual. For third country nationals and stateless persons, there is no provision for an interview but instead the lack of a visa or residence permit in any of their travel documents is enough evidence to establish that they entered or are present/resident unlawfully.

Article 11, on the relevant time limits for the application to be made after the authorities became aware of the individual (up to six months), the response to the readmission application (maximum 25 calendar days) and transfer time (up to three months after acceptance) are the same as those found under Article 11 of the EU-Turkey Readmission Agreement. However, these time limits differ between agreements, for example, the EU’s most recent agreement, with Belarus, requires a response to a readmission application to be given within 10 calendar days. On the other hand, the UK-Korea Agreement requires a response to an application within 20 working days under Article 3(4).    

Transit, Transport and Costs

The provisions on transit (Articles 14 and 15) concern the possibility that a third country national or stateless person may transit through the Requested State on their journey to another state of destination. As with other EU agreements, under Article 14(1), the Parties endeavour to reduce this procedure to instances where direct travel to the destination state is not possible. This requires an application for transit from the Requesting State to the Requested State as laid down under Article 15. While the particulars of the application are effectively the same as those contained in EU readmission agreements, one alteration which has been made can be found in 15(1)(b) on ‘the particulars of the person concerned’. Typically, examples of these are listed as: ‘given name, surname, maiden name, other names used/by which known or aliases, date of birth, sex and – where possible – place of birth, nationality, language, type and number of travel documents’. Instead, the UK’s proposal has removed these examples and classified it as an implementation issue to be determined by the Joint Readmission Committee. It is unclear why this is the case, why would this not be an issue for negotiation prior to the conclusion of the Agreement, rather than an issue to be dealt with later once the Committee is established? Especially considering that this is a standard provision in every EU readmission agreement.

A transit application may be rejected under Article 14(4) on the grounds that: (1) they face the real risk of torture, inhuman or degrading treatment or punishment, the death penalty or persecution on the grounds of the characteristics set out in the 1951 Refugee Convention in another transit state or destination state; (2) they will be subject to criminal sanctions in the Requested State or a transit state and (3) for reasons of public order, health, security or other national interests of the Requested State. 

As in other agreements, the costs of the readmission are borne by the Requesting State up to either the border crossing point at the external border or, if a transit operation, up to the external border of the destination state.

Data Protection

Here, the draft agreement falls far short in precision and detail in comparison to other EU and UK agreements. Article 17 states that:

‘The communication of personal data shall only take place if such communication is necessary for the implementation of this Agreement by the competent authorities of a Member State or the United Kingdom, as the case may be. The processing of personal data by a competent authority of the United Kingdom shall be subject to the domestic laws of the United Kingdom. Processing of personal data by a competent authority of a Member State shall be subject to applicable Union law and to the national legislation of that Member State’.

In effect, the UK is seeking for the governance of data under the Agreement to be subject entirely to the domestic law of the parties. The purpose of providing specific detail in a readmission agreement on data protection is for the clauses to be in addition to national rules, which ensures some form of common standard between parties (see for example, Article 11 of the UK-Albania Agreement or Article 17 of the EU-Turkey Agreement). Although reference is made to the communication and processing of personal data, there is no reference in the proposal to its collection.

Although the definition of personal data, provided in Article 1 of the Agreement, corresponds to Article 4(1) of the General Data Protection Regulation, EU readmission agreements specify the type of personal data which can be transferred between parties. These are: (1) the individual’s particulars such as date and place of birth, sex, given name and surname, nationality etc; (2) passport, identity card or driving licence; (3) stop-overs and itineraries and; (4) any other information necessary for identification. In its current form, Article 17 does not specify the type of personal data which can be transferred.

The UK’s approach prompts three further observations. First, what is the process to be followed if the data transferred is inaccurate or incorrect? Second, EU agreements allow for the party which has communicated the personal data to request, from the receiving party, information as to how that data has been used and any results from its use. Again, such a clause is missing from the UK’s proposal, yet it has been consistent EU and UK policy to include such a provision. The final observation is, in which form shall the personal data be stored? EU agreements require that any personal data be held in a form which allows for identification only for as long as is necessary.

Non-Affection Clause

Absent from the UK’s proposal is a non-affection clause, and here we see a difference in approach between the parties. Such clauses are common in EU agreements and have been included to varying degrees of detail in UK agreements.

Such non-affection or ‘without prejudice’ (Article 17 EU-Cape Verde Agreement) clauses state that the agreement does not prejudice those obligations, responsibilities or rights provided for by international law. The precise details in these clauses differ from agreement to agreement. EU agreements with states such as Turkey (Article 18), Russia (Article 18) and Bosnia and Herzegovina (Article 17) contain lists of relevant international instruments such as the European Convention on Human Rights (ECHR), 1951 Refugee Convention and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). On the other hand, the EU-Pakistan Agreement, under Article 15, does not specify any applicable international instruments.  

The absence of a non-affection clause leaves the only references to international human rights instruments in the preamble, which cites the 1951 Refugee Convention and the Universal Declaration of Human Rights. This means that there is a complete absence of any reference to the ECHR and its rights in the UK’s proposal. Although reference to the ECHR is missing from the preamble to the EU-Azerbaijan Agreement, reference is still made to it in that agreement under the fundamental principles in Article 2. This absence from the draft cannot be separated from the wider talks in the negotiations on the UK’s future compliance with the ECHR. This is because non-affection clauses do not create new rights or obligations, instead, they address a scenario in which a conflict arises between the agreement and a party’s existing international obligations.

Indeed, the UK previously recognised this in its agreements with Albania (Article 21) and the Republic of Korea (Article 10). In the UK-Switzerland Readmission Agreement, the non-affection clause did make express reference to the ECHR (Article 22(c)) (this agreement, however, did not enter into force).

Governance, Interpretation and Dispute Resolution

As with other EU readmission agreements, Article 18 proposes the establishment of a Joint Readmission Committee, with the role of overseeing the application and implementation of the Agreement. On this Committee, the UK would be represented by its officials, and the EU by the Commission and assisted by Member State experts. The first four functions listed in the provision are the standard purposes listed in all EU readmission agreements (monitor its application, decide on implementing arrangements, exchange information on implementing protocols and recommend amendments to the agreement and annexes), however, the fifth function is new. The Committee would also fulfil a dispute resolution role concerning the interpretation and application of the Agreement in accordance with Article 24.

Article 24, on dispute resolution, proposes that disputes would be resolved by a decision of the Committee, which would be binding on the parties. This must be read in conjunction with another new provision, under Article 23, on the interpretation of the Agreement in accordance with ‘the customary rules of public international law, including those in the Vienna Convention on the Law of Treaties’. This form of wording closely matches that which can be found in EU Association Agreements, absent the use of the term ‘codified’ (‘including those codified in the Vienna Convention’ see Article 320 EU-Ukraine Association Agreement or Article 401 EU-Moldova Association Agreement). However, where it has been included in EU Association Agreements, the application of the Vienna Convention has been limited to issues of trade.     

It must be recalled that, in the absence of an express provision, the Vienna Convention itself is not in its entirety binding on the EU, and the Court of Justice (CJEU) has recognised only a limited number of provisions of the Convention as being applicable to EU international agreements ‘in so far as those rules are an expression of general international customary law’ (para 41 of Brita. See also Racke, Jany and Others and Western Sahara Campaign UK). This is despite increased engagement with the Convention in cases such as Wightman. It would be open for the EU to agree, for this Agreement alone, to bind itself to the Vienna Convention for the purposes of interpretation.                

While on the one hand these provisions significantly extend the competence of the Committee beyond any existing Joint Readmission Committee, on the other hand, the proposal removes the ability of the Committee to establish its own rules of procedure under Article 17(5). Instead, these rules are to be set out in Annex 7 to the Agreement.   

Several observations can be made here. The first is that the language used in Article 17(1) has omitted the standard reference to ‘shall provide each other with mutual assistance in the application and interpretation of this Agreement’. This form of words can also be found under Article 17(1) of the UK-Albania Readmission Agreement. While this does not have legal significance, its absence does possess a symbolic value.   

Second, what disputes are foreseen by the UK to warrant the inclusion of unique provisions on the interpretation of the Agreement and dispute settlement, with specific reference to the Vienna Convention? In its own readmission agreements, the UK has relied on a process of consultation outside of the governing mechanism of the agreement to resolve disputes. This can be observed in Article 9 with the Republic of Korea. With Algeria, Article 7 provides for consultations, not binding decisions by the Committee of Experts, in three situations: (a) where one party considers the number of individuals being returned without confirmed nationality as too high; (b) where one party considers the time taken to issue the necessary travel documents as too long and (c) whenever it is considered necessary.      

Third, what would happen if the Joint Readmission Committee is unable to resolve a dispute? How would it be escalated? Again, we must take account of the wider discussions on the governance of future UK-EU relations. Joint Readmission Committees are not designed or constituted for dispute resolution. A parallel to the proposed provision can instead be found in EU Association Agreements and the role of the Association Councils. However, these Councils are constituted of government ministers and members of the Council of the European Union and Commission officials. Association Agreements also contain much more detailed provisions on dispute resolution, as well as measures that can be taken where obligations are unfulfilled.     

Direct Effect

This provision (Article 22) is designed to reduce the ability of individuals to rely on aspects of the Agreement before the domestic courts. If accepted in its current form, this Agreement would be the first EU readmission agreement to break the silence as to whether they are capable of having direct effect. Thus far, the courts have not had to rule on this issue, indeed, they have rarely had to engage with readmission obligations or arrangements at all (see Commission v Council – discussed here – and NF, NG and NM v European Council before the General Court and the Court of Justice). This absence means that we cannot look to existing EU readmission agreements to determine whether the UK proposal would, absent the clause, provide for direct effect (as the CJEU did in Gattoussi when relying on El-Yassini at para 26 and 27).

However, where the EU has sought to exclude direct effect, it has expressly done so either in the text of the agreement or in the Council decision authorising its signature (for example, Council Decision (EU) 2014/492 on the EU-Moldova Association Agreement). Otherwise, it has been for the CJEU to decide on the direct effect of international agreements with non-Member States, using the criteria laid down in Kupferberg and Demirel, and further developed in subsequent cases (such as in Kziber, Gloszczuk and Simutenkov).          

Article 22(1) states that ‘nothing in this Agreement shall be construed as conferring rights or imposing obligations on persons nor as permitting this Agreement to be directly invoked in the domestic legal systems of the Parties’. This is followed in Section 2 by ‘a Party shall not provide for a right of action under its national law against the other Party on the ground that a measure of the other Party is inconsistent with this Agreement’. This raises the question of which provision is foreseen as potentially being capable of direct effect if the agreement is indeed capable of it? After all, in the absence of an express provision ruling out direct effect or the ability of individuals to rely on the Agreement before the domestic courts, it would be open to each party to decide whether it does so within their own legal systems. However, the second section also seeks to prevent the ability of individuals to rely on the Agreement before the domestic courts of one party against actions of the other party, thereby further limiting the scope of any potential action within the jurisdiction of the other party. Even if the Agreement was capable of direct effect, the courts would still have to consider whether the specific article being relied on produced direct effect.        

Conclusions

The UK’s proposal for a UK-EU Readmission Agreement is, in many areas, a significant break from the readmission policies of both parties. Although procedurally it is largely the same as existing readmission agreements, the areas in which it has deviated cannot be overlooked. It is the first agreement to place a limitation on the obligation to readmit third country nationals based on the length of time passed between leaving the Requested State and the Requesting State authorities gaining knowledge of them. It is also the first to include provisions in the text on the interpretation of the agreement, direct effect and dispute settlement. There are aspects which are missing significant details, such as on data protection, or areas which are entirely absent, such as non-affection. In doing so, this proposal removes many aspects of common ground between the parties built up through the UK’s participation in EU readmission agreements as well as its own bilateral agreements.                 

Barnard & Peers: chapter 26, chapter 27

JHA4: chapter I:7

Photo credit: LA(Phot) Guy Pool/MOD, via Wikimedia Commons

 

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