# EUR-Lex - 52012PC0558 - EN

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# 52012PC0558

**Proposal for a COUNCIL DECISION of [ ... ] concerning the signing of the Agreement between the European Union and the Republic of Cape Verde on the readmission of persons residing without authorisation /* COM/2012/0558 final - 2012/0269 (NLE) */**

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EXPLANATORY MEMORANDUM

1.           Political and legal background

Cape Verde is a stable and democratic
country characterised by high standards of governance and respect for the rule
of law and human rights. Cape Verde and the European Union enjoy excellent relations
in the context of the EU-Cape Verde Special Partnership, a framework of mutual
interests with a major political dimension. The Special Partnership was
approved by the Council in 2007 and is currently being implemented. The
priority sectors are: good governance, security, the information society,
regional integration, technology and standards convergence, and poverty
alleviation.

On 5 June 2008 Cape Verde and the European
Union signed the Joint Declaration on a Mobility Partnership which provides for
the opening of a dialogue between the two parties on readmission. In this
context the annex to the Declaration contains an undertaking by the Commission
to submit a recommendation to the Council under Article 13 of the Cotonou
Agreement to authorise it to open negotiations on the conclusion of a
readmission agreement with Cape Verde.

The negotiating directives for a European
Union–Cape Verde readmission agreement were adopted by the Council on
4 June 2009. Negotiations were formally opened on 13 July 2009 in
Brussels.

Three rounds of official negotiations took
place, with the last on 23 November 2011.

The draft text was submitted for
consultation to the Council Working Party on Immigration and Expulsion on
1 February 2012. The text agreed was initialled in Brussels on
24 April 2012 in the presence of José Manuel Barroso, President of the
European Commission, and José Maria Neves, Prime Minister of Cape Verde.

Member States have been regularly informed
and consulted at all (informal and formal) stages of the readmission
negotiations.

On the part of the Union, the legal basis
for the Agreement is Article 79(3), in conjunction with Article 218, of the
Treaty on the Functioning of the European Union.

The attached proposal constitutes the legal
instrument for the signing of the readmission agreement. The Council will
decide by qualified majority. The European Parliament's consent will be
required for the conclusion of the Agreement, in accordance with Article
218(6)(a) TFEU.

The proposed decision concerning the conclusion
of the Agreement sets out the necessary internal arrangements for the practical
application of the Agreement. In particular, it specifies that the Commission,
assisted by experts from Member States, will represent the Union within the
Joint Readmission Committee set up by Article 18 of the Agreement. Under
Article 18(5) of the Agreement, the Readmission Committee is to adopt its own
rules of procedure. As for the other readmission agreements concluded by the
Union thus far, the Union position in this regard is to be established by the
Commission in consultation with a special committee designated by the Council.
As regards other decisions to be taken by the Joint Readmission Committee, the
Union position is to be established in accordance with the applicable
provisions of the Treaty.

2.           Results of the Negotiations

The Commission considers that the
objectives set by the Council in its negotiating directives have been attained
and that the draft Readmission Agreement is acceptable to the Union.

The final content of the Agreement can be
summarised as follows:

–
The Agreement is divided into 8 sections with 23
articles altogether. It also contains 6 annexes, which form an integral part of
it, and five joint declarations.

–
The readmission obligations set out in the
Agreement (Articles 2 to 5) are drawn up on a basis of full reciprocity,
applying both to own nationals (Articles 2 and 4) and to third-country
nationals and stateless persons (Articles 3 and 5).

–
The obligation to readmit own nationals also
includes former own nationals who have renounced, forfeited or been deprived of
their nationality without acquiring the nationality of another State.

–
The readmission obligation with regard to own
nationals also covers family members (i.e. spouses and minor unmarried
children), regardless of their nationality, who do not have an independent
right of residence in the requesting State.

–
The obligation to readmit third-country
nationals and stateless persons (Articles 3 and 5) is linked to the following
prerequisites: (a) the person concerned holds or held at the time of entering
the territory of the requesting State a valid visa or residence permit issued
by the requested State, or (b) the person concerned illegally entered the
territory of the requesting State coming directly from the territory of the
requested State. These obligations do not apply in respect of persons in
airside transit or to whom the requesting State has issued a visa or residence
permit before or after they entered its territory.

–
Section III of the Agreement (Articles 6 to 12
in conjunction with Annexes 1 to 5) contains the necessary technical provisions
regarding the readmission procedure (readmission application, means of
evidence, time limits, transfer modalities and modes of transportation) and
'readmission in error' (Article 12). Some procedural flexibility is provided by
the fact that no readmission application will be needed in cases where the
person to be readmitted is in possession of a valid travel document or identity
card and, in case of third-country nationals, a valid visa or residence permit
issued by the requested State (Article 6(2) and (3)).

–
Article 6(5) of the Agreement sets out the
‘accelerated procedure’ which has been agreed for persons apprehended in the
‘border region’, i.e. within an area which extends up to 30 kilometres from the
territories of seaports, including custom zones, and from international
airports of Member States or of Cape Verde. Under the accelerated procedure,
readmission applications have to be submitted within two working days, and
replies have to be given within two working days.

–
Under the normal procedure, the time limit for
replies is eight calendar days.

–
The Agreement contains a section on transit
operations (Articles 13 and 14 in conjunction with Annex 6).

–
Articles 15, 16 and 17 contain the necessary
rules on costs, data protection and the relation to other international
obligations and existing EU directives. The agreement is without prejudice to
other arrangements relating to areas other than readmission, such as voluntary
return.

–
The Joint Readmission Committee will be composed
in accordance with Article 18, and have the tasks and powers set out
there.

–
In order to execute this Agreement in practice,
Article 19 creates the possibility for Cape Verde and individual Member States
to conclude bilateral implementing Protocols. The relation between the
bilateral implementing Protocols and this Agreement is clarified by Article 20.

–
The final provisions (Article 21 to 23) contain
the necessary rules on entry into force, duration, termination and the legal
status of the annexes to the Agreement.

–
The specific situation of the United Kingdom,
Ireland and Denmark is reflected in the preamble, Article 1(d) and Article
21(2). The situation of Denmark is also mentioned in a joint declaration
attached to the Agreement. The close association of Norway, Iceland,
Liechtenstein and Switzerland with the implementation, application and
development of the Schengen acquis is likewise reflected in a joint
declaration attached to the Agreement.

3.           CONCLUSIONS

In light of the above-mentioned results,
the Commission proposes that the Council:

–
decide that the Agreement be signed on behalf of
the Union and authorise the President of the Council to appoint the person or
persons empowered to sign on behalf of the Union.

2012/0269 (NLE)

Proposal for a

COUNCIL DECISION

of [ ... ]
concerning the signing of the Agreement between the European Union
and the Republic of Cape Verde on the readmission of persons residing without
authorisation

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on European
Union,

Having regard to the Treaty on the
Functioning of the European Union, and in particular Articles 79(3) in
conjunction with 218(5) thereof,

Having regard to the proposal from the
Commission,

Whereas:

(1)       On 4 June 2009 the Council
authorised the Commission to open negotiations with the Republic of Cape Verde
on the readmission of persons residing without authorisation. The negotiations
were successfully concluded by the initialling of the Agreement on 24 April
2012.

(2)       The Agreement should be
signed by the negotiator on behalf of the European Union, subject to its
conclusion at a later date.

(3)       In accordance with Article
3 of Protocol No 21 on the position of the United Kingdom and Ireland in
respect of the Area of Freedom, Security and Justice annexed to the Treaty on
European Union and to the Treaty on the functioning of the European Union, the
United Kingdom [is not taking part in the adoption of this Decision and will
not be bound by this Agreement or subject to its application unless it notifies
its wish to that effect in accordance with that Protocol/has notified its wish
to take part in the adoption and application of this Decision].

(4)       In accordance with Article
3 of the Protocol on the position of the United Kingdom and Ireland in respect
of the Area of Freedom, Security and Justice annexed to the Treaty on European
Union and to the Treaty on the functioning of the European Union, Ireland [is
not taking part in the adoption of this Decision and will not be bound by this
Agreement or subject to its application unless it notifies its wish to that
effect in accordance with that Protocol/has notified its wish to take part in
the adoption and application of this Decision].

(5)       In accordance with
Articles 1 and 2 of the Protocol on the position of Denmark, annexed to the
Treaty on European Union and to the Treaty on the Functioning of the European
Union, Denmark is not taking part in the adoption of this Decision and is not
bound by it or subject to its application,

HAS ADOPTED THIS DECISION:

Article 1

The Commission is authorised to sign, on
behalf of the European Union, the Agreement between the European Union and the
Republic of Cape Verde on the readmission of persons residing without
authorisation, and to designate the persons empowered to sign the Agreement.

The text of the Agreement to be signed is
attached to this Decision.

Article 2

This Decision shall enter into force on the
day of its adoption.

Done at Brussels,

For
the Council

The
President

ANNEX

AGREEMENT

between
the European Union and the Republic of Cape Verde

on the readmission of persons residing without authorisation

THE HIGH CONTRACTING PARTIES,

THE EUROPEAN UNION, hereinafter referred to
as ‘the Union’,

and

THE REPUBLIC
OF CAPE VERDE, hereinafter referred to as ‘Cape Verde’,

DETERMINED to strengthen their cooperation
in order to combat illegal immigration more effectively,

HAVING REGARD to the obligation to initiate
the negotiations for a readmission agreement at the request of either Party,
set out in Article 13(5)(c)(ii) of the Partnership Agreement between the
Members of the African, Caribbean and Pacific Group of States, of the one part,
and the European Community and its Member States, of the other part, signed in
Cotonou on 23 June 2000 and revised in Luxembourg on 25 June 2005, hereinafter
referred to as the ‘Cotonou Agreement’,

DESIRING to facilitate the obligation for
Parties to readmit their own nationals as confirmed by Article 13(5)(c)(i) of the
Cotonou Agreement,

HAVING REGARD to the Joint Declaration of 5
June 2008 on a Mobility Partnership between the European Union and Cape Verde,
in accordance with which the Parties will take steps to develop a dialogue on
the readmission of persons residing without authorisation with a view to
ensuring effective cooperation for their return,

DESIRING to establish, by means of this
Agreement and on the basis of reciprocity, rapid and effective procedures for
the identification and safe and orderly return of persons who do not, or no
longer, fulfil the conditions for entry to, presence in, or residence on the
territories of Cape Verde or one of the Member States of the European Union,
and to facilitate the transit of such persons in a spirit of cooperation,

EMPHASISING that this Agreement shall be
without prejudice to the rights, obligations and responsibilities of the Union,
its Member States and Cape Verde arising from international law and, in
particular, from the Convention of 28 July 1951 on the Status of Refugees,

CONSIDERING
that in accordance with the Protocol (No 21) on the position of the United
Kingdom and of Ireland in respect of the area of freedom, security and justice
annexed to the Treaty on European Union and the Treaty on the Functioning of the
European Union, the United Kingdom and Ireland will not take part in this
Agreement unless they notify their wish to that effect in accordance with that
Protocol,

CONSIDERING
that the provisions of this Agreement, which falls within the scope of Title V
of Part Three of the Treaty on the Functioning of the European Union, do not
apply to the Kingdom of Denmark, in accordance with the Protocol on the
position of Denmark annexed to the Treaty on European Union and the Treaty on
the Functioning of the European Union,

HAVE AGREED AS
FOLLOWS:

Article 1
Definitions

For the purposes of this Agreement:

(a)
the ‘Contracting Parties’ shall mean Cape Verde
and the European Union;

(b)
‘national of Cape Verde’ shall mean any person
with Cape Verde citizenship;

(c)
‘national of a Member State’ shall mean any
person who holds the nationality, as defined for Union purposes, of a Member
State;

(d)
‘Member State’ shall mean any Member State of
the European Union bound by this Agreement;

(e)
‘third-country national’ shall mean any person
who holds a nationality other than that of Cape Verde or one of the Member
States;

(f)
‘stateless person’ shall mean a person who does
not hold the nationality of any country;

(g)
‘residence permit’ shall mean a permit of any
type issued by Cape Verde or one of the Member States entitling a person to
reside on its territory. This shall not include temporary permissions to remain
on its territory in connection with the processing of an asylum application or
an application for a residence permit;

(h)
‘visa’ an authorisation issued or a decision
taken by Cape Verde or one of the Member States which is required in order to
enter, or transit through, its territory. This shall not include the airport
transit visa;

(i)
‘requesting State’ shall mean the State (Cape
Verde or one of the Member States) submitting a readmission application
pursuant to Article 7 or a transit application pursuant to Article 14 of this
Agreement;

(j)
‘requested State’ shall mean the State (Cape
Verde or one of the Member States) to which a readmission application pursuant
to Article 7 or a transit application pursuant to Article 14 of this Agreement
is addressed;

(k)
‘competent authority’ shall mean any national
authority of Cape Verde or one of the Member States entrusted with the
implementation of this Agreement in accordance with Article 19(1)(a) thereof;

(l)
‘transit’ shall mean the passage of a
third-country national or a stateless person through the territory of the
requested State while travelling from the requesting State to the country of
destination;

(m)
‘border region’ shall mean an area which extends
up to 30 kilometres from the territories of seaports, including custom zones,
and international airports of the Member States and Cape Verde.

Section I
Readmission obligations of Cape Verde

Article 2
Readmission of own nationals

1.         Pursuant to Article 13(5)(c)(i)
of the Cotonou Agreement, Cape Verde shall readmit, upon application by a
Member State and without further formalities other than those provided for in
this Agreement, all persons who do not, or who no longer, fulfil the conditions
in force for entry to, presence in, or residence on, the territory of the
requesting Member State provided that it is proved, or may be validly assumed
on the basis of prima facie evidence furnished, that they are nationals of Cape
Verde.

2.         Cape Verde shall also readmit:

–
minor unmarried children of the persons
mentioned in paragraph 1, regardless of their place of birth or their
nationality, unless they have an independent right of residence in the
requesting Member State,

–
spouses, holding another nationality, of the
persons mentioned in paragraph 1, provided they have the right to enter and
stay or receive the right to enter and stay in the territory of Cape Verde,
unless they have an independent right of residence in the requesting Member
State.

3.         Cape Verde shall also readmit
persons who have been deprived of, or who have renounced, the nationality of
Cape Verde since entering the territory of a Member State, unless such persons
have at least been promised naturalisation by that Member State.

4.         After Cape Verde has given a
positive reply to the readmission application, the competent diplomatic mission
or consular office of Cape Verde shall, irrespective of the will of the person
to be readmitted, immediately and not later than within four working days issue
the travel document required for the return of the person to be readmitted with
a period of validity of six months. If Cape Verde has not, within four working
days, issued the travel document, it shall be deemed to accept the use of the
EU standard travel document for expulsion purposes[1].

5.         If, for legal or factual
reasons, the person concerned cannot be transferred within the period of
validity of the travel document that was initially issued, the competent
diplomatic mission or consular office of Cape Verde shall, within four working
days, issue a new travel document with a period of validity of the same
duration. If Cape Verde has not, within four working days, issued the new
travel document, it shall be deemed to accept the use of the EU standard travel
document for expulsion purposes[2].

Article 3
Readmission of third-country nationals and stateless persons

1.         Cape Verde shall readmit, upon
application by a Member State and without further formalities other than those
provided for in this Agreement, all third-country nationals or stateless
persons who do not, or who no longer, fulfil the conditions in force for entry
to, presence in, or residence on, the territory of the requesting Member State
provided that it is proved, or may be validly assumed on the basis of prima
facie evidence furnished, that such persons:

(a)
hold or held at the time of entering the
territory in question a valid visa issued by Cape Verde, accompanied by legal
proof of entry to the territory of Cape Verde, or a valid residence permit
issued by Cape Verde; or

(b)
illegally entered the territory of the Member
States coming directly from Cape Verde and that their prior presence in the
territory of Cape Verde has been established.

2.         The readmission obligation in
paragraph 1 shall not apply if:

(a)
the third-country national or stateless person
has only been in airside transit via an international airport of Cape Verde; or

(b)
the requesting Member State has issued to the
third-country national or stateless person a visa or residence permit before or
after that person entered its territory,

except where:

–
that person holds a valid visa issued by Cape
Verde, accompanied by legal proof of entry to the territory of Cape Verde, or a
valid residence permit issued by Cape Verde, which has a longer period of
validity or is still valid, or

–
that person has exceeded the length of time
authorised by their visa or conducted activities unauthorised by their visa in
the territory of the requesting Member State.

3.         After Cape Verde has given a positive
reply to the readmission application, the Requesting Member State issues the
person whose readmission has been accepted the EU standard travel document for
expulsion purposes[3].

Section II
Readmission obligations of the Union

Article 4
Readmission of own nationals

1.         Pursuant to Article 13(5)(c)(i)
of the Cotonou Agreement, a Member State shall readmit, upon application by
Cape Verde and without further formalities other than those provided for in
this Agreement, all persons who do not, or who no longer, fulfil the conditions
in force for entry to, presence in, or residence on, the territory of Cape
Verde provided that it is proved, or may be validly assumed on the basis of
prima facie evidence furnished, that they are nationals of that Member State.

2.         A Member State shall also
readmit:

–
minor unmarried children of the persons
mentioned in paragraph 1, regardless of their place of birth or their
nationality, unless they have an independent right of residence in Cape Verde,

–
spouses, holding another nationality, of the
persons mentioned in paragraph 1, provided they have the right to enter and
stay or receive the right to enter and stay in the territory of the requested
Member State, unless they have an independent right of residence in Cape Verde.

3.         A Member State shall also
readmit persons who have been deprived of, or who have renounced, the
nationality of a Member State since entering the territory of Cape Verde,
unless such persons have at least been promised naturalisation by Cape Verde.

4.         After the requested Member State
has given a positive reply to the readmission application, the competent
diplomatic mission or consular office of that Member State shall, irrespective
of the will of the person to be readmitted, immediately and not later than within
four working days, issue the travel document required for the return of the
person to be readmitted with a period of validity of six months.

5.         If, for legal or factual
reasons, the person concerned cannot be transferred within the period of
validity of the travel document that was initially issued, the competent
diplomatic mission or consular office of that Member State shall, within four
working days, issue a new travel document with a period of validity of the same
duration.

Article 5
Readmission of third-country nationals and stateless persons

1.         A Member State shall readmit,
upon application by Cape Verde and without further formalities other than those
provided for in this Agreement, all third-country nationals or stateless
persons who do not, or who no longer, fulfil the conditions in force for entry
to, presence in, or residence on, the territory of Cape Verde provided that it
is proved, or may be validly assumed on the basis of prima facie evidence
furnished, that such persons:

(a)
hold or held at the time of entering the
territory in question a valid visa issued by the requested Member State,
accompanied by legal proof of entry to the territory of the requested Member
State, or a valid residence permit issued by the requested Member State; or

(b)
illegally entered the territory of Cape Verde
coming directly from the requested Member State and that their prior presence
in the territory of the requested Member State has been established.

2.         The readmission obligation in
paragraph 1 shall not apply if:

(a)
the third-country national or stateless person
has only been in airside transit via an international airport of the requested
Member State; or

(b)
Cape Verde has issued a visa or residence permit
to the third-country national or stateless person before or after they entered
its territory, unless:

–
 that person holds a visa issued by the
requested Member State, accompanied by legal proof of entry to the territory of
the requested Member State, or a valid residence permit issued by the requested
Member State, which has a longer period of validity or is still valid, or

–
that person has exceeded the length of time
authorised by their visa or conducted activities unauthorised by their visa in
the territory of Cape Verde.

3.         The readmission obligation in
paragraph 1 rests on the Member State that issued a visa or residence permit.
If two or more Member States issued a visa or residence permit, the readmission
obligation in paragraph 1 rests on the Member State that issued the document
with a longer period of validity or, if one or several of them have already
expired, the document that is still valid. If all of the documents have already
expired, the readmission obligation in paragraph 1 rests on the Member State
that issued the document with the most recent expiry date. If no such documents
can be presented, the readmission obligation in paragraph 1 rests on the Member
State of last exit.

4.         After the Member State has given
a positive reply to the readmission application, where necessary, Cape Verde
shall issue to the person whose readmission has been accepted the travel
document required for his or her return.

Section III
Readmission procedure

Article 6
Principles

1.         Subject to paragraphs 2 and 3,
any transfer of a person to be readmitted on the basis of one of the obligations
contained in Articles 2 to 5 shall require the submission of a readmission
application drawn up in accordance with Article 7 to the competent authority of
the requested State.

2. The transfer of the person to be
readmitted may take place without the submission of a readmission application
or the written notification referred to in Article 11(1) from the requesting
State to the competent authority of the requested State:

–
in the case of the requested State’s own
nationals, if the person to be readmitted holds a valid travel document or
identity card;

–
in the case of third-country nationals or
stateless persons, if the person was apprehended at the airport of the
requesting State after arriving directly from the territory of the requested
State.

3.         Without prejudice to paragraph
2, in the case of third-country nationals or stateless persons holding a valid
travel document and a valid visa or residence permit issued by the requested
State, the transfer shall require only the written notification referred to in
Article 11(1) from the requesting State to the competent authority of the
requested State.

4.         Without prejudice to paragraph 1
and by exception from paragraph 2, the written notification referred to in
Article 11(1) from the requesting State to the competent authority of the
requested State shall be necessary in the case of the transfer of persons
requiring an escort.

5.         Without prejudice to paragraphs
2 and 3, if a person has been apprehended in the border region of the
requesting State after illegally crossing the border coming directly from the
territory of the requested State, the requesting State may submit a readmission
application within two working days of the apprehending of this person
(accelerated procedure).

Article 7
Readmission application

1.         Readmission applications shall
where possible be made in writing and must contain the following information:

(a)
the particulars of the person to be readmitted
(e.g. given names, surnames, date of birth, and – where possible – place of
birth, and the last place of residence) and, where applicable, the particulars
of minor unmarried children and/or spouses;

(b)
in the case of own nationals, indication of the
means by which proof or prima facie evidence of nationality will be provided in
accordance with Annexes 1 and 2 respectively;

(c)
in the case of third-country nationals and
stateless persons, indication of the means by which proof or prima facie
evidence of the conditions for the readmission of third-country nationals and
stateless persons will be provided in accordance with Annexes 3 and 4
respectively;

(d)
a photograph of the person to be readmitted.

2.         To the extent possible, the
readmission application shall also contain the following additional
information:

(a)
a statement indicating that the person to be
transferred may need help or care, provided the person concerned has explicitly
consented to the statement;

(b)
any other protection, security measure or
information concerning the health of the person which may be necessary in the
individual transfer case.

3.         A common form to be used for
readmission applications is attached at Annex 5 to this Agreement.

4.         A readmission application may be
submitted by any means of communication, including by electronic means or fax.

Article 8
Evidence of nationality

1.         Proof of nationality pursuant to
Article 2(1) and Article 4(1) may in particular be furnished through the
documents listed in Annex 1 to this Agreement, even if their period of validity
has expired. If such documents are presented, the Member States and Cape Verde
shall mutually recognise the nationality without further investigation being
required. Proof of nationality cannot be furnished through false documents.

2.         Prima facie evidence of
nationality pursuant to Article 2(1) and Article 4(1) may in particular be
furnished through the documents listed in Annex 2 to this Agreement, even if
their period of validity has expired. If such documents are presented, the
Member States and Cape Verde shall deem the nationality to be established,
unless they can prove otherwise. Prima facie evidence of nationality cannot be
furnished through false documents.

3.         If none of the documents listed
in Annexes 1 or 2 can be presented, the competent diplomatic and consular
representations of the requested State concerned shall, upon a request from the
requesting State which is to be included in the readmission application, make
arrangements to interview the person to be readmitted without undue delay, at
the latest within three calendar days of the date of the request, in order to
establish his or her nationality. The procedure for such interviews may be
established in the implementing Protocols provided for in Article 19 of this
Agreement.

Article 9
Evidence regarding third-country nationals and stateless persons

1.         Proof of the conditions for the
readmission of third-country nationals and stateless persons laid down in
Article 3(1) and Article 5(1) may in particular be furnished through the means
of evidence listed in Annex 3 to this Agreement; it cannot be furnished through
false documents. Any such proof shall be mutually recognised by the Member
States and Cape Verde without any further investigation being required.

2.         Prima facie evidence of the
conditions for the readmission of third-country nationals and stateless persons
laid down in Article 3(1) and Article 5(1) may in particular be furnished
through the means of evidence listed in Annex 4 to this Agreement; it cannot be
furnished through false documents. Where such prima facie evidence is
presented, the Member States and Cape Verde shall deem the conditions to be
established, unless they can prove otherwise.

3.         The unlawfulness of entry,
presence or residence shall be established by means of the travel documents of
the person concerned in which the necessary visa or other residence permit for
the territory of the requesting State is missing. A statement by the requesting
State that the person concerned has been found not having the necessary travel
documents, visa or residence permit shall likewise provide prima facie evidence
of the unlawful entry, presence or residence.

Article 10
Time limits

1.         The application for readmission
of a third-country national or stateless person must be submitted to the
competent authority of the requested State within a maximum of one year after
the requesting State’s competent authority has gained knowledge that the person
concerned does not fulfil, or no longer fulfils, the conditions in force for
entry, presence or residence. Where there are legal or factual obstacles to the
application being submitted in time, the time limit shall, upon request by the
requesting State, be extended, but only until the obstacles have ceased to
exist.

2.         All readmission applications
must be replied to in writing:

–
within two working days if the application has
been made under the accelerated procedure (Article 6(5));

–
within eight calendar days in all other cases.

This time limit begins to run from the date
of receipt of the readmission request. If there is no reply within this time
limit, the transfer shall be deemed to have been agreed to.

Replies to readmission applications may be
sent by any means of communication, including by electronic means or fax.

3.         Reasons shall be given in
writing for the refusal of a readmission request.

4.         After readmission has been
approved or, where appropriate, after expiry of the time limit laid down in
paragraph 2, the person concerned shall be transferred within three months. At
the request of the requesting State, this time limit may be extended by the
time taken to deal with legal or practical obstacles.

Article 11
Transfer modalities and modes of transport

1.         Without prejudice to Articles
6(2) and (3), before returning a person, the competent authorities of the
requesting State shall, at least 48 hours in advance, notify the competent
authorities of the requested State in writing of the transfer date, the point
of entry, possible escorts and other information relevant to the transfer.

2.         Transport may take place by air
or sea. Return by air shall not be restricted to the use of the national
carriers of Cape Verde or the Member States and may take place by using
scheduled or charter flights. In the event of escorted returns, such escorts
shall not be restricted to authorised persons of the requesting State, provided
that the persons concerned are authorised by Cape Verde or any Member State.

Article 12
Readmission in error

The requesting State shall take back any
person readmitted by the requested State if it is established, within a period
of three months after the transfer of the person concerned, that the
requirements laid down in Articles 2 to 5 of this Agreement were not met.

In such cases the procedural provisions of
this Agreement shall apply mutatis mutandis and all available information
relating to the actual identity and nationality of the person to be taken back
shall be provided.

Section IV
Transit operations

Article 13
Principles

1.         The Member States and Cape Verde
shall endeavour to restrict the transit of third-country nationals or stateless
persons to cases where such persons cannot be returned to the State of
destination directly.

2.         Cape Verde shall nevertheless
allow the transit of third-country nationals or stateless persons if a Member
State so requests, and a Member State shall authorise the transit of
third-country nationals or stateless persons if Cape Verde so requests, if the
onward journey in other possible States of transit and the readmission by the
State of destination is assured.

3.         Transit can be refused by Cape
Verde or a Member State:

(a)
if the third-country national or the stateless
person runs a real risk of being subjected to torture, inhuman or degrading
treatment or punishment, or the death penalty, or of persecution because of
their race, religion, nationality, membership of a particular social group or
political conviction in the State of destination or another State of transit;
or

(b)
if the third-country national or the stateless
person is to be subject to criminal sanctions in the requested State or in
another State of transit; or

(c)
on grounds of public health, domestic security,
public order or other national interests of the requested State.

4.         Cape Verde or a Member State may
revoke any authorisation issued if circumstances referred to in paragraph 3
subsequently arise or come to light which stand in the way of the transit
operation, or if the onward journey in possible States of transit or the
readmission by the State of destination is no longer assured. In this case, the
requesting State shall take back the third-country national or the stateless
person, as necessary and without delay.

Article 14
Transit procedure

1.         An application for a transit
operation must be submitted to the competent authority of the requested State
in writing and must contain the following information:

(a)
type of transit (by air, sea or land), possible
other States of transit and intended final destination;

(b)
the particulars of the person concerned (e.g.
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 document);

(c)
envisaged point of entry, date of transfer and
possible use of escorts;

(d)
a declaration that in the view of the requesting
State the conditions pursuant to Article 13(2) are met, and that no reasons for
a refusal pursuant to Article 13(3) are known of.

A common form to be used for transit
applications is attached as Annex 6 to this Agreement.

A transit application may be submitted by
any means of communication, including by electronic means or fax.

2.         The requested State shall,
within three working days after receipt of the application and in writing,
inform the requesting State of the admission, confirming the point of entry and
the envisaged date of admission, or inform it of the admission refusal and of
the reasons for such refusal. If there is no reply within three working days,
the transit shall be deemed to have been approved.

Replies to transit applications may be sent
by any means of communication, including by electronic means or fax.

3.         If the transit operation takes
place by air, the person to be readmitted and possible escorts shall be
exempted from having to obtain an airport transit visa.

If the transit operation to the final
destination cannot proceed as expected for reasons of force majeure, the
requested State shall, if necessary, issue the visa required to the person to
be readmitted and to any escorts without delay for the period necessary to
continue the transit operation.

4.         The competent authorities of the
requested State shall, subject to mutual consultations, assist in the transit
operations, in particular through the surveillance of the persons in question
and the provision of suitable amenities for that purpose.

Section V
Costs

Article 15
Transport and transit costs

Without prejudice to the right of the
competent authorities to recover the costs associated with the readmission from
the person to be readmitted or third parties, all transport costs incurred in
connection with readmission and transit operations pursuant to this Agreement
as far as the border of the State of final destination shall be borne by the
requesting State.

Section VI
Data protection and without prejudice clause

Article 16
Data protection

The communication of personal data shall
take place only if such communication is necessary for the implementation of
this Agreement by the competent authorities of Cape Verde or a Member State as
the case may be. The processing and treatment of personal data in a particular
case shall be subject to the domestic laws of Cape Verde and, where the
controller is a competent authority of a Member State, to the provisions of
Directive 95/46/EC and of the national legislation of that Member State adopted
pursuant to this Directive. Additionally the following principles shall apply:

(a)
personal data must be processed fairly and
lawfully;

(b)
personal data must be collected for the
specified, explicit and legitimate purpose of implementing this Agreement and
not further processed by the communicating authority nor by the receiving
authority in a way incompatible with that purpose;

(c)
personal data must be adequate, relevant and not
excessive in relation to the purpose for which they are collected and/or
further processed; in particular, personal data communicated may concern only
the following:

–
the particulars of the person to be transferred
(e.g. given names, surnames, any previous names, other names used/by which
known or aliases, sex, civil status, date and place of birth, current and any
previous nationality),

–
passport, identity card or driving licence
(number, period of validity, date of issue, issuing authority, place of issue),

–
stop-overs and itineraries,

–
other information needed to identify the person
to be transferred or to examine the readmission requirements pursuant to this
Agreement;

(d)
personal data must be accurate and, where
necessary, kept up to date;

(e)
personal data must be kept in a form which
permits identification of data subjects for no longer than is necessary for the
purpose for which the data were collected or for which they are further
processed;

(f)
both the communicating authority and the
receiving authority shall take every reasonable step to ensure as appropriate
the rectification, erasure or blocking of personal data where the processing
does not comply with the provisions of this article, in particular because
those data are not adequate, relevant, accurate, or they are excessive in
relation to the purpose of processing. This includes the notification of any
rectification, erasure or blocking to the other Party;

(g)
upon request, the receiving authority shall
inform the communicating authority of the use of the communicated data and of
the results obtained therefrom;

(h)
personal data may be communicated only to the
competent authorities; further communication to other bodies shall require the
prior consent of the communicating authority;

(i)
the communicating and the receiving authorities
shall make a written record of the communication and receipt of personal data.

Article 17
Without prejudice clause

1.         This Agreement shall be without
prejudice to the rights, obligations and responsibilities of the Union, its
Member States and Cape Verde arising from international law including from
international conventions to which they are party, in particular:

–
the Convention of 28 July 1951 on the Status of
Refugees as amended by the Protocol of 31 January 1967 on the Status of
Refugees,

–
the European Convention of 4 November 1950 for
the Protection of Human Rights and Fundamental Freedoms,

–
the international conventions on determining the
State responsible for examining applications for asylum,

–
the Convention of 10 December 1984 against
Torture and other Cruel, Inhuman or Degrading Treatment or Punishment,

–
international conventions on extradition and
transit,

–
multilateral international conventions and agreements
on the readmission of foreign nationals.

2.         Nothing in this Agreement shall
prevent the return of a person under other formal or informal arrangements
between the requested and requesting States.

Section VII
Implementation and application

Article 18
Joint Readmission Committee

1.         The Contracting Parties shall
provide each other with mutual assistance in the application and interpretation
of this Agreement. To this end, they shall set up a Joint Readmission Committee
(hereinafter referred to as ‘the Committee’) which shall, in particular, have
the following tasks:

(a)
monitoring the application of the Agreement;

(b)
deciding on the implementing arrangements
necessary for the uniform application of the Agreement;

(c)
regularly exchanging information on the implementing
Protocols drawn up by individual Member States and Cape Verde pursuant to
Article 19;

(d)
recommending amendments to this Agreement and
its Annexes.

2.         The decisions of the Committee
shall be binding on the Contracting Parties.

3.         The Committee shall be composed
of representatives of the Union and Cape Verde.

4.         The Committee shall meet
whenever necessary at the request of either of the Contracting Parties.

5.         The Committee shall lay down its
own rules of procedure.

Article 19
Implementing Protocols

1.         At the request of a Member State
or Cape Verde, Cape Verde and that Member State shall draw up an implementing
Protocol which shall, inter alia, lay down rules on:

(a)
designation of the competent authorities, border
crossing points and exchange of contact points;

(b)
conditions for escorted returns, including the
transit of third-country nationals and stateless persons under escort;

(c)
evidence and documents additional to what is
listed in Annexes 1 to 4 to this Agreement;

(d)
the arrangements for readmission under the accelerated
procedure;

(e)
the procedure for interviews.

2.         The implementing Protocols
referred to in paragraph 1 shall enter into force only after the Readmission
Committee referred to in Article 18 has been notified.

3.         Cape Verde agrees to apply any
provision of an implementing Protocol drawn up with one Member State also in
its relations with any other Member State upon request of the latter.

Article 20
Relation to bilateral readmission agreements
or arrangements of Member States

The provisions of this Agreement shall take
precedence over the provisions of any legally binding instrument on the
readmission of persons residing without authorisation which, under Article 19,
have been or may be concluded between individual Member States and Cape Verde,
in so far as the provisions of the latter are incompatible with those of this
Agreement.

Section VIII
Final clauses

Article 21
Territorial application

1.         Subject to paragraph 2, this
Agreement shall apply to the territory in which the Treaty on European Union
and the Treaty on the Functioning of the European Union are applicable and to
the territory of Cape Verde.

2. This Agreement shall apply to the
territory of Ireland and of the United Kingdom only pursuant to a notification
by the European Union to Cape Verde to that effect. This Agreement shall not
apply to the territory of the Kingdom of Denmark.

Article 22
Entry into force, duration and termination

1.         This Agreement shall be ratified
or approved by the Contracting Parties in accordance with their respective procedures.

2.         This Agreement shall enter into
force on the first day of the second month following the date on which the
Contracting Parties notify each other that the procedures referred to in the
first paragraph have been completed.

3.         This Agreement shall apply to
Ireland and to the United Kingdom on the first day of the second month
following the date of the notification referred to in Article 21(2).

4.         This Agreement is concluded for
an unlimited period.

5.         Either Contracting Party may
denounce this Agreement by officially notifying the other Contracting Party.
This Agreement shall cease to apply six months after the date of such
notification.

Article 23
Annexes

Annexes 1 to
6 shall form an integral part of this Agreement.

Done at ............ on the ........ day of ........... in the year
............ in duplicate in the Bulgarian, Czech, Danish, Dutch, English,
Estonian, Finnish, French, German, Greek, Hungarian, Italian, Latvian,
Lithuanian, Maltese, Polish, Portuguese, Romanian, Slovak, Slovenian, Spanish
and Swedish languages, each of these texts being equally authentic.

For the European Union (...) || For the Republic of Cape Verde (...)

ANNEX 1

Common list of documents the
presentation of which is considered as proof of nationality

(Articles 2(1), 4(1) and 8(1))

When the
requested State is either one of the Member States or Cape Verde:

–
passports of any kind (national passports,
diplomatic passports, service passports, collective passports and replacement
passports, including the passports of minors),

–
laissez-passer issued by the requested State,

–
identity cards of any kind (including temporary
and provisional ones),

–
service books and military identity cards,

–
seamen’s registration books and skippers’
service cards,

–
citizenship certificates and other official
documents that mention or clearly indicate citizenship.

Where
the requested State is Cape Verde:

–
confirmation of identity as a result of a search
carried out in the Visa Information System[4],

–
in the case of Member States not using the Visa
Information System, positive identification established from the visa
application records of those Member States.

Where
the requested State is one of the Member States:

–
positive identification established from visa
application records kept by Cape Verde.

ANNEX 2

Common list of documents the
presentation of which is considered as prima facie evidence of nationality

(Articles 2(1), 4(1) and 8(2))

–
photocopies of any of the documents listed in
Annex 1 to this Agreement,

–
driving licences or photocopies thereof,

–
birth certificates or photocopies thereof,

–
company identity cards or photocopies thereof,

–
statements by witnesses,

–
statements made by the person concerned and
language spoken by him or her, which may in particular be shown by means of an
official test result,

–
fingerprints,

–
any other document which may help to establish
the nationality of the person concerned.

ANNEX 3

Common list of documents which are
considered as proof of the conditions for the readmission of third-country
nationals and stateless persons

(Articles 3(1), 5(1) and 9(1))

–
Visa accompanied by proof of entry to the
territory of the requested State and/or residence permit issued by the
requested State,

–
entry/departure stamps or similar endorsement in
the travel document of the person concerned or other evidence of
entry/departure (e.g. photographic),

–
documents, certificates and bills of any kind
(e.g. hotel bills, appointment cards for doctors/dentists, entry cards for
public/private institutions, car rental agreements, credit card receipts etc.)
which clearly show that the person concerned stayed on the territory of the
requested State,

–
tickets in a person’s name and/or passenger
lists of air, train, coach or boat companies which show the presence and the
itinerary of the person concerned on the territory of the requested State,

–
information showing that the person concerned
has used the services of a guide or travel agency,

–
official statements made, in particular, by
border authority staff and other witnesses who can testify that the person
concerned crossed the border,

–
official statements by the person concerned in
judicial or administrative proceedings.

ANNEX 4

Common list of documents which are
considered as prima facie evidence of the conditions for the readmission of
third-country nationals and stateless persons

(Articles 3(1), 5(1) and 9(2))

–
Visa issued by the requested State,

–
description of the place and circumstances under
which the person concerned has been intercepted after entering the territory of
the requesting State, issued by the relevant authorities of that State,

–
information relating to the identity and/or stay
of a person which has been provided by an international organisation (e.g.
UNHCR),

–
reports/corroboration of information by family
members, travelling companions, etc.,

–
statements made by the person concerned,

–
fingerprints.

ANNEX 5

|| || [Emblem of the Republic of Cape Verde] ||

.......................................................................... ............................................................................. || ......................................................................... (Place and date)

(Designation of requesting authority) ||

Reference:
............................................................

To

............................................................................. ||

............................................................................. ............................................................................ (Designation of requested authority) ||

q      ACCELERATED
PROCEDURE (Article 6(5))

q      INTERVIEW
REQUEST (Article 8(3))

READMISSION
APPLICATION

pursuant to
Article 7 of the Agreement of ........... between

the European
Union and the Republic of Cape Verde

on the readmission of persons residing without
authorisation

A. Personal details 1. Full name (underline surname): ............................................................................................... 2. Name at birth: ............................................................................................... 3. Date and place of birth: ............................................................................................... || Photograph

4. Sex and physical description (height,
colour of eyes, distinguishing marks etc.):

...............................................................................................................................................

5. Also known as (earlier names, other names used/by
which known, or aliases):

...............................................................................................................................................

6. Nationality and language:

...............................................................................................................................................

7. Civil status:              ð married           ð single    ð
divorced               ð widowed

If married :              name of spouse
..............................................................................................................................

Names and age of children (if any)

................................................................................................................................................................

................................................................................................................................................................

................................................................................................................................................................

8. Last address in the requesting State:

................................................................................................................................................................

B. Personal Details of spouse (If appropriate)

1. Full name (underline surname):          
........................................................................................................................................................................

2. Name at birth:    
.......................................................................................................................................................................

3. Date and place of birth:
..............................................................................................................................

4. Sex and physical description (height, colour of
eyes, distinguishing marks etc.):

.......................................................................................................................................................................

5. Also known as (earlier names, other names used/by which known, or
aliases):

.......................................................................................................................................................................

6. Nationality and language:

.......................................................................................................................................................................

C. Personal Details of Children (If appropriate)

1. Full name (underline surname):          
.......................................................................................................................................................................

2. Date and place
of birth:
..............................................................................................................................

3. Sex and physical description (height,
colour of eyes, distinguishing marks etc.):

.......................................................................................................................................................................

4. Nationality and language:

.......................................................................................................................................................................

D. Special circumstances relating to the transferee

1. State of health

(e.g. possible reference to special medical care; Latin
name of contagious diseases):

.......................................................................................................................................................................

2. Indication of particularly dangerous persons

(e.g. suspected of serious offence; aggressive behaviour):

.......................................................................................................................................................................

E. Means of evidence attached

1. ............................................................................. (passport No) || .................................................................................. (date and place of issue)

.............................................................................. (issuing authority) || ................................................................................. (expiry date)

2. ............................................................................. (identity card No) || .................................................................................. (date and place of issue)

.............................................................................. (issuing authority) || ................................................................................. (expiry date)

3. ............................................................................. (driving licence No) || .................................................................................. (date and place of issue)

.............................................................................. (issuing authority) || ................................................................................. (expiry date)

4. ............................................................................. (other official document No) || .................................................................................. (date and place of issue)

.............................................................................. (issuing authority) || ................................................................................. (expiry date)

F. Observations

...................................................................................................................................................................................

...................................................................................................................................................................................

...................................................................................................................................................................................

...................................................................................................................................................................................

...................................................................................................................................................................................

...................................................................................................................................................................................

...................................................................................................................................................................................

...................................................

(Signature) (Seal/stamp)

ANNEX 6

|| || Emblem of the Republic of Cape Verde ||

.......................................................................... ........................................................................... || .......................................................................... (Place and date)

(Designation of requesting authority) ||

Reference

............................................................................

To

............................................................................. ||

............................................................................ ............................................................................ (Designation of requested authority) ||

TRANSIT
APPLICATION

pursuant to
Article 14 of the Agreement of ........... between

the European
Union and the Republic of Cape Verde

on the readmission of persons residing without
authorisation

A. Personal details 1. Full name (underline surname): ............................................................................ 2. Name at birth: ............................................................................ 3. Date and place of birth: ............................................................................ || Photograph

4. Sex and physical description (height, colour of
eyes, distinguishing marks etc.):

............................................................................................................................

6. Also known as (earlier names, other names used/by
which known, or aliases):

............................................................................................................................

7. Nationality and language:

............................................................................................................................

8. Type and number of travel document:

............................................................................................................................

B.           Transit operation

1. Type of transit:

q    by air || q     by land || q     by sea

2. State of final destination

................................................................................................................................................................

3. Possible other States of transit:

................................................................................................................................................................

4. Proposed border crossing point, date, time of
transfer and possible escorts:

................................................................................................................................................................

................................................................................................................................................................

................................................................................................................................................................

5. Admission guaranteed in any other
transit State and in the State of final destination
      (Article 13(2))

q    yes || q    no

6. Knowledge of any reason for refusal of
transit
      (Article 13(3))

q    yes || q    no

C. Observations

..............................................................................................................................................................

..............................................................................................................................................................

...............................................................................................................................................................

.....................................................................................................................................................

.....................................................................................................................................................

.....................................................................................................................................................

.....................................................................................................................................................

...................................................

(Signature) (Seal/stamp)

Joint
Declaration concerning Articles 3 and 5

The parties
will endeavour to return any third-country national who does not, or who no
longer, fulfils the legal conditions in force for entry to, presence in or
residence on, their respective territories, to his or her country of origin.

Joint
Declaration concerning Denmark

The Contracting Parties take note that this
Agreement does not apply to the territory of the Kingdom of Denmark, nor to
nationals of the Kingdom of Denmark. It is therefore desirable that Cape Verde
and Denmark should conclude a readmission agreement in the same terms as this
Agreement.

Joint
Declaration concerning Iceland and Norway

The Contracting Parties take note of the
close relationship between the European Union and Iceland and Norway,
particularly by virtue of the Agreement of 18 May 1999 concerning the
association of these countries with the implementation, application and
development of the Schengen acquis. It is therefore desirable that Cape
Verde should conclude a readmission agreement with Iceland and Norway in the
same terms as this Agreement.

Joint
Declaration concerning Switzerland

The Contracting
Parties take note of the close relationship between the European Union and
Switzerland, particularly by virtue of the Agreement concerning the association
of Switzerland with the implementation, application and development of the
Schengen acquis, which entered into force on 1 March 2008. It is
therefore desirable that Cape Verde should conclude a readmission agreement
with Switzerland in the same terms as this Agreement.

Joint
Declaration concerning the Principality of Liechtenstein

The Contracting
Parties take note of the close relationship between the European Union and the
Principality of Liechtenstein, particularly by virtue of the Agreement concerning
the association of the Principality of Liechtenstein with the implementation,
application and development of the Schengen acquis, which entered into
force on 19 December 2011. It is therefore desirable that Cape Verde should
conclude a readmission agreement with the Principality of Liechtenstein in the
same terms as this Agreement.

[1]               In line with the form set out in EU Council
recommendation of 30 November 1994.

[2]               Ibid.

[3]               Ibid.

[4]               Regulation (EC) No 767/2008 of the European
Parliament and of the Council of 9 July 2008 concerning the Visa
Information System (VIS) and the exchange of data between Member States on
short-stay visas (VIS Regulation), OJ L 218, 13.8.2008, p. 60.