COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL Evaluation of EU Readmission Agreements
Date: 2011-02-23
Institutions: European Commission
Subjects: EU Member State, illegal migration, return migration, third country, transit

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EUROPEAN COMMISSION 

Brussels, 23.2.2011 
COM(2011) 76 final 

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN 
PARLIAMENT AND THE COUNCIL 

Evaluation of EU Readmission Agreements 

SEC(2011) 209 final 
SEC(2011) 210 final 
SEC(2011) 211 final 
SEC(2011) 212 final 

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COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN 
PARLIAMENT AND THE COUNCIL 

Evaluation of EU Readmission Agreements 

1. 

INTRODUCTION 

In  the  Stockholm  Programme,  the  Council  invited  the  Commission  to  present  an  evaluation 
‘during  2010’  of  EU  readmission  agreements  and  ongoing  negotiations,  and  to  propose  a 
mechanism  to  monitor  the  implementation  of  the  agreements.1  Moreover,  ‘(t)he  Council 
should define a renewed, coherent strategy on readmission on that basis, taking into account 
the overall relations with the country concerned, including a common approach towards third 
countries that do not cooperate in readmitting their own nationals.’ 

This  Communication2  aims  to  (1)  evaluate  the  implementation  of  the  EU  Readmission 
Agreements  (EURAs)  already  in  force,  (2)  assess  the  ongoing  readmission  negotiations  and 
‘open’ negotiating directives  and  (3)  provide recommendations  for  a  future EU readmission 
policy, including on monitoring mechanisms.  

EURAs impose reciprocal obligations on the contracting parties to readmit their nationals and 
also, under certain conditions, third country nationals and stateless persons. They also set out 
in detail the operational and technical criteria for this process.  

In  policy  terms,  EURAs  are  considered  a  necessary  tool  for  efficient  management  of 
migration flows into the EU Member States (MS). As they should facilitate the swift return of 
irregular migrants, they are supposed to be a major element in tackling irregular immigration. 
The  agreements  do  not  define  criteria  for  the  legality  of  a  person’s  presence  in  the  EU  or 
partner  country  —  this  must  be  assessed  by  the  national  authorities  in  accordance  with 
national and, where applicable, EU law. 

Since  1999,  when  competence  in  this  area  was  conferred  on  the  European  Community,  the 
Council has issued negotiating directives to the Commission for 18 third countries. The state 
of  play  of  these  is  attached  as  Commission  Staff  Working  Document  accompanying  the 
Communication  from  the  Commission  to  the  European  Parliament  and  the  Council, 
Evaluation  of  the  EU  Readmission  Agreements,  EU  Readmissions  Agreements:  Brief 
Overview of the State of Play February 2011. Since the entry into force of the Lisbon Treaty, 
the conclusion of EURAs has an explicit legal basis (Article 79(3) of TFEU). Moreover it is a 
principle  of  (customary)  international  law  that  each  country  should  take  back  its  own 
nationals. 

1 
2 

OJ C 115 of 4.5.2010, p.31. 
In 2004 the Commission published a ‘Communication to the Council and European Parliament on the 
priorities  for  the  successful  development  of  a  common  readmission  policy’,  SEC(2004)946  final  of 
19.07.2004.  

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2. 

EVALUATION OF EU READMISSION AGREEMENTS IN FORCE 

Under the 18 negotiation directives so far issued by the Council, 12 EURAs have entered into 
force3.  Three  EURAs  have  a  transitional  period  on  readmission  of  third  country  nationals 
(TCN) (see Sections 2.4 and 3.2). 

Since  MS  are  responsible  for  implementing  EURAs,  the  Commission  has  asked  them  to 
provide detailed data and feedback on the application of the EURAs4. This information was 
supplemented by EUROSTAT data5. 

2.1. 

Quality of data  

The Commission received replies from 21 MS (France, Sweden, Belgium, Estonia, Portugal, 
Poland,  Malta,  Latvia,  Romania,  Finland,  Bulgaria,  Greece,  Czech  Republic,  Slovenia, 
Slovakia, Spain, Hungary, the United Kingdom, the Netherlands, Ireland and Germany). The 
absence  of  replies  from  5  MS  (Denmark  is  not  bound  by  any  EURA),  including  some  very 
much  affected  by  irregular  migration,  significantly  limits  the  conclusions  that  can  be  drawn 
on that basis. 

While some MS gave detailed figures on specific aspects of readmissions, others could only 
estimate  the  number  of  readmission  applications  per  third  country  per  year.  In  general,  the 
data are not harmonised and different MS include different cases under the same headings6. 
Few MS have comprehensive data from before 2008.  

In this situation, the only available data on return covering all EU MS are EUROSTAT data, 
but  they  also  have  some  deficiencies.  For  example  they  show  how  many  citizens  of  a 
particular third country were removed from a particular MS, but do not specify whether the 
person was sent to the country of origin, transit or another MS. The data do not distinguish 
between voluntary and forced returns. EURAs are very rarely used for voluntary returns. For 
this  reason,  the  aggregated  figures  gathered  from  MS  by  the  Commission7  do  not  even  get 
close to the EUROSTAT figures for any third country. For example, for 2009 EUROSTAT 
reports  about  over  4300  returns  of  Russian  citizens  from  the  MS,  whereas  according  to  the 
data provided by MS only over 500 effective returns took place under the EURA with Russia.  

Recommendation 1: The Commission will examine options for the extension of the existing 
Eurostat data collection on returns to allow these statistics to provide a useful basis to assess 
the implementation of the EURAs. In the meanwhile, FRONTEX should gather comprehensive 

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7 

Commission Staff Working Document accompanying the Communication from the Commission to the 
European  Parliament  and  the  Council,  Evaluation  of  the  EU  Readmission  Agreements,  EU 
Readmissions Agreements: Brief Overview of the State of Play February 2011 
Information was also gathered at Joint Readmission Committees. The Commission also requested data 
from the third countries, but due to a very limited response (only from BH, FYROM, HK, ALB SER, 
MO) the data were used only incidentally in the evaluation. 
See  COMMISSION  STAFF  WORKING  DOCUMENT  accompanying  the  COMMUNICATION 
FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL Evaluation 
of EU Readmission Agreements EUROSTAT data 
e.g. one MS includes several categories of requests under effective removals, which sometimes results 
in the number of removals greatly exceeding the number of readmission applications. 
See  COMMISSION  STAFF  WORKING  DOCUMENT  accompanying  the  COMMUNICATION 
FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL Evaluation 
of  EU  Readmission  Agreements  The  aggregated  data  for  the  chosen  categories  gathered  by  the 
Commission from the MS on the basis of a questionnaire . 

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statistical  data  on  returns  (not  including  any  personal  data)  with  a  view  to  obtaining  more 
reliable data on the actual numbers of readmissions executed under the EURAs.  

2.2. 

Use of EURAs 

A  majority  of  MS  apply  EURAs  for  all  their  returns,  but  others  still  use  their  bilateral 
arrangements which existed before the EURA entered into force. One MS stated that it had 
not  submitted  any  readmission  application  under  any  EURA.  The  reasons  given  for  non-
application  of  EURAs  are  the  absence  of  a  bilateral  implementing  protocol  and/or  that 
EURAs are used only if they facilitate returns.  

Whereas transition periods for third country nationals in certain EURAs as well as the need to 
adapt  national  administrative  procedures  may  explain  the  continued  use  of  bilateral 
agreements  in  certain  cases,  the  absence  of  implementing  protocols8  is  not  an  excuse.  The 
Commission (with strong support from the MS) has always insisted that the EURAs are self-
standing, directly operational instruments which do not necessarily require the conclusion of 
bilateral implementing protocols with the third country. In the longer term protocols are mere 
facilitators, even if they are sometimes mandatory, as in the EURA with Russia.  

The  inconsistent  application  of  EURAs  undermines  greatly  the  credibility  of  the  EU 
Readmission  Policy  towards  the  third  countries,  which  are  expected  to  apply  the  EURA 
correctly.  More  seriously,  human  rights  and  international  protection  guarantees  in  EURAs 
may be ineffective if MS do not return irregular migrants under EURAs.  

Recommendation 2: The MS need to apply EURAs for all their returns. The Commission will 
closely monitor the correct implementation of EURAs by MS and, if necessary, consider legal 
steps in case of incorrect or lack of implementation.  

2.3. 

Readmission of own nationals 

Even with incomplete data, some conclusions are possible on the scale of readmissions under 
the  EURAs.  It  is  clear  that  for  own  nationals,  EURAs  are  an  important  tool  when  tackling 
irregular migration. Based on the data provided by the MS9, there were substantial numbers of 
readmission  applications  to  practically  all  relevant  third  countries.  The  recognition  rate  of 
those applications ranged from 50 % to 80-90 % and over (Ukraine, the Republic of Moldova, 
the  former  Yugoslav  Republic  of  Macedonia),  playing  a  major  role  in  preventing  irregular 
migration from those countries. This analysis is confirmed by EUROSTAT data showing that 
in 2009,  20.1 %  of third country nationals apprehended  in  the EU  were from countries with 
which  the  EU  had  a  readmission  agreement.  This  is  a  marked  reduction  compared  to  2007 
when the share of those countries was 26.9 %.  

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9 

See  COMMISSION  STAFF  WORKING  DOCUMENT  accompanying  the  COMMUNICATION 
FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL Evaluation 
of  EU  Readmission  Agreements  Implementing  protocols  signed/concluded  by  the  MS  under  the  EU 
readmission agreements in force 
See  COMMISSION  STAFF  WORKING  DOCUMENT  accompanying  the  COMMUNICATION 
FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL Evaluation 
of  EU  Readmission  Agreements  The  aggregated  data  for  the  chosen  categories  gathered  by  the 
Commission from the MS on the basis of a questionnaire 

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Unfortunately, the data do not allow reliable conclusions about actual returns. There is a great 
variety of data on effective returns; the rate is extremely high for some countries and very low 
for  others.  Yet  in  terms  of  actual  returns,  EUROSTAT  data  show  that  in  2009,  although 
citizens  of  EURAs  countries  were  implicated  in  only  about  20 %  of  return  decisions,  they 
constituted 40 % of the third country nationals actually returned from the EU.  

Recommendation 3: The Commission should pursue the dialogues (in particular within the 
Joint Readmission Committees) to further improve the rate of approved readmission requests 
and of effective returns. 

2.4. 

Readmission of third country nationals  

TCN clauses allow applications for readmission of persons who do not have the nationality of 
either of the Parties (including stateless persons) and who transited the territory of one of the 
Parties. The clause is included in all EURAs, although in some its applicability is deferred (2 
years for Albania and Ukraine, 3 years for the Russian Federation).10  

Clearly the TCN clause in the EURA with Ukraine has worked. In 2009 TCN applications to 
Ukraine  were  almost  as  numerous  as  in  2008  and  constituted  almost  half  compared  to 
applications for own nationals. These data come solely from the MS which used their existing 
bilateral  agreements,  as  they  were  expressly  allowed  to  do  under  the  EURA,  during  the 
transitional period (Slovakia, Hungary and Poland). There is, however, no indication that the 
trend has changed since 1 January 2010 for Ukraine.  

In  stark  contrast  to  the  frequent  use  of  the  TCN  clause  for  returns  to  Ukraine,  only  63 
applications for TCN were formulated by all MS under all other EURAs. The clause was also 
used also by partner countries to send 32 TCNs back to the EU.  

The  TCN  clause  in  the  EURAs  with  countries  not  bordering  the  EU  (i.e.  Sri  Lanka, 
Montenegro,  Hong  Kong  and  Macao11)  was  only  used  28  times.  Some  MS  stated  that  as  a 
matter of policy they only send persons to the countries of origin.  

Recommendation 4: The concrete need for TCN clauses should be thoroughly evaluated for 
each country with which the EU enters into readmission negotiations (see also Section 3.2). 

2.5. 

Transit and accelerated procedures 

MS’ use of transit and accelerated procedures is extremely low. Apart from Serbia with 249 
applications  under  the  accelerated  procedure  in  2008,  falling  to  1  the  following  year,  and 
Montenegro with  88 applications, falling  to 3 the next year, all MS submitted altogether 31 
accelerated  procedure  applications  under  all  EURAs.  Similarly,  the  total  number  of  transit 
applications submitted by all MS under all EURAs was 37.  

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11 

The clause has been operational since 1 May 2008 for Albania, since 1 January 2010 for Ukraine and 
since 1 June 2010 for Russia. 
While  Hong  Kong  and  Macao  are  strictly  speaking  not  countries  but  rather  Special  Administrative 
Regions  of  the  People's  Republic  of  China,  for  the  purpose  of  this  evaluation  they  are  considered 
countries. 

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Several  MS  have  not  used  either  clause  at  all,  although  they  are  always  included  in  the 
negotiating directives given to the Commission and often prove to be serious obstacles in the 
negotiations.  

Recommendation 5: In cases where neither procedure is likely to be widely used in practice, 
it should be considered to exclude them from future negotiating directives but leave them for 
bilateral implementing protocols.  

3. 

EVALUATION  OF  ONGOING  NEGOTIATIONS  AND 
NEGOTIATING DIRECTIVES 

‘OPEN’ 

Looking at the evolution of the 18 negotiating directives issued to date12 (ie. the time elapsed 
between the negotiating directives received by the Commission and first round of negotiations 
and/or between the first round of negotiations and the signature of the agreement), it is clear 
that in all but a few countries (notably the Western Balkan countries, Moldova and Georgia), 
the  negotiation  of  EURAs  takes  a  very  long  time.  A  case  in  point  is  Morocco,  where  the 
negotiating  directives  were  received  in  2000,  the  first  negotiating  round  took  place  in  2003 
and negotiations are currently in their 15th round with little prospect of a swift conclusion. In 
addition,  in  two  cases  (China  and  Algeria)  the  EU  has  not  even  managed  to  formally  open 
negotiations. 

The main reasons for these excessive delays and the difficulty of bringing partner countries to 
the negotiating table are: (1) lack of incentives and (2) a certain lack of flexibility from MS on 
some (technical) issues. 

3.1. 

Lack of incentives  

The  initial  EU  approach  was  to  invite  third countries  to  negotiate  a  readmission  agreement, 
without  the  EU  offering  anything  in  return.  As  these  agreements  have  few  benefits  for  the 
third country concerned, they normally want to receive something in exchange for concluding 
a readmission agreement with the EU. The Russian Federation and Ukraine negotiations, for 
instance,  only  really  accelerated  once  the  EU  had  committed,  at  their  demand,  to  negotiate 
visa facilitation agreements in parallel. The  lack of  an incentive is also precisely the reason 
why  the  EU  has  not  so  far  been  able  to  start  negotiations  with  Algeria13  or  China:  both 
countries have repeatedly asked for ‘visa measures’ but, for various reasons, the EU has not 
been  willing  to  answer  these  calls.  Both  Morocco  and  Turkey  have  also  asked  for  visa 
measures. 

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13 

See Commission Staff Working Document accompanying the Communication from the Commission to 
the  European  Parliament  and  the  Council,  Evaluation  of  the  EU  Readmission  Agreements,  EU 
Readmissions Agreements: Brief Overview of the State of Play February 2011. 
In the case of Algeria it should be noted that Article 84(2) of the Association Agreement states that ‘Les 
parties,  soucieuses  de  faciliter  la  circulation  et  le  séjour  de  leurs  ressortissants  en  situation  régulière, 
conviennent de négocier à la demande d’une partie, en vue de conclure des accords bilatéraux de lutte 
contre l’immigration illégale ainsi que des accords de réadmission. Ces derniers accords couvriront, si 
cela  est  jugé  nécessaire  par  l’une  des  parties,  la  réadmission  de  ressortissants  d’autres  pays  en 
provenance directe du territoire de l’une des parties (..).’. 

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An  evaluation  of  the  EU  visa  facilitation  agreements14  clearly  demonstrated  that  the 
implementation of these agreements does not lead to a rise in the irregular migration into the 
EU from those countries. The MS are still fully in control of who is and is not issued with a 
visa. This conclusion, together with general improvements brought by the Visa Code to visa 
issuance  practices,  strongly  suggests  that  visa  facilitation  agreements  can  provide  the 
necessary incentive for readmission negotiations without increasing irregular migration.  

The  other  incentive  with  great  potential  is  financial  assistance  for  implementing  the 
agreement.  Readmission  of  own  nationals  and  third  country  nationals  involves  a  substantial 
financial burden for the reception countries. For own nationals, conditions should be created 
in  order  to  better  reintegrate  those  persons  in  the  society,  which  would  also  prevent  their 
illegal return to the EU. For third country nationals who have to await onward readmission to 
their country of origin, the EU should be ready to assist the partner country to create adequate 
reception  facilities  that  comply  with  EU  standards.  The  EU  has  already  financed  several 
projects to support reintegration policies and reception capacities of some third countries with 
which a EURA has been concluded. 

Financial assistance has very often been requested by the partner countries (notably Morocco 
and  Turkey,  but  also  Ukraine  and  some  of  the  Western  Balkan  countries).  It  could  be  quite 
efficient as leverage, provided the money offered is substantial and comes on top of what has 
already  been  programmed  or  promised  under  the  relevant  EU  geographic  programmes  (e.g. 
the  Instrument  for  Pre-Accession  Assistance,  the  European  Neighbourhood  and  Partnership 
Instrument).  The  only  instrument  that  could  in  principle  provide  this  additional  funding  to 
third  countries  is  the  Thematic  Programme  for  cooperation  in  the  areas  of  migration  and 
asylum.  But  the  Thematic  Programme  has  a  very  limited  budget  (approximately  54  million 
EUR annually) and is designed to cover cooperation activities world-wide, meaning that the 
resources  potentially  available  for  a  specific  third  country  are  very  small.  Furthermore,  the 
Thematic Programme is meant only for developing countries and countries belonging to the 
European  Neighbourhood  region,  so  candidate  countries  are  excluded.  For  this  reason,  the 
only  financial  offers  from  the  EU  in  this  regard  have  so  far  consisted  of  earmarking  funds 
which were in fact already available under financial geographic programmes. These kinds of 
offers are, unsurprisingly, often considered insufficient by the negotiating partners. 

Broader  and  more  substantive  incentives,  both  in  the  area  of  migration  and  other  areas  of 
cooperation with the partner country (the Global Approach to Migration ‘toolbox’), have so 
far hardly been used. Mobility Partnerships only involve a limited number of MS and are still 
at an early stage. Moreover, although they include some legal migration opportunities for the 
third  country,  given  the  limited  interest  among  MS, there  have  so far only  been  small-scale 
offers which can hardly be regarded as incentives for making progress on readmission.  

A  fundamental  shift  has  to  be  made  in  devising  EURAs,  in  particular  as  concerns  the 
incentives.  The  EU  should  embed  the  readmission  obligation  firmly  into  its  framework 
agreements with third countries, for own nationals d'office and for TCNs linked with further 
incentives. Concretely, and after having assessed the appropriateness together with the EEAS, 
this could mean developing the standard migration clause used in EU framework (association 
or cooperation) agreements into more elaborate and directly operational readmission clauses. 
This would allow making better use of the leverage that such an agreement represents for the 

14 

Commission  Staff  Working  Document  SEC(2009)  1401final  of  15.10.2009,  ‘Evaluation  of  the 
implementation of the European Community’s visa facilitation agreements with third countries’. 

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partner  country.  This  leverage  could  also  be  used  by  negotiating  an  EURA  in  parallel  to  a 
agreement. 
PCA 

cooperation 

association 

other 

kind 

or 

or 

of 

Non  respect  of  the  readmission  obligation  should  lead  to  adopting  sanctions  for  partner 
countries  which  show  insufficient  cooperation  when  tackling  irregular  migration,  without 
prejudice to legal obligations contained in framework agreements between the EU and third 
countries, notably as regards the criteria for suspension of cooperation. 

Recommendation 6: The EU should develop the four main incentives at its disposal ( various 
visa related policy tools, financial assistance, elements of the Global Approach to Migration 
‘toolbox’  and  legal  migration)  into  a  coherent  package,  which  should  be  offered  to  the 
partner  country  at  the  outset  of  the  negotiations.  Stand-alone  readmission  negotiating 
directives should no longer be proposed. Where possible, readmission negotiations should be 
opened  in  parallel  with  framework  agreement  negotiations.  Future  readmission  negotiating 
directives  should  include  the  incentives  that  the  EU  will  offer,  in  particular  in  case  the 
negotiating  directives  include  a  TCN  clause,  and  at  the  same  time  indicate  possible 
retaliation measures by the EU in cases of persistent and unjustified denial of cooperation by 
the partner country.  

3.2. 

Lack of flexibility  

Many negotiations drag on endlessly because there is a fundamental problem between the two 
sides on some technical issues (including the procedures mentioned in Section 2.5).  

In  negotiations  the  Commission  is  always  forced  to  insist  on  a  time  limit  which  is  at  best 
equal to the lowest maximum detention period in any MS as detention periods have not been 
fully  harmonised  within  the  EU.  This  lowest  time  limit,  which  is  complemented  by  the 
principle that absence of reply within this time limit implies acceptance of the readmission by 
the partner country, is for many third countries impossible to implement due to their limited 
administrative capacities. The issue may become less pressing in the (near) future thanks to 
new  technologies.  Several  MS  are  considering  also  prolongation  of  their  detention  periods. 
But for the time being it is one of the biggest obstacles to speedy conclusion of negotiations, 
both with the third country concerned and with the MS. Another trend is that the Commission 
often has to continue negotiations on draft agreements at the insistence of sometimes a single 
MS,  or  a  very  limited  number  of  them,  when  the  draft  is  already  acceptable  to  the  vast 
majority of MS. While it is true that in such cases the countries mainly concerned have most 
to  gain  or  lose  from  the  agreement,  it  is  also  true  that  the  conclusion  of  an  agreement  only 
requires a qualified majority in the Council.  

Recommendation 7: On the issue of time limits, it is recommended to agree with all MS on 
one fixed time limit which is realistic and doable both for third countries and MS. In agreeing 
this time limit, it should be borne in mind that the period should not be excessively lengthy 
in  view  of  the  fact  that  the  strict  limitations  provided  for  in  Article  15  of  the  Return 
Directive  (detention  as  the  last  resort,  preference  for  non-coercive  measures,  regular 
judicial  oversight  of  the  detention  decision  and  obligation  on  MS  to  carry  out  removal 
procedures  with  due  diligence)  must  always  be  respected.  MS  should  support  the 
Commission’s readmission negotiating efforts more whole-heartedly and not lose sight of the 
overall interest that a concluded EURA represents for the entire EU.  

All EURAs concluded so far include an obligation to also readmit, under certain conditions, 
TCNs who have transited through the territory of a contracting Party. 

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All third countries hold a deep aversion to the TCN clause, arguing that they cannot be held 
responsible for citizens of third countries and that they therefore do not have an obligation to 
readmit such people. If a TCN clause was not demanded by the EU or was underpinned with 
appropriate incentives, some negotiations could have been concluded already (e.g. Morocco 
and Turkey) and many others could have been concluded much quicker. It is, however, clear 
that an EURA with a major transit country for irregular migration to the EU without a TCN 
clause holds little value for the EU. 

It  has  been  Commission's  experience  that  by  the  time  the  third  country  finally  accepts  the 
principle of a TCN clause, a lot of time will already have been lost and further concessions 
are then necessary in order to agree on the precise language and preconditions of the clause, 
often to the detriment of its effectiveness. To maintain such effectiveness a use of appropriate 
leverage would have been useful in cases when it is particularly relevant for the EU to have a 
TCN  clause  included.  Readmission  of  own  nationals  should  typically  not  require  important 
incentives. Interestingly, MS’ bilateral readmission agreements seldom include a TCN clause 
(mainly where there is a common land border). Yet MS always demand a TCN clause at EU 
level.  This  situation  raises  some  important  questions  since,  as  the  collected  data  from  MS 
show  (see  Section  2.4),  the  TCN  clause  is  actually  rarely  used  by  MS,  even  with  transit 
countries like the Western Balkans, with which the EU shares land borders.  

In  this  light,  if  the  TCN  clause  will  not  be  so  widely  used  the  EU  would  have  to  focus  its 
readmission  policy  much  more  towards  important  countries  of  origin,  instead  of  transit,  of 
irregular migration, e.g. in sub-Saharan Africa and Asia.  

Recommendation 8: The current approach should be revised. As a rule, future negotiating 
directives  should  not  cover  third  country  nationals,  hence  there  would  not  be  a  need  for 
important  incentives.  Only  in  cases  where  the  country  concerned,  due  to  its  geographical 
position  relative  to  the  EU  (direct  neighbours,  some  Mediterranean  countries)  and  where 
exists  a  big  potential  risk  of  irregular  migration  transiting  its  territory  to  the  EU,  the  TCN 
clause should be included and only when appropriate incentives are offered . In those cases 
the  EU  should  also  explicitly  state  that,  as  a  matter  of  principle,  it  will  always  first  try  to 
readmit a person to his/her country of origin. The EU should also focus more its readmission 
strategy towards important countries of origin. 

4. 

MONITORING  THE 
IMPLEMENTATION  OF  EU  READMISSION 
AGREEMENTS  INCLUDING  IMPROVEMENT  OF  HUMAN  RIGHTS 
SAFEGUARDS 

4.1. 

The monitoring mechanism 

So  far  the  main  tool  for  monitoring  the  implementation  of  EURAs  have  been  the  Joint 
Readmission Committees (JRCs). They have been formally established under each of the 11 
EURAs,  with  the  exception  of  Sri  Lanka  where  the  political  situation  and  technical  issues 
have so far prevented the organisation of a meeting. JRC meetings take place according to the 
needs, and at the request, of either Party. Apart from Hong Kong and Macao, JRCs meet at 
least  once  a  year  and  with  some  countries  even  twice  a  year.  The  JRCs  are  in  particular 
charged  with  monitoring  the  application  of  the  respective  EURAs  and  can  take  decisions 
which are binding on the Parties. In line with the existing EURAs, the JRCs are co-chaired by 
the Commission (on behalf of the EU, but in some cases assisted by experts from the MS) and 
the third country in question.  

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The overall MS evaluation of the JRCs’ work is quite positive. The Commission shares the 
view of some MS that systematically including MS' experts could be very useful.  

However,  given  the  growing  role  of  the  EURAs  in  the  return  process  and  their  possible 
interaction in practice with human rights and international protection standards, the possibility 
of  inviting  relevant  NGOs  and  international  organisations  to  JRC  meetings  should  be 
considered.  Obviously  this  would  require  the  agreement  of  the  co-chair15.  In  addition,  and 
with  a  view  to  enhancing  the  role  of  both  existing  and  future  JRCs  in  monitoring  the 
implementation  of  EURAs,  JRCs  should  draw  much  more  on  relevant  information  of  the 
situation 'on the ground' that can be gathered from NGOs and international organisations, MS' 
Embassies and EU Delegations. 

Recommendation  9:  Systematic  participation  of  MS  experts  in  all  JRCs  should  be 
considered. On a case-by-case basis, NGOs’ and international organisations' participation in 
JRCs should also be envisaged. JRCs should work much more closely with relevant actors on 
the  ground  in  the  third  countries  including  on  the  monitoring  of  the  treatment  of  TCNs. 
Information  on  the  implementation  should  be  gathered  more  from  sources  such  as  EU 
Delegations, EU MS' Embassies, International Organisations or NGOs. 

4.2. 

The current approach to the human rights safeguards under EURAs 

The  EU  considers  EURAs  as  technical  instruments  bringing  procedural  improvements  to 
cooperation between administrations. The situation of the  person subject to readmission has 
not been regulated, leaving those issues to relevant international, EU and national applicable 
law.  

The legal construction of the EURAs concluded so far (and the negotiating directives adopted 
so  far)  has  been  based  on  the  fact  that  a  readmission  procedure  applies  only  to  persons 
illegally staying on the territory of the contracting Parties. Whether or not a person is illegally 
staying is determined by a return decision in application of the relevant (administrative) laws 
applicable  on  the  territory  of  each  Party  and  procedural  guarantees  enshrined  therein  (legal 
representation, judicial review, respect of non-refoulement etc). Certain procedural guarantees 
for  third-country  nationals  subject  to  return  (including  the  respect  of  the  principle  of  non-
refoulement ) were recently set by the Return Directive16, which had to be transposed by MSs 
by  24  December  2010  and  must  be  implemented  by  MSs  in  compliance  with  fundamental 
rights, particularly the EU Charter of Fundamental Rights.  

If the person in question has asked for international protection, the relevant EU asylum acquis 
provides in that case that he/she is entitled to stay on the territory of a MS until a decision on 
the  claim  has  been  issued.  Only  after  a  claim  has  been  refused  can  a  return  decision  be 
pronounced or executed, i.e. a person who has a valid international protection claim can never 
be considered for readmission since he/she could not be considered as illegally staying. 

15 

16 

In fact all Rules of Procedure of JRCs already offer the possibility of inviting external experts to JRC 
meetings. 
Directive  2008/115/EC  of  the  European  Parliament  and  of  the  Council  of  16  December  2008  on 
common  standards  and  procedures  in  Member  States  for  returning  illegally  staying  third-country 
nationals. 

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The legally binding applicable international instruments ratified by all MS17 apply generally 
to all persons subject to a  readmission procedure, independently of the abovementioned EU 
return/asylum acquis. Those instruments guarantee that no person may be removed from any 
MS  if  it  would  be  against  the  principle  of  non-refoulement  if  in  the  recipient  country,  the 
person  could  be  subject  to  torture  or  to  inhuman  or  degrading  treatment  or  punishment.  In 
such cases no readmission procedure can be initiated and this is acknowledged by EURAs in 
what  is  called  a  ‘non-affection  clause’  confirming  the  applicability  of  and  respect  for 
instruments on human rights. Consequently, any return/readmission can only be carried out as 
a result of a return decision which may only be issued if the guarantees mentioned above are 
observed.  Furthermore,  MS  must  respect  the  EU  Charter  of  Fundamental  Rights  when  they 
are implementing EURAs. 

4.3. 

Some possible measures to enhance human rights guarantees in EURAs and the 
monitoring of the implementation of EURAs  

From the above, it is clear that the legal framework of EURAs already inhibits applying them 
to a person who could possibly be subject to persecution, torture or to inhuman or degrading 
treatment or punishment in the country to which he/she would be returned.  

However,  the  actual  administrative  and  judicial  practice  applied  in  the  field  is  important. 
Given the substantial number of EURAs and their significant role in the EU’s policies against 
irregular migration, we should consider certain flanking measures, control mechanisms and/or 
guarantees in future EURAs, to ensure that the human rights of returnees are fully respected at 
all  times.  The  existing  JRCs  should  play,  to  the  extent  possible,  an  important  role  in  this 
regard. When considering possible measures, the following factors should be borne in mind:  

(i)  The  existing  instruments  (in  particular  the  EU  asylum/return  acquis)  must  remain  the 
principal pillars of the EU return and readmission system. Improvements incorporated into the 
EU’s readmission policy and agreements should not simply duplicate guarantees laid down by 
other  instruments.  This  would  have  no  added  value  for  the  real  situation  of  the  person. 
Improvements  to  the  readmission  policy/agreements  must  aim  to  complement  existing 
instruments, focusing on practical deficiencies which could lead to violations of fundamental 
rights in the implementation of a readmission procedure.  

(ii) The main aim of EURAs (or any readmission agreement for that matter) is to agree with 
the administration of the partner country on a swift and efficient readmission procedure. This 
principle  must  not  be  compromised  by  including  measures  which  could  give  grounds  to  a 
revision of previous final return decisions or final refusals of asylum applications, unless the 
relevant EU acquis so allows. 

(iii) The absence of an EURA with a particular third country does not prevent MS requesting 
those  third  countries  to  readmit  persons  on  a  bilateral  basis.  Consequently,  whatever 
improvements  are  introduced  at  EU  level,  those  improvements  will  in  principle  not  affect 
readmissions carried out by MS bilaterally. 

17 

The  1950  Convention  for  the  Protection  of  Human  Rights  and  Fundamental  Freedoms  (ECHR),  the 
1984 Convention Against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment 
and  the  1951  Geneva  Convention  related  to  the  Status  of  Refugees  as  amended  by  1967  New  York 
Protocol. 

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(iv) Some proposed measures, in particular V below, imply not only an increased burden for 
the Commission and possibly EU Delegations in terms of financial and human resources, but 
also  require  the  unequivocal  cooperation  of  the  MS  and  the  third  countries  concerned.  In 
particular the latter may not always be keen on cooperating in this respect.  

I 

Enhancing the access of third country nationals to international protection and 
legal remedies in practice 

(1) Many agreements (in particular those with third countries neighbouring the EU) contain 
special  arrangements  for  persons  apprehended  in  the  border  region  (including  airports), 
allowing  their  readmission  within  much  shorter  deadlines  —  the  so-called  ‘accelerated 
procedure’. Although the safeguards under the EU acquis (such as access to asylum procedure 
and  respect  of  non-refoulement  principle)  are  by  no  means  waived  by  the  accelerated 
procedure, there is a potential for deficiencies in practice. Furthermore, MS may choose not to 
apply  some  of  the  safeguards  of  the  Return  Directive  to  persons  apprehended  in  the  border 
region  because  the  Directive  merely  obliges  the  MS  to  observe  a  certain  number  of  key 
provisions, including the non-refoulement principle.  

Recommendation  10:  Provisions  addressing  this  particular  issue  and  also  highlighting  in 
general the importance for border guards to identify persons seeking international protection 
could  be  included  in  the  Practical  Handbook  for  Border  Guards.18  A  clause  making  the 
accelerated procedure conditional on such information might be also introduced in the text of 
the agreements19.  

(2) The Return Directive contains detailed rules on the suspensive effect of  appeals and the 
right to effective remedy. Also the Asylum Procedures Directive requires MS to ensure that 
applicants  for  asylum  have  access  to  appeal  procedures.  In  practice,  there  might  be  some 
attempts  to  return  a  person  despite  the  fact  that  an  appeal  with  suspensive  effect  is  still 
pending.  

Recommendation 11: State clearly in the EURAs that they may be applied only to persons 
whose return/removal has not been suspended20.  

II 

Providing for suspension clauses in each future readmission agreement 

Many  doubts  are  raised  about  the  conclusion  of  EURAs  with  countries  with  a  weak  human 
rights  and  international  protection  record.  One  remedy  could  be  a  suspension  clause  for 
persistent human rights violations in the third country concerned. 

Recommendation 12: Member States must always respect fundamental rights when they are 
implementing  EURAs  and  must  therefore  suspend  their  application  when  it  would  lead  to  a 
violation of fundamental rights. 

18 

19 

20 

Commission  Recommendation  of  6  November  2006  establishing  a  Practical  Handbook  for  Border 
Guards (Schengen Handbook) to be used by Member States’ competent authorities when carrying out 
border control on persons 2006 (C(2006) 5186 final). 
The situation might be further improved by adoption of the recast proposal of the Asylum Procedures 
Directive reinforcing the right to be informed at border crossing points. 
The situation might be further improved by adoption of the recast proposal of the Asylum Procedures 
Directive providing for the general principle of automatic suspensive effect. 

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This  overarching  principle  might  be  further  reinforced  by  including  in  the  agreement  a 
suspension  clause  which  would  have  reciprocal  effect.  This  clause  would  provide  for 
temporary suspension of the agreement in the event of persistent and serious risk of violation 
of  human  rights  of  readmitted  persons.  The  EU  could  in  this  case  unilaterally  stop  the 
application of the agreement by notification to the other contracting Party (if necessary after 
consulting the Joint Readmission Committee). 

III 

Providing  for  specific  clauses  in  each  future  readmission  agreement  regarding 
voluntary departure 

The  express  preference  given  by  the  Return  Directive  to  voluntary  departure  may  be 
hampered  in  practice  by  administrative  difficulties  in  obtaining  the  necessary  laissez-passer 
for  travelling  back  and  the  fear  of  becoming  subject  to  administrative  or  criminal  sanctions 
(for non-compliance with migration rules) when arriving at home. 

Recommendation  13:  Provide  for  an  article  in  each  EURA  by  which  Parties  commit 
themselves  to  give  preference  to  voluntary  departure,  to  provide  papers  and  documents 
necessary  for  voluntary  departure  and  not  to  impose  sanctions  for  non-compliance  with 
migration rules on persons who return voluntarily. 

IV 

Requiring compliance with human rights in the treatment of returnees  

TCNs  who  have  been  readmitted  to  a  transit  country  may  find  themselves  in  a  particularly 
precarious  situation  in  particular  in  countries  with  a  weak  human  rights'  system,  including 
international protection. There is e.g. a risk of disproportionate administrative measures that 
are not allowed under general human rights standards (e.g. prolonged or indefinite detention 
period pending onward expulsion to their country of origin) or of further readmission to their 
country  of  origin,  despite  legitimate  fears  of  persecution  in  the  latter.  TCNs  who  are  not 
detained may face difficulties with regard to the means of subsistence during their stay in the 
country of readmission. 

Recommendation 14:  

Any EURA with a TCN clause should contain a clause whereby the parties explicitly confirm 
that they will treat TCNs in compliance with the key international human rights conventions 
to  which  they  are  a  party.  If  the  readmitting  country  has  not  ratified  the  key  international 
human rights conventions, the EURA should explicitly oblige that country to comply with the 
standards set out in those international conventions. 

V 

Setting up a ‘post-return’ monitoring mechanism in the countries of return with 
a view of gathering information about the situation of persons readmitted under 
the EURAs, including the respect for human rights  

So  far  no  mechanism  is  in  place  to  monitor  what  happens  to  persons  (notably  TCNs)  after 
their  readmission  is  completed.  It  would  be  important  to  know  if  the  third  country  has 
respected the human rights of persons after their readmission. Due attention needs to be paid 
to practical feasibility, respect for the sovereignty of third countries and ways of encouraging 
returnees to actively cooperate in post-return monitoring. 

Recommendation  15:  The  Commission  should  consider  to  launch,  with  the  support  of  the 
External Action Service, a pilot project with one of the principal international organisations 

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active in the migration area in a particular third country with which an EURA is in force (e.g. 
Pakistan or Ukraine), tasking that organisation to monitor the situation of persons readmitted 
under the EURA and to report back to the respective JRC. On the basis of an evaluation of 
this  pilot  project,  and  with  due  regard  to  human  and  financial  resources  available,  the 
Commission could decide to extend such a project to all third countries with which  EURAs 
have been concluded. It could also be further analysed to what extent the monitoring system 
of  forced  return  as  required  by  the  Return  Directive  may  contribute  to  the  "post-return" 
monitoring in question. 

5. 

CONCLUSIONS  

Overall, the picture that emerges from the evaluation is a mixed one. On the one hand, it is 
clear that, where used properly, EURAs do provide added value with regard to readmission of 
nationals, especially to the countries neighbouring the EU. As such they are an important tool 
in  tackling  irregular  migration  from  third  countries.  On  the  other  hand,  the  negotiation 
directives are rigid on some (technical) aspects and do not offer sufficient incentives, resulting 
in  delayed  conclusion  of  negotiations  and/or  additional  concessions.  With  regard  to  the 
monitoring of the implementation of EURAs and human rights issues, there is clearly scope 
for improvements, in particular through enhancing the role of JRCs. 

The  Commission  proposes  to  the  Council  and  the  European  Parliament  revising  EU 
readmission  policy  as  recommended  in  this  Communication.  In  particular,  the  Commission 
recommends  that  the  incentives  at  the  EU’s  disposal  be  developed  into  a  coherent  mobility 
package which should be offered to the negotiating third country at the outset of negotiations. 
Stand-alone  negotiating  directives  should  no  longer  be  proposed  and  future  negotiating 
directives  should  include  the  incentives  that  the  EU  will  offer,  in  particular  in  case  the 
negotiating  directives  include  a  TCN  clause,  and  at  the  same  time  state  the  retaliation 
measures that the EU will adopt in case of persistent denial of cooperation by the negotiating 
country. In addition, the EU’s readmission policy should be much more firmly embedded in 
the overall external relations policies of the EU by inter alia seeking possible, synergies with 
framework agreement negotiations with third countries.  

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