Ben Hulme, PhD Warwick University

The UK government’s May 2020 release of draft texts outlining the post-Brexit UK/EU relationship included a draft UK-EU Readmission Agreement, a document that has not yet received adequate attention. Readmission refers to the process of returning an individual who does not or no longer meets the entry, presence, or residency requirements of a state to their home country, or in specific situations, to a third-party country.

While it is widely accepted under international law that a nation must accept the return of its citizens, no such obligation exists for third-country nationals or stateless individuals. The EU has aimed to establish readmission agreements to address this, creating reciprocal obligations for the return of these individuals, a strategy that differs from many of its member states who opt not to include such obligations in their bilateral agreements. The UK’s sole readmission agreement encompassing provisions for third-country nationals, but not stateless persons, is with Albania.

Agreements typically outline a readmission procedure where one state, the “Requesting State,” submits a readmission request to another state, the “Requested State,” to return individuals—either their own citizens, third-country nationals, or stateless individuals—once their identity, citizenship, presence, or residency within the Requested State has been confirmed. This verification process typically involves referencing a pre-agreed list of official documents accepted as proof.

The recent surge in media attention surrounding English Channel crossings has brought to light the question of the UK’s options for collaborating with the EU on migration control should a form of the Dublin Regulation not be part of future negotiations. The EU has shown minimal interest in engaging with the UK regarding the Dublin Regulation. While a readmission agreement could be a partial solution, it is not designed to serve the same purpose as the Dublin Regulation. The Regulation establishes the rules and procedures for determining which EU Member State bears responsibility for processing an asylum application. Conversely, and rather controversially, a readmission agreement does not differentiate between those seeking asylum and those who are not. Furthermore, the Regulation exclusively addresses third-country nationals and stateless individuals, while readmission agreements encompass a state’s own citizens.

The UK’s proposal deviates significantly from what might be considered a standard readmission agreement and marks a departure from previous UK policy on readmission. Historically, outside of its involvement in 14 EU agreements (whose status post-transition remains unclear), the UK has primarily relied on memoranda of understanding with third countries, along with a small number of bilateral readmission agreements, such as those with Algeria and the Republic of Korea.

The UK proposal also represents a departure from existing EU readmission agreements. While the fundamental readmission procedure remains consistent, the proposal differs in content and interpretation regarding other crucial elements. These differences are evident in several new provisions and modifications related to data protection, governance, interpretation, non-affection clauses, and direct effect.

Preamble and Definitions

It is important to note that the current draft agreement’s preamble would make it only the second agreement concluded by the EU with a Council of Europe member (following Azerbaijan) that does not mention the European Convention on Human Rights.

Article 1, which outlines definitions, sees the UK depart from its prior bilateral agreements by including a dedicated definition section. This also marks a difference from EU agreements by defining additional terms, such as “personal data” and “child.” The agreement uses “British Citizen” to refer to a British Citizen or a UK national with the right of abode in the UK. Consistent with existing EU agreements, “border region” is defined as an area extending inward up to 20 km from an external border, seaport, or international airport. This definition of “border region,” relevant to the expedited readmission process, is important to note. It’s crucial to highlight that, due to the Common Travel Area, this agreement would not apply to the Republic of Ireland or its border.

Further, it’s important to note that, according to Protocol No 22, Denmark would not participate in any future UK-EU Readmission Agreement.

Scope

Article 2, which outlines the agreement’s scope, is a new provision. Article 2(2), introduces a new limitation concerning obligations towards third-country nationals. This agreement would not apply to third-country nationals who left the Requested State more than five years before the Requesting State’s authorities became aware of their presence, unless this can be proven through the agreed-upon documentary evidence to be negotiated under Annex 3. This represents a significant departure from the EU’s common approach, which typically focuses on whether an individual possessed a valid visa or residency permit issued by the Requested State at the point of entry into the Requesting State.

Readmission of Own Nationals

Under Article 3, the UK is obligated to allow the return of three categories of individuals who did not or no longer meet the requirements for entry, residence, or presence in an EU Member State: (1) British citizens; (2) unmarried children of British citizens, irrespective of their nationality; and (3) spouses of British citizens, who themselves are not British citizens, but hold the right to enter or remain in the UK. It’s important to note that the latter two categories of individuals might possess an independent right to reside in a Member State, potentially preventing their readmission. In cases involving non-British spouses, the UK has the option to demonstrate that the marriage is not recognized under UK law. Article 5 outlines the corresponding obligations for EU Member States and their citizens.

However, neither the UK nor EU Member States are obligated to readmit individuals who have renounced, lost, or been stripped of their British/Member State citizenship after entering a Member State/UK. This stands in contrast to the obligation outlined in Article 1(2) of the UK-Korea Agreement of 2011 and indeed, in most EU agreements (excluding Pakistan).

If a readmission application is accepted, the involved British/Member State citizen must be issued a valid travel document, valid for three months, within three working days. Interestingly, in cases where the document is not issued or the return doesn’t occur within the document’s validity period, both parties will accept the response to the readmission application as a valid travel document.

Readmission of Third-Country Nationals and Stateless Persons

In Article 4, the UK, and in Article 6, the EU, commit to permitting the readmission of third-country nationals and stateless individuals who do not meet or no longer satisfy the requirements for entry, presence, or residence in the other party’s territory. This hinges on establishing that, at the time of the readmission application, the individual possessed a valid visa or residence permit issued by the Requested State. Alternatively, it must be demonstrated that the individual entered the UK/Member State illegally and directly after staying in or traveling through the Requested State’s territory. This obligation does not apply in three specific scenarios: (1) if the individual was only ever in airside transit within the Requested State; (2) if the Requesting State had issued the individual a valid visa or residence permit, except in cases where the Requested State issued a visa or residence permit with a longer validity period; or (3) if the individual has visa-free access to the Requesting State.

It is standard practice in EU readmission agreements for the enforcement of obligations related to third-country nationals and stateless individuals to be delayed—often by two or three years—following the implementation of those for citizens of the involved states. This delay, subject to negotiation, can be shortened or eliminated after concluding an agreement through a decision made by the Joint Readmission Committee (as exemplified in the case of Turkey).

The travel documents, their validity, and the related procedures are largely consistent for third-country nationals, stateless persons, and citizens of the involved states. While both parties will accept the response to the readmission application as a valid travel document for their own nationals, this doesn’t hold for third-country nationals and stateless persons. The UK insists on the standard EU expulsion travel document in these situations. For EU Member States, there are two key considerations. First, according to Article 6(4) and (5), if the UK doesn’t provide a response within the specified timeframe or the travel document expires, the standard UK travel document for expulsion purposes must be accepted. In this case, the response to the readmission application is not considered a valid travel document. Second, under Article 6(3), if two or more Member States have issued a visa or residence permit to the individual, they are to be readmitted to the Member State that issued the document with the longer validity period or the most recent expiry date. Should such documents not be applicable, the responsibility falls on the Member State from which the individual last exited, as per Article 6.

Essentially, these obligations are a direct replication from previous EU readmission agreements.

Readmission Applications and Procedures

Notably absent from the principles outlined in Article 7 is any reference to an expedited procedure. However, Article 19(1)(d) allows for future negotiations between the UK and a Member State to establish an expedited procedure, typically aimed at reducing the time a Contracting Party has to submit a readmission application after an individual’s apprehension. While this proposal serves as the basis for negotiations initiated by the UK, the omission of an expedited procedure from the text is unusual given that the UK government also represents the interests of British Overseas Territories, such as Gibraltar, and the Sovereign Base Areas in Cyprus, which share borders with Spain and Cyprus respectively. This ties into the broader negotiation issue regarding the territorial application of future relationship agreements and is a point that would need to be determined in the context of a UK-EU Readmission Agreement.

As detailed in Article 8, the readmission application itself includes information about the individual, unmarried children and/or spouse subject to readmission, proof of nationality, a photograph, any relevant health requirements, protection or security details, and, in the case of third-country nationals or stateless persons, evidence demonstrating their eligibility for readmission. Notably, Article 8(1)(2) introduces a requirement for proof of connection to or transit through the Requested State. This separate provision is redundant as it would naturally be addressed through the fulfillment of preceding requirements. The application form itself would be subject to agreement and included as an annex to the Agreement.

The provisions concerning the transfer process, the mode of transportation (Article 12), and readmission in error (Article 13) mirror those found in existing EU readmission agreements.

Evidence and Time Limits

Articles 9 and 10 of the Agreement outline the evidentiary requirements for establishing nationality and responsibility. Annexes within readmission agreements, subject to negotiation, provide agreed-upon lists of acceptable forms of evidence. Therefore, these sections are left blank in the proposal. Article 9(3) stipulates that in the absence of agreed-upon forms of evidence for citizens, the Requested State is permitted to conduct an interview with the individual. For third-country nationals and stateless individuals, there’s no provision for an interview. Instead, the lack of a visa or residence permit in any of their travel documents suffices as proof of unlawful entry, presence, or residency.

Article 11 sets out the timeframes for submitting the application after authorities become aware of the individual (up to six months), responding to the readmission application (maximum 25 calendar days), and executing the transfer (up to three months post-acceptance). These timeframes are consistent with those stipulated under Article 11 of the EU-Turkey Readmission Agreement. It’s important to note that these timeframes vary across agreements; for instance, the EU’s most recent agreement—with Belarus—requires responses to readmission applications within 10 calendar days. In contrast, the UK-Korea Agreement, under Article 3(4), mandates a response within 20 working days.

Transit, Transport, and Associated Costs

The provisions concerning transit (Articles 14 and 15) address scenarios where a third-country national or stateless person may transit through the Requested State while en route to another destination state. Aligned with other EU agreements, Article 14(1) highlights that the Parties aim to limit this procedure to situations where direct travel to the destination state is not feasible. This necessitates a transit application from the Requesting State to the Requested State, as detailed in Article 15. While the application details largely align with those found in EU readmission agreements, a notable alteration appears in Article 15(1)(b) concerning ‘the particulars of the person concerned.’ Standard practice involves listing examples such as: ‘given name, surname, maiden name, other names used/by which known or aliases, date of birth, sex and – where possible – place of birth, nationality, language, type and number of travel documents.’ However, the UK’s proposal removes these specifics, relegating this to an implementation detail to be determined by the Joint Readmission Committee. It is unclear why this approach has been taken, and why this wasn’t included as a pre-agreement negotiation point instead of an issue for the Committee to resolve later. This is especially perplexing considering its status as a standard provision in every existing EU readmission agreement.

A transit application can be rejected under Article 14(4) on the following grounds: (1) if the individual faces a credible threat of torture, inhuman or degrading treatment or punishment, the death penalty, or persecution based on the grounds outlined in the 1951 Refugee Convention in another transit state or the destination state; (2) if the individual will be subject to criminal charges in the Requested State or a transit state; or (3) if the rejection is deemed necessary for reasons of public order, health, security, or other national interests of the Requested State.

Consistent with other agreements, the Requesting State bears the costs associated with readmission up to either the border crossing point at the external border or, in the case of a transit operation, up to the destination state’s external border.

Data Protection

When compared to other EU and UK agreements, the draft agreement falls short in terms of detail and clarity concerning data protection. Article 17 states:

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

Essentially, the UK seeks to have the governance of data under the Agreement fall entirely under the domestic laws of the respective parties. The practice of outlining data protection specifics within readmission agreements aims to establish clauses that work in conjunction with national laws to ensure a common standard between parties (for example, Article 11 of the UK-Albania Agreement or Article 17 of the EU-Turkey Agreement). While the proposal mentions the communication and processing of personal data, it fails to address data collection.

While Article 1 of the Agreement provides a definition of personal data aligned with Article 4(1) of the General Data Protection Regulation, EU readmission agreements typically specify the types of personal data that can be shared between parties. These include: (1) the individual’s personal details, such as date and place of birth, sex, full name, nationality, etc.; (2) passport, identity card, or driving license information; (3) details about stopovers and travel itineraries; and (4) any additional information deemed necessary for identification purposes. As it stands, Article 17 does not specify the categories of personal data eligible for transfer.

The UK’s approach raises three further points for consideration. First, what process should be followed if transferred data is found to be inaccurate or incorrect? Second, EU agreements typically allow the party sharing the personal data to request information from the receiving party about how the data has been utilized and the outcomes of its use. This type of clause is absent from the UK’s proposal despite being standard practice in both EU and UK policy. Lastly, in what format should personal data be stored? EU agreements mandate that any stored personal data enabling identification should be held only for as long as deemed necessary.

Non-Affection Clause

The UK’s proposal lacks a non-affection clause, highlighting a difference in approach between the involved parties. Such clauses are common in EU agreements and are included, with varying degrees of detail, in UK agreements as well.

These non-affection or ‘without prejudice’ clauses (see Article 17 of the EU-Cape Verde Agreement) are included to clarify that an agreement does not supersede obligations, responsibilities, or rights established under international law. The specifics of these clauses vary across agreements. Agreements between the EU and states like Turkey (Article 18), Russia (Article 18), and Bosnia and Herzegovina (Article 17) include lists of applicable international legal instruments, such as the European Convention on Human Rights (ECHR), the 1951 Refugee Convention, and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). In contrast, the EU-Pakistan Agreement, under Article 15, does not name specific international instruments.

Without a non-affection clause, the only references to international human rights instruments are found in the preamble, which cites the 1951 Refugee Convention and the Universal Declaration of Human Rights. This means there is no mention of the ECHR or its associated rights in the UK’s proposal. While the EU-Azerbaijan Agreement’s preamble also lacks a reference to the ECHR, it is mentioned in the context of fundamental principles in Article 2. The omission of the ECHR from the UK draft cannot be separated from the wider negotiations regarding the UK’s future adherence to the ECHR. This is because non-affection clauses are not intended to create new rights or obligations; rather, they are designed to address situations where a conflict might arise between an agreement and a party’s existing obligations under international law.

The UK previously acknowledged this in its agreements with Albania (Article 21) and the Republic of Korea (Article 10). The UK-Switzerland Readmission Agreement’s non-affection clause (Article 22(c)) explicitly referenced the ECHR. However, it is important to note that this particular agreement never came into effect.

Governance, Interpretation, and Dispute Resolution

Similar to other EU readmission agreements, Article 18 proposes creating a Joint Readmission Committee to oversee the agreement’s implementation and application. The UK would be represented by its officials on this committee, while the EU would be represented by the Commission, assisted by experts from Member States. The first four functions outlined in the provision—monitoring the agreement’s application, deciding on implementation arrangements, exchanging information about implementing protocols, and recommending amendments to the agreement and its annexes—are standard across EU readmission agreements. However, the fifth function is new: the Committee would also handle dispute resolution related to the agreement’s interpretation and application, as per Article 24.

Article 24, which addresses dispute resolution, proposes that disputes be settled through a Committee decision that would be binding for all parties. This should be considered alongside another new provision, Article 23, which addresses the agreement’s interpretation in accordance with ‘the customary rules of public international law, including those in the Vienna Convention on the Law of Treaties.’ This language closely mirrors that found in EU Association Agreements, but does not include the term ‘codified’ (‘including those codified in the Vienna Convention’; see Article 320 of the EU-Ukraine Association Agreement or Article 401 of the EU-Moldova Association Agreement). Where the Vienna Convention is cited in EU Association Agreements, its application is usually limited to trade-related issues.

It’s important to remember that in the absence of an explicit provision, the Vienna Convention, in its entirety, is not binding on the EU. The Court of Justice (CJEU) has only recognized a limited number of the Convention’s provisions as applicable to international agreements entered into by the EU, ‘in so far as those rules are an expression of general international customary law’ (paragraph 41 of Brita; see also Racke, Jany and Others, and Western Sahara Campaign UK). This is despite increased engagement with the Convention in cases like Wightman. It would be possible for the EU to agree to be bound by the Vienna Convention for the purpose of interpretation, but only within the context of this specific agreement.

While these provisions represent a significant expansion of the Committee’s authority beyond any existing Joint Readmission Committee, the proposal also removes the Committee’s ability to establish its own rules of procedure, a right typically outlined under Article 17(5). Instead, these rules are to be defined in Annex 7 of the Agreement.

Several observations can be made here. First, the language in Article 17(1) omits the standard reference to ‘shall provide each other with mutual assistance in the application and interpretation of this Agreement.’ This phrasing also appears under Article 17(1) of the UK-Albania Readmission Agreement. While this doesn’t carry legal weight, its absence holds symbolic significance.

Second, what types of disputes does the UK anticipate that warrant including specific provisions concerning the agreement’s interpretation and a dispute settlement process, particularly with explicit reference to the Vienna Convention? In its own readmission agreements, the UK has generally relied on a consultation process outside of the agreement’s governing mechanism to resolve disputes. This can be seen in Article 9 of the agreement with the Republic of Korea. With Algeria, Article 7 provides for consultations—not binding decisions by a Committee of Experts—in three situations: (a) if one party believes the number of individuals being returned without confirmed nationality is excessive; (b) if one party believes the time taken to issue necessary travel documents is too long; and (c) in any other situation deemed necessary.

Third, what would happen if the Joint Readmission Committee is unable to reach a resolution? What escalation process would be followed? Again, the broader discussions surrounding the governance of future UK-EU relations must be taken into account. Joint Readmission Committees are not structured or designed to handle dispute resolution. A comparable provision to what is being proposed can be found within EU Association Agreements in the role of Association Councils. However, these Councils are comprised of government ministers and members of the Council of the European Union along with Commission officials. Association Agreements also contain much more comprehensive provisions for dispute resolution, including measures to be taken in the event obligations are not fulfilled.

Direct Effect

This provision (Article 22) is included to limit the ability of individuals to invoke aspects of the Agreement before domestic courts. If accepted as is, this would be the first EU readmission agreement to directly address whether such agreements are capable of having direct effect. To date, courts have not been required to rule on this matter, and in fact, they have rarely been required to engage with readmission obligations or arrangements at all (see Commission v Council—discussed here—and NF, NG, and NM v European Council before the General Court and the Court of Justice). This lack of precedent means it’s impossible to look to past EU agreements to determine whether the UK proposal, without the exclusion clause, would allow for direct effect (as the CJEU did in Gattoussi when citing El-Yassini at paragraphs 26 and 27).

However, in cases where the EU has aimed to preclude direct effect, it has done so explicitly, either within the agreement text itself or in the Council decision authorizing the agreement’s signature (for example, Council Decision (EU) 2014/492 on the EU-Moldova Association Agreement). In other cases, the decision regarding the direct effect of international agreements with non-Member States has fallen to the CJEU, using the criteria established in Kupferberg and Demirel and further developed in subsequent cases (including Kziber, Gloszczuk, and Simutenkov).

Article 22(1) states that ‘nothing in this Agreement shall be construed as conferring rights or imposing obligations on persons nor as permitting this Agreement to be directly invoked in the domestic legal systems of the Parties.’ Section 2 follows with ‘a Party shall not provide for a right of action under its national law against the other Party on the ground that a measure of the other Party is inconsistent with this Agreement.’ This raises the question of which specific provision the UK anticipates individuals might attempt to invoke if the agreement were to allow for direct effect. After all, if there were no express provision precluding direct effect or the ability for individuals to use the Agreement in domestic courts, each party would be free to decide whether or not to allow this within their own legal systems. However, the second section seems to preempt individuals’ ability to rely on the Agreement before one party’s domestic courts in cases against actions taken by the other party, thereby further restricting the potential scope of any action within the other party’s jurisdiction. Even if the Agreement permitted direct effect, the courts would still need to assess whether the specific article in question could be invoked in this way.

Conclusions

The UK’s proposed UK-EU Readmission Agreement represents, in many ways, a substantial departure from the readmission policies of both the UK and the EU. While the procedural elements remain largely consistent with existing agreements, the deviations are significant and cannot be disregarded. It is the first agreement to impose a time limit on the obligation to readmit third-country nationals, based on the time elapsed between their departure from the Requested State and the Requesting State’s awareness of their presence. It is also the first to include provisions within the main text concerning the agreement’s interpretation, direct effect, and dispute settlement. Furthermore, the proposal lacks details in key areas like data protection and entirely omits elements like a non-affection clause. In doing so, the proposal disregards many points of commonality established between the UK and EU through the UK’s past participation in EU readmission agreements, as well as its own bilateral agreements.

Barnard & Peers: chapter 26, chapter 27

JHA4: chapter I:7

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