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2002 EU negotiating mandate for readmission agreement with Algeria (full text)

28 March 2012

COUNCIL OF THE EUROPEAN UNION
Brussels, 25 November 2002
14101/02
RESTRIENT UE
MIGR 115
AL 9

LEGISLATIVE ACTS AND OTHER INSTRUMENTS

Subject: Council Decision authorising the Commission to negotiate with the People's Democratic Republic of Algeria a readmission agreement between the European Community and Algeria

THE COUNCIL OF THE EUROPEAN UNION

- Hereby authorises the Commission to negotiate on behalf of the Community a readmission agreement between the European Community and Algeria;

- Has decided that the negotiations will be conducted in accordance with the following Directives:

1. PURPOSE AND SCOPE OF THE AGREEMENT

The purpose of the negotiations shall be to arrive at a Community readmission agreement with Algeria that contains, on the basis of reciprocity, clear and unambiguous contractual obligations necessary

- to ensure rapid and effective procedures for the identification and return of persons (own and third-country nationals, stateless persons) who do not, or no longer, fulfil the conditions for entry to, presence in, or residence on the territories of the Contracting Parties and

- to facilitate the transit of persons in a spirit of cooperation.

2. DEFINITIONS

The readmission agreement must contain the following basic definitions:

- Contracting Parties

- Nationals of Algeria

- Nationals of the Member States of the European Union

- Third-country nationals

- Stateless persons

- Illegal entry and stay

- Residence authorisation (excluding temporary permissions to reside granted to asylum applicants)

- Visa

All these definitions must be in accordance with existing Community legislation.

3. CATEGORIES OF PERSONS COVERED

The readmission obligations established in the agreement shall apply to (1) nationals belonging to the Contracting Parties, (2) third-country nationals and (3) stateless persons.

Those three categories include persons whose asylum application has been rejected. Moreover, the concept of nationals belonging to the Contracting Parties must include all persons who have been deprived of or who have renounced their nationality since entering the territory of the other Contracting Party without at least having been promised naturalisation by the latter.

4. READMISSION OBLIGATIONS REGARDING OWN NATIONALS

The readmission obligation of nationals belonging to the Contracting Parties must be unconditional. Nationals belonging to a Contracting Party who do not, or no longer fulfil the conditions for entry to, presence in, or residence on the territory of the other Contracting Party, must be readmitted without further formalities, provided it is proved or validly assumed that they possess the nationality of the former. As far as the readmission of a person holding the nationality of one of the Member States into the Community is concerned, the Member State of nationality will have to admit its national to its territory.

5. READMISSION OBLIGATIONS REGARDING THIRD-COUNTRY NATIONALS AND STATELESS PERSONS

Whenever it is proved or may be validly assumed that a third-country national or a stateless person who does not, or no longer fulfil the conditions for entry to, presence in, or residence on the territory of the other Contracting Party, entered the territory of that Contracting Party after having remained on the territory of the other Contracting Party, the latter shall be responsible for the readmission of the person in question. However, if the third-country national or the stateless person entered the territory of a Contracting Party, in respect of which visa or residence permit has been issued to him/her before or after entering its territory, the readmission agreement should not apply, unless he/she is possession of a visa or residence permit, issued in respect of the other Contracting Party, which has a longer period of validity.

As far as the readmission of third-country nationals or stateless persons into the Union is concerned, the determination of the Member State responsible for readmission will be established according to the following criteria:

- in the case of valid or expired visa or residence permit: the Member State that issued such documents. If several states issued such documents, the readmission obligation is for the Member State that issued that document with the most recent expiry date.

- if no such documents exist, the readmission obligation is for the Member State of last exit.

6. MEANS OF IDENTIFYING PERSONS TO BE READMITTED

The readmission agreement should clearly law down the means of proving or establishing, within a clearly defined time frame, a presumption of nationality and/or transit via the territory of the other Contracting Party of persons to be readmitted to the effect that

- proof produced of nationality and/or transit has to be accepted without further negotiation;

- a presumption established of nationality and/or transit should be deemed accepted unless it is proved otherwise.

In an annex forming an integral part to it, the readmission agreement shall contain a common and extensive list of the means and documents proving or establishing a presumption of nationality and/or transit. If necessary, implementing protocols, as referred to in point 12, will specify any means and documents used for this purpose which are not mentioned in the common list.

7. MODES OF TRANSPORTATION

The agreement shall not contain any restrictions as to the modes of transportation of persons to be readmitted, that is to say returns must be possible by air, land or sea. As far as returns by air are concerned, there shall be no limitations to the use of national carriers or scheduled flights only: charter flights must not be ruled out. The agreement should contain provisions to the effect that returns can be carried out with the assistance of the state of origin.

For reasons of air safety, ceilings may be established regarding the number of persons to be readmitted and/or escorts per flight.

8. TRAVEL DOCUMENTS

The readmission agreement should provide, where appropriate, for the use of EU standard travel document for expulsion purposes that was adopted by the Council on 30 November 1994 (OJ C 274 of 19 September 1996). If this cannot be achieved, the agreement should at least contain provisions which impose an obligation to issue without delay the travel documents (passports, identity cards, laissez-passer etc.) required for persons to be readmitted.

9. TRANSIT

The readmission agreement should contain a provision on the transit of stateless persons and third-country nationals, who cannot be returned to the state of destination directly. Transit should be allowed if so requested and if admission to other possible States of transit and/or to the State of destination is assured. In such cases and subject to consultation the requested authority shall support transit operations, in particular through the surveillance of the persons in question and the provision of suitable amenities for that purpose. Transit visas should not be required, neither for persons to be readmitted nor for possible escorts. The readmission agreement should contain a provision determining in what circumstances transit operations should be refused or revoked.

10. EXPIRY OF READMISSION OBLIGATION

The readmission obligation should expire if an application for readmission is not submitted within a maximum of one year after noting that a third-country national or stateless person does not, or does no longer, fulfil the conditions in force for residence. The agreement should provide for an extension of this time limit in appropriate cases.

The readmission agreement must also contain a time limit for replying to readmission request and transit obligations.

11. TRANSPORT COSTS

The readmission agreement must contain a provision determining, in particular in accordance with the Recommendation of 30 November 1992, concerning the transit for the purposes of expulsion which authorities have to bear transport costs arising in connection with readmission or transit operations and to what extent. This shall be without prejudice to the right to recover the costs from the persons to be readmitted or third persons, such as employers or relatives.

12. READMISSION JOINT COMMITTEE

The agreement should contain a provision setting-up a Readmission Joint Committee. This Committee shall be comprised by representatives of the European Community and Algeria, the Community shall be represented by the Commission, assisted by experts from the Member States. The meetings shall take place where necessary at the request of one of the Contracting Parties. The Committee shall in particular have the task

- to monitor the application of the agreement and, in particular, to agree on implementing arrangements necessary for the uniform execution of the agreement, such as common forms;

- to propose amendments or additions to it.

The Committee shall also have a regular exchange of information on implementing Protocols as may have to be drawn up between a Member State and Algeria pursuant to the Community Agreement. The implementing Protocols shall only cover additional means of evidence and practical aspects, such as designation of competent authorities, exchange of contact points and conditions for escorted returns.

The implementing Protocols will enter into force after the Committee has been notified. The agreement shall contain a clause whereby Algeria would agree to apply any provision of an implementing Protocol drawn up one Member State also in its relations with the other Member States upon the request of the latter.

13. DATA PROTECTION

Insofar as personal data has to be communicated in order to implement this Agreement, the provisions governing such communication must be in accordance with the Directive 95/46/EC of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data.

14. INTERNATIONAL AGREEMENTS

The conclusion of this readmission agreement should not affect the rights, obligations and responsibilities arising from International Law, and in particular from

- 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;

- international conventions determining the State for examining applications for asylum lodged;

- the European Convention of 4 November 1950 for the protection of Human Rights and Fundamental Freedoms;

- 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.

15. RELATION TO EXISTING BILATERAL READMISSION AGREEMENTS OR ARRANGEMENTS OF MEMBER STATES

For clarification, the agreement should contain a clause that, from its entry into force, its provisions shall take precedence over the provisions of any bilateral agreements or arrangements which have been concluded and the implementing Protocols referred to in point 12 which may be concluded between the individual Member States and Algeria.

16. TERRITORIAL APPLICATION, ENTRY INTO FORCE, DURATION, SUSPENSION AND TERMINATION OF THE AGREEMENT

The agreement should contain provisions relating to its territorial application, entry into force and duration. It should be concluded for an indefinite period and should contain provisions which have both Contracting Parties a possibility to suspend and/or to terminate the agreement. If considered appropriate, the provisional application of the Agreement for the time between signature and entry into force should be foreseen.

17. DECLARATION CONCERNING DENMARK TO BE INSERTED IN THE FINAL ACT

The agreement should take account of the special position of Denmark under its protocol annexed to the Treaty of Amsterdam. A declaration should be inserted in the Final Act whereby Algeria would state its willingness to conclude with Denmark a parallel agreement that is equivalent to the Community agreement.

18. DECLARATION CONCERNING ICELAND AND NORWAY TO BE INSERTED IN THE FINAL ACT

The agreement should take account of the close relationship between the European Union and Iceland and Norway. A declaration should be inserted in the Final Act whereby Algeria would state its willingness to conclude with Iceland and Norway parallel agreements that are equivalent to the Community agreement.

The negotiations will be conducted by the Commission, in accordance with the above directives, in consultation with a special committee appointed by the Council in order to assist in its tasks.

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