Illegal Immigration [EU]
EU measures to prevent the facilitation of illegal immigration
Directive 2002/90/EC defining the facilitation of unauthorised entry, transit and residence
Framework Decision 2002/946/JHA on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence
Both aim to strengthen the system of sanctions preventing the facilitation of illegal immigration.
Directive 2002/90/EC provides a common EU definition of what facilitation of illegal immigration is.
Framework Decision 2002/946/JHA harmonises EU countries’ laws regarding:
penalties;
the liability of legal persons; and
jurisdiction for infringements relating to the facilitation of illegal immigration.
Infringements
Facilitation of illegal immigration consists in:
1.intentionally assisting a non-EU country national to enter or transit through the territory of an EU country in breach of laws; or
2.intentionally assisting, and for financial gain, a non-EU country national to reside in the territory of an EU country in breach of laws.
However, in the first case, when the aim is to provide humanitarian assistance, EU countries are not obliged to impose sanctions.
Penalties
EU countries must adopt effective, proportionate and dissuasive criminal sanctions which may entail extradition. The criminal penalties may be accompanied by other measures, such as:
confiscation of the means of transport used to commit the offence;
prohibition to practice the occupational activity in which the offence was committed; or
deportation.
Infringing or instigating infringement must be punishable by custodial sentences with a maximum sentence of at least 8 years:
if committed for financial gain;
if committed as part of the activity of a criminal organisation; or
if the lives of the subjects of the offences were endangered.
Liability of legal persons
EU countries must also adopt effective, proportionate and dissuasive sanctions against legal persons* for aiding illegal immigration committed for their benefit, in any of the following circumstances:
the infringement is committed by someone with a leading position within that legal person;
the infringement is committed by someone under the authority of that legal person and over which the person with a leading position neglects to exercise supervision or control.
The sanctions must include criminal or non-criminal fines and may include other sanctions, such as:
exclusion from public benefits;
a temporary or definitive ban on commercial activities; or
a judicial supervision or dissolution measure.
Jurisdiction
EU countries must ensure their jurisdiction applies to infringements committed in their territory. They may decide whether they apply their jurisdiction in cases where the offence is committed by one of their nationals or for the benefit of a legal person established in their territory. If an EU country does not extradite its own nationals, it must ensure that its jurisdiction applies to infringements committed by its nationals outside its territory.
When an EU country becomes aware of infringements breaching another EU country’s immigration law, it must inform the country concerned. If one EU country requests another to prosecute an infringement of its immigration law, it must provide it with an official report or certificate describing the law that was breached.
Territorial application
Denmark does not take part in the application of the directive or of the decision under EU law but it is bound by its rules on the basis of Protocol 22.
The directive and the decision were initially applicable to the United Kingdom but it chose to opt-out of the framework decision with effect from 1 December 2014 on the basis of Article 10(4) of Protocol 36. Therefore, only the directive applies to the United Kingdom.
The facilitators package does not apply to Ireland yet.
The directive and the decision constitute a development of the Schengen acquis and therefore applies to Iceland, Liechtenstein, Norway and Switzerland.
Both acts have applied since 5 December 2002 and had to become law in EU countries by 5 December 2004.
Context
The directive and the decision contribute to the development of an area of justice, freedom and security by developing common action among EU countries in the fields of police and judicial cooperation in criminal matters. They supplement the following acts:
Directive 2009/52/EC on illegal employment;
Directive 2011/36/EU on trafficking in human beings; and
Directive 2011/93/EU on the sexual exploitation of children.
KEY TERMS
Legal person: a body of persons or an entity (such as a company) considered as having many of the rights and responsibilities of a natural person and especially the capacity to sue and to be sued.
MAIN DOCUMENTS
Council Directive 2002/90/EC of 28 November 2002 defining the facilitation of unauthorised entry, transit and residence (OJ L 328, 5.12.2002, pp. 17-18)
Council Framework Decision 2002/946/JHA of 28 November 2002 on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence (OJ L 328, 5.12.2002, pp. 1-3)
RELATED DOCUMENTS
Directive 2011/93/EU of the European Parliament and of the Council of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography, and replacing Council Framework Decision 2004/68/JHA (OJ L 335, 17.12.2011, pp. 1-14)
Corrigendum
Successive amendments to Directive 2011/93/EU have been incorporated in the original text. This consolidated version is of documentary value only.
Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA (OJ L 101, 15.4.2011, pp. 1-11)
Directive 2009/52/EC of the European Parliament and of the Council of 18 June 2009 providing for minimum standards on sanctions and measures against employers of illegally staying third-country nationals (OJ L 168, 30.6.2009, pp. 24-32)
Council Decision 2002/192/EC of 28 February 2002 concerning Ireland’s request to take part in some of the provisions of the Schengen acquis (OJ L 64, 7.3.2002, pp. 20-23)
Council Decision 2000/365/EC of 29 May 2000 concerning the request of the United Kingdom of Great Britain and Northern Ireland to take part in some of the provisions of the Schengen acquis (OJ L 131, 1.6.2000, pp. 43-47)
Agreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the latters’ association with the implementation, application and development of the Schengen acquis — Final act (OJ L 176, 10.7.1999, pp. 36-62)
Council Decision 1999/437/EC of 17 May 1999 on certain arrangements for the application of the agreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the association of those two states with the implementation, application and development of the Schengen acquis (OJ L 176, 10.7.1999, pp. 31-33)
Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing the European Communities and certain related acts — Protocol annexed to the Treaty on European Union and to the Treaty establishing the European Community — Protocol on the position of Denmark (OJ C 340, 10.11.1997, p. 101)
Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing the European Communities and certain related acts — Protocol annexed to the Treaty on European Union and to the Treaty establishing the European Community — Protocol integrating the Schengen acquis into the framework of the European Union (OJ C 340, 10.11.1997, p. 93)
Illegal immigration – penalties for employers
Sanctions & measures against employers of illegally staying non-EU nationals – Directive 2009/52/EC
In order to counteract illegal immigration, it requires EU countries to prohibit the employment of non-EU nationals staying in the EU illegally.
It sets out minimum EU-wide rules on the penalties and other measures that can be applied against employers found to have breached this ban.
This directive does not apply to all EU countries – Denmark, Ireland and the UK (1) have opted out.
Employers’ obligations
Employers have to:
require non-EU nationals to produce a residence permit or another authorisation to stay before taking up employment
keep copies of the permit or authorisation for the duration of the employment, in case of inspection by the national authorities
notify the authorities within the period set by the EU country when they employ a non-EU national.
EU countries may also:
use a simplified notification procedure if the employer is an individual who engages a non-EU national for private purposes
decide not to require notification when the non-EU national has been granted long-term residence status.
Penalties
EU countries must ensure that employers who break these rules are subject to effective, proportionate and dissuasive penalties, including:
fines based on each illegally employed non-EU national
paying for these nationals to be returned to their country of origin.
EU countries must also:
ensure that employers are liable for back payments, such as outstanding wages and social security contributions.
put in place systems to allow illegally employed non-EU nationals to claim any outstanding wages from their employers.
ensure employers are also – if appropriate – subject to other penalties, such as:
losing entitlement to some or all public benefits (including EU funding) for up to 5 years
having to repay any benefits received in the 12 months before the illegal employment was detected
being barred from participation in public contracts for up to 5 years
temporary or permanent closure of their business.
Criminal offences
An intentional infringement constitutes a criminal offence when the employer:
persists in not complying
employs a significant number of illegally staying non-EU nationals
employs such people in particularly exploitative working conditions
employs victims of human trafficking
illegally employs minors.
Complaints and inspections
Illegally employed non-EU nationals must be able to lodge complaints against their employers, either directly or through third parties. EU countries are required to carry out inspections based on regular risk assessments, to check whether employers are employing such illegal immigrants.
Implementation
Two main findings of a 2014 report on the application of the directive were that:
there are differences in the severity of the punishment in different EU countries
there is room for improvement in all areas offering protection to irregular migrants.
Application & Background
It applies from 20 July 2009. EU countries had to incorporate it into national law by 20 July 2011.
Irregular migration – EU policy.
ACT
Directive 2009/52/EC of the European Parliament and of the Council of 18 June 2009 providing for minimum standards on sanctions and measures against employers of illegally staying third country nationals (OJ L 168, 30.6.2009, pp. 24–32)
Corrections to Directive 2009/52/EC have been incorporated in the basic text. This consolidated version is of documentary value only.
RELATED ACTS
Communication from the Commission to the European Parliament and the Council on the application of Directive 2009/52/EC of 18 June 2009 providing for minimum standards on sanctions and measures against employers of illegally staying third country nationals (COM(2014) 286 final of 22.5.2014)
Expulsion decisions — mutual recognition by EU countries
Directive 2001/40/EC on the mutual recognition of decisions on the expulsion of non-EU nationals
It aims to ensure that a decision by a European Union (EU) country to expel a non-EU national present in another EU country is respected and complied with.
The expulsion orders apply to non-EU citizens who:
constitute a serious and present threat to public order or to national security and safety;
have been convicted of an offence that carries a minimum one-year prison sentence;
are believed, on the basis of serious grounds or solid evidence, to have committed, or intend to commit, such offences;
fail to comply with national entry or residence rules.
If the individual concerned has a valid residence permit, the country imposing the expulsion must consult the country which issued the permit.
EU countries applying the legislation must:
respect human rights and fundamental freedoms;
ensure the individual concerned can appeal against the expulsion order;
protect personal data and data security;
use all appropriate forms of cooperation and information exchange to implement the legislation;
compensate each other for financial costs involved. The arrangements are set out in Council Decision 2004/191/EC
The country issuing the expulsion order must provide the country enforcing it with all the necessary documents as quickly as possible.
The country enforcing the decision must ensure this does not violate the relevant international or national rules.
The legislation does not apply to family members of EU citizens.
Council Directive 2003/110/EC sets out the transit arrangements for illegal non-EU residents removed by air via another EU country.
Directive 2008/115/EC sets common standards and procedures for returning non-EU nationals that stay illegally.
Regulation (EU) No 604/2013 (Dublin III Regulation) lays down the criteria and procedures to determine which EU country is responsible for examining an asylum application.
In September 2005, the Council of Europe issued 20 guidelines on forced returns.
Application & Background
It has applied since 2 June 2001. EU countries had to incorporate it into national law by 2 December 2002.
UK and Ireland, although not in the Schengen passport-free area, apply the legislation and participate in its arrangements, as do Iceland and Norway, while Denmark does not.
MAIN DOCUMENT
Council Directive 2001/40/EC of 28 May 2001 on the mutual recognition of decisions on the expulsion of third country nationals (OJ L 149, 2.6.2001, pp. 34–36)
RELATED DOCUMENTS
Council Directive 2003/110/EC of 25 November 2003 on assistance in cases of transit for the purposes of removal by air (OJ L 321, 6.12.2003, pp. 26–31)
Council Decision 2004/191/EC of 23 February 2004 setting out the criteria and practical arrangements for the compensation of the financial imbalances resulting from the application of Directive 2001/40/EC on the mutual recognition of decisions on the expulsion of third-country nationals (OJ L 60, 27.2.2004, pp. 55–57)
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 (OJ L 348, 24.12.2008, pp. 98–107)
Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (OJ L 180, 29.6.2013, pp. 31–59)
Financial penalties on passenger carriers
Directive 2001/51/EC supplementing Article 26 of the Convention implementing the Schengen Agreement
This directive aims to combat illegal immigration by harmonising the financial penalties imposed by European Union (EU) countries on passenger carriers for transporting non-EU nationals who are not properly documented.
Key Points
It supplements Article 26 of the Convention implementing the Schengen Agreement which requires the carrier to assume responsibility for non-EU nationals it brings to the external border by air, sea or land. In line with Article 26 of the Convention, the carrier must take all the necessary measures to ensure that non-EU nationals carried by air or sea, and groups transported overland by coach, have the travel documents required for entry into the Schengen countries.
In line with the directive, a carrier that cannot carry out the return of a non-EU national is responsible for finding the means for his or her onward transportation. If this transportation cannot be carried out immediately, the carrier must assume responsibility for the costs of the stay and return of the non-EU national.
The directive also requires EU countries to impose dissuasive, effective and proportionate financial penalties against carriers in breach of their obligations to ensure that persons travelling to the Schengen area have the documents required for entry. The directive sets out:
the maximum amount of the penalties is not less than EUR 5,000 per person; or
the minimum amount of the penalties is not less than EUR 3,000 per person; or
the maximum amount of the penalty imposed as a lump sum for each infringement is not less than EUR 500,000, regardless of the number of persons.
These financial penalties do not apply to cases where the non-EU national is seeking international protection.
EU countries may in addition adopt different types of penalties, such as seizure of the vehicle or withdrawal of the operating licence.
Carriers against whom proceedings have been brought for failure to fulfil their obligations have the right to defence and appeal.
Application
It has applied since 9 August 2001.
MAIN DOCUMENT
Council Directive 2001/51/EC of 28 June 2001 supplementing the provisions of Article 26 of the Convention implementing the Schengen Agreement of 14 June 1985 (OJ L 187, 10.7.2001, pp. 45-46)
RELATED DOCUMENTS
Council Directive 2004/82/EC of 29 April 2004 on the obligation of carriers to communicate passenger data (OJ L 261, 6.8.2004, pp. 24-27)
Returning illegal immigrants — common standards and procedures
Directive 2008/115/EC – common standards and procedures for returning illegally staying non-EU nationals
It aims to ensure the EU has an effective and humane return policy as a necessary element of a well-managed migration policy.
It establishes a common set of rules for the return of non-EU nationals who do not or who no longer fulfil the conditions for entry, stay or residence within the territory of any EU country, and the related procedural safeguards, while encouraging the voluntary return of illegal immigrants.
Termination of illegal stay
The illegal stay is terminated in a 2-step procedure:
1.firstly a ‘return decision’ which opens up a ‘voluntary departure’ period;
2.then, if necessary, a ‘removal decision’, possibly with detention, ending in ‘expulsion’.
Return decision
Unless there are compassionate, humanitarian or other reasons not to do so, or there is a pending procedure for renewing a residence permit, an EU country must issue a return decision to the non-EU national staying illegally on its territory.
If the non-EU national has a valid residence permit or equivalent from another EU country, he/she must immediately return to that country.
If another EU country takes back an illegally staying non-EU national under a bilateral agreement, that country is responsible for issuing the return decision.
The return decision may allow for a period of voluntary departure of between 7 and 30 days for the illegally staying non-EU national. In certain circumstances, this period may be extended; it may also be shortened and even not granted, namely when there is a risk that the illegally staying non-EU national:
will flee and thus will not be available for return;
has submitted a fraudulent application; or
poses a risk to public/national security.
During the period of voluntary departure, certain obligations may be imposed on the non-EU national in order to prevent him/her from fleeing.
An entry ban may be given together with a return decision, when no period of voluntary departure is granted or when the illegally staying non-EU national has not complied with the return decision. The duration of the entry ban is set on a case-by-case basis and may not be longer than 5 years, unless the non-EU national poses a threat to public/national security.
Removal
If no period is granted, or if the non-EU national has not complied with the return decision within the period granted for voluntary return, the EU country must enforce his/her removal, except in particular circumstances where the removal may be postponed. The removal of non-EU nationals must be postponed if it risks putting their lives in danger (the principle of non-refoulement*) or if the return decision has been temporarily suspended.
Coercive measures that are proportionate and do not exceed reasonable force may be used only as a final solution to remove non-EU nationals.
Detention for the purposes of removals
Under certain conditions – and with due regard to certain safeguards including judicial review – EU countries may detain a non-EU national during the return procedure if there is a risk that he or she will flee or avoids/obstructs the preparation of return or the removal process.
The detention period may not be longer than 6 months.
Specialised detention facilities are to be used or, if this is not feasible, prison accommodation with separate quarters.
Procedural safeguards
The directive sets out a number of procedural safeguards:
information for the non-EU national;
their right of appeal;
legal assistance and representation;
linguistic assistance, if necessary.
EU countries must also respect the right to family unity and provide emergency medical care, basic education to minors and pay attention to the special needs of vulnerable persons pending their voluntary return or removal.
Unaccompanied minors
Before deciding to issue a return decision in respect of an unaccompanied minor, assistance must be given by appropriate bodies in the best interests of the child. Before an EU country removes an unaccompanied minor from its territory, it must ensure that he or she will be returned to a member of his or her family, a nominated guardian or that appropriate reception facilities in the country of return are available.
The directive seeks to limit the detention of unaccompanied minors and families and sets out appropriate detention conditions.
General rules
Some categories of non-EU nationals may be excluded from the scope of the directive, such as those who are apprehended in connection with illegal border crossing. EU countries must however ensure that the treatment and level of protection of those persons corresponds at least to certain of its rules on coercive measures, removal, health care and detention. In all cases, EU countries must
ensure that any return of non-EU nationals does not put them in danger;
take into consideration the best interests of children, family life and the health of the person concerned.
Context
To which countries does the directive apply?
The directive applies to all EU countries except Ireland and the United Kingdom (1) and the following non-EU Schengen Area countries: Iceland, Liechtenstein, Norway and Switzerland.
Implementation and related acts
The European Commission must report every 3 years on the directive’s application in the EU countries and, if appropriate, propose amendments.
Regulation (EU) 2016/1953 establishes a uniform European travel document for the return of illegally staying non-EU nationals (European travel document for return). This document is valid for a single journey up until the time of arrival in the country of return of the non-EU national subject to a return decision issued by an EU country.
In 2017, the Commission published Recommendation (EU) 2017/432 to the EU countries on making returns more effective when implementing the directive, as well as a Recommendation (C(2017) 6505) establishing a common ‘Return Handbook’ to be used by EU countries when carrying out return-related tasks. It also proposed new measures on return policy in the form of a renewed Action Plan on Return and a set of recommendations to EU countries.
It has applied since 13 January 2009. It had to become law in the EU countries by 24 December 2010, except for the rules on free legal assistance and/or representation for which the deadline was 24 December 2011.
For more information, see:
Return and readmission (European Commission).
KEY TERMS
Refoulement: the act of forcing refugees or asylum seekers to return to a country where they are likely to face persecution
MAIN DOCUMENT
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 (OJ L 348, 24.12.2008, pp. 98–107)
RELATED DOCUMENTS
Commission Recommendation (EU) 2017/2338 of 16 November 2017 establishing a common ‘Return Handbook’ to be used by Member States’ competent authorities when carrying out return-related tasks (OJ L 339, 19.12.2017, pp. 83-159)
Commission Recommendation (EU) 2017/432 of 7 March 2017 on making returns more effective when implementing the Directive 2008/115/EC of the European Parliament and of the Council (OJ L 66, 11.3.2017, pp. 15-21)
Communication from the Commission to the European Parliament and the Council on a more effective return policy in the European Union — A renewed action plan (COM(2017) 200 final, 2.3.2017)
Regulation (EU) 2016/1953 of the European Parliament and of the Council of 26 October 2016 on the establishment of a European travel document for the return of illegally staying third-country nationals, and repealing the Council Recommendation of 30 November 1994 (OJ L 311, 17.11.2016, pp. 13-19)
Communication from the Commission to the Council and the European Parliament on EU Return Policy (COM(2014) 199 final, 28.3.2014)
Joint flights for removals from the territory of two or more EU countries of illegal immigrants
WHAT IS THE AIM OF THIS DECISION?
It sets out the procedures when two or more EU countries cooperate to deport illegal immigrants by air from the EU.
KEY POINTS
Every EU country appoints a national authority responsible for organising or participating in joint flights.
The authority organising a joint flight must:
provide the relevant information to other EU countries;
select the airline involved and ensure all the contractual and practical arrangements are in place;
request and receive authorisations from the flight’s transit and destination countries;
make the appropriate arrangements, including financial ones, with other EU countries participating in the flight;
define the operational details and procedures, including the number of escorts required.
An EU country participating in a joint flight must:
inform the national authority organising the flight of its intention to participate;
provide a sufficient number of escorts;
ensure the presence of at least 2 of its representatives if the organising country provides all the escorts.
Organising and participating countries must:
ensure escorts and all those being deported have valid travel papers and other necessary documents, such as visas and certificates;
provide the flight arrangements to their embassies and consulates in the transit and destination countries involved to receive any necessary assistance.
The decision sets out detailed procedures and requirements for the five phases involved in removing illegal immigrants:
pre-return
pre-departure
in-flight
transit
arrival.
These cover issues such as check-in, security and the use of coercive measures*.
Operational cooperation between EU countries also covers:
transit assistance for removal flights;
organisation of flights for illegal immigrants subject to individual removal orders;
mutual recognition of expulsion decisions.
Application & Background
It has applied since 7 August 2004.
Between 400,000 and 500,000 foreign nationals are ordered to leave the EU every year because they have entered, or are staying, illegally. Only 40 % are sent back home or to the country from which they entered the EU. Ensuring the return of illegal immigrants is essential to guarantee the credibility of legal migration.
For more information, see:
‘Return and readmission’ on the European Commission’s website.
KEY TERMS
coercive measures: these may be used on people who refuse or resist removal; they must be proportional and must not exceed reasonable force or compromise the person’s ability to breathe.
MAIN DOCUMENT
Council Decision 2004/573/EC of 29 April 2004 on the organisation of joint flights for removals from the territory of two or more Member States of third-country nationals who are subjects of individual removal orders (OJ L 261, 6.8.2004, pp. 28-35)
RELATED ACTS
Council Directive 2003/110/EC of 25 November 2003 on assistance in cases of transit for the purposes of removal by air (OJ L 321, 6.12.2003, pp. 26-31)
Council Directive 2001/40/EC of 28 May 2001 on the mutual recognition of decisions on the expulsion of third-country nationals (OJ L 149, 2.6.2001, pp. 34-36)
Readmission agreements between the EU and certain non-EU countries
SUMMARY OF:
EU readmission legislation as follows:
Agreement and Decision 2005/809/EC between the EU and Albania
Agreement and Decision 2013/629/EU between the EU and Armenia
Agreement and Decision 2014/239/EU between the EU and Azerbaijan
Agreement and Decision 2007/820/EC between the EU and Bosnia and Herzegovina
Agreement and Decision 2013/522/EU between the EU and Cape Verde
Agreement and Decision 2011/118/EU between the EU and Georgia
Agreement and Decision 2004/80/EC between the EU and Hong Kong
Agreement and Decision 2004/424/EC between the EU and Macao
Agreement and Decision 2007/826/EC between the EU and Moldova
Agreement and Decision 2007/818/EC between the EU and Montenegro
Agreement and Decision 2007/817/EU between the EU and former Yugoslav Republic of Macedonia
Agreement and Decision 2010/649/EU between the EU and Pakistan
Agreement and Decision 2007/341/EC between the EU and Russia
Agreement and Decision 2007/819/EC between the EU and Serbia
Agreement and Decision 2005/372/EC between the EU and Sri Lanka
Agreement and Decision 2014/252/EU between the EU and Turkey
Agreement and Decision 2007/839/EU between the EU and Ukraine
Readmission of a country’s own nationals is an obligation under international customary law. To return persons illegally residing on their territory to their countries of origin, in particular when these persons do not have valid identification documents, EU countries count on the cooperation of non-EU countries to identify, re-document and readmit them.
EU readmission agreements provide a structured framework of cooperation between EU countries and non-EU countries by establishing rapid and effective procedures for identifying, re-documenting and returning persons originating from one of the parties, residing without authorisation in the territory of the other party.
By its decisions, the Council concludes the agreements on behalf of the EU.
Reciprocity
These agreements operate on reciprocity. The same rules apply to EU citizens, to the citizens of the other party to the agreement and, under certain conditions, to third-country nationals, i.e. persons holding a nationality other than that of either signatory party or stateless persons illegally present in the non-EU country concerned.
As stipulated in Protocol 21 to the Treaty on the Functioning of the European Union (TFEU), the United Kingdom and Ireland may choose to opt in or out of these agreements on a case-by-case basis. However, under Protocol 22 to the TFEU, Denmark has opted out of participating in justice and home affairs cooperation (of which these readmission agreements are part), with the exception of measures that relate to the Schengen acquis.
Own nationals
All EU readmission agreements cover detailed procedures for the identification, re-documentation and readmission of nationals illegally present on the territory the other parties. Many of the agreements also apply, with differing conditions, to:
minor unmarried children of such persons regardless of their place of birth or their nationality;
spouses of such persons, holding another nationality;
those persons residing in the EU who no longer hold the nationality of the other party concerned.
Third-country nationals and stateless persons
EU readmission agreements also cover commitments and procedures for the readmission of those third country nationals that have illegally entered the territory of one party by transiting the territory of the other party. For example, one party would need to readmit a person who is not its citizen if that person:
has illegally and directly entered the territory of one party from the other party;
holding, at the time of readmission application, a valid visa or residence permit for the country concerned.
This obligation will not apply if the person concerned:
has only been in airside transit via an international airport of the party concerned;
has been granted a visa or residence permit by one party unless:
they have also been issued a visa or residence permit by the other party that is valid for longer; or
the visa or permit was obtained using fake or forged documents; or
the conditions of the visa are not observed;
has the right to visa-free access to the territory of the party concerned.
Procedures
The party wishing to return a person who is not in possession of valid identity documents presents a readmission application to the other party concerned containing the information (including name, date of birth, evidence of nationality) detailed in the specific agreement.
Applications for third-country nationals and stateless persons are submitted to the competent authority of the country concerned within a specified period of time after the party became aware of the illegal situation of the person concerned.
A response to a readmission application must be received within a specified period usually within a month. Under the accelerated procedure, responses are usually required within a week. Reasons must be given for a refusal.
Once the party has agreed to readmission, a travel document must be issued by the authorities of the party concerned, regardless of the will of the person.
Some of the agreements also cover arrangements to be made in view of the return operation or regarding transit facilitation for returnees to other third countries (for example, the point of entry, possible escorts and other information relevant to the transfer).
The agreements also list various means of evidence to establish the nationality of a person and their illegal entry into the territory of the parties concerned.
MAIN DOCUMENTS
Albania
Agreement between the European Community and the Republic of Albania on the readmission of persons residing without authorisation — Declarations (OJ L 124, 17.5.2005, pp. 22-40)
Council Decision 2005/809/EC of 7 November 2005 concerning the conclusion of the Agreement between the European Community and the Republic of Albania on the readmission of persons residing without authorisation (OJ L 304, 23.11.2005, pp. 14-15)
Armenia
Agreement between the European Union and the Republic of Armenia on the readmission of persons residing without authorisation (OJ L 289, 31.10.2013, pp. 13-29)
Council Decision 2013/629/EU of 22 October 2013 on the conclusion of the Agreement between the European Union and the Republic of Armenia on the readmission of persons residing without authorisation (OJ L 289, 31.10.2013, p. 12)
Azerbaijan
Agreement between the European Union and the Republic of Azerbaijan on the readmission of persons residing without authorisation (OJ L 128, 30.4.2014, pp. 17-42)
Council Decision 2014/239/EU of 14 April 2014 on the conclusion of the Agreement between the European Union and the Republic of Azerbaijan on the readmission of persons residing without authorisation (OJ L 128, 30.4.2014, pp. 15-16)
Bosnia and Herzegovina
Agreement between the European Community and Bosnia and Herzegovina on the readmission of persons residing without authorisation — Joint Declarations (OJ L 334, 19.12.2007, pp. 66-83)
Council Decision 2007/820/EC of 8 November 2007 on the conclusion of the Agreement between the European Community and Bosnia and Herzegovina on the readmission of persons residing without authorisation (OJ L 334, 19.12.2007, p. 65)
Cape Verde
Agreement between the European Union and the Republic of Cape Verde on the readmission of persons residing without authorisation (OJ L 282, 24.10.2013, pp. 15-34)
Council Decision 2013/522/EU of 7 October 2013 on the conclusion of the Agreement between the European Union and the Republic of Cape Verde on the readmission of persons residing without authorisation (OJ L 282, 24.10.2013, pp. 13-14)
Georgia
Agreement between the European Union and Georgia on the readmission of persons residing without authorisation (OJ L 52, 25.2.2011, pp. 47-65)
Council Decision 2011/118/EU of 18 January 2011 on the conclusion of the Agreement between the European Union and Georgia on the readmission of persons residing without authorisation (OJ L 52, 25.2.2011, pp. 45-46)
Hong Kong
Agreement between the European Community and the Government of the Hong Kong Special Administrative Region of the People’s Republic of China on the readmission of persons residing without authorisation (OJ L 17, 24.1.2004, pp. 25-39)
Council Decision 2004/80/EC of 17 December 2003 concerning the conclusion of the Agreement between the European Community and the Government of the Hong Kong Special Administrative Region of the People’s Republic of China on the readmission of persons residing without authorisation (OJ L 17, 24.1.2004, pp. 23-24)
Macao
Agreement between the European Community and the Macao Special Administrative Region of the People’s Republic of China on the readmission of persons residing without authorisation (OJ L 143, 30.4.2004, pp. 99-115)
Council Decision 2004/424/EC of 21 April 2004 concerning the conclusion of the Agreement between the European Community and the Macao Special Administrative Region of the People’s Republic of China on the readmission of persons residing without authorisation (OJ L 143, 30.4.2004, pp. 97-98)
Moldova
Agreement between the European Community and the Republic of Moldova on the readmission of persons residing without authorisation — Declarations (OJ L 334, 19.12.2007, pp. 149-167)
Council Decision 2007/826/EC of 22 November 2007 on the conclusion of the Agreement between the European Community and the Republic of Moldova on the readmission of persons residing without authorisation (OJ L 334, 19.12.2007, p. 148)
Montenegro
Agreement between the European Community and the Republic of Montenegro on the readmission of persons residing without authorisation — Joint Declarations (OJ L 334, 19.12.2007, pp. 26-44)
Council Decision 2007/818/EC of 8 November 2007 on the conclusion of the Agreement between the European Community and the Republic of Montenegro on the readmission of persons residing without authorisation (OJ L 334, 19.12.2007, p. 25)
North Macedonia
Agreement between the European Community and the former Yugoslav Republic of Macedonia on the readmission of persons residing without authorisation — Joint Declarations (OJ L 334, 19.12.2007, pp. 7-24)
Council Decision 2007/817/EC of 8 November 2007 on the conclusion of the Agreement between the European Community and the former Yugoslav Republic of Macedonia on the readmission of persons residing without authorisation (OJ L 334, 19.12.2007, pp. 1-2)
Pakistan
Agreement between the European Community and the Islamic Republic of Pakistan on the readmission of persons residing without authorisation (OJ L 287, 4.11.2010, pp. 52-67)
Council Decision 2010/649/EU of 7 October 2010 on the conclusion of the Agreement between the European Community and the Islamic Republic of Pakistan on the readmission of persons residing without authorisation (OJ L 287, 4.11.2010, pp. 50-51)
Russia
Agreement between the European Community and the Russian Federation on readmission — Joint Declarations (OJ L 129, 17.5.2007, pp. 40-60)
Council Decision 2007/341/EC of 19 April 2007 on the conclusion of the Agreement between the European Community and the Russian Federation on readmission (OJ L 129, 17.5.2007, pp. 38-39)
Serbia
Agreement between the European Community and the Republic of Serbia on the readmission of persons residing without authorisation (OJ L 334, 19.12.2007, pp. 46-64)
Council Decision 2007/819/EC of 8 November 2007 on the conclusion of the Agreement between the European Community and the Republic of Serbia on the readmission of persons residing without authorisation (OJ L 334, 19.12.2007, p. 45)
Sri Lanka
Agreement between the European Community and the Democratic Socialist Republic of Sri Lanka on the readmission of persons residing without authorisation — Declarations (OJ L 124, 17.5.2005, pp. 43-60)
Council Decision 2005/372/EC of 3 March 2005 concerning the conclusion of the Agreement between the European Community and the Democratic Socialist Republic of Sri Lanka on the readmission of persons residing without authorisation (OJ L 124, 17.5.2005, pp. 41-42)
Turkey
Agreement between the European Union and the Republic of Turkey on the readmission of persons residing without authorisation (OJ L 134, 7.5.2014, pp. 3-27)
Council Decision 2014/252/EU of 14 April 2014 on the conclusion of the Agreement between the European Union and the Republic of Turkey on the readmission of persons residing without authorisation (OJ L 134, 7.5.2014, pp. 1-2)
Ukraine
Agreement between the European Community and Ukraine on the readmission of persons — Annexes — Declaration — Joint Declarations (OJ L 332, 18.12.2007, pp. 48-65)
Council Decision 2007/839/EC of 29 November 2007 concerning the conclusion of the Agreement between the European Community and Ukraine on readmission of persons (OJ L 332, 18.12.2007, pp. 46-47)
RELATED DOCUMENTS
Consolidated version of the Treaty on the Functioning of the European Union — Protocol (No 21) on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice (OJ C 202, 7.6.2016, pp. 295-297)
Consolidated version of the Treaty on the Functioning of the European Union — Protocol (No 22) on the position of Denmark (OJ C 202, 7.6.2016, pp. 298-302)
Information relating to the entry into force of the Agreement between the European Union and the Republic of Turkey on the readmission of persons residing without authorisation (OJ L 267, 6.9.2014, p. 1)
Information relating to the entry into force of the Agreement between the European Union and the Republic of Cape Verde on the readmission of persons residing without authorisation (OJ L 321, 7.11.2014, p. 1)
Information relating to the entry into force of the Agreement between the European Union and the Republic of Azerbaijan on the readmission of persons residing without authorisation (OJ L 215, 21.7.2014, p. 1)
Information relating to the entry into force of the Agreement between the European Union and the Republic of Armenia on the readmission of persons residing without authorisation (OJ L 334, 13.12.2013, p. 1)
Information relating to the entry into force of the Agreement between the European Union and Pakistan on the readmission of persons residing without authorisation (OJ L 124, 13.5.2011, p. 1)
Information relating to the entry into force of the Agreement between the European Union and Georgia on the readmission of persons residing without authorisation (OJ L 44, 18.2.2011, p. 1)
Information relating to the entry into force of the Agreement between the European Community and the Republic of Moldova on the re-admission of persons residing without authorisation (OJ L 24, 29.1.2008, p. 51)
Information relating to the entry into force of the Agreement between the European Community and the Republic of Montenegro on the re-admission of persons residing without authorisation (OJ L 24, 29.1.2008, p. 51)
Information relating to the entry into force of the Agreement between the European Community and the former Yugoslav Republic of Macedonia on the re-admission of persons residing without authorisation (OJ L 24, 29.1.2008, p. 51)
Information relating to the entry into force of the Agreement between the European Community and the Republic of Serbia on the re-admission of persons residing without authorisation (OJ L 24, 29.1.2008, p. 51)
Information relating to the entry into force of the Agreement between the European Community and Ukraine on the re-admission of persons (OJ L 24, 29.1.2008, p. 52)
Information relating to the entry into force of the Agreement between the European Community and Bosnia and Herzegovina on the re-admission of persons residing without authorisation (OJ L 24, 29.1.2008, p. 52)
Information relating to the entry into force of the Agreement between the European Community and the Republic of Albania on the facilitation of the issuance of visas (OJ L 24, 29.1.2008, p. 52)
Information relating to the entry into force of the Agreement between the European Community and the Russian Federation on the readmission of persons residing without authorisation (OJ L 156, 16.6.2007, p. 37)
Information relating to the entry into force of the Agreement between the European Community and the Democratic Socialist Republic of Sri Lanka on the readmission of persons residing without authorisation (OJ L 138, 1.6.2005, p. 17)
Information concerning the entry into force of the Agreement between the European Community and the Macao Special Administrative Region of the People’s Republic of China on the readmission of persons residing without authorisation (OJ L 258, 5.8.2004, p. 17)
Information on the entry into force of the Agreement between the European Community and the Government of the Hong Kong Special Administrative Region of the People’s Republic of China on the readmission of persons residing without authorisation (OJ L 64, 2.3.2004, p. 38)