28 March 2012
Lomé Convention used to impose repatriation on the world's poorest countries
- EU Council of Ministers by-pass parliamentary scrutiny
- proposal "non-contentious" says UK Home Office Minister
Statewatch bulletin vol 10 no 2 (March-May 2000)
The negotiations between the EU and African, Caribbean and Pacific countries (ACP) on a new Lomé Convention, begun in 1998, were completed in February. The agreement contained, for the first time, draconian rules on the repatriation/expulsion of people "illegally present" in the EU. The ACP countries had little choice but to accept the EU terms as these proposals were only introduced into the negotiations, involving £8.5 billion aid and trade, at the last minute.
The European Commission, which conducted the neogtiations, described this proposal of the new Lomé agreement as:
"a balanced agreement enshrining the principle of cooperation on this issue." (Information Memo no 10)
How were the clauses in the agreement obliging some of the poorest countries in the world to take back people expelled from the EU agreed? How was it that the EU could lay down that these "readmission agreements" covering not only nationals of the third country but also: "an obligation for the readmission of nationals of other countries and of stateless persons"?
The Lomé negotiations
The negotiations began in 1998 and four meetings were held. At the second, on 29-30 July 1999 in Brussels, there were substantial disagreements on many of the central issues on the table - aid, the "liberalisation" of trade (which unequally benefits the EU over the ACP countries), return of cultural goods etc. It was officially described by the EU as: "All in all a disappointing conference". The only mention of the issue of readmission was: "An exchange of views was held on migration and negotiators were asked to look into the issues involved in greater detail." (Information Memo 8, 1999).
The first mention of readmission/repatriation was at the EU-ACP meeting on 7-8 December 1999, just two months before the agreement had to be signed - as the Guardian commented one of the "sticking points" was "the immigration clause which the EU threw in at the last minute." The Commission reported:
"A thorny issue still has to be settled, however: in the cooperation on migration, the clause on the readmission or return of illegal immigrants is still under discussion." (Information Memo 9, 1999).
At the fourth and final meeting of EU-ACP countries the Commission's view was:
"Remaining on the agenda for the February meeting was the new dialogue on migration, and in particular the proposed EU arrangement to repatriate illegal immigrants to the country of origin. The ACP were willing to accept readmission of their own citizens, but rejected readmission of non-nationals or stateless persons who transit their territory. They held the view that the proposed clause had no basis in international law."
"The European Community was mandated by the Tampere European Council in October 1999, and by the recent Justice and Home Affairs (JHA) Council's decision to include standard clauses in agreements with third countries on the question of readmission. This issue gave rise to protracted bargaining, delaying discussion on other remaining questions. The Commission was firm on the principle, but not inflexible. Agreement was finally reached on a framework agreement - which provides a basis for negotiated bilateral agreements with each ACP state." (EU-ACP Bulletin, 10.2.00)
In other words, to get the overall deal through the world's poorest countries had to accept the "EU arrangement" on readmission/repatriation.
The ACP's view that the obligation to accept non-nationals and stateless persons had no basis in international law is almost certainly correct. Indeed, the opinion of the Council's own Legal Service, dated 10 March 1999, goes further, it says:
"it is doubtful whether, in the absence of a specific agreement to this effect [readmission] between the concerned states, a general principle of international law exists, whereby these states would be obliged to readmit their own nationals when the latter do not wish to return to their State of origin." (para 6., doc no: 6658/99)
The implication of the Council's Legal Service view was that unless an agreement of readmission was in place there was no obligation in international law for non-EU countries to accept back their own nationals, third-country nationals or stateless persons. (The Legal Service Opinion also makes clear that readmission agreements, under the TEC Article 63.3.b., would cover not just those found to be "illegally" resident but also asylum-seekers whose application has been turned down: para 11).
Article 13 of Lomé
The EU-ACP Lomé IV Convention agreed in February includes Article 13 on "Migration". The Article starts with a number of generalisations about "reducing poverty" and "normalising migratory flows". It politely refers to repatriation suggesting how "illegal immigrants" benefit: "the authorities concerned shall extend to them the administrative facilities necessary for their return."(5.b.)
Article 5.c. reads as follows:
"(i) each Member State of the European Union shall accept the return of and readmit any of its nationals who are illegally present on the territory of an ACP State, at that State's request and without further formalities;
each of the ACP States shall accept the return of and readmit any of its nationals who are illegally present on the territory of a Member State of the European Union, at that Member State's request and without further formalities;
The Member States and the ACP States will provide their nationals with appropriate identity documents for such purposes...
(ii) At the request of a Party, negotiations shall be initiated with ACP States aiming at concluding in good faith and with due regard for the relevant rules of international law, bilateral agreements governing specific obligations for the readmission and return of their nationals. These agreements shall also cover, if deemed necessary by any of the Parties, arrangements for the readmission of third country nationals and stateless persons..."
At a stroke the EU got through a deal which allows any EU member state to require of an ACP country to sign an agreement accepting the expulsion from the EU and return of its nationals and any third-country national or stateless persons who came to the EU from that country (passed through, "transitted", from the ACP country), and any rejected asylum-seekers.
It was critical for the EU to get a deal on the expulsion of "illegals" with the ACP countries as the new Lomé agreement covers the years 2000-2007. To do this the EU, which holds all the main cards in the negotiations, used typical diplomatic sleight of hand by introducing the proposal at the very last minute. So when and how did the EU decide on this new policy?
EU intent set from 1998
An examination of the decision-making process shows that the EU intended to get readmission clauses (if not on the model agreement on readmission itself) into agreements with third countries from 1998 onwards - before the Lomé negotiations started.
In 1996 the EU adopted a set of "Conclusions" setting out clauses to be included on a bilateral basis in mixed agreements (an agreement between an EU member state and a non-EU state). The wording and effect of the three clauses in the document are exactly the same as those that were adopted by the EU in December 1999. These "Conclusions" were not binding on EU member states and were not discussed by the European or national parliaments.
It was the Netherlands Presidency of the EU which oversaw a decision to gather information within the EU on "voluntary repatriation" in May 1997. A month later the Amsterdam Treaty included, in Article 63.3.b., the adoption of measures within five years to cover: "illegal immigration and illegal residence, including repatriation of illegal residents". During 1998 there was much discussion in the Council Migration Working Party (Expulsion) over drafts of a letter (drawn up by the Austrian and German EU Presidencies) to be sent to third countries on a "standard [EU] travel document for the expulsion of third country nationals." (see Statewatch European Monitor, vol 1 no 2).
The "Action Plan establishing an area of freedom, security and justice" adopted in December 1998 spelt out a timetable for "a coherent EU policy on readmission and return" (36.c.ii, within two years) and "improved EU coordination implementation of readmission clauses" (38.c.i, within five years).
It was the report of the High Level Group on Migration adopted in January 1999, just two months later, which spelt out the need for a "cross-pillar" approach to combatting "illegal immigration". This entailed, for the six selected countries, not just readmission clauses in agreements with non-EU states and the use of economic (aid and trade) and diplomatic pressure to achieve EU objectives - just the approach taken in the EU-ACP negotiations. The Tampere Summit on October 1999 confirmed this view (Conclusions 26 and 27).
Beneath these general decisions there were two issues on the table of the Council's working parties:
a) a proposal from the Austrian Presidency before the Migration Working Party (Repatriation) for a single multilateral agreement between the EU Member States (the "Community") and third countries. Two reports detailing a draft agreement with 17 Articles, dated 13 July 1998 and 21 December 1998, clearly underline the intent of the EU (this is still under discussion);
b) another, linked, proposal before the Migration Working Party on Readmission to put readmission clauses in agreements with third countries ("mixed agreements").
In April 1999 the German EU Presidency put a report to the Migration Working Party (Expulsion) which stated:
"the incorporation of readmission clauses in association and cooperation agreements concluded by the Community with third countries.. [has] a major role to play in a comprehensive policy with regard to expulsion... [a] coherent policy with regard to expulsion... may include all areas, but especially economic, development and foreign policy aspects."
A month later, in a report dated 11 May 1999, the German Presidency put before the Readmission Working Party a report which simply replicated the 1995 "Conclusions" but now, in the context of the Amsterdam Treaty, to produce a formal EU decision. Why the German Presidency did not simply process this report and put it through a Council of Ministers meeting is not at all clear as there were no changes to the text between May and December.
On 15 September, the now renamed Migration Working Party (Expulsion), adopted the position put forward in May and the Strategic Committee on Immigration, Frontiers and Asylum (SCIFA) nodded it through at its meeting on 21 October. COREPER discussed the proposal at its meetings on 16 and 24 November 1999 recommending the Council adopt it as an "A" Point. It was not on the circulated "A" Point agenda of the Justice and Home Affairs Council scheduled for 2 December. Indeed the UK Home Office informed parliament that the draft Decision:
"has never previously been produced as a depositable document and has suddenly appeared as a Council Decision for agreement at the Council. We expect that this will be dropped as other Member States are likely to be similarly concerned at the appearance of this item as an "A" point." (emphasis added)
But it was slotted in and adopted by EU Ministers without discussion - in time to be sprung on the ACP countries on 7-8 December 1999.
Council by-passes parliamentary scrutiny
The original 1996 "Conclusions" was discussed and agreed at the JHA Council on 23 November 1995 and formally adopted as an "A" Point (without debate) by the Environment Council on 4 March 1996 under the intergovernmental processes of the Maastricht treaty. The European Parliament was not consulted, national parliaments had few powers (and were rarely consulted) and civil society left quite ignorant. The 1996 "Conclusions" were adopted by the EU Council of Ministers by a process which was totally undemocratic.
The Amsterdam Treaty set out new procedures. New measures have to be published in the Official Journal in advance of adoption. The European Parliament has to be consulted under the new provisions of Title IV of the Treaty establishing the European Communities (TEC) covering asylum and immigration policy under Article 67.1 and in such cases national parliaments have to be consulted too.
National and European parliaments were not consulted, nor was civil society informed, of the "Conclusions" adopted by 2 December 1999 by the JHA Council. The European Parliament registered it objection to not being consulted in a Resolution in February.
In the UK the House of Lords Select Committee on the European Communities expressed its concern at not being sent the document for parliamentary scrutiny - especially having been informed that it was unlikely to be adopted.
On 21 January the Immigration and Nationality Directorate (IND) replied to the Select Committee. Their letter said that initially the UK (and other Member States):
"were concerned that, not having seen the document concerned, it appeared to be a proposal which had not previously been discussed at working group level..."
Subsequently, we were informed that the item referred to an issue which simply involved the updating of standard wording dating from 1995 relating to readmission, to be inserted in future Community agreements. This updating was required as a result of the entry into force of the Amsterdam Treaty. The Council Legal Service did not regard this as a formal measure and, having considered the text, we concluded that it was non-contentious and caused the UK no difficulties."
To suggest that the UK (and other Member States) did not know of this document is incomprehensible. It was discussed at EU meetings, attended by officials of all EU member states, in Brussels on 15 May, 15 September, 21 October, 16 and 24 November 1999. Moreover, to suggest that it was not a "formal measure" (Council Legal Service) is quite erroneous.
On 26 January the Chair of the Select Committee, Lord Tordoff, wrote to Barbara Roche, Home Office Minister. Lord Tordoff said he found the explanation "unsatisfactory" especially as the:
"covering Note from the Council General Secretariat states that the text of the Decision was agreed by Coreper on 24 November. The content of the draft Decision must have been known to officials some time in advance of the Council meeting..."
He went to say that to suggest the draft Decision should not be sent to parliament for scrutiny was "surprising" and regretted that the Select Committee "did not have the opportunity" to look at the report as: "Your officials considered the text to be non-contentious."
Barbara Roche, Home Office Minister responsible for EU matters, replied to Lord Tordoff on 21 February. The Minister's letter reiterated all the points in the previous letter from the IND official. It "appeared to be a proposal which had not previously been discussed at working group level...", "we were informed [it] simply involved the updating of standard wording dating from 1995...", "this updating was required as a result of the entry into force of the Amsterdam Treaty", and:
"we concluded that it was non-contentious"
The Minister goes on to say:
"The Council was advised that this was neither a formal measure expressly provided for in the Treaty, nor an informal measure (such as a negotiating mandate) which was directly linked to such a measure..."
So, if it was not a "formal" measure and not an "informal" measure what was it? As to the Ministers' arguments:
1. the proposal had been discussed at least five times within the Council prior to 2 December;
2. it was not simply "updating of standard wording" as "technical amendments", it was seeking to turn Council Conclusions of 1996 into a measure adopted under the terms of the Amsterdam Treaty - it was not a "technical" issue but a constitutional one.
3. As the Minister recognised Article 63(3)(b) of Title IV of the Treaty establishing the European Communities allows the Community to conclude readmission agreements with third countries including the "repatriation of illegal residents". But the same Treaty in the same Title IV says in Article 67.1 the Council can only adopt a proposal after "consulting the European Parliament."
4. The real flaw in the Minister's argument, based on the opinion of the Council's Legal Service, is that under the new Treaty the "transformation" of a pre-Amsterdam measure into an Amsterdam measure has to follow a set procedure. This process is known as the "Amsterdamisation" of measures adopted under the previous Maastricht Treaty and "the Council must consult the European Parliament on the transformed initiatives.." for Title VI issues still under the Treaty on European Union (TEU). No less a standard can apply when a decision involves a measure whose legal base has been transferred from the TEU under Maastricht Treaty to the TEC under the Amsterdam Treaty.
This official account, which tries to construct a plausible justification for by-passing parliamentary accountability, is a classic example of the closed (to the public and parliaments that is) world that officials and Ministers inhabit on justice and home affairs issues in the EU.
Officials in the Home Office in the UK (and their counterparts in Interior Ministries across the EU) clearly knew a proposal to "transform" the 1996 Conclusions on readmission clauses to a Decision under the Amsterdam Treaty was on the table. It appears though that none knew until it "suddenly appear[ed]" on the agenda of the JHA Council on 2 December 1999 that it was to be adopted at that meeting. This left no time at all to consult either national parliaments or the European Parliament. The JHA Council of Ministers just nodded it through, without any discussion. The imperative to railroad the measure through before the Lomé meeting just five days later was the overriding consideration.
Sources: "Consequences of the Treaty of Amsterdam on readmission clauses in Community agreements and in agreements between the European Community, its Member States and third countries (mixed agreements)", ref: 7292/99, MIGR 20, 11.5.99, ref: 11052/99 MIGR 58, 23.9.99, 12134/99 MIGR 64, 21.10.99 and 13409/99 MIGR 69, 25.11.99; "Model agreement on readmission between the Member States of the European Union, on the one part, and third countries, on the other": Advice of the Legal Service, ref: 6658/99, JUR 95 ASIM 8 MIGR 13, 10.3.99; "Draft Readmission Agreement between the EU Member States, on the one part, and third countries, on the other part", ref: 10338/98, ASIM 184 MIGR 8, 13.7.98 and 10338/1/98 REV 1, ASIM 184 MIGR 8, 21.12.98; Commission Information Memos 8, 9 and 10, dated 29-30.7.99, 7-8.12.99, 2-3.2.00 and EU-ACP Bulletin, 10.2.00; "Strategy on migration and asylum policy", ref: 6097/99, MIGR 18, 12.4.99; "Council conclusions on clauses to be inserted in future mixed agreements", ref: 4272/96, ASIM 6, 22.1.96; Letter from Immigration and Nationality Department (IND) to House of Lords Select Committee on the European Communities, 21.1.00; Letter from Lord Tordoff, Chair of the House of Lords Select Committee on the European Communities to Home Office Minister, 26.1.00; Letter from Home Office Minister, Barbara Roche, to Lord Tordoff, 21.2.00; Guardian, 5.2.00.
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