EUROPEAN COMMISSION

Brussels, 30.8.2019

COM(2019) 401 final

2019/0181(NLE)

Proposal for a

COUNCIL DECISION

on the conclusion of the Agreement between the European Union
and the Republic of Belarus on the readmission of persons residing without authorisation

EXPLANATORY MEMORANDUM

1.CONTEXT OF THE PROPOSAL

In the context of the Eastern Partnership Summit in May 2009, the EU reaffirmed its political support towards full liberalization of the visa regime in a secure environment, and towards promoting mobility by concluding visa facilitation and readmission agreements with Eastern Partnership countries. According to the common approach for the development of EU policy on visa facilitation agreed at the level of COREPER by the Member States in December 2005, a visa facilitation agreement would not be concluded without a readmission agreement being in place.

On that basis, the Commission presented on 12 November 2010, a recommendation to the Council with a view to obtaining directives to negotiate Agreements with the Republic of Belarus on, respectively, the facilitation of the issuance of short-stay visas, and readmission of persons residing without authorisation.

On 28 February 2011, the Council formally authorised the Commission to negotiate a readmission agreement between the European Union and Belarus.

The negotiations were formally launched on 30 January 2014 and the first round of formal negotiations was held in Minsk on 13 June 2014. It was followed by a three rounds of negotiations first in Brussels on 25 November 2014 then and on 11 March 2015 and on 20 June 2017 in Minsk. The chief negotiators initialled the text of the agreement on 17 June 2019 via exchange of emails.

In the meantime, Belarus, the European Union and seven participating Member States (Bulgaria, Romania, Lithuania, Poland, Hungary, Finland and Latvia) signed a Joint Declaration on a Mobility Partnership on 13 October 2016.

Member States have been regularly informed and consulted in the relevant Council’s Working Parties at all stages of the negotiations. The final draft of the Agreement text was shared with the Justice and Home Affairs Counsellors (Migration, Integration, and Expulsion) and endorsed, via silence procedure, on 12 April 2019.

On 17 April 2019, the European Parliament was informed about the conclusion of negotiations on both the Visa Facilitation and Readmission Agreements, by means of a letter sent by the Director General of DG Migration and Home Affairs to the Chair of the Committee on Civil Liberties, Justice and Home Affairs. The draft texts of both Agreements were annexed.

The proposed decision concerning the conclusion sets out the necessary internal arrangements for the practical application of the Agreement. In particular, it specifies that the Commission, assisted by experts from Member States, represents the Union within the Joint Readmission Committee set up by Article 19 of the Agreement.

The attached proposal constitutes the legal instrument for the conclusion of the Agreement. The Council will decide by qualified majority.

2.AIM AND CONTENT OF THE AGREEMENT

The Agreement between the European Union and the Republic of Belarus on the readmission of persons residing without authorisation (hereinafter: ‘the Agreement’) aims to establish rapid and effective procedures for the identification and safe and orderly return of persons who do not, or no longer, fulfil the conditions for entry to, presence in, or residence on the territory of Belarus or one of the Member States of the European Union, and to facilitate the transit of such persons in a spirit of co-operation.

The Commission considers that the objectives set by the Council in its negotiating directives were attained and that the draft Readmission Agreement is acceptable to the Union.

The final content of this Agreement can be summarised as follows:

–The Agreement is divided into 8 sections with 24 articles altogether. The Agreement also contains 7 annexes, which form an integral part of it, and 5 joint declarations.

–The Agreement contains an opening clause, reaffirming that the Agreement shall be applied so as to ensure respect for human rights, and for the obligations and responsibilities of the Requested State and Requesting State under relevant international instruments applicable to them, and reiterating that the Requested State shall in particular ensure the protection of the rights of persons readmitted to its territory in compliance with those international instruments.

–The readmission obligations set out in the Agreement (Articles 3 - 6) are drawn up in a fully reciprocal manner, comprising own nationals (Articles 3 and 5) as well as third country nationals and stateless persons (Articles 4 and 6).

–The obligation to readmit own nationals includes also former own nationals who have been deprived of, or who have renounced their nationality without acquiring the nationality of another State.

–The readmission obligation with regard to own nationals covers also family members (i.e. spouses and minor unmarried children) regardless of their nationality and who do not have an independent right of residence in the Requesting State.

–The obligation to readmit third country nationals and stateless persons (Articles 4 and 6) is linked to the following prerequisites: (a) the person concerned holds, at the time of entry, either a residence permit issued by the Requested State or a valid visa issued by the Requested State accompanied by a proof of entry to the territory of the Requested State; or (b) the person concerned illegally and directly entered the territory of the Requesting State after having stayed on, or transited through, the territory of the Requested State. Such readmission obligation does not apply in relation to persons who have only been in airside transit or who have been issued a visa or a residence permit by the Requesting State unless i) the visa or residence permit, issued by the Requested State has a longer period of validity, ii) the visa or residence permit issued by the Requesting State has been obtained fraudulently or iii) that person fails to observe any condition attached to the visa.

–For own nationals, in case of expiry of the specified delay, and for third country nationals or stateless persons Belarus accepts the use of the European travel document for return (Articles 3(5) and 4(3)). The equivalent standard document of the Republic of Belarus is included in Annex 7.

–Section III of the Agreement (Articles 7 to 13 in conjunction with annexes 1 to 5) contains the necessary technical provisions regarding the readmission procedure (readmission application, means of evidence, time limits, transfer modalities and modes of transportation) and 'readmission in error' (Article 13). Procedural flexibility is provided by the fact that no readmission application will be needed in cases where the person to be readmitted is in possession of a valid travel document (Article 7(2)).

–In Article 7(3), the Agreement sets out the so-called accelerated procedure which has been agreed upon for persons apprehended in an area which extends up to 30 kilometres from the common land border between a Member State and Belarus, as well as within the territory of the international airports of the Member States and Belarus. Under the accelerated procedure, readmission applications have to be submitted within 2 working days and replies have to be given within 2 working days, whereas under the normal procedure the time limit for replies is 10 calendar days (Article 11(2)).

–The Agreement contains a section on transit operations (Articles 14 and 15 in conjunction with annex 6).

–Articles 16, 17 and 18 contain the necessary rules on costs, data protection and the relation to other international obligations.

–The Joint Readmission Committee will be composed, and have the tasks and powers, as set out in Article 19.

–In order to facilitate the implementation of this Agreement, Article 20 creates the possibility for Belarus and individual Member States to conclude bilateral implementing Protocols. The relation between bilateral agreements or arrangements and this Agreement is clarified by Article 21.

–The final provisions (Articles 22 to 24) contain the necessary rules on territorial application, entry into force, duration, possible amendments, suspension, termination and the legal status of the annexes to the agreement.

–The specific situation of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland is reflected in the preamble, Article 1(d), Article 22(2) and, regarding Denmark, in a relevant joint declaration. The close association of Iceland, Norway, Switzerland and Liechtenstein with the implementation, application and development of the Schengen acquis has been taken into account, and is reflected in relevant joint declarations to the Agreement.

3.LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY

·Legal basis

This proposal is submitted to the Council in order to conclude the Agreement.

The legal basis for this proposal is Article 79(3) of the Treaty on the Functioning of the European Union (TFEU), in conjunction with Article 218(6)(a) thereof.

·Subsidiarity (for non-exclusive competence)

Not applicable.

·Proportionality

The present proposal does not go beyond what is necessary to achieve the objective pursued, namely the conclusion of an international agreement on the readmission of persons residing without authorisation.

4.BUDGETARY IMPLICATIONS

This proposal does not entail additional costs for the EU budget.

5.CONCLUSIONS

In light of the above-mentioned results, the Commission proposes that the Council, after having received consent from the European Parliament, approves the conclusion of the attached Agreement between the European Union and the Republic of Belarus on readmission of persons residing without authorisation.

2019/0181 (NLE)

Proposal for a

COUNCIL DECISION

on the conclusion of the Agreement between the European Union
and the Republic of Belarus on the readmission of persons residing without authorisation

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 79(3), in conjunction with Article 218(6)(a), thereof

Having regard to the proposal from the Commission,

Having regard to the consent of the European Parliament 1 ,

Whereas:

(1)In accordance with Council Decision XXXX/XXX 2 , the Agreement between the European Union and the Republic of Belarus on readmission of persons residing without authorisation (ʻthe Agreementʼ) was signed by the Commission on [ ], subject to its conclusion at a later date.

(2)In the context of the Eastern Partnership Summit in May 2009, the Union and the partner countries reaffirmed their political support towards full liberalization of the visa regime in a secure environment, and towards promoting mobility by concluding visa facilitation and readmission agreements with Eastern Partnership countries.

(3)The purpose of the Agreement is to establish rapid and effective procedures for the identification and safe and orderly return of persons who do not, or no longer, fulfil the conditions for entry to, presence in, or residence on the territory of Belarus or one of the Member States of the European Union, and to facilitate the transit of such persons in a spirit of co-operation.

(4)The Commission should represent the Union in the Joint Readmission Committee established by Article 19 of the Agreement.

(5)In accordance with [Articles 1 and 2] Article 3 of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, [and without prejudice to Article 4 of that Protocol,] the United Kingdom [is not taking part in the adoption of this Decision and will not be bound by it or subject to its application [unless it notifies its wish to that effect in accordance with that Protocol] / has notified [, by letter of …,] its wish to take part in the adoption and application of this Decision].

(6)In accordance with [Articles 1 and 2] Article 3 of Protocol No 21 on the position of the United Kingdom and Ireland, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, [and without prejudice to Article 4 of the said Protocol,] Ireland [is not taking part in the adoption of this Decision and will not be bound by it or subject to its application [unless it notifies its wish to that effect in accordance with that Protocol] / has notified [, by letter of …,] its wish to take part in the adoption and application of this Decision].

(7)In accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, Denmark is not taking part in the adoption of this Decision and is not bound by it or subject to its application,

(8)Therefore, the Agreement should be approved on behalf of the European Union,

HAS ADOPTED THIS DECISION:

Article 1

The Agreement between the European Union and the Republic of Belarus on readmission of persons residing without authorisation (ʻthe Agreementʼ) is hereby approved on behalf of the Union.

The text of the Agreement and of the Joint Declarations are attached to this Decision.

Article 2

The President of the Council shall designate the person empowered to proceed, on behalf of the European Union, to the notification provided for in Article 23(2) of the Agreement, in order to express the consent of the European Union to be bound by the Agreement.

Article 3

The Commission, assisted by experts from Member States, shall represent the Union in the Joint Readmission Committee established by Article 19 of the Agreement.

Article 4

This Decision shall enter into force on the day of its adoption 3 .

Done at Brussels,

(1)    OJ C , , p. .

(2)    Council Decision, of . .2019, on the signing, on behalf of the European Union, of the Agreement between the European Union and the Republic of Belarus on the readmission of persons residing without authorisation (OJ L , , p. ).

(3)    The date of entry into force of the Agreement will be published in the Official Journal of the European Union by the General Secretariat of the Council.

EUROPEAN COMMISSION

Brussels, 30.8.2019

COM(2019) 401 final

ANNEX

to the

Draft proposal for a

COUNCIL DECISION

on the conclusion of the Agreement between the European Union and the Republic of Belarus on the readmission of persons residing without authorisation

ANNEX

AGREEMENT

between the European Union and the Republic of Belarus

on the readmission of persons residing without authorisation

THE PARTIES,

THE EUROPEAN UNION, hereinafter referred to as ʻthe Unionʼ,

and

THE REPUBLIC OF BELARUS, hereinafter referred to as ʻBelarusʼ,

DETERMINED to strengthen their co-operation in order to combat illegal immigration more effectively,

DESIRING to establish, by means of this Agreement and on the basis of reciprocity, rapid and effective procedures for the identification and safe and orderly return of persons who do not, or no longer, fulfil the conditions for entry to, presence in, or residence on the territory of Belarus or one of the Member States of the European Union, and to facilitate the transit of such persons in a spirit of co-operation,

EMPHASISING that this Agreement shall be without prejudice to the rights, obligations and responsibilities of the Union, the Member States of the European Union and Belarus arising from international law and, in particular, from the Convention of 28 July 1951 on the Status of Refugees and its Protocol of 31 January 1967,

CONSIDERING that in accordance with Protocol No 21 on the position of the United Kingdom of Great Britain and Northern Ireland and of Ireland in respect of the area of Freedom, Security and Justice annexed to the Treaty on European Union and the Treaty on the Functioning of the European Union, the United Kingdom of Great Britain and Northern Ireland and Ireland will not take part in this Agreement unless they notify their wish to that effect in accordance with that Protocol,

CONSIDERING that the provisions of this Agreement, which falls within the scope of Title V of Part Three of the Treaty on the Functioning of the European Union, do not apply to the Kingdom of Denmark, in accordance with the Protocol on the position of the Kingdom of Denmark annexed to the Treaty on European Union and the Treaty on the Functioning of the European Union,

HAVE AGREED AS FOLLOWS:

Article 1

Definitions

For the purpose of this Agreement:

(a)    'Parties' shall mean Belarus and the Union;

(b)    'National of Belarus' shall mean any person who holds the nationality of Belarus;

(c)    'National of a Member State' shall mean any person who holds the nationality, as defined for Union purposes, of a Member State of the European Union;

(d)    'Member State' shall mean any Member State of the European Union bound by this agreement;

(e)    'Third-country national' shall mean any person who holds a nationality other than that of Belarus or one of the Member States;

(f)    'Stateless person' shall mean any person who does not hold a nationality;

(g)    'Residence permit' shall mean a permit of any type issued by Belarus or one of the Member States entitling a person to reside on its territory. This shall not include temporary permissions to remain on its territory in connection with the processing of an asylum application or an application for a residence permit;

(h)    'Visa' shall mean an authorisation issued or a decision taken by Belarus or one of the Member States which is required with a view to entry in, or transit through, its territory. This shall not include airport transit visa;

(i)    'Requesting State' shall mean the State (Belarus or one of the Member States) submitting a readmission application pursuant to Article 8 or a transit application pursuant to Article 15 of this Agreement;

(j)    'Requested State' shall mean the State (Belarus or one of the Member States) to which a readmission application pursuant to Article 8 or a transit application pursuant to Article 15 of this Agreement is addressed;

(k)    'Competent Authority' shall mean any national authority of Belarus or one of the Member States entrusted with the implementation of this Agreement in accordance with Article 20 (1) (a) thereof;

(l)    'Transit' for the purpose of Section IV shall mean the passage of a third country national or a stateless person through the territory of the Requested State while travelling from the Requesting State to the country of destination;

(m)    'Border region' shall mean an area which extends up to 30 kilometres from the common land border between a Member State and Belarus, as well as the international airports of the Member States and Belarus.

Article 2

Fundamental Principles

While strengthening cooperation on preventing and combating illegal migration, the Requested and Requesting State shall, in the application of this agreement to persons falling within its scope, ensure respect for human rights and for the obligations and responsibilities following from relevant international instruments applicable to the parties, in particular from:

-    the 1948 Universal Declaration of the Human Rights

-    the 1950 European Convention on Human Rights and Fundamental Freedoms

-    the 1965 International Convention on the Elimination of All Forms of Racial Discrimination

-    the 1966 International Covenant on Civil and Political Rights

-    the 1984 UN Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment

-    the 1951 Geneva Convention relating to the Status of Refugees and its Protocol of 1967.

The Requested State shall in particular ensure, in compliance with its obligations under the international instruments listed above, the protection of the rights of persons readmitted to its territory.

Section I

Readmission obligations by Belarus

Article 3

Readmission of own nationals

1.    Belarus shall readmit, upon application by a Member State and without further formalities other than those provided for in this agreement, all persons who do not, or who no longer, fulfil the conditions in force for entry to, presence in, or residence on, the territory of the requesting Member State provided that it is proved, or may be validly assumed on the basis of prima facie evidence furnished, that they are nationals of Belarus.

2.    Belarus shall also readmit:

- minor unmarried children of the persons mentioned in paragraph 1, regardless of their place of birth or their nationality, unless they have an independent right of residence in the Requesting Member State,

- spouses, holding another nationality or being stateless, of the persons mentioned in paragraph 1, provided they have the right to enter and stay or receive the right to enter and stay in the territory of Belarus, unless they have an independent right of residence in the requesting Member State.

3.    Belarus shall also readmit persons who have been deprived of, or who have renounced, the nationality of Belarus since entering the territory of a Member State, unless such persons have at least been promised naturalisation by that Member State.

4.     After Belarus has given a positive reply to the readmission application, the competent diplomatic or consular representation of Belarus shall, irrespective of the will of the person to be readmitted, immediately, free of charge and not later than within three working days, issue the travel document required for the return of the person to be readmitted with a period of validity of six months. If Belarus has not, within three working days, issued the travel document, it shall be deemed to accept the use of the European travel document for return (in line with the form set out in Regulation (EU) No 2016/1953).

5.    If, for legal or other reasons, the person concerned cannot be transferred within the period of validity of the travel document that was initially issued, the competent diplomatic or consular representation of Belarus shall, within three working days and free of charge, issue a new travel document with a period of validity of the same duration. If Belarus has not, within three working days, issued the new travel document, it shall be deemed to accept the use of the European travel document for return (in line with the form set out in Regulation (EU) No 2016/1953).

Article 4

Readmission of third-country nationals and stateless persons

1.    Belarus shall readmit, upon application by a Member State and without further formalities other than those provided for in this Agreement, all third-country nationals or stateless persons who do not, or who no longer, fulfil the conditions in force for entry to, presence in, or residence on, the territory of the requesting Member State provided that it is proved, or may be validly assumed on the basis of prima facie evidence furnished, that such persons:

hold, or at the time of entry held, a residence permit issued by Belarus; or

hold, or at the time of entry held, a valid visa issued by Belarus accompanied by a proof of entry to the territory of Belarus; or

illegally entered the territory of the Member States directly after having stayed on, or transited through, the territory of Belarus.

2.    The readmission obligation in paragraph 1 shall not apply if:

(a)    the third country national or stateless person has only been in airside transit via an International Airport of Belarus; or

(b)    the requesting Member State has issued to the third country national or stateless person a visa or residence permit before or after entering its territory unless:

-    that person is in possession of a visa or residence permit, issued by Belarus, which has a longer period of validity, or

-    the visa or residence permit issued by the requesting Member State has been obtained by using forged or falsified documents, or by making false statements, or

-    that person fails to observe any condition attached to the visa;

3.    Without prejudice to Article 7(2), after Belarus has given a positive reply to the readmission application, the Requesting Member State issues the person whose readmission has been accepted the European travel document for return (in line with the form set out in Regulation (EU) No 2016/1953).

Section II

Readmission obligations by the Union

Article 5

Readmission of own nationals

1.    A Member State shall readmit, upon application by Belarus and without further formalities other than those provided for in this agreement, all persons who do not, or who no longer, fulfil the conditions in force for entry to, presence in, or residence on, the territory of Belarus provided that it is proved, or may be validly assumed on the basis of prima facie evidence furnished, that they are nationals of that Member State.

2.    A Member State shall also readmit:

- minor unmarried children of the persons mentioned in paragraph 1, regardless of their place of birth or their nationality, unless they have an independent right of residence in Belarus,

- spouses, holding another nationality or being stateless, of the persons mentioned in paragraph 1, provided they have the right to enter and stay or receive the right to enter and stay in the territory of the Requested Member State, unless they have an independent right of residence in Belarus.

3.    A Member State shall also readmit persons who have been deprived of, or who have renounced, the nationality of a Member State since entering the territory of Belarus, unless such persons have at least been promised naturalisation by Belarus.

4.     After the Requested Member State has given a positive reply to the readmission application, the competent diplomatic or consular representation of that Member State shall, irrespective of the will of the person to be readmitted, immediately, free of charge and not later than within three working days, issue the travel document required for the return of the person to be readmitted with a period of validity of six months. If the Requested Member State has not, within three working days, issued the travel document, it shall be deemed to accept the use of the standard travel document for expulsion purposes of Belarus (Annex 7).

5.    If, for legal or other reasons, the person concerned cannot be transferred within the period of validity of the travel document that was initially issued, the competent diplomatic or consular representation of that Member State shall, within three working days and free of charge, issue a new travel document with a period of validity of the same duration. If that Member State has not, within three working days, issued the travel document, it shall be deemed to accept the use of the standard travel document for expulsion purposes of Belarus (Annex 7).

Article 6

Readmission of third-country nationals and stateless persons

1.    A Member State shall readmit, upon application by Belarus and without further formalities other than those provided for in this Agreement, all third-country nationals or stateless persons who do not, or who no longer, fulfil the conditions in force for entry to, presence in, or residence on, the territory of Belarus provided that it is proved, or may be validly assumed on the basis of prima facie evidence furnished, that such persons:

hold, or at the time of entry held, a residence permit issued by the Requested Member State; or

hold, or at the time of entry held, a valid visa issued by the Requested Member State accompanied by a proof of entry to the territory of the Requested Member State; or

illegally entered the territory of the Belarus directly after having stayed on, or transited through, the territory of the Requested Member State.

2.    The readmission obligation in paragraph 1 shall not apply if:

(a)    the third country national or stateless person has only been in airside transit via an International Airport of the requested Member State; or

(b)    Belarus has issued to the third country national or stateless person a visa or residence permit before or after entering its territory unless:

-    that person is in possession of a visa or residence permit, issued by the requested Member State, which has a longer period of validity, or

-    the visa or residence permit issued by Belarus has been obtained by using forged or falsified documents, or by making false statements , or

-that person fails to observe any condition attached to the visa.

3.    The readmission obligation in paragraph 1 is for the Member State that issued a visa or residence permit. If two or more Member States issued a visa or residence permit, the readmission obligation in paragraph 1 is for the Member State that issued the document with a longer period of validity or, if one or several of them have already expired, the document that is still valid. If all of the documents have already expired, the readmission obligation in paragraph 1 is for the Member State that issued the document with the most recent expiry date. If no such documents can be presented, the readmission obligation in paragraph 1 is for the Member State of last exit.

4.    Without prejudice to Article 7(2), after the Member State has given a positive reply to the readmission application, Belarus issues the person whose readmission has been accepted the travel document required for his or her return (Annex 7).

Section III

Readmission procedure

Article 7

Principles

1.    Subject to paragraph 2, any transfer of a person to be readmitted on the basis of one of the obligations contained in Articles 3 to 6 shall require the submission of a readmission application to the competent authority of the Requested State.

2.    If the person to be readmitted is in possession of any valid travel document listed in Annex I to this Agreement and, in the case of third country nationals or stateless persons, a valid visa or residence permit of the Requested State the transfer of such person can take place without the Requesting State having to submit a readmission application or written notification referred to in Article 12(1) to the competent authority of the Requested State.

3.    Without prejudice to paragraph 2, if a person has been apprehended in the border region (including airports) of the Requesting State after illegally crossing the border coming directly from the territory of the Requested State, the Requesting State may submit a readmission application within two working days following this person’s apprehension (accelerated procedure).

Article 8

Readmission application

1.    To the extent possible, the readmission application is to contain the following information:

the particulars of the person to be readmitted (e.g. given names, surnames, date of birth, and – where possible – place of birth, and the last place of residence) and, where applicable, the particulars of any spouse and/or minor unmarried children;

in case of own nationals, indication of the means of proof or prima facie evidence of nationality as set out by Annexes 1 and 2 respectively;

in case of third country nationals and stateless persons, indication of the means of proof or prima facie evidence of the conditions for the readmission of third-country nationals and stateless persons as provided for by Annexes 3 and 4 respectively;

photograph of the person to be readmitted;

where necessary, fingerprints, in accordance with the applicable legislation of the Requesting State.

2.    To the extent possible, the readmission application shall also contain the following information:

(a)    a statement indicating that the person to be transferred may need help or care, provided the person concerned has explicitly consented to the statement;

(b)    any other protection, security measure or information concerning the health of the person, which may be necessary in the individual transfer case.

3.    A common form to be used for readmission applications is attached as Annex 5 to this Agreement.

4.    A readmission application may be submitted by any means of communication including electronic means such as fax, e-mails etc.

Article 9

Means of evidence regarding nationality

1.    Proof of nationality pursuant to Article 3 (1) and Article 5 (1) can be furnished through the documents listed in Annex 1 to this Agreement, even if their period of validity has expired. If such documents are presented, the Member States and Belarus shall mutually recognise the nationality without further investigation being required. Proof of nationality cannot be furnished through false documents.

2.    Prima facie evidence of nationality pursuant to Article 3 (1) and Article 5 (1) can be furnished through the documents listed in Annex 2 to this Agreement, even if their period of validity has expired. If such documents are presented, the Member States and Belarus shall deem the nationality to be established, unless they can prove otherwise. Prima facie evidence of nationality cannot be furnished through false documents.

3.    If none of the documents listed in Annexes 1 or 2 can be presented, the competent diplomatic or consular representation of the Requested State concerned shall, upon a request from the Requesting State which is to be included in the readmission application, interview the person to be readmitted without undue delay, at the latest within seven calendar days from the requesting day, in order to establish his or her nationality. The procedure for such interviews may be established in the implementing Protocols provided for in Article 20 of this Agreement.

Article 10

Means of evidence regarding third-country nationals and stateless persons

1.    Proof of the conditions for the readmission of third-country nationals and stateless persons laid down in Article 4 (1) and Article 6 (1) shall be furnished through the means of evidence listed in Annex 3 to this Agreement; it cannot be furnished through false documents. Any such proof shall be mutually recognised by the Member States and Belarus without any further investigation being required.

2.    Prima facie evidence of the conditions for the readmission of third-country nationals and stateless persons laid down in Article 4 (1) and Article 6 (1) shall be furnished through the means of evidence listed in Annex 4 to this Agreement; it cannot be furnished through false documents. Where such prima facie evidence is presented, the Member States and Belarus shall deem the conditions to be established, unless they can prove otherwise.

3.    The unlawfulness of entry, presence or residence shall be established by means of the travel documents of the person concerned in which the necessary visa or other residence permit for the territory of the Requesting State are missing. A statement by the Requesting State that the person concerned has been found not having the necessary travel documents, visa or residence permit shall likewise provide prima facie evidence of the unlawful entry, presence or residence.

Article 11

Time limits

1.    The application for readmission must be submitted to the competent authority of the Requested State within a maximum of 180 days after the Requesting State’s competent authority has gained knowledge that a third-country national or a stateless person does not, or does no longer fulfil the conditions in force for entry, presence or residence. Where there are legal or other obstacles to the application being submitted in time, the time limit shall, upon request by the Requesting State, be extended but only until the obstacles have ceased to exist.

2.    A readmission application must be replied to in writing

-    within two working days if the application has been made under the accelerated procedure (Article 7(3));

-    within 10 calendar days in all other cases.

This time limit begins to run with the date of receipt of the readmission request. If there was no reply within this time limit, the transfer shall be deemed to have been agreed to.

Reply to a readmission application may be submitted by any means of communication including electronic ones e.g. fax, e-mails etc.

3.    Reasons shall be given in writing for the refusal of a readmission request.

4.    After agreement has been given or, where appropriate, after expiry of the time limits laid down in paragraph 2, the person concerned shall be transferred within three months. On request of the Requesting State, this time limit may be extended by the time taken to deal with legal or other obstacles.

Article 12

Transfer modalities and modes of transportation

1.    Without prejudice to Article 7(2), before returning a person, the competent authorities of the Requesting State shall notify in writing at least 72 hours in advance the competent authorities of the Requested State regarding the transfer date, the international point of entry, possible escorts and other information relevant to the transfer.

2.    Transportation may take place by any means including by air. Return by air shall not be restricted to the use of the national carriers of Belarus or the Member States and may take place by using scheduled or charter flights. In the event of escorted returns, such escorts shall not be restricted to authorised persons of the Requesting State, provided that they are authorised persons by Belarus or any Member State.

3. If the transfer takes place by air, possible escorts shall be exempted from having to obtain necessary visas.

Article 13

Readmission in error

The Requesting State shall take back any person readmitted by the Requested State if it is established and justified, within a period of three months after the transfer of the person concerned, that the requirements laid down in Articles 3 to 6 of this Agreement are not met.

In such cases the procedural provisions of this Agreement shall apply mutatis mutandis and all available information relating to the actual identity and nationality of the person to be taken back shall be provided.

Section IV

Transit operations

Article 14

Principles

1.    The Member States and Belarus should restrict the transit of third-country nationals or stateless persons to cases where such persons cannot be returned to the State of destination directly.

2.    Belarus shall allow the transit of third-country nationals or stateless persons if a Member State so requests, and a Member State shall authorise the transit of third-country nationals or stateless persons if Belarus so requests, if the onward journey in possible other States of transit and the readmission by the State of destination is assured.

3.    Transit can be refused by Belarus or a Member State:

if the third-country national or the stateless person runs the real risk of being subjected to torture or to inhuman or degrading treatment or punishment or the death penalty or of persecution because of his race, religion, nationality, membership of a particular social group or political conviction in the State of destination or another State of transit; or

if the third-country national or the stateless person shall be subject to criminal sanctions in the Requested State or in another State of transit; or

on grounds of public health, domestic security, public order or other national interests of the Requested State.

4.    Belarus or a Member State may revoke any authorisation issued if circumstances referred to in paragraph 3 subsequently arise or come to light which stand in the way of the transit operation, or if the onward journey in possible States of transit or the readmission by the State of destination is no longer assured. In this case, the Requesting State shall take back the third-country national or the stateless person, as necessary and without delay.

Article 15

Transit procedure

1.    An application for transit operations must be submitted to the competent authority of the Requested State in writing and is to contain the following information:

(a)    type of transit (by air, sea or land), possible other States of transit and intended final destination;

(b)the particulars of the person concerned (e.g. 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 document);

(c)    envisaged international point of entry, time of transfer and possible use of escorts;

(d)a declaration that in the view of the the conditions pursuant to Article 14 (2) are met, and that no reasons for a refusal pursuant to Article 14 (3) are known of.

A common form to be used for transit applications is attached as Annex 6 to this Agreement.

A transit application may be submitted by any means of communication including electronic means such as fax, e-mails etc.

2.    The Requested State shall, within three working days after receipt of the application and in writing, inform the Requesting State of the admission, confirming the point of entry and the envisaged time of admission, or inform it of the admission refusal and of the reasons for such refusal. If there was no reply within three working days the transit shall be deemed to have been agreed to.

Reply to a transit application may be submitted by any means of communication including electronic means such as fax, e-mails etc.

3.    If the transit operation takes place by air, the person to be readmitted and possible escorts shall be exempted from having to obtain an airport transit visa.

4.    The competent authorities of the Requested State shall, subject to mutual consultations, assist in the transit operations, in particular through the surveillance of the persons in question and the provision of suitable amenities for that purpose.

Section V

Costs

Article 16

Transport and transit costs

Without prejudice to the right of the competent authorities to recover the costs associated with the readmission from the person to be readmitted or third parties, all transport costs incurred in connection with readmission and transit operations pursuant to this Agreement as far as the border of the State of final destination shall be borne by the Requesting State.

Section VI

Data protection and non-affection clause

Article 17

Data Protection

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 Belarus or a Member State as the case may be. The processing and treatment of personal data in a particular case, including its transfer to authorities of the other Party, shall be subject to the domestic laws of Belarus and, where the controller is a competent authority of a Member State, to the provisions of the General Data Protection Regulation (GDPR, Regulation (EU) No2016/679). In any event the following principles shall apply:

(a)    personal data must be processed fairly, lawfully and in a transparent manner in relation to the data subject;

(b)    personal data must be collected for the specified, explicit and legitimate purpose of implementing this Agreement and not further processed by the communicating authority nor by the receiving authority in a way incompatible with that purpose;

(c)    personal data must be adequate, relevant and limited to what is necessary in relation to the purpose for which they are collected and/or further processed; in particular, personal data communicated may concern only the following:

-    the particulars of the person to be transferred (e.g. given names, surnames, any previous names, other names used/by which known or aliases, sex, civil status, date and place of birth, current and any previous nationality),

-    passport, identity card or driving licence (number, period of validity, date of issue, issuing authority, place of issue),

-    stop-overs and itineraries,

-    other information needed to identify the person to be transferred or to examine the readmission requirements pursuant to this Agreement, such as a photograph or fingerprints,

-    special circumstances relating to the transferee, including indication that s/he is a dangerous person or concerning the state of his/her health or indication of and data concerning health for the purpose of the provision of health care or health treatment under the responsibility of a professional subject to the obligation of professional secrecy;

(d)    personal data must be accurate and, where necessary, kept up to date;

(e)    personal data must be kept in a form which permits identification of data subjects for no longer than is necessary for the purpose for which the data were collected or for which they are further processed;

(f)    personal data must be processed in a manner that ensures appropriate security of the personal data, including protection against unauthorised or unlawful processing and against accidental loss, destruction or damage, using appropriate technical or organisational measures;

(g)    both the communicating authority and the receiving authority shall take every reasonable step to ensure as appropriate the rectification, erasure or blocking of personal data where the processing does not comply with the provisions of this article, in particular because those data are not adequate, relevant, accurate, or they are excessive in relation to the purpose of processing. This includes the notification of any rectification, erasure or blocking to the other Party;

(h)    upon request, the receiving authority shall inform the communicating authority of the use of the communicated data and of the results obtained there from;

(i)    personal data may only be communicated to the competent authorities. Further communication to other bodies requires the prior consent of the communicating authority;

(j)    the communicating and the receiving authorities are under an obligation to make a written record of the communication and receipt of personal data.

Article 18

Non-affection clause

1.    This agreement shall be without prejudice to the rights, obligations and responsibilities of the Union, its Member States and Belarus arising from international law including from international conventions to which they are party, in particular from the international instruments listed in Article 2, and:

-    the international conventions determining the State responsible for examining applications for asylum lodged,

-    international conventions on extradition and transit,

-    multilateral international conventions and agreements on the readmission of foreign nationals.

2.    Nothing in this Agreement shall prevent the return of a person under other formal or informal arrangements.

Section VII

Implementation and application

Article 19

Joint readmission committee

1.    The Parties shall provide each other with mutual assistance in the application and interpretation of this Agreement. To this end, they shall set up a joint readmission committee (hereinafter referred to as “the committee”) which will, in particular, have the task:

(a)    to monitor the application of this Agreement;

(b)    to decide on implementing arrangements necessary for the uniform application of this Agreement;

(c)to have regular exchanges of information on the implementing Protocols drawn up by individual   and pursuant to Article 20;

(d)to recommend amendments to this Agreement and its Annexes.

2.    The decisions of the committee shall be binding on the Parties.

3.    The committee shall be composed by representatives of the Union and Belarus.

4.    The committee shall meet where necessary at the request of one of the Parties.

5.    The committee shall establish its rules of procedures.

Article 20

Implementing Protocols

1.    Without prejudice to the direct applicability of the present Agreement, on request of a Member State or Belarus, Belarus and a Member State shall draw up an implementing Protocol which shall, inter alia, cover rules on:

(a)    designation of the competent authorities, border crossing points and exchange of contact points;

(b)    conditions for escorted returns, including the transit of third-country nationals and stateless persons under escort;

(c)    means and documents additional to those listed in the Annexes 1 to 4 to this agreement;

(d)    the modalities for readmission under the accelerated procedure;

(e)    the procedure for interviews.

2.    The implementing Protocols referred to in paragraph 1 shall enter into force only after the readmission committee, referred to in Article 19, has been notified.

3.    Belarus shall agree to apply any provision of an implementing Protocol drawn up with one Member State also in its relations with any other Member State upon request of the latter and subject to the practical feasibility of its application to Belarus. The Member States shall agree to apply any provision of an implementing Protocol drawn up by one of them also in their relations with Belarus, upon request of the latter and subject to practical feasibility of its application to other Member States.

Article 21

Relation to bilateral readmission agreements

or arrangements of Member States

Without prejudice to Article 23(3), the provisions of this Agreement shall take precedence over the provisions of any bilateral agreement or arrangement on the readmission of persons residing without authorisation which have been or may, under Article 20, be concluded between individual Member States and Belarus, in so far as the provisions of the latter are incompatible with those of this Agreement.

Section VIII

Final provisions

Article 22

Territorial application

1.    Subject to paragraph 2, this Agreement shall apply to the territory in which the Treaty on European Union and the Treaty on the Functioning of the European Union are applicable and to the territory of Belarus.

2.    This Agreement shall apply to the territory of the United Kingdom of Great Britain and Northern Ireland and of Ireland only pursuant to a notification by the European Union to Belarus to that effect. This agreement shall not apply to the territory of the Kingdom of Denmark.

Article 23

Entry into force, duration and termination

1.    This Agreement shall be ratified or approved by the Parties in accordance with their respective procedures.

2.    This Agreement shall enter into force on the first day of the second month following the date on which the last Party has notified the other that the procedures referred to in the first paragraph have been completed.

3.    The obligations set out in Articles 4 and 6 of this Agreement shall only become applicable two years after the date referred to in paragraph 2 above, except in the cases referred to in Article 7(3). During that 2-year period, they shall nevertheless be applicable to stateless persons and nationals from third countries with which Belarus has concluded bilateral agreements on readmission.

During that 2-year period, existing bilateral readmission agreements and bilateral border agreements between Member States and Belarus shall also continue to apply in their relevant parts.

4.    This Agreement shall apply to the United Kingdom of Great Britain and Northern Ireland and to Ireland on the first day of the second month following the date of the notification referred to in Article 22(2).

5.    The Agreement is concluded for an unlimited period.

6.    Each Party may, by officially notifying the other Party and after prior consultation of the committee referred to in Article 19, completely or partly, temporarily suspend the implementation of this Agreement. The suspension shall enter into force on the second day following the day of such notification.

7.    Each Party may denounce this Agreement by officially notifying the other Party. This Agreement shall cease to be in force six months after the date of such notification.

Article 24

Annexes

Annexes 1 to 7 shall form an integral part of this Agreement.

Done at ............ on the ........ day of ........... in the year ............ in duplicate in the Bulgarian, Croatian, Czech, Danish, Dutch, English, Estonian, Finnish, French, German, Greek, Hungarian, Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, Romanian, Slovak, Slovenian, Spanish, Swedish and Belarussian languages, each of these texts being equally authentic.

ANNEX 1

Common list of documents the presentation of which is considered as proof of nationality

(Articles 3 (1), 5 (1) and 9 (1))

-    passports of any kind (national passports, diplomatic passports, service passports, and surrogate passports including children’s passports),

-    laissez-passer issued by the Requested State,

-    identity cards of any kind (including temporary and provisional ones),

-    service books and military identity cards,

-    seaman’s registration books and skippers’ service cards,

-    citizenship certificates and other official documents that mention or clearly indicate citizenship,

-    confirmation of identity as a result of a search carried out in the Visa Information System (Regulation (EC) No 767/2008),

-    in the case of Member States not using the Visa Information System, positive identification established from visa application records of those Member States.

ANNEX 2

Common list of documents the presentation of which is considered as prima facie evidence of nationality

(Articles 3 (1), 5 (1) and 9 (2))

-    photocopies of any of the documents listed in Annex 1 to this Agreement,

-    driving licenses or photocopies thereof,

-    birth certificates or photocopies thereof,

-    company identity cards or photocopies thereof,

-    statements by witnesses,

-    statements made by the person concerned and language spoken by him or her, including by means of an official test result,

-    any other document which may help to establish the nationality of the person concerned;

-    fingerprints.

ANNEX 3

Common list of documents which are considered as proof of the conditions for the readmission of third country nationals and stateless persons

(Articles 4 (1), 6 (1) and 10 (1))

-    visa and/or residence permit issued by the Requested State

-    entry/departure stamps or similar endorsement in the travel document of the person concerned or other evidence of entry/departure (e.g. photographic, electronic or biometric),

-    official statements made, in particular, by border authority staff and other witnesses who can testify to the person concerned crossing the border,

-    official statement by the person concerned in judicial or administrative proceedings.

ANNEX 4

Common list of documents which are considered as prima facie evidence of the conditions for the readmission of third country nationals and stateless persons

(Articles 4 (1), 6 (1) and 10 (2))

-    documents, certificates and bills of any kind (e.g. hotel bills, appointment cards for doctors/dentists, entry cards for public/private institutions, car rental agreements, credit card receipts etc.) which clearly show that the person concerned stayed on the territory of the requested State,

-    named tickets and/or passenger lists of air, train, coach or boat passages which show the presence and the itinerary of the person concerned on the territory of the requested State,

-    information showing that the person concerned has used the services of a courier or travel agency,

-    description issued by the relevant authorities of the Requesting State, of place and circumstances under which the person concerned has been intercepted after entering the territory of that State;

-    information related to the identity and/or stay of a person which has been provided by an International organisation (e.g. UNHCR);

-    reports/confirmation of information by family members, travelling companions, etc.;

-    statement by the person concerned;

-    fingerprints.

ANNEX 5

	[Emblem of the Republic of Belarus]
..............................................................………… ................................................................……….…			.................................................................…….. (Place and date)
(Designation of requesting authority)

Reference: .............................................……………

To

   ACCELERATED PROCEDURE (Article 7(3))

   INTERVIEW REQUEST (Article 9(3))

READMISSION APPLICATION

pursuant to Article 8 of the Agreement of ........... between

the European Union and the Republic of Belarus

on the readmission of persons residing without authorisation

4. Sex and physical description (height, colour of eyes, distinguishing marks etc.):

…………………………………………………………………………………………...................………………….

5. Also known as (earlier names, other names used/by which known or aliases):

...........................................................................................................................………..................……………….

6. Nationality and language:

...........................................................................................................................………...................………………

7. Civil status:         married     single         divorced     widowed

If married :    name of spouse ..............................................................................................................................

       Names and age of children (if any)     ...........................................................................................

                        ...........................................................................................

                       ………………………....…………………..........................

                        ..........................................................................................

8. Last address in the requested State:

............................................................................................................................………....................…………

B. Personal Details of spouse (If appropriate)

1. Full name (underline surname): ......................................................................................................................................

2. Maiden name: ……………………………………...........................................................………………………………

3. Date and place of birth: …………………………............................................................………………………………

4. Sex and physical description (height, color of eyes, distinguishing marks etc.):

…………………………………………………………………………………………...................………………….

5. Also known as (earlier names, other names used/by which known or aliases):

...........................................................................................................................………..................……………….

6. Nationality and language:

...........................................................................................................................………...................………………

C. Personal Details of Children (If appropriate)

1. Full name (underline surname): ......................................................................................................................................

2. Date and place of birth: …………………………............................................................………………………………

3. Sex and physical description (height, colour of eyes, distinguishing marks etc.):

…………………………………………………………………………………………...................………………….

4. Nationality and language:

...........................................................................................................................………...................………………

D. Special circumstances relating to the transferee

1. State of health

(e.g. possible reference to special medical care; Latin name of contagious disease):

............................................................................................................................................………………………

2. Indication of particularly dangerous person

(e.g. suspected of serious offence; aggressive behaviour):

............................................................................................................................................………………………

E. Means of evidence attached

F. Fingerprints (where necessary)

G. Observations

....................................................................................................................................................................……………

....................................................................................................................................................................……………

……………………………………………………………………………………………………………………………...

...................................................

(Signature) (Seal/stamp)

ANNEX 6

	[Emblem of the Republic of Belarus]
..............................................................………… ................................................................………..			.................................................................……… (Place and date)
(Designation of requesting authority)

Reference

................................................................…………

To

TRANSIT APPLICATION

pursuant to Article 15 of the Agreement of ........... between

the European Union and the Republic of Belarus

on the readmission of persons residing without authorisation

4. Sex and physical description (height, colour of eyes, distinguishing marks etc.):

……………………………………………………………………………………………………….

6. Also known as (earlier names, other names used/by which known or aliases):

...........................................................................................................................……………….……

7. Nationality and language:

.............................................................................................................................…………………..

8. Type and number of travel document:

.............................................................................................................................…………

B.    Transit operation

1.    Type of transit

2.         State of final destination

        ……………………………………………………………………………………………………….

3. Possible other States of transit

…………………………………………………………………………………………………………

4. Proposed border crossing point, date, time of transfer and possible escorts

…………………………………………………………………………………………………………

…………………………………………………………………………………………………………

…………………………………………………………………………………………………………

5. Admission guaranteed in any other transit State and in the State of final destination
(Article 13 paragraph 2)

6. Knowledge of any reason for a refusal of transit
(Article 13 paragraph 3)

C. Observations

..............................................................................................................................................…………….

..............................................................................................................................................…………….

..............................................................................................................................................……………..

.....................................................................................................………………………….……………..

...................................................

(Signature) (Seal/stamp)

ANNEX 7

Standard Travel Document for Expulsion Purposes of Belarus

STANDARD TRAVEL DOCUMENT USED FOR PURPOSES OF

EXPULSION BY THE REPUBLIC OF BELARUS

Emblem of

the requesting state

TRAVEL DOCUMENT

for the purposes of readmission

Valid for one time exit / entry

(delete as applicable)

Citizenship                                            

Distinctive marks                                        

This travel document is valid

from            , 20    

(month)

to            , 20    

(month)

Issuing authority                                        

Ground for issue                                        

Date of issue            , 20    

(month)

Signature of public officer                    

L.S.

No.                        

(sequence number of the form)

Joint Declaration on technical and financial support

Both Parties agree to implement this Agreement based on the principles of joint responsibility, solidarity and an equal partnership to manage the migratory flows between Belarus and the EU.

In this context, the EU is committed to make available financial resources in order to support Belarus in the implementation of this Agreement. In doing so, special attention will be devoted to capacity building. Such support is to be provided in the context of the overall priorities for assistance in favour of Belarus, as part of the overall funding available for Belarus and in full respect of the relevant implementation rules and procedures of EU external assistance.

Joint Declaration concerning the Kingdom of Denmark

The Parties take note that this Agreement does not apply to the territory of the Kingdom of Denmark, nor to nationals of the Kingdom of Denmark. In such circumstances it is appropriate that Belarus and the Kingdom of Denmark conclude a readmission agreement in the same terms as this Agreement.

Joint Declaration concerning the Republic of Iceland and the Kingdom of Norway

The Parties take note of the close relationship between the European Union and the Republic of Iceland and the Kingdom of Norway, particularly by virtue of the Agreement of 18 May 1999 concerning the association of these countries with the implementation, application and development of the Schengen acquis. In such circumstances it is appropriate that Belarus concludes a readmission agreement with the Republic of Iceland and the Kingdom of Norway in the same terms as this Agreement.

Joint Declaration concerning the Swiss Confederation

The Parties take note of the close relationship between the European Union and the Swiss Confederation, particularly by virtue of the Agreement concerning the association of the Swiss Confederation with the implementation, application and development of the Schengen acquis, which entered into force on 1 March 2008. In such circumstances it is appropriate that Belarus concludes a readmission agreement with the Swiss Confederation in the same terms as this Agreement.

Joint Declaration concerning the Principality of Liechtenstein

The Parties take note of the close relationship between the European Union and the Principality of Liechtenstein, particularly by virtue of the Agreement concerning the association of the Principality of Liechtenstein with the implementation, application and development of the Schengen acquis, which entered into force on 19 December 2011. In such circumstances it is appropriate that Belarus concludes a readmission agreement with the Principality of Liechtenstein in the same terms as this Agreement.