AGREEMENT

between the European Union and the Republic of Turkey on the readmission of persons residing without authorisation

THE HIGH CONTRACTING PARTIES,

THE EUROPEAN UNION, hereinafter referred to as ‘the Union’,

and

THE REPUBLIC OF TURKEY, hereinafter referred to as ‘Turkey’,

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, effective and swift procedures for the identification and safe and orderly return of persons who do not or who no longer, fulfil the conditions for entry to, presence in, or residence on the territories of Turkey or one of the Member States of the 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, its Member States and Turkey arising from international law and, in particular, from the European Convention of 4 November 1950 for the Protection of Human Rights and Fundamental Freedoms and the Convention of 28 July 1951 on the Status of Refugees,

EMPHASISING that this Agreement shall be without prejudice to the rights and procedural guarantees for persons who are subject to return procedures in or who apply for asylum in a Member State as laid down in the respective legal instruments of the Union,

EMPHASISING that this Agreement shall be without prejudice to the provision of the Agreement of 12 September 1963 establishing an Association between the European Economic Community and Turkey, its additional protocols, the relevant Association Council decisions as well as the relevant case-law of the Court of Justice of the European Union,

EMPHASISING that the persons holding a long term residence permit granted under the terms of Council Directive 2003/109/EC concerning the status of third-country nationals who are long-term residents enjoy a reinforced protection against expulsion under Article 12 of that Directive,

EMPHASISING that this Agreement is based on the principles of joint responsibility, solidarity, and an equal partnership to manage the migratory flows between Turkey and the Union and that in this context the Union is ready to make available financial resources in order to support Turkey in its implementation,

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 United Kingdom and Ireland, unless they ‘opt-in’ in accordance with the Protocol 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 the Treaty on the Functioning of the European Union,

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 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:

Article 2

Scope

1.   The provisions of this Agreement shall apply to persons who do not or who no longer, fulfil the conditions for entry to, presence in, or residence on the territories of Turkey or one of the Member States of the Union.

2.   The application of the present Agreement, including Paragraph 1 of this article, shall be without prejudice to the instruments enumerated in Article 18.

3.   The present Agreement shall not apply to third country nationals or stateless persons as referred to Articles 4 and 6 who have left the territory of the Requested State more than five years before the Requesting State's competent authorities has gained knowledge of such persons unless the conditions required for their readmission to the Requested State as stipulated by Articles 4 and 6 can be established by means of documents enumerated in Annex 3.

SECTION I

READMISSION OBLIGATIONS BY TURKEY

Article 3

Readmission of own nationals

1.   Turkey shall readmit, upon application by a Member State and without further formalities to be undertaken by that Member State other than those provided for in this agreement, all persons who do not or who no longer, fulfil the conditions in force under the law of that Member State or under the law of the Union for entry to, presence in, or residence on, the territory of the requesting Member State provided that in accordance with Article 9, it is established that they are nationals of Turkey.

2.   Turkey shall also readmit:

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

4.   After Turkey has given a positive reply to the readmission application or, where appropriate, after expiry of the time limits laid down in Article 11(2), the competent consular office of Turkey shall, irrespective of the will of the person to be readmitted, within three working days, issue the travel document required for the return of the person to be readmitted with a period of validity of three months. In case there is no consular office of Turkey in a Member State or if Turkey has not, within three working days, issued the travel document, the reply to the readmission application shall be considered as the necessary travel document for the readmission of the person concerned.

5.   If, for legal or factual reasons, the person concerned cannot be transferred within the period of validity of the travel document that was initially issued, the competent consular office of Turkey shall, within three working days, issue a new travel document with a period of validity of the same duration. In case there is no consular office of Turkey in a Member State or if Turkey has not, within three working days, issued the travel document, the reply to the readmission application shall be considered as the necessary travel document for the readmission of the person concerned.

Article 4

Readmission of third-country nationals and stateless persons

1.   Turkey shall readmit, upon application by a Member State and without further formalities to be undertaken by that Member State 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 in accordance with Article 10 it is established that such persons:

2.   The readmission obligation in Paragraph 1 of this Article shall not apply if:

3.   After Turkey has given a positive reply to the readmission application or, where appropriate, after expiry of the time limits laid down in Article 11(2), the Turkish authorities, if necessary, shall within three working days, issue the person whose readmission has been accepted with the ‘emergency travel document for aliens’ required for his or her return with a period of validity of at least three months. In case there is no consular office of Turkey in a Member State or if Turkey has not, within three working days, issued the travel document, it shall be deemed to accept the use of the EU standard travel document for expulsion purposes (1).

4.   If, for legal or factual reasons, the person concerned cannot be transferred within the period of validity of the ‘emergency travel document for aliens’ that was initially issued, the Turkish authorities shall within three working days extend the validity of the ‘emergency travel document for aliens’ or, where necessary, issue a new ‘emergency travel document for aliens’ with the same period of validity. In case there is no consular office of Turkey in a Member State or if Turkey has not, within three working days, issued the travel document, it shall be deemed to accept the use of the EU standard travel document for expulsion purposes (2).

SECTION II

READMISSION OBLIGATIONS BY THE UNION

Article 5

Readmission of own nationals

1.   A Member State shall readmit, upon application by Turkey and without further formalities to be undertaken by Turkey 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 Turkey provided that in accordance with Article 9 it is established that they are nationals of that Member State.

2.   A Member State shall also readmit:

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

4.   After the requested Member State has given a positive reply to the readmission application or, where appropriate, after expiry of the time limits laid down in Article 11(2), the competent diplomatic mission or consular office of that Member State shall, irrespective of the will of the person to be readmitted, within three working days, issue the travel document required for the return of the person to be readmitted with a period of validity of three months. In case there is no diplomatic mission or consular office of a Member State in Turkey or if the requested Member State has not, within three working days, issued the travel document, the reply to the readmission application shall be considered as the necessary travel document for the readmission of the person concerned.

5.   If, for legal or factual reasons, the person concerned cannot be transferred within the period of validity of the travel document that was initially issued, the competent diplomatic mission or consular office of that Member State shall, within three working days, issue a new travel document with a period of validity of the same duration. In case there is no diplomatic mission or consular office of a Member State in Turkey or if the requested Member State has not, within three working days, issued the travel document, the reply to the readmission application shall be considered as the necessary travel document for the readmission of the person concerned.

Article 6

Readmission of third-country nationals and stateless persons

1.   A Member State shall readmit, upon application by Turkey and without further formalities to be undertaken by Turkey 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 Turkey provided that in accordance with Article 10 it is established that such persons:

2.   The readmission obligation in Paragraph 1 of this Article shall not apply if:

3.   The readmission obligation in Paragraph 1 of this Article 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.   After the Member State has given a positive reply to the readmission application or, where appropriate, after expiry of the time limits laid down in Article 11(2), the Member State's authorities, if necessary, shall within three working days, issue the person whose readmission has been accepted the travel document required for his or her return with a period of validity of at least three months. In case there is no diplomatic mission or consular office of the Member State in Turkey or if the Member State has not, within three working days, issued the travel document, it shall be deemed to accept the use of the EU standard travel document for expulsion purposes (3).

5.   If, for legal or factual reasons, the person concerned cannot be transferred within the period of validity of the travel document that was initially issued, the Member State's authorities shall within three working days extend the validity of the travel document or, where necessary, issue a new travel document with the same period of validity. In case there is no diplomatic mission or consular office of the Member State in Turkey or if the Member State has not, within three working days, issued the travel document, it shall be deemed to accept the use of the EU standard travel document for expulsion purposes (4).

SECTION III

READMISSION PROCEDURE

Article 7

Principles

1.   The Member States and Turkey shall make every effort to return a person referred to in Articles 4 and 6 directly to the country of origin. For this purpose, the modalities of the application of this Paragraph shall be determined in accordance with point (b) of Article 19(1). The provisions of this Paragraph shall not apply to cases in which the accelerated procedure is applicable in accordance with Paragraph 4 of this Article.

2.   Subject to Paragraph 3 of this Article, 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.

3.   If the person to be readmitted is in possession of a valid travel document or identity card and, in the case of third country nationals or stateless persons, a valid visa used by the person for the purpose of entry on the territory of the Requested State or a residence permit of the Requested State, the transfer of such person shall 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.

The previous Subparagraph shall not prejudice the right of the relevant authorities to verify at the border the identity of the readmitted persons.

4.   Without prejudice to Paragraph 3 of this Article, if a person has been apprehended by the Requesting State in the border region after having entered illegally and directly from the territory of the Requested State, the Requesting State may submit a readmission application within three working days following this person's apprehension (accelerated procedure).

Article 8

Content of the readmission application

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

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

3.   Without prejudice to Article 7(3), any readmission application shall be in writing and shall use a common form attached as Annex 5 to this Agreement.

4.   A readmission application may be submitted by any means of communication including electronic ones e.g. facsimiles, e-mails etc.

5.   Without prejudice to Article 11(2), a reply to the readmission application will be given in writing.

Article 9

Evidence regarding nationality

1.   Proof of nationality pursuant to Article 3(1) and Article 5(1) can be particularly furnished through the documents listed in Annex 1 to this Agreement. If such documents are presented, the Member States or Turkey respectively shall for the purpose of this Agreement, recognise the nationality. Proof of nationality cannot be furnished through false documents.

2.   Prima facie evidence of nationality pursuant to Article 3(1) and Article 5(1) shall be particularly 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 Turkey shall deem for the purpose of this Agreement, the nationality to be established, unless following an investigation and within the time limits laid down in Article 11, the Requested State demonstrates 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 and consular representations of the Requested State concerned shall, upon a request included in the readmission application by the Requesting State, make arrangements to interview the person to be readmitted without undue delay, within seven working days from the requesting day, in order to establish his or her nationality. In case there are no diplomatic or consular representations of the Requested State in the Requesting State, the former shall make the necessary arrangements in order to interview the person to be readmitted without undue delay, at the latest within seven working days from the requesting day. The procedure for such interviews may be established in the implementing Protocols provided for in Article 20 of this Agreement.

Article 10

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 particularly furnished by means of the evidence listed in Annex 3 to this Agreement. Proof of the conditions for the readmission cannot be furnished through false documents.

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 particularly 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 Turkey shall deem the conditions to be established, unless following an investigation and within the time limits laid down in Article 11, the Requested State demonstrates 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 written 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 six months after the Requesting State's competent authority has gained knowledge that a third-country national or a stateless person who does not or who no longer, fulfil the conditions in force for entry, presence or residence.

If the third country national or the stateless person entered the territory of the Requesting State before the day on which Articles 4 and 6 become applicable pursuant to Article 24(3), the time limit mentioned in the previous sentence begins to run on the day on which Articles 4 and 6 become applicable.

Where there are legal or factual 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:

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. facsimiles, e-mails etc.

3.   After agreement has been given or, where appropriate, after expiry of the time limits laid down in Paragraph 2 of this Article, 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 practical obstacles.

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

Article 12

Transfer modalities and modes of transportation

1.   Without prejudice to Article 7(3), before returning a person, the competent authorities of the Requesting State shall notify in writing at least 48 hours in advance the competent authorities of the Requested State regarding the transfer date, the point of entry, possible escorts and other information relevant to the transfer.

2.   Transportation may take place by air, land or sea. Return by air shall not be restricted to the use of the national carriers of Turkey 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 Turkey or any Member State.

Article 13

Readmission in error

The Requesting State shall take back any person readmitted by the Requested State if it is established, 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, and with the exception of all transport costs of the person in question which shall be borne by the Requesting State as referred to in the previous Paragraph, 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

Transit principles

1.   The Member States and Turkey 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.   Turkey 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 Turkey 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 Turkey or a Member State:

4.   Turkey or a Member State may revoke any authorisation issued if circumstances referred to in Paragraph 3 of this Article subsequently arise or come to light which stand in the way of the transit operation, or if the onward journey through 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 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 ones e.g. facsimiles, e-mails etc.

2.   The Requested State shall, within five 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 five 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 ones e.g. facsimiles, 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 Article 23 and without prejudice to the right of the competent authorities to recover the costs associated with the readmission from the person to be readmitted including the persons referred to in Article 3(2) and 5(2) or third parties, all transport costs incurred in connection with readmission and transit operations pursuant to this Agreement as far as the border crossing point of the Requested State for requests under Sections I and II of the Agreement; or as far as the border of the State of final destination for requests under Section IV of the Agreement 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 Turkey or a Member State as the case may be. The processing and treatment of personal data in a particular case shall be subject to the domestic laws of Turkey and, where the controller is a competent authority of a Member State, to the provisions of Directive 95/46/EC and of the national legislation of that Member State adopted pursuant to this Directive. Additionally the following principles shall apply:

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 Turkey arising from international law including from international conventions to which they are party, in particular:

2.   The present Agreement shall fully respect the rights and obligations, including of those who are or have been legally residing and working on the territory of one of the Parties, provided by the provisions of the Agreement of 12 September 1963 establishing an Association between the European Economic Community and Turkey, its additional protocols, the relevant Association Council decisions as well as the relevant case-law of the Court of Justice of the European Union.

3.   The application of the present Agreement shall be without prejudice to the rights and procedural guarantees of persons being subject of return procedures as laid down by 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 (5) in particular with regard to their access to legal advice, information, temporary suspension of the enforcement of a return decisions and access to legal remedies.

4.   The application of the present Agreement shall be without prejudice to the rights and procedural guarantees for persons applying for asylum as provided by Council Directive 2003/9/EC laying down minimum standards for the reception of asylum seekers (6) and by Council Directive 2005/85/EC on minimum standards on procedures in Member States for granting and withdrawing refugee status (7) and in particular with regard to the right to remain in the Member Sate pending the examination of the application.

5.   The application of the present Agreement shall be without prejudice to the rights and procedural guarantees for persons holding a long term residence permit granted under the terms of Council Directive 2003/109/EC concerning the status of third-country nationals who are long-term residents.

6.   The application of the present Agreement shall be without prejudice to the rights and procedural guarantees for persons granted residence under the terms of the Council Directive 2003/86/EC on the right to family reunification.

7.   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 Contracting 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:

2.   The decisions of the committee shall be binding on the Contracting Parties following any necessary internal procedures required by the law of the Contracting Parties.

3.   The committee shall be composed by representatives of Turkey and the Union; the Union shall be represented by the Commission, assisted by experts from Member States.

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

5.   The committee shall establish its rules of procedures.

Article 20

Implementing Protocols

1.   On request of a Member State or Turkey, Turkey and a Member State shall draw up an implementing Protocol which shall, inter alia, cover rules on:

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

3.   Turkey agrees 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 Turkey.

Member States agree to apply any provision of an implementing Protocol drawn up between Turkey and any other Member State also in their relations with Turkey upon request of the latter and subject to the practical feasibility of its application to those Member States.

Article 21

Relation to bilateral readmission agreements or arrangements of Member States

Without prejudice to Article 24(3), the provisions of this Agreement shall take precedence over the provisions of any legally binding instrument on the readmission of persons residing without authorisation which have been or may, under Article 20, be concluded between individual Member States and Turkey, 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 of this Article, this Agreement shall apply to the territory in which the Treaty on the European Union is applicable, as defined in Article 52 of that Treaty and in Article 355 of the Treaty on the Functioning of the European Union, and to the territory of the Republic of Turkey.

2.   This Agreement shall not apply to the territory of the Kingdom of Denmark.

Article 23

Technical assistance

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 Turkey and the Union.

In this context, the Union is committed to making available financial resources in order to support Turkey in the implementation of this Agreement in accordance with the attached joint declaration on technical assistance. In doing so, attention will be devoted in particular to institution and capacity building. Such support is to be provided in the context of the existing and future priorities jointly agreed by the Union and Turkey.

Article 24

Entry into force, duration and termination

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

2.   Subject to Paragraph 3 of this Article, this Agreement shall enter into force on the first day of the second month following the date on which the Contracting Parties notify each other that the procedures referred to in the first Paragraph of this Article have been completed.

3.   The obligations set out in Articles 4 and 6 of this Agreement shall only become applicable three years after the date referred to in Paragraph 2 of this Article. During that three-year period, they shall only be applicable to stateless persons and nationals from third-countries with which Turkey has concluded bilateral treaties or arrangements on readmission. During that three-year period, existing bilateral readmission agreements between individual Member States and Turkey shall continue to apply in their relevant parts.

4.   This Agreement is concluded for an unlimited period.

5.   Each Contracting Party may denounce this Agreement by officially notifying the other Contracting Party. This Agreement shall cease to apply six months after the date of such notification.

Article 25

Annexes

Annexes 1 to 6 shall form an integral part of this Agreement.

(1)  In line with the form set out in EU Council recommendation of 30 November 1994.

(2)  Ibid.

(3)  Ibid.

(4)  Ibid.

(5)  OJ L 348, 24.12.2008, p. 98.

(6)  OJ L 31, 6.2.2003, p. 18.

(7)  OJ L 326, 13.12.2005, p. 13