Safeguarding of Fundamental Rights

AuthorEisele, Katharina
Pages171-179
Part III: The External Di mension of the EU Return Dire ctive
171
5. Safegu arding of Fundamental Rights
This Section seek s to explore t he incorporation of fundamental rights safeguards in the ag reements
relating to the external dimension of return and readmission. It highlights how the fundamental
rights provisions contained in the agreements are largely construed as an inter-state matter.
Accordingly, t he direct asser tion of the fu ndamental rights referenced in t he agreement s is not
possible due t o the absence of specific guarantees and procedural safeguards in the agreements for
the readm itted person in the receiving state. Reliance has largely been placed on inter-stat e trust
and the pr ocedural safegu ards available to the person pr ior to removal or rea dmission.
5.1. EURAs
Each EURA contains a ‘non-affection’222 clause but with variations as to the express inclusion of
inter nat ional t rea ties (or , in th e case of Turk ey, express references t o EU secondary legislat ion). The
inclus ion of specific hum an r ights conv entions was an in itiativ e of the E uro pean Parlia ment (E P).223
As G iuffré point s out , th e sign ificance o f includin g inte rnational treaties in the non-affection clause
is that it incorporates all the provisions of those treaties rather relying on general international law,
noting that not all provisions of the Refugee Convention are customary international law.224
The non-affection cla use in t he EURA with Ukraine refers back to the international treaties cited in
the recitals. 225 In the EURAs with Hong Kong,226 Macao,227 Sri Lan ka228 and Pakistan229 there are no
express refer ences to specific international treaties. The remainder make express mention at l east
of t he Refugee Convention and its Protocol and the European Convention on Human Rights and
Fundamental Freedoms (“ECHR”), whilst variously identifying the UN Convention Against Torture
(“CAT”), the UN Universal Declaration Against Human Rights (“UDHR”) or the International
Conv entio n on C ivil and Po litical R ights (“ICCPR ”). 230
The EURA with Tu rkey is t he most extensive,231 which also includes EU secondary legislation such as
the Retu rn Directive, the L ong Term Residents Directive,232 the Fa mily Reun ification Dir ectiv e233 and
222 The non-affection clause determines how the agreement relates to other rights, responsibilities and obligations that
the part ies have under int ernatio nal law. The non-affection clause provides that the agreement is “without prejudice
to those rights, responsibiliti es and obli gations u nder i nter national law. The effect is that the agreeme nt is se condary
to those other rights, re sponsibilit ies and obligati ons should the agre ement e ver be conflic t with the m.
223 See Billet (2010), op. cit., pp.72-73.
224 Giuffré, M. (2013),Readmission Agreements and Refugee Rights: From a Critique to a Proposal”, Refugee Survey
Qua rterly , Vol. 32 , No. 3, pp.79 -81 at p.96.
225 Article 14(1) and Recital 5 in EURA with Ukraine.
226 Artic le 16 (1) in EURA with Hong Kong.
227 Article 16(1) in EURA with Macao.
228 Article 16(1) in EURA with Sri Lanka.
229 Article 15(1) and (3) in EURA with Pakistan.
230 See Table in Annex I.
231 See fur the r, Yavuz, C. A. (20 19) , ‘Analysi s o f the EU-Turkey Readmission Agreement: A Unique Case’, Eu rop ean Journal of
Migration and Law, Vol. 21 , p.486 -508, particularly at p.501-504.
232 Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-countr y nationals who are long-
term residents (“Long Term Residents Directive”).
233 Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification (“Family Reunification
Directive ”).

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