22004A0124(01) 22004A0124(01) Agreement between the European Community

the Government of the Hong Kong Special Administrative Region of the People's Republic of China on the readmission of persons residing without authorisation Official Journal L 017 , 24/01/2004 P. 0025 - 0039 Dates: of document: 27/11/2002 of effect: 01/03/2004; Entry into force See Art 20.2

L 64/2004 P. 38 of signature: 27/11/2002; Brussels end of validity: 99/99/9999 Authentic language: German ; English ; Danish ; Spanish ; Finnish ; French ; Greek ; Italian ; Dutch ; Portuguese ; Swedish Author: European Community ; Hong Kong Subject matter: Immigration

asylum policy ; Justice

home affairs ; External relations Directory code: 11406000 ; 19104000 EUROVOC descriptor: EC agreement ; Hong Kong ; admission of aliens ; residence permit Legal basis: 102E063-P3PTB)............ Adoption 102E300-P2L1FR1........... Adoption 102E300-P3L1.............. Adoption Instruments cited: 395L0046.................. 197D/PRO/05............... 301R0539.................. Subsequent related instruments: Relation...... 204X0302

the Government of the Hong Kong Special Administrative Region of the People's Republic of China on the readmission of persons residing without authorisation THE CONTRACTING PARTIES, THE EUROPEAN COMMUNITY, hereinafter referred to as "the Community",

THE GOVERNMENT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION OF THE PEOPLE'S REPUBLIC OF CHINA, hereinafter referred to as "the Hong Kong SAR", DETERMINED to strengthen their cooperation in order to combat illegal immigration more effectively, REFERRING to Council Regulation (EC) No 539/2001

in particular Article 1

on the basis of reciprocity, rapid

effective procedures for the identification

return of persons who do not, or no longer, fulfil the conditions for entry to, presence in, or residence on the territories of the Hong Kong SAR or one of the Member States of the European Union,

to facilitate the transit of such persons in a spirit of cooperation, CONSIDERING that the provisions of this Agreement, which falls within the scope of Title IV of the Treaty establishing the European Community, 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

the Treaty establishing the European Community, HAVE AGREED AS FOLLOWS: Article 1 Definitions For the purpose of this Agreement: (

1. a)"Member State" shall mean any Member State of the European Union, with the exception of the Kingdom of Denmark; (
2. b)"national of a Member State" shall mean any person who holds the nationality, as defined for Community purposes, of a Member State; (
3. c)"permanent resident of the Hong Kong SAR" shall mean any person who has the right of abode, that is the right to reside permanently, in the Hong Kong SAR; (
4. d)"person of another jurisdiction" shall mean any person who is neither a permanent resident of the Hong Kong SAR, nor a national of a Member State. This shall include third-country nationals

stateless persons; (

1. e)"stateless person" shall mean any person who does not hold a nationality; (
2. f)"residence authorisation" shall mean a permit of any type issued by the Hong Kong SAR or one of the Member States entitling a person to reside on its territory. This shall not include an application for a residence authorisation or temporary permissions to remain on its territory as a visitor or in connection with the processing of an asylum application; (
3. g)"visa" shall mean an authorisation issued or a decision taken by the Hong Kong SAR or one of the Member States which permits a person's entry in, or transit through, its territory

which has been issued or taken prior to the person's arrival at its border. This shall not include an airside transit visa. SECTION I READMISSION BY THE HONG KONG SAR Article 2 Readmission of permanent residents

former permanent residents 1. The Hong Kong SAR shall readmit, upon application by a Member State

without any formalities other than those specified 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 permanent residents of the Hong Kong SAR. The same shall apply to persons who, since entering the territory of a Member State, have lost their right to permanent residence in the Hong Kong SAR, unless such persons have at least been promised naturalisation by that Member State. 2. At the request of a Member State, the Hong Kong SAR shall, as necessary

without delay, issue the person to be readmitted with the travel document required for his or her return that is of a period of validity of at least six months. 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 Hong Kong SAR shall issue a new travel document with the same period of validity within 14 days. If the Hong Kong SAR does not issue the travel document requested within 15 days of the date of the request it shall be deemed to accept use of the EU standard travel document for the purposes of readmission. Article 3 Readmission of persons of another jurisdiction 1. The Hong Kong SAR shall readmit, upon application by a Member State

without any formalities other than those specified in this Agreement, all persons of another jurisdiction 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: (

1. a)at the time of entry held a valid visa or residence authorisation issued by the Hong Kong SAR; or (
2. b)after having entered the territory of the Hong Kong SAR, proceed to enter unlawfully the territory of the Member States, coming directly from the territory of the Hong Kong SAR. 2. The readmission obligation in paragraph 1 shall not apply if: (
3. a)the person of another jurisdiction has been in airside transit via the Hong Kong International Airport; or (
4. b)the requesting Member State has issued to the person of another jurisdiction a visa or residence authorisation before or after entering its territory, which has a longer period of validity than any visa or residence authorisation issued by the Hong Kong SAR; or (
5. c)the person of another jurisdiction enjoyed visa-free access to the territory of the requesting Member State. 3. At the request of a Member State, the Hong Kong SAR shall, as necessary

without delay, issue the person to be readmitted with the travel document required for his or her return that is of a period of validity of at least six months. 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 Hong Kong SAR shall issue a new travel document with the same period of validity within 14 days. If the Hong Kong SAR does not issue the travel documents requested within 15 days of the date of the request it shall be deemed to accept use of the EU standard travel document for the purposes of readmission. SECTION II READMISSION BY THE COMMUNITY Article 4 Readmission of own

former own nationals 1. A Member State shall readmit, upon application by the Hong Kong SAR

without any formalities other than those specified 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 Hong Kong SAR 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. The same shall apply to persons who have been deprived of, or who have renounced, the nationality of a Member State since entering the territory of the Hong Kong SAR unless such persons have at least been promised permanent residence in the latter. 2. At the request of the Hong Kong SAR, a Member State shall, as necessary

without delay, issue the person to be readmitted with the travel document required for his or her return that is of a period of validity of at least six months. 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 concerned shall issue a new travel document with the same period of validity within 14 days. Article 5 Readmission of persons of another jurisdiction 1. A Member State shall readmit, upon application by the Hong Kong SAR

without any formalities other than those specified in this Agreement, all persons of another jurisdiction who do not, or who no longer, fulfil the conditions in force for entry to, presence in, or residence on, the territory of the Hong Kong SAR provided that it is proved, or may be validly assumed on the basis of prima facie evidence furnished, that such persons: (

1. a)at the time of entry held a valid visa or residence authorisation issued by the requested Member State; or (
2. b)after having entered the territory of the requested Member State, proceed to enter unlawfully the territory of the Hong Kong SAR, coming directly from the territory of the requested Member State. 2. The readmission obligation in paragraph 1 shall not apply if: (
3. a)the person of another jurisdiction has been in airside transit via an international airport of the requested Member State; or (
4. b)the Hong Kong SAR has issued to the person of another jurisdiction a visa or residence authorisation before or after entering its territory, which has a longer period of validity than any visa or residence authorisation issued by the requested Member State; or (
5. c)the person of another jurisdiction enjoyed visa-free access to the territory of the Hong Kong SAR. 3. If two or more Member States issued a visa or residence authorisation, 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. 4. At the request of the Hong Kong SAR, a Member State shall, as necessary

without delay, issue the person to be readmitted with the travel document required for his or her return that is of a period of validity of at least six months. 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 concerned shall issue a new travel document with the same period of validity within 14 days. SECTION III READMISSION PROCEDURE Article 6 Principle

1. Subject to paragraph 2, a transfer of a person to be readmitted on the basis of one of the obligations contained in Articles 2 to 5 shall require the submission of a readmission application to the competent authority of the requested Contracting Party.
2. The readmission application may be replaced by a written communication to the requested Contracting Party within a reasonable time period prior to the return of the person concerned provided that (a) the person to be readmitted is in possession of a valid travel document

, where applicable, a valid visa or residence authorisation of the requested Contracting Party;

(

1. b)the person to be readmitted is willing to return to the requested Contracting Party. Article 7 Readmission application 1. Any readmission application is to contain the following information: (
2. a)the particulars of the person to be readmitted (e.g. given names, surnames, date of birth,

, where possible, place of birth,

the last place of residence); (

1. b)copies of documents which provide proof or prima facie evidence of nationality or permanent residence. 2. To the extent possible, the readmission application should also contain the following information: (
2. a)statement indicating that the person to be transferred may need help or care, provided the person concerned has explicitly consented to the statement; (
3. b)any other protection or security measure 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. Article 8 Means of evidence regarding nationality

permanent residence 1. Proof of nationality or permanent residence pursuant to Article 2

Article 4

the Hong Kong SAR shall recognise the permanent residence, without further formalities. Proof of nationality or permanent residence cannot be furnished through false documents. 2. Prima facie evidence of nationality or permanent residence pursuant to Article 2

Article 4

the Hong Kong SAR shall deem the permanent residence, to be established unless they can prove otherwise.

1. If none of the documents listed in Annexes 1 or 2 can be presented, the competent authorities of the Hong Kong SAR or the Member State concerned shall, upon request, make the necessary arrangements in order to establish his or her nationality or permanent residence. Article 9 Means of evidence regarding persons of another jurisdiction
2. Proof of the conditions for the readmission of persons of another jurisdiction laid down in Article 3

Article 5

Article 5

in any event within a maximum of one month; reasons shall be given for refusal of a readmission request. This time limit begins to run with the date of receipt of the readmission request. Upon expiry of this time limit the transfer shall be deemed to have been agreed to. 3. After agreement has been given or, where appropriate, upon expiry of the one month time limit, the person concerned shall be transferred without undue delay

, at the most, within three months. Upon application, this time limit may be extended by the time taken to deal with legal or practical obstacles. Article 11 Transfer modalities

modes of transportation 1. Before returning a person, the competent authorities of the Hong Kong SAR

the Member State concerned shall make arrangements in writing in advance regarding the transfer date, the border crossing point

possible escorts. 2. No means of transportation, whether by air, land or sea, shall be prohibited but, as a rule, return shall take place by air. Return by air is not restricted to the use of national carriers or security staff of the requesting Contracting Party,

may take place by using scheduled flights as well as charter flights. SECTION IV TRANSIT OPERATIONS Article 12 Principles 1. The Hong Kong SAR shall allow the transit of persons of another jurisdiction through its territory if a Member State so requests,

a Member State shall authorise the transit of persons of another jurisdiction through its territory if the Hong Kong SAR so requests, if the onward journey in possible other States of transit

the readmission by the State of destination is assured. 2. The Member States

the Hong Kong SAR shall endeavour to restrict the transit of persons of another jurisdiction to cases where such persons cannot be returned to the State of destination directly. 3. Transit can be refused by the Hong Kong SAR or a Member State: (

1. a)if the person of another jurisdiction runs the risk of persecution, or could be subjected to criminal prosecution or sanctions in another State of transit or in the State of destination, or could be threatened by criminal prosecution on the territory of the requested Member State or the Hong Kong SAR; (
2. b)on grounds of public health, domestic security, public order or other national interests. 4. The Hong Kong SAR 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. Article 13 Transit procedure 1. An application for transit must be submitted to the competent authorities in writing

is to contain the following information: (a) type of transit (by air, land or sea), possible other States of transit

intended final destination; (b) the particulars of the person concerned (e.g. given name, surname, date of birth,

- where possible - place of birth, nationality, type

number of travel document); (c) envisaged border crossing point, time of transfer

possible use of escorts; (d) a declaration that in the view of the requesting Contracting Party the conditions pursuant to Article 12

that no reasons for a refusal pursuant to Article 12

in writing, inform the requesting competent authority of the admission, confirming the border crossing point

the envisaged time of admission, or inform it of the admission refusal

of the reasons for such refusal. 3. If the transit takes place by air, the person to be readmitted

possible escorts shall be exempted from having to obtain an airport transit visa. 4. The competent authorities of the requested Contracting Party shall, subject to mutual consultations, assist in the transit, in particular through the surveillance of the persons in question

the provision of suitable amenities for that purpose. SECTION V COSTS Article 14 Transport

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

transit pursuant to this Agreement as far as the border of the State of final destination shall be borne by the requesting Contracting Party. SECTION VI DATA PROTECTION

NON-AFFECTION CLAUSE Article 15 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 the Hong Kong SAR or a Member State as the case may be. The processing

treatment of personal data in a particular case shall be subject to the domestic laws of the Hong Kong SAR

, where the controller is a competent authority of a Member State, to the provisions of Directive 95/46/EC

of the national legislation of that Member State adopted pursuant to this Directive. Additionally the following principles shall apply: (a) personal data must be processed fairly

lawfully; (b) personal data must be collected for the specified, explicit

legitimate purpose of implementing this Agreement

may not be 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

not excessive in relation to the purpose for which they are collected

/or further processed; in particular, personal data communicated may concern only the following: - the particulars of the person to be transferred (e.g. surname, given name, any previous names, nicknames or pseudonyms, date

place of birth, sex, current

any previous nationality), - identity card or passport (number, period of validity, date of issue, issuing authority, place of issue), - stop-overs

itineraries, - other information needed to identify the person to be transferred or to examine the readmission requirements pursuant to this Agreement; (d) personal data must be accurate

, where necessary, kept up to date; (

1. 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; (
2. f)both the communicating authority

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 that 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; (g) upon request, the receiving authority shall inform the communicating authority of the use of the communicated data

of the results obtained therefrom; (

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

the receiving authorities are under an obligation to make a written record of the communication

receipt of personal data. Article 16 Non-affection clause 1. This Agreement shall be without prejudice to rights, obligations

responsibilities arising from International Law applicable to the Community, the Member States

the Hong Kong SAR. 2. Nothing in this Agreement shall prevent the return of a person under other formal or informal arrangements. SECTION VII IMPLEMENTATION

APPLICATION Article 17 Readmission Committee 1. The Contracting Parties shall provide each other with mutual assistance in the application

interpretation of this Agreement. To this end, they shall set up a Readmission Committee which will, in particular, have the task: (

1. a)to monitor the application of this Agreement; (
2. b)to decide on implementing arrangements necessary for the uniform application of this Agreement; (
3. c)to have regular exchanges of information on any implementing Protocols drawn up by individual Member States

the Hong Kong SAR pursuant to Article 18; (d) to recommend amendments to this Agreement.

1. Recommendations of the Readmission Committee for amendment of the annexes to this Agreement may be approved by the Parties through a simplified procedure.
2. The Readmission Committee shall be composed of representatives of the Community

the Hong Kong SAR; the Community shall be represented by the Commission of the European Communities, assisted by experts from Member States.

1. The Readmission Committee shall meet where necessary at the request of one of the Contracting Parties.
2. The Readmission Committee shall establish its rules of procedures. Article 18 Implementing protocols
3. The Hong Kong SAR

a Member State may draw up implementing protocols which shall cover rules on: (a) designation of the competent authorities, border crossing points

exchange of contact points; (

1. b)conditions for transit of persons of another jurisdiction under escort; (
2. c)means

documents additional to those listed in Annexes 1 to 4 to this Agreement.

1. The implementing protocols referred to in paragraph 1 shall enter into force only after the Readmission Committee referred to in Article 17 has been notified.
2. The Hong Kong SAR 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. Article 19 Relation to bilateral readmission agreements or arrangements of Member States 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 18, be concluded between individual Member States

the Hong Kong SAR, in so far as the provisions of the latter are incompatible with those of this Agreement. SECTION VIII FINAL PROVISIONS Article 20 Entry into force, duration

termination

1. This Agreement shall be ratified or approved by the Contracting 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 Contracting Parties notify each other that the procedures referred to in the first paragraph have been completed.
3. This Agreement is concluded for an unlimited period.
4. 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 21 Annexes Annexes 1 to 6 shall form an integral part of this Agreement. Done at Brussels on the twenty-seventh day of November in the year two thousand

two in duplicate in the Danish, Dutch, English, Finnish, French, German, Greek, Italian, Portuguese, Spanish

Swedish languages, each of these texts being equally authentic Por la Comunidad Europea/For Det Europöiske Föllesskab/FŽr die Europōische Gemeinschaft/>ISO_7>Ćłń Į÷ż ÅįęųĘńŪśČ Ź˙łżŽĮ÷Įń/>ISO_1>For the European Community/Pour la Communautł europłenne/Per la Comunitš europea/Voor de Europese Gemeenschap/Pela Comunidade Europeia/Euroopan yhteisŠn puolesta/FŠr Europeiska gemenskapen >PIC FILE= "L_2004017EN.003101.TIF"> >PIC FILE= "L_2004017EN.003102.TIF"> Por el Gobierno de la Regiėn Administrativa Especial de Hong Kong de la RepŪblica Popular China/Põ regeringen for Folkerepublikken Kinas sörlige administrative region Hongkongs vegne/Im Namen der Regierung der Sonderverwaltungsregion Hongkong der Volksrepublik China/>ISO_7>Ćłń Į÷ż śįņąęż÷ė÷ Į÷Ė õłōłśČĖ ōł˙łś÷ĮłśČĖ Ęõęł˙šČĖ ×˙żóś Ź˙żóś Į÷Ė ĖńŪśČĖ Ä÷ü˙śęńĮčńĖ Į÷Ė ŹčżńĖ/>ISO_1>For the Government of the Hong Kong Special Administrative Region of the People's Republic of China/Pour le gouvernement de la rłgion administrative spłciale de Hong Kong de la Rłpublique populaire de Chine/Per il governo della regione ad amministrazione speciale di Hong Kong della Repubblica popolare cinese/Voor de regering van de Speciale Administratieve Regio Hong Kong van de Volksrepubliek China/Pelo Governo da Regióo Administrativa Especial de Hong Kong da RepŪblica Popular da China/Kiinan kansantasavallan erityishallintoalueen Hongkongin hallituksen puolesta/FŠr regeringen i Folkrepubliken Kinas sōrskilda administrativa region Hongkong >PIC FILE= "L_2004017EN.003201.TIF">

those whose nationals are exempt from that requirement (OJ L 81, 23.3.2001, p. 1).

of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data

on the free movement of such data (OJ L 281, 23.11.1995, p. 31). ANNEX 1 Common list of documents the presentation of which is considered as proof of nationality or permanent residence (Article 2

Article 5

surrogate passports including children's passports); - identity cards of any kind (including temporary

provisional ones); - service books

military identity cards; - seaman's registration books

skippers' service cards; - official documents indicating the nationality of the person concerned. Hong Kong: - Hong Kong Special Administrative Region Passports; - Hong Kong Certificate of Identity; - Hong Kong Permanent Identity Card; - official documents indicating the permanent residence status of the person concerned. ANNEX 2 Common list of documents the presentation of which is considered as prima facie evidence of nationality or permanent residence (Article 2

Article 5

photocopies thereof; - company identity cards or photocopies thereof; - statements by witnesses; - statements made by the person concerned

language spoken by him or her, including by means of an official test result; - any other document which may help to establish the nationality or the permanent residence status of the person concerned. ANNEX 3 Common list of documents which are considered as proof of the conditions for the readmission of persons of another jurisdiction (Article 3

bills of any kind (e.g. hotel bills, appointment cards for doctors/dentists, entry cards for public/private institutions, etc.) which clearly show that the person concerned stayed on the territory of the requested Member State or the Hong Kong SAR; - railway tickets

tickets

/or passenger lists of air or boat passages which show the itinerary on the territory of the requested State; - information showing that the person concerned has used the services of a courier or travel agency. ANNEX 4 Common list of documents which are considered as prima facie evidence of the conditions for the readmission of persons of another jurisdiction (Article 3

other witnesses who can testify to the person concerned crossing the border; - description of place

circumstances under which the person concerned has been intercepted after entering the territory of the requesting Member State or the Hong Kong SAR; - information related to the identity

/or stay of a person which has been provided by an international organisation; - reports/confirmation of information by family members, travelling companions, etc.; - statement by the person concerned. ANNEX 5 >PIC FILE= "L_2004017EN.003502.TIF"> >PIC FILE= "L_2004017EN.003601.TIF"> ANNEX 6 >PIC FILE= "L_2004017EN.003702.TIF"> >PIC FILE= "L_2004017EN.003801.TIF"> JOINT DECLARATION ON ARTICLE 1(

1. f)The Contracting Parties take note that, under the Hong Kong SAR's current immigration laws, a "residence authorisation" in the meaning of Article 1(
2. f)is, in particular, issued in all cases where a person is given permission to land in Hong Kong: - as a student at a specified

officially approved school, university or other educational institution, or - for paid employment

self-employed economic activities (professionals, investors, talents, imported workers, domestic helpers etc.), or - for the purpose of joining residents in Hong Kong as dependants (family reunion). JOINT DECLARATION CONCERNING DENMARK The Contracting Parties take note that this Agreement does not apply to the territory of the Kingdom of Denmark. In such circumstances it is appropriate that the Hong Kong SAR

Denmark conclude a readmission agreement in the same terms as this Agreement. JOINT DECLARATION CONCERNING ICELAND

NORWAY The Contracting Parties take note of the close relationship between the European Community

Iceland

Norway, particularly by virtue of the Agreement of 18 May 1999 concerning the association of these countries with the implementation, application

development of the Schengen acquis. In such circumstances it is appropriate that the Hong Kong SAR concludes a readmission agreement with Iceland

Norway in the same terms as this Agreement.