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Cover Return Hub
6
February
2025

Planned return hubs in third countries: EU fundamental rights law issues

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  1. The underlying idea of setting up a return hub in a third country is to have a location outside the EU where returnees can be accommodated until the Member State authorities, and/or the EU (Frontex), implement the return to the country of origin or habitual residence.
  2. To transfer third-country nationals to a return hub, there must be a third country that is ready to take them. In a comparable setting, the CJEU clarified that Member States cannot reject an application for asylum as inadmissible based on the concept of ‘safe third country’ in cases where they have established that the applicant will not be allowed to enter the territory of a third country designated as safe [23] Judgment of the Court of Justice of 4 October 2024, Elliniko Symvoulio gia tous Prosfyges and Ypostirixi Prosfygon sto Aigaio, C‑134/23, ECLI:EU:C:2024:838, paragraph 54.
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Legally binding agreement


  1. The establishment of a return hub thus requires a legally binding agreement, within the meaning of the 1969 Vienna Convention on the Law of Treaties, with the third country hosting the hub. Informal arrangements would not suffice.
  2. The agreement must regulate at least core aspects relating to the functioning of the return hub. This will include, for example, rules on who will be transferred to the return hub, on the modalities of the transfer, on the responsibility for the services provided in the hub and what to do with individuals whose removal from the hub does not materialise.


Respecting Charter rights and principles


  1. The agreement must respect European and international human rights law. States are not allowed to evade their responsibilities under the ECHR by relying on an agreement concluded with a third country [24] Judgment of the Grand Chamber of the ECtHR of 23 February 2012, Hirsi Jamaa and Others v ItalyHirsi Jamaa and Others v Italy, No 27765/09, paragraphs 128–129.
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  2. The agreement to set up a return hub could be concluded at the EU level in the application of Articles 216 and 218 of the TFEU. Under Article 3(2) of the TFEU, the EU has ‘exclusive competence for the conclusion of an international agreement when its conclusion is provided for in a legislative act of the Union or is necessary to enable the Union to exercise its internal competence, or in so far as its conclusion may affect common rules or alter their scope.’ When concluding such agreements, the EU must not only respect the EU founding treaties but also the rights and principles of the Charter, which always apply to EU institutions, bodies and agencies. The Charter – which under Article 6(1) of the TEU has the same rank and legal value as the EU Treaties – applies to the EU’s external relations and therefore extraterritorially [25] Judgment of the General Court of 10 December 2015, Front Polisario v Council, T-512/12, ECLI:EU:T:2015:953; judgment of the Court of Justice of 7 March 2017, X and X, C-638/16 PPU, ECLI:EU:C:2017:173, more specifically the Opinion of Advocate General Mengozzi delivered on 7 February 2017, ECLI:EU:C:2017:93, paragraphs 89 and 92. See also Kassoti, E. and Wessel, R. A. (eds), The EU’s Duty to Respect Human Rights Abroad – Extraterritorial applicability of the EU Charter and due diligence considerations, Centre for the Law of EU External Relations, The Hague, 2020.
    . Article 21(1) of the TEU states that the ‘[t]he Union’s action … seeks to advance in the wider world … the universality and indivisibility of human rights and fundamental freedoms’. Article 3(5) of the TEU further states that ‘[i]n its relations with the wider world, the Union shall uphold and promote its values’. These values include respect for human dignity and fundamental rights and are listed in Article 2 of the TEU, and the EU’s general fundamental rights commitment is detailed further in Article 6 of the TEU, which applies horizontally to all EU measures.
  3. Another option which can be envisaged is to set up a return hub based on an international agreement to be concluded by one or more Member States with the third country concerned. Under Protocol No 23 to the TFEU on external relations of the Member States with regard to the crossing of external borders, Member States may negotiate or conclude agreements with third countries ‘as long as they respect Union law and other relevant international agreements’ [26] See also FRA, How the Eurosur Regulation Affects Fundamental Rights, Publications Office of the European Union, Luxembourg, 2018.
    . This also means that such Member State agreements must respect the Charter, which applies to Member States when they act within the scope of EU law (Article 51(1) of the Charter).
  4. Under Article 77 of the TFEU, the EU must develop a policy for ‘the gradual introduction of an integrated management system for external borders’. Such a policy led to the emergence of a body of EU law on border management, the central pieces of which are the Schengen Borders Code – which regulates border controls – and the EBCG regulation, the subject matter of which is the effective management of the EU’s external borders and increasing the efficiency of the EU’s return policy (Article 1). The latter also introduces the concept of ‘European integrated border management’, describing its components in Article 3 [27] Regulation (EU) 2024/1351 likewise refers to the concept of ‘European integrated border management’ (Article 4(b)) as an internal component of the comprehensive approach to asylum and migration management, making it part of the EU policy-cycle planning in the area of migration and asylum.
    . These include returns and cooperation with third countries.
  5. Such cooperation with third countries is subject to the rules set out in Section 11 of the EBCG regulation, which contains provisions reflecting the limits Protocol No 23 to the TFEU imposes on Member States. Article 71(2) of the EBCG regulation provides that Member States must ‘comply with Union law, including norms and standards which form part of the Union acquis, including where cooperation with third countries takes place on the territory of those third countries’. Agreements and other arrangements that Member States conclude with third countries in the areas of border management and returns must respect the requirements of Article 72(3) of the regulation. This provision requires that they must comply with ‘Union and international law on fundamental rights and on international protection, including the Charter, the European Convention for the Protection of Human Rights and Fundamental Freedoms and the 1951 Convention relating to the Status of Refugees, the 1967 Protocol thereto, and in particular the principle of non-refoulement.’


Categories of third-country nationals


  1. For Member States, the connection of a return hub with EU law also derives from the thematic EU policy field. This must be examined separately for the two categories of third-country nationals that may be placed in return hubs.


A. Returnees brought to the return hub from the EU (category 1)


  1. By setting up and running a return hub in a third country, Member States intend to combat ‘illegal immigration and unauthorised residence, including removal and repatriation of persons residing without authorisation’, as regulated in Article 79 (2) (c) of the TFEU. The establishment of a return hub – even though it does not per se transpose an express EU law obligation – is based on the assumption that it considerably contributes to the achievement of the objectives of the EU return directive, namely, to remove third-country nationals who do not have the right to stay in the EU and thus increase the effectiveness of EU return policy. While recognising that Member States may adopt rules on matters that the EU return acquis does not regulate, the CJEU noted that when they do so, they are subject ‘to full observance of fundamental rights’ [28] See judgment of the Court of Justice of 6 December 2011, Achughbabian, C-329/11, ECLI:EU:C:2011:807, paragraph 49; judgment of the Court of Justice of 1 October 2015, Celaj, C-290/14, ECLI:EU:C:2015:640, paragraph 32; judgment of the Court of Justice of 17 September 2020, JZ, C-806/18, ECLI:EU:C:2020:724, paragraph 41; and judgment of the Court of Justice of 24 February 2021, M and Others, C-673/19, ECLI:EU:C:2021:127, paragraph 47.
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  2. For returnees, legal acts establishing a return hub in a third country would be so closely linked with the implementation of the EU acquis on returns that it would be difficult to argue that they would not fall within the scope of EU law [29] Judgment of the Court of Justice of 26 February 2013, Åkerberg Fransson, C-617/10, ECLI:EU:C:2013:105, paragraph 21. For FRA’s analysis of the applicability of the Charter, see FRA, Applying the Charter of Fundamental Rights of the European Union in law and policymaking at national level – Guidance, Publications Office of the European Union, Luxembourg, 2018.
    and thus would exclude the applicability of the Charter. This situation would be different from the one the CJEU reviewed in Gueye and Sanchez, where the Spanish law provision at stake related to a piece of EU legislation (Framework Decision 2001/220/JHA) which did not intend to harmonise or approximate Member State legislation [30] Judgment of the Court of Justice of 15 September 2011, Gueye and Salmerón Sánchez, C-483/09 and C-1/10, ECLI:EU:C:2011:583, paragraph 51.
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B. Individuals brought to a facility directly after being rescued at sea (category 2)


  1. Article 18 of the EBCG regulation establishes the European border surveillance system Eurosur, an integrated framework for the exchange of information and for operational cooperation, to improve situational awareness in the context of border surveillance, to detect and combat irregular migration and cross-border crime and to protect and save the lives of migrants. Maritime border surveillance activities thus fall under EU law (see also Regulation (EU) 656/2014 for Frontex-coordinated maritime border surveillance operations).
  2. Also, the Schengen Borders Code and, therefore, the Charter apply to people intercepted or rescued at sea in the context of border surveillance activities. When dealing with such people, Member States must always comply with the fundamental rights safeguards in Articles 3 and 4 and Article 13(2) of the Schengen Borders Code (as amended by Regulation (EU) 2024/1717). These safeguards reflect the duty to act in accordance with the principle of non-refoulement and obligations related to access to international protection.


Fundamental rights impact assessment


  1. As the Charter applies to agreements the EU or its Member States conclude with a third country to establish a return hub, the rules set out therein must comply with Charter rights and principles. If EU law safeguards apply to the agreement establishing the hub, they necessarily apply to its implementation.
  2. The agreement – whether concluded with the third country hosting the hub at the EU or national level – will have to describe, with sufficient clarity and precision, the obligations and procedures for all parties involved to enable a rights-compliant implementation of the return hub.
  3. Under the ECHR, if Member States have jurisdiction over the returnees hosted in the return hub – either alone or jointly with the third country hosting the hub – and human rights violations occur therein, then they also have a positive obligation to take preventive measures, as the ECtHR clarified in its case-law [31] For case-law on the duty to take preventive operational measures (positive obligations) flowing from Articles 2 (right to life) and 3 (prohibition of torture) of the ECHR, see ECtHR, ‘Guide on Article 2 of the European Convention on Human Rights – Right to life’, Council of Europe and ECtHR, 2024, updated on 31 August 2024; and ECtHR, ‘Guide on Article 3 of the European Convention on Human Rights – Prohibition of torture’, Council of Europe and ECtHR, 2024, updated on 31 August 2024. All case-law guides are available on the ECtHR websiteECtHR. For positive obligations regarding arbitrary detention (Article 5 of the ECHR), see judgment of the Grand Chamber of the ECtHR of 13 December 2012, El-Masri v the former Yugoslav Republic of Macedonia, No 39630/09, paragraph 239. See also, in general, Stoyanova, V., Positive obligations under the European Convention on Human Rights – Within and beyond boundaries, Oxford University Press, Oxford, 2023.
    . Under Article 52(3) of the Charter, the meaning and scope of Charter rights, which correspond to rights guaranteed by the ECHR, must be the same as those laid down by the ECHR. This is the case, for example, of the right to life in Article 3 of the Charter and the prohibition of torture and other forms of ill treatment in Article 4 of the Charter. Such Charter rights also require preventive action.
  4. An ex ante evaluation of the situation and practices in place in the specific third country to guarantee the respect of fundamental rights is necessary to determine the impact of a planned return hub on fundamental rights. Such assessment would clarify if an agreement to set up a return hub can be concluded in a rights-compliant manner at all. It also serves to identify any mitigating measures which the agreement should include to ensure respect for the principle of non-refoulement and to safeguard the right to life and humane and dignified treatment.


Conclusion


  1. The second pre-condition to operate a return hub in a third country is the existence of a legally binding agreement with the third country hosting the hub, which regulates, with sufficient elaboration, at least core aspects relating to the establishment of the return hub. The agreement must provide for a clear and adequate legal basis to enable the lawful transfer of third-country nationals to the hub. The agreement may be concluded by the EU itself or by Member States. In both situations, it must respect the rights and principles set out in the Charter, which also entails a duty to take preventive measures to mitigate the risk of rights violations while third-country nationals stay in the return hub and will be subjected to further onward return to the country of destination. An ex ante fundamental rights impact assessment should analyse fundamental rights risks and how to mitigate them. Member States continue to act within the scope of EU law when they run a return hub in a third country and implement returns from there. This means that the machinery to enforce EU law can be activated in case of failure to comply with EU fundamental rights law.