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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. Some people enter the European Union (EU) without having the right to do so. Others do not leave when their visa or residence permit expires and have no other grounds to stay. The EU developed a set of common rules – the EU return acquis – to deal with them. The central piece of such EU rules Directive 2008/115/EC (the EU return directive) – requires that any third-country national who has no right to stay in the EU should be issued a return decision or granted permission to stay (Article 6). If voluntary departure (Article 7) is not an option, returnees must be removed (Article 8) from the EU Member State’s territory.
  2. There is a significant gap between the number of people ordered to leave and those who actually leave the EU. In recent years, the EU and its Member States have been increasing efforts to make return policies more effective. This legal analysis sets out the European Union Agency for Fundamental Rights’ (FRA) initial position on the creation of ‘return hubs’ in third countries as one of the debated measures which are part of the toolbox to enhance the effectiveness of returns of third-country nationals without the right to stay in the EU.
  3. This legal position paper uses the term return hub for two different situations.

    - In the first scenario, third-country nationals who are physically present in a Member State and who hold a valid and enforceable return decision issued under the EU return directive are temporarily transferred to a facility (return hub) in a third country to organise their return home. The departure or transfer to the third-country hub can be, in principle, either voluntary or forced. No such return hub has been established yet.

    - In the second scenario, third-country nationals who are rescued at sea (outside the territorial sea of a Member State) are brought to and disembarked in a third-country hub where the rescuing Member State carries out the return processing, either following the final rejection of their asylum claim based on a fair procedure or immediately, in case the person does not apply for asylum and there are no other legal bars to removal. The affected individuals remain hosted in the third-country hub until their return home is organised and implemented by the Member State. The Italian centres created in 2024 in Albania would fall under this category, if they start hosting asylum applicants whose asylum claim has been rejected through a final decision and their return is organised from there.
  4. In both situations, the Member State and/or the European Border and Coast Guard Agency (Frontex) implement the return decision while the returnee is in the third country hosting the hub. They would do so by organising, carrying out or otherwise supporting the returnees’ departure or removal to their country of origin or habitual residence.
  5. This differs from situations where Member States return third-country nationals to a non-EU country – typically a neighbouring country – they transited through before reaching the EU. In such cases, with the handover to the third-country authorities as per an EU-level [1] For a list of EU readmission agreements, see European Commission, ‘A humane and effective return and readmission policy’, European Commission – Migration and Home Affairs website.
    or bilateral readmission agreement [2] For an inventory of such bilateral agreements, including those concluded by the Member States, see Harvard Dataverse and Cassarino, J. P., ‘Inventory of the bilateral agreements linked to readmission’, Version 2, 16 March 2022.
    , the Member States complete their duty to implement the EU’s return acquis. Responsibility for the returnees ceases after the transfer. It is prior to such removal (readmission) that Member States must examine that there are no obstacles – flowing from EU law and international human rights law, including the principle of non-refoulement – to return the person to the transit country. A 2013 FRA report on fundamental rights at Europe’s southern sea borders contains, in Chapter 8, an analysis of fundamental rights in the context of readmissions and presents suggestions for safeguards, which broadly remain valid.
  6. The degree to which Member States may be involved in running a return hub could vary from situations where a Member State takes full authority to situations where the third country administers the return hub. Chapter 3 of this legal analysis examines various options without exhaustively covering all possible scenarios. The ensuing joint or shared accountability (liability) of a Member State, Frontex and the third country concerned requires more in-depth analysis, which goes beyond the scope of this legal analysis [3] In legal literature, see, for example, Gkliati, M., ‘Shaping the joint liability landscape? The broader consequences of WS v Frontex for EU Law’, European Papers – A journal on law and integration, Vol. 9, 2024, pp. 69–86; Fink, M., Rauchegger, C. and De Coninck, J., ‘The action for damages as a fundamental rights remedy’, in: Fink, M. (ed.), Redressing Fundamental Rights Violations by the EU: The promise of the ‘complete system of remedies’, Cambridge University Press, Cambridge, 2024, pp. 55–60, notably Section 2.5, ‘Joint liability between the EU and its Member States’; Molnár, T., ‘EU Member States’ responsibility under international law for breaching human rights when cooperating with third countries on migration: Grey zones of law in selected scenariosEU Member States’ responsibility under international law for breaching human’, European Papers – A journal on law and integration, Vol. 8, No 2, 2023, pp. 1013–1035; Molnár, T., ‘The EU General Court’s judgment in WS and Others v Frontex: What could international law on the responsibility of international organizations offer in grasping Frontex’ responsibility?’, EJIL:Talk! website, 18 October 2023; and Nollkaemper A., d’Aspremont, J., Ahlborn, C., Boutin, B., Nedeski, N. et al., ‘Guiding principles on shared responsibility in international law’, European Journal of International Law, Vol. 3, No 1, February 2020, pp. 15–72, notably the ‘Commentary’ section of Principle 7, ‘Shared responsibility in situations of concerted action’.
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  7. This legal analysis presumes that the return hub is a closed, open or semi-open facility. However, the same considerations apply to other types of arrangements, such as allowing returnees to arrange their own stay in the third country (e.g. with family members living there), subject to reporting requirements and/or the duty to hand over their travel documents.
  8. This legal analysis also covers the operational support Frontex would provide to return third-country nationals – from the return hub but also, more generally, from a third country – to the returnees’ country of origin. It does not cover the return support that Frontex already provides to third countries, for example as part of its capacity-building work in the framework of Article 10(1)(u) to (w) of Regulation (EU) 2019/1896, the European border and coast guard regulation (EBCG regulation).
  9. This legal analysis focuses on the EU return acquis as interpreted by the Court of Justice of the European Union (CJEU) – for an overview of these CJEU rulings, see the quarterly updates by the Centre for Migration Law at Radboud University – and on the fundamental rights issues which need to be duly addressed and resolved should the operationalisation of return hubs in third countries be considered.
  10. This position paper does not examine EU law aspects relating to the effet utile of relevant EU law instruments. The principle of sincere cooperation set out in Article 4(3) of the Treaty on European Union (TEU) requires Member States to facilitate the achievement of the EU’s tasks and to refrain from measures which could jeopardise the attainment of the EU’s objectives. In relation to other questions – domestic criminal sanctions for disregarding an entry ban and the legality of criminal imprisonment for an irregular stay – the CJEU clarified that national rules are only allowed as long as they do not undermine the effectiveness of the EU return directive [4] On entry bans see judgment of the Court of Justice of 19 September 2013, Filev and Osmani, C-297/12, ECLI:EU:C:2013:569, paragraph 37; on criminal imprisonment see judgment of the Court of Justice of 28 April 2011, El Dridi, C-61/11 PPU, ECLI:EU:C:2011:268, paragraph 55; judgment of the Court of Justice of 6 December 2011, AchughbabianAchughbabian, C-329/11, ECLI:EU:C:2011:807, paragraph 39; judgment of the Court of Justice of 6 December 2012, Sagor, C-430/11, ECLI:EU:C:2012:777, paragraph 32.
    . Similar concerns may emerge, if national rules establishing a return hub would lead to returnees absconding from the hub and re-entering another Member State, which would then have to deal with the person’s return.
  11. This legal analysis does not examine the extraterritorial processing of asylum applications. Third-country nationals who reach Member State territory (including the territorial sea), either on their own or after being rescued at sea, and seek asylum must be channelled into national asylum procedures respecting the safeguards of the EU asylum acquis and in full compliance with the requirements flowing from the European Convention on Human Rights (ECHR) and the 1951 Geneva Convention relating to the Status of Refugees. Their potential transfer to a return hub may only be considered after a final rejection of their asylum claim and in the absence of other legal bars to removal.
  12. This legal analysis focuses solely on the fundamental rights requirements for the EU and its Member States flowing from the Charter of Fundamental Rights of the European Union (the Charter) and relevant CJEU case-law, together with applicable European and international human rights law standards. Due to this strong legal focus, it does not examine other challenges to establishing return hubs, for example those related to international relations or linked to their practical feasibility in terms of resources, cost-effectiveness and implementation challenges. It also does not examine the unintended consequences of return hubs potentially contributing to a new category of stranded people in third countries hosting a return hub, should final removal to their country of origin not materialise.
  13. In terms of structure, after a short background on EU return policies, the first three chapters of the ensuing analysis examine the fundamental rights pre-conditions under EU law for Member States to set up return hubs in a third country. Chapter 4 examines the fundamental rights implications of Frontex-supported returns from third countries, and Chapter 5 deals with fundamental rights monitoring.