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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. This chapter presents fundamental rights considerations should Frontex – in the future – be entrusted with the direct implementation of returns from a third country, for example by allowing a third country to benefit from Frontex’s joint return operations or by financing or organising return operations from a third country to the country of origin. The considerations set out in this chapter apply regardless of whether third-country nationals are hosted in a return hub or not.
  2. As an EU agency, any activity Frontex implements must comply with EU law, including the Charter (see Article 51(1) of the Charter).
  3. Whereas primary EU law would not exclude the possibility for Frontex to implement removals from one third country to another, in its Opinion 5/2018, FRA concluded that entrusting Frontex to remove migrants in an irregular situation who are in a third country would raise significant fundamental rights issues, exposing the agency to constant risk of operating in violation of the principle of non-refoulement enshrined in Articles 18 and 19 of the Charter (see FRA Opinion 5/2018, opinion No 24). To mitigate such risk very strong fundamental rights safeguards must be in place.


  1. The EBCG regulation lists the type of support Frontex can provide to Member States and to third countries. Whereas Frontex should coordinate and organise return operations from one or more Member States (Recital 80 of the EBCG regulation), such activity is not mentioned in Article 10(1)(u) to (w), which lists the tasks which Frontex may carry out for the benefit of third countries.
  2. Similarly, Article 10(1)(u) of the EBCG regulation, which concerns cooperation with third countries, does not include the possibility for the agency to deploy return teams (deployments being limited to ‘border management teams’). This entails, for example, that Frontex has no legal basis for deploying officers to escort third-country nationals subject to forced-return procedures to third countries. Such a task, as listed in Article 55(7)(i) of the regulation, entails the exercise of executive powers and must be regulated in a manner that addresses the fundamental rights risks that this entails.


  1. Article 73 of the EBCG regulation subjects the deployment by Frontex of officers who will exercise executive powers to the conclusion of a status agreement, by the EU, with the third country.
  2. Such status agreements would need to provide for the possibility of Frontex carrying out removals of third-country nationals from the third country with which the agreement is concluded. These agreements, falling under procedural rules of Article 218 of the TFEU, are negotiated on the basis of a model agreement from 2021 by the Commission pursuant to Article 76 of the EBCG regulation. The agreements concluded with Albania (2023), Moldova (2022), Montenegro (2023), North Macedonia (2023) and Serbia (2020) do not provide for this possibility, nor does the 2021 model status agreement [50] See Articles 2 and 4 of the Annex to the Communication from the Commission to the European Parliament and the Council – Model status agreement as referred to in Regulation (EU) 2019/1896 of the European Parliament and of the Council of 13 November 2019 on the European Border and Coast Guard and repealing Regulations (EU) No 1052/2013 and (EU) 2016/1624, COM(2021) 829 final of 21 December 2021.
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  3. Should a future (model) status agreement for measures by Frontex conducted on the territory of third countries envisage the possibility of coordinating and organising return operations and deploying escort officers, this should be accompanied by adequate fundamental rights safeguards. There must be a clear commitment by both parties to act in accordance with fundamental rights protection standards that are equivalent to those embedded in EU fundamental rights law. It should also set out rules on how to handle returnees’ personal data. Operational activities should ideally be flanked by commensurate capacity building or other measures to promote the respect of fundamental rights in return procedures.
  4. The same safeguards should apply to operational support to facilitate returns from third countries that do not entail the exercise of executive powers. This is, for example, the case when Frontex purely finances the return without deploying any officers. Frontex’s operational activities in third countries that do not entail the exercise of executive powers are subject to working arrangements. Under Article 73(4) of the EBCG regulation, these must respect EU law and therefore the Charter.


Measures to mitigate the risk of implementing a flawed return decision


  1. Frontex has no mandate to issue return decisions or to assess their validity (see Recital 12 and Article 48(1) of the EBCG regulation). When it organises return operations from a Member State, it limits itself to verifying that the returnee has been issued a return decision that is final and enforceable. It is up to Member States to ensure that they respect the procedural and substantial safeguards included in the EU return directive. The agency presumes that the return decision has been issued in a lawful manner and relies on the assumption that the Member State concerned acts in good faith. This assumption is based on the principle of sincere cooperation in Article 4(3) of the TEU [51] For more details, see FRA, The revised European Border and Coast Guard regulation and its fundamental rights implications – Opinion of the European Union Agency for Fundamental Rights, Publications Office of the European Union, Luxembourg, 2018, pp. 51–52.
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  2. Concerning return hubs in third countries, this means that as long as the Member States remain responsible for the return procedure and for assessing any legal bars to removal in line with the EU return acquis, Frontex can rely on the enforceable return decision. Frontex must have a flawless mechanism to document for each returnee that an enforceable return decision made by a Member State is present.
  3. In exceptional situations, where there is reliable evidence that the Member State’s national return procedure does not comply with EU law, additional measures may be necessary to avoid direct or indirect breaches of EU and international law by Frontex. These may reach the threshold of suspending return operations partly or in full, based on Article 46 of the EBCG regulation.
  4. The situation is different if the third country carries out the return procedure and/or is responsible for verifying that there are no legal bars to removal. Although they may be bound by international human rights law, including the ECHR, third countries are not bound by the EU legal framework, including the Charter and the common standards for return procedures set out in the EU return directive. In the absence of this common EU framework, the principle of mutual trust and the presumption of compliance with EU fundamental rights law does not apply [52] See Court of Justice, Opinion 1/17 of the Court (Full Court) of 30 April 2019, ECLI:EU:C:2019:341, paragraph 129.
    . This creates the risk that Frontex’s activities in support of third countries may be based on a flawed return decision that is not in conformity with the principle of non-refoulement or the prohibition of collective expulsion.
  5. To mitigate such risks when removing third-country nationals from a return hub located in a third country, the third country would need to be bound to respect fundamental rights safeguards which are comparable to those in EU law. This should be clearly set out in the agreement establishing the return hub and be integrated into the third-country legal system as binding law. Otherwise, Frontex would run the risk of engaging in or contributing to refoulement when it removes returnees hosted in the hub and returns them to their country of origin or habitual residence.
  6. In case Frontex supports return operations in a third country as part of its own operational activities outside the context of a return hub, a comparable duty would need to be reflected in the status agreement or, as applicable, in working arrangements.
  7. It is not sufficient to look at the legal framework applicable to the third country alone. This must also be implemented in practice. Frontex needs to be satisfied that the quality of third-country return decisions respects the safeguards to protect individuals from refoulement or collective expulsions. In addition to the due diligence work by the Frontex fundamental rights officer, there is a need for an independent assessment of the national return system in the third country that examines if comparable safeguards to those embedded in EU law are also applied in practice by the third country.
  8. This requires a thorough ex ante assessment of the quality of the third country’s return system. Such an assessment must be rigorous, based on a diverse range of independent, objective and reliable sources and up-to-date information [53] See also FRA,Opinion of the European Union Agency for Fundamental Rights concerning an EU common list of safe countries of origin’, Vienna, 23 March 2016, p. 16.
    . It also needs to be capable of concluding with sufficient certainty that the quality of the third-country scrutiny is adequate to exclude, as a rule, the risk that a third-country return or ‘order to leave’ decision would violate the prohibition of refoulement and/or collective expulsion. Such an ex ante assessment must be completed before Frontex engages operationally and must be updated on a regular basis. This also flows from Article 73(1) of the EBCG regulation, according to which the agency must comply with EU law, including norms and standards, when it operates in the territory of third countries.
  9. An independent European entity – different from Frontex and with expertise in fundamental rights in the context of returns – should assess the safeguards in the third country’s return system and how these are applied in practice. The assessment should benefit from the Frontex fundamental rights officer’s expertise. The status agreement or the working arrangement should refer to such an assessment and include a commitment by the third country to cooperate in providing the necessary information and data.
  10. Frontex should only activate its operational support if the assessment concludes that the third country’s return system contains sufficient safeguards to mitigate the risk that Frontex will engage in conduct contrary to the Charter, in particular to the rights set out in its Articles 4, 18 and 19.


Application of Frontex’s internal fundamental rights protection and oversight mechanisms


  1. The EBCG regulation established several internal fundamental rights protection mechanisms to operationalise Frontex’s task to respect, protect and promote fundamental rights set out in Article 10(1)(a) to (d) of the EBCG regulation. The regulation tasks the Frontex fundamental rights officer (Article 109) and the fundamental rights monitors (Article 110) to monitor Frontex’s implementation of its fundamental rights commitments. The Consultative Forum on Fundamental Rights (Article 108) provides independent advice. Individuals who are directly affected by the actions, or failure to act, of staff involved in Frontex activities may submit a complaint under Article 111 of the regulation.
  2. Being a piece of EU law, the provisions of the EBCG regulation are not binding for third countries. This is also the case for Frontex’s internal fundamental rights protection mechanisms. To enable these mechanisms to also operate effectively for Frontex’s activities in third countries, they need to be regulated in the status agreement or – if no executive powers are envisaged – in a working arrangement, which must provide for concrete rules concerning their operationalisation. In line with Article 73(3) of the EBCG regulation, the status agreement must provide for practical measures related to the respect of fundamental rights and for a complaint mechanism.
  3. One important safeguard in this regard is monitoring fundamental rights compliance (see Chapter 5). Article 50(3) of the EBCG regulation sets a higher standard for forced-return monitoring when means of transport and return escorts are provided by a third country of return (‘collecting return operations’). In such cases, a return monitor must be present on every return flight. A similar approach should be taken for Frontex’s forced returns carried out from a return hub.
  4. Pursuant to Article 3(1)(e) of the EBCG regulation, the concept of European integration border management requires inter-agency cooperation among national authorities, including, where appropriate, cooperation with national bodies in charge of protecting fundamental rights. To also reflect the philosophy of integrated border management in operational return activities Frontex carries out in third countries, where appropriate in light of the specific situation in the third country, consideration should be given to including in status agreements or working arrangements additional measures envisaging cooperation mechanisms with third-country statutory human rights bodies, beyond what may be needed for establishing a complaint mechanism as required by Article 73(3) of the regulation.


Conclusion


  1. Primary EU law does not ban the possibility for Frontex to implement removals from one third country to another. However, it exposes the agency to a constant risk of operating in violation of the principle of non-refoulement enshrined in Articles 18 and 19 of the Charter. To mitigate such risk, robust and clear fundamental rights safeguards must be in place.