Help us make the FRA website better for you!

Take part in a one-to-one session and help us improve the FRA website. It will take about 30 minutes of your time.

YES, I AM INTERESTED NO, I AM NOT INTERESTED

Cover Return Hub
6
February
2025

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

dummy


  1. The third pre-condition flows from the fact that in the case of a return hub, the Member States and/or the EU take charge of the returnees’ departure or removal to their country of origin or habitual residence. The transfer of returnees to a return hub in a third country does not entail a termination of fundamental rights obligations of a Member State towards such individuals.
  2. Individuals hosted in return hubs must be treated in accordance with applicable international human rights law. Among other things, the processing of their return to the country of origin must respect the principle of non-refoulement.
  3. The question of who – the Member State who transferred the returnee to the hub or the third country hosting the hub – bears the responsibility to ensure the respect of applicable human rights law and in particular the ECHR is, in practice, linked to the scope of relevant obligations regarding the individuals hosted in the return hub.
  4. This requires clarifying the term ‘jurisdiction’, which has a different meaning in general public international law and in human rights treaty law. Jurisdiction, in the more general sense, designates the exclusive competence of a state with respect to conduct within its own territory, precluding intervention in the territories of other sovereign powers in the absence of agreements providing otherwise. Jurisdiction, as the technical term of art in human rights treaties, delineates the scope of human rights obligations. In certain circumstances, obligations may extend also to persons who are outside the state’s territory [32] den Heijer, M. and Lawson, R., ‘Extraterritorial human rights and the concept of “jurisdiction”’, in: Langford, M., Vandenhole, W., Scheinin, M. and van Genugten, W. (eds), Global Justice, State Duties – The extraterritorial scope of economic, social and cultural rights in international law, Cambridge University Press, New York, 2013, pp. 153–191, in particular page 163.
    . For example, in October 2024, the UN Human Rights Committee found that Australia was responsible for the arbitrary detention of asylum seekers transferred to offshore detention facilities in the Republic of Nauru, as it had effective control over the persons in these facilities [33] UN Human Rights Committee, ‘Views adopted by the committee under Article 5(4) of the Optional Protocol, concerning communication No 2749/2016’, CCPR/C/142/D/2749/2016, United Nations, 31 October 2024; and UN Human Rights Committee, ‘Views adopted by the committee under the Option Protocol, concerning communication No 3663/2019’, CCPR/C/142/D/3663/2019, United Nations, 25 October 2024.
    .
  5. Taking the example of protection against refoulement, Article 2(1) of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment obliges states to ‘prevent acts of torture in any territory under its jurisdiction’. Article 2(1) of the International Covenant on Civil and Political Rights stipulates that a state undertakes to respect and ensure the rights of the convention to all persons ‘present in its territory and subject to its jurisdiction’. The UN Human Rights Committee has clarified that the notions of ‘territory’ and ‘jurisdiction’ are not cumulative requirements [34] UN Human Rights Committee, ‘General comment No 31 [80] – The nature of the general legal obligation imposed on States Parties to the Covenant’, CCPR/C/21/Rev.1/Add. 13, United Nations, 26 May 2004, paragraphs 10 and 12.
    .
  6. At the European level, Article 1 of the ECHR compels states to ensure the rights of the convention to anyone within their jurisdiction. Article 1 is presumed to apply within a state’s sovereign territory [35] Decision of the Grand Chamber of the ECtHR of 12 December 2001, Banković and Others v Belgium and Others, No 52207/99, paragraph 61; judgment of the Grand Chamber of the ECtHR of 8 July 2004, Ilaşcu and Others v Moldova and Russia, No 48787/99, paragraphs 312–314; judgment of the Grand Chamber of the ECtHR of 7 July 2011, Al-Skeini and Others v the United Kingdom, No 52207/99, paragraph 131.
    . The extraterritorial scope of human rights protection is considered ‘exceptional’ and needs special justification. Examples of such extraterritorial scope of application include situations in which military forces control parts of foreign territory and when state agents operating on foreign soil violate a person’s human rights through their conduct [36] Decision of the Grand Chamber of the ECtHR of 12 December 2001, Banković and Others v Belgium and Others, No 52207/99, paragraphs 68–73. For a comprehensive treatise on the matter, see Milanovic, M., Extraterritorial Application of Human Rights Treaties: Law, principles, and policy, Oxford University Press, Oxford, 2011.
    .
  7. In a report on the scope of the principle of non-refoulement published in 2016, FRA listed three indicators to identify and establish whether there is a jurisdictional link between the person affected and state conduct [37] FRA, Scope of the principle of non-refoulement in contemporary border management: Evolving areas of law, Publications Office of the European Union, Luxembourg, 2016, pp. 18–19.
    :

    - de jure control, meaning instances where jurisdiction is derived from a defined set of rules that have been agreed upon in advance by the state in question;

    - de facto control over a territory or a person;

    - the exercise of public powers, when – in accordance with customary international law, treaty or other agreement – the authorities of a state carry out executive or judicial functions on the territory of another state.
  8. Taking these indicators as a starting point, the EU and/or its Member States will have applicable human rights obligations whenever they have effective control over the individuals, even if they operate extraterritorially.


Respecting the prohibition of refoulement and collective expulsion


  1. The prohibition of refoulement and of collective expulsion is laid down in international law [38] See the relevant legal instruments in footnote 11.
    and reflected in Article 18 (right to asylum) and Article 19 (protection in the event of removal, expulsion or extradition) of the Charter. A crucial tool to ensure compliance with the prohibition of refoulement and of collective expulsion is the individual assessment of the person’s circumstances, on a case-by-case basis, as part of a return or refusal of entry decision. To avoid chain refoulement, the Member States’ return or refusal of entry decisions which constitute the legal basis for the transfer to the return hub must not only assess the legality of the transfer to the third country but also establish that there are no legal bars to remove the third-country nationals to their country of origin or habitual residence.
  2. A returnee has the right to bring forward any change in circumstances that occurred after the adoption of the return decision that may have a significant bearing on the assessment of their situation [39] Judgment of the Court of Justice of 19 June 2018, Gnandi, C‑181/16, ECLI:EU:C:2018:465, paragraph 64.
    . The requirement to uphold the principle of non-refoulement may, at least in some circumstances, also necessitate an updated assessment of refoulement risks by the state carrying out the removal [40] Judgment of the Court of Justice of 17 October 2024, Ararat, C‑156/23, ECLI:EU:C:2024:892, paragraph 38.
    . The Member State carrying out the removal must have a procedure to re-examine the lawfulness of the removal in light of the new circumstances. Such re-examination also entails the right to an effective remedy, the characteristics of which must comply with Article 47 of the Charter [41] Judgment of the Court of Justice of 30 September 2020, CPAS Liège, C-233/19, ECLI:EU:C:2020:757, paragraph 45; judgment of the Court of Justice of 17 October 2024, Ararat, C‑156/23, ECLI:EU:C:2024:892, paragraph 46.
    . These considerations flow from the Member State’s involvement in the removal and apply regardless of the fact that the returnee is not physically present in the Member State territory but is accommodated in a return hub outside the EU.
  3. It is theoretically also possible that the Member State exceptionally agrees with the third country that any new circumstance which may affect the lawfulness of return to the country of origin is examined by the responsible authorities of the third county hosting the return hub. Depending on the human rights record of the third country, such a scenario may bear very high fundamental rights risks. It must not result in circumventing applicable EU fundamental rights law.
  4. In such a case, the Member State that carries out forced removals from the return hub needs to be satisfied that the quality of the third-country decision-making process protects individuals from refoulement or collective expulsions. This would require embedding specific safeguards in the agreement establishing the return hub, whereby the Member State would be required to review and clear each individual third-country decision that examined whether the removal remains lawful in light of any new circumstances.
  5. Alternatively, the agreement would have to establish a detailed set of mitigating measures along the lines described in Chapter 4 for Frontex. This would, among other things, require that the Member State carries out an independent, thorough and ex ante assessment of the third-country return system and of the safeguards it applies to prevent human rights violations; repeats such an assessment regularly; establishes a system for effective and independent human rights monitoring; and establishes a mechanism to ensure the right to an effective judicial remedy for returnees claiming that their removal violates the prohibition of refoulement or collective expulsion.


Ensuring dignified treatment in the hub


  1. The return hub may be either a closed facility, comparable to a pre-removal detention facility, or an open or semi-open facility, where certain categories of individuals would be allowed to leave the centre temporarily, for example during the daytime. Regardless of the type of arrangement, the material conditions, treatment and services provided in the hub must respect applicable fundamental rights law.
  2. Various practical arrangements are possible as regards, for example, the provision of food, non-food items, healthcare or counselling. The Member State, the third country hosting the hub or both could be involved. Two scenarios are possible, as follows.


A. The Member State provides material conditions and services (scenario 1)


  1. In a first scenario, the Member State sending the returnees to the hub also administers it. It provides a range of services, which could include all aspects of daily life, except for emergency hospitalisation (at least until the patient can be transported back to the Member State) and those aspects of the administration of justice, for which the third country, as a sovereign state, will have to take responsibility. Under this scenario, the Member State has either full control over the third-country nationals hosted in the hub or over those aspects of the third-country nationals’ lives for which it is responsible. Leaving aside jurisdiction under the ECHR, if the agreement setting up the hub gives the authority to the Member State to run it fully or partly, this also triggers the applicability of fundamental rights law enshrined in the Charter to ensure humane and dignified treatment of the people kept therein. The protection of children, the elderly and persons with disabilities under Articles 24 to 26 of the Charter also requires that special attention is afforded to third-country nationals in a vulnerable situation.
  2. Member States must also respect Article 6 of the Charter (right to liberty and security), which protects individuals from arbitrary deprivation of liberty. Authorities may resort to pre-removal detention – including in a return hub located in a third country – only if less coercive measures are not a viable option and only as long as necessary for the purpose pursued [42] See, for example, judgment of the Court of Justice of 28 April 2011, El Dridi, C-61/11 PPU, ECLI:EU:C:2011:268, paragraphs 42–43.
    . Returnees can only be detained as long as removal arrangements are in progress and executed with due diligence and provided that there are reasonable prospects for removal [43] Judgment of the Court of Justice of 30 November 2009, Kadzoev, C-357/09 PPU, ECLI:EU:C:2009:741, paragraphs 64–67.
    . These safeguards flow from the case-law of the ECtHR on immigration detention [44] For an overview of relevant ECtHR case-law, see ECtHR, ‘Guide on the case-law of the European Convention on Human Rights – Immigration’, Council of Europe and ECtHR, 2024, updated on 31 August 2024.
    , which the EU return directive mirrors in its Article 15. The ECtHR also held that the place and conditions of immigration detention must be appropriate [45] See, for example, judgment of the Grand Chamber of the ECtHR of 15 December 2016, Khlaifia and Others v Italy, No 16483/12, paragraphs 159–177; judgment of the Grand Chamber of the ECtHR of 21 January 2011, M.S.S. v Belgium and Greece, No 30696/09, paragraphs 216–234; judgment of the First Section of the ECtHR of 24 March 2016, Sakir v Greece, No 48475/09, paragraphs 50–58; judgment of the First Section of the ECtHR of 21 June 2018, S.Z. v Greece, No 66702/13, paragraphs 36–42; judgment of the Fourth Section of the ECtHR of 23 July 2013, Aden Ahmad v Malta, No 55352/12, paragraphs 54–66.
    and that special safeguards apply to children and to persons with vulnerabilities [46] For an overview of the extensive case-law on the matter, see ECtHR, ‘Guide on the case-law of the European Convention on Human Rights – Immigration’, Council of Europe and ECtHR, 2024, updated on 31 August 2024.
    .


B. The third country provides material conditions and services (scenario 2)


  1. In a second scenario, Member States transfer returnees to a facility managed by a third country. Under this scenario, third-country authorities cater fully or partly for the returnees’ needs. The authorities of the third country hosting the hub bear primary accountability for the services they are responsible for.
  2. As described in Chapter 2, the agreement between the Member States and the third country that establishes the return hub must comply with EU law on fundamental rights, including the Charter. This means, for example, that rules on the treatment of returnees hosted in the third-country return hub must respect human dignity, as set out in Article 1 of the Charter. Therefore, such agreements should set minimum standards for the treatment of third-country nationals accommodated in the hub, for example as regards material conditions, food, healthcare and information provision.
  3. The Member States may agree with the third country to cover the costs of running the return hub. In such a case, additional fundamental rights considerations emerge if EU funds are used, for example through the national envelope of the Asylum, Migration and Integration Fund [47] Regulation (EU) 2021/1147 of the European Parliament and of the Council of 7 July 2021 establishing the Asylum, Migration and Integration Fund, OJ L 251, 15 July 2021, p. 1.
    . The specific fundamental rights safeguards applicable to the relevant EU funding instrument apply [48] In the case of the Asylum, Migration and Integration Fund, these would also include the safeguards laid down in Regulation (EU) 2021/1060 of the European Parliament and of the Council of 24 June 2021 laying down common provisions on the European Regional Development Fund, the European Social Fund Plus, the Cohesion Fund, the Just Transition Fund and the European Maritime, Fisheries and Aquaculture Fund and financial rules for those and for the Asylum, Migration and Integration Fund, the Internal Security Fund and the Instrument for Financial Support for Border Management and Visa Policy, OJ L 231, 30 June 2021, p. 159.
    . Under Article 19(2) of Regulation (EU) No 516/2014, national programmes must ‘fully respect the rights and principles enshrined in the Charter of Fundamental Rights of the European Union’. CJEU case-law found that where there is a sufficiently strong connection between the financed activities and the related EU policy (in this case, the EU return or border management acquis), the matter falls within the scope of EU law and triggers the applicability of the Charter [49] See, for example, judgment of the Court of Justice of 17 September 2014, Liivimaa Lihaveis, C-562/12, ECLI:EU:C:2014:2229, paragraphs 61–66. See also FRA, EU Funds – Ensuring compliance with fundamental rights – Report, Publications Office of the European Union, Luxembourg, 2023.
    .
  4. Thus, when third countries administer the return hub, the Member State that set up the hub maintains a certain degree of accountability for the standards of treatment in the hub.


Adequate treatment during removals to the country of origin


  1. In the case of a return hub, the Member States and/or the EU agree with the third country that they will take charge of the returnee’s onward departure or removal to their country of origin. Member States may either organise their departure and/or removal by themselves or request Frontex’s support to do so (see Chapter 4 for the fundamental rights implications for Frontex).
  2. When implementing returns from a third country, Member States are responsible for rights violations which may occur during the removal. The circumstance that the returnees are picked up from a facility located in a third country and not in the Member State territory does not change the fact that they still implement the EU return acquis and thus operate within the scope of EU law. Fundamental rights standards on the necessity and proportionality of the use of force flowing from the Charter and mirrored in Article 8(4) of the EU return directive on coercive measures continue to apply.
  3. It is also possible to have situations whereby certain parts of the removal process – for example picking up returnees from the hub and bringing them to the airport – might be carried out together with escort officers of the third country hosting the hub. This may raise additional questions on (joint or shared) responsibilities for rights violations flowing from the involvement of law enforcement authorities of two states, the analysis of which goes beyond this legal position paper.
  4. If the return is not implemented within the maximum detention period allowed under the EU return directive or Member States’ national law (in case of an opt-out under Article 2(2)(a) of the directive), the Member State would take or return the individual to the EU and continue the return procedures from its own territory. Alternatively, the Member State may agree with the third country hosting the return hub to transfer to the latter the jurisdiction over the returnee. Before the transfer, the Member State must examine that the transfer respects the principle of non-refoulement and other relevant Charter rights. From the transfer date onwards, the third country will take over the return processing.


Conclusion


  1. A third pre-condition for return hubs flows from the fact that the Member States and/or the EU will be in charge of the returnees’ departure or removal from the hub to their country of origin or habitual residence. This creates a duty under international law and EU law to respect the prohibition of refoulement and collective expulsion and to respect fundamental rights and dignity when the Member States or Frontex implement removals from the hub. The agreement setting up the return hub must comply with EU fundamental rights law and should set out minimum standards for the material conditions and treatment of third-country nationals accommodated in the hub. If Member States use EU funds to cover the costs of the return hub, at least in part, the specific safeguards applicable to the relevant EU funding instrument apply.