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
Février
2025

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

dummy


  1. Primary EU law does not ban the creation of return hubs but imposes considerable limitations.
  2. Concerning the transfer of returnees to a return hub in a third country (the first scenario in paragraph 13 of this paper), secondary EU law limits the return of third-country nationals to a country other than their country of origin. Article 3(3) of the EU return directive allows return only to ‘a country of transit’, if there are agreements and arrangements in place, and to ‘another third country to which the third-country national concerned voluntarily decides to return and in which he or she will be accepted’.
  3. Returns to any third country that would accept a third-country national, regardless of their consent and irrespective of whether the returnee has any link to such a third country, are not envisaged by the EU return acquis. As FRA pointed out in its Opinion 1/2019 (page 19) on the proposed recast EU return directive, such an approach would raise significant concerns not only from a fundamental rights point of view but also regarding the sustainability of such returns in light of the risk it entails that individuals returned to a neighbouring third country – and not to their country of origin, usually located further afield – may re-enter the EU unlawfully.
  4. EU law does not prohibit the transfer of migrants rescued at sea by a Member State to a facility in a third country (the second scenario in the introduction of this paper), if it qualifies as a ‘place of safety’ [7] See Article 2(12) and Article 10 of Regulation (EU) No 656/2014 of the European Parliament and of the Council of 15 May 2014 establishing rules for the surveillance of the external sea borders in the context of operational cooperation coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union, OJ L 189, 27 June 2014, p. 93.
    and the transfer is carried out in line with the requirements of the Schengen acquis, including applicable fundamental rights safeguards.
  5. The issuance of a valid decision ordering the individual to leave the Member State, which is based on an individual assessment, is the starting point (Article 6 of the EU return directive) for any return within the meaning of the EU return directive, regardless of the envisaged destination of the returnee.
  6. The CJEU reaffirmed that Member States must issue a return decision for third-country nationals unlawfully staying in their territory and falling within the scope of the EU return directive, before carrying out their removal. Such a return decision must comply with the substantive and procedural safeguards established by that directive [8] See judgment of the Court of Justice of 17 December 2020, Commission v Hungary, C-808/18, ECLI:EU:C:2020:1029, paragraph 253.
    . For the upcoming return border procedure, under Article 4(6) of Regulation (EU) 2024/1349, Member States will also have the option of issuing a ‘refusal of entry decision’ (as per Article 14 of the Schengen Borders Code, Regulation (EU) 2016/399) instead of a return decision. Under Article 4(6) of Regulation (EU) 2024/1349, core safeguards of the EU return directive regarding the treatment and level of protection – including respect for the principle of non-refoulement, the necessity and proportionality of coercive measures, access to healthcare, the treatment of persons in a vulnerable situation and detention conditions – equally apply to returnees under the return border procedure.


Individualised assessment


  1. As a general principle of EU law, decisions must be adopted on a case-by-case basis [9] See also FRA, Scope of the principle of non-refoulement in contemporary border management: Evolving areas of law, Publications Office of the European Union, Luxembourg, 2016; FRA, The recast return directive and its fundamental rights implications – Opinion of the European Union Agency for Fundamental Rights, Publications Office of the European Union, Luxembourg, 2019.
    . Relevant secondary EU law reflects this requirement. Under Recital 6 of the EU return directive, all return-related decisions should be adopted on a case-by-case basis, based on objective criteria and following a fair and transparent procedure. The Schengen Borders Code, which regulates refusals of entry, states in Article 4 that ‘[i]n accordance with general principles of Union law, decisions under this Regulation shall be taken on an individual basis’. Without an individualised assessment, there is a high risk of acting against the prohibition of collective expulsion and the principle of non-refoulement set out in Article 19 of the Charter.


  1. A transfer to a third country hosting a return hub would not be allowed if there are substantial grounds for believing that the person in question, if removed, would face a real risk of torture, inhuman or degrading treatment or punishment, or a real risk of a flagrant breach of the right to liberty (arbitrary detention) [10] See, for example, judgment of the Grand Chamber of the European Court of Human Rights (ECtHR) of 21 November 2019, Ilias and Ahmed v Hungary, No 47287/15, paragraphs 126–127. For an overview of the most recent ECtHR case-law on the matter, see, for example, Jakulevičienė, L., ‘Principle of non-refoulement in the context of recent ECtHR caselaw and the EU migration and asylum pact’, ERA Forum, Vol. 24, 11 September 2023, pp. 379–396. On arbitrary detention as a flagrant breach of Article 5 of the ECHR (right to liberty), 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.
    .
  2. Member States must respect the prohibition of torture, inhuman or degrading treatment or punishment (Article 4 of the Charter) and the principle of non-refoulement. The principle of non-refoulement stems from international human rights law and refugee law [11] See the International Covenant on Civil and Political Rights, Article 7 (as interpreted by the Human Rights Committee in paragraph 9); the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Article 3; the ECHR, Article 3, as interpreted by the ECtHR; and the 1951 Geneva Convention relating to the Status of Refugees, Article 33.
    and from Article 3 of the ECHR as interpreted by the ECtHR. It is embedded in Articles 18 and 19 of the Charter. It requires Member States not to return a person to a country where their life and freedom are at risk or where the person would be exposed to other serious harm. In addition, the right to liberty prohibits the removal of a person if there is a real risk of a flagrant breach of Article 5 of the ECHR (right to liberty and security, implying the prohibition of arbitrary deprivation of liberty) [12] Judgment of the Fourth Section of the ECtHR of 17 January 2012, Othman (Abu Qatada) v the United Kingdom, No 8139/09, paragraph 233.
    .
  3. The risk of violating the prohibition of refoulement must be assessed in line with ECtHR jurisprudence on the matter. This is required by Article 52(3) of the Charter: insofar as the rights included in the Charter correspond to rights guaranteed by the ECHR, the meaning and scope of those rights must be the same as those laid down by the ECHR. This requires taking into account that:

    - the principle of non-refoulement is absolute and cannot be restricted under any circumstances [13] See, for example, Council of Europe, ECtHR and FRA, Handbook on European law relating to asylum, borders and immigration – Edition 2020, Publications Office of the European Union, Luxembourg, 2020, pp. 105–107 and the case-law cited therein.
    ;

    - the principle of non-refoulement also prohibits the removal to a third – intermediary – country from which an individual may then be removed to the country in which they face a real risk of harm (indirect or ‘chain’ refoulement) [14] Judgment of the Grand Chamber of the ECtHR of 23 February 2012, Hirsi Jamaa and Others v Italy, No 27765/09; judgment of the Grand Chamber of the ECtHR of 21 January 2011, M.S.S. v Belgium and Greece, No 30696/09; Information Note on the ECtHR’s case-law 16 of 7 March 2000, T.I. v the United Kingdom, No 43844/98.
    .
  4. Articles 5 and 9 of the EU return directive, Articles 3 and 4 of the Schengen Borders Code and Articles 36, 48, 71, 73, 80 and Article 86(4) of the EBCG Regulation also reflect the prohibition of refoulement. Acknowledging that legal barriers to removal may also flow from other considerations, Article 5 of the EU return directive requires Member States to also take due account of the best interests of the child, family life and the state of health of the third-country nationals concerned.


Indicating the country of return


  1. A return or removal decision must indicate the country to which the return will take place. The CJEU underlined that the obligation to return is inconceivable unless a concrete destination is identified [15] Judgment of the Court of Justice of 14 May 2020, Országos Idegenrendeszeti Főigazgatóság Dél-alföldi Regionális Igazgatóság, C-924/19 PPU and C-925/19 PPU, ECLI:EU:C:2020:367, paragraph 115.
    . Determining the country of destination is essential to assess the risk of violation of the principle of non-refoulement. The individuals concerned must be made aware of the country of return in advance to be able to express any reasons why the return to the given country hosting the hub and/or to the country of origin would expose them to the risk of the death penalty, torture or other inhuman or degrading treatment or punishment, contrary to Articles 4 and 19 of the Charter.


Persons in a vulnerable situation


  1. Additional pre-conditions flowing from various Charter rights – such as the right to health (Article 35 of the Charter) and the protection of children, the elderly and persons with disabilities in Articles 24 to 26 of the Charter – apply to returnees in a vulnerable situation. Under EU law (see, specifically, Article 5 and Article 14(1)(d) of the EU return directive and Article 3(1)(a) of the EBCG regulation), persons in vulnerable situations require particular attention, making a lawful transfer to a return hub highly unlikely for them. The principle of the best interests of the child, enshrined in Article 3 of the Convention on the Rights of the Child, Article 24 of the Charter and Article 3(3) of the TEU, must be respected when deciding on the return of children who do not have the right to stay in the EU. The status of being a child and their extreme vulnerability prevail over their migratory situation [16] See, for example, judgment of the First Section of the ECtHR of 12 October 2006, Mubilanzila Mayeka and Kaniki Mitunga v Belgium, No 13178/03, paragraph 55; judgment of the Second Section of the ECtHR of 19 January 2010, Muskhadzhiyeva and Others v Belgium, No 41442/07, paragraphs 56–58; judgment of the Fifth Section of the ECtHR of 19 January 2012, Popov v France, Nos. 39472/07 and 39474/07, paragraph 91; and judgment of the First Section of the ECtHR of 18 November 2021, M.H. and Others v Croatia, Nos. 15670/18 and 43115/18, paragraph 184. See also UN, Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families and the Committee on the Rights of the Child, ‘Joint general comment No 3 (2017) of the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families and No 22 (2017) of the Committee on the Rights of the Child on the general principles regarding the human rights of children in the context of international migration’, CMW/C/GC/3-CRC/C/GC/22, 16 November 2017, paragraph 11.
    . Article 5 of the EU return directive and Article 80(3) of the EBCG regulation also reflect the best interests of the child principle. For unaccompanied children, it is virtually impossible to imagine situations where the transfer to a return hub could be in the child’s best interests [17] FRA, Returning Unaccompanied Children: Fundamental rights considerations, Publications Office of the European Union, Luxembourg, 2019.
    .


Prioritising voluntary departure


  1. Where there are no reasons to believe that it would undermine the purpose of a return procedure, priority should be given to voluntary departure, and forced removal should take place as a measure of last resort. The priority of voluntary departure is a horizontal principle of the EU return directive stemming from Recital 10, reflected also in Recital 9 and Article 4(5) of Regulation (EU) 2024/1349, and has been underlined by the CJEU multiple times [18] See, for example, judgment of the Court of Justice of 11 June 2015, Zh. and O.,  C-554/13, ECLI:EU:C:2015:377, paragraph 47; judgment of the Court of Justice of 5 June 2014, Mahdi, C-146/14 PPU, ECLI:EU:C:2014:1320, paragraph 38.
    . It should be the preferred option both from a fundamental rights point of view and from a sustainability perspective [19] FRA, The recast return directive and its fundamental rights implications – Opinion of the European Union Agency for Fundamental Rights, Publications Office of the European Union, Luxembourg, 2019, pp. 23–24.
    .


Avoiding unlawful detention


  1. In addition to the considerations set out in paragraphs 41 and 42 of this legal analysis, if the return hub is a closed facility, Member States would be allowed to transfer to the hub only those returnees who are detainable under Article 15 of the EU return directive and (after mid 2026) under Article 5 of Regulation (EU) 2024/1349. The Member State must examine and document the case and notify the person concerned that deprivation of liberty is necessary and proportionate, and applied as a measure of last resort, following an individualised assessment. This considerably limits the categories and profiles of returnees who can be transferred to a return hub.
  2. For returnees for whom there is no reasonable prospect of removal, continued deprivation of liberty would infringe the right to liberty in Article 6 of the Charter [20] See judgment of the Court of Justice of 30 November 2009, Kadzoev, C-357/09 PPU, ECLI:EU:C:2009:741, paragraphs 64–67; judgment of the Fifth Section of the ECtHR of 8 October 2009, Mikolenko v Estonia, No 10664/05, paragraph 68; judgment of the Fourth Section of the ECtHR of 27 July 2010, Louled Massoud v Malta, No 24340/08, paragraph 69.
    .


Effective judicial remedy


  1. Article 47 of the Charter requires that the individuals concerned have the right to an effective judicial remedy [21] Judgment of the Court of Justice of 30 September 2020, CPAS Liège, C-233/19, ECLI:EU:C:2020:757, paragraph 45.
    . In accordance with Article 13 of the EU return directive and Article 14 of the Schengen Borders Code, effective remedies must be provided against return and refusal of entry decisions. To prevent irreversible harm, when there is an arguable claim that return or removal would infringe upon the right to life or expose returnees to a risk of torture, inhuman or degrading treatment or punishment, the appeal against a return or refusal of entry decision must automatically suspend the implementation of the return [22] Judgment of the Second Section of the ECtHR of 26 April 2007, Gebremedhin [Gaberamadhien] v France, No 25389/05.
    . It follows that before a transfer to a third country hosting a hub, remedies before an independent and impartial tribunal in the Member State issuing the return decision have been exhausted and that the respective return decision is enforceable.


Conclusion


  1. EU law does not ban the creation of return hubs but imposes considerable limitations. The starting point for any return, regardless of the envisaged destination of the returnee, is the issuance of a valid and enforceable decision ordering the individual to leave the Member State or refusing entry. Such a decision must be based on an individualised assessment. Article 47 of the Charter requires that the individuals concerned must have the right to an effective remedy to challenge the legality of such a decision. The transfer to a return hub located in a third country must be expressly allowed under EU law. It is barred if returnees who are moved there would be exposed to serious harm, to inhuman or degrading treatment or to a flagrant breach of the right to liberty (arbitrary detention). This would violate, among other things, Articles 4 and 19 of the Charter. Persons in a vulnerable situation require particular attention, which makes their lawful transfer to a return hub unlikely. Children should be excluded from transfers to return hubs. Rules on pre-removal detention and the priority of voluntary departure over forced removal further limit the categories of people who could be transferred to a return hub.