Professor
Elspeth Guild, University of Liverpool
Photo credit: Marcelx42,
via Wikimedia
Commons
In March 2025 the European
Commission published a proposal for a re-cast
return regulation. It has been met with mixed responses, a certain jubilation
in some parts of Europe’s extreme right, a certain concern not least from a
human rights perspective in other quarters.
For an excellent analysis of this proposal see Majcher’s blog
on this site. One of the innovations in the proposal is a European Return Order
which any Member State may enforce without issuing its own expulsion decision
(Articles 7-9). (‘Return’ is the EU term for ‘expulsion’ which is the term used
in the European Convention on Human Rights and the International Covenant on
Civil and Political Rights. I will use the term ‘expulsion’, consistent with European
and international human rights law).
In this blog I will examine the
human rights problems which Member States are likely to encounter where they
seek to expel someone on the basis of a European Return Order issued by another
Member State. I will focus in particular on the case law of the European Court
of Human Rights regarding the human rights assessments which states must carry
out before expelling a person. These requirements were recently reviewed,
expanded and confirmed by the ECtHR in its 4 February 2025 judgment in A.B. and
Y.W. v Malta in the context of Article 3 ECHR (the prohibition on
torture, inhuman or degrading treatment or punishment). I will also examine the
duty on states to carry out a human rights assessment in the context of Article
8 (the duty to respect private and family life). Although this is a qualified
right, states must justify on grounds of necessity and proportionality any
interference with it. The facts of each situation need to be considered and
weighed against the interest of the person.
The
European Return Order
According
to the Commission’s explanatory
memorandum, the European Return Order (ERO) will not replace each Member
State’s own return decisions. Instead, the ERO will extend the scope of
application of Member States' return decisions in order to make them actionable
across the Union by Member States other than the one which made the order. The ERO
will be in a common form which includes the key elements of the national
expulsion decision. It will be made available through the Schengen
Information System (the EU information sharing system for security and
border management). In so far as technical changes may be required for this
purpose, they will be addressed in amendments to SIS rules.
An
implementing act will make it mandatory for all Member States to recognise and
enforce an expulsion (return) decision issued by another Member State in the
form of the ERO (with limited derogations). Among those derogations is a
provision (Article 9(4)) which allows Member States not to recognise or enforce
the expulsion decision of another Member State on ground that it is manifestly
contrary to public policy. In EU law public policy does not expressly include
fundamental or human rights grounds, although the similarly worded public
policy derogation in the Brussels Regulation on the mutual recognition of civil
judgments does include manifest human rights breaches, according to the case
law of the CJEU (see the judgment in Real
Madrid, for example).
More
relevant may be Article 5 of the proposed regulation, which requires that
Member States implement the regulation in compliance with the principle of
non-refoulement, and with fundamental rights including the Charter, with
relevant international law. However, there is no indication of how a Member
State is to reconcile the duty to recognise and enforce expulsion orders made by
other Member States with the Article 5 duties.
Again,
according to the Commission, the Member State that issues an expulsion decision
remains responsible for its enforcement. It must use all appropriate means to
ensure effective expulsion of the person named therein. The new proposal is
intended to be a mechanism for recognition of expulsion decisions issued by
another Member State, underpinned and facilitated by the ERO. The explanatory
memorandum states that the proposal clarifies the process and relevant
procedural safeguards and remedies based on the lessons learnt from the
implementation of the 2023 Commission
Recommendation on mutual recognition of return decisions.
The
objective of mutual recognition of expulsion decisions among the Member States
has long been on the EU agenda. In 2001, a directive (2001/40) was
adopted to achieve this end. As noted by Peers,
that directive does not apply to the process or substance of the decision and
permits expulsion by another Member State as an option not an obligation. Under
that directive, enforcement takes place under national law which must include
the Returns
Directive 2008/115 (which will be repealed if the proposed regulation is
adopted in the current form). Thus, the main purpose of the 2001 directive
appears to be to avoid a state having to send an irregularly present migrant
back to the Member State which issued the expulsion decision. A system for financial
compensation was adopted
in 2004. The criticisms which Peers makes of the directive include: its
application to persons with rights under international agreements agreed by the
EU, inappropriate extension of Schengen (and the SIS II rules) to persons
already present on the territory, inadequate application of human rights
standards, opacity as regards as regards costs and inconsistency with the Returns
Directive.
As
for the Commission’s recommendation
on mutual recognition of expulsion decisions, the Commission claimed that this
would facilitate and accelerate the return processes for the Member State
responsible for return and enhance cooperation and mutual trust between Member
States by further increasing convergence between Member States on managing
migration. This is a rather large claim as will be explained below. In
particular, the Commission claimed that obstacles to cooperation and
communication among national authorities responsible for the asylum and the
return procedures represent a key structural challenge for a more efficient expulsion
processes. This logic underpins the current proposal for an ERO.
The
Human Rights Obstacles to EROs
The
key problem, however, with mutual recognition of expulsion decisions among
Member States is the duty in international and European human rights law that a
state seeking to expel an individual must carry out an assessment which
consists of two parts which are not necessarily part of the same proceedings
depending on the national law of the state. First there must be an ex nunc rigorous assessment
of any risk which the person might face if returned to the proposed country,
for the purposes of ensuring that the prohibition on refoulement is fully
complied with (para 72 A.B. and
Y.W. v Malta). This is required by Article 3 ECHR and the subject of
substantial caselaw. Secondly, there must be a full assessment of the proportionality
of the expulsion decision in light of the right to respect for his or her
private and family life (Article 8 ECHR). It is for the state to show that the decision
is proportionate and the threat sufficient to outweigh the individual’s right
to respect for his or her private or family life.
Assessing
the risk of refoulement
On
the first ground, the prohibition on refoulement, it is for the person to make
the claim. But thereafter, the risk assessment must focus
on the foreseeable consequences of the applicant’s removal to the country of
destination, in the light of the general situation there and of his or her
personal circumstances. It must be considered whether, having regard to all the
circumstances of the case, substantial grounds have been shown for believing
that the person concerned, if returned, would face a real risk of being
subjected to treatment contrary to Article 3 ECHR. If the existence of such a
risk is established, the applicant’s removal would necessarily breach Article
3, regardless of whether the risk emanates from a general situation of
violence, a personal characteristic of the applicant, or a combination of the
two (para 61 A.B. and
Y.W. v Malta).
As
regards the distribution of the burden of proof, the ECtHR has clarified that there
is a shared duty between the applicant and the immigration authorities to
ascertain and evaluate all relevant facts in asylum proceedings. This includes
a procedural obligation (part of the Article 3 duty) to assess the risk before expelling
the individual. There are two main consequences of the Article 3 ECHR
requirements. First, the authorities of a Member State executing an expulsion
order (or an ERO) must be satisfied that the expulsion will not constitute
refoulement. This will have to be on the basis of its own assessment not that
of another Member State as the difference
in assessment of risk in countries of origin by different Member States vary
widely (as regards the same country of origin and where the risk is the same: generalised
violence or civil war). Thus, an assessment of a country of origin by one
Member State may result in granting protection while the assessment of the same
country by another Member State may result in no protection and the issue of an
expulsion order. Secondly, the assessment must be ex nunc and carried out in
close temporal proximity to the proposed date of expulsion. Where there is an
extended delay between adopting an expulsion order and its proposed execution, the
state must carry out a new assessment to ensure that the risk remains below the
threshold required by Article 3. All assessments must be rigorous.
Assessing
the right to respect for private and family life
The
second human rights ground which may defeat an expulsion decision is the right
to respect for the person’s private and family life (Article 8 ECHR). Expulsion
will always be an interference with private and family life (there is no need for
expulsion where the person wishes and chooses to leave the country thus
exercising his or her own choice regarding private and family life). The
grounds on which a state can interfere with the right are set out in Article
8(2) and in all cases must be in accordance with the law and necessary in a
democratic society. The grounds are limited to the interests of national
security, public safety or the economic well-being of the country, for the prevention
of disorder or crime, for the protection of health or morals, or for the
protection of the rights and freedoms of others. The ECtHR has elaborated an
extensive list of elements
which must be considered when assessing the proportionality of the state’s
claim to interfere with the right which include: in all cases, the length of
the applicant’s stay in the country from which he or she is to be expelled and
the solidity of his, her or their social, cultural and family ties with the
host country and with the country of destination.
In
the case of expulsion on grounds of criminal conviction, the nature and
seriousness of the offence committed by the person in the expelling state and
the time elapsed since the offence was committed and the person’s conduct
during that period must be assessed. Where family life is at issue, the
assessment must include consideration of the nationalities of the person and
any family members concerned, the family situation, such as the length of
marriage, and other factors expressing the effectiveness of a couple´s family
life, whether or not the spouse knew about the offence at the time when he or
she entered into a family relationship, whether or not there are children of
the marriage and, if so, their age(s), the seriousness of the difficulties that
the spouse is likely to encounter in the country to which the applicant is to
be expelled, the best interests and well-being of any children involved, in
particular any difficulties they would encounter if they had to follow the person
to the country to which he or she is to be expelled.
The
assessment of the person’s entitlement to respect for privacy and family life
in the context of the state’s claim to the necessity and proportionality of an
interference with it must take place when the actual expulsion of the
individual is planned to take place. It must be up to date. Where the state
knew (or ought to have known) of the existence of the person’s relevant private
and/or family life in accordance with Article 8, it is under a duty to
undertake a thorough assessment, subject to procedural safeguards including a
right of appeal.
In
the context of an ERO, it is difficult to see how an expelling state which is
other than that where the person’s private and family life is situated will be
in a position to make such an assessment. Reliance on an assessment made in
another state may be insufficient depending on the temporal relationship of the
assessment and the proposed expulsion.
Similarly, while the objective is
to ensure that persons named in an expulsion order by any Member State are
expelled as quickly as possible to a third country or another Member State, it
is not clear that this will be rapid. Nor is it self-evident that a person will
not have developed family life in the expelling Member State. Such family life
could have commenced in the issuing Member State then continued in that Member
State which is responsible for the expulsion. There are myriad circumstances
which occur in practice which blur the lines of where family and private life
have developed and been exercised. It is worth remembering that in EU law as
regards the expulsion of a third country national from one Member State who is
in possession of a residence permit in another Member State, the CJEU
has held that the person must be permitted to return the Member State which
issued the residence permit and only expelled to a third country where the
person refuses to do so. This relieves the Member State where the person is
present from the obligation to carry out a human rights compliant private or family
life assessment.
Conclusion
The Commission’s proposal for an
ERO to facilitate the expulsion of third country nationals from the EU by
requiring a Member State other than that which has taken the decision to expel
the person raises substantial issues as regards human rights. International and
European human rights require states to make an up to date risk assessment before
expulsion where a person has claimed a fear of persecution,
of the application of the death
penalty or is otherwise at risk of deprivation
of life, torture,
inhuman
or degrading treatment or punishment or arbitrary
disappearance. This duty will apply to the expelling Member States in spite
of the fact that the issuing state may have carried out such an assessment.
This is particularly so where the original assessment is out of date or where
there are substantial differences in protection rates for persons from the same
country and in generally similar circumstances in the issuing state and the
state which is to carry out the expulsion. The expelling state may also be
required to carry out an assessment of the necessity, legality and
proportionality of the expulsion decision in light of the person’s right to
respect for their private and family life (Article 8 ECHR). In many cases, the
elements of private and/or family life will be in the issuing state. The
expelling state is likely to have difficulties as regards accessing of such
elements and in the event that its assessment is that the interference is not
proportionate, the fate of the person will be ambiguous. The required
assessments may also be hampered by lack of access to and translation of
documents. While Article 9(4) of the proposal permits a Member State to decide
not to recognise another Member State’s expulsion order, this must be on the
ground that to do so is manifestly contrary to public policy, and the proposal
does not explicitly confirm that fundamental and human rights could be part of
a public policy assessment.
In sum, this proposal does not
appear likely to speed up human rights’ compliant expulsions. Rather it is
likely to result in lengthy procedures fraught with cross border problems for
both states. A better approach to the issue of persons subject to expulsion
decisions who move from one Member State to another is to facilitate their
return to the first Member State. However, if the person claims a fear that the
first Member State will expel them contrary to the prohibition on
non-refoulement, the expelling state cannot simply disregard the claim without
breaching its own human
rights obligations.
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