The Regulation of Shame: When Far-Right Ideas Become EU Return Law

Dr. Izabella Majcher, Independent Consultant

Photo credit: Shutterstock

 

*References to the Regulation's provisions reflect the agreed text at the time of writing and may change following legal-linguistic revision

Amid chants of "send them back" from some Members of the European Parliament, the Parliament adopted the EU Return Regulation on 17 June 2026 by 418 votes to 218, with 30 abstentions. Such a broad majority on legislation that would otherwise have been highly divisive was made possible by the European People's Party (EPP)'s alliance with far-right groups, breaking the political firewall traditionally maintained in several Member States. The vote drew criticism from NGOs, academics and journalists, and also prompted concern within the United Nations. Ahead of the vote, nearly 50 current and former international human rights experts issued a joint statement expressing their concerns. Following its adoption, the UN High Commissioner for Human Rights publicly expressed his deep regret.

The parliamentary vote marked the culmination of an exceptionally rapid legislative process. As announced in European Commission President Ursula von der Leyen's Political Guidelines for her second Commission, the Commission presented its proposal for a Return Regulation on 11 March 2025 (discussed here). The Council adopted its position on 8 December 2025 (discussed here), followed by the European Parliament's report on 26 March 2026 (discussed here). The subsequent interinstitutional negotiations progressed at an equal pace, culminating in the final trilogue on 1 June 2026. Once the text has undergone legal-linguistic revision, it will be published in the Official Journal of the European Union. The Regulation will become applicable one year later, replacing the Return Directive, although several provisions—including those on return hubs, preparations for the European Return Order form and readmission procedures—will apply immediately.

Given the political support from right-wing groups and the underlying objective of the proposal of increasing returns, it is unsurprising that the Regulation relies heavily on coercive measures while lowering safeguards across the board. What remains less clear is whether it will actually increase the number of returns, except perhaps at the expense of compliance with international and EU human rights standards. This blog highlights ten aspects of the Regulation that raise particularly serious human rights concerns before offering some concluding reflections.

 

1)    Return decisions and effective remedy

The Regulation introduces several changes that collectively weaken the assessment of the risk of refoulement. It allows return decisions either to omit the country of return or to designate several possible countries of return. The person need only be informed of the intended country of return sufficiently in advance of removal (Articles 7, 13 and 24). The Regulation also clarifies that Member States are not precluded from issuing a return decision where a hindrance to removal exists; where a risk of refoulement has been identified, removal to the country concerned must simply be postponed. Where the person indicates, or the authorities otherwise become aware, that removal would breach the principle of non-refoulement, the competent authorities must either refer the person to the appropriate procedure, including the asylum procedure, or assess the risk of refoulement themselves. In doing so, they may rely on or take into account any previous assessment of that risk. It is possible that the risk of refoulement is assessed by authorities issuing or enforcing a return decision.

This approach makes the right to an effective remedy all the more important. Compared with the Directive, the Regulation provides greater detail on the applicable standards (Article 26). It requires that the remedy provide for a full examination of both facts and points of law. Where material brought to the attention of the court or tribunal hearing the appeal, as supplemented or clarified through adversarial proceedings, indicates that the principle of non-refoulement may be at risk, the court or tribunal must verify compliance with the obligations arising from that principle. As regards the suspensive effect of appeals, the Regulation does not establish an automatic right to suspension. Instead, it clarifies that Member States must ensure, in full compliance with Article 47 of the Charter, that removal can be suspended before it is carried out (Article 28). Suspension may be granted upon request by the person concerned, unless national law also provides for suspension ex officio.

 

2)    Mutual recognition of return decisions

Mutual recognition of return decisions is presented as one of the Regulation's key innovations and as a part of the broader "common system for returns" (Article 42). In reality, however, the mechanism is neither new nor straightforward to implement. Under it, a Member State that apprehends a person who has already received a return decision in another Member State may recognise and enforce that decision instead of issuing a new one (Article 9). This is facilitated through a European Return Order—a standard form containing the main elements of the return decision—which is made available to Member States through the Schengen Information System. The mechanism itself is not new. It was already established by a 2001 Council Directive, although it appears to have been used only sparingly in practice. The Commission originally proposed making mutual recognition mandatory, but this approach did not receive the support of the co-legislators. As adopted, the mechanism therefore remains optional. Nevertheless, Member States are required to put in place preparatory measures, and the Commission may submit legislative proposals following an assessment to be carried out within two years of the Regulation becoming applicable. Recognising another Member State's return decision raises both practical and legal challenges. Since the grounds for lawful stay are not harmonised across the EU, a person may be in an irregular situation in one Member State but lawfully present in another. The enforcing Member State may therefore face litigation while also bearing the costs of removal and, where applicable, detention. More fundamentally, mutual recognition of return decisions and entry bans raises proportionality concerns because it exports the most restrictive national approaches across the Union, while no equivalent system exists for the mutual recognition of lawful residence statuses.

 

3)    Voluntary departure

The Regulation adopts a confusing approach to so-called voluntary departure. Under the Directive, Member States are required to grant a period for voluntary departure of between seven and thirty days, subject to three exceptions: where there is a risk of absconding, where an application for legal stay has been rejected as manifestly unfounded or fraudulent, or where the person poses a risk to public policy, public security or national security (Article 7). The Regulation removes this obligation and instead leaves Member States with a choice between granting a period for voluntary departure and requiring the person to leave immediately (Article 7). Moreover, where a period for voluntary departure is granted, it need no longer be at least seven days. These changes sit uneasily with the EU's broader approach to return, which has consistently favoured voluntary departure over forced removal and has invested considerable resources in assisted voluntary return and reintegration programmes. Indeed, the Regulation itself requires Member States to ensure the availability of return and reintegration programmes, which may be supported or financed by the EU. It further specifies that such programmes should provide a broad ranging assistance and incentives, including reintegration support (Article 46). Voluntary return is generally more conducive to a safe and dignified return and is also in the interest of Member States, given that forced removals are considerably more costly and complex to organise. Arguably, these amendments are intended primarily to signal a more coercive approach rather than to produce a significant change in practice. Even under the Directive, Member States are not required to grant a period for voluntary departure where there is a risk of absconding or concerns relating to public policy or security. Conversely, the Regulation still allows Member States to grant voluntary departure at their discretion, except for persons considered to pose security risks (see more on this category here).

 

4)    Duties and sanctions

The Regulation establishes an extensive—and at times overlapping—set of obligations for persons subject to return, raising concerns regarding legal certainty and proportionality. It introduces a general duty to cooperate (Article 21), encompassing more than a dozen specific obligations. These include appearing before third-country authorities for the issuance of travel documents or the verification of identity or nationality, and complying with third-country entry requirements, including health-related requirements. The list is open-ended, as it also incorporates obligations provided for under national law.

The Regulation also empowers Member States to impose various restrictive measures, including obligations to remain within a designated geographical area, reside at a specific address, or report periodically to those authorities (Article 23). Under international human rights law, these measures constitute restrictions on freedom of movement. Nevertheless, the Regulation does not require that they be necessary to achieve a legitimate objective. In addition, it introduces a further category of movement restrictions that may be imposed, implicitly, where there is a risk of absconding (Article 23c), including bail and electronic monitoring. Although labelled "alternatives to detention", these measures may also be imposed where detention itself would be unlawful—for example, after the maximum permissible period of detention has expired.

Failure to comply with some of these obligations may be treated as evidence of a risk of absconding, or it may directly justify detention. Other consequences include reductions in social allowances, financial penalties, extensions of entry bans and criminal sanctions, including imprisonment (Article 23b). In practice, almost any person subject to return could fail to comply with one or more of these numerous obligations, thereby exposing them to a cascade of restrictive measures and sanctions. The breadth of this regime falls short of the requirements of necessity and proportionality, leaving considerable scope for arbitrary application.

 

5)    Investigative measures

At the Council's initiative, the Regulation introduces a new category of so-called "investigative measures" (Article 23a). These measures authorise the authorities, without the person's consent, to search persons subject to return, their homes and other relevant premises, and to seize personal belongings, including electronic devices. The Regulation also permits the use of additional investigative measures provided for under national law. Searches of homes and other premises require either prior judicial authorisation or, where permitted under national law, an administrative order where the search is necessary, proportionate and duly justified by urgency. The Regulation specifies that investigative measures may be used where necessary, proportionate, and duly justified to ensure an effective return. It also requires that they respect fundamental rights and remain subject to the safeguards and remedies available under Union and national law. Nevertheless, the provision raises significant concerns in practice. It may facilitate police raids on homes, shelters and other premises accommodating or supporting people in an irregular situation, potentially relying on racial profiling and creating a climate of fear within migrant communities.

 

6)    Detention

The Regulation significantly expands the legal framework governing detention, both by broadening the grounds and by increasing its maximum duration (Article 29). Under the Directive, Member States may impose pre-removal detention on two grounds only: where there is a risk of absconding or where the person avoids or hampers the preparation of return (Article 15(1)). Unlike the Directive, the Regulation lays down detailed criteria for determining whether a person poses a risk of absconding (Article 21a). However, these criteria are drafted so broadly that most persons in an irregular situation are likely to satisfy at least one of them and, crucially, many bear little relation to the person's actual propensity to abscond. The Regulation establishes four criteria that give rise to a rebuttable presumption of a risk of absconding, including irregular entry into the territory. It further lists seven additional criteria—including the absence of a reliable address—and permits Member States to rely on criteria laid down in national law to assess the risk of absconding.

In addition to the two detention grounds contained in the Directive, the Regulation adds three further grounds. First, Member States may detain a person considered to pose a security risk, including a threat to public policy, public security, national security or any other security threat identified under national law. This broad ground blurs the distinction between administrative immigration detention and criminal detention. Given that immigration detention affords significantly fewer procedural safeguards than criminal detention, it should remain limited to grounds directly related to the enforcement of removal. Second, detention may be imposed in order to determine or verify a person's identity or nationality. This ground is particularly problematic because such procedures may take considerable time, for example, when a person is stateless, or their identity documents are not recognised. Moreover, detention may be imposed on this ground even in the absence of any risk of absconding. Third, a person may be detained for failing to comply with one of the Regulation's numerous cooperation obligations (discussed above), such as complying with carriers' travel requirements, fulfilling third countries' entry requirements, or complying with electronic monitoring requirements. Fourth, Member States may also rely on detention grounds established under their national law where these are considered necessary to ensure an effective return procedure. Leaving the determination of detention grounds to national law undermines the very objective of harmonising return-related measures across the EU.

The Regulation also dramatically extends the maximum permissible period of detention. Under the Directive, detention may last up to six months and may be extended by a further twelve months where the removal operation is delayed due to a lack of cooperation by the person concerned or the third country. Under the Regulation, the initial detention period may last up to 12 months and may then be extended by a further 12 months on the same grounds, as well as in "exceptional" circumstances provided for under national law. The resulting two-year period may be prolonged by an additional six months where there is a risk of absconding and one of three vaguely defined changes in circumstances gives rise to a reasonable prospect of removal. However, it is difficult to understand why a reasonable prospect of removal would emerge only after a person has already spent two years in detention. Such lengthy periods of detention are manifestly disproportionate and seriously undermine the fundamental right to liberty.

Finally, the Regulation weakens the safeguards requiring migrants to be detained in specialised detention facilities. This approach is at odds with the standards consistently advocated by the UN Working Group on Arbitrary Detention and the European Committee for the Prevention of Torture.

 

7)    Entry bans

An entry ban is a punitive measure that links return policy with border and visa policy by preventing a person from re-entering the EU through regular channels. The Regulation significantly expands the scope of this measure (Article 10). Under the Directive, an entry ban accompanies a return decision and is mandatory where no period for voluntary departure has been granted or where the person has failed to comply with that period (Article 11). The Regulation introduces the possibility of imposing an entry ban even in the absence of a prior return decision, where a person's irregular stay is detected during exit border checks or where they leave the territory before a return decision has been issued. This new possibility is both disproportionate and highly punitive, as it penalises individuals who are attempting to leave the territory. Moreover, where no formal decision is issued, a person may not even be aware that they are subject to an entry ban and may effectively be deprived of their rights of defence and to an effective remedy. Such an approach sits uneasily with the principles of good administration and legal certainty and creates a significant risk of arbitrary decision-making. The Regulation also doubles the maximum duration of entry bans in ordinary cases, from five to ten years, and allows them to be extended to twenty years where necessary to prevent re-entry. As under the Directive, the duration of an entry ban may nevertheless be reduced, or the ban withdrawn or suspended, in individual cases. In this context, the person's private and family life established in the Member States is a key consideration.

 

8)    Children

The Regulation introduces several safeguards for unaccompanied children, including the appointment of a guardian, the right to be heard during the return procedure and a review of detention every three months (Articles 20 and 33). At the same time, however, it weakens several of the protections currently provided under the Directive. These include removing schooling from the express grounds for extending the period for voluntary departure, reducing the entitlement to education in detention to the provision of "educational activities", and no longer requiring that assistance be provided to unaccompanied children before a return decision is issued. Crucially, almost all of the Regulation's new intrusive measures—including investigative measures and restrictions on freedom of movement (discussed above) —apply equally to children. Only unaccompanied children are exempt from removal to return hubs; families with children can be subject to this possibility. The Regulation's approach to detention is particularly concerning. Since the adoption of the Directive in 2008, international human rights standards have evolved considerably. The UN Committee on the Rights of the Child and the UN Committee on Migrant Workers, the UN Special Rapporteur on the Human Rights of Migrants, and the UN Working Group on Arbitrary Detention have all recognised that children should never be placed in immigration detention. Rather than reflecting this well-established standard, the Regulation substantially expands both the grounds for detention and its maximum duration, while failing to exclude children from its scope. On balance, the Regulation is likely to have a detrimental impact on children's rights.

 

9)    Alternatives to return

The Regulation largely ignores the reality that not every person in an irregular situation can be returned. Most notably, it removes the existing option to grant regular status rather than issue a return decision. Under Article 6(4) of the Directive, Member States may grant an autonomous residence permit on compassionate, humanitarian or other grounds to a person in an irregular situation. In such cases, no return decision is issued, or, where one has already been adopted, it must be withdrawn or suspended for the duration of the residence permit. As a result of this deletion, the Regulation no longer recognises any humanitarian or human rights-based exception to the obligation to issue a return decision for every person in an irregular situation. Granting regular status enables individuals to access socio-economic rights and justice, while reducing their vulnerability to exploitation. It is equally in the interest of Member States to ensure that people residing on their territory have a lawful status. Given that Member States already provide a range of humanitarian and compassionate residence permits, a genuinely common return system should also preserve avenues for regularisation, which are intrinsically linked to return policy.

 

10) Return hubs

One of the Regulation's most significant innovations is the possibility of removing a person to a third country with which they may have no prior connection—a so-called "return hub" (Article 17). This mechanism requires the Member State concerned to conclude an agreement or arrangement with the third country. Notably, that country is not required to satisfy the criteria applicable to safe third countries under the Asylum Procedure Regulation. Instead, the Regulation merely provides that it must respect international human rights standards and principles in accordance with international law, including the principle of non-refoulement. However, it does not specify who is responsible for assessing compliance with these requirements or by which criteria such an assessment should be conducted. Only unaccompanied children are exempt from transfer to return hubs. The concept has attracted interest among some Member States, with Rwanda, Uganda and Uzbekistan reportedly among the countries recently considered as potential locations for return hubs. The Italy–Albania Protocol has undoubtedly served as the model for this mechanism. Yet beyond the serious human rights concerns it raises, the Italian experience has also demonstrated the considerable financial and practical challenges of its implementation. Following several transfers blocked by Italian courts, the compatibility of the arrangement with EU law is yet to be decided by the Court of Justice of the European Union (CJEU) (see here and here). Return hubs have also been considered a form of externalisation of migration governance by the UN Special Rapporteur on the Human Rights of Migrants. The Rapporteur warned that they create a risk of violating the principle of non-refoulement, including chain refoulement, exposing individuals to arbitrary detention and undermining procedural safeguards. As the Rapporteur emphasised, States cannot outsource their human rights obligations and may remain internationally responsible for violations committed in the cooperating third country.

 

Concluding thoughts

During the negotiations on the Return Directive, a Latin American head of state famously described it as the "Directive of Shame" (Directiva de la Vergüenza). From the perspectives of human rights, proportionality, good faith and, indeed, common sense, the future Return Regulation may well deserve to be regarded as the EU's "Regulation of Shame". As the preceding analysis illustrates, the Regulation creates a significant risk of human rights violations, most notably breaches of the principle of non-refoulement—including chain refoulement—and the prohibition of arbitrary detention. It introduces a range of highly intrusive and coercive measures, even though they are part of administrative migration procedures concerning people who have committed no crime. The Regulation also raises serious concerns regarding legal certainty and the prohibition of arbitrariness by deferring to national law on core aspects of the return procedure, including the grounds for detention, the criteria for establishing a risk of absconding, restrictions on freedom of movement, investigative measures and the consequences of non-compliance. In doing so, it undermines one of its own stated objectives: the harmonisation of return rules across the EU. The Regulation is also unlikely to achieve its central policy objective of increasing the number of returns. There is little evidence that reducing opportunities for regularisation while expanding detention and entry bans will make return systems more effective. On the contrary, greater reliance on detention and reduced use of voluntary return are difficult to reconcile with considerations of financial efficiency, itself a guiding principle of EU law-making.

Reaching agreement on such a coercive text was made possible by Parliament's position. Unlike during the negotiations on the Return Directive between 2005 and 2008, the Parliament did not serve as a counterweight to the positions of the Commission and the Council. Whereas interinstitutional negotiations on the relatively short Directive lasted around nine months, agreement on the considerably longer Regulation was reached after only a handful of trilogues over approximately two months. During the negotiations on the Directive, Parliament was instrumental in preserving and strengthening a number of safeguards. By contrast, its position on the Regulation remained largely aligned with the Council's. The alliance between the EPP and far-right groups secured the necessary majority, but support also came from some centrist and liberal MEPs. This reflects a broader shift in the European political landscape, in which restrictive migration narratives have become increasingly mainstream.

With the Regulation now adopted, much will depend on its implementation and interpretation. National courts and the CJEU will have a crucial role in ensuring that its provisions are applied consistently with Member States' obligations under international law, EU law and domestic constitutional standards. Beyond litigation, financial oversight bodies may increasingly scrutinise expenditure on costly detention systems and return hubs. Given that the Commission's proposal was not accompanied by an impact assessment, independent research will be essential to evaluate whether the Regulation's coercive approach actually increases returns. Investigative journalism and advocacy will likewise remain indispensable in documenting its impact and challenging practices that undermine fundamental rights. Perhaps, ultimately, this legislation—shaped by ideas that only a few years ago remained largely confined to the political margins—will also serve as a reminder that the erosion of rights rarely remains limited to a single group. Once exceptions to fundamental guarantees become normalised, the boundaries of exclusion tend to expand, placing ever more people beyond the protection of the law.

Detention by Delay? A Structural Paradox in EU Migration Law

 

 

Miguel Alconero Bravo, Predoctoral Research Fellow (Formación de Personal Investigador – FPI) at the University of Valladolid*

*Part of the Research Project “Proceso Penal y Espacio de Libertad, Seguridad y Justicia: Garantías, Cooperación Transfronteriza y Digitalización” (Ref. PID2023 – 152074NB – I00). 

Photo credit: berthgmn via wikimedia commons

 

Introduction

 

Predicating the detention of a migrant on circumstances entirely beyond his or her control seems prima facie unjust. Indeed, even a cursory reading of the provisions of EU law empowering Member States to extend the detention of a foreign national due to delays in obtaining the necessary documentation from third countries unmistakably exposes the inherent disproportionality of such a measure.

 

Ordering detention v. Extending detention

 

It must first be emphasised that both Article 15(6) of the Return Directive and Article 32(3) of the Commission proposal to overhaul EU return procedures enable Member States solely to extend a period of deprivation of liberty that has already been lawfully ordered.

 

Accordingly, where the conditions required under EU law for the detention of a third-country national are not satisfied in a given factual scenario, it is legally immaterial whether any of the grounds permitting a State to prolong that measure are present. If a person could not lawfully have been deprived of liberty from the outset, there is, fundamentally, no valid detention susceptible of being extended.

 

In this regard, Article 15(5) of the Return Directive states that “detention shall be maintained for as long a period as the conditions laid down in paragraph 1 are fulfilled and it is necessary to ensure successful removal”, whereas Article 32(1) of the proposal for a Return Regulation provides that “detention shall be maintained for as short a period as possible and for as long as the conditions laid down in Article 29 are fulfilled […]”.

 

Reference must therefore be made to Article 15(1) of the Return Directive, which adopts a numerus apertus approach. This provision refers in particular to two situations that may lead to the detention of a foreign national pending removal: the existence of a risk of absconding, and the possibility of identifying conduct through which the migrant seeks to avoid or hamper the preparation of return or the removal process.

 

Similarly, Article 29(3) of the proposed Regulation sets out, in exhaustive terms, the only situations in which the requesting State may order the detention of an irregularly staying third-country national: (a) where there is a risk of absconding determined in accordance with Article 30; (b) where the third-country national avoids or hampers the preparation of the return or the removal process; (c) where the third-country national poses security risks in accordance with Article 16; (d) in order to determine or verify his or her identity or nationality; (e) in the event of non-compliance with the measures ordered pursuant to Article 31.

 

Thus, the vast majority of the grounds for detention laid down in the Return Directive and in the proposed Regulation relate to scenarios in which the third-country national concerned has sought to frustrate the enforcement of return or the removal process. In essence, deprivation of liberty under both instruments is generally linked to some form of non-cooperation by the person concerned.

 

In this context, it must be stressed that construing the foreign national's lack of cooperation as a ground for extending detention – as Article 15(6)(a) of the Return Directive and Article 32(3) of the proposed Regulation do – makes it easier to postulate that the ground originally justifying detention still subsists. In other words, such a construction allows the authorities to establish the presence of almost any of the grounds set out in Article 15(1) of the return Directive and in Article 29(3) of the proposed Regulation for the purpose of ordering the detention of a migrant.

 

As a matter of fact, when a State invokes the “lack of cooperation by the third-country national concerned” in order to prolong detention, it is essentially relying on a concept whose indeterminacy allows national authorities to subsume within it many of the very grounds on which they could initially have relied to deprive that person of liberty.

 

In sum, extending the detention of a foreign national as a consequence of his or her lack of cooperation will, in most cases, make it possible to ascertain that the grounds for detention set out in EU law continue to be met.

 

Nonetheless, an exception must be made in respect of Articles 29(3)(c) and 29(3)(d) of the proposed Regulation –namely, where the person concerned is a third-country national deemed to pose a security risk, and where detention is ordered for the purpose of determining or verifying the foreign national’s identity or nationality.

 

In that respect, it should be noted that detention ordered on the grounds that a migrant poses a risk to public order, public security or national security bears, strictly speaking, no relation to the degree of cooperation he or she may have been willing to display during the return procedure. Irrespective of the individual’s willingness to cooperate, once a foreign national has been deprived of liberty on the basis that he or she is regarded as a threat to a State’s public order, public security or national security, detention will persist for as long as that classification remains in force.

 

That being so, authorities cannot invoke a migrant’s lack of cooperation to extend detention where the initial deprivation of liberty was based on security grounds or on the need to verify identity, as those circumstances do not, as such, relate to the individual’s conduct during the return procedure (unless a genuine and subsequent lack of cooperation actually materialises). Nevertheless, it is equally true that, in our view, Brussels errs in treating said situations as grounds for detention in the first place.

 

Against this backdrop, the pivotal question is as follows: under which of the grounds set out in either Article 15(1) of the Return Directive or Article 29(3) of the proposed Regulation could a Member State’s intention to prolong the detention of a third-country national be classified when that intention is based, purely and simply, on the likelihood that the procedure will take longer owing to delays in obtaining the required documentation from third countries?

 

As far as the Return Directive is concerned, the answer may lie in the numerus apertus structure of Article 15(1). Article 29(3) of the proposed Regulation, however, does not, under any circumstances, permit a third-country national to be deprived of liberty solely on the basis of delays in obtaining documents from third countries.

 

The conclusion follows inexorably. The wording of Article 32(3) of the proposed Regulation allowing deprivation of liberty to be prolonged “where the return procedure is likely to last longer owing to […] delays in obtaining the necessary documentation from third countries” ought to be removed. If EU law does not recognise the possibility of detaining a foreign national on that ground, it is a fortiori manifestly contrary to the principle of proportionality that such delays should then be relied upon to justify prolonging the duration of a custodial measure.

 

A structural contradiction

 

It must be acknowledged that both Article 32(3) of the proposed Return Regulation and Article 15(6)(b) of the Return Directive pursue an entirely legitimate aim: namely, to prevent, through the use of all available means, a situation in which enforcement of the return decision becomes impossible as a result of a temporary delay in receiving the necessary documentation from the requested State.

 

That said, it is crucial to recall that, in order for the detention of a third-country national to be prolonged, there must first exist a custodial measure resting on a valid legal basis. The analysis must therefore begin by determining whether in the factual circumstances of the case the substantive conditions laid down in EU law for depriving a migrant of liberty are actually satisfied.

 

Against this background, neither Article 15(1) of the Return Directive nor Article 29(3) of the proposed Regulation treats a mere delay in the completion of the administrative or diplomatic formalities necessary to obtain the required documentation from third countries as a circumstance capable of justifying an initial deprivation of liberty.

 

This gives rise to a stark legal contradiction: if EU law precludes the initial detention of a third-country national on the basis of administrative delays in obtaining the necessary documentation from third countries, why does Brussels permit its Member States to extend detention on that very ground? Although such delays cannot justify the initial deprivation of liberty, they may nonetheless serve to prolong the detention of a migrant.

 

The result is a structural paradox whereby a custodial measure that should come to an end from the moment the substantive conditions underpinning detention are no longer met is nevertheless lawfully prolonged by the requesting State under the provisions governing extension.

 

That tension becomes all the more striking when viewed in the light of other instruments of EU migration law. In particular, Article 11(1) of Directive 2024/1346 provides that “delays in administrative procedures that cannot be attributed to the applicant shall not justify a continuation of detention”.

 

For all these reasons, if the EU wished to preserve this ground for prolonging detention in the proposed Regulation, its express incorporation into Article 29(3)  as a ground, not just for extending, but also for ordering detention would be necessary.

 

As regards Directive 2008/115, the only interpretative solution would be to conclude that, by merely identifying the risk of absconding and the possibility that the individual may avoid or hamper the preparation of return as the two grounds that, in particular, entitle a State to deprive a migrant of liberty, that instrument implicitly leaves room for the authorities to rely on other situations as independent grounds for detention. One such additional scenario would be, precisely, delays in obtaining the necessary documentation from third countries.

 

However, both of those alternatives must be categorically rejected. Otherwise, the ultima ratio nature traditionally associated with the detention of an irregularly staying third-country national would be severely compromised.

 

In any event, the release of the individual concerned does not prevent the authorities from resorting to less restrictive measures designed to secure the enforcement of return pending receipt of the necessary documentation.

 

In this regard, Article 31 of the proposed Regulation explicitly provides for various alternatives to detention, which must be “proportionate to the level of the risk of absconding assessed in accordance with Article 30”. Furthermore, Article 23 of said proposal provides for a series of options which, by restricting the individual’s geographical mobility, are capable of ensuring his or her availability during the removal process.

 

Mahdi: When can detention be extended?

 

The Court of Justice of the European Union (CJEU) clarified in Mahdi the scope of the assessment that national courts must undertake before authorising any extension of a detention period on the basis of Article 15(6) of the Return Directive

 

In order to rule on the questions referred by the Administrativen sad Sofia-grad, the CJEU began by identifying the defining features of Article 15 of the Return Directive. It emphasised, in particular, that this provision is both “unconditional” and “sufficiently precise”, qualities which explain why its implementation by the Member States requires “no other specific elements”.

 

The Court then turned to the provisions whose interpretation had been requested by the referring court, namely Articles 15(3) and 15(6) of the Return Directive.

 

Concerning Article 15(3), the Court underlined the clarity with which its wording indicates that any detention measure prolonged over time must be subject to the “supervision” of a judicial authority. Yet the CJEU also acknowledged that the provision does not specify the precise nature of that examination, thereby making it necessary to “recall the rules deriving from Article 15 […]” in order to complete the analysis required by the question raised by the Bulgarian court.

 

It was at that stage that the Court brought Article 15(6) of Directive 2008/115 into the discussion.

 

Significantly, however, the CJEU did not confine itself to identifying the consequences flowing from the substantive conditions set out in that provision. Instead, it examined Article 15(6) in the light of Article 15(4) of the same Directive.

 

In so doing, the Court of Justice of the European Union introduced two decisive elements into the judicial review of the deprivation of liberty of an irregularly staying third-country national.

 

First, it held that, “at the time of the national court’s review of the lawfulness of

detention”, there must be “a real prospect that the removal can be carried out successfully”, having regard to the time limits laid down in Articles 15(5) and 15(6) of Directive 2008/115.

 

Secondly, the Court established that the authority determining whether the individual’s detention should be extended or whether he or she should be released must re-examine the substantive conditions laid down in Article 15(1) of the Return Directive. Crucially, this entails verifying that the grounds “which have formed the basis for the initial decision to detain the third-country national concerned” continue to subsist.

 

This point is of central importance to the present discussion, since Article 15(1) of the Return Directive makes no reference whatsoever to the possibility of detaining a foreign national solely on account of delays by third countries in issuing the necessary documentation. It follows that reliance on such a ground does not relieve the competent authorities of the burden of demonstrating, first, that there remains a “reasonable prospect of removal” and, secondly, that the substantive grounds which justified the initial deprivation of liberty continue to subsist.

 

The disappearance of either the reasonable prospect of removal or the substantive grounds that initially justified the detention of the third-country national necessarily renders that deprivation of liberty unlawful, as Article 15(4) of the Return Directive makes clear. That conclusion is not altered by the mere fact that the authorities continue to await the necessary documentation from other States.

 

Advocate General Ćapeta’s Opinion in WS and Others v Frontex before the Grand Chamber: The End of Frontex’s Shielding? Joint Liability of Frontex and Member States in Return Operations

 

Antje Kunst*

* Antje Kunst is an international lawyer and barrister of Garden Court North Chambers, admitted to the Bar of England and Wales, and the Bar of Berlin, advising and representing individuals in a wide range of matters related to fundamental rights within the CFSP and other fields. She has appeared in numerous cases before both the Court of Justice and the General Court, within the Court of Justice of the European Union.  

Photo credit: Asurnipal, via Wikimedia Commons

 

Introduction

On 12 June 2025 Advocate General (AG) Tamara Ćapeta, following a hearing by the CJEU Grand Chamber in February 2025, rendered an important opinion (‘Opinion’) on the appeal of WS and Others v. Frontex,  in Case C-679/23 P against the General Court’s judgment of 6 September 2023.  The General Court’s judgment has been rightly heavily criticised (see for example here, and here). Two authors went as far as stating that the shielding Frontex from meaningful responsibility is not only harmful to victims of fundamental righta breaches committed by Frontex, but that it also undermines the institutional framework of EU agencies and affects the legal credibility of the Court (see here).

The clarity that was lacking in the General Court’s judgment is made up for by the AG, who addressed the issues directly and even offered two possible readings of what the General Court may have intended to find, including that it might have failed to attribute the unlawful conduct to Frontex. (see paras. 60-67 and 84 of the Opinion)

As outlined  here WS and Others v. Frontex involves a Syrian refugee family with four children, who are ethnic Kurds. They arrived on the Greek island of Milos in October 2016 by boat with the intention of claiming asylum. Even though they formally declared their interest in applying for international protection, just six days later, they were deported by flight to Turkey in a joint return operation conducted by Greece and Frontex. Because of the fear of being returned to Syria by the Turkish authorities (para. 59 of the GC’s judgment), the family decided to flee from Turkey to Iraq, where they reside to this day.

The applicants filed a claim for compensation, alleging that Frontex had violated its own obligations under the then-applicable Frontex Regulation (the 2016 Frontex Regulation) and several fundamental rights under the EU Charter during the return operation.

The significance of the case lies in the fact that, for the first time, the Court of Justice examines the joint liability of Frontex and Member States for breaches of fundamental rights arising from joint return operations. There is also an opportunity for the Court to develop its case-law on the causal link between the alleged unlawful conduct of an EU agency -specifically Frontex- and the damage suffered by individuals. This blog post focusses on these two issues.

 

Admissibility of the action

Any credible claim that fundamental rights have been violated deserves access to an effective judicial remedy. In cases like this, that remedy is a compensation claim under Article 340(2) TFEU to make good any damage caused by EU institutions, bodies and agencies.

Despite Frontex’s objections on four grounds, the AG rightly concluded that the claim is admissible (see paras. 42- 55 of the Opinion). This includes the General Court’s failure to assess relevant facts like the existence of a return decision which are arguments of points of law. If the Court of Justice agrees, which is expected, it would set an important precedent, opening the door for similar actions against Frontex to be heard in the future.

 

Frontex has its own obligation to verify under the 2016 Frontex Regulation

The AG makes it clear: Frontex has its own independent obligations under EU law when it takes part in joint return operations. That includes a duty to verify whether a valid return decision exists for each person put on the plane (paras. 68–83 of the Opinion).

Crucially, she stresses that Frontex -like all EU bodies- must uphold fundamental rights while carrying out its tasks. It is a legal obligation under Article 51(1) of the EU Charter of Fundamental Rights. So, when Article 34(1) of 2016 Frontex Regulation sets out Frontex’s duty, it is simply restating what EU law already requires (para. 72 of the Opinion).

The AG takes a close look at the 2016 Frontex Regulation and shows that Frontex’s responsibilities during return operations are clearly spelled out therein.

First, Article 28 of the Regulation ties Frontex’s operations directly to the 2008 EU Return Directive, which strictly prohibits returning individuals without an enforceable return decision. Second, Article 4(h) of the Regulation sets out the same point. This is supported by consistent case law from the Court of Justice. The idea is simple but crucial: the existence of return decision helps ensure that the return does not violate the principle of non-refoulement.

The AG makes an important -if obvious- point: the 2016 Frontex Regulation clearly intends that joint return operations coordinated or organised by Frontex must only involve individuals who are the subject of individual, enforceable return decisions.

She goes on to conclude that Frontex bears its own responsibility in this process- again an obvious point despite Frontex's consistent denials. By verifying that return decisions exist for everyone on board, Frontex is fulfilling its legal duty to ensure respect for fundamental rights, including the principle of non-refoulement, in the performance of its tasks, as required by Article 34(1) of the 2016 Frontex Regulation.

Consequently, the General Court erred in law that there could not be a causal link between the allegedly unlawful conduct of Frontex and the damage suffered ( see para. 83 of the Opinion)

 

Joint and several liability of Frontex and the host Member State?

In paragraphs 84–97 of the Opinion, the AG observes that the General Court may have erred in finding that Frontex and a Member State could not be held jointly and severally liable for the same damage. She clarifies the concept of joint and several liability: when more than one actor contributes to a single harm, each may be held fully liable, and the injured party has the right to claim compensation from any one of them for the entire damage (see para. 85 of the Opinion). The issue of shared liability is a much-debated topic in legal scholarship (e.g., here). Can both Frontex and a Member State be liable for separate breaches of EU law that give rise to a single harm? According to the AG, the answer is yes.

She goes on to clarify that under the EU’s integrated border management system, Member States can be held liable for any action or omission. Frontex, on the other hand, is accountable only for actions or failures that fall within the scope of its assigned tasks under EU law (para. 88 of the Opinion).

She offers an important clarification regarding the Court’s earlier ruling in Kočner v Europol (para. 90 of the Opinion), which concerns joint liability of an EU agency and Member States: that case did not establish a general principle that joint and several liability must be expressly provided for in EU legislation, as it was in Kočner.

In other words, joint and several liability can apply even when not explicitly laid down in legislation. At the same time, she distinguishes Kočner from the present case. In Kočner, it was not possible to attribute the unlawful conduct- namely, the data processing, to Europol or a Member State. By contrast, in the current case, she explains, it is possible to attribute the same omission - failing to ensure a valid return decision - to both Frontex and Greece (para. 91 of the Opinion).

She concludes correctly had either Frontex or the Member State conducted the necessary verification the Syrian family would have been excluded from the joint return operation, assuming there was no return decision. Consequently, responsibility for the damage in this case can be attributed to both, since either one had the capacity to prevent it.

 

Member State’s primary responsibility does not exclude Frontex’s liability

The AG rejected Frontex’s argument that the agency cannot be held liable simply because Member States bear primary responsibility for return procedures under the 2016 Regulation. She emphasizes that this cannot mean Frontex is absolved of liability for failures -here the omission to verify whether a valid return decision existed. She rightly pointed out that accepting such reasoning would effectively shield Frontex from accountability for unlawful actions or omissions during joint return operations. (para. 92 of the Opinion)

Ćapeta reaches this important conclusion: in situations where both Frontex and Member States share obligations in joint return operations, Frontex can be held liable for damage resulting from a breach of those obligations, even if a Member State may also be held liable for the same damage (para. 93 of the Opinion) This position should be adopted by the Court of Justice; otherwise, Frontex will continue to hide behind a Member State to evade liability.

 

Causal link - broken through own decisions?

The AG disagrees with the General Court’s conclusion that the harm suffered by the appellants -their forced relocation to Türkiye, flight to and eventual settlement in Iraq- was the result of their own choices breaking the causal chain, and not any action or omission by Frontex. She finds this correctly to be an error of law.

Regarding factual causality, the AG refers to the ‘but for’ test and to the General Court’s finding that the alleged unlawful conduct being a conditio sine qua non for the damage to arise is not sufficient to establish a causal link.  

The AG is of the view that the ‘but for test’ is fulfilled in the present case on the assumption that there was no return decision: had Frontex fulfilled its duty to verify whether a valid return decision existed, it might have discovered that none was in place. The appellants likely would not have been included in the joint return operation and would not have suffered the alleged damage. (see paras. 103 and 106 of the Opinion).  In this context the AG notes that, from an early stage, the Court’s case law has imposed limits on the ‘but for’ test when assessing liability, particularly by excluding the liability of EU institutions or bodies for damage deemed too remote (so-called legal causality) (para. 109 of the Opinion).

As set out here, in the present case, however, the damage is not too remote: Frontex’s operation constitutes the most proximate and direct cause of the harm suffered by the family.

As the AG explains, a finding of damage of being too remote often comes into play when others, sometimes even the injured party, have contributed to the harm (paras. 110-112 of the Opinion). In such cases, the causal chain may be considered broken, and liability may not attach. The AG refers to past case law where the injured party’s own actions or decisions were seen as breaking the chain of causation, predominantly in market cases where the injured parties were economic operators. But in this case this reasoning must not apply (paras. 114 to 116 of the Opinion).

A Syrian Kurdish family - two parents and their four children - fled Syria at the height of the war. What followed was a serious breach of their fundamental rights, most notably the principle of non-refoulement. As the AG points out, the family was undeniably in a position of vulnerability.

After being returned to Turkey, they eventually made their way to Iraq - a place they considered safer. While that move may have technically been their own decision, it cannot be called a ‘free choice’. As AG Ćapeta puts it, it was a ‘difficult life-choice decision’.

On that basis, the Court of Justice should follow Ćapeta’s reasoning and find that the factual chain of causation was not broken by the appellants’ actions. Without the unlawful omission by Frontex, they would never have been forced to make such a difficult decision in the first place.

 

Conclusion: The Shielding of Frontex Should End

The AG’s Opinion should mark the beginning of the end of Frontex’s shielding from accountability in EU joint return operations. It is now up to the Court of Justice to carry this principled stance forward. Based on the questions raised by the judges during the oral hearing, there is a strong indication that the Court will overturn the General Court’s judgment - though perhaps not entirely.

The Court may well agree with the AG that a final ruling is not yet possible and that the case should be referred back to the General Court for a fuller factual assessment. Nonetheless, a clear and thorough judgment will be essential - not only to guide the outcome of this case, but also to provide legal clarity for similar future cases. What emerges already from the facts presented and the Court’s existing case law is this: the EU judiciary must eventually take the necessary step of establishing Frontex’s non-contractual liability for the unlawful deportation of the family and award appropriate damages.

European Return Orders and the European Human Rights Convention: The Commission’s Proposal for a Return Regulation

 

 

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.