Exploring freedom of movement in the context of forced return to transit countries

By  Özlem Gürakar-Skribeland

The already-strong focus on return as a core policy of European migration management has intensified even further in recent years in connection with the so-called refugee crisis of 2015-2016, especially as it concerns forced return and return to transit countries. The reform of the Common European Asylum System (CEAS) launched in 2016, the recast of the Return Directive initiated in 2018 and the New Pact on Migration and Asylum of 2020 all contain important elements in this regard.

The Return Directive (RD) is the main legislation governing return in the EU and Schengen areas. At its centre lies an obligation to issue – subject to limited exceptions – a return decision to “illegally staying third-country nationals”. Member States (MS) are also required to take all necessary measures to enforce their return decisions. The directive provides for three destination options for forced return (see Art. 3(3)): (i) country of origin, (ii) country of transit, or (iii) another country if the person concerned consents to that destination and if that country accepts to take that person. MS are not required by the RD to explore these options in a particular order, and their choices can therefore be determined by practical considerations, including the terms of readmission agreements/arrangements they have in place.

Revisiting the human right to leave

Not accompanied by a general right to enter, the right to leave under international law is sometimes dismissed as an incomplete right. At the same time, it has received increased attention from legal scholars in recent years. This has mainly been in the context of departure prevention and how various measures aimed at containing migrants in certain countries relate to those migrants’ right to leave, right to seek asylum, and the prohibition of refoulement (see here). An angle not previously explored is how the right to leave relates to forced returns to transit countries. The key question here is whether the persons being returned have a right to elect destination as an element of their right to leave the country deporting them. To be clear, “right to elect destination” is not intended to imply a right to enter any state of the person’s choice; what is meant here is a right to choose the state of return from options that may be legally available to the person.

In its General Comment No. 27 on freedom of movement (1999), the UN Human Rights Committee (HRC) stated that determining the destination is part of the legal guarantee that comes with the right to leave and that this choice is available to everyone, stating that “an alien being legally expelled from the country is likewise entitled to elect the State of destination, subject to the agreement of that State” (see para. 8). Whereas the HRC normally bases its general comments firmly on its past practice, this does not seem to have been the case here. The HRC has dealt with the right to leave claims on multiple occasions, finding violation of the right to leave one’s own country in several instances of unjustified departure prevention. When it comes to leaving other countries, the violation decisions involve individuals legally residing in another country and unable to travel due to passport-related issues caused by their states of nationality (i.e., revocation of or refusal to issue/renew passports). The so-called “passport cases” from the early 1980s are important in this connection: in those cases, Uruguay argued in its defence that the authors could have still left the countries where they were and returned to Uruguay without valid Uruguayan passports, but the HRC still found that their right to leave had been violated, thereby confirming that the right to leave provides more than protection from unjustified departure prevention. All of that said, there seems to be no HRC decision which contains a direct discussion on a returned alien’s (whether in the country lawfully or not) right to elect destination.

The situation is similar where the European Court of Human Rights (ECtHR) jurisprudence is concerned. That court has dealt with the right to leave in many cases, the overwhelming majority of which relate to leaving one’s own country. Whether the case involves leaving one’s own country (e.g., Stamose v. Bulgaria) or another country (e.g., Shioshvili and Others v. Russia), the ECtHR states routinely, albeit in passing, that the human right to leave under Protocol No. 4 “guarantees to any person the right to leave any country for any other country of the person’s choice to which he or she may be admitted.” But again, there seems to have been no direct discussion so far on the issue of choice.

The right to elect destination (in the sense of a choice between legally available options) is arguably a constitutive element of the right to leave. The act of leaving any location contains a movement, which necessarily implies a destination, and election of destination is arguably part and parcel of the practical exercise of leaving a country to such an extent that we do not normally think of it as a separate or separable element of the right to leave. The principle of effectiveness in treaty interpretation would further support this interpretation of the relevant provisions: the right to leave, already considered an incomplete right by many, would lose a lot of its meaning and content if the right holder were not able to choose where to go. And while the absence of directly applicable case-law should be acknowledged as leaving some possibility for alternative interpretations, it is important that both the HRC and the ECtHR try to maximize the individual’s liberty to move freely in applying this right and assess restrictive measures carefully.

Based on this interpretation, migrants in an irregular situation being forcibly returned to transit countries also have a right to elect destination. And if election of destination is an inherent part of the right to leave, then its denial will constitute an interference which needs to be justified in each case to be lawful, as per the permissible restrictions set out in ICCPR Art. 12(3) and Protocol   No. 4 Art. 2(3).

Is this a purely theoretical discussion? Arguably not. Some persons facing forced return from a MS to a transit country like Turkey may have other countries they want to go to and that will accept them, and they should be allowed to do so unless the specific circumstances (i.e., permissible restrictions) justify otherwise. This applies also to refugees returned on safe country grounds (see Refugee Convention Art. 31(2)). In many instances, the only option available to a person facing return to a transit country is her own country. This option should not be dismissed; it may be a very real option for many not seeking protection. And that raises the question of how the human right to return relates to this discussion.

Revisiting the human right to return

For many of us, the notion of irregular migrants being returned to transit countries may come with mental images of people who undertook dangerous journeys, arrived in flimsy boats, or climbed over border fences. In reality, however, this discussion relates to a much wider universe of events and to people with widely different migratory journeys and relations to their own countries, as demonstrated by this news piece from 2021. The situation in this story seems to have stemmed from a “confusion” over EU citizens’ right to travel to the UK after Brexit. The following excerpt is particularly interesting:

“Between them, María and Eugenia […] said they met a dozen other European citizens detained for similar reasons, accounting for half of the people in Gatwick’s detention rooms. They included two Spaniards with job interviews, a French woman with an internship and a Czech woman who had flown in from Mexico and was being sent back there. ‘The Czech girl was desperate,’ said Eugenia, who spent part of her 24 hours locked up in tears. ‘Like me, she knew we couldn’t start work immediately, but understood that you could look for jobs and come back to the UK later after obtaining a visa. When she offered to pay for a flight back to Prague, they said no – that they were expelling her to Mexico.’”

In this discussion on the interaction between freedom of movement and forced return to transit countries, the key question with respect to the right to return is who its duty-bearer is. In other words, in the above story, is the UK restricting or violating this Czech national’s right to return to her country of nationality? While it is common to talk of a right to return (“return” in fact being the term used in the Universal Declaration of Human Rights and some human rights treaties), both the ICCPR and Protocol No. 4 contain a right to enter, but their formulations of the right otherwise differ considerably. The ICCPR right is available to a wider group of people, i.e., those who have an especially strong connection to a country such that this country can be considered their “own country”. The right to return under Protocol No. 4, on the other hand, is reserved for nationals only. The right has also developed differently under these two systems, being extensively explored under the ICCPR, while not so under the ECHR.

The right to return under the ICCPR and Protocol No. 4 is most likely between the individual and, respectively, her own country or country of nationality. In other words, these instruments arguably do not provide for a general right to return that can be claimed against any state preventing or obstructing return, but rather a right to enter to be claimed against the person’s own country/country of nationality. The existing case-law of the HRC and the ECtHR do not involve a situation where the right to return is claimed to have been violated by another state that prevents the individual from going back to her own country. Neither the preparatory works, nor detailed commentaries suggest otherwise. The wording of the provisions, i.e., use of “enter” instead of “return” can also be understood as pointing in this direction. In the case of Protocol No. 4, the right’s very location (i.e., the fact that it is not part of a general freedom of movement provision but is part of a provision titled the “Prohibition of expulsion of nationals”) also supports this position. All of that said, the absence of directly relevant case-law should again be acknowledged as leaving some possibility for alternative interpretations.

Based on this interpretation, someone like the Czech national above would not claim her right to return against the host country seeking to return her to a transit country but would instead claim her right to leave, as including a right to elect destination. And arguably, the absolute nature of her right to return under Protocol No. 4 (disregarding for a moment that the UK is one of the four Council of Europe members that have not ratified that protocol!) and the “almost-absolute” nature of her right to return under the ICCPR (see para. 21) would serve to further strengthen her right to leave – as including a right to elect destination – against that state. This is arguably particularly so under the ICCPR which requires that limitations on the right to leave (see ICCPR Art. 12(3)) must be consistent with other covenant rights, including by definition, the person’s right to return. Notably, this requirement of consistency with other ICCPR rights is not found in other limitation clauses in the ICCPR. This further suggests that when a limitation of the ICCPR right to leave results in an inability to return to one’s own country, the threshold for passing the test for permissible restrictions may be higher than with respect to other possible destinations.

Return procedures under the Return Directive

If election of destination is a constitutive element of the right to leave, then the chance to make such election – or waive that right – arguably needs to be built into return procedures. The RD provides for voluntary and forced return. For purposes of the directive, “voluntariness” refers not to a genuine will to return but to compliance with a return decision: The third-country national is ordered to leave, is given time to leave (i.e., 7-30 days) and she departs. This way, the person gets to choose the country of return and to make the necessary arrangements to travel there. This suggests that voluntary return under the RD will in principle be compatible with the effective exercise of the human right to leave as including a right to elect destination if accompanied by an appropriate voluntary departure period. Appropriateness of the period granted is important: When MSs were asked to identify the challenges (p. 73) related to voluntary return, many of them pointed out to the insufficient length of the period for voluntary departure, noting that these periods often turned out to have been too short in practice, even when determined after due consideration of the specific circumstances.

Recent years have seen a major push in Europe towards shorter voluntary departure periods combined with a move away from the primacy of voluntary return. It is unclear how these issues will be dealt with in the recast RD (see Commission proposal here). But the foregoing constitutes an additional argument in favour of (i) maintaining the primacy of voluntary return in EU’s return system going forward, (ii) not making the grant of voluntary departure periods subject to application, and (iii) not shortening the periods granted for voluntary return, despite the political and legal push to the contrary.

When it comes to forced return, this refers to instances where the person is removed by state authorities. This covers three different types of situations: (i) persons who do not comply with an order to leave within the period granted and are then forcibly returned, (ii) persons who are not given the option of voluntary return but are straightaway subjected to forced return procedures, and (iii) persons who are excluded from the scope of the RD as per the “border cases” derogation allowed under RD Art. 2(2)(a) and are then forcibly returned. From a right to leave and election of destination perspective, the third category is particularly tricky because of the way it connects to accelerated return procedures under some readmission agreements (e.g., EU-Russia Readmission Agreement Art. 6(3)).

There can be many instances where denial of voluntary return may be justified (because it would undermine the return process) and will not constitute an unlawful interference with the individual’s freedom of movement. However, that does not automatically justify denying to the person the election of destination component of her right to leave, considering that freedom of movement is the norm, and any interference with it should be an exception. In other words, election of destination can and should happen also as part of forced return procedures. Ultimately, the most important thing is that MSs respect freedom of movement while carrying out returns but this can be more easily achieved by building the necessary safeguards into the RD itself as part of the ongoing recast process. An obligation to inform the person of her rights (together with obligations) at various stages of the return process as well as paying due attention to the form and content of return-related decisions, ideally using the same templates across the EU are possible ways of addressing the issue.

Looking forward

Perhaps the two most important conclusions to be drawn from this discussion are the following: Firstly, the right to freedom of movement arguably remains underexplored. The components of this right should arguably be revisited and further explored in different contexts (The recent H.F. and Others v. France judgment can be criticised for a variety of reasons but is arguably a case in point that freedom of movement can have more to offer). This includes also exploring the development of these rights under the different regional human rights instruments. Secondly, the ongoing legislative reform processes in the EU relating to migration and asylum provides a good opportunity to consider the different implications of the human right to freedom of movement, with a view to ensuring the effective exercise of this right. When it comes to the RD in particular, the right to freedom of movement has important implications for both voluntary and forced return.