Fundamental Rights and Legal Framework

AuthorEisele, Katharina
Part III: The External Di mension of the EU Return Dire ctive
3. Fundamen tal Rights and Legal Framework
This Section sets out the key fundamental rights considerations and the EU secondary legal
framework in relation to return and readmission. It is not an exhaustive account of all fundamental
rights obligations applicable in a return and readmission context, but rather focuses on those most
pertinent to the considerations of this study.
It highlights the principle of non-refoulement (inclu ding indirect refoulement), the right to an
effective remedy, t he prohibition on collective expulsion, th e right to liberty an d data protection
considerat ions. This Section then p roceeds to set o ut the legal fram ework pertaining to return and
readmission, including the role of Frontex in return and readmission in the external dimension.
These understandings will help to inform the analysis in the subsequent sections.
3.1. Fundame ntal Rights
3.1.1. Non-refoulement
At the int ernational level, the principle of non-refoulement, as expressed in Art icle 33(1) of the
Refugee Conv ention,72 prohibits the expulsion or return of a person to the frontiers of territories
where the pers on’s life or freedom would be threatened. The principle also finds expression in
Article 3 of the Convention Against Torture (“CAT”)73 and Article 7 of the International Covenant on
Civil and Polit ical Right s (“ICC PR”). 74
In the European sphere, the prohibition against refoulement is con taine d within Art icle 3 EC HR and
is ar guably broader in scope as it provides for the absolute prohibition on torture or inhuman or
degrading treatment or punishment. The sharing of documents with a third country in the context
of organising a return could also place a person at real risk of being exposed t o torture, inhuman or
degrading t reatment, contrary to Ar ticle 3. 75
In the Euro pean Union sphere, the prohibition against torture or inhuman or degrading treatment
or punishment is contained in Article 4 of the EU Charter of Fundamental Rights (“CF R”) wit h that
pro hibition exp ressly con templated in a r emoval, expu lsion or extradition co ntext in Ar ticle 19(2).
The right to as ylum conta ined in A rticle 18 CFR complemen ts A rticle 19(2). Article 78(1) TFEU
compels the development of a common asylum , subsidiary and temporary protections policy
ensuring compliance with the principle of non-refoulement.
The pro hibitio n aga inst refoulement also extends t o indirect refoulement (that is , where a perso n is
removed t o an intermediary country that then rem oves the pers on to a third country where the
person m ay be at risk o f persecution). 76 Indire ct refoulement ha s been con sidered in the cont ext of
Article 3 CAT an d the r isk of refoulement is inclusive not only of the risk faced in the State to which
the pers on is expelled, retu rned or extr adited but also any subs equent State to which they may be
72 UN General Assembly (1951), Con venti on Rel atin g to th e Statu s of R efug ees, 28 July, United Nations, Treaty Series, vol. 189,
p.137 (“the Refugee Convention”).
73 UN General Assembly (1984), Convention Against Torture a nd Other Cruel, I nhuman or Degrading Treatment or Punishment,
10 December, United Nations, Treaty Series, vol. 1465 (“CAT”)
74 UN General Assembly (1966), International Covenant on Civil and Political Rights, 16 December, United Nations, Treaty
Series, vol. 9999, p171 (“ICCPR”).
75 Application no. 28774/09 F.N. and Others v Sweden, Judgment, 18 December 2012, paras 73-79.
76 See Goodwin-Gil l, G. S. and McA dam, J., The Refugee in I nternational Law, Oxfo rd Univer sity Press, O xford, pp.252 -253.

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT