Fundamental Rights and Legal Framework

• Author: Eisele, Katharina
• Pages: 155-164

Part III: The External Di mension of the EU Return Dire ctive

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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.