19 augustus 2026
EU Policy updates
The Council of Europe’s Chişinău Declaration
In May, the Council of Europe adopted its Chişinău Declaration, which is a non-binding document expressing European governments’ views on migration and the European Convention on Human Rights (ECHR). Stemming from concerns that certain ECHR standards constrain effective migration control, the Declaration addresses that have been raised by certain Member States.
Whilst the Declaration reaffirms the absolute prohibition on torture and other inhuman or degrading treatment or punishment, it lays down a more restrictive view of Article 3 ECHR in the context of expulsion or extradition cases, emphasizing particularly the high threshold required to establish a minimum level of severity needed for a violation thereof. The Declaration also calls for more restrictive interpretations of the right to family life under Article 8 ECHR, particularly where national security and public order interests are concerned, urging for a wider margin of appreciation for national authorities. Finally, whilst the Declaration emphasizes that all procedures must be “fair, clear, predictable and timely”, it endorses the use of “return hubs” and favours inter-governmental co-operation to prevent irregular migration, which could potentially diminish procedural rights for migrants in the context of instrumentalization by third states.
Overall, the Declaration affirms States’ commitment to the ECHR and their support for the independence of the ECtHR. However, it also illustrates European governments’ increasingly restrictive approach to migration control. Despite its non-binding nature, the ENNHRI notes that the Declaration will likely be cited by national authorities in support of more restrictive interpretations of ECHR standards.
For further analysis of this Declaration, please refer to the Meijers Committee’s earlier comment here.
On June 12, the EU’s Migration and Asylum Pact became fully applicable. Comprising ten legislative acts, the Pact seeks to reform the Common European Asylum System (CEAS) by strengthening the protection of the EU’s external borders, thereby accelerating and improving asylum procedures, enhancing responsibility-sharing among Member States, and deepening cooperation with partner countries. The effectiveness of these reforms will now depend on their implementation at national level, with shortcomings potentially undermining, in particular, the Pact’s solidarity mechanisms.
In July, the Commission published its first assessment of how Member States – primarily those under migratory pressure – apply the new set of rules and noted “considerable progress” in implementing the Pact, including in regards to screening and border procedures, expanding reception capacities and accelerating asylum procedures, as well as the capacity to implement responsibility-sharing rules under the Asylum and Migration Management Regulation (AMMR). However, important challenges remain, particularly regarding these responsibility-sharing mechanisms. The Commission’s assessment describes Spain’s and Cyprus’ implementation practices as adequate, and Greece’s as demonstrating positive indications of remedying past shortcomings, whilst Italy will remain under closer scrutiny by the Commission due to its continued practices of preventing responsibility transfers.
By the end of July, solidarity under the new Pact faced its first actual test with the Ceuta migration crisis. The sudden entry of an estimated 72,000 people into the Spanish enclaves of Ceuta and Melilla has increased internal divisions, with Member States such as Italy, Germany and Greece considering a return to restrictive Schengen measures and suspensions of access to asylum, despite Spain’s demands for greater solidarity.
New Eurodac in Operation
Last month, eu-LISA announced that the new Eurodac system is officially in operation alongside new key components of the wider EU interoperability architecture. This development follows the steps of the Eurodac Regulation, adopted in early 2024, and supports the implementation of the recently adopted EU Pact on Migration and Asylum, addressing specifically the technical and infrastructure requirements of Member States for information exchanges and cooperation.
Developed and operated by eu-LISA (the European Union Agency for the Operational Management of Large-Scale IT Systems in the Area of Freedom, Security and Justice), Eurodac is one of the EU’s largest information systems in the field of migration and asylum. It is a modern database collecting biometric data and identity information for identification and verification procedures, and it is used by Member States and associated countries to process and compare data for the identification of asylum applicants and irregular migrants.
Although the previous version mainly stored fingerprints, the updated system provides national authorities with a “significantly enhanced database” enabling a more reliable identification of individuals entering the EU. Among the new features introduced are: new biometric capabilities (namely, facial biometrics) and identity categories, a redesigned architecture and functionalities, strengthened security measures and data storage arrangements, and robust data protection safeguards. In addition, Eurodac is now interoperable with other European IT systems related to border control.
eu-LISA further reports that, soon, two other large-scale IT systems will come into operation: the European Criminal Record Information System for Third-country Nationals (ECRIS-TCN) and the European Travel Information and Authorisation System (ETIAS).
Return Regulation Adopted by Parliament
On June 1, the European Parliament and the Council of the EU reached a political agreement on the Regulation establishing a new Common European System for Returns (the ‘Return Regulation’). This informal agreement was later approved by plenary with 418 votes in favour, 218 against, and 30 abstentions on June 17. The European Commission has framed the proposed Regulation as a tool to make returns more efficient through new rules seeking to simplify and speed up procedures, with full respect for international law. Nevertheless, different civil society groups have raised concerns with respect to the Return Regulation’s compatibility with fundamental rights, including the Meijers Committee.
The approval of the Regulation came right after the European Pact on Migration and Asylum became fully applicable, on 12 June 2026. Together, these instruments consolidate the EU’s new ‘truly European’ approach to migration and reflect the move of the Union’s migration policy toward accelerated returns and more stringent controls. For further analysis of the progress of the proposed Return Regulation, please refer to the Meijers Committee’s earlier updates and comments here, here, and here
The text still needs to be formally adopted by the Council and published in the Official Journal of the European Union before it can enter into force; the expected date is Autumn 2026. As soon as this occurs, the Regulation’s provisions covering return decisions, return hubs, the age assessment of minors, readmission and the external dimension of returns will apply immediately. Other provisions requiring preparatory steps will enter into force after a 12-month delay.
The final adopted text may be found here.
CJEU cases:
The proceedings concerned the interpretation of Article 20 TFEU and 5(a) and (b) and 6(2) of Directive 2008/115/EC. The applicant, a third country national, was married to a Dutch national and lived on the territory of the Netherlands where their son was also born, holding solely Netherlands nationality. During this time, the applicant did not have a residence permit but was holding a right of permanent residence in Spain. Her application for a derived right of residence in the Netherlands under article 20 TFEU was rejected by the State Secretary, reasoning that she already holds such a right in a different Member State.
The dispute before the CJEU concerned whether a Member State can refuse to grant a derived right of residence to a third country national who is a parent of an EU citizen minor, justifying it on the right of residence in a different Member State, and where the authority has not assessed whether the family life of that child could continue in that different Member State. The Court analyzed two possible scenarios.
In the situation where there would be no such right of residence in Spain, refusal to grant a right of residence to a third country national would subvert the Union citizenship of the child, provided there is a relationship of dependency between the child and the third country national parent (including financial, physical and emotional dependency). The Court observes, however, that such a relationship of dependency could be rebutted if responsibility towards the child is split between both parents
In the second scenario where there is indeed a right of residence in Spain, the possibility of being granted residence permit in the Netherlands is also not excluded. Compelling a child to move to Spain, as the State Secretary has noted as a possibility, can infringe his rights under Article 7 and 24(2) and (3) of the Charter, making him unable to “move and reside freely” within the EU, as provided by Article 20 TFEU. Emphasizing the best interest of the child, the Court ruled that a refusal to grant the mother a derived right of residence would compel the child to accompany her to Spain, giving rise to the risk of separation from the father in so far as he could not reside long-term in Spain, which in turn harms family unit and breaches Article 7 the Charter.
The judgment concerned the interpretation of Articles 6, 8 and 9 of Directive 2008/115/EC on the standards and procedures in Member States for returning illegally staying third country nationals. The issues before the referring court concerned X and Y, two third-country nationals that were sentenced to life and 25 years of imprisonment, respectively. The first and third questions centered whether the previously mentioned articles of the Directive preclude the adoption of a return decision against an illegally staying third country national where, due to long-term or life-long imprisonment, that person is unable to voluntarily leave the territory or cannot be removed for a long period of time.
The CJEU found that article 9(2) of Directive 2008/115/EC provides a non-exhaustive list of circumstances that allow postponement of removal of an illegally staying third-country national. Granting a prison sentence and the execution of that sentence can fall under such circumstances for postponement of removal, when the prosecution is related to issues other than illegal stay or entry. Thus, the Court interpreted the term “appropriate period of postponement” as not excluding the time of serving a long or life-long sentence. However, Member States must ensure sufficient safeguards according to Article 5 of the Directive and ensure compliance with Charter rights. Additionally, they are required to assess any change of circumstances that may occur by the time the return can be executed and continue the postponement in case of evidence of serious risk of violation of the principle of non-refoulement.
The main proceedings concerned 8 Iraqi nationals who lodged applications for international protection in the Netherlands in 2017, grounding them on fear of vendettas, forced marriages, the inequality between men and women and fear of prosecution upon return to the country of origin. The rejection by the Minister of the application followed an appeal to the District Court in The Hague, which referred five questions to the CJEU.
The first four questions concerned whether article 46(3) of Directive 2013/32, together with Article 47 of the Charter gives to a first instance court the ability to rule on the credibility of the information provided in the application and the plausibility of fears of prosecution or real risk of serious harm in the country of origin, according to evidence submitted during the appeal.
The CJEU interpreted the Directive so as to include the obligation that a court or tribunal before which an application for international protection is contested, has the responsibility of undertaking “a full and ex nunc examination of both facts and points of law, including also an examination of the international protection needs pursuant to Directive 2011/95’, citing previous case law. Thus, courts can carry out their own assessment of facts, taking note of new evidence that appeared after the decision under appeal and analyzing both the evidence already examined or that should have been taken into account in their decision.
The fifth and last question engaged with the meaning of a “well-founded fear of being prosecuted” from Article 2(d) of the Directive 2011/95. The Court answered that the expression refers to a case where there is a reasonable likelihood that the applicant will be prosecuted in the case of return. The standard reasonable degree of fear is established following the competent authorities’ examination, which must not only consider the facts of the individual application and the subjective perspective of the applicant, but crucially, facts relating to the general situation in the country of origin.
The judgment concerned a third country national for which a return decision has been issued, mentioning three potential countries of return. The preliminary reference touched upon the interpretation of articles 3(3), 5 and 15 of Directive 2008/115 EC, trying to ascertain whether a national court reviewing the lawfulness of a detention order must itself examine whether the principle of non-refoulement was taken into account firstly when the return decision was adopted and that return decision mentions three different countries of return, and secondly when the detention measure was adopted. Moreover, the referring court wondered whether the assessment of non-refoulement must cover all countries mentioned in the return decision.
As to what the lawfulness of the detention, the Court points out that it is ensured when there is a “reasonable prospect of removal” and “all legal considerations”, including the principle of non-refoulement, are considered. Even when a return decision has not been challenged by the applicant, the national authority must nonetheless check whether compliance with non-refoulement principle would block the applicant’s removal. Moreover, the judicial authority has the duty to conduct its own assessment of the principle of non-refoulement, and it is not required to verify whether the principle was considered by the authorities when issuing the return decision. The powers of the judicial authority are not limited by the evidence and facts that the administrative authority has previously used. An omission by the administrative authority of non-refoulement would also not result in an automatic release. The judicial authority may still conclude that the detention and subsequent removal is not compromised by that omission.
In respect of the issue of conducting an assessment for each distinct country mentioned in the return decision, the national court is required to ascertain if the national authorities established that that expulsion would be possible to at least one of the three countries mentioned, a situation in which the detention will thus be considered lawful.
The case pictures a number of preliminary questions regarding the interpretation of Article 4(3) and Article 19(1) TEU, Articles 20 and 267 TFEU, Articles 1, 5, 7, 24, 41, 47, 51 and 52 of the Charter of Fundamental Rights of the European Union and Articles 1, 5 and 11 to 13 of Directive 2008/115/EC. The proceedings concerned PQ, a third country national challenging his return decision and ban on entry issued by Hungary.
Focusing on the novel questions raised, the CJEU concluded that articles 20 TFEU and 5, 12 and 13 of Directive 2008/115, read in light of Article 7 and 24 of the Charter, do not leave room for national legislation that adopts a return decision based on national security interest, when the third country national concerned is a family member of a Union citizen, without observing the individual circumstances of the case and the principle of proportionality. The measure taken in an alleged national security interest cannot make the right of Article 47 useless in practice, for instance by withholding information that will render the applicant unable to defend himself.
Regarding whether national legislation can restrict a third-country national’s access to the file underlying a return decision and entry ban issued on national security grounds, the Court held that Member States may restrict direct access where national security requires it but must still guarantee the person effective knowledge of the essence of the decisive material against him, usable in the actual administrative or judicial proceedings. A mechanism relying solely on prosecutor involvement, without the person’s own access to the disclosed information, does not meet the requirements of Article 47 of the Charter.
The Court held that it is permitted for a specialist national security body to refuse to disclose grounds for the return decision, as long as the national court reviewing the decision draws the appropriate conclusions from any decision where the authorities decide not to disclose all or part of the grounds and evidence. Lastly, the Hungarian legislation prohibiting a lower court to depart from a decision of the Supreme Court breached the principle of primacy of EU law. The lower court remains free to disregard these rulings if they conflict with the Court’s interpretation of EU law.
ECtHR cases:
The applicant was granted refugee status in Greece in 2019 and subsequently filed an application for family reunification with the Asylum Service. He complained to the ECtHR that the authorities had required him, without taking due note of alternative solutions, to produce documents he could not obtain, alleging a violation of his right to family life under Article 8, taken together with Article 13.
In its ruling, the Court acknowledged the duty to exhaust domestic remedies but stressed that it is for the Government to show the remedy was effective and available, both in law and in practice, at the relevant time. It rejected the argument that inaction amounted to a tacit refusal capable of being appealed, for two reasons. Firstly, two interviews had taken place at which the applicant was informed of the documents required and this did not amount to a tacit rejection at that stage. Secondly, the Government did not dispute that it was the Asylum Service’s practice not to issue a decision until the applicant had submitted the requested documents, and that such applications were examined individually, which contradicted its own non-exhaustion argument that the application should be treated as tacitly rejected once the statutory time limit expired. This was further undermined by the fact that the Asylum Service issued a decision on 3 November 2023 granting the application. The Court also noted that Greek legislation on the said remedies addresses only express refusals, not tacit ones, and that the Government failed to point to any case law showing the remedy had actually been used in cases of authority inaction, contrary to the idea of showing the availability of the remedy. Therefore, in such a situation the Court expressly rejected a refusal decision for family reunification to be based only on absence of documents. The State is instead under a duty to consider alternative evidence or ways of establishing family links.
When ruling on the applicant’s continued victim status, the Court set out the criteria triggering State obligation to grant family reunification, including the existence of “insurmountable or substantial obstacles” and the best interests of the child. It found that the Greek authorities were aware of the applicant’s inability to produce the required documents, and that by disregarding this, they failed to carry out an individualised, balanced and reasonable assessment, one that should have examined whether the failure was justified, considered alternative solutions, and taken into account the applicant’s own proposals. There was no fair balance struck between the individual’s rights and the State’s interests, nor were there guarantees of speed and effectiveness in the available remedies. The Court accordingly found a violation of Article 8, taken together with Article 13, of the Convention.
In J.B. v Greece, the ECtHR examined a complaint for a violation of Article 13 of the Convention, in conjunction with Article 3, which has been brought by an applicant of Armenian origin fleeing Syria and entering Greece through Türkiye. He complained that the Greek authorities failed to properly examine his asylum claim, pointing to deficiencies in both his asylum procedure and return procedure to Türkiye. The question raised was whether he still has victim status for the purposes of Article 13 of the Convention, since France granted the applicant asylum and removed the possibility of deportation to Türkiye.
The Court ruled that such a favourable outcome is not enough to deprive him of victim status, unless the national authorities have acknowledged and given redress for the alleged breach of convention right. The arguable claim was proven by his fears supported by documents and reports regarding the situation in Türkiye.
The Court opined that general assurances contained in a structured, institutionalised framework like the EU-Türkiye Statement, as opposed to ad hoc diplomatic undertakings, may be enough to eliminate the presumption of risk of treatment contrary to Article 3 in the third country, as long as such assurances offer a “sufficient reliable guarantee of protection against prohibited ill-treatment” and the authorities examine the practical application of the written standards, without there being systemic deficiencies that could hinder these safeguards. Therefore, as long as a country relies on a set of international guarantees and not solely on an agreement between countries, and these guarantees are shown to be effective in practice, the presumption of safety can be rebutted only through an individual assessment of the personal situation of the applicant. Provided that the applicant benefits from legal assistance and rights to appeal and be informed in a language that he understands, the convention standards are complied with. The Court thus found no violation of Article 13.
However, upon examining a violation of Article 3 of the Convention due to the conditions at the Greek police station, the ECtHR found the state to be in breach of such right. The poor detention conditions, overcrowding, inadequate sanitation, lack of proper food and long duration were all attributable to the state.
The case concerned the expulsion of a Moroccan national residing in Spain, accompanied by a 10 year re-entry ban on grounds of jihadist involvement and representing a threat to national security. The applicant complained that his expulsion violated his right to private and family life under Article 8 of the Convention.
In examining whether a fair balance has been struck between his individual rights and the interests of the community, the Court applied the criteria developed in Üner v. the Netherlands and Maslov v. Austria. It checked the nature and seriousness of the offence, length of the applicant’s residence in the host state, the period elapsed since the relevant events and the applicant’s conduct during that interval, cultural and family ties with the host country and expulsion country and the situation of his family members. The Court established that the interference was in accordance with the law (based on the Foreigners Act) and having the legitimate aim of protecting the national security. Preventing terrorist activities and Islamist terrorism represents a pressing social need, and where there is a national security assessment grounded in reliable material demonstrating involvement in terrorist activity, the State enjoys a wide margin of appreciation given the exceptional gravity of the threat.
Establishing procedural fairness, the Court noted that the applicant received information regarding the expulsion proceedings and the reasons thereof. The authorities conducted a thorough specific assessment and not only a binding security one that does not account for the applicant’s right and he had access to judicial review. Contrary to the applicant’s claim, absence of criminal conviction is not decisive, since expulsion on national security grounds is governed by a distinct evidentiary framework, authorities having to show that he is a sufficiently serious threat to society. Regarding the argument of having strong family ties in Spain, the Court considers the practical possibility of the family moving to Morocco, due to the fact that the daughters were young and could reintegrate, enough for an adequate weight of the family circumstances, since domestic authorities do not have to take account of the preferred country of residence of the family. In assessing this balancing of rights, having only two years of employment in the last eight years, showing no wish to enter the labour market, relying on social benefits and ties confined to family and religious circles proved relevant for Article 8, and proved to be insufficiently strong to justify his stay in Spain.
The Court concluded that, provided that the authorities impose proportionate measures and ensure practical access to safeguards, they enjoy a wide marking of appreciation on countering perils to their national safety, finding no violation of Article 8.
The applicant, a Syrian national residing in Aarhus with his wife and children, was convicted of numerous serious money-laundering offences and sentenced, on appeal, to two years and six months’ imprisonment. Additionally, a 6 year reentry-ban and an expulsion order were issued against him. The applicant complained before the ECtHR that the decision of the Supreme Court violated his right under Article 8 of the Convention, arguing that his wife and children had a derived right of residence in Denmark from him and that his re-entry ban is de facto permanent. Applying the Üner and Maslov criteria for expulsion of young adults mentioned in Fal v. Spain, the Court noted that the authorities properly identified the applicant as a threat to public order due to the high number of offences committed. Although he entered Denmark more than 8 years ago, his social and cultural ties remained stronger with his country of origin. The Court also noted that he has been charged with new offences of particularly serious nature after the first judgment.
The Supreme Court also took account of the best interest of his children and any change of circumstances that might occur due to his expulsion. Relocation with the applicant to Syria was possible since they would not be ill-equipped to adapt given their upbringing in a Syrian household, as well as continued residence in Denmark, where contact could be maintained through visits and electronic communication. The claim of a de facto permanent ban was rebutted by the possibility to apply for family reunification after the expiry of the order and the continued residency of his family on the territory of Denmark.
The ECtHR reiterated that it cannot override the assessment of domestic authorities that took account of the applicant’s interest and interests of the community as a whole, as long as there are no serious reasons to do so. Therefore, no violation of Article 8 has been found.
In these proceedings, the applicant was a temporary resident in Poland. He applied for a permanent residence but was refused on grounds of protecting national security and public order, due to his convictions for fraud and corruption. Without his knowledge, the applicant’s personal details were also entered in Poland’s Register of Undesirable Foreigners and simultaneously transferred to the Schengen Information System. This led to him being refused entry into the Schengen area upon a later intent of return from holiday. The applicant requested permission to access his files, but the national authorities dismissed the request due to the national security interests and recent criminal convictions, deciding to disclose neither the requesting authority nor the factual basis for the measure. The ECtHR focused mainly on whether, under article 1 of Protocol no. 7 to the Convention, the restriction of the applicant’s procedural rights had been justified and, if not, whether they had nonetheless been sufficiently counterbalanced by other safeguards so as to preserve the essence of the right to submit reasons against his expulsion.
Firstly, the Court noted that any measure that compels a foreigner’s departure from a territory where they lawfully resides qualify as “expulsion” for the purposes of the Convention. The entering of details into the said register had ultimately the same effect as a decision ordering him to leave the country due to him being in the register, that of barring entry and completing departure.
The Court then restates the minimum procedural safeguards to be followed in the case of an expulsion (according to Muhammad and Muhammad case): disclosing information to the foreigner as to why he is a threat to national security and providing access to the documents relied upon by the authorities in reaching that conclusion. Any limitation on these criteria shall be compensated by appropriate safeguards and not affect the very essence of the rights concerned. It is the duty of the Court to exercise scrutiny over the facts and establish the existence of any counterbalancing factors. In the present case, the Court found that no individualized assessment representing the interest of the applicant has been carried out. The ECtHR still acknowledged some safeguards (as the involvement of the judicial authorities) but considered them insufficient to offset the restrictions imposed on the foreigner. The applicant did not have access to the information that the proceedings against him begun, was not told which authority requested his listing, and, most critically was never given at least an outline of the facts underlying the national security allegation, at any stage including judicial review. The failure to counterbalance the restrictions led to a violation of Article 1 of Protocol No. 7.
