An analysis of third-country nationals' right of access to Europe, and their return, in the light of European Union law and the principles of the European Convention on human rights

Abstract

Citizens of a country outside the European Union (EU) may not stay in an EU country without authorization. There are EU rules that set out minimum standards and procedures for the return of third-country nationals back to their country of origin, or in some cases to other non-EU countries. This thesis seeks to explore not only EU law applicable to border management, but also delves into the protection provided by the European Convention on Human Rights (ECHR). Examining the roles of the legal systems established by the ECHR and EU law is imperative in the context of asylum, borders and immigration. Case law developed by the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU) illustrate the situation third-country nationals find themselves in when migrating into or within Europe or when they have been issued a return decision. Before delving into an analysis of returns and manners of removal, this thesis looks into the right of access to Europe. As a general rule, states have a sovereign right to control the entry and continued presence of non-nationals in their territory. However, both EU law and the ECHR impose some limits on this exercise of sovereignty. This thesis ultimately provides an overview of the EU’s Return Directive. Under the ECHR, the two articles central to the protection of irregular migrants pending postponed return or removal are Article 3, dealing with the right not to be subject to torture or inhuman and degrading treatment and Article 8 on the right to family and private life. Throughout this thesis it is made clear that the two systems aim to ensure that returnees are returned safely, in dignity and with due regard to their human rights.