On Monday, March 17, 2025, the European Court of Human Rights refused to reconsider a case in which it created a de facto “right to return” for foreigners expelled from Europe. Here is why.

The ECLJ had warned about a new case law of the European Court of Human Rights (ECHR) creating a “right to return” for foreigners deported from Europe. This was the case of Sharafane v. Denmark, decided on November 12, 2024. The ECLJ intervened as a third party in this case and in two other similar cases heard on the same day.

On January 29, 2025, Denmark requested that this case be referred to the Grand Chamber. In other words, it “appealed” to the Court’s solemn formation. According to the Danish government, the Sharafane judgment “raises grave and serious questions affecting the interpretation and application of the [European Convention on Human Rights], in particular regarding the state’s sovereign right to control the entry, residence and deportation of non-nationals”, even though this right is “a matter of well-established international right”.

The decision of the panel of the Grand Chamber

On March 17, 2025, the panel of the Grand Chamber handed down its decision and definitively rejected Denmark's request. The ECHR thus confirms that the “right to return” of deported foreigners is a principle that sets a precedent and is intended to be applied in all European countries.

This decision of March 17 is very bad news. In fact, the rulings of November 12, 2024, call into question the competence of States in matters of immigration. To examine the proportionality of temporary return bans, the ECHR assesses “the applicants’ prospects of being readmitted to Denmark”[1]. The ECHR makes this assessment by examining the State's immigration policy. If the prospects are sufficient, the ECHR considers that the deportation is in accordance with the European Convention[2]. If the prospects are insufficient, due to an immigration policy perceived as too restrictive, the ECHR considers that the deportation is not in accordance with the European Convention, due to the risk that it is “de facto permanent”[3]. In both cases, the Court obliges States to keep foreign criminals on their territory.

Through these new legal principles, the ECHR replaces States in defining their immigration and public security policies, instead of respecting their margin of appreciation. Moreover, it judges a State’s decision not based on its immediate and certain content, but on speculative consequences that may or may not occur in the distant future. Yet it is impossible to foresee how a country’s immigration policy or the personal circumstances of expelled individuals may evolve. If a foreigner wishes to return after the end of a territorial ban, they may request reentry and appeal any potential visa refusal. Such an appeal would then be reviewed by the national courts of the concerned European country, and potentially by the ECHR.

ECLJ action for a reversal of case law

Admittedly, the ECHR has confirmed that the “right to return” of deported foreigners is case law. It has already applied this principle in Danish cases involving the deportation of drug traffickers. But it is important to work now to obtain a reversal of case law. That is why the ECLJ is intervening in a new case pending before the ECHR, Abukar v. Denmark (No. 24837/24).

In this case, the applicant facing deportation, Ahmed Kvadrani Abukar, is a 37-year-old Somali who entered Denmark at the age of 8. Mr. Abukar has been convicted 24 times by the courts, 14 of which were prison sentences, for crimes involving drugs and knives, as well as theft and violence. Following a judgment of the Danish High Court, which became final on May 1, 2024, Mr. Abukar is in the process of being deported to Somalia, with a twelve-year ban on return. He is challenging this deportation before the ECHR, invoking his right to respect for his private life.

According to the new ECHR case law on the “right to return” of deported foreigners, Denmark must now demonstrate to the European judges that Mr. Abukar will have the opportunity to return to Danish soil at the end of the twelve years.

In its written observations, filed on January 30, 2025, the ECLJ shows the need for the ECHR to reverse its case law in order to respect the right of States to expel foreign criminals without having to organize their return to Europe after a few years.

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[1] Sharafane v. Denmark, No. 5199/23, November 12, 2024, § 72.

[2] Al-Habeeb v. Denmark, no. 14171/23, November 12, 2024, op. cit., § 71.

[3] See the reasoning on Denmark's immigration policy, leading to the finding of a violation of Article 8: Sharafane, op. cit., §§ 58 to 76.