Expulsion of aliens, non-refoulement and issues related to (administrative) discretion

Abstract

One of the outcomes of the 2015–2016 migration crisis in the EU is the urgent need perceived to enhance the effectiveness of forced return procedures, including administrative expulsion. However, given the core human rights obligation of non-refoulement, the push for effectiveness needs to be balanced against procedural safeguards preventing “overly effective” proceedings. The example of the Czech Republic shows that an institutional arrangement could significantly undermine the effectiveness of the proceedings when paired with undue conduct of the administration, such as the improper risk of a refoulement assessment. The article argues that the key to effectiveness does not necessarily lie with speedy procedures, but rather with a pragmatic design of the procedures, as can be concluded from a comparison of the Czech and German approaches.