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ECHR rules on procedural safeguards relating to expulsion of aliens

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Referral to the CJEU
Original Documents
Relevant Legislative Provisions
European Convention on Human Rights; Return Directive (Directive 2008/115/EC of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals);
Council of Europe, European Court of Human Rights [ECtHR], Muhammad and Muhammad v Romania, Application no. 80982/12, ECLI:CE:ECHR:2020:1015JUD008098212, 15 October 2020. Link redirects to the English summary in the EUAA Case Law Database.
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According the ECHR Legal Summary:

Facts – The applicants, Pakistani nationals living in Romania on student visas, were deported on national security grounds. The relevant decision was based on classified documents. The applicants neither had access to those, nor were provided with any specific information as to the facts and grounds underlying that decision.

Law – Article 1 of Protocol No. 7

General principles

(a) Whether and to what extent the rights asserted by the applicants were protected by Article 1 of Protocol No. 7

Article 1 § 1 of Protocol No. 7 requires in principle, firstly, that the aliens concerned be informed of the relevant factual elements which have led the competent domestic authorities to consider that they represent a threat to national security and, secondly, that they be given access to the content of the documents and the information in the case file on which those authorities relied when deciding on their expulsion. The said access should be secured preferably in writing and in any event in a way allowing an effective defence, without prejudice to the possibility of imposing duly justified limitations on such information if necessary.

(b) Permissible limitations on those rights (hereinafter – the alien’s procedural rights)

Despite the importance of counter-terrorism considerations, any limitations of the rights in question must not negate the procedural protection guaranteed by Article 1 of Protocol No. 7 by impairing the very essence of the safeguards enshrined in this provision. Even in the event of limitations, the alien must be offered an effective opportunity to submit reasons against his expulsion and be protected against any arbitrariness.

(c) Criteria to be taken into account in determining the compatibility of a limitation of those rights with Article 1 of Protocol No 7

The case-law under Articles 5 and 6 provided useful indications of the methodology to be followed in assessing limitations of the rights guaranteed by Article 1 of Protocol No. 7, even though the extent of the procedural safeguards under the latter provision should not necessarily be the same.

It must first be ascertained whether the limitations of the alien’s procedural rights have been found to be duly justified by the competent independent authority in the light of the particular circumstances of the case. If so, the Court will examine whether the difficulties resulting from these limitations for the alien concerned were sufficiently compensated for by counterbalancing factors, in particular by procedural safeguards, such as to preserve the very essence of the relevant rights. Thus, only limitations which, in the circumstances of each case, are duly justified and sufficiently counterbalanced are permissible in the context of Article 1 of Protocol No. 7. In its examination, the Court has regard to the circumstances of a given case, taking into account the proceedings as a whole.

(i) Whether the limitation on the alien’s “procedural rights” was duly justified

While there may be duly justified reasons, such as the need to protect national security, for limitations to be imposed, the domestic assessment of the necessity of any such limitation should be surrounded by safeguards against arbitrariness. Requirements to that end include the need for the decision imposing such restrictions to be duly reasoned and, particularly in the event that those reasons are not disclosed to the person concerned, a procedure allowing for these reasons to be properly scrutinised.

The first criterion in this respect is the question of whether an independent national authority (judicial or not) has examined the need for limitations on the alien’s procedural rights. Weight is attached to the scope of the remit of that authority, and in particular whether it is entitled to review the need to maintain the confidentiality of the classified information.

The Court must then examine the powers vested in that authority, depending on its findings in a given case as to the need to limit an alien’s procedural rights. Where the authority found that national security did not justify the impugned limitation, it should be ascertained whether it was entitled to ask the competent body in matters of national security to review the classification of the documents, or whether it was itself able to declassify them,  so that they could be transmitted to the alien, or at least so that the latter could be notified of their content. By contrast, where the impugned limitation was found to be justified by the protection of national security, it must be determined whether, in reaching that conclusion, the authority duly identified the interests at stake and weighed them up against each other.

However, should the national authorities have failed to examine – or have insufficiently examined and justified – the need for limitations on the alien’s procedural rights, is not in itself sufficient to find a violation of Article 1 of Protocol no. 7. It must also be ascertained whether any counterbalancing measures have been applied in the case at hand and, if so, whether they were sufficient to mitigate the limitations of the alien’s procedural rights, such as to preserve the very essence of those rights. The less stringent the examination at national level, the stricter the Court’s scrutiny of the counterbalancing factors. More precisely, an excessively cursory examination will call for the implementation of enhanced counterbalancing factors.

The Court also elaborated two guiding principles for its assessment: first, the more the information available to the alien is limited, the more the safeguards will be important; secondly, where the circumstances of a case reveal particularly significant repercussions for the alien’s situation, the counterbalancing safeguards must be strengthened accordingly.

(ii) Whether the limitations on “procedural rights” were sufficiently compensated for by counterbalancing factors

There being no European consensus as to the types or the scope of such factors, States should be afforded a certain margin of appreciation in this respect. A non-exhaustive list of factors should be taken into account:

(1) The relevance of the information disclosed to the alien as to the grounds for his expulsion and the access provided to the content of the documents relied upon

It must be determined whether the national authorities have, to the extent compatible with maintaining the confidentiality and proper conduct of investigations, informed the alien concerned, in the proceedings, of the substance of the accusations against him or her. A further question of importance is whether it falls upon a judicial or other independent authority to determine, in a given case, after examining all the classified evidence, which factual information may be disclosed to the alien concerned without endangering national security, provided it is disclosed at a stage of the proceedings when the alien is still able meaningfully to challenge that information.

(2) Disclosure to the alien of information as to the conduct of the proceedings and the domestic mechanisms in place to counterbalance the limitation of his or her rights

It must be ascertained whether the domestic authorities have provided the requisite information to the alien, at least at key stages in the proceedings. Such information would particularly be useful where aliens are not represented by a lawyer and where a lack of relevant information may result in their failure to exercise rights available to them in domestic law. This will be all the more important in cases where the rules of domestic procedure impose a certain expedition in the examination of the case.

(3) Whether the alien was represented

First, domestic law should afford an effective possibility of representation. The possibility for an alien to be represented by a lawyer, or even by a specialised lawyer who holds the relevant authorisations to access classified documents in the case file which are not accessible to the alien, constitutes a significant counterbalancing factor. Second, the Court will consider whether it was possible in practice for the alien to have effective access to such representation in the course of the proceedings in question. Third, the rights enjoyed by the alien’s representative in a given case is a further significant safeguard: for example, the extent to which access to the documents in the case file, including the classified ones, was provided to the representative, and whether or not the representative’s communication with the alien was restricted once the access to the classified material had been obtained.

(4) Whether an independent authority was involved in the proceedings

The following aspects could be taken into account, even though compliance with Article 1 of Protocol No. 7 does not necessarily require that these questions should all be answered cumulatively in the affirmative:

- Whether one or more independent authorities, either administrative or judicial, were involved in the proceedings, either to adopt the expulsion measure directly or to review its legality, or even its merits; and where that authority is a court, the question of its level in the hierarchy of the national legal system. In this connection, judicial scrutiny of the expulsion measure will have in principle a greater counterbalancing effect than an administrative form of scrutiny;

- Whether the applicant was able to challenge, in an effective manner and before an independent authority, the allegations against him ;

- Whether the independent authority had the power to effectively examine the grounds underlying the expulsion application or decision, as the case may be, and the supporting evidence adduced, and if so, whether it duly exercised that power in the case at hand; in particular, whether that authority had access to the totality of the file constituted by the relevant national security body, including to the classified documents and whether it had the power to verify the authenticity of the documents in the file, together with the credibility and veracity of the classified information adduced in support of the expulsion application or decision, as the case may be. In this connection, there is no presumption that the State security grounds invoked by the competent national security body exist and are valid: the independent authority should be able to verify the facts in the light of the evidence submitted;

- Whether the independent authority called upon to review an expulsion decision had the power to annul or amend that decision if it found, in the light of the file, that the invoking of national security was devoid of any reasonable and adequate factual basis;

- Whether the necessity of the expulsion was sufficiently plausible in the light of the circumstances of the case and the reasoning provided by the independent authority to justify its decision, and  whether the nature and the degree of the scrutiny applied by the national authority transpire, at least summarily, from the reasoning of their decision.

Application of those principles to the present case

There had been a significant limitation of the applicants’ right to be informed of the factual elements submitted in support of their expulsion and the content of the relevant documents. However, the domestic courts had neither carried out any examination of the need for such a limitation, nor clarified the actual national security reasons in issue, as domestic law did not allow them to examine such issues of their own motion. The fact that a press release published by the Romanian Intelligence Service had contained more detailed factual information than that provided to the applicants during earlier proceedings contradicted the alleged need to deprive them of the specific information. Consequently, the Court had to exercise strict scrutiny with regard to the counterbalancing factors put in place.  The applicants had received only very general information about the legal characterisation of the accusations against them, while none of their specific acts which had allegedly endangered national security could be seen from the file. A mere enumeration of the numbers of legal provisions invoked could not suffice, not even a minima, to constitute adequate information about the accusations.  Moreover, a press release could not be an appropriate means of providing information with a level of specificity and precision that was adapted to the particular features of the dispute and to the scope of the parties’ procedural rights. Furthermore, the applicants had not been provided with any information about the key stages in the proceedings or about the possibility of accessing classified documents in the file through a specialised lawyer. As their lawyers did not have an authorisation to access classified documents, their mere presence before the domestic court, without any possibility of ascertaining the accusations against their clients, had not been capable of ensuring the latter’s effective defence. Finally, it was not clear whether the domestic courts had actually had access to all the classified information or verified the credibility and veracity of the underlying facts: the nature and the degree of their scrutiny did not transpire, at least summarily, from the reasoning of their decisions. Therefore, the mere fact that the expulsion decision had been taken by independent judicial authorities at a high level, without it being possible to establish that they had actually used the powers vested in them under Romanian law, did not suffice to counterbalance the limitations that the applicants had sustained in the exercise of their procedural rights.

In sum, and having regard to the proceedings as a whole as well as the afforded margin of appreciation, the limitations had not been counterbalanced in the domestic proceedings such as to preserve the very essence of the rights under Article 1 of Protocol No. 7.

Conclusion: violation (fourteen votes to three).

Article 41: EUR 10,000 to each applicant in respect of non-pecuniary damage. Claim in respect of pecuniary damage dismissed.

Country of Decision
Council of Europe
Court Name
CoE: European Court of Human Rights [ECtHR]
Case Number
Application no. 80982/12
Date of Decision
Country of Origin
Effective remedy