All 46 Member States of the Council of Europe adopted the Chișinău Declaration on 15 May 2026. This joint Declaration is formulated in diplomatic terms, but it also sends a clear message to the European Court of Human Rights (ECHR).
§ 18 affirms the right of States to determine their own immigration policies, § 20 denounces situations in which States are unable to expel foreign criminals, § 33 calls on the Court to respect national legal systems and traditions, § 34 promotes national borders against massive immigration and § 46 encourages new approaches against immigration, such as the ‘return hubs’.
All European governments have now identified the ECHR as the major obstacle to the expulsion of foreign criminals. Its judges rely on several provisions to block expulsions. Article 8 of the European Convention on Human Rights is emblematic of how the Court interprets the Convention.
According to Article 8: ‘Everyone has the right to respect for his private and family life, his home and his correspondence.’ Three stages can be identified in the interpretation of this provision.
In the first decades, the case law was faithful to the intention of the drafters of the Convention. The first ECHR judgments protected personal and family privacy: family relationships, correspondence, sexuality in the private sphere, and so on.
Until 1985, the Court had never reviewed the expulsion of a foreigner. Abdulaziz, Cabales and Balkandali v the United Kingdom (1985) marked the beginning of a second stage in the Court’s case law. The ECHR held that the expulsion of foreigners could interfere with Article 8 of the Convention. The ECHR thus declared itself competent to review an expulsion.
In 1988 the ECHR issued its first condemnation of a State for an expulsion: Berrehab v the Netherlands. From that point onward, the Court began developing guiding principles under Article 8. The two key judgments are Boultif v Switzerland (2001) and Üner v the Netherlands (2006). Together, they establish ten guiding principles. These principles are highly individualistic: they focus on foreign criminals and on their close relations.
In recent years, the ECHR added a new legal rule, a new human right: the right for expelled foreigners to come back to Europe at the end of their re-entry ban. This marks the third, and the most controversial, stage of the Court’s case law.
This new right to come back emerged in a series of cases all against Denmark, because this State had an unlimited re-entry ban. In 2018, for the last time, the ECHR upheld such a ban. It was the Levakovic judgment, delivered unanimously. Three years later, there was a complete reversal of the Court’s case law. In 2021 the Court delivered two judgments: Abdi and Savran [Grand Chamber]. The Court held that unlimited re-entry bans violated Article 8. Denmark was forced to change its legislation. Re-entry bans now had to be temporary.
Then, in 2024, through three judgments against Denmark—Sharafane, Savuran, and Al-Habeeb—the Court went even further. Not only must re-entry bans be short, limited to a few years, but a new condition now applies: the expelling State must prove that the foreigner will have a real possibility of coming back. If the State cannot demonstrate this possibility of coming back once the ban has expired, the ECHR considers that the expulsion violates Article 8.
This recent development of the case law led to open letters from governments, gathered by Italy and Denmark, and ultimately to the Chișinău Declaration of 15 May 2026.
At the same time, the issue of the expulsion of foreigners is also being discussed at the level of the European Union. The European Parliament has adopted its position at first reading on the ‘Return Regulation’. Some amendments, passed thanks to a coalition of the four right-wing groups, were not supported by the European Commission. Nevertheless, the European Parliament notably succeeded in securing the possibility of expelling foreign criminals with unlimited re-entry bans.
‘The European Parliament notably succeeded in securing the possibility of expelling foreign criminals with unlimited re-entry bans’
If the Return Regulation is adopted without any new amendments, it will allow unlimited re-entry bans. It opens the way to a possible conflict between the two European legal orders. The ECHR could review the Return Regulation and find that it violates Article 8.
If States want to change the Court’s case law, they must compel the Court to do so. The Chișinău Declaration is not enough. It is a political declaration, with no legal force.
Moreover, States cannot simply ignore ECHR judgments. The Court’s case law is first and foremost applied by national judges. governments face not only the ECHR itself, but also all domestic courts applying the Convention.
A formal revision of the Convention seems necessary. The best option would be to amend Article 8 or to limit the Court’s interpretative role, but such reforms are unrealistic. They would indeed require the unanimity of the Member States.
Another option would be to adopt a specific protocol on immigration and security. This decision would require a two-thirds majority at the Committee of Ministers, and then this protocol would apply only to States that ratify it. Such a protocol could help, but it would not guarantee that the ECHR would change its case law. If the ECHR does not change its approach on expulsion, governments must also consider withdrawing from the European Convention on Human Rights.
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