The Grand Chamber of the European Court of Human Rights has held that France breached Article 3.2 of Protocol 4 due to the lack of explanation for and independent scrutiny of decisions not to repatriate two French nationals living in camps controlled in north east Syria. The case is HF and Others v France (14 September 2022, Application Nos 24384/19 and 44234/20).

Whilst the decision has been described in the mainstream media as “a blow to the British government” it is worth noting that the UK has signed but not ratified Protocol 4, meaning that it cannot be relied upon in respect of British nationals in the camps.

The applicants in the case, HF and MF, were the parents of two daughters who left France for Syria with their partners, to travel to territory controlled by Daesh forces. HF’s daughter gave birth to two children in Syria in 2014 and 2016; her partner died in 2018. MF’s daughter gave birth to one child in Syria in 2019. The children and their mothers were French nationals. After Daesh lost control of its territory to Kurdish forces (from 2017), the applicants’ daughters and their children were amongst those arrested and taken to the al-Hol and Roj camps in north east Syria. These camps were under the military supervision of Kurdish forces and the Autonomous Administration of North and East Syria.

The International Committee of the Red Cross regional director described the conditions in the camps as “apocalyptic”. Other reports described children suffering from malnutrition, dehydration, war injuries and post-traumatic stress; they were at risk of violence and sexual exploitation; weather conditions were extreme; detention conditions inhumane and degrading, with detainees exposed to torture; and violence in the camps were pervasive.

The applicants argued for the repatriation of their daughters and grandchildren in France. Their applications were dismissed by the government and the French domestic courts. In MF’s case, the Paris Administrative Court decided that it didn’t have jurisdiction to decide on repatriation, because it was inextricably linked with France’s international relations.

In July 2022 the French government reported that it had organised the return to its territory of 35 minors who had French nationality and 16 mothers. This did not include the applicants’ daughters and grandchildren.

The applicants’ complaints under article 3 of the European Convention on Human Rights were declared inadmissible on the basis that their family members did not fall within France’s jurisdiction, meaning that France had no responsibility for the ill-treatment they were subjected to in the camps. France was not exercising any effective control over the territory of north eastern Syria and had no authority or control over the applicants’ family members. The domestic proceedings did not change the position. Neither domestic nor international law required a country to repatriate its nationals and the Convention did not guarantee them a right to diplomatic protection.

The applicants presented arguments based on Article 3 of Protocol 4 of the Convention, which states:

“1. No one shall be expelled, by means either of an individual or of a collective measure, from the territory of the State of which he is a national.

2. No one shall be deprived of the right to enter the right to enter the territory of the State of which he is a national.”

The court found that nationality alone was not sufficient to establish France’s jurisdiction. If the applicants presented at the French border, this would have been sufficient to engage jurisdiction. But restricting the scope of the provision to people presenting at the border meant that the provision would be deprived of its effectiveness. The intention to prohibit the exile of nationals from a country’s territory should consider the modern world where international mobility is more commonplace.

In this case, there were a number of exceptional features of the family’s situation and the time they had already spent in the camps that meant that France’s jurisdiction was engaged. Specific requests for repatriation and assistance had been made; the family members were facing real and immediate risks to their lives and well-being in the camps; they were unable to leave the camps and travel to France without the assistance of the French authorities; and the Kurdish authorities in control had indicated their willingness to hand over French nationals in the camps.

The court made clear that only nationals of the country concerned can rely on Article 3.2 of Protocol 4 in order to enter its territory (meaning, for example, that it is of no assistance to anyone in the camp who has been deprived of their nationality). It also made clear that the provision did not give a general right to repatriation for the benefit of nationals who are outside of a country’s borders. However, the court did give certain positive obligations to nationals to ensure that their right to enter the territory was practical and effective and where, if the country did nothing, the individual would be left in a situation comparable to exile.

The court held that due to the exceptional circumstances — the conditions in the camps, the relationship between the Kurdish forces and France, the repatriation of French nationals in similar cases — Article 3.2 of Protocol 4 placed a duty on the French authorities to ensure that the decision-making processes around the requests for repatriation had appropriate safeguards against arbitrariness. Any rejection of a repatriation request must be followed with an independent examination by an independent body, separate from the executive (not necessarily the judiciary) which has the power to rule on the lawfulness of the decision that was made. The review should also ensure that the authorities had taken account of the best interests of any children involved.

In the present case the applicants had been provided with no explanation for the decisions and the French courts had ruled that they had no jurisdiction to consider any challenges to the rejected repatriation requests. This had deprived the applicants of any possibility of meaningfully challenging the grounds relied on by the authorities, as well as verifying that those grounds were not arbitrary. In this case the violation of Article 3.2 of Protocol 4 constituted justification for non-pecuniary damages.

The French authorities will now presumably have to reconsider the applicants’ requests for repatriation and, if the rejections are maintained, provide some form of independent review or appeal process.

In a review published in 2004, the UK government decided against ratifying Protocol 4, expressing concern that Articles 2 and 3 of Protocol 4 could be taken to confer rights in relation to passports and a right of abode of British nationals who do not currently have that right. If ratification is considered again, this judgment will no doubt cited as an additional argument against ratification.