The legal question behind the headline
Does responsibility travel with the person who is transferred?
On September 4, 2026, migration ministers from Denmark, Germany, the Netherlands, Austria, and Greece met in Copenhagen and announced a common model for return hubs outside the European Union. Their stated objective is to secure an agreement with a non-EU country and begin transfers in 2027. No host state has been officially confirmed.
The crucial legal issue is not whether states may cooperate on returns. It is whether a state that decides, organizes, funds, or supervises a transfer can escape responsibility for foreseeable harm merely because that harm occurs beyond its own borders. International human-rights law provides strong reasons to answer: not automatically.
I. What Europe has actually agreed — and what remains unfinished
The political architecture for return hubs has moved quickly. On June 1, 2026, negotiators for the Council of the European Union and the European Parliament reached a provisional agreement on a new Return Regulation. On June 17, the European Parliament adopted its first-reading position by 418 votes to 218, with 30 abstentions.
The agreed framework allows arrangements with third countries for people subject to return decisions, provided those countries respect international human-rights standards and the principle of non-refoulement. Unaccompanied minors are excluded from such transfers under the agreed text. At the beginning of September, however, the Regulation still required the remaining formal steps at EU level before full legal effect.
This distinction matters. The political plan is concrete, but its operation will ultimately depend on the final legal framework, the terms of each bilateral arrangement, the country selected, the monitoring system, and the safeguards available to each person transferred.
II. Non-refoulement is not a logistical detail
The principle of non-refoulement is central to refugee and human-rights law. Article 33 of the 1951 Refugee Convention prohibits return to territories where a refugee’s life or freedom would be threatened, subject to the Convention’s own limited exception in Article 33(2). Separately, under Article 3 of the European Convention on Human Rights, the prohibition on exposing a person to a real risk of torture or inhuman or degrading treatment is absolute.
The European Court of Human Rights made the core logic clear in Soering v. United Kingdom (1989): a state may violate Article 3 by removing a person to another country where substantial grounds show a real risk of prohibited treatment. The state does not have to inflict the harm directly; responsibility can arise from knowingly exposing the person to the risk.
That principle became even more relevant to migration in Hirsi Jamaa and Others v. Italy (2012), where Italy was held responsible for returning intercepted migrants to Libya from the high seas. In M.S.S. v. Belgium and Greece (2011), the Court also rejected the idea that a state may rely mechanically on assumptions of safety while ignoring evidence of serious deficiencies in the receiving country.
A transfer can be lawful only if the destination is genuinely safe for the individual person — not merely described as safe in an agreement.
III. Extraterritorial jurisdiction: geography is not the whole test
Human-rights jurisdiction does not simply follow funding, nor does every state-supported activity abroad automatically fall under the European Convention. The legal question is more specific: whether the state exercises the type of authority, control, or power over persons or territory that engages its obligations.
Cases such as Loizidou v. Turkey and Al-Skeini and Others v. United Kingdom developed the doctrine of extraterritorial jurisdiction around effective control of territory and state-agent authority and control over individuals. In a return-hub context, the factual architecture therefore matters enormously: who orders the transfer, who sets the rules, who funds and supervises the facility, who controls release or onward movement, and what role European agents play on the ground.
State responsibility may also arise under general international law where a state aids or assists another state in committing an internationally wrongful act. Article 16 of the International Law Commission’s Articles on State Responsibility addresses that scenario when the assisting state knows the circumstances and the act would be internationally wrongful if committed by it.
The legal conclusion is not that every European-funded facility abroad is automatically attributable to Europe. It is that complex outsourcing arrangements do not make responsibility disappear; they create factual questions of control, knowledge, assistance, causation, and foreseeable risk that courts can examine.
IV. The precedents already show the litigation risk
In 2023, the UK Supreme Court held that the Rwanda scheme was unlawful because there were substantial grounds for believing that asylum seekers faced a real risk of refoulement. The lesson is not that all third-country arrangements are impossible, but that formal assurances cannot replace evidence of effective protection.
Italy’s offshore processing arrangement has repeatedly encountered judicial scrutiny over the legal classification of migrants and the use of “safe country” concepts. The experience shows that political design can move faster than judicial validation.
Early-warning legal checklist
Seven questions every return-hub agreement should answer
- Individual risk: Is safety assessed for the person, not only for the country in the abstract?
- Chain refoulement: What prevents onward removal to a country of persecution?
- Control: Which state decides transfer, confinement, release, supervision, and onward movement?
- Remedies: Can the individual effectively challenge transfer and conditions from the hub?
- Detention: Is deprivation of liberty necessary, proportionate, individually justified, and reviewable?
- Children and families: How will the best interests of the child and family unity be assessed?
- LGBTIQ+ risk: Does the safety assessment account for sexual orientation, gender identity, expression, sex characteristics, and actual conditions in the host state?
V. The LGBTIQ+ blind spot
A third country cannot be treated as equally safe for everyone. LGBTIQ+ applicants may have sought protection precisely because of persecution linked to sexual orientation or gender identity. A lawful assessment must therefore examine more than statutes on paper. It should consider policing practices, social violence, detention conditions, access to healthcare, the possibility of living openly, protection against hate crimes, and the risk of being sent onward.
From a legal and forensic psychology perspective, prolonged confinement in a country the person did not choose can also intensify trauma, uncertainty, isolation, and loss of support networks. Those factors are not automatic legal bars to transfer, but they can form part of an individualized evidentiary record on vulnerability, proportionality, and foreseeable harm.
VI. Why this is not only a European issue
Externalization is a broader migration-governance trend. Different states have explored arrangements in which asylum processing, detention, readmission, or removal occurs outside the transferring state’s ordinary territory. That makes the legal question globally relevant: when governments create distance between the decision-maker and the place where consequences occur, who remains accountable?
For governments, international organizations, employers, funders, and civil-society actors engaged with forced mobility, the practical answer is to treat third-country transfer as a due-diligence problem from the beginning, not only once litigation begins.
VII. Diane Rodríguez: expert analysis at the intersection of law, evidence, and vulnerability
Diane Marie Rodríguez Zambrano works at the intersection of international human-rights law, forced human mobility, strategic litigation, legal and forensic psychology, and LGBTIQ+ protection. She is an attorney and psychologist, President of Asociación Silueta X and of the Ecuadorian Federation of LGBT+ Organizations, founding partner of Rodríguez & Elías Law Firm, and the legal architect behind Ecuadorian Constitutional Court Ruling No. 66-18-IS/24.
Her expert work includes country-condition reports, individualized risk analysis, technical-legal support letters, and evidence-oriented assessments for international-protection cases. The value of that work lies in connecting legal standards with the actual profile of the applicant: identity, prior persecution, destination-country conditions, trauma, support networks, and the risk of refoulement or revictimization.
SEO FAQ
Return hubs, non-refoulement, and state responsibility
Can a European state avoid responsibility by sending someone to a non-EU return hub?
Not automatically. Responsibility depends on the transfer decision, foreseeable risk, the state’s degree of authority or control, the safeguards in place, and the applicable human-rights obligations.
Are the new return hubs already operating?
No. The five governments meeting in Copenhagen said they aim to secure a third-country agreement and begin transfers in 2027. No host country had been officially confirmed as of September 5, 2026.
Why do LGBTIQ+ applicants require a differentiated safety assessment?
Because legal status, policing, social hostility, detention conditions, healthcare access, and protection from violence can create risks that are specific to sexual orientation, gender identity, gender expression, or sex characteristics.
Sources and legal authorities
- Council of the EU — provisional agreement on the Return Regulation, June 1, 2026
- European Parliament Legislative Observatory — Parliament first-reading adoption, June 17, 2026
- European Court of Human Rights: Soering v. United Kingdom; M.S.S. v. Belgium and Greece; Hirsi Jamaa and Others v. Italy; Al-Skeini and Others v. United Kingdom.
- UK Supreme Court, AAA (Syria) and others v. Secretary of State for the Home Department, 2023.
- International Law Commission, Articles on Responsibility of States for Internationally Wrongful Acts, 2001.
Abg. Psic. Diane Rodríguez, Mgs. Consultora de Derechos Humanos y Salud Mental 