In yesterday’s Grand Chamber judgment, the court held by a majority that there had been a violation of Article 3 § 2 of Protocol No. 4 (“no one shall be deprived of the right to enter the territory of the State of which he is a national”) to the European Convention on Human Rights.

France has been ordered to re-examine the applicants’ requests and ensure appropriate safeguards against arbitrariness.

The case concerned the refusal to grant the applicants’ requests for the repatriation by the French authorities of their daughters and grandchildren, who travelled with their partners to live in territory controlled by Islamic State (IS) and are now being held in camps in north-eastern Syria run by the opposition Syrian Democratic Forces (SDF).

The applicants complained that the refusal exposed their family members to inhuman and degrading treatment in breach of Article 3 of the Convention and entailed a violation of their right to enter national territory under Article 3 § 2 of Protocol No. 4.

The court began by finding that the family members in question were not within France’s jurisdiction for the purposes of the Article 3 complaint but that in the particular circumstances of the case there was a jurisdictional link between them and France, within the meaning of Article 1 of the Convention, as regards the complaint under Article 3 § 2 of Protocol No. 4.

On the merits, the court first found that the French women and their children did not enjoy a general right to repatriation on the basis of the right under Article 3 § 2 of Protocol No. 4 to enter national territory.

It went on to explain that the protection afforded by that provision might, however, give rise to positive obligations of the State in exceptional circumstances relating to extraterritorial factors, such as those which endangered the health and life of the nationals in the camps, in particular the children.

In such a situation, in fulfilling its positive obligation to enable the effective exercise of the right to enter its territory the State had to afford appropriate safeguards against the risk of arbitrariness in the relevant process.

There had to be a review by an independent body of the lawfulness of the decision denying the request for repatriation, whether the competent authority had merely refused to grant it or had been unsuccessful in any steps it had taken to act upon it.

Such review should also enable the person concerned to be made aware, even summarily, of the grounds for the decision and thus to verify that those grounds had a sufficient and reasonable factual basis and that there was no arbitrariness in any of the justifications that might legitimately be relied upon by the executive authorities, whether compelling public interest considerations or any legal, diplomatic or material difficulties.

Where a request for repatriation was made on behalf of minors, the review had to ensure in particular that the competent authorities had taken due account of the children’s best interests, together with their particular vulnerability and specific needs.

In the present case, the court found that there were exceptional circumstances, as regards the situation of the daughters and grandchildren, which triggered the obligation to afford safeguards against arbitrariness in the decision-making process.

However, the absence of any formal decision on the part of the competent authorities to refuse to grant the applicants’ requests, and the jurisdictional immunity invoked by the domestic courts in respect of the matter, had deprived them of any possibility of meaningfully challenging the grounds relied upon by those authorities and of verifying that those grounds were not arbitrary.

The court concluded that the examination of the requests for repatriation made by the applicants on behalf of their family members had not been surrounded by appropriate safeguards against arbitrariness and that there had been a violation of Article 3 § 2 of Protocol No. 4.

The court added that in executing the judgment the French government would be expected to promptly re-examine the applicants’ requests and, in doing so, afford them appropriate safeguards against any arbitrariness.