Asylum seekers as vulnerable applicants – The CJEU’s approach to causation and evidence in the Frontex appeal judgments

December 18, 2025 marked the publication of two eagerly awaited attraction judgments by the Grand Chamber of the Court docket of Justice of the EU (CJEU). In two instances regarding elementary rights safety within the context of Frontex operations – WS and Others v Frontex and Hamoudi v Frontex, the Grand Chamber put aside the respective Normal Court docket orders which had beforehand dismissed the candidates’ claims. Within the judgments, the Grand Chamber notably took a unique strategy to assessing the candidates’ state of affairs. Diverting from the Normal Court docket’s extra technical interpretation, it explicitly acknowledged the weak state of affairs of asylum seekers. Whereas it stays to be seen whether or not the candidates’ claims will in the end succeed, the Court docket’s shift in perspective reframes Frontex’s position in alleged pushback operations, enabling a extra real looking evaluation of the sensible realities confronted by asylum seekers.

Information and Normal Court docket judgments

Each claims have been introduced as an motion for damages beneath Article 268 TFEU. WS and Others involved a return operation throughout which a Syrian household was returned from Greece to Türkiye. They finally left for Iraq the place they settled. After lodging a number of unsuccessful complaints with the Frontex Basic Rights Officer, the candidates turned to the CJEU. Of their declare, they argued that Frontex was answerable for the harm suffered because of their return to Turkiye and that each one three cumulative circumstances for non-contractual legal responsibility in accordance with Article 340 TFEU, particularly a sufficiently severe breach of a rule of legislation supposed to confer rights on people, precise harm suffered, and an present causal hyperlink between the harm and Frontex’s conduct, have been fulfilled.

The Normal Court docket determined to restrict its evaluation to the existence of a causal hyperlink, rejecting the candidates’ declare in brief and concise judgment. It discovered, firstly, that Frontex’s mandate was merely to help the Member States, to not assess the deserves of the candidates’ return choices or purposes for asylum, which stays a Member State competence (paras 64-66). Furthermore, the candidates’ relocation to Iraq and the prices occurred subsequently resulted primarily from the candidates’ personal alternative which might in any case break the causal hyperlink (paras 67-69). Accordingly, it discovered that it was not “however for” Frontex’s conduct that the harm occurred (para 71).

Each judgments have been closely criticised by commentators. It was extensively argued that the Court docket’s strategy to causation and the burden of proof respectively had been too restrictive, diverting consideration from the true query of Frontex’s elementary rights obligations within the Mediterranean. Concerning WS and Others, commentators criticised the Court docket’s give attention to the argument that Frontex was beneath no obligation to confirm the deserves of the candidates’ return choices and that subsequently, there was no causal hyperlink. This, they argued, did not recognise the truth of Frontex’s involvement in return operations, permitting the company to flee legal responsibility (see, e.g., right here and right here). Hamoudi was largely criticised for its excessive threshold for the availability of proof, with commentators pointing to the impossibility of accomplishing the required proof in conditions such because the applicant’s (see, e.g., right here, right here and right here). Taken collectively, and together with different unsuccessful instances in opposition to Frontex, these judgments have been largely seen as problematic and even symbolic of a bigger “human rights duty hole” (see right here).

The Grand Chamber’s tackle causation

Each instances have been appealed earlier than the Grand Chamber which put aside the Normal Court docket’s orders. In WS and Others, the Court docket sided with Advocate Normal Ćapeta who had argued that Frontex was beneath an obligation to confirm whether or not there was a return choice earlier than conducting such an operation. By agreeing along with her, the Grand Chamber rejected the Normal Court docket’s argument that there was no causal hyperlink as a result of Frontex was beneath no obligation to confirm the deserves of the return choices. It acknowledged that, whereas Frontex didn’t have the competence to evaluate the deserves, it had an obligation to test whether or not a return choice existed. The Court docket rejected Frontex’s arguments that this may violate the ideas of conferral and honest cooperation for the reason that first was not infringed and the second couldn’t have the impact of permitting Frontex to bypass particular obligations conferred on it (paras 105-108). Thus, whereas it’s for the Normal Court docket to use the authorized assessments to the details of the case, the Grand Chamber acknowledged the potential for a causal hyperlink.

Moreover, the Court docket reacted to the argument that the causal hyperlink can be damaged by the candidates’ choice to relocate to Iraq whereas beneath the non permanent Turkish journey allow. It discovered that, whereas the causal hyperlink can in idea be damaged by the candidates’ conduct, it have to be established in concreto whether or not this was the case, which the Normal Court docket had did not do. Importantly, the Court docket said that such an evaluation should “tak[e] into consideration all of the related circumstances characterising the state of affairs of the adversely affected individual” (para 154), acknowledging that weak candidates can’t be required to make purely rational choices in the identical means as financial actors (para 155).

In her Opinion on the case, the Advocate Normal had additionally mentioned the potential for joint and a number of other legal responsibility of Frontex. Pointing to earlier case legislation, notably to the Court docket’s current judgment in Kočner v Europol, the Advocate Normal had acknowledged this situation as a viable choice since each Greece and Frontex are beneath a separate responsibility to make sure elementary rights compliance (paras 89-93). In its judgment, the Grand Chamber didn’t particularly deal with this query as this may have amounted to a brand new plea in legislation which the candidates are prohibited from elevating at this level within the proceedings (paras 82-87).

The Grand Chamber’s tackle the burden of proof

The attraction in Hamoudi targeted on whether or not the Normal Court docket’s strategy to assessing the proof supplied by the applicant had been too strict. In his Opinion, Advocate Normal Norkus had argued in favour of a reversal of the burden of proof in conditions involving weak candidates. He had instructed three cumulative circumstances to realize this reversal, particularly that the applicant brings prima facie proof of the violations, a transparent and structural asymmetry relating to the events’ entry to the proof, and {that a} failure to reverse the burden of proof would deprive the applicant of their elementary rights (paras 57-60). The Grand Chamber adopted the Advocate Normal’s Opinion in acknowledging a doable reversal of the burden of proof (para 106). It didn’t apply the circumstances instructed however as a substitute targeted solely on the existence of prima facie proof. Noting that “the one related criterion for the aim of assessing the probative worth of proof lawfully adduced pertains to its credibility” (para 114), it discovered the proof supplied by the applicant sufficiently credible and constant to represent prima facie proof (para 152).

Each judgments gave the respective candidates causes to have a good time. By setting apart the Normal Court docket orders, the Court docket opened the potential for a beneficial remaining judgment. Moreover, in referring the instances again to the Normal Court docket, the Grand Chamber agreed with a number of of the candidates’ arguments, notably forcing the Normal Court docket to rethink its tackle causation and the relevant burden of proof. First reactions to the judgments have subsequently been optimistic (see right here, right here and right here), applauding the Grand Chamber’s new strategy to Frontex’s accountability.

Acknowledging the candidates’ weak place

The Grand Chamber judgments learn otherwise from the Normal Court docket instances. As an alternative of reviewing the authorized points in a purely technical method, each attraction judgments embrace empathetic passages which actively focus on the candidates’ weak state of affairs. In its dialogue of the causal hyperlink in WS and Others, the Grand Chamber famous that

“whereas totally rational decision-making could also be anticipated of financial operators […] such rational behaviour can’t be elevated to the rank of a criterion of normal utility, particularly when pure individuals are involved. […] Asylum seekers could also be notably weak by purpose of their migration and the traumatic experiences they’re more likely to have endured previous to that migration” (para 155-156, emphasis added).

The Grand Chamber contrasted the weak place of these arriving within the EU seeking asylum with the place of different actors who could be in a greater place to totally take into consideration the potential penalties of their actions. This strategy allowed the Grand Chamber to reach on the conclusion that the candidates’ choice to relocate to Iraq couldn’t be thought-about their very own alternative however could possibly be the results of Frontex’s involvement within the pushback.

In an identical vein, in Hamoudi, the Grand Chamber mentioned the applicant’s place as a part of its evaluation of the proof. These issues have been the results of the applicant’s argument that his place warranted a reversal of the burden of proof the place Frontex was in possession of the primary proof, which the Advocate Normal had supported. In its judgment, the Grand Chamber acknowledged that

“[a] pushback operation corresponding to that’s characterised by the numerous vulnerability of the individuals topic to it. […] [T]hose individuals are, on the time of the details, able which makes it very troublesome for them to gather proof for the aim of proving such details, and even excludes any chance of their doing so in any respect” (para 88, emphasis added).

The Grand Chamber in contrast the applicant’s weak place with Frontex’s involvement within the incident, discovering the latter to be in a extra suited place to offer proof. Emphasising Frontex’s elementary rights obligations, it reached the conclusion {that a} reversal of the burden of proof could be justified (paras 90-102). The Grand Chamber thereby diverted from the Normal Court docket’s strategy which had not differentiated between the applicant’s and Frontex’s potentialities of offering proof.

The Court docket’s express give attention to the candidates’ weak place permits for a extra real looking and humane evaluation of the state of affairs encountered by asylum seekers within the Mediterranean. That is vital not solely as a result of it paints a extra correct image of the realities encountered by these arriving within the EU. Acknowledging the candidates’ vulnerability had a considerable impact on how the Court docket interpreted the authorized assessments at subject within the judgments – particularly, the existence of causality and the burden of proof. It’s in fact nonetheless unclear whether or not the 2 instances mentioned shall be profitable since each of them have been referred again to the Normal Court docket for an evaluation of the details. It must be seen how the Normal Court docket assesses the candidates’ claims in gentle of the Grand Chamber’s issues and to what extent the Grand Chamber continues its extra thoughtful strategy in future instances. Extra case legislation is thus wanted to evaluate the affect of such issues on Frontex’s authorized accountability in the long run. Nonetheless, the judgments represents a major step ahead. It can be crucial that the Court docket continues assessing Frontex’s non-contractual legal responsibility in gentle of factual energy imbalances. Solely then can it be certain that the foundations on non-contractual legal responsibility have the impact they have been supposed to have – to carry EU our bodies responsible for the harm brought on by their actions.

Lea Schubert is a PhD researcher on the Hertie College Berlin and the College of Groningen. Her analysis explores authorized accountability relationships in EU exterior motion with a selected give attention to the Widespread Overseas and Safety Coverage, the Space for Freedom, Safety and Justice, and the Widespread Industrial Coverage.