by Arjen Leerkes and Albert Kraler
On 22 May 2025, a group of EU Member States – including Italy, Denmark, and Poland – published an open letter expressing frustration about the legal and practical challenges of deporting non-citizens convicted of crimes. The letter calls for a less “limiting” interpretation of European human rights obligations, suggesting that current jurisprudence unduly restricts deportations – even of serious offenders – and that this has consequences for public safety and social trust.
While states have a responsibility to ensure public safety for citizens and non-citizens alike, the letter raises serious concerns. It signals a willingness to undermine human rights protections and judicial independence – two cornerstones of European cooperation and integration. It also misrepresents the role of the European Court of Human Rights (ECtHR) in deportation cases. As researchers in the field of migration and crime, we feel compelled to correct these misrepresentations and contribute to a more balanced, fact-based debate.
What Courts Actually Do
European and national courts do not categorically prevent the deportation of non-citizens convicted of crimes. On the contrary, the ECtHR recognises that states have the sovereign right to control the entry and removal of non-citizens, including deporting them on grounds of public order and national security (Article 8 §2 ECHR).
In fact, the Court upholds states’ right to deport criminal non-citizens in the majority of cases, especially where the offence is serious, repeated, or where the individual has limited social or family ties in the host country. In Külekci v. Austria, for example, the ECtHR allowed the removal of a long-term resident with multiple convictions, citing Austria’s legitimate interest in protecting public safety.
At the same time, courts are tasked with safeguarding individual rights under the European Convention on Human Rights. They pay particular attention to:
- Articles 2 and 3 ECHR, which prohibit deportation to countries where there is a real risk of death, torture, or inhuman or degrading treatment.
- Article 8 ECHR, which protects the right to private and family life, particularly when children are involved or when an individual is fully integrated into the host society.
Articles 2 and 3 offer absolute protection; Article 8 does not. Instead, it requires a case-by-case balancing of public safety interests against the individual’s personal and family circumstances. In Maslov v. Austria, the Court ruled against deportation of a young offender who had spent most of his life in Austria, demonstrating how integration and family ties can outweigh criminal records in specific cases.
Irregular Migration and Political Signalling
The letter also focuses on migrants in an irregular situation – those without valid residence permits – and implies that human rights law makes it too difficult to deport them. It conflates three distinct categories:
- Irregular migrants with criminal convictions,
- Irregular migrants without convictions,
- Legally residing migrants with criminal convictions.
This conflation distorts both the scope and function of human rights protections. In reality:
- Irregular migrants with criminal records can generally be deported under EU and national law.
- The main barriers to removal are practical, not legal: lack of cooperation from countries of origin, identification issues, administrative delays, and diplomatic constraints.
- Human rights protections like non-refoulement apply only in clearly defined and exceptional circumstances.
By suggesting otherwise, the letter fuels a misleading narrative that frames fundamental rights as an obstacle to public safety. It also delegitimises alternative policy tools such as regularisation, which are vital for managing irregular migration and promoting social cohesion. Most irregular migrants are not involved in crime, and framing them as such undermines rational policy discussion.
The Need for Legal Clarity and Policy Honesty
Human rights law does not prohibit the deportation of all non-citizen crime convicts. What it does require is a proportionate, individualised assessment – one that considers security concerns alongside long-standing residence, family ties, and the potential harm of return.
Calls to reinterpret these protections risk eroding legal certainty, judicial independence, and the principled foundation of return policies. They also obscure the real bottlenecks in Europe’s return systems, which are primarily administrative and diplomatic.
We urge policymakers to:
- Accurately reflect the role of courts and human rights law,
- Avoid conflating different categories of migrants in public communication, and
- Recognise that rights-based return policies are both legally sound and operationally feasible – provided they are implemented with honesty, clarity, and institutional cooperation.
Acknowledgements: This blog builds on discussions within a working group of the FAiR, GAPs, MIrreM, and MORE research consortia. We thank colleagues for their critical feedback. The views expressed are those of the authors and do not necessarily reflect those of all consortium members or the European Union.