1.Introduction

The terminology used at the European Court of Human Rights in Strasbourg (the “ECtHR” or “the Court”) has not generated much literature (but see Brannan 2013Brannan, James 2013 “Coming to Terms with the Supranational: Translating for the European Court of Human Rights.” International Journal for the Semiotics of Law 26(4):909–925. ; Peruzzo 2019Peruzzo, Katia 2019 National law in supranational case-law: A linguistic analysis of European Court of Human Rights judgments in English. Trieste: Edizioni Università di Trieste.; Weston 2005Weston, Martin 2005 “Characteristics and constraints of producing bilingual judgments: the example of the European Court of Human Rights.” In Jurilinguistics: between Law and Language, edited by Jean-Claude Gémar and Nicholas Kasirer, 445–459. Brussels: Bruylant.), yet this is a subject which goes to the heart of the effectiveness of its case-law. Any use of terms that is inaccurate, confusing, or even incomprehensible, would certainly prevent it from conveying its findings effectively. Criticism of the Court in recent years has partly related to the quality of its case-law, e.g. “lack of clarity, inconsistencies, misunderstanding national law or national circumstances” (Lambrecht 2016Lambrecht, Sarah 2016 “Assessing the Existence of Criticism of the European Court of Human Rights.” In Criticism of the European Court of Human Rights, edited by Patricia Popelier, Sarah Lambrecht, Koen Lemmens, 505–553. Cambridge: Intersentia. , 511–12). Proper use of terminology, albeit not the only factor, is crucial in providing the requisite clarity and consistency and also in showing that diverse legal traditions have been understood. The supranational language (in English and/or French) of the Court’s assessment is largely based on formulations which may have been used for decades and whose features include terms from the European Convention on Human Rights (the “ECHR” or the “Convention”), jurisprudential creations and generic wording. By contrast, any terminology from the domestic (i.e. national) law examined in a given case will inevitably be culture-bound and will often require translation; such terms can be found mainly in the “facts” and “relevant domestic law” parts of a judgment.

This Chapter will look at the terminological spectrum, ranging from national specificities (and how they are translated) to the mandatory use of the Court’s autonomous concepts and other international law terms, based on examples from the field of “expulsion” (without extending to other aspects of migration). After some general considerations it will thus deal first with the domestic-law terminology (primarily in English and French, but with reference to a few other, “non-official”, languages), followed by the supranational terminology used by the Court, from its “own” Convention or other international instruments. The judgments cited have been selected purely by way of illustration, without proceeding from any systematic corpus-based analysis, with an emphasis on contextualisation. It is submitted that the case-law on “expulsion” provides some representative examples of the supranational/domestic dichotomy in use of terminology by the Court’s judges, lawyers and translators, and demonstrates the importance of making proper and accurate distinctions between closely related and potentially overlapping terms. While terminological variation (the deliberate use of various terms as if they were synonymous) may be common in specialized communication (Fernández-Silva and Kerremans 2011Fernández-Silva, Sabela and Koen Kerremans 2011 “Terminological Variation in Source Texts and Translations: A Pilot Study.” Meta 56(2):318–335. , 332), it carries a risk of misunderstanding in the context of expulsion-related judgments.

2.Overview of the use and translation of terminology at the ECtHR

With the passage of time, the Court has built up a significant body of case-law from which its drafting lawyers will quote extensively, copying and pasting whole passages from previous judgments. This practice has been criticized for producing “formulaic” language (Merrills 1993Merrills, John 1993 The Development of International Law by the European Court of Human Rights. Manchester: Manchester University Press., 36), but has the merit of ensuring some consistency in terminology. Divergence in wording is not uncommon, however, largely for reasons relating to adaptation to a particular case or simply improvement in a subsequent judgment. Another reason is that, over the years, the Court’s key findings have repeatedly been translated from one official language into another and back again, thus increasing the risk of distortion.

In addition to the specific number of Convention-based terms which are characterized as “autonomous”, the Court more generally seeks to overcome the problem of cultural and legal diversity by, in its own reasoning and findings, using generic terminology that is applicable to a variety of national legal traditions. The more established wording used by the Court in its assessment of a case has been described as a form of “linguistic precedent” Weston (2005Weston, Martin 2005 “Characteristics and constraints of producing bilingual judgments: the example of the European Court of Human Rights.” In Jurilinguistics: between Law and Language, edited by Jean-Claude Gémar and Nicholas Kasirer, 445–459. Brussels: Bruylant., 458). This rather loose description, relevant to both drafting and translation, can be said to refer to certain phrases and expressions, usually found in the formulation of general principles (but not direct quotations), which have become enshrined in the case-law even though other wording would have been possible or (in some cases) desirable. Any divergence therefrom may cause undue inconsistency and confusion. Although the Court is not bound by its own precedent, only very rarely does it depart from previous findings (Brannan 2018Brannan, James 2018 “Specificities of Translation at the European Court of Human Rights: Policy and Practice.” In Institutional Translation for International Governance, edited by Fernando Prieto Ramos, 170–180. Oxford: Bloomsbury., 178–79); it more commonly consolidates existing case-law by resolving ambiguities or apparent inconsistencies. Thus, especially in a Grand Chamber judgment, it may use a certain number of new formulations, but is more likely to reiterate or nuance previous wording. The expressions used to denote some of the Court’s key doctrines are examples of such “linguistic precedent”: margin of appreciation, living instrument, positive obligations; and those closely related to the finding or not of a violation: pressing social need, strike a fair balance, or the principle that rights must be practical and effective, not theoretical and illusory.

In many of the Court’s judgments, the terminology adopted in other international instruments or by other international bodies will also have to be followed. A key principle of the case-law is that the Convention “cannot be interpreted and applied in a vacuum”.11.See Nada v. Switzerland ([GC] 12/09/2012), § 169. In Hirsi Jamaa and Others v. Italy ([GC] 23/02/2012, § 171) the Court states that its sources of interpretation encompass “any relevant rules and principles of international law applicable in the relations between the Contracting Parties”. In the field of migration the Court frequently refers, for example, to the work of the UNHCR or of the International Law Commission (ILC). There is a degree of terminological “cross-fertilisation”, as other international bodies may in turn be influenced by the Court: in Khlaifia and Others v. Italy ([GC] 15/12/2016, § 245) it is stated that the ILC in defining collective expulsion was “informed by the Court’s case-law”. The Court should, of course, pay particular attention to the terminology adopted by the Council of Europe: one example being the use of irregular migrant (as opposed to illegal immigrant, etc.), as recommended by its Parliamentary Assembly.22.See Resolution 1509 (2006) of the Council of Europe Parliamentary Assembly, point 7: irregular migrant is “more neutral and does not carry … the stigmatisation of the term ‘illegal’”. However, the Court has not always been consistent in this usage. See also Bauder 2014Bauder, Harald 2014 “Why We Should Use the Term ‘Illegalized’ Refugee or Immigrant: A Commentary.” International Journal of Refugee Law 26(3):327–332. . It will also often have recourse to the travaux préparatoires as a supplementary means of interpretation of the Convention or its Protocols; for example the “Explanatory Reports” mentioned below.

Turning to the translation of terminology, it should be explained that, while the majority of judgments are today monolingual, in English or French (the Court’s two official and working languages), certain judgments and decisions are translated (by in-house translators) from one official language to the other, especially in Grand Chamber cases, but also in a relatively small number of Chamber cases. Translations of case-law into “non-official” languages can be found in the Court’s HUDOC database but they are produced externally (see Brannan 2018Brannan, James 2018 “Specificities of Translation at the European Court of Human Rights: Policy and Practice.” In Institutional Translation for International Governance, edited by Fernando Prieto Ramos, 170–180. Oxford: Bloomsbury., 173–74) and will not be referred to in this study.

Like other international organisations, the Court uses terms “designating shared concepts created in the international system and recognized as established terminology within [its] specific scope of competence” or “previously existing in some jurisdiction or legal tradition and borrowed to be used with a shared meaning in the international system” (Prieto Ramos 2014Prieto Ramos, Fernando 2014 “Parameters for Problem-Solving in Legal Translation: Implications for Legal Lexicography and Institutional Terminology Management.” In The Ashgate Handbook of Legal Translation, edited by Le Cheng, King Kui Sin & Anne Wagner, 121–134. Farnham: Ashgate., 128); it also uses terminology designating concepts and institutions whose relationship with the original national legal system must remain evident. However, these distinctions can become blurred in the judgments of an international court and a problem arises when a polysemic term has to be translated differently depending on the context (whether supranational or national); the different possible translations of the French words expulsion and refoulement are cases in point.

3.Relevance and issues of expulsion-related terminology

It is the Court’s settled case-law that “Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens” (Hirsi Jamaa and Others, cited above, § 113), this being a principle which dates back to 1892 (Arlettaz 2018Arlettaz, Fernando 2018 “Expulsions collectives : définitions et portée de leur interdiction dans la jurisprudence de la Cour européenne des droits de l’homme.” Canadian Yearbook of International Law 56:58–97. , 59). Expulsion is prohibited, however, where it has resulted in, or would entail, a violation of Articles 2, 3, 6 or 8 of the ECHR. As for procedural rights during the related proceedings, specific situations are dealt with in Protocols 4 and 7 to the Convention. Detention for “unauthorised entry” into a country or pending “deportation” is permitted under Article 5 § 1 (f) provided it is “lawful” (Sudre 2019Sudre, Frédéric 2019 Droit européen et international des droits de l’homme. 14th edn. Paris: Presses Universitaires de France., 943). Under all these Articles, expulsion-related measures have frequently given rise to applications before the Court (sometimes combined with requests for interim measures); from 2011 to 2020 this was the principal subject-matter of 18 out of 174 Grand Chamber cases, particularly in connection with the migration crisis in Southern and Eastern Europe and related asylum issues (e.g. M.S.S. v. Belgium and Greece (21/01/2011), Hirsi Jamaa and Others v. Italy (23/02/2012), F.G. v. Sweden (23/03/2016), Paposhvili v. Belgium (13/12/2016), Khlaifia and Others v. Italy (15/12/2016), Ilias and Ahmed v. Hungary (21/11/2019), and N.D. and N.T. v. Spain (13/02/2020)).33.See, among other relevant Guides and Factsheets, the Court’s “Case-Law Guide” on Immigration https://​echr​.coe​.int​/Documents​/Guide​_Immigration​_ENG​.pdf (last consulted 27/11/2022).

The application of Articles 2 and 3 of the Convention may concern both expulsion and extradition, whereas those concepts and procedures are totally different, thus potentially leading to confusion in certain wording.44.In connection with the European arrest warrant, “surrender” will be used instead of “extradition”. For example, in Othman (Abu Qatada) v. the United Kingdom (17/01/2012), a case specifically concerning a proposed expulsion, the Court reiterates the general principle (§ 258) “that an issue might exceptionally be raised under Article 6 by an expulsion or extradition decision in circumstances where the fugitive had suffered or risked suffering a flagrant denial of justice in the requesting country”. This sentence clearly did not originally relate to expulsion, as the terms fugitive and requesting country suggest extradition. Likewise, paragraph 198 of Hirsi Jamaa and Others (cited above) concerns removal but cites a passage which referred to extradition; thus, a principle applied to extradition in a previous case was extended to expulsion by means of a paraphrase and without any explicit explanation.

To add to such terminological confusion, the Court has examined a number of cases where no formal procedure was followed to send the alien concerned away from the State; for example, by an act of “extraordinary rendition”55.The translation into French of this term, ultimately as remise extraordinaire, caused difficulties in El-Masri v. the former Yugoslav Republic of Macedonia ([GC] 13/12/2012); see also Arlettaz 2018Arlettaz, Fernando 2018 “Expulsions collectives : définitions et portée de leur interdiction dans la jurisprudence de la Cour européenne des droits de l’homme.” Canadian Yearbook of International Law 56:58–97. , 65. or an extradition “disguised” as an expulsion. Thus, in Ozdil and Others v. the Republic of Moldova (11/07/2019, at § 67) the Court found that the applicants had been “removed from Moldova by way of an extra-legal transfer which circumvented the guarantees offered by domestic and international law”. The adjective extra-legal is rare (unlike extrajudicial) but was chosen presumably because it was broad: i.e. not just outside any court procedure but outside the law, whether domestic or international. The fact that the Court’s press release is headed “Extradition of five school teachers to Turkey” but then refers to a “disguised extradition” reflects some confusion as to the characterisation of the act in question. The applicants themselves claimed to have been extradited, while incidentally invoking Article 1 of Protocol 7, which does not in fact cover extradition, only expulsion. However, in finding a violation the Court ruled that the “transfer” had no legal basis, so it did not need to characterize the act more precisely; on the contrary, it had to find a “neutral” term in this context.

In Hirsi Jamaa and Others (cited above) no procedure was initially followed to return migrants who were intercepted by the Italian authorities on the high seas. In the absence of a procedural term the English text simply used the generic return or expulsion. The term push-back (see FRA and Council of Europe 2020FRA (European Union Agency for Fundamental Rights) and Council of Europe eds. 2020 Handbook on European law relating to asylum, borders and immigration. 3rd edn. Luxembourg: Publications Office of the European Union., 46) has sometimes been used for this type of action, including by applicants and third-party interveners, but would seem too colloquial for use in the Court’s own assessment.

In English the main terms of relevance to this analysis will be expulsion, deportation and removal, together with their corresponding verb forms; all three, used in a legal context, may have either a generic or a more precise technical (procedural) meaning. Reference will be made to the equivalent terms in other languages, mainly French. Certain terms may have a specific usage in international law, while also relating to a national procedure, e.g. refoulement or return. The non-legal meaning of some of these terms may be more familiar to the general public; the ordinary (and pre-existing) meaning of the verbs expel and remove, for example, would not automatically be associated with the migration context. This is undoubtedly one of the reasons for inaccurate use of legal terminology in general, because people think they know what it means.

As usual, the translator of the relevant terms should make careful use of authentic on-line sources, together with monolingual glossaries and dictionaries (e.g., for French administrative law, Rouquette 2002Rouquette, Rémi 2002 Dictionnaire du droit administratif. Paris: Le Moniteur., also Bissardon 2013Bissardon, Sébastien 2013 Guide du langage juridique. 4th edn. Paris: Litec.), handbooks (e.g. FRA and Council of Europe 2020FRA (European Union Agency for Fundamental Rights) and Council of Europe eds. 2020 Handbook on European law relating to asylum, borders and immigration. 3rd edn. Luxembourg: Publications Office of the European Union.; GISTI 2019GISTI, ed 2019 Le guide de l’entrée et du séjour des étrangers en France. Paris: La Découverte.; Shutter 1992Shutter, Sue 1992 Immigration and Nationality Law Handbook. London: Joint Council for the Welfare of Immigrants.), textbooks (e.g. Fripp 2015Fripp, Eric ed. 2015 The Law and Practice of Expulsion and Exclusion from the United Kingdom. Oxford: Hart.) and, more generally, domestic legislation and commentaries. However, dictionaries tend to be deficient in this field of terminology. Harrap’s/Dalloz Law Dictionary (Nicholson and Stevenson 2004Nicholson, Kate and Anna Stevenson 2004 Harrap’s Law Dictionary / Dalloz Dictionnaire Juridique. Edinburgh: Harrap and Paris: Dalloz.), for example, gives the literal translations “escorting refugees back to the border” for reconduite à la frontière, as does the IATE database (“escort/return to the border”). The terms éloignement, renvoi and removal in the relevant senses are simply omitted from the former. Bridge (1994)Bridge, Frank 1994 Council of Europe French-English Legal Dictionary. Strasbourg: Council of Europe Press. is helpful for most of these terms, with the exception of éloignement, its common usage as a legal term being relatively recent. The monolingual Oxford Dictionary of Law (OUP 2015Law, Jonathan ed. 2015 Oxford Dictionary of Law. 8th edn. Oxford: Oxford University Press.) has no entry for removal, while its definition of deportation is lengthy and confuses various situations. A European Commission document does not give deportation as a separate entry in its Annex of “Definitions” but states in a footnote to the removal entry that “the English word ‘deportation’ is used in this context”, without further clarification.66.Communication from the Commission to the Council and the European Parliament on a Community Return Policy on Illegal Residents COM(2002)564. It somewhat curiously explains that a removal order is “in some legal systems synonymous with expulsion order”, whereas there is no such thing as an expulsion order in English-speaking jurisdictions – and, besides, not all States use the English terms. A UN report, after a lengthy analysis of the different terminology, apparently based on the French original, concludes that: “no real terminological distinction can be drawn among the three terms ‘expulsion’, ‘escort to the border’ and ‘refoulement’; they are used inter-changeably, without any particular semantic rigour”.77.International Law Commission (ILC), “Second report on the expulsion of aliens” by M. Kamto, 20 July 2006, UN document A/CN.4/573 (French original), at § 170; cited in N.D. and N.T. v. Spain ([GC] 13/02/2020) at § 66. This is a misleading statement, clearly reflecting the generic rather than procedural use of these terms. Article 19(2) of the EU Charter of Fundamental Rights begins “No one may be removed, expelled or extradited …”, but the distinction between removed and expelled is unclear; they are both used here as generic terms. Such examples of vague and inaccurate usage and definitions reflect a general problem in the texts of international institutions, as their explanations will be generalized and somewhat artificial, having to be rendered in various languages (and perhaps influenced by a hidden source language). The translator of the Court’s judgments, particularly in Grand Chamber cases where both language texts are authentic, will have to be more specific and may need to carry out a comparative-law analysis of the relevant international or domestic procedures.

The translator’s difficulties are compounded by the fact that terms in a given language may not be used in the same way in different jurisdictions (e.g. the French as used in France, Belgium and Switzerland), and by supranational attempts (e.g. by the EU, UN, Council of Europe) to “codify” such terminology (or at least to ensure convergence); not forgetting the unfortunate misuse of terms, especially in the media. In addition, national usage tends to evolve over time as and when new legislation is enacted – a very frequent occurrence in this field.

4.Domestic-law terminology

Cases before the ECtHR may concern any one of the (now) 46 member States of the Council of Europe. As regards English-speaking or French-speaking jurisdictions, the source-language term will be used in the original English/French draft and the terminological choice will only arise in translation (if any). For all other jurisdictions it will be necessary to render the source-language term in English and/or French. The case lawyer (who will usually hail from the country concerned) will decide on the best term to be used in the drafting language, sometimes after discussing the matter with a linguist (most commonly a “language checker”).88.Language checkers work alongside translators in the Court’s Language Department to edit the drafts of lawyers who are not native speakers of French or English. Thus, when translating from one official language to the other, the translator may have to translate French or English terms that are already translations from a third language, for example, Italian or Romanian. Weston (2005Weston, Martin 2005 “Characteristics and constraints of producing bilingual judgments: the example of the European Court of Human Rights.” In Jurilinguistics: between Law and Language, edited by Jean-Claude Gémar and Nicholas Kasirer, 445–459. Brussels: Bruylant., 449) comments on the ensuing difficulty of standardising the terminology used in different decisions concerning the relevant State, as a translator may not always follow the terms used previously by a case lawyer in a given target language.

In dealing with culture-bound terms, or system-bound elements (Peruzzo 2019Peruzzo, Katia 2019 National law in supranational case-law: A linguistic analysis of European Court of Human Rights judgments in English. Trieste: Edizioni Università di Trieste.), translators (and drafters) at the ECtHR will adopt the various techniques that have been described in literature, for example, by Harvey (2000)Harvey, Malcolm 2000 “A Beginner’s Course in Legal Translation: the Case of Culture-Bound Terms.” In La traduction juridique: Histoire, théorie(s) et pratique / Legal Translation: History, Theory/ies, Practice. (Proceedings, Geneva, 17–19 February 2000), 357–369. Bern/Geneva: ASTTI/ETI., who comments that “‘equivalence’ does not imply one-to-one correspondence, but has the more pragmatic meaning here of a possible translation, the acceptability of which is subject to a number of variables” (see also Prieto Ramos 2014Prieto Ramos, Fernando 2014 “Parameters for Problem-Solving in Legal Translation: Implications for Legal Lexicography and Institutional Terminology Management.” In The Ashgate Handbook of Legal Translation, edited by Le Cheng, King Kui Sin & Anne Wagner, 121–134. Farnham: Ashgate., 125; Šarčević 1997Šarčević, Susan 1997 New Approach to Legal Translation. The Hague: Kluwer Law International., 235). As Peruzzo (2019Peruzzo, Katia 2019 National law in supranational case-law: A linguistic analysis of European Court of Human Rights judgments in English. Trieste: Edizioni Università di Trieste., 72) remarks, the translator should ensure that such terms are “comprehensible in the target language, while maintaining the reference to the source culture”. Thus, there is no single technique that will invariably be preferred, but once the translation has been chosen it should remain consistent (not only within the same judgment but also in subsequent case-law). As regards “functional equivalence”, this has been described by Weston (1991Weston, Martin 1991 English Reader’s Guide to the French Legal System. New York: Berg., 23) as the “ideal method of translation”, but it is not always possible or appropriate in the Court’s judgments. In general, the use of formal equivalence, also referred to as a literal, word-for-word or loan translation, tends to be more common; Weston (1991Weston, Martin 1991 English Reader’s Guide to the French Legal System. New York: Berg., 25) admits that this approach will “frequently be the best”. The retention of a source-language term with no translation at all (i.e. transcription or “borrowing”) is mainly confined to the names of certain domestic courts (e.g. the French Conseil d’État or the Italian Consiglio di Stato), otherwise that term is more likely to be inserted in brackets after a translation.99.See Peruzzo (2019Peruzzo, Katia 2019 National law in supranational case-law: A linguistic analysis of European Court of Human Rights judgments in English. Trieste: Edizioni Università di Trieste., 97–120) for an analysis of Italian terms in Grand Chamber judgments; a relevant example is respingimento, placed in brackets after the English. On occasion a gloss will be added but this is quite rare, unless there is a particular need to explain the terminology for the purposes of the judgment.1010.A gloss by way of “translator’s note” is most unusual in judgments and more frequent in internal documents such as the rapporteur’s note; a rare example can be found in Eminağaoğlu v. Turkey (09/03/2021) at § 1, for the English translation of magistrat. Harvey (2000Harvey, Malcolm 2000 “A Beginner’s Course in Legal Translation: the Case of Culture-Bound Terms.” In La traduction juridique: Histoire, théorie(s) et pratique / Legal Translation: History, Theory/ies, Practice. (Proceedings, Geneva, 17–19 February 2000), 357–369. Bern/Geneva: ASTTI/ETI., 364) characterizes a fourth technique, namely a “descriptive or self-explanatory translation using generic … terms”; while he considers that this obviates the need for any accompanying transcription, it remains an option by way of safeguard or clarification. In the field of expulsion, it is difficult to distinguish between this and other techniques, largely because the commonly used generic terms, such as expulsion or removal, may also happen to be formal or functional equivalents of domestic-law terms, depending on the context. Moreover, as Harvey (2000Harvey, Malcolm 2000 “A Beginner’s Course in Legal Translation: the Case of Culture-Bound Terms.” In La traduction juridique: Histoire, théorie(s) et pratique / Legal Translation: History, Theory/ies, Practice. (Proceedings, Geneva, 17–19 February 2000), 357–369. Bern/Geneva: ASTTI/ETI., 361) points out, some formal equivalents are also functional equivalents.

In the Court’s translations there is a general tendency to avoid purely “functional” equivalents. This can be explained by the formal nature of judgments, a certain preference for “surface-level similarity” (see Šarčević 2018Šarčević, Susan 2018 “Challenges to Legal Translators in Institutional Settings.” In Institutional Translation for International Governance, edited by Fernando Prieto Ramos, 9–24. Oxford: Bloomsbury., 15 in the EU context) between the two official languages, and the general precaution of not assuming equivalence. Thus, in migration law, assignation à résidence is not usually translated by the functional equivalents house arrest or home curfew, but by the more formal compulsory residence order (H.L.R. v. France, 29/04/1997, at § 23). The French judge who rules on custodial measures for irregular migrants is the juge des libertés et de la détention; as there is no obvious functional translation in this case, the literal rendering “liberties and detention judge” is used (Medvedyev and Others v. France [GC] 29/03/2010, at §§ 109–110). However, a literal translation may in some instances prove inappropriate or even comical (e.g. Garde des sceaux translated as keeper of the seals). The French reconduite à la frontière should not be rendered as escorting to the border, which can nevertheless be found in some translations,1111.See for example the European Parliament’s 2009 “Comparative study on the application of Directive 2004/38”, at p. 80; https://​www​.europarl​.europa​.eu​/RegData​/etudes​/etudes​/join​/2009​/410650​/IPOL​​-JURI​​_ET​(2009)​410650​_EN​.pdf (last consulted 27/11/2022). as this would suggest a mere act of implementation rather than a procedure.

A significant obstacle to functional equivalence in expulsion-related cases (as indeed in all areas of law) is the difficulty of carrying out a comparative-law analysis to establish the various aspects of the domestic measure; the translator has to consider, for example, which authority takes the decision, on what grounds (national security, criminal or merely administrative), whether the alien has been refused leave to enter or rather leave to remain, having already resided in the State, and so forth. There may be some overlap but no precise congruence in relation to these various factors. Moreover, a linguistic equivalent may be a “false friend”; for example the French term expulsion, when used as a domestic procedural term, should not be translated as expulsion in English. It may be difficult to see exactly how a given term is being used (especially where the translator’s source is already a translation from a third language): deportation may refer to the underlying decision or implementation; removal may refer to a procedural measure on administrative grounds or may be used more broadly. The Court will use generic terms in order to encompass the diversity of measures in the various States, but its terminology is far less “codified” than that of the European Union – it examines cases under only one instrument, the ECHR, compared to the wide-ranging legislation in EU regulations and directives. The use of terms will also depend on their context in a given judgment: in relation to the facts, the terminology may have to be more specific, as it may be necessary to use different terms to make distinctions between stages of a domestic procedure, but the Court will then use its own generic terminology in its reasoning, where, for example, a domestic-law measure may be characterized as expulsion in English, even though a different translation has been used earlier in the same text for the precise system-bound term. Thus, in Paposhvili v. Belgium (cited above) the term deportation order is used in the facts and domestic law, but not once in the reasoning, where the generic expulsion is preferred.

Where a functional equivalent is used in the relevant field, the choice at the ECtHR will usually be based on UK law, rather than terms used in other English-speaking jurisdictions. International instruments tend to eschew deportation precisely because it may be associated with a specific procedure under national law, as in the UK.1212.It is in fact used once in the ECHR, in Article 5 § 1 (f), in the precise context of detention pending “deportation”. Strictly speaking, deportation refers to an order directed by the Home Secretary against aliens who are “not conducive to the public good” (Shutter 1992Shutter, Sue 1992 Immigration and Nationality Law Handbook. London: Joint Council for the Welfare of Immigrants., 249). The term may also be used in a more generic sense, but such usage may lead to confusion, especially in a translation where it is necessary to be more precise and to make distinctions. One writer misleadingly states that “[t]he terminology used at the domestic or international level is not uniform but there is a clear tendency to call expulsion the legal order to leave the territory of a State, and deportation the actual implementation of such order …” (Kälin 2010Kälin, Walter 2010 “Aliens, Expulsion and Deportation”. Oxford: Max Planck Encyclopedias of International Law [MPIL]., 1). This is certainly not true at domestic level in the UK.1313.The UK Immigration Act 1971 refers to “removal from the United Kingdom in consequence of directions or a deportation order” (s 24A). As regards the French déportation, it is today only used as a term of international law to refer to a war crime: for example in the context of the Fourth Geneva Convention1414.A translation note issued by the French Language Division at the United Nations on 28/04/1988 headed “Expulsions”, states: “Sauf si l’on a affaire à une citation expresse de l’article 49 de la Convention de Genève relative à la protection des personnes civiles en temps de guerre (où le mot ‘déportation’ est utilisé en français), il convient de rendre ‘deport’ et ‘deportation’ par ‘expulser’ et ‘expulsion’…”. and in the Rome Statute (Article 7 § 1 (d)) of the International Criminal Court. While the French press may improperly use the term déportation, perhaps as an anglicism, it is more surprising to find it used generically in a scholarly article (e.g. Arlettaz 2018Arlettaz, Fernando 2018 “Expulsions collectives : définitions et portée de leur interdiction dans la jurisprudence de la Cour européenne des droits de l’homme.” Canadian Yearbook of International Law 56:58–97. , 66).

Like deportation in English, the French term expulsion is used in different ways: as a generic term or autonomous concept of international law, as discussed below, but also to refer to domestic law in a loose sense (e.g. in the media), or a procedural term as used specifically in France for a criminality-related measure,1515.But not in Belgium: cf. arrêté ministériel de renvoi (Paposhvili v. Belgium [GC] 13/12/2016, §§ 55, 73, 76) translated as “ministerial deportation order”. in which case it will be translated as deportation.1616.In the sense given by Bissardon (2013Bissardon, Sébastien 2013 Guide du langage juridique. 4th edn. Paris: Litec., 359): “la mesure d’éloignement forcé mise en œuvre à l’encontre des étrangers dont la présence menace l’ordre public” (see also Rouquette 2002Rouquette, Rémi 2002 Dictionnaire du droit administratif. Paris: Le Moniteur., 335); see Aoulmi v. France (17/01/2006) at § 20, where arrêté d’expulsion was translated as deportation order. It should not be overlooked (especially by the translator) that this French term has a different meaning outside migration law, namely when translated as eviction.

Another UK procedural term may be more appropriate in a domestic-law translation, namely removal, which has become a technical term for the administrative procedure against illegal entrants or overstayers, as opposed to deportation (Shutter 1992Shutter, Sue 1992 Immigration and Nationality Law Handbook. London: Joint Council for the Welfare of Immigrants., 252). Similarly, in French law it is important to distinguish between expulsion in its procedural sense and other types of procedure, such as the equivalent of removal, which until recently was known as reconduite à la frontière (Rouquette 2002Rouquette, Rémi 2002 Dictionnaire du droit administratif. Paris: Le Moniteur., 370).1717.Bridge (1994Bridge, Frank 1994 Council of Europe French-English Legal Dictionary. Strasbourg: Council of Europe Press., 260) translates this term as removal of an illegal immigrant. Having previously been used for the implementation of an expulsion, it was adopted from 1986 for a distinct procedure (arrêté préfectoral de reconduite à la frontière) until it was reduced in scope and superseded by 2019. In the case of De Souza Ribeiro v. France ([GC] 13/12/2012), for example, removal order was used in this precise procedural sense, while expulsion was used in parallel as the generic term (for the French éloignement) and in the Court’s assessment (for the generic French expulsion).1818.The English term deportation (for the French expulsion) was also used once in the Court’s assessment in § 83, but only because it was copied from the previous case-law cited; an example of inconsistency. However, removal may also be used generically, like éloignement or renvoi in French, thus potentially covering different types of measure. French translators would normally translate removal by a generic term, since reconduite à la frontière would be too specific to French law.1919.The solution expulsion administrative was found in French for an equivalent Greek procedure in Tabesh v. Greece (26/11/2009). This term has now been superseded in France (GISTI 2019GISTI, ed 2019 Le guide de l’entrée et du séjour des étrangers en France. Paris: La Découverte., 299) by Obligation de quitter le territoire français (OQTF), where the actual departure may be voluntary or implemented forcibly. Thus, removal may still be used for the enforcement stage (as a translation of éloignement), but a literal translation is more appropriate for the OQTF; arguably, an order (to leave France) rather than an obligation would seem more meaningful to denote an administrative procedure.2020.For use in case-law see A.B. v. France (12/07/2016), § 18 (obligation to leave France); and De Souza Ribeiro ([GC] 13/12/2012), § 28 (obligation to leave French territory). IATE gives “return decision” as one option. Cf. the former term for voluntary departure Invitation à quitter le territoire français, not characterized as “expulsion” in Vijayanathan and Pusparajah v. France (27/08/1992); translated misleadingly as “directions to leave French territory” (whereas “directions” means the arrangements for removal).

The French term éloignement, perhaps under the influence of EU law, has taken on a generic meaning in this field.2121.See for example Directive 2001/40/EC and Directive 2004/38/EC; and éloignement as title of Chapter 8, GISTI 2019GISTI, ed 2019 Le guide de l’entrée et du séjour des étrangers en France. Paris: La Découverte.. However, it is a procedural term in Belgian law.2222.See Belgian Law of 15 December 1980, “Loi sur l’accès au territoire, le séjour, l’établissement et l’éloignement des étrangers”; see definition of éloignement in Article 1. In the broadest sense éloignement has sometimes been interpreted as including extradition (Sudre 2019Sudre, Frédéric 2019 Droit européen et international des droits de l’homme. 14th edn. Paris: Presses Universitaires de France., 761 and 912), although not when the term is used in EU or domestic law. The translation of éloignement into English will thus depend on the context, but when encountered as a generic term it may be necessary to use a combination of terms to cover various types of procedure.

In addition to the French domestic-law terminology to be translated into English (or vice versa) many examples of translations from “non-official” languages feature in the Court’s judgments, for the reason explained above; for example, terms translated (in the drafting process) from Italian to French and subsequently by a translator from French to English. The procedure complained of in Khlaifia and Others v. Italy (cited above) was respingimento, a “fast-track” measure to remove irregular migrants (as opposed to espulsione); for this the drafter decided to use the French refoulement (not to be confused with its use in asylum law, as shown below), while on the first occurrence leaving the Italian in brackets.2323.See Khlaifia and Others v. Italy ([GC] 15/12/2016), § 26. The English translator subsequently chose the term refusal of entry, a descriptive translation based on generic terms, for a number of reasons: being influenced by the procedural use of refoulement but also by the explanations given in the case and after analysing the relevant Italian terminology more generally.2424.The relevant Italian legislation (in extract form) is set out in Khlaifia and Others (ibid.) at § 33. Another factor was the equivalence in EU law (of which certain terminology will be considered below): Article 14 of the Schengen Borders Code, headed refusal of entry in English, corresponds to respingimento in the Italian (refus d’entrée in the French). The risk of these French/English translations of respingimento is that the reader might be led to believe that the migrants in question were turned back at the border immediately, whereas in fact they remained on national territory until they could be removed; the fact of being refused leave to enter should not of course be confused with non-admission or rejection at a border-crossing.2525.Arlettaz (2018Arlettaz, Fernando 2018 “Expulsions collectives : définitions et portée de leur interdiction dans la jurisprudence de la Cour européenne des droits de l’homme.” Canadian Yearbook of International Law 56:58–97. , 66) points out that while the use of the French non-admission (i.e. refusal of entry) in relation to migrants who have already entered a given national territory may seem confusing, it designates a fully-fledged expulsion.

While respingimento could also have been translated as removal – a more functional translation – this appeared to be precluded by the difficulty of establishing equivalence due to overlapping notions: the other procedural term in Italian, espulsione (which had to be distinguished), arguably covers both deportation and removal in the UK-law sense of those terms. In Legislative Decree no. 268 of 1998, Article 13 (espulsione amministrativa) encompasses two different measures: that under paragraph 1, where decided by the Interior Minister on public order or State security grounds, corresponds to deportation, and that under paragraph 2 where decided by a Prefect is equivalent to removal. It may thus be appropriate to translate espulsione by two words, removal and deportation; this was the solution used for the legislation quoted in the Chamber judgment, but it could also be confusing.2626.See the translation of the domestic law in § 27 of the Chamber judgment (01/09/2015); the Grand Chamber judgment used just deportation for espulsione. Moreover, under the relevant legislation (Article 10 of the Legislative Decree) an alien can either be refused entry immediately or be allowed into the country temporarily and then removed; where necessary deferred refusal-of-entry or refusal-of-entry order with deferred removal were used to explain this form of the measure (Khlaifia and Others, cited above, § 218). A variety of French terms were used generically in the same judgment (expulsion, éloignement, renvoi, reconduite à la frontière), creating an appearance of inconsistency. A related term, readmission (réadmission), was also used in this case, in the context of an agreement between Italy and Tunisia under which migrants could be returned to their country of origin. As Giuffré (2020Giuffré, Mariagiulia 2020 The Readmission of Asylum Seekers under International Law. Oxford: Hart. , 10) points out, readmission is not a generic term and has often been used inaccurately (including by the Council of Europe’s Parliamentary Assembly).

Similar domestic-law terminology (i.e. a “fast-track” procedure) was encountered in N.D. and N.T. v. Spain (cited above), namely the Spanish devoluciones en caliente, translated using descriptive generic terms as immediate returns, and once as immediate removals;2727.See N.D. and N.T. v. Italy [GC] 13/02/2020, § 40. Another expression used by Council of Europe documents cited in this judgment is summary returns; while alternatives found in the press include express deportations or immediate deportations, see El Pais in English https://​english​.elpais​.com​/elpais​/2018​/08​/23​/inenglish​/1535032545​_735013​.html (last consulted 27/11/2022). clearly, the literal translation hot returns would not be appropriate in a judgment.2828.The literal expression hot returns is nevertheless used by a number of commentators, e.g. https://​eumigrationlawblog​.eu​/hot​-returns​-remain​-contrary​-to​-the​-echr​-nd​-nt​-before​-the​-echr/ (last consulted 27/11/2022); cf. hot expulsions, concurring opinion of Judge Pinto de Albuquerque in M.A. and Others v. Lithuania (11/12/2018) at § 18.

To sum up the range of techniques used for the translation of domestic-law terms in the relevant field, it can be seen that functional equivalents are useful, where available, to make a distinction between procedures. Thus, in its domestic procedural sense, the French expulsion is translated by deportation. While reconduite à la frontière has been translated by the functional removal, the current term obligation de quitter le territoire français calls for a formal equivalent, as it does not actually correspond to a removal until enforced (it could also entail a voluntary return). More descriptive solutions have been found for terms such as the Italian respingimento (refusal-of-entry measure/order), as it does not fully (or exclusively) correspond to removal as a procedural term, and a literal rendering such as push back would be too colloquial. Any of these techniques may of course be used in combination with a transcription in brackets.

5.Autonomous concepts

The supranational terminology categorized by Prieto Ramos (2014Prieto Ramos, Fernando 2014 “Parameters for Problem-Solving in Legal Translation: Implications for Legal Lexicography and Institutional Terminology Management.” In The Ashgate Handbook of Legal Translation, edited by Le Cheng, King Kui Sin & Anne Wagner, 121–134. Farnham: Ashgate., 128), mentioned at the end of Section 2, encompasses two “strands”: the creation of new terms and the re-use of existing domestic-law terms, sometimes referred to as “secondary term formation” (see Peruzzo 2012Peruzzo, Katia 2012 “Secondary Term Formation within the EU: Term Transfer, Legal Transplant or Approximation of Member States’ Legal Systems?” The Journal of Specialised Translation 18:175–186., in the EU-law context). The second of these solutions appears more prevalent in the area of expulsion. In international law, the English term expulsion itself was arguably “borrowed” from the French, but its generic use has long been established. It thus found its way into two Protocols to the ECHR (Articles 3 and 4 of Protocol No. 4, and Article 1 of Protocol No. 7)2929.Various other instruments use expulsion in the same generic sense, e.g. the EU Charter of Fundamental Rights (Article 19), the International Covenant on Civil and Political Rights (Article 13), and Directive 2001/40/EC on the mutual recognition of decisions on the expulsion of third country nationals. and in this context has been attributed an autonomous meaning (expulsion in the French). Much has been written about ECHR autonomous concepts (see in particular Letsas 2004Letsas, George 2004 “The Truth in Autonomous Concepts: How to interpret the ECHR.” European Journal of International Law 15(2):279–305. ; Malblanc 2019Malblanc, Matthias 2019 La technique des notions autonomes en droit de la Convention européenne des droits de l’Homme. Doctoral dissertation, Lyon 2 University.; Sudre 1998Sudre, Frédéric 1998 “Le recours aux ‘notions autonomes’.” In L’interprétation de la Convention européenne des droits de l’homme, edited by Frédéric Sudre, 93–131. Brussels: Bruylant.; Sudre 2019Sudre, Frédéric 2019 Droit européen et international des droits de l’homme. 14th edn. Paris: Presses Universitaires de France., 241–44), as an essential feature of the Court’s case-law. The underlying principle is that the Convention must be interpreted in such a way that a State cannot “hide behind” its own terminology in defending itself against a complaint. A prominent example is the concept of criminal charge (from Engel v. the Netherlands, 08/06/1976); the Court decides what is characterized as criminal, and what constitutes a charge, regardless of the domestic-law classification. The terms used to express such concepts and identified by the Court itself as autonomous are almost always from the Convention or its Protocols. It is true to say that such terms might appear obscure or vague to the non-lawyer, but at the same time there is a sound legal reason for using them. Some will be more familiar at national level but are interpreted independently of their domestic meaning, having a status of “semantic independence” (Letsas 2004Letsas, George 2004 “The Truth in Autonomous Concepts: How to interpret the ECHR.” European Journal of International Law 15(2):279–305. , 282) under the Convention.

The term expulsion in English has always been a supranational rather than a domestic-law term, used mainly in an international-law context; for the general public, it may more commonly be associated with unruly schoolchildren. To quote Oppenheim’s International Law (Jennings and Watts 1992Jennings, Robert and Arthur Watts eds. 1992 Oppenheim’s International Law. 9th edn. Harlow: Longman., 940), “expulsion is not a technical term, and is often used interchangeably with deportation”, but this is true only where deportation is also used as a generic term and not in the specific procedural sense explained above. Thus, expulsion is used by the Court generically to refer to any relevant domestic procedure, but not extending to extradition.3030.See the Explanatory Report (§ 10) to Protocol No. 7 to the European Convention on Human Rights (1984). By contrast, domestic legal practitioners in English-speaking jurisdictions will not usually encounter the term expulsion in their day-to-day work. The Court may use other terms generically, like return or removal, but expulsion is specifically identified in its case-law as having an autonomous meaning. The rather odd term reconduction can also be found in some international-law material (Grant and Barker 2004, 425; Jennings and Watts 1992Jennings, Robert and Arthur Watts eds. 1992 Oppenheim’s International Law. 9th edn. Harlow: Longman., 940), but not in the Strasbourg case-law.3131.It may be influenced by the French reconduite, as is obviously the case in the English version of the ILC Second report on the expulsion of aliens (supra), at p. 51.

The autonomous nature of the term expulsion, as used specifically in the above-mentioned Protocols, was highlighted at the time those texts were adopted. The Explanatory Report on Protocol No. 4 (1963) referred to the “generic meaning” of expulsion (“to drive away from a place”),3232.The use of expulsion here was initially adopted in relation to a State expelling its own nationals (the verb exile had first been considered in that context), according to the travaux préparatoires. while the Report on Protocol No. 7 (1984), applying only to lawfully resident aliens, described it as “an autonomous concept … independent of any definition contained in domestic legislation”. These indications seem merely to reflect the terminological discussion during the drafting process; it was necessary to clarify that expulsion would not have a narrower procedural meaning as it might have in French. The case-law shows that the term, as used in both Protocols, has been given the same meaning, in spite of the difference in subject matter, in line with the principle of “internal consistency and harmony between [the Convention’s] various provisions” (Hirsi Jamaa and Others, cited above, § 171). In a case concerning Article 1 of Protocol No. 7, Bolat v. Russia (05/10/2006), where the Court referred to expulsion as “an autonomous concept” (at § 79), it was merely relying on the wording of the Explanatory Report. Malblanc (2019Malblanc, Matthias 2019 La technique des notions autonomes en droit de la Convention européenne des droits de l’Homme. Doctoral dissertation, Lyon 2 University., 76) points out that this consistent reliance on a pre-existing text distinguishes expulsion from other concepts which the Court itself has subsequently identified as autonomous by way of interpretative technique.3333.In Georgia v. Russia (I) ([GC] 03/07/2014), Judge Tsotsoria remarks in a separate opinion that the Court “has shown flexibility” in applying the relevant autonomous concept.

The Court has recently entertained an increasing number of cases concerning the prohibition of collective expulsion (Article 4 of Protocol No. 4, replicated in Article 19(1) of the EU Charter of Fundamental Rights, see also FRA and Council of Europe 2020FRA (European Union Agency for Fundamental Rights) and Council of Europe eds. 2020 Handbook on European law relating to asylum, borders and immigration. 3rd edn. Luxembourg: Publications Office of the European Union., 131). In this specific context the Court has gone further than merely referring to the underlying “autonomous concept” and has broadened the scope of the Article. Thus, it is not the definition itself (already very broad) but the scope which has been developed, in line with the “living instrument” doctrine, to ensure that the relevant rights remain effective. In Hirsi Jamaa and Others (cited above, §§ 159 et seq.) the Court had to ascertain for the first time whether this provision was applicable in an extraterritorial context where migrants were intercepted at sea. It answered in the affirmative, pointing out that the word territory did not appear in Article 4 of Protocol No. 4; and, referring to the generic definition in the Explanatory Report, it concluded that the travaux préparatoires did not preclude extraterritorial application. This judgment thus “considerably extend[ed] the ambit of the prohibition on collective expulsion” (Fripp 2015Fripp, Eric ed. 2015 The Law and Practice of Expulsion and Exclusion from the United Kingdom. Oxford: Hart., 179).

In Khlaifia and Others v. Italy (cited above) the Court looked more precisely at the autonomous meaning of expulsion (in both English and French) in relation to the domestic procedural terminology. The Italian Government had submitted that Article 4 of Protocol No. 4 was not applicable (§ 226), relying on the Italian term to argue that since respingimento was not the same procedure as espulsione, it did not correspond to an expulsion for the purposes of that provision on collective expulsion. This argument is largely based on the linguistic similarity between the Italian procedural term espulsione and the Convention term expulsion, especially as the Government’s observations were in French, so espulsione was rightly translated as expulsion in its French procedural sense. The English translator thus had to deal with the various meanings of the French word expulsion as used in the judgment: (1) in the Article 4 of Protocol No. 4 sense; (2) as a generic term; (3) for the Italian procedure espulsione. The English translation, making a distinction, was (1) expulsion, (2) removal/return, (3) deportation. The Court predictably rejected the argument that the measure in question fell outside the scope of expulsion, by invoking its autonomous meaning. A domestic procedural term cannot exclusively be equated with the Convention term, however similar it may be, in order to exclude a differently designated procedure from the general concept; the applicants had been “returned to Tunisia against their will, thus constituting an ‘expulsion’ within the meaning of Article 4 of Protocol No. 4” (§ 244 of the judgment). As Malblanc (2019Malblanc, Matthias 2019 La technique des notions autonomes en droit de la Convention européenne des droits de l’Homme. Doctoral dissertation, Lyon 2 University., 261) observes on this finding, “[l]e sens ordinaire du terme est ici mis au service d’une conception élargie du sens européen” [The ordinary meaning of the term is relied on here in order to convey the broad European meaning]. As the Court reiterated in M.K. and Others v. Poland (23/07/2020, § 198), the concept of expulsion encompasses various types of procedure “even if under domestic law such measures are classified differently”.

In Khlaifia and Others (cited above) and a number of judgments since then, the Court has also referred to the definition of expulsion as given in the ILC’s Draft Articles on the Expulsion of Aliens.3434.The definition reads: “a formal act or conduct attributable to a State, by which an alien is compelled to leave the territory of that State” (see Article 2 of the ILC Draft Articles). This reflects the need to ensure “external harmony” with the work of other international bodies, while using the relevant texts in support of its own case-law; however, such references do not necessarily resolve all issues of what is known as “fragmentation” in international law. Crawford (2014Crawford, James 2014 Chance, Order, Change: The Course of International Law. General Course on Public International Law. Leiden: Pocket Books of the Hague Academy of International Law. , 209) points out that the Court’s definition of expulsion is “at odds” with the ILC’s definition, since the latter actually precludes extraterritorial situations such as that in Hirsi Jamaa and Others (cited above), where the migrants had not yet set foot on Italian soil. In fact he rejects the above-mentioned conclusion that such situations are consistent with the Protocol’s drafting history and the “generic meaning” of expulsion, observing: “One has to be expelled from somewhere, whether the Garden of Eden or Uganda. It is difficult to see how someone could be expelled from the high seas” (Crawford 2014Crawford, James 2014 Chance, Order, Change: The Course of International Law. General Course on Public International Law. Leiden: Pocket Books of the Hague Academy of International Law. , 206). In other words, the generic meaning of expulsion, though broad, would normally exclude extraterritorial situations; but this is a legal rather than a linguistic issue and the Court has chosen to develop the scope of the concept to ensure the effective protection of rights.

More recently, in N.D. and N.T. v. Spain (cited above), the Court had to ascertain whether the meaning of collective expulsion extended to the return of migrants who had illegally crossed a land border, otherwise Article 4 of Protocol No. 4 would not have been applicable (as many as thirty-seven paragraphs are devoted to the issue of applicability, §§ 164–191). In its lengthy reasoning, again relying on the ILC definition of expulsion, the Court concluded that the Spanish measure in question was within scope, even though some disagreement among the judges is evident (see Judge Koskelo’s dissenting opinion). In a rather convoluted linguistic or lexical analysis, the Court somewhat twisted the meaning of the ILC definition in order to support its conclusion. It began by acknowledging that the definition excluded non-admission, but then relied on two totally separate paragraphs of a relevant ILC report3535.ILC, “Second report on the expulsion of aliens”, supra. to demonstrate that non-admission was in fact encompassed within the concept of expulsion because it could be equated with refoulement, against which there was absolute protection. However, it thereby confused two different meanings of refoulement, as will be explained below. The relevant terminology was thus invoked in support of the Court’s application, in the circumstances of the case, of the broad autonomous scope of expulsion that it had previously established. It can be concluded that in invoking an autonomous concept the Court is giving itself the leeway to interpret the term freely, leaving open the possibility of future evolution in that interpretation, thus never defining such a term exhaustively, but also exposing itself to the criticism that its terminology appears imprecise and unclear.3636.As Judge Koskelo comments in a separate opinion in Kurban v. Turkey (24/11/2020): “The incremental and often casuistic evolution of the Court’s case-law may give rise to situations where the contours of key concepts, in their autonomous meaning, turn out to be lacking in clarity or consistency”.

6.Other international-law terminology

In various expulsion-related cases, the drafter or translator is obliged to follow the specific supranational terminology used in other international instruments, in particular those of EU or UN law. One example is the context of the EU’s “Dublin” system (Dublin II Regulation),3737.Council Regulation (EC) No 343/2003 of 18 February 2003. which serves to determine which EU Member State is responsible for examining an asylum application lodged on the territory of one of the signatory States (see FRA and Council of Europe 2020FRA (European Union Agency for Fundamental Rights) and Council of Europe eds. 2020 Handbook on European law relating to asylum, borders and immigration. 3rd edn. Luxembourg: Publications Office of the European Union., 153). Where another State is designated as responsible under the Regulation, that State is asked to “take charge” of the asylum seeker (see M.S.S. v. Belgium and Greece, cited above, §§ 72–73). If the requested State accepts its responsibility, the requesting State will transfer the asylum seeker to that other State. The term transfer (transfert in the French) is thus to be used in this context without reference to any particular domestic procedure. Moreover, transfer (this time remise in the French), or sometimes passing back, is used in EU law when a third-country national is sent back to another Member State where he or she is a lawful resident.3838.See for example Commission Staff Working Document, “Fitness Check on EU Legislation on legal migration”, at https://​home​-affairs​.ec​.europa​.eu​/system​/files​/2019​-03​/swd​_2019​-1055​-staff​-working​-part2​.pdf (last consulted 27/11/2022), p. 88.

In the context of the EU Directive of 2008 commonly known as the Return Directive, the use of the term return (retour) will be required.3939.Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (cited in many of the Court’s judgments). The choice of this term by the EU drafters instead of expulsion (as used in previous directives, e.g. 2004/38/EC), can be explained by the fact that it covers voluntary as well as forcible return. The alien concerned is then referred to as a returnee, a term that has proved awkward to translate into other languages. The definition of return, being the underlying decision or order (Article 3), is distinguished from that of removal (éloignement), which refers under the Directive to the “enforcement of the obligation to return, namely the physical transportation out of the Member State”. One Commission working document in connection with the draft points to a “lack of common terminology”, rendering the exchange of information and cooperation between States more difficult (Lutz 2010Lutz, Fabian 2010 The Negotiations on the Return Directive. Nijmegen: Wolf., 137); another document explains that the “current understanding of ‘expulsion’ differs widely between Member States” and describes the terms return and removal as “more specific and easily definable” (Lutz 2010Lutz, Fabian 2010 The Negotiations on the Return Directive. Nijmegen: Wolf., 124), a description which is not strictly correct (removal, as shown above, can have a more procedural usage as in UK law or a more generic usage). The European Commission is clearly aware of the inconsistent terminology in this field of legislation, even though it should ideally be uniform across the various texts (Peruzzo 2012Peruzzo, Katia 2012 “Secondary Term Formation within the EU: Term Transfer, Legal Transplant or Approximation of Member States’ Legal Systems?” The Journal of Specialised Translation 18:175–186., 177).4040.See “Fitness Check”, supra, at p. 51: “in the different Directives, similar issues are frequently addressed by different wording”. The Strasbourg Court will not, of course, develop its own autonomous interpretation of the term return but will use it in the context of EU law, or as a generic term in other contexts. The EU terminology may also usefully be followed where it has been adopted in a given domestic context (see Peruzzo 2012Peruzzo, Katia 2012 “Secondary Term Formation within the EU: Term Transfer, Legal Transplant or Approximation of Member States’ Legal Systems?” The Journal of Specialised Translation 18:175–186., 176, on the “mutual influence” between EU and domestic legislation). For example, in the Karimi v. Romania decision (23/06/2020), the measure complained of is rendered in the French as décision de retour (for decizia de returnare), and its enforcement as éloignement, both in line with the Return Directive; the translator’s task is thus facilitated in such cases. However, it is arguable that return should be avoided in non-EU contexts; Giuffré (2020Giuffré, Mariagiulia 2020 The Readmission of Asylum Seekers under International Law. Oxford: Hart. , 17) takes the view that it should be distinguished from terms designating purely non-voluntary measures.

The French term rapatriement, as used by the drafting lawyer in the Khlaifia and Others Chamber judgment,4141.01/09/2015; see for example § 169, where the English translator used the generic removal. was undoubtedly influenced by the Italian word rimpatrio, which is the term used for return in the Italian version of the Return Directive.4242.The Italian rimpatrio has become more commonly used domestically, apparently under the influence of the EU terminology (cf. the different generic EU term, allontamento, used in Directive 2004/38/EC). But in the Grand Chamber judgment in the same case, this French term was completely avoided, suggesting that it was ultimately considered inappropriate. The term repatriation in English is likewise not a generic term for a removal measure; it is generally used in a military or medical context, and also more specifically where a State brings back its own nationals from a foreign territory.4343.See the case of H.F. and Others v. France ([GC] 14/09/2022), concerning the repatriation of French nationals from Syria. The European Migration Network glossary under repatriation states that “[t]his is not a synonym relating to forced return”.4444. https://​ec​.europa​.eu​/home​-affairs​/networks​/european​-migration​-network​-emn​/emn​-glossary​_en (last consulted 27/11/2022). In the earlier Grand Chamber case against Italy, Hirsi Jamaa and Others (cited above), the term repatriation was also used for the possibility that the migrants in question might, on their return to Libya, be sent back to their countries of origin; thus in the operative part of the judgment the Court “[h]olds unanimously that there has been a violation of Article 3 of the Convention on account of the fact that the applicants were exposed to the risk of being repatriated to Somalia and Eritrea”. Arguably, the term repatriated is inappropriate here too, for the reasons given above, and it would have been better to refer to a risk of refoulement, a term or concept of international law which will now be studied in some depth.

The French term refoulement (or non-refoulement and associated verb forms) is used widely in English-language texts and quite frequently in the relevant judgments of the Court.4545. Refoulement is usually written in italics in the Court’s case-law but not necessarily in all sources; the absence of italics in authentic English sources reflects its naturalisation. It is certainly not the only example of borrowing (Šarčević 1997Šarčević, Susan 1997 New Approach to Legal Translation. The Hague: Kluwer Law International., 256) in public international law, which is known for its foreign-language (particularly French) terms, but has become a very prominent one. Refoulement started out as a procedural term of French domestic law and has taken on a whole new meaning and scope since being “borrowed” and subsequently “naturalised” (Weston 1991Weston, Martin 1991 English Reader’s Guide to the French Legal System. New York: Berg., 30). Grant and Barker (2009)Grant, John and Craig Barker eds. 2009 Parry and Grant, Encyclopaedic Dictionary of International Law. 3rd edn. Oxford: Oxford University Press. define refoulement as the “expulsion or return of a refugee [to a State] where his life or liberty would be threatened”. Its use in this context can be traced back to the drafting of the UN Convention relating to the Status of Refugees (Article 33) of 28 July 1951, in which it was inserted in brackets after the English word return.4646.“Prohibition of expulsion or return (‘refoulement’): 1. No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened …”. The term refoulement (or a related verb form) has since been used in other international instruments but, notably, it was not used in Article 19(2) of the EU Charter of Fundamental Rights, which nevertheless defines the same prohibition. The retention of this term shows that the drafters could not find a totally adequate translation of the French and that the meaning of refoulement was to prevail over that of return (Shelton 1997Shelton, Dinah 1997 “Reconcilable Differences? The Interpretation of Multilingual Treaties.” Hastings International and Comparative Law Review 20(3):611–638., 624), which was considered the “nearest” equivalent in English (Weis 1995Weis, Paul ed. 1995 The Refugee Convention, 1951: The Travaux Préparatoires analysed with a commentary by the late Dr Paul Weis. Cambridge: Cambridge University Press. Also available at http://​www​.unhcr​.org​/4ca34be29​.html (consulted 27/11/2022)., 335). Judge Pinto de Albuquerque analysed the scope of the concept in his concurring opinion in Hirsi Jamaa and Others (cited above), concluding that “[t]he deliberate insertion of the French word in the English version has no other possible meaning than to stress the linguistic equivalence between the verb return and the verb refouler”.4747.See also the separate opinion of Judge Pinto de Albuquerque on refoulement at land borders in M.A. and Others v. Lithuania (11/12/2018). The Handbook on European law relating to asylum, borders and immigration comments that “the non-refoulement principle is the cornerstone of refugee protection”, while pointing out that today it extends to other categories of alien under international human rights law (FRA and Council of Europe 2020FRA (European Union Agency for Fundamental Rights) and Council of Europe eds. 2020 Handbook on European law relating to asylum, borders and immigration. 3rd edn. Luxembourg: Publications Office of the European Union., 104). The principle has certainly been attributed a broad procedural scope by the Court and other international bodies (e.g. the UNHCR), in spite of persisting claims that the term refoulement should be given a narrower meaning.

The translation issue, which became apparent during the drafting of the 1951 Refugee Convention, was summed up as follows by the Secretariat of the Committee responsible for preparing the draft, albeit here in connection with a different Article (Weis 1995Weis, Paul ed. 1995 The Refugee Convention, 1951: The Travaux Préparatoires analysed with a commentary by the late Dr Paul Weis. Cambridge: Cambridge University Press. Also available at http://​www​.unhcr​.org​/4ca34be29​.html (consulted 27/11/2022)., 289–90):

The practice known as refoulement in French did not exist in the English-speaking countries. In Belgium and France, however, there was a definite distinction between expulsion, which could only be carried out in pursuance of a decision of a judicial authority, and refoulement, which meant either deportation as a police measure or non-admittance at the frontier.

It is arguable that the translation removal could have been used, had it existed as a procedural term at the time. While no longer used procedurally in France as a form of administrative removal, refoulement can still be found in Belgium, where it refers to the removal of illegal entrants, immediately or soon after their arrival in the country.4848.See Belgian Law of 15/12/1980 (supra), Article 4. See also Mubilanzila Mayeka and Kaniki Mitunga v. Belgium (12/10/2006), § 12: “une décision de refus d’accès au territoire avec refoulement fut prise …”. Moreover, refoulement is also often used generically in French,4949.The verb is commonly used in a non-procedural and non-asylum context, e.g. “La France a tenté de refouler des migrants mineurs, selon Salvini” (Le Figaro 23/10/2018). and in this sense may be translated as removal or return, rather than refusal of entry (all three translations given by Bridge 1994Bridge, Frank 1994 Council of Europe French-English Legal Dictionary. Strasbourg: Council of Europe Press., 264). Salmon (2001Salmon, Jean ed. 2001 Dictionnaire de droit international public. Brussels: Bruylant., 956) confirms that refoulement in French has both a procedural usage (denial of entry and return) and a generic usage; likewise Rouquette (2002Rouquette, Rémi 2002 Dictionnaire du droit administratif. Paris: Le Moniteur., 649) refers to its sens strict [narrow meaning] and sens large [broad meaning] in French (with a separate sub-entry for principe de non-refoulement). Therefore, unless the context relates to aliens facing unlawful treatment in the country of immediate destination, or subsequently in another country (a risk known as indirect refoulement or chain-refoulement),5050.See, for example, Hirsi Jamaa and Others ([GC] 23/02/2012), quoted text at §§ 23 and 27, and concurring opinion of Judge Pinto de Albuquerque. The terms “indirect removal” in that judgment (§ 146) should arguably read “indirect refoulement”. there is no reason to use this French term in an English text. For a translator, the meaning of refoulement in the French source text should be obvious from the context.5151.For example, in M.S.S. v. Belgium and Greece ([GC] 21/01/2011) refoulement is used throughout with the asylum meaning.

However, refoulement is not always used appropriately in English texts, perhaps reflecting some confusion between the various meanings discussed above. Its use is unnecessary, for example, at the end of the following sentence: “… emergency situations in which a person is for example arrested at an airport in order to be expelled (refoulement)”.5252.Concurring opinion of Judge Zupančič in Saadi v. Italy (28/02/2008). The De Souza Ribeiro v. France judgment (cited above, § 48) refers to a Recommendation of the Council of Europe’s Commissioner for Human Rights which states: “The right of effective remedy must be guaranteed to anyone wishing to challenge a refoulement or expulsion order”; but this should read “a refusal-of-entry or deportation order” in order to make the correct domestic distinction. Refoulement may also be used inaccurately in the asylum context; thus in R.R. and Others v. Hungary (02/03/2021) the applicants, held in a transit zone on the Hungarian border, had argued that “[h]ad they left the zone in the direction of Serbia, this could have been used against their asylum claim and could have amounted to refoulement” (§ 72). The term chain-refoulement (as in M.K. and Others v. Poland, cited above, § 185) should have been used here, because they did not face danger in Serbia but in their countries of origin, to which they risked being sent back subsequently (indirectly). These few examples have illustrated the importance (and sometimes the difficulty) of using supranational terms which are “imposed” by other organisations and instruments.

7.Concluding remarks

A lack of consistency in terminology or vagueness in its use could well contribute to misunderstanding of the Court’s case-law – even erroneous interpretation by domestic courts – and may incidentally cause difficulty for external translators working into “non-official” languages. More generally, it undermines reliance on the Court’s “benchmark role [of] establishing terminology in international law” (Prieto Ramos 2014Prieto Ramos, Fernando 2014 “Parameters for Problem-Solving in Legal Translation: Implications for Legal Lexicography and Institutional Terminology Management.” In The Ashgate Handbook of Legal Translation, edited by Le Cheng, King Kui Sin & Anne Wagner, 121–134. Farnham: Ashgate., 127). This Chapter has illustrated the polysemic nature of expulsion-related terms, many of which can be both procedural and generic (in addition to being familiar in non-legal contexts). It has sought to show that such terms cannot necessarily be regarded as synonymous or interchangeable even though they are often used as such. Whilst in some contexts, particularly in the media, a number of terms may be used by way of terminological variation, in legal texts distinctions are important and, as emphasized in an official French guide to legislative drafting (Conseil d’État 2017Conseil d’État ed. 2017 Guide de Légistique. 3rd edn. Paris: La documentation Française., 297), words taken from legal language must be used in their precise sense. Farcy and Desguin (2017Farcy, Jean-Baptiste and Noémi Desguin 2017 “ ‘Transmigrant’ : un vocable réducteur pour des réalités juridiques multiples.” Revue du droit des étrangers 196:685–699., 685) comment on the sensitive terminological choices in the field of migration (see also Bauder 2014Bauder, Harald 2014 “Why We Should Use the Term ‘Illegalized’ Refugee or Immigrant: A Commentary.” International Journal of Refugee Law 26(3):327–332. , 328), whereby social phenomena are categorized and legitimized, quoting Albert Camus (1944)Camus, Albert 1944 “Sur une philosophie de l’expression.” Poésie 44., “mal nommer un objet, c’est ajouter au malheur de ce monde” [to name something wrongly only exacerbates the woes of this world]. This idea is pertinently illustrated by the political use of euphemistic terminology, such as relocation to render a controversial expulsion policy more palatable in the eyes of the public.

Here are a few examples of potential misuse, with reference to some of the terms discussed in this Chapter: using déportation in French would indicate a war crime; to invoke the concept of refoulement in English suggests a danger to life and limb whereas the destination may actually be a “safe country”; readmission should be used only in the context of inter-State agreements and not as a generic term; repatriation is inappropriate if an alien is being removed or deported; the use of arbitrary refoulement in the Court’s case-law (see, for example, F.G. v. Sweden, § 117) is misleading because it implies that in some cases it may be non-arbitrary, whereas the prohibition of refoulement is absolute; the term return is not necessarily synonymous with expulsion because it may be voluntary, so the use of summary returns (see, for example, M.H. and Others v. Croatia, 18/11/2021, § 270) as a generic expression for an expedited form of expulsion is not ideal in this respect, even though return is commonly used by the EU and other international bodies. The Court, in applying the ECHR, understandably expresses itself using generic or autonomous legal terms that are not specific to a given State; but it also has to deal with terms from both domestic law and other instruments of international law. This terminology must be used, by both drafters and translators, in an accurate, clear, consistent and sensitive manner.