How Does the European Convention on Human Rights Exacerbate the European Refugee Crisis?
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The European Convention on Human Rights (ECHR) plays a significant role in shaping responses to the European refugee crisis through its legally binding provisions and the jurisprudence of the European Court of Human Rights (ECtHR). The ECHR ensures that fundamental human rights are respected and protected for everyone within the jurisdiction of its member states, including migrants and asylum seekers, significantly limiting what member states can do to combat illegal immigration and deter asylum seeking.
Article 3: Prohibition of Torture
Article 3 prohibits torture, and "inhuman or degrading treatment or punishment. It is pivotal in protecting migrants from being returned to countries where they would face a real risk of serious harm. In the landmark case of Soering v United Kingdom (1989), the ECtHR held that extraditing a person to a country where he would face inhuman treatment violated Article 3. This principle has been crucial in asylum cases because it requires member states not to deport individuals to countries where they would be subjected to torture or inhumane treatment.
The case of MSS v Belgium and Greece (2011) is particularly notable in the context of the refugee crisis. The ECtHR found that both Belgium and Greece violated Article 3 due to the conditions faced by an asylum seeker upon return to Greece under the Dublin II Regulation. The applicant experienced extreme poverty and inadequate living conditions, which the ECtHR deemed inhuman and degrading. This decision requires members states to offer better protection and conditions to asylum seekers, leading to significant changes in what member states can do to deter the influx of refugees and asylum seekers.
Article 5: Right to Liberty and Security
Article 5 provides that everyone has the right to liberty and security of person. It protects individuals from arbitrary detention, requiring that any deprivation of liberty must be lawful and justified. The ECtHR has used this Article to address the detention conditions of migrants and asylum seekers. In SD v Greece (2009), the ECtHR ruled that the prolonged detention of an asylum seeker in substandard conditions violated Article 5. This decision requires member states to ensure that detention is a measure of last resort and that the detention conditions meet human rights standards.
Similarly, in Rahimi v Greece (2011), the ECtHR condemned the detention of unaccompanied minors in degrading conditions. It ruled that the detention of vulnerable individuals, such as minors, should be avoided and that appropriate care and protection must be provided. These rulings have prompted member states to reconsider their detention practices and improve the conditions in which migrants are held.
Article 8: Right to Respect for Private and Family Life
Article 8 provides a right to respect for one's private and family life, his home and his correspondence. It ensures the protection of private and family life, subject to certain restrictions that are in accordance with law and necessary in a democratic society. The ECtHR has frequently ruled that upholding the right to family life is more important the member state's interest in controlling immigration. In Boultif v Switzerland (2001), the ECtHR held that the deportation of an individual with strong family ties in the host country violated Article 8. The ECtHR established criteria, known as the Boultif criteria, to assess whether the interference with family life is justified.
The case of Üner v the Netherlands (2006) further developed these principles by requiring member states to consider the family ties and the duration of residence of long-term migrants before enforcing deportation orders. These rulings requires member states to ensure that migration policies do not disproportionately interfere with family life, pushing member states to adopt more humane and balanced immigration laws.
Article 13: Right to an Effective Remedy
Article 13 guarantees the right to an effective remedy before national authorities for violations of rights and freedoms. This is crucial for migrants who need access to legal mechanisms to challenge violations of their rights. In Hirsi Jamaa and Others v Italy (2012), the ECtHR found Italy in violation of Articles 3 and 13 for intercepting migrants at sea and returning them to Libya without examining their need for protection. The ECtHR ruled that the migrants were deprived of an effective remedy to challenge their return, which exposed them to the risk of ill-treatment. This case had a profound impact on European policies regarding the treatment of migrants intercepted at sea. The decision imposes a duty on member states to take into account the need for proper procedures to assess asylum claims and protect against refoulement (returning individuals to a country where they may face harm).
Article 4 of Protocol No. 4: Prohibition of Collective Expulsions
Article 4 of Protocol No. 4 prohibits the collective expulsion of aliens and requires member states to consider each individual's circumstances. The ECtHR has reinforced this principle in several cases. For example, in ND and NT v Spain (2020), the ECtHR ruled that the immediate expulsion of migrants who had crossed into Spain from Morocco without an individual assessment violated Article 4 of Protocol No. 4. This decision imposes a duty on member states to offer individualised procedures in handling migrants.
In conclusion, the ECHR, through the jurisprudence of the ECtHR, significantly limits the way member states can do to deter the influx of refugees and asylum seekers. The ECtHR’s decisions require member states to ensure the protection of refugees and asylum seekers from torture, preserve family unity, scrutinise detention conditions, guarantee effective remedies, and prohibit collective expulsions. These legal principles and rulings have prompted member states to reform their policies and practices, promoting a more humane and rights-respecting approach to managing migration and asylum. Therefore, it can be safely concluded that the ECHR serves as a catalyst for the European refugee crisis.
Article 3: Prohibition of Torture
Article 3 prohibits torture, and "inhuman or degrading treatment or punishment. It is pivotal in protecting migrants from being returned to countries where they would face a real risk of serious harm. In the landmark case of Soering v United Kingdom (1989), the ECtHR held that extraditing a person to a country where he would face inhuman treatment violated Article 3. This principle has been crucial in asylum cases because it requires member states not to deport individuals to countries where they would be subjected to torture or inhumane treatment.
The case of MSS v Belgium and Greece (2011) is particularly notable in the context of the refugee crisis. The ECtHR found that both Belgium and Greece violated Article 3 due to the conditions faced by an asylum seeker upon return to Greece under the Dublin II Regulation. The applicant experienced extreme poverty and inadequate living conditions, which the ECtHR deemed inhuman and degrading. This decision requires members states to offer better protection and conditions to asylum seekers, leading to significant changes in what member states can do to deter the influx of refugees and asylum seekers.
Article 5: Right to Liberty and Security
Article 5 provides that everyone has the right to liberty and security of person. It protects individuals from arbitrary detention, requiring that any deprivation of liberty must be lawful and justified. The ECtHR has used this Article to address the detention conditions of migrants and asylum seekers. In SD v Greece (2009), the ECtHR ruled that the prolonged detention of an asylum seeker in substandard conditions violated Article 5. This decision requires member states to ensure that detention is a measure of last resort and that the detention conditions meet human rights standards.
Similarly, in Rahimi v Greece (2011), the ECtHR condemned the detention of unaccompanied minors in degrading conditions. It ruled that the detention of vulnerable individuals, such as minors, should be avoided and that appropriate care and protection must be provided. These rulings have prompted member states to reconsider their detention practices and improve the conditions in which migrants are held.
Article 8: Right to Respect for Private and Family Life
Article 8 provides a right to respect for one's private and family life, his home and his correspondence. It ensures the protection of private and family life, subject to certain restrictions that are in accordance with law and necessary in a democratic society. The ECtHR has frequently ruled that upholding the right to family life is more important the member state's interest in controlling immigration. In Boultif v Switzerland (2001), the ECtHR held that the deportation of an individual with strong family ties in the host country violated Article 8. The ECtHR established criteria, known as the Boultif criteria, to assess whether the interference with family life is justified.
The case of Üner v the Netherlands (2006) further developed these principles by requiring member states to consider the family ties and the duration of residence of long-term migrants before enforcing deportation orders. These rulings requires member states to ensure that migration policies do not disproportionately interfere with family life, pushing member states to adopt more humane and balanced immigration laws.
Article 13: Right to an Effective Remedy
Article 13 guarantees the right to an effective remedy before national authorities for violations of rights and freedoms. This is crucial for migrants who need access to legal mechanisms to challenge violations of their rights. In Hirsi Jamaa and Others v Italy (2012), the ECtHR found Italy in violation of Articles 3 and 13 for intercepting migrants at sea and returning them to Libya without examining their need for protection. The ECtHR ruled that the migrants were deprived of an effective remedy to challenge their return, which exposed them to the risk of ill-treatment. This case had a profound impact on European policies regarding the treatment of migrants intercepted at sea. The decision imposes a duty on member states to take into account the need for proper procedures to assess asylum claims and protect against refoulement (returning individuals to a country where they may face harm).
Article 4 of Protocol No. 4: Prohibition of Collective Expulsions
Article 4 of Protocol No. 4 prohibits the collective expulsion of aliens and requires member states to consider each individual's circumstances. The ECtHR has reinforced this principle in several cases. For example, in ND and NT v Spain (2020), the ECtHR ruled that the immediate expulsion of migrants who had crossed into Spain from Morocco without an individual assessment violated Article 4 of Protocol No. 4. This decision imposes a duty on member states to offer individualised procedures in handling migrants.
In conclusion, the ECHR, through the jurisprudence of the ECtHR, significantly limits the way member states can do to deter the influx of refugees and asylum seekers. The ECtHR’s decisions require member states to ensure the protection of refugees and asylum seekers from torture, preserve family unity, scrutinise detention conditions, guarantee effective remedies, and prohibit collective expulsions. These legal principles and rulings have prompted member states to reform their policies and practices, promoting a more humane and rights-respecting approach to managing migration and asylum. Therefore, it can be safely concluded that the ECHR serves as a catalyst for the European refugee crisis.
