Episode seven: Strasbourg wakes up to the predicament of migrants

In this episode I discuss the moment when migrants began to be able to make successful applications to the European Court of Human Rights.

 

After the Court system was set up in 1959, there were many applications from migrants, but they were either ruled inadmissible or ended on friendly settlements. The Court did not examine the merits of a migrant case until 1985 and this judgment could not even be said to have been favourable to migrants.

Senior people in the Council of Europe started to question in the early 1980s whether migrants had human rights under the Convention. They included Peter Leuprecht, the Director of Human Rights who went on to become the institution’s Deputy Secretary–General.

In 1983, Leuprecht brought together 200 senior figures including judges, politicians and representatives of civil society to discuss the issue.

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Episode six: The different approach of the Inter-American Court of Human Rights

In this episode, we turn to another system of human rights protection and see that the Inter-American Court of Human Rights has made pronouncements which are intended to give rights to migrants.

 

I examine what happened more than thirty years ago, when Costa Rica was facing an influx of refugees from war-thorn neighbouring Nicaragua. This led the Inter-American Court seeming to distance itself from states subjecting naturalisation process to e.g. citizenship tests.

In contrast, the European Court of Human Rights keeps away from pronouncing on matters of nationality, even though these are issues that are of particular importance to migrants and refugees.

So why did the European Convention end up saying nothing about nationality? Could it be that this is because the authors of the Convention perceived the migrant as a threat who needed to be controlled by the state?

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Episode five: The Strasbourg reversal, or why legal technique matters

In this episode I identify an interpretative practice of the European Court of Human Rights that I call the “Strasbourg reversal”.

 

The previous episode introduced the Adulaziz, Cabales and Balkandali v United Kingdom case of 1985. Basically, the ruling established that migrants have no automatic right to be reunited with close family members.

This was the result of the European Court balancing the human right to family life enshrined in the European Convention on Human Rights with the “well established principle in international law” according to which states have a right to control “aliens”.

Such a balancing exercise between the rights of the applicant and the rights of the defendant state is unavoidable. However, what is strange is that in migrant cases the Court often fails to start its reasoning with the Convention. Instead the Court tends to consider first the rights of the state before turning and paying attention to the rights of the applicant.

I argue that this is a legally strange way to proceed. Given that the Court was established to make authoritative rulings on the Convention, one could expect the relevant Convention provisions to be at the starting point of the Court’s reasoning. The fact that the Court starts from the opposite end, namely the presumed state interests, is what leads me to say that a “Strasbourg reversal” affects the migrant case law.

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Episode four: Family reunion is not a right

In this episode I discuss the first migrant case to have come before the European Court of Human Rights.

 

Adulaziz, Cabales and Balkandali v United Kingdom (1985) considered the case of three “immigration widows” who were legally settled in the UK and wanted their husbands to join them.

The women’s claim that their right to family life had been violated was rejected. The European Convention on Human Rights remains interpreted today as not normally encompassing the right – so precious for migrants – to family reunion.

What the Court did find is that the women had been discriminated against on the grounds of their sex. You can find out how the UK Government responded to this ruling, by listening to the podcast now.

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