No one human rights institution can deliver a perfect world. This is true even of the Inter-American Court of Human Rights which has been greatly praised in this series.
One weakness is that the Inter-American Court decides only a few cases a year. As a result only a limited number of victims find redress at San José. For example, Jésus Vélez Loor, whose case was discussed earlier, was extremely lucky that his case was processed up to the Court. But his complaints were not all accepted. Most importantly in his perspective, the Court did not declare he had been tortured.
The judgment also could not give him back his health or previous life. What Jésus would nonetheless have liked was to have his ordeal and the Inter-American proceedings turned into a film. But the Court did not order this to happen (although it ordered many other things).
Still, if there is any filmmaker interested out there, Jésus would surely love to hear from you!
Can a woman be expelled to her country of origin when she has a young child who is a national of the would-be expelling European state and her expulsion would mean child and mother are separated?
In one famous case, the European Court of Human Rights decided that the mother’s expulsion would violate the European Convention on Human Rights. It did this even though it had previously made clear that it was not ready to interpret the European Convention on Human Rights as containing the right to a residence permit.
In this case, the Convention’s doors opened up, so to speak. However, the doors quickly shut up again when the Court refused to give way to what it described as the ‘fait accompli’ of a child’s birth.
In my opinion, the case law in this area is best described as a lottery. The dice are nonetheless weighted against giving rights of residence to people whose presence in a state the law considers illegal.
All through the summer, the immediate needs of the unprecedented number of refugees arriving in Europe has held the media spotlight. We should not forget, however, that long term migrants can also face great difficulties. This episode draws attention to the plight of people who live in Europe without enjoying any status in law.
The law says their presence is not authorised. But the fact is that they are here. Granted no residence permit, they can neither work legally nor access social benefits. A great number of them cannot be returned to their country of origin. This can go on for years and for decades. They are de facto stateless. How can they live in dignity?
Strangely, the European Court of Human Rights has found that this situation does not raise any issue under the Convention. This is because of its past interpretations of Article 3, Article 8 and Article 6 ECHR.
In other words, by respecting the logic of its previous case law, the Court ends up reaching a conclusion that is entirely illogical from a human rights perspective …