Episode 25: The stateless of Europe

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 …

To download a copy of this podcast, right-click the following link: HRM25 The stateless of Europe

 

Episode 24: Vainly knocking on the shut doors of Strasbourg

When a door is firmly shut, getting it to open can be very difficult. This image is useful to understand the effect of a finding by the European Court of Human Rights that a provision of the European Convention on Human Rights is either not applicable or not violated.

 

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Strasbourg negative rulings are often categorical. They tend to get repeated from one case to the next, in a fairly automatic manner. They result in applicants being summarily rejected when they come knocking on the Strasbourg doors.

A violation verdict is less categorical. It effects an opening – but how wide this opening is typically needs to be tested over time.

Maaouia is an example of shut doors that was examined in the last episode. In this episode, I discuss other examples: Abdulaziz, Cabales and Balkandali (no right to family reunion), N. v. UK (return to an early death), and Saadi v. UK (immigration detention for administrative convenience).

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Please note that the podcast will take a short break over the summer and return for the final six episodes in September.

Episode 23: When the Strasbourg doors are shut (Maaouia)

Lawyers like to discuss cases that offer openings and avenues of redress, but one cannot assess the benefits of the Strasbourg system without also considering its failures. This episode focuses on Maaouia v. France.

 

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Maaouia established that immigration decisions were not subject to Article 6 ECHR, the provision of the Convention that lays down fair trial guarantees.

In concrete terms, this means that decisions related to e.g. asylum, expulsion, family reunion and residence permits can be taken by administrative authorities without the persons affected having a right, under the Convention, to have their claims heard by an independent judge.

This Grand Chamber decision was adopted in 2000, and it still holds to this day. Its effect was to shut the Strasbourg doors categorically in this respect, with tremendously negative implications for migrants’ rights.

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Episode 22: Why MSS is so important

Episode 21 explained what happened in the case of MSS, but we still need to discuss why the case is so important.

 

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One point is that it triggered a revision of the so-called ‘Dublin regulation’.

Another is that migrants often lose at Strasbourg because they cannot prove their allegations. MSS could not prove that he had personally suffered from the situation in Greece generally denounced by NGOs either. Still, the Court accepted his allegations.

Also, the Court was persuaded to overturn its own case law. Until then, the lead case of KRS v. the United Kingdom had meant that a transfer to Greece was never considered to entail a violation of the Convention. In a sense, MSS should have been declared inadmissible. However, the Court sided not with the states but with the applicant and civil society.

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Episode 21: MSS sees Belgium and Greece condemned

In the sea of Strasbourg losses for migrants, MSS stands out as a resounding victory, which we start exploring in this episode.

 

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The applicant was an Afghani national who had worked for the Allied forces. Fearing for his life, he left his country. He arrived in Europe through Greece. He then moved to Belgium where he claimed asylum. Belgium transferred him back to Greece. There he was subject to appalling conditions.

He kept in contact with his Belgian legal representative so that his transfer did not put an end to his Strasbourg application.

The Strasbourg Court found that Belgium and Greece had each violated the European Convention on Human Rights. This was on several counts, well worth detailing.

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Episode 20: Tabitha’s story

It would be wrong to think that the European Court of Human Rights is incapable of finding immigration detention in violation of the European Convention on Human Rights.

For example, when a lone five year old was kept in a detention centre in Belgium for two months, the Court found violation after violation of the Convention.

However, this raises the question: how bad must the treatment of a migrant be before the Strasbourg Court reacts?

 

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Episode nineteen: Immigration detention not to be resorted to lightly

In this episode, I discuss the judgment of the Inter-American Court in the case of Vélez Loor v. Panama.

 

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The victim was a migrant who had been caught inexplicably wandering in the jungle by the Panamanian police. He was detained. At some stage, he thought he would die without his family ever knowing what had happened to him.

The government of Panama accepted responsibility regarding the material conditions of his ten-month detention but disputed other claims.

Amongst other things, the Inter-American Court ruled that immigration detention should only ever be used as a last resort.

As migrants are detained in their thousands in Europe, the judgment reminds us that immigration detention is not a phenomenon that goes without saying.

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Episode eighteen: Is a convergence between the Inter-American and European Courts of Human Rights in sight?

At this stage in the series, you probably have gained some understanding about the way the two courts operate. Both have the same task of applying human rights conventions, especially in cases brought by individuals. However, they work rather differently.

In this podcast, I contemplate the possibility that they may converge more in the future. How would this happen? One risk is that the resolutely pro-homine (for-the-human-being) approach of the Inter-American Court would lead states party to the American Convention on Human Rights to want to diminish its power. So, is the Inter-American Court strong enough to resist such pressure?

 

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Episode seventeen: What effects do we want human rights judgments to have?

If a human rights court knows that a state is going to resist a ruling of violation, should the court refrain from insisting that human rights have been violated and from ordering that the state change its ways? This episode contrasts how the Inter-American and European Courts approach this question.

 

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Yean and Bosico (discussed in the previous episode) had no tangible positive effect on the Dominican Republic. The state flatly refused to abide by the judgment of the Inter-American Court.

One might surmise that the European system works better. However, we need to consider the relatively lax implementation that characterises it. For example, foreigners whose expulsion was found by the European Court to breach their right to family life went on to see the Committee of Ministers of the Council of Europe condoning their expulsion – admittedly not for life but only for ten years. Still ten years is a long time.

The question arises: what kind of human rights system do we want?

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Episode sixteen: The Inter-American Court is ready to stand up against states

In this episode I continue my exploration of the approach taken by the Inter-American Court of Human Rights.

In particular I focus upon the Yean and Bosico case which concerned two (unrelated) children of Haitian descent who were born in the Dominican Republic.

 

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The Dominican Republic authorities had refused to recognise their birth, leaving them also without the nationality to which they were entitled through having been born there of parents who were not ‘transient’ migrants.

This was a very sensitive case for the Dominican Republic which is home to a very large population of Haitian origin that it prefers not to recognise. Although the Inter-American Court was perfectly aware of the sensitivity of the case, it did not recoil from taking a tough stance against the state.

The Court found that the two girls’ had been unfairly denied a number of rights, including the right to nationality, the right to a legal personality and the right to a name. It added that their mothers, by having to fear the deportation of their daughters, had been subject to inhumane treatment. Last but not least, the Court ordered a wide range of reparations.

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