As we come towards the end of this series, it is important to think about ways to remedy the weaknesses that have been identified. In this podcast, I recommend that the European Court of Human Rights expands its interpretation of especially three articles of the European Convention on Human Rights.
Article 3 concerns inhuman and degrading treatment. Its application is dependent upon a ‘high threshold’ being met. Judges should try to put themselves in the shoes of migrant applicants before accepting the idea that this threshold is not met.
Article 6 is about having access to an independent and impartial judge and to be legally represented. As previously stressed, it is simply terrible that Article 6 is held not to apply to immigration matters. Maaouia must be reversed.
Article 14 concerns the prohibition of discrimination. The Court tends not to use it very much in its case law, preferring to focus on substantive rights. However, it is very important that the Court starts recognising and denouncing practices of discrimination more often – including on ground of nationality.
In this episode I look at another landmark human rights case from the late 1980s/early 1990s.
(If you have problems with the embedded player use this link to listen).
Vilvarajah v. the United Kingdom concerned five Tamil young men whose asylum application was rejected and who were returned to the Sri Lankan conflict. Their lawyers were so concerned for their welfare that they followed them to Sri Lanka and discovered that three of them had been subjected to torture or inhuman treatment.
Both the British government and the European Court of Human Rights accepted this evidence. Still the Court ruled in 1991 that the applicants removal had not breached Article 3 of the European Convention on Human Rights.
The Court’s position was that what had happened to these individuals could have happened to any young Tamil male. Therefore the applicants had not been at individual risk of inhuman treatment and Article 3 was not engaged.
It took over twenty years for the Court to amend its position on this point.
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