Migrants’ avoidance of the European Court of Human Rights concerns us all

This post was published by the Strasbourg Observers earlier today. I am grateful for their permission to re-publish it here.

Every year towards the end of January, the President of the European Court of Human Rights holds a press conference that takes stock of the previous year. This year, President Raimondi reported in his speech that the situation of the Court was ‘generally satisfactory’. Can we be so sure?

Performance even in as sensitive an area as human rights is now often measured in quantitative terms. In line with this trend, the President noted that over 45,000 cases were decided in 2015. Whilst in 2011 the backlog stood at an all-time high of 160,000 pending cases, this has now been reduced to 65,000 cases. Better still, it looks like it will be possible to reduce the backlog further in 2016. The end of the press conference reserved some words for the migrant crisis. Having gripped Europe since the summer, so far, the crisis has not put the Court under strain, although a plan of action is in place in case an influx of Rule 39 requests suddenly materialises.

First an explanation: Rule 39 allows an applicant to request an interim measure. If granted, the Court orders the defendant state to do something during the time it takes for the merits of the applicant’s complaint to be ruled upon. Thousands of migrants have resorted to Rule 39 over the years. They typically ask the Court to order a European state to stay the execution of their removal to their country of origin or another country with which they have links. Many lawyers used to regard Rule 39 as their last chance to ensure that their clients were not taken to a place where they would face torture or possibly even be killed. To cite a famous case, the journalist Gebremedhin would have been removed to Eritrea in 2005, had the Court not ordered France to wait. A Rule 39 interim measure has no incidence on whether the removal will ultimately be ruled to be contrary to the European Convention on Human Rights in the main proceedings. This question is addressed by the Court in due time, after both parties have submitted their arguments and proper deliberation by the judges.

In his recent press conference, Judge Raimondi noted that 24 requests for the application of Rule 39 had been received in 2015 regarding removals to Hungary. These requests emanated from Afghans, Palestinians, Syrians and others who were refusing to be returned to Hungary by states such as Austria, Slovakia, France, Finland or Sweden. Nine of these requests were granted. The latest statistics of the Court indicate that would-be returnees to Hungary were not the only persons to have made Rule 39 requests in 2015: about 1,500 requests were received by the Court (without information being readily available as to how many originated from migrants). Out of these, 161 interim measures were granted. The Court has confirmed to me that half of these (about 80) concerned removals. The other half was mostly about the situation in Crimea and Eastern Ukraine.

The figures are astonishing and thus worth repeating in a slightly different form: migrants are now experiencing such a low rate of success in their Rule 39 requests that not even 100 managed to persuade the Court to stay their removal in 2015. The situation was rather different in 2010. Then, 1,440 requests were granted – out of 3,680 requests made (almost exclusively by migrants). It would be nice to think that the staggering five-year drop in Rule 39 requests made by migrants on the one hand and accepted by the Court on the other is due to migrants having become far more welcome, thereby alleviating their need to seek and receive support at Strasbourg. Unfortunately, a more convincing explanation is that the Court has purposively discouraged migrants from resorting to Rule 39 by instigating internal policy changes that lead it to refuse requests more systematically.

As migrants encountered more and more difficulties in Europe, they increasingly turned to Strasbourg. And as Rule 39 increasingly came to act as a life line for migrants, it also became the bane of the Court. Things came to a head in January 2011. The Court had received 2,500 requests in the previous four months, and it looked like numbers would keep mounting if nothing was done. The Court described the situation as ‘alarming’. This was not in order to denounce the difficulties experienced by migrants but in order to highlight its own case processing difficulties. In response, the Court said it was not an immigration tribunal and therefore could not be expected to intervene, bar in truly exceptional cases. The great majority of the thousands of requests it had recently received were obviously considered run-of-the-mill rather than exceptional.

Judge Costa, the then President of the Court, issued a statement which urged governments to provide effective and fair national remedies that were suspensive. This had no discernible effect on the situation on the ground. For example, to this day, few expellees are informed well in advance of the details of the flight on which the authorities plan to remove them. The President’s statement also addressed applicants and their representatives. They were told they must provide the Court with all the necessary documentation and in good time if a Rule 39 request was to have any chance of success (as if it was their slack work that was generally responsible for last minute and incomplete applications). Coupled with a transformation in the procedure followed to deal with these requests (on which, see my book, p. 435), this changed everything. Suddenly request after request was refused. Learning their lesson, migrants’ legal representatives have virtually stopped lodging Rule 39 requests, triggering the number of Rule 39 requests to drop. The result is the 2015 statistics.

The Court is happy: it can function properly. But is it really functioning as it should? The policies put in place by the Court may be an unmitigated success from a case management perspective. But from a human rights perspective?

The unprecedented number of refugees currently in Europe raises serious challenges for European states and populations. One would wish that the European Court of Human Rights was joining the chorus of voices who affirm that we must remain driven by a sense of common humanity. For a variety of reasons explored in my book, since its inception the Court has tended to side with the state rather than with migrants. Who would say this is not a regrettable and dangerous orientation?

Episode 30: The right to be humane should be recognised paramount

When Humans Become Migrants ends by asking whether the right to be humane should top any human rights list. The question has lost none of its pertinence since the book was written. It also ends this podcast series.


Episode 29: Let us also think about the Strasbourg procedures

Procedures are very important. Before a court, they can make or break a case. This is as true at the European Court of Human Rights as anywhere else. This podcast highlights three areas of concern in relation to migrant cases.


The first concerns provisional orders. The Court can order a defendant state to keep a migrant on its territory, until it actually decides whether sending back this person would violate or not the European Convention on Human Rights. However, such provisional orders are increasingly rare, with predictable negative effects on applicants.

The second area of concern is that the Court encourages parties to reach ‘friendly settlements’. Even if the dispute is satisfactorily resolved for the applicant (which it not always is – for example, the state may grant a residence permit, but only for a limited period), there remains the problem that no general lesson can be drawn from a case that ends on a friendly settlement. The underlying problematic situation, if any, will probably remain unchanged.

Thirdly, it is regrettable that the Court hardly allows itself to discuss reparations. In other words, it declares whether a violation has occurred but it normally does not say what the state must do to repair the violation. In other words, what should happen after the judgment is not spelt out, leaving room for interpretation as to what human rights law requires.


Episode 28: The way forward is to expand ECHR guarantees

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.

To download a copy of this podcast, right-click the following link: HRM28 The way forward- Expanding Articles 3:8, 6 and 14 ECHR

Episode 26: Can a child ever be just a ‘fait accompli’?

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.

To download a copy of this podcast, right-click the following link: HRM26 Can a child ever be just a ‘fait accompli’?.

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.


(If you have problems with the embedded player use this link to listen).

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).

To download a copy of this podcast right-click this link and choose ‘Download Linked File’ or ‘Save Link As…’.

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

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.


(If you have problems with the embedded player use this link to listen).

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.

To download a copy of this podcast right-click this link and choose ‘Download Linked File’ or ‘Save Link As…’.

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.


(If you have problems with the embedded player use this link to listen).

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.

To download a copy of this podcast right-click this link and choose ‘Download Linked File’ or ‘Save Link As…’.

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?


(If you have problems with the embedded player use this link to listen).

To download a copy of this podcast right-click this link and choose ‘Download Linked File’ or ‘Save Link As…’.