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