Case Watch: Europe’s Human Rights Court Delivers Mixed Ruling on Migrant Rights (Part One)

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In our “Case Watch” reports, lawyers at the Open Society Justice Initiative provide analysis of notable court decisions and cases that relate to their work to advance human rights law around the world.

On December 15, 2016, the Grand Chamber of the European Court of Human Rights (ECHR) ruled on the case of Khlaifia v. Italy, dealing with issues that are at the heart of the ongoing global discussion over the human rights of migrants and the practicalities of border control (as previously discussed here). 

The court delivered a mixed ruling from the perspective of migrants’ rights. On the one hand, it was a missed opportunity—watering down the procedural protections against collective expulsions, which the lower seven-judge chamber had previously strengthened in its September 2015 ruling based on well-established case law. On the other, it concluded that Italy’s detention of the applicants had no basis in domestic law, and so violates Article 5 of the European Convention on Human Rights.

On the first question, the lower chamber had taken the position that a personal interview of each migrant considered for expulsion was central to protection. The judgment had highlighted several factors which led it to the conclusion that there had not been enough guarantees in the expulsion procedure to differentiate between the situation of each applicant, thus making the expulsion collective in nature. The shortcomings identified included:

  • that the expulsion orders for the hundreds of individuals concerned were nearly identical;
  • that the questions asked by the authorities indicated that they were concerned primarily with identifying the individuals rather than assessing any risks to their lives if returned to Tunisia; and
  • the lack of reference to personal situations of the persons concerned in the expulsion. 

The Grand Chamber confirmed that Article 4 of Protocol No. 4 of the European Convention on Human Rights (prohibition of collective expulsions of aliens) requires the state to give every migrant the genuine and effective possibility of giving reasons against expulsion. But crucially, they rejected the applicants’ argument that this required an individual interview.

The ECHR has held in prior case law that “the purpose of Article 4 of Protocol No. 4 is to prevent States being able to remove certain aliens without examining their personal circumstances and, consequently, without enabling them to put forward their arguments against the measure taken by the relevant authority.(Hirsi v. Italy, para 177). In order for an expulsion order to demonstrate that the state has enquired into and assessed the individual circumstances of the person, both as matters of fact and law, then the decision to expel requires a genuine and individual assessment of the specific circumstances of each individual.

However, this position still left fell short of providing proper protections. It may, in practice, be virtually impossible to raise objections against the expulsion, if an individual is not provided with sufficient information as to the reasons, facts and law that substantiate the expulsion decision. As Judge Serghides explains in his dissenting opinion, without the right to a personal interview “the convention safeguards [may become] dependent merely on the discretion of the police or the immigration authorities.” It seems doubtful that the Court of Justice of the European Union (CJEU) would accept that the “right to be heard” can be met where no personal interview was conducted. The CJEU has yet to consider such a case, but in Boudjlida, judgment of 11 December 2014, the Court examined carefully the sufficiency of a 30 minute personal interview about reasons for opposing expulsion. In the Khlaifia case, the Italian Government had expelled the applicants under an agreement with Tunisia which claimed their personal circumstances were irrelevant, and could not produce any evidence that the applicants had been told otherwise.

As well as weakening the content of the prohibition on collective expulsion, the Grand Chamber, also took a step back on the right to a domestic remedy against this, required by Article 13 of the convention. The court ruled that this remedy does not need to be suspensive unless there is a potential violation of Article 2 (right to life) or Article 3 (prohibition of torture) of the convention. This contrasts with the lower chamber’s decision which had highlighted that the local measures available to the individuals to contest deportation did not satisfy the requirements of Article 13 (right to a remedy) by failing to meet the criteria regarding suspensive effect as set out in the case of De Souza Ribeiro.

The end result in the Grand Chamber’s ruling in Khlaifia is that the ECHR watered down its case law and undermined concrete due process rights and protections for migrants being subjected to deportation procedures. The court has therefore provided states more leeway in the treatment it owes to every migrant, at a time when political pressure is growing in Europe for further collective expulsions.

We will deal in an upcoming blog with the positive aspect of the Grand Chamber’s ruling: the conclusion that detention in Italy’s “asylum hotspots” has no basis in domestic law and so violates Article 5 of the convention.

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