The European Court of Human Rights and Removal of Long-term Migrants

This chapter analyses the general interpretative outlook of the European Court of Human Rights (ECtHR) on the rights of long-term migrants facing deportation. It shows that this outlook is strongly marked by recognising the primacy of state discretion in the field of migration policy, while at the same time ensuring that long-term migrants are given access to the protection of the Convention. The chapter then surveys the case law of the ECtHR related to the deportation of long-term migrants, identifying the factors that the Court employs in balancing its dual commitment to states and long-term migrants. The central argument of the chapter is that the Court’s approach to the right to stay of long-term migrants falls short of adequately recognising the unique position of long-term migrants and is unable to differentiate between those who have lived for lengthy periods in host states and any other category of alien in those states. The Court’s recent emphasis on principled deference to domestic courts in balancing the rights of long-term migrants and host states further undercuts any future progressive developments in the field of right to stay for long-term migrants.

‘Handle with Care’ in StrasbourgThe Effective Access of Vulnerable Undocumented Migrants to Minimum Socio-economic Rights

This chapter aims to analyse how the European Court of Human Rights (ECtHR) has developed the protection of certain socio-economic rights of irregular migrants contributing to the consolidation of a minimum standard in this field. In particular, this chapter focuses on Strasbourg case law developments regarding rights to adequate housing, health care, and education, along with protection against labour exploitation and trafficking with the purpose of labour exploitation. Relevant contributions from other human rights bodies, particularly the European Committee of Social Rights (ECSR), will be also considered in order to conclude whether we can affirm the existence of a minimum core protections in this regard. The chapter concludes that international courts and non-judicial mechanisms are contributing to the definition of a shared global understanding of the centrality of human dignity in the quest to protect fundamental rights.

Islamophobia and the ECtHRA Test Case for Positive Subsidiarity for the Protection of Europe’s Long-term Migrants?

A reflection on the human rights of migrants in Europe cannot avoid the issue of racism. Resistance to immigration in Europe is fuelled to a large extent by resistance to the ‘otherness’ of migrants. More specifically, the ‘otherness’ that is most central to today’s debates on migration and integration in Europe is Islam. Thus, racism is commonly expressed as Islamophobia, and Islamophobia is both expressed in, and fuelled by, rights-restrictive rules that specifically target Islamic practices. The focus of the analysis in this chapter is on the messages the European Court of Human Rights (ECtHR) is sending to national authorities regarding their approaches to multicultural conflicts over Islamic minority practices. This is situated in the framework of ‘positive subsidiarity’. It is argued that, even when the margin of appreciation is a wide one, the Court has a responsibility to offer guidance to states parties on three levels: substantive, procedural, and discursive. The chapter then explores the messages sent by the Court to states parties in the field of the restriction of Islamic minority practices. First it does so by comparing what is widely considered the Court’s ‘worst practice’ in this field—the face veil cases—with its ‘best practice’ in a different, but comparable field—the ‘gay propaganda’ cases. After that, the chapter continues the analysis on the basis of a broader case law corpus that includes all cases regarding the accommodation of Islamic practice in countries in which Islam is a minority religion.

Migration and the European Convention on Human Rights

This chapter reviews the regulation of migration in international law, and locates the treatment of the question of migration in the European Convention on Human Rights. In particular, it shows that the text of the European Convention on Human Rights is silent on the question of migration or the rights of migrants, but that the European Court of Human Rights has nonetheless emerged as a key court for the rights of migrants through its interpretation of the Convention. The chapter then introduces the overall contribution of the collection of articles as a whole: a comprehensive and critical appraisal of the migration case law of the European Court of Human Rights.

Cultural Rights of MigrantsLiving Together in Dignity?

The growing and multifarious challenges (political, legal, social, and economic) that global migration raises for contemporary states requires solutions related not only to constitutional identity, but also to a better protection of human rights. Although less visible in the ‘big picture’, cultural rights are an important category of human rights. An absent or a precarious protection of these rights might affect other rights. That is why a balance must be struck between society’s needs and the cultural rights of the individual. In this context, questions may be asked: could there be common points regarding the cultural rights of migrants and of minorities in Europe? Is ‘living together’ a concept that can ensure the full respect of the human dignity of migrants, especially as regards cultural rights? The chapter attempts to answer some of these questions, mainly through the prism of the case law of the European Court of Human Rights (ECtHR).

Challenges to the Application of the Concept of Vulnerability and the Principle of Best Interests of the Child in the Case Law of the ECtHR Related to Detention of Migrant Children

The administrative detention of migrant children, and the conditions of deprivation of liberty, pose serious challenges to the realisation of their rights. The present chapter discusses the concept of vulnerability and the principle of the best interests of the child, and their legal consequences, for the effective respect, protection, and fulfilment of the human rights of migrant children in the context of immigration detention. In doing so, it gives a short overview of the developments in the Court’s case law related to detention of migrant children. Using the Court’s concepts of vulnerability, the best interests of the child, and circumscribed child’s autonomy, as well as taking inspiration from other international instruments and EU law, this chapter attempts to demonstrate where the European Court of Human Rights (ECtHR) case law on the detention of migrant children in particular under Articles 3, 5, and 8 of the ECHR could grow further, and the opportunities for such growth, as well as the barriers to it.

The J.K. DecalogueA Paradigm Shift in Dealing with Asylum Cases in Strasbourg?

This chapter addresses the approach the European Court of Human Rights (ECHR) takes in asylum cases from the perspective of international refugee law doctrines. First, the chapter discusses the traditional approach in dealing with asylum cases in Strasbourg, i.e. starting the analysis from the basic promise of the rights of states to control the entry, residence, and expulsion of aliens. The Court considers that this approach is based on well-established international law and the chapter summarises the international law voices that inspire this approach, which has been taken by the Court for almost thirty years. The second part of the chapter analyses the Grand Chamber judgment in the case of J.K. v Sweden and the attempt by the Court, through this judgment, to elaborate general principles applicable in asylum cases in Strasbourg. The analysis of the hierarchy of these ten general principles by the Court in the J.K. judgment stems from the question of whether the Court is modifying its traditional approach in dealing with asylum cases and moving towards a new approach which is inspired by another line of thinking in international law. It also seems that with this new approach the Court gives precedence in its analysis of asylum cases to the absolute character of rights guaranteed by Article 3 of the ECHR. This would make the Court’s analysis of asylum cases more coherent with other cases when Article 3 rights are at stake.

Intersectionality, Forced Migration, and the Jus-generation of the Right to Flee

This chapter critiques the piecemeal approach of the Strasbourg Court to the question of access to asylum, showing how intersectionality theory can facilitate a principled shift towards an analysis that captures the complexity of refugees’ position and recovers the indivisibility of human rights. The theory calls for the multi-dimensional appreciation of human experience in a way that encompasses the whole breadth of lived realities. A similar approach is advocated herein to the construal of the law so that intersectional thinking guides not only the appraisal of factual constellations, but also the interpretation of applicable norms. Only a whole-of-person approach matched by a whole-of-legal-system interpretation can realise substantive justice in practice. This requires a holistic understanding that penetrates the full depth of individual situations and incorporates all the relevant legal provisions in cumulative fashion, acknowledging the jus-generative effects of their interaction, overcoming the limitations of current constructions of rights as disconnected from each other and from the circumstances to which they apply. In the asylum-seeking context, the outcome of the intersection between the right to leave and the right to protection against ill-treatment is the composite ‘right to leave to escape ill-treatment’ or ‘right to flee’, based on the interactive combination of existing entitlements (without the need for new law). The purchase of this method is wider than this chapter has scope to demonstrate. It can be applied to the ECHR as a whole, promoting internal consistency and supporting its development as a constitutional instrument of European public order.

Stages of Migration and the European Convention on Human Rights

This case list offers a guide to the European Court of Human Rights (ECtHR) case law pertaining to migration. While the case list does not cite every ECtHR decision related to migration, it offers a comprehensive overview of important instances of case law indicative of the ECtHR’s jurisprudence on migration. These are, for example, Grand Chamber decisions, or cases cited by the Court in its more recent case law. In addition to including key cases cited in the preceding chapters of this book, this list also includes cases identified in thematic case law guides of the ECHR and recent jurisprudence in the area of migration, notified by the ECHR in monthly updates. The cases are organised in thematic blocks, which in turn appear in the order in which they pertain to the different temporal stages of migration, from entering the destination country to the right to remain and the cultural and religious rights of long-term migrants.

The Migrant Case Law of the European Court of Human Rights

Summarising a comprehensive review of six decades of case law published elsewhere, this chapter points out that the European Court of Human Rights (ECtHR) often privileges state sovereignty over migrants’ rights. This often leads to a deficit in protection whose origin can be traced to the so-called ‘Strasbourg reversal’ and the historical creation of jurisprudential lines which, in time, result in intellectually logical but ethically objectionable findings by the Court. Case law related to situations where migrants are left to live in perpetual limbo and immigration detention are provided as illustration. The chapter ends by highlighting jurisprudential avenues which the Court could adopt in order to remedy the identified shortcomings.