PROTECTION OF MIGRANTS AND ASYLUM-SEEKERS: STATES’ MAIN LEGAL OBLIGATIONS UNDER THE COUNCIL OF EUROPE CONVENTIONS

 

 

Terminology as established by the United Nations Refugee Agency (UNHCR).

Migrants: A wide-ranging term that covers most people who move to a foreign country for a variety of reasons and for a certain length of time. Different from “immigrant”, which means someone who takes up permanent residence in a country other than his or her original homeland.

Asylum-seeker: Someone who has made a claim that he or she is a refugee and is waiting for that claim to be accepted or rejected. The term contains no presumption either way; it simply describes the fact that someone has lodged a claim. Some asylum-seekers will be judged to be refugees and others not.

 

Migrants and asylum-seekers enjoy the protection offered by the European Convention on Human Rights insofar as they fall under the States Parties’ jurisdiction, regardless of their nationality and/or legal status. They also enjoy the protection of the European Social Charter in certain circumstances.

 

You will find below a non-exhaustive list of relevant obligations deriving from the European Convention on Human Rights as interpreted by the Court[1], the European Social Charter as interpreted by the European Committee of Social Rights as well as the relevant standards of the European Committee for the Prevention of Torture (CPT).[2] 

 

These instruments do not guarantee the right to enter and remain on the territory of a member State, nor do they guarantee the right to asylum. In this context, States shall also take account of their international legal obligations, notably the 1951 Geneva Convention relating to the Status of Refugees and its 1967 Protocol.

 

ACCESS TO TERRITORY AND RECEPTION

 

In the case of first contact within territorial waters, at a port of entry (including at borders and in “international” or “transit” zones) or within national territory, including for those having entered clandestinely, the Convention applies in full. If first contact with migrants occurs at sea outside territorial waters and a national authority comes to exercise effective control over the vessel in question and/or its passengers, the State’s human rights obligations under the Convention are engaged with respect to those persons.[3]

 

In exercising control of their borders, member States must also act in conformity with the European Convention on Human Rights. These include:

 

• no “pushbacks” or collective expulsions[4];

 

• States are required to ensure that the principle of “non-refoulement” is effectively respected. The State shall not act in such a way that the person concerned is exposed to a real risk of the death penalty, torture or inhuman or degrading treatment or punishment, persecution, or serious violation of other fundamental rights. This includes returning a person to a transit country (which may be categorised as a “safe third country”) that does not itself offer sufficient guarantees against refoulement;[5]

 

• ensuring that migrants’ and asylum-seekers are not subject to ill-treatment or inhuman and degrading treatment, including disproportionate violence, physical restraint or inappropriate and unnecessary body searches[6];

 

• no discrimination in immigration controls and in the decision of granting entry on the basis of sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status[7];

 

• when in reception centres or otherwise, migrants should be guaranteed adequate conditions and access to health care as well as adequate food[8].

 

DEPRIVATION OF LIBERTY

 

Migrants and asylum seekers who are deprived of their liberty must be held in conditions compatible with the European Convention on Human Rights and the CPT standards.

 

• Detention is only lawful if used as an exceptional measure and is justified, decided and carried out in accordance with procedures prescribed by a precise and accessible legislation[9];

 

• Detention is justified for the purpose of preventing persons to enter the territory illegally[10] or/and in order to efficiently process the case of an asylum seeker or/and pending deportation[11];

 

 

 

• Migrants and asylum seekers deprived of their liberty have the right to be informed promptly, in a language they understand, of the nature of their detention, the reasons for it and the process for reviewing or challenging the decision to detain, i.e. the available judicial or other remedies; authorities must also ensure that migrants are provided with legal advice[12];

 

• Arrangements shall be made so that detained migrants and asylum seekers have access to a  lawyer and a doctor from the very outset of their detention and throughout the detention[13];

 

• The detention shall last for the shortest possible period – otherwise it can be found unlawful[14];

 

• Migrants held in detention shall not be treated like prisoners – the facilities used for immigration detention should be suited for their specific situation[15] – for example, families in detention shall be provided with separate accommodation in order to guarantee adequate privacy[16]; however, the “child´s best interests cannot be confined to keeping the family together and the authorities have to take all the necessary steps to limit, as far as possible, the detention of families accompanied by children and effectively preserve the right to family life”[17];

 

• The conditions of detention shall be in compliance with the fundamental principles of human dignity: facilities should be clean, safe and healthy[18];

 

• Migrants and asylum-seekers shall be able to challenge the lawfulness of their detention and the conditions of detention; judicial review should be carried out speedily by an independent and impartial judicial body[19].

 

 

 

 

LIVING CONDITIONS

 

The European Convention on Human Rights and, more particularly, the European Social Charter require that States ensure certain minimum living conditions for migrants living on their territory. These rights are particularly relevant to those who are awaiting the outcome of asylum procedures, the execution of expulsion orders or whose asylum request has been rejected. When these migrants are not held in reception centres or in administrative detention, they should be granted a safe and clean shelter, food, clothing and emergency medical assistance[20].

 

ACCESS TO PROCEDURES

 

• Persons seeking asylum must have access to fair procedures. Individual applications must be examined objectively with decisions taken on a case by case basis;[21]

 

• Asylum-seekers who run a risk to their lives or face potential risk of torture or ill-treatment if returned to their country are protected by the Convention[22]: their expulsion or extradition is prohibited as long as the risk remains. Expulsions are also prohibited in certain cases where such a response would constitute a disproportionate interference with the applicant’s family life;[23]

 

• As applications for asylum are considered, individuals have a right to information, in a language they understand, concerning the procedural steps and their entitlements, as well as a right to legal advice, to interpretation when necessary, and to have the interviews carried out by qualified staff;[24]

 

• Asylum seekers whose applications are rejected shall have the right to have the decision reviewed by a means constituting an effective remedy. When there are substantial grounds for believing that a removal decision could lead to a real risk of death penalty, torture or ill-treatment, the remedy against the removal decision shall have suspensive effect.[25]

 

 

 

 

 

Additional safeguards for vulnerable groups

 

The particular needs of vulnerable groups, such as children, victims of torture, sexual violence or human trafficking, persons with mental and/or physical disabilities, and other individuals at particular risk, shall be duly taken into account at all stages[26].

 

In particular, special safeguards for asylum seekers who are unaccompanied minors should be ensured[27]. These include the need to appoint a guardian and/or legal representative.

 

Unaccompanied minors shall be provided with extra protection and care and shall be protected from all forms of violence, abuse and exploitation[28]. They should, as a rule, be accommodated in a specialised establishment for children. They shall not be held in centres that are “ill-adapted to the presence of children”[29].

 

Deprivation of liberty of children shall be a measure of last resort, limited to the exceptional situations where the deprivation of liberty of the minor would be in the best interest of the minor – to preserve the family unity for example[30].

 

Children deprived of their liberty should enjoy the same right to education as children at liberty[31].

 

Women are also considered a vulnerable group for the purpose of deprivation of liberty. A disrespectful conduct or the lack of adequate conditions of detention taking into consideration the specific needs of women constitute inhuman and degrading treatment[32].

 

FORCED RETURN

 

Persons subject to a deportation order shall not be physically assaulted to board a means of transport or as a punishment for not having done so. Any unlawful act of that kind shall be properly investigated or otherwise remedied by the authorities. [33]

 

The force and the means of restraint used shall be no more than is reasonable and necessary.[34]

[1] Examples of case law are presented in footnotes under each heading. The cases cited as well as European Court of Human Rights judgements generally can be found online at: http://hudoc.echr.coe.int/eng#{"documentcollectionid2":["GRANDCHAMBER","CHAMBER"]}

[2] See in particular the document CPT Standards, CPT/Inf(2002)1 rev. 2015, Section IV (Immigration detention).

[3] See e.g. Hirsi Jamaa and Others v. Italy.

[4] See e.g. Hirsi Jamaa and Others v. Italy.

[5] Ibid. …

[6] See e.g. Solomou and Others v. Turkey.

[7] See e.g. East African Asians v. the United Kingdom (Eur. Comm, 1973); Abdulaziz, Cabales and Balkandali v. the United Kingdom; Cyprus v. Turkey as well as Kiyutin v. Russia

[8] See e.g. M.S.S. v. Belgium and Greece

[9] See e.g. Rashed v. Czech Republic; Kaya v. Romania.

[10] See e.g. Saadi v. United Kingdo.m.

[11] See e.g. M.S.S. v. Belgium and Greece

[12] See e.g. Rusu v. Austria; Gebremedhin v. France.

[13] See e.g. Mouisel v. France; D.B. v. Turkey; See also CPT standards, CPT/Inf(2002)1 rev. 2015, Section IV (Immigration detention), §30-31 and §81-82 and §87.

[14] See e.g. Auad v. Bulgaria.

[15] See e.g. Saadi v. the United Kingdom. See also CPT standards, CPT/Inf(2002)1 rev. 2015, Section IV (Immigration detention), §29; see also CPT standards CPT/Inf(2002)1 rev. 2015, §87 & §100.

[16] See e.g; Mubilanzila Mayeka and Kaniki Mitunga v. Belgium; Popov v. France.

[17] See e.g. Popov v. France, §147.

[18] See e.g. Lutanyuk v. Greece; Orchowski v. Poland; M.S.S. v. Belgium and Greece; Efremidze v. Greece; CPT standards, CPT/Inf(2002)1 rev. 2015. §29.

[19] See e.g. Suso Musa v. Malta. See also the Committee of Ministers’ Twenty Guidelines on Forced Return, 2005 (Guideline 9, “Judicial remedy against detention”).

[20] See e.g. M.S.S. v. Belgium and Greece; Tchokontio Happi v. France as well as decisions of the European Committee of Social Rights, notably Conference of European Churches (CEC) v. the Netherlands; European Federation of National Organisations working with the Homeless (FEANTSA) v. the Netherlands; Defence for Children International (DCI) v. Belgium; Defence for Children International (DCI) v. the Netherlands; International Federation of Human Rights Leagues (FIDH) v. France.

[21] See e.g. Mikolenko v. Estonia.

[22] See e.g. Abdolkhani and Karimnia v. Turkey.

[23] See e.g. Alim v. Russian Federation.

[24]  See e.g. M.S.S. v. Belgium and Greece.

[25] See e.g. De Souza Ribeiro v. France.

[26] See e;g. Mubilanzila Mayeka and Kaniki Mitunga v.  Belgium, Rahimi v. Greece, Aden Ahmet v. Malta, D. v. UK

[27] See e.g. Rahimi v. Greece.

[28] See e.g. Mubilanzila, Mayeka and Kaniki Mitunga v. Belgium. See also CPT standards, CPT/Inf(2002)1 rev. 2015, Section IV (Immigration detention), § 97ff.

[29] See e.g. Popov v. France.

[30] See e.g. Rahimi v. Greece. See also CPT standards, CPT/Inf(2002)1 rev. 2015, § 87 & § 100.

[31] This is based on Article 2 of Protocol No. 1 to the European Convention on Human Rights.

[32] See e.g. Aden Ahmed v. Malta.

[33] See e.g. Savriddin Dzhurayev v. Russia

[34] See e.g. M.S.S. v. Belgium and Greece