PACE Resolution 2109 (2016) The situation of refugees and migrants under the EU-Turkey Agreement of 18 March 2016
1. The Parliamentary Assembly takes note of the European Union-Turkey Agreement of 18 March 2016, adopted against the background of the unprecedented numbers of refugees and migrants arriving in western Europe via the Eastern Mediterranean and Western Balkans route in 2015, which had generated political tensions in many States and an institutional crisis in the European Union. It recalls the fact that Turkey currently hosts over 2.7 million Syrian refugees, on whom it estimates to have spent over €7 billion.
2. The Assembly considers that the EU-Turkey Agreement raises several serious human rights issues relating to both its substance and its implementation now and in the future, in particular the following:
2.1. the Greek asylum system lacks the capacity to ensure timely registration of asylum applications, issue of first instance decisions or determination of appeals; the new Greek Law 4375/2016 may help to address earlier shortcomings but will not ensure adequate capacity;
2.2. detention of asylum seekers in the “hotspots” on the Aegean islands may be incompatible with the requirements of the European Convention on Human Rights (ETS No. 5), due notably to procedural failures undermining the legal grounds for detention and inadequate detention conditions;
2.3. children and vulnerable persons are not systematically referred from detention to appropriate alternative facilities;
2.4. returns of Syrian refugees to Turkey as a “first country of asylum” may be contrary to European Union and/or international law, as Turkey may not ensure protection that is “sufficient”, according to the position of the Office of the United Nations High Commissioner for Refugees (UNHCR), and there have been reports of onward refoulement of Syrians;
2.5. returns of asylum seekers, whether Syrians or not, to Turkey as a “safe third country” are contrary to European Union and/or international law, as Turkey does not provide them with protection in accordance with the 1951 Convention relating to the Status of Refugees, non-Syrians do not have effective access to the asylum procedure and there have been reports of onward refoulement of both Syrians and non-Syrians;
2.6. remedies against decisions to return asylum seekers to Turkey do not always have automatic suspensive effect, as required by the European Convention on Human Rights;
2.7. resettlement of Syrian refugees from Turkey is made conditional on the number of returns from Greece and will subsequently depend on a “Voluntary Humanitarian Readmission Scheme”, which is likely in practice to generate unacceptably low levels of resettlement;
2.8. there have been unreasonable delays in the European Union’s disbursement of Financial assistance promised to Turkey to help support Syrian refugees in Turkey, which should not depend on developments in the Aegean Sea.
3. The Assembly also has concerns relating to certain parallel initiatives in areas closely related to the EU-Turkey Agreement, in particular the following:
3.1. the closure by “the former Yugoslav Republic of Macedonia” of its southern border, coupled with the EU-Turkey Agreement, has added to the pressure on Greece, a country already struggling with the effects of budgetary and financial austerity;
3.2. most European Union member States have effectively failed to honour their pledges to relocate refugees from Greece, despite the growing pressure that country is under;
3.3. it is premature to consider resuming transfers to Greece under the Dublin Regulation given the continuing inadequacies of its asylum system, the additional pressure of its current situation and the fact that the Committee of Ministers of the Council of Europe has not yet closed supervision of execution by Greece of the judgment of the European Court of Human Rights in the case of M.S.S. v.Belgium and Greece.
4. The Assembly therefore recommends that Greece, as an implementing party of the EU-Turkey Agreement, and the European Union, insofar as it provides relevant operational assistance to the Greek authorities:
4.1. refrain from automatic detention of asylum seekers and ensure strict adherence to the requirements of national law, the European Convention on Human Rights and European Union law concerning both the grounds for and conditions of detention, with adequate provision for alternatives where detention is not justified or otherwise inappropriate, including following the expiry of time limits;
4.2. systematically ensure that children and vulnerable persons are promptly excluded from detention and referred to appropriate alternative facilities;
4.3. ensure that the rights and provisions under the European Union Reception Conditions Directive are fully respected for all refugees and migrants arriving in Greece;
4.4. refer the question of interpretation of the concept of “sufficient protection” in Article 35 of the
European Union Asylum Procedures Directive to the Court of Justice of the European Union and, until such interpretation has been given, refrain from involuntary returns of Syrian refugees to Turkey under this provision;
4.5. refrain from involuntary returns of asylum seekers to Turkey in reliance on Article 38 of the Asylum Procedures Directive;
4.6. ensure that sufficient resources, from within the Greek administration and seconded from other European Union member States, are rapidly made available so as to allow effective access to a proper asylum procedure and rapid first instance decisions and appeal determination, in accordance with European Union law, especially for applicants in detention;
4.7. revise the legislation to ensure that all appeals against decisions to return to Turkey have an automatic suspensive effect;
4.8. ensure that all migrants and asylum seekers whose applications are not accepted are treated with dignity and in full compliance with the European Union Return Directive.
5. The Assembly also recommends to the European Union, its member States, and States participating in European Union resettlement schemes, as appropriate:
5.1. resettlement pledges made under the 20 July 2015 European Union agreement on resettlement should be rapidly and fully honoured, regardless of developments in the implementation of the EUTurkey Agreement; beyond that, substantial numbers of Syrian refugees should be resettled from Turkey;
5.2. family reunion of refugees should be allowed without any delay or complicated procedures, in order to prevent family members from being forced to take an irregular route to reunification;
5.3. the financial assistance promised to Turkey in November 2015 to help support Syrian refugees should be disbursed without further delay;
5.4. commitments to relocate refugees from Greece should be rapidly fulfilled;
5.5. there should be no further consideration of resuming transfers to Greece under the Dublin
Regulation until the Committee of Ministers has closed its supervision of execution by Greece of the M.S.S. judgment.
6. Finally, the Assembly recommends that Turkey:
6.1. withdraw its geographical limitation to the 1951 Refugee Convention and recognise the status and fully respect the rights of refugees under that convention;
6.2. refrain from any onward refoulement of asylum seekers returned from Greece, ensuring access to the asylum system and to an effective remedy with suspensive effect against removal as required by the European Convention on Human Rights;
6.3. ensure that all migrants and asylum seekers returned from Greece are treated in full accordance with international standards, including on detention.
The case F.G. v. Sweden (application no. 43611/11) concerned the refusal of asylum to an Iranian national converted to Christianity in Sweden. The applicant, F.G., notably alleged that, if expelled to Iran, he would be at a real risk of being persecuted and punished or sentenced to death owing to his political past in the country and his conversion from Islam to Christianity.
In the Grand Chamber judgment (23/03/2016) in the case the European Court of Human Rights held, unanimously:
that there would be no violation of Article 2 (right to life) and Article 3 (prohibition of torture and of inhuman or degrading treatment) of the European Convention on Human Rights, on account of F.G.’s political past in Iran, if he were deported to his country of origin, and
that there would be a violation of Articles 2 and 3 of the Convention if F.G. were to be returned to Iran without a fresh and up-to-date assessment being made by the Swedish authorities of the consequences of his religious conversion.
The Court pointed out that the case involved important issues concerning the duties to be observed by the parties in asylum proceedings.
The Court considered that there was no evidence to support the allegation that the national authorities, in their decisions refusing asylum, had been wrong to come to the conclusion that F.G. had been a low-profile activist or political opponent and was not therefore in need of protection in Sweden. Indeed, they had taken into account F.G.’s political activities against the Iranian regime, as well as the fact that he had been arrested on a number of occasions and summoned before the Iranian courts. Nor could the Court conclude that the asylum proceedings had in any way been inadequate as concerned its assessment of F.G.’s political activities.
However, as concerned F.G.’s conversion to Christianity, the Swedish authorities had so far never made an assessment of the risks that F.G. could encounter upon returning to Iran. Regardless of F.G.’s conduct (namely, the fact that he declined to invoke his conversion as an asylum ground in the original proceedings), the Court considered that the Swedish authorities would now be under an obligation – given the absolute nature of Articles 2 and 3 of the Convention – to make a fresh assessment, of their own motion, of all the information brought to their attention before taking a decision on his removal.
Court’s press release: http://hudoc.echr.coe.int/app/conversion/pdf?library=ECHR&id=003-5334476-6650466&filename=Grand%20Chamber%20judgment%20F.G.%20v.%20Sweden%20-%20refusal%20of%20asylum%20to%20an%20Iranian%20national%20converted%20to%20Christianity%20in%20Sweden.pdf
The latest report on Greece by the Council of Europe anti-torture Committee (CPT), issued on 1 March, rang, once again, the alarm concerning decades-old, institutionalised, unlawful violence by law enforcement agents. In its press release CPT highlighted the need for Greece to fully acknowledge the phenomenon of police ill-treatment and to adopt a “comprehensive strategy and determined action” to address it.
The issue is compounded by the fact that this deeply ingrained violence is combined with institutionalised racism inside parts of the Greek law enforcement forces, thus targeting in particular migrants. In its 2015 report the Greek Racist Violence Recording Network noted that in 21 out of the 81 racist incidents that were recorded in 2014 the perpetrators were either only law enforcement officials or law enforcement officials along with other perpetrators. Out of these, 13 took place in public places, six in police stations or detention centres, and two in an abandoned private place.
These findings were corroborated by the 2016 CPT report where it is noted that infliction of ill-treatment by law enforcement agents, particularly against foreign nationals, including for the purpose of obtaining confessions, continues to be a frequent practice. The report contains some particularly worrying, graphic paragraphs and an appended photograph concerning the alleged use in 2015 by the police in Thessaloniki of wooden bats during the interrogation of a Bulgarian national who was detained on remand.
The CPT report is alarming because it clearly identifies a Greek police culture under which it is not unprofessional to resort to ill-treatment, although its prohibition is enshrined in the unqualified and non-derogable Article 3 of the European Convention on Human Rights (ECHR). As the Strasbourg Court has underlined on numerous occasions (see e.g. Galotskin v. Greece, 2010) Article 3 ECHR enshrines one of the most fundamental values of democratic societies. Even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the victim’s conduct. In addition, the Court has noted that in respect of a person deprived of their liberty, recourse to physical force which has not been made strictly necessary by their own conduct diminishes human dignity and is in principle an infringement of Article 3 ECHR.
One of the major root causes for this highly problematic situation lies with the culture of impunity that pervades parts of the Greek, primarily, police forces, as well as of prosecutorial and judicial authorities. This requires a drastic overhaul of the law enforcement overseeing and redress mechanisms and of the awareness-raising and sensitisation of all actors of the national justice system.
As regards the law enforcement sector, CPT recommends the fostering of proper conduct by police members towards detainees, notably by doing more to encourage police officers to prevent colleagues from ill-treating, and to report, through appropriate channels, all cases of violence by colleagues. Importantly, CPT underlines the need for the authorities to adopt “whistle-blower” protective measures. However, in order for these highly useful recommendations to be given effect it is necessary to develop a reporting system linked to an independent complaint authority and a legal and institutional system able to fully and effectively safeguard the whistle-blowers’ personal security and other rights.
As regards the need to establish an independent and effective complaint mechanism, in his 2013 report on Greece, the Council of Europe Commissioner for Human Rights, drawing upon the Council of Europe Committee of Ministers Guidelines on eradicating impunity for serious human rights violations (2011), urged Greece to establish a fully independent and well-functioning complaints mechanism covering all law enforcement officials. This should be based on the five principles of effective complaints investigation: (a) independence: there should be no institutional or hierarchical connections between the investigators and the official complained against and there should be practical independence; (b) adequacy: the investigation should be capable of gathering evidence to determine whether the behaviour of the law enforcement body complained of was unlawful and to identify and punish those responsible; (c) promptness: the investigation should be conducted promptly and in an expeditious manner in order to maintain confidence in the rule of law; (d) public scrutiny: procedures and decision-making should be open and transparent in order to ensure accountability; and (e) victim involvement: the complainant should be involved in the complaints process in order to safeguard his or her legitimate interests.
What is however even more worrying and challenging is the fact that not only the administrative but also the judicial routes of investigation and prosecution in this context are fundamentally flawed. For example, CPT in its 2016 report refers to the cases of three migrant detainees whose allegations of torture and severe ill-treatment by police officers in 2013 were investigated by a public prosecutor. The prosecutor summarily dismissed the complaints and closed the file. The problem is that such bluntness has been encountered even at the highest judicial level, that of the Greek Court of Cassation (Areios Pagos). A characteristic example is the case of Kouidis v. Greece, where in 2006 the UN Human Rights Committee found the first violation by Greece of the International Covenant on Civil and Political Rights. This was the consequence of the fact that Areios Pagos, in a criminal case decided upon in 1998, did not take into account the applicant’s claims that his confession to the police was given under duress (serious ill-treatment including the use of falanga) during his interrogation in the Athens police headquarters.
The above shows that international and European human rights norms and standards have not as yet been fully embedded in the Greek national legal system. As noted by Adamantia Pollis in her incisive study on human rights in modern Greece (1987), albeit the judiciary in this country has been structurally independent it has rarely acted as a separate and autonomous branch of government. This has been a consequence of an ‘organic’ conception of the Greek nation which is embodied in the state, and its institutions, reinforcing its power. Pollis’ research in the 1980s demonstrated that Greek judges have remained committed to a legal philosophy that supports legal restrictions of rights in the name of higher state interests.
In order to overcome these structural shortcomings, the establishment of an effective system of administration of justice is needed, with courts empowered to apply domestic anti-torture law in line with the state’s human rights obligations and international or regional case law. Under the Strasbourg Court’s jurisprudence (see e.g. Gäfgen v. Germany, 2010) states have a positive procedural obligation, deriving from Article 3 ECHR, to conduct a thorough and effective investigation in all cases that raise an arguable claim of ill-treatment. This investigation should be capable of leading to the identification and punishment of those responsible. In view of this, in the course of the examination of all such cases the Strasbourg Court has imposed on itself the obligation to “apply a particularly thorough scrutiny”. In fact, this is the level of scrutiny that is required also from prosecutors and courts at domestic level.
In the 1975 ‘first torturers’ trial’ in Greece targeting officers of the Greek military police (ESA) involved in torture during the 1967-1974 dictatorship (cf. Amnesty International’s report), the court-martial prosecutor posed a fundamental question that is still echoing: “How could Greek officers sink to this moral degradation? Who are those responsible?” In a characteristically frank statement, probably prompted by the post-dictatorship atmosphere reigning then in Greece, the prosecutor added that “those morally responsible are not in this court. They are those who used the defendants…who, for many years, have given thousands of hours instruction on the fighting of communism without sparing even one hour to the defence of democracy”.
Regrettably these phrases are still of relevance today and call for reflection. Unlawful violence and impunity in the Greek system of law enforcement are decades-old long and derive from a long, sad tradition of state repression and disregard of human dignity and civil rights. As Pollis said in her 1987 study, despite the post-1974 legal and institutional changes in Greece, the underlying world view of the earlier decades persists. This is why the ‘culture’ of impunity still constitutes the mind frame of many state institutions and is tolerated. It is indeed high time for the national authorities to cross the Rubicon and redress this situation where human rights standards and the rule of law cannot but buckle.
By Nikolaos Sitaropoulos
In Osungu and Lokongo v. France (delivered on 8/9/2015), the European Court of Human Rights (“the Court”) rejected as “manifestly ill-founded” two applications submitted by Congolese regular migrants. The proceedings concerned the French authorities’ refusal to grant the migrants family allowances for their minor children who had entered and resided in France, in contravention of the family reunification rules (§§21-26).
The respondent state admitted that the refusal to grant family allowances affected the applicants’ right to respect for family life (Article 8 ECHR) and that this treatment was differential compared with that given to migrants from countries that have concluded special agreements with the European Union. However, the government argued primarily that this differential treatment was justified under Articles 8 and 14 (the non-discrimination clause in the ECHR) as “proportionate to the legitimate aims that it pursued, that is, the protection of public health, the protection of the child and immigration control” (§36). Additionally, the respondent state produced ten administrative court judgments to prove that regularisation of a de facto reunification is possible under domestic law and practice, and that the applicants could have made use of this avenue.
The Court did not really analyse the argument concerning nationality based differential treatment. It noted briefly (§44) that this treatment is not grounded exclusively in nationality and occurs in an “economic and social domain” where states enjoy a large margin of appreciation.
The largest part of the Court’s reasoning was centred on the argument advanced by France that regularisation was possible under domestic law (in order to receive the family allowances), and that the applicant parents did not make any serious efforts to that end (although the applicants had instituted a series of domestic court proceedings claiming discrimination). Based on this argument, the Court held that the non-allocation of family allowances was due to the applicants’ non-compliance with the family reunification rules. This, according to the Court, constituted an “objective and reasonable justification” for differential treatment (§48).
The Court’s decision raises questions of compatibility with previous case law. In the landmark Belgian Linguistics case (1968), the Court affirmed that the principle of equality of treatment is violated if the “distinction has no objective and reasonable justification”. Such a justification must be assessed “in relation to the aim and effects of the measure … regard being had to the principles which normally prevail in democratic societies”. There are two conditions that differential treatment must fulfill: firstly, it must pursue a legitimate aim; secondly, there must be a “reasonable relationship of proportionality between the means employed and the aim sought to be realised”. These principles have been applied by the Court in other cases concerning migrants’ family life (e.g. Hode and Abdi v. UK, 2012, Bah v. UK, 2011).
There is no doubt that the differential treatment in Osungu and Lokongo sought to pursue legitimate aims (“protection of public health, the protection of the child and immigration control”). Further, states are justified in restricting access to family allowances since this is a resource-intensive service. A large margin of appreciation certainly exists in this domain.
However, this does not entail the Court’s uncritical deference to a state’s decision, which should be explained and justified by the state concerned, and then analysed and judged by the Court. Deeper scrutiny of the respondent’s arguments would have revealed that the aims of immigration control, protection of public health, and protection of children, are not served by cutting off family benefits. In reality, even where such benefits are cut off, the migrant children concerned are allowed to remain in France and live “a normal life” with their parents who are regular residents. Thus, there is no link between the means adopted and the ends sought to be achieved. The question of necessity and proportionality does not even arise.
These cases raise important jurisprudential and practical issues. As also noted by an EU study published last year, provision of social security is of prime importance to efforts made to reduce poverty and inequality among migrants. Reports indicate there are currently around 9,000 migrant children in France in a situation similar to that of the applicants. It is thus hoped that the Court will be given another opportunity to revisit its case law in this domain in a more nuanced manner.
Judgment delivered on 7 July 2015 by the ECtHR
The applicants are seven Serbian nationals, a father and mother and their five children. They were born in 1981, 1977, 2001, 2004, 2007 and 2011 respectively and live in Serbia. Their eldest daughter,
who was born in 2001 and was mentally and physically disabled from birth, died in December 2011.
The applicants are of Roma origin and were born in Serbia, where they have lived for most of their lives.
In March 2010 the applicants travelled to France, where they submitted an asylum application which was rejected. In March 2011 they travelled to Belgium and lodged an asylum application there. On
12 April 2011 the Belgian authorities submitted a request to the French authorities to take back the family. On 6 May 2011 France accepted the request under the Dublin II Regulation2. On 17 May 2011 the Aliens Office in Belgium issued the applicants with an order to leave Belgian territory for France, on the ground that Belgium was not responsible for considering the asylum application under the Dublin II Regulation. On 25 May 2011 the time-limit for enforcement of the order to leave the territory was extended until 25 September 2011 owing to the mother’s pregnancy and imminent
On 16 June 2011 the applicants submitted to the Aliens Appeals Board a request for the suspension and setting-aside of the decision refusing them leave to remain and ordering them to leave the country. On 22 September 2011 the applicants applied for leave to remain on medical grounds on behalf of their disabled eldest daughter. The Aliens Office rejected their application. On 26
September 2011, on expiry of the time-limit for enforcement of the order to leave the country, the applicants were expelled from the Sint-Truiden reception centre where they had been staying, as
they were no longer eligible for the material support provided to refugees. They travelled to Brussels, where voluntary associations directed them to a public square in the Schaerbeek municipality in the centre of the Brussels-Capital district, together with other homeless Roma families. They remained there until 5 October 2011. On 7 October 2011 they were assigned to a new reception facility as a mandatory place of registration in the Province of Luxembourg, 160 km from Brussels. The applicants eventually took up residence in Brussels North railway station, where they remained for three weeks until their return to Serbia was arranged on 25 October 2011 by a charity under the return programme run by Fedasil, the federal agency for the reception of asylum seekers.
In a judgment of 29 November 2011 the Aliens Appeals Board set aside the impugned decisions (the refusal of leave to remain and the order to leave the country) on the grounds that the Aliens Office had not established on what legal basis it considered France to be the State responsible for the applicants’ asylum application. The Belgian State lodged an appeal on points of law with the
Conseil d’État against the judgment of the Aliens Appeals Board. In a judgment of 28 February 2013 the Conseil d’État declared the appeal inadmissible for lack of current interest, given that the
applicants had returned to Serbia and that the Belgian State had been released from its obligations under the procedure for determining the Member State responsible for their asylum application.
Complaints, procedure and composition of the Court:
Relying on Article 3 (prohibition of inhuman or degrading treatment), the applicants complained that their exclusion from the reception facilities in Belgium from 26 September 2011 onwards had
exposed them to inhuman and degrading treatment. Under Article 2 (right to life), they alleged that the reception conditions in Belgium had caused the death of their eldest daughter. Lastly, under
Article 13 (right to an effective remedy), they complained that they had been unable to assert before the courts their claim that their removal to Serbia and the refusal to regularise their residence status had exposed them to a risk to their eldest daughter’s life (Article 2) and to a risk of suffering inhuman and degrading treatment (Article 3).
Article 3 (prohibition of inhuman or degrading treatment):
The Court reiterated that neither the Convention nor its Protocols conferred the right to political asylum and that Contracting States had the right, subject to their international undertakings
including the Convention, to control the entry, residence and expulsion of non-nationals.
Nevertheless, the State’s responsibility could be engaged in relation to asylum seekers’ conditions of reception. The Court observed3 that, in order to determine whether the threshold of severity required under Article 3 was met in a given situation, particular importance should be attached to the person’s status as an asylum seeker and, as such, a member of a particularly underprivileged and vulnerable population group in need of special protection. Asylum seekers’ vulnerability was heightened in the case of families with children, and the requirement of special protection had been even more important in the applicants’ case in view of the presence of small children, including one infant, and of a disabled child.
The Court had to ascertain in this case whether the applicants’ living conditions in Belgium between 26 September and 25 October 2011 engaged the responsibility of the Belgian State under Article 3.
The Court’s review related only to that period, between their eviction from the accommodation centre and their departure for Serbia, since the applicants’ reception and the fulfilment of their
needs prior to that period were not the subject of dispute. Between 26 September and 25 October 2011 their situation had been particularly serious as they had spent nine days on a public
square in Brussels and then, after two nights in a transit centre, a further three weeks in a Brussels train station. The Court noted that this situation could have been avoided or made shorter if the
proceedings brought by the applicants seeking the setting-aside and suspension of the decisions refusing them leave to remain and ordering them to leave the country, which had lasted for two
months, had been conducted more speedily.
However overstretched the reception network for asylum seekers in Belgium may have been at the time of the events5, the Court considered that the Belgian authorities had not given due
consideration to the applicants’ vulnerability and had failed in their obligation not to expose the applicants to conditions of extreme poverty for four weeks, leaving them living on the street,
without funds, with no access to sanitary facilities and no means of meeting their basic needs. The Court found that these living conditions, combined with the lack of any prospect of an improvement
in the applicants’ situation, had attained the level of severity required under Article 3. The applicants had therefore been subjected to degrading treatment, in breach of that provision.
Article 2 (right to life):
The Court noted that, although the Belgian authorities must have been aware that the applicants were living in poverty following their eviction from the centre, and must have known about their
eldest daughter’s medical conditions, the medical certificate had not mentioned the degree of severity of those conditions. It also noted, with regard to the timing of the events, that a number of
factors may have contributed to the child’s death, including having spent several weeks in insalubrious conditions after the family’s return to Serbia. Accordingly, the Court considered that the
applicants had not shown that their eldest daughter’s death had been caused by their living conditions in Belgium, or that the Belgian authorities had failed in their obligation to protect her life.
The Court therefore found no violation of Article 2.
Article 13 (right to an effective remedy) taken in conjunction with Article 3 (prohibition of inhuman or degrading treatment):
On the basis of its analysis of the Belgian system as in force at the time of the events, the Court considered that the applicants had not had an effective remedy available to them, in the sense of
one that had automatic suspensive effect and enabled their allegations of a violation of Article 3 to be examined in a rapid and effective manner.
The order for the applicants to leave the country had been liable to be enforced at any time by the Belgian authorities, and the application to set aside and the request for suspension of the measure lodged by the applicants did not have suspensive effect. The Court observed in particular that the lack of suspensive effect had resulted in the material support granted to the applicants being
withdrawn and had forced them to return to their country of origin without their fears of a possible violation of Article 3 having been examined. The Court also noted that the length of the proceedings concerning the application to set aside had been unsatisfactory, given that the Aliens Appeals Board had not delivered its judgment until 29 November 2011, after the applicants had left for Serbia, thereby effectively depriving them of the opportunity to continue the proceedings in Belgium and France. Accordingly, since the applicants had not had an effective remedy, there had been a violation of Article 13 taken in conjunction with Article 3.
From Court’s press release: http://hudoc.echr.coe.int/webservices/content/pdf/003-5127554-6327501
by Nikolaos Sitaropoulos
Juan Amaya-Castro argues that states’ selective immigration policies are discriminatory, and that this discrimination has been legitimized by international (migration) law. From a legal point of view, this is rather a misperception that confuses differential with discriminatory treatment. The latter is not allowed by contemporary international law as this post will show.
International migration law is not a self-contained legal regime. It is a multi-layered body of law consisting of various international, regional or bilateral treaties and agreements which leave “the alien’s body protected by a varying number of layers (legal regimes) depending upon the sartorial tastes of the State involved” (Richard Lillich, The Human Rights of Aliens in Contemporary International Law, Manchester UP, 1984, 122). Some of the most migrant-protective layers are certainly those provided by international and European human rights law and principles.
As regards migrants’ entry, the UN Human Rights Committee in its 1986 General Comment No 15 noted that the International Covenant on Civil and Political Rights
“does not recognize the right of aliens to enter or reside in the territory of a State party. It is in principle a matter for the State to decide who it will admit to its territory. However, in certain circumstances an alien may enjoy the protection of the Covenant even in relation to entry or residence, for example when considerations of non-discrimination, prohibition of inhuman treatment and respect for family life arise”.
This is true also under another core law-making treaty, the European Convention on Human Rights (ECHR), as interpreted by the Strasbourg Court (see below).
Differential treatment of migrants does not always equal discrimination
Migration control measures that differentiate among (prospective) migrants are not automatically unlawful. Whether such state action affecting migrants constitutes discriminationis grounded in the principle of prohibition of discrimination enshrined notably in Article 14 ECHR and in Protocol No. 12 to the ECHR. Non-discrimination grounds indicatively enlisted therein are: “sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”.
As Judge Tanaka observed in his outstanding dissenting opinion in South West Africa (Second Phase) (1966), the “equal treatment of men as persons” is a metaphysical, natural law idea that pervades international and domestic law. Equality, however, does not exclude differentiation because “to treat different matters equally in a mechanical way would be as unjust as to treat equal matters differently”. For a differential practice not to amount to discrimination, it should be justified by the criterion of justice or reasonableness which excludes arbitrariness. In addition, since equality is a principle and different treatment an exception, states that resort to different treatment must always prove its “raison d’être and reasonableness”.
These positions were echoed later in the seminal Belgian Linguistics case (1968), where the European Court of Human Rights affirmed that the principle of equality of treatment is violated if the “distinction has no objective and reasonable justification”. The existence of such a justification must be assessed “in relation to the aim and effects of the measure under consideration, regard being had to the principles which normally prevail in democratic societies”. The Court went on and established two fundamental conditions that differential treatment should fulfill: firstly, it must pursue a legitimate aim; secondly, there must be a “reasonable relationship of proportionality between the means employed and the aim sought to be realised”.
Major prohibitive grounds of differential treatment affecting migrants
The ECHR organs have developed a significant body of case-law on whether exclusion from territory or difference of treatment affecting migrants may be prohibited by the principle of non-discrimination. One of the first, fundamental principles highlighted is that states have no right to base migration control measures upon migrants’ racial origin. The question was posed in 1970 before the former European Commission of Human Rights in the case of East African Asians v. UK, concerning the exclusion from the UK, expressly and admittedly for reasons of ‘racial harmony’, of UK passport holders of Asian origin who lived in Kenya or Uganda.
In the above case the Commission noted that “publicly to single out of a group of persons for differential treatment on the basis of their race might, in certain circumstances, constitute a special form of affront to human dignity”. In addition, immigration law discrimination on racial grounds could itself amount to degrading treatment under Article 3 ECHR, as was found to be the case in East African Asians. In 1983, in Abdulaziz, Cabales and Balkandali, the Commission made it clear that no state may implement immigration policies “of a purely racist nature, such as a policy prohibiting the entry of any person of a particular skin colour”.
These cases remain important in view of ongoing debates about migration control, which are often tainted by racist considerations. Among many examples one may cite the travel restrictions imposed on Roma from the Western Balkans seeking asylum in the EU (cf. Council of Europe Commissioner for Human Rights, The Right to Leave a Country, 2013).
The question of differential treatment on the ground of sex was posed in 1980 when the UK introduced stricter conditions, purportedly in order to protect the domestic labour market, for entry of migrant husbands or fiancés seeking to join or remain with their wives or fiancées already settled in the UK. Under the law and practice of the time, it was easier for men settled in the UK than for women so settled to obtain permission for their non-national spouses to enter or remain in the country. This was found to be discriminatory against the women, primarily migrant, applicants, hence unlawful by the Strasbourg Court (Plenary) in Abdulaziz, Cabales and Balkandali v. UK (1985).
Ultimately, the argument centered on whether the above difference had an objective and reasonable justification. The Court stressed that “very weighty arguments would have to be advanced before a difference of treatment on the ground of sex could be regarded as compatible with the Convention”. The data put forward by the respondent state did not convince the Court that this differential treatment to the detriment of migrant women already in the host state was justified “by the need to protect the domestic labour market at a time of high unemployment”.
Under the ECHR, states, in principle, cannot use nationality as a sole ground of distinction that would deny regular migrants, including recognised refugees, major social rights or social benefits. An exception to this principle may occur again only if states are in a position to persuasively provide “very weighty reasons” for differential treatment (e.g. Dhahbi v. Italy, 2014).
In his post, Juan Amaya-Castro claims that current selective immigration policies have legitimized another differentiation ground, the migrants’ “economic worth” on the basis of which easy entry and residence may be enjoyed by, for example, non-national investors or entrepreneurs. Although I am sympathetic towards his argument, I am not convinced that, in itself, such differentiation constitutes discriminatory, and hence unlawful, treatment, in the sense explained earlier. The Strasbourg Court has actually noted that, in the context of differential treatment, a “wide margin is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy”, adding that “offering incentives to certain groups of immigrants may amount to a legitimate aim for the purposes of Article 14 of the Convention”. The Court has made it clear that in general it will respect the legislature’s policy in this field “unless it is manifestly without reasonable foundation” (e.g. Hode and Abdi v. UK, 2012).
In conclusion, the claim that international (migration) law gives states a free hand to discriminate is not watertight. It certainly still grants states a margin of appreciation and license for differential treatment. However, under the European Court of Human Rights’ case-law, any such treatment affecting migrants has to be in conformity with the fundamental principle of equality, that is, to be legitimate, reasonably proportionate and justified by “very weighty reasons”. In this context, the Court has rightly applied a particularly strict review in cases concerning ‘suspect’discrimination grounds relating to one’s race, sex or nationality, which refer to innate personal characteristics. These standards of European human rights law arguably constitute the most protective layer of international migration law.
By Nikolaos Sitaropoulos
The thorny question of implementation of the Views adopted by the UN Human Rights Committee (HRC) under the Optional Protocol (OP) to the International Covenant on Civil and Political Rights (ICCPR) was again thrust into the limelight by the French government’s comments on a report recently published by the Council of Europe Commissioner for Human Rights. The comments made clear that France is not about to give effect to three Views issued by the UN Human Rights Committee in 2011 and 2013 finding violations of the Sikh authors’ freedom of religion for being legally obliged to denounce wearing a turban on their identity or residence permit photographs, or in order to attend an upper high school (lycée).
The first major argument put forward by the French government is that these questions were settled in 2006 by the French Supreme Administrative Court (Conseil d’Etat) in Association United Sikhs where this kind of restrictions were found lawful.
The second major argument presented by France is that in 2005 and 2008 the European Court of Human Rights (ECtHR) also considered the above restrictive measures compatible with the European Convention on Human Rights (ECHR).
In its General Comment No 33 (2008) the HRC noted that even though it is not a judicial body, its Views “exhibit some important characteristics of a judicial decision. They are arrived at in a judicial spirit, including the impartiality and independence of Committee members”. It added that the Views are “an authoritative determination by a quasi-judicial organ established by ICCPR tasked with the interpretation of this treaty”.
As a consequence, every state party to ICCPR and its OP is bound by their provisions and the findings of the HRC, in accordance with the fundamental principle of pacta sunt servanda. Article 26 of the Vienna Convention on the Law of Treaties (VCLT) exemplifies this principle as follows: “Every treaty in force is binding upon the parties to it and must be performed in good faith”.
A vital, concomitant rule of customary international law is that no state party to a treaty may invoke the provisions of its internal law as justification for its failure to perform a treaty (Article 27 VCLT). Under Article 27 VCLT domestic courts are actually bound to give effect to a ratified treaty. This is even more so where the constitution of that state, like France (Article 55), provides that ratified treaties prevail over domestic statutes. In view of the above, France’s first argument is hardly watertight.
As to the second argument based, in effect, on an alleged prevalence of ECHR over ICCPR in cases concerning religious freedom, in principle this could stand if France had made such a declaration upon acceding to ICCPR. Such a declaration was indeed made with regard to Articles 19 (freedom to hold opinions and of expression), 21 (right of peaceful assembly) and 22 (freedom of association) of ICCPR. However, Article 18 ICCPR covering religious freedom has been left out.
The inapplicability of the argument of prevalence of ECHR over ICCPR in this case may also be grounded in Article 53 ECHR. According to this provision nothing in ECHR may be construed as limiting or derogating from human rights that may be ensured under domestic law or another ratified treaty.
A 2014 report by the Council of Europe’s Venice Commission echoed the widely accepted view that even though the HRC’s Views are not binding judgments, they still have a legal consequence: the states parties’ obligation to take the HRC’s Views into consideration in good faith.
Arguably good faith means, inter alia, that when a state party feels obliged to contest the HRC’s Views it should provide arguments that are legally sound and coherent. This is not the case in the Sikh cases and France’s arguments disregarding ICCPR and its adjudicating organ’s decisions. Regrettably states often forget that ICCPR is one of the building blocks of the international human rights system, which, unlike other human rights treaties like ECHR, contains no denunciation clause. It is indeed a cornerstone of the modern international law regime that merits much more attention and effective respect by all states parties.
All views expressed herein bind solely the author.
Strasbourg, 17/02/2015 – “Despite advances in legislation and measures to combat intolerance and racism, discrimination and hate speech not only persist in France but are on the rise. There is an urgent need to combat this in a sustained and systematic manner,” Nils Muižnieks, the Council of Europe Commissioner for Human Rights, said today, publishing the report on his visit to France from 22 to 26 September 2014. In this report, the Commissioner addresses issues of intolerance, racism, and respect for the human rights of migrants, Travellers, Roma and persons with disabilities.
“In recent years, there has been a huge increase in antisemitic, anti-Muslim and homophobic acts. In the first half of 2014 alone, the number of antisemitic acts virtually doubled, while the number of Jews leaving France for Israel tripled compared with 2012, which is a telling indication of their feeling of insecurity. The rising number of anti-Muslim acts, 80% of which are carried out against women, and homophobic acts, which occur once every two days, is also cause for great concern. It is essential to put an end to such acts, including on the Internet, and to punish those responsible.”
The Commissioner welcomes France’s sound legal and institutional framework for combating racism and discrimination and urges the authorities to continue to fight resolutely against these phenomena. “To this end, it would be helpful to give full effect to the criminal law provisions recognising “testing” as evidence of discriminatory conduct and to include the fight against discrimination in a national plan to promote and protect human rights. Ratifying Protocol No. 12 to the European Convention on Human Rights on the general prohibition of discrimination would also help to further strengthen the legal framework.”
The trend towards more stringent and more complex rules in the asylum and immigration field raises serious questions of compatibility with France’s international commitments, particularly with regard to being granted asylum and the reception of asylum seekers. “The serious and chronic inadequacies in the reception of asylum seekers force many of them to live in extremely vulnerable and degrading conditions. Lasting solutions need to be found as a matter of urgency to ensure that everyone has effective access to reception centres and social protection.”
The reception and care of unaccompanied migrant minors highlights a further shortcoming in the French migration system. “There are between 7,000 and 12,000 such children living in France, 3,000 of whom are in Mayotte. Many are left without any social or educational support or medical care and some are even homeless. Their age is often determined following certain highly questionable procedures, especially when these involve bone age tests. It is not uncommon for these children to be deprived of their liberty when they arrive at the border unlawfully. The French authorities must put an end to these practices and provide better reception conditions, including overseas.”
The Commissioner also calls on the French authorities not only to honour their commitment to take in 500 Syrian refugees, but to take in even more and to remove all barriers, such as the obligation to have an airport transit visa, which undermine their chances of being granted asylum. The Commissioner also calls on the authorities to improve the living conditions of migrants in Calais and to afford them greater protection against violent xenophobic attacks.
Commissioner Muižnieks urges France not to adopt or implement legislative or other measures to accelerate asylum procedures still further, until the structural problems in the national asylum authorities have been resolved. He underlines the need to improve the effectiveness of remedies in the asylum and immigration field, by expediting the introduction of suspensive appeals against all decisions taken in these matters, including overseas. In addition, he recommends that the authorities improve the legal aid and procedural guarantees offered to immigrants and asylum seekers and cease the practice of holding hearings by the ‘liberties and detention judges’ in the annexes of regional courts located in the immediate vicinity of administrative detention centres or waiting zones.
High levels of anti-Gypsyism have prevailed in France for a very long time, and the Commissioner calls on the authorities to firmly tackle hostile speech and acts directed at migrant Roma and Travellers, including on the Internet. He recommends that the authorities put an end to the discriminatory system applied to Travellers, provide appropriate camping areas and ensure effective access to education for the children of Travellers by promoting solutions more in keeping with their lifestyle.
Like Travellers, migrant Roma continue to be targeted and stigmatised by hate speech emanating from certain politicians and by sometimes harmful media coverage. They are also the victims of violence perpetrated by individuals and at times even by members of law enforcement agencies, in particular during forced eviction operations. The Commissioner also underlines the urgent need to guarantee Roma access to healthcare, education, housing and employment, and to conduct public awareness-raising activities to combat stereotypes and prejudice against Roma and Travellers.
With regard to the situation of persons with disabilities, the Commissioner notes that despite a well-developed legal framework and the priority given to independence and social inclusion, these are not always guaranteed in practice. “There is an urgent need to rectify a situation which continues, de facto, to perpetuate the social exclusion and marginalisation of persons with disabilities. The serious delays in ensuring that public places are accessible and the shortcomings in the arrangements concerning guidance and support for these persons should be dealt with as a matter of priority.”
The Commissioner is also concerned that thousands of persons with disabilities are obliged to leave France to find more appropriate solutions to their situation abroad, particularly in Belgium. He also condemns difficulties in access to employment and the discriminatory conditions applying to workers with disabilities within certain specialised facilities.
Lastly, while welcoming the measures adopted to promote the education of children with disabilities in mainstream schools, the Commissioner notes with concern that no education solution has yet been found for some 20,000 of these children, and particularly for those with autism spectrum disorder. “The authorities should step up their efforts to ensure that all children receive appropriate education. The authorities should also attach priority to setting up local services promoting the social inclusion of people with disabilities, and improve the support provided to those with autism, in particular by making greater use of educational, behavioural and developmental methods in the care they are given.”
Link to press release & docs: http://bit.ly/1FmkGZ9
In today’s two ECtHR judgments, in the cases of A.A. v. France and A.F. v. France, the ECtHR held, unanimously, that there would be a violation of Article 3 (prohibition of torture and inhuman or degrading treatment) of the ECHR if the applicants were deported to Sudan.
The cases concerned proceedings to deport to Sudan two Sudanese nationals – A.A., from a non-
Arab tribe in Darfur, and A.F., from South Darfur and of Tunjur ethnicity – who had arrived in France
With regard to the general context, the Court had recently observed that the human-rights situation
in Sudan was alarming, in particular where political opponents were concerned, and that merely
belonging to a non-Arab ethnic group in Darfur gave rise to a risk of persecution. The Court noted
that the situation had deteriorated further since the beginning of 2014.
The Court found in both cases, that included rejections of the applicants’ asylum applications by the French authorities, that were the orders to deport the applicants to Sudan to be enforced, the applicants would, on account of their individual circumstances, run a serious risk of incurring treatment contrary to Article 3 of the Convention.
Court’s press release:
Tarakhel v. Switzerland, GC judgment of 4 November 2014
The Court considered it appropriate to examine the complaint concerning the applicants’ reception conditions in Italy solely from the standpoint of Article 3.
Concerning the overall situation of the reception arrangements for asylum seekers in Italy, the Court
had previously observed that the Recommendations of the Office of the United Nations High Commissioner for Refugees (“UNHCR”) and the report of the Commissioner for Human Rights of the Council of Europe, both published in 2012, referred to a number of failings. Without entering into the debate as to the exact number of asylum seekers without accommodation in Italy, the Court noted the glaring discrepancy between the number of asylum applications made in 2013 (over 14,000) and the number of places available in the facilities belonging to the SPRAR network [Sistema di protezione per richiedenti asilo e rifugiati] (9,630 places).
With regard to living conditions in the available facilities, the Court noted that in its Recommendations for 2013 UNHCR had described a number of problems. However, UNHCR had not
reported situations of widespread violence or insalubrious conditions, and had stressed the efforts
undertaken by the Italian authorities to improve reception conditions for asylum seekers. The
Human Rights Commissioner, in his 2012 report, had noted the existence of some problems with
regard to legal aid, care and psychological assistance in the emergency reception centres, the time
taken to identify vulnerable persons and the preservation of family unity during transfers.
The Court reiterated that, as a “particularly underprivileged and vulnerable” population group,
asylum seekers required “special protection” under Article 3 of the European Convention on Human
Rights. This requirement of “special protection” of asylum seekers was particularly important when
the persons concerned were children, even when they were accompanied by their parents
In view of the current situation of the reception system in Italy, the possibility that a significant
number of asylum seekers removed to that country might be left without accommodation or might
be accommodated in overcrowded facilities, in insalubrious and violent conditions, was not
unfounded. The Swiss authorities were obliged to obtain assurances from their Italian counterparts
that on their arrival in Italy the applicants would be received in facilities and in conditions adapted to the age of the children, and that the family would be kept together.
The Court noted that, according to the Italian Government, families with children were regarded as a
particularly vulnerable category and were normally taken charge of within the SPRAR network.
However, the Italian Government had not provided any further details on the specific conditions in
which the authorities would take charge of the applicants.
Without detailed and reliable information about the specific reception facility to which the
applicants would be sent, the physical conditions of their accommodation, and the question of
whether the family would be kept together, the Court considered that the Swiss authorities did not
have sufficient assurances that, if returned to Italy, the applicants would be taken charge of in a
manner adapted to the age of the children.
Were the Swiss authorities to send the applicants back to Italy without having first obtained
individual guarantees from the Italian authorities that they would be taken charge of in a manner
adapted to the age of the children and that the family would be kept together, there would
accordingly be a violation of Article 3 of the Convention.
Court’s press release: http://hudoc.echr.coe.int/webservices/content/pdf/003-4923136-6025044