The 46 countries bound by the European Convention on Human Rights (ECHR) have signed a new declaration on migration, setting out how they believe human rights law should apply to migration issues.
With the ECHR playing a contentious role in immigration discourse in the UK, the UK government trailed this declaration as a “more modern interpretation” of the ECHR that would help “restore order and control”. Yet the declaration may not change very much in practice.
The ECHR is a key human rights treaty signed by almost every European country, binding them to respect a list of fundamental rights. The European Court of Human Rights in Strasbourg has the final say in interpreting what these rights require in practice.
Two ECHR rights are particularly important when it comes to immigration: Article 8 (the right to respect for private and family life), and Article 3 (the right to freedom from torture or inhuman treatment). This new declaration, signed in the Moldovan capital of Chișinău, follows a campaign by some countries, including the UK, to change the interpretation of these rights to make removing migrants easier. It does not remove the authority of the Strasbourg court on these issues, but is likely to influence it.
The right to family life
Article 8, the right to family life, is known as a “qualified right”. This means that governments can make decisions that interfere with it (such as deporting someone with family in the UK) to pursue aims like immigration control – so long as their actions are “proportionate” to their aims.
The UK government wants a “rebalancing” of this right, giving more weight to the “public interest” and less to offenders’ family ties. The Chișinău declaration says that Strasbourg should respect national governments’ views, intervening only very exceptionally.
In reality, however, the Strasbourg court has already been doing this for years. In 2017, the court held that as long as ECHR countries carefully weighed up all relevant factors, such as the extent of the person’s family life and nature of their offending, then, “it is not for the court to substitute its own assessment”.
The perception that Strasbourg hinders the UK on family life matters is aided by misinformation – for example, the extensively reported case of a criminal migrant who was supposedly allowed to remain in the UK because his son disliked the chicken nuggets abroad. This was, however, never the basis of the decision. The declaration may fuel headlines about closing a “chicken nugget loophole”, but no such loophole really existed.
Inhuman treatment
The other right up for reinterpretation is Article 3, covering torture or inhuman treatment. This is an “absolute” right, meaning states are forbidden from such treatment under any circumstances.
Strasbourg’s interpretation of this right in migration has caused a genuine problem for governments. An example is the recent case of Nicolas de Brito, who was wanted on murder charges in Brazil. After fleeing to the UK, he successfully challenged extradition because prison conditions in Brazil fell below Strasbourg’s standards for inhuman treatment, due to overcrowding. He was released to live and work in the UK, and the murder case in Brazil had to be shelved.
In my forthcoming research, I argue that results like this arise from a crucial mistake made by Strasbourg. The problem began with a case in 1989, when the court first considered a new question: can a European state extradite someone if they might suffer inhuman treatment in the country receiving them?
The court’s judgment was ambiguously written. In my view, it is best read as saying that the ECHR does not normally govern what another state outside Europe does after extradition. However, removal should be blocked if there is a risk of exceptionally grave treatment.
In subsequent cases, though, Strasbourg arguably misinterpreted this. Instead of holding that only the most serious forms of mistreatment should prevent a person’s removal, it began holding that anything that would breach Article 3 should prohibit a person being extradited, if it might happen abroad.
Read more: Why is it so difficult for the UK to deport foreign criminals?
When “inhuman treatment” was later expanded to include overcrowded prisons, this created a difficult situation for governments trying to extradite people. If a European country’s own prison systems are found to fall below acceptable standards, they can respond by changing them. However, they cannot control prisons in countries like Brazil. This means that in a case like de Brito’s, they are forced to release him regardless of the murder charges, as this is the only way to ensure he does not enter these conditions.
The solution is to recognise that while the ECHR should still bar European governments from imposing inhuman prison conditions themselves, the position must be different when it comes to conditions in another country. Then, only the most serious matters should block extradition. This is not because someone in de Brito’s situation has inferior rights to a prisoner in Europe, but because it is Brazil, not the UK, that is responsible for fulfilling his rights.
While the new declaration made in Moldova expresses that states are “concerned” about the implications of this issue, it otherwise again simply restates the law as it already is. This is a missed opportunity to untangle the knot in which the court has tied itself.
Finally, in a section on “new approaches to migration”, the declaration says that European states are allowed to process asylum seekers’ claims in another country. This could include schemes like the UK’s now-abandoned Rwanda plan.
However, this is not a new position. The UK’s plan wasn’t blocked because countries could not process asylum claims abroad in principle. Instead, it was because the UK’s specific scheme failed to ensure these claims would be properly dealt with. This remains the case: the declaration says that states’ power to operate such schemes applies only “provided that they continue to fulfil their [ECHR] obligations”.
Overall, then, the declaration does very little to change how countries may legally approach immigration control. It spends much time restating existing law, while missing a chance to meaningfully engage with the hardest issue.
Rights groups worried that the declaration would weaken protections for migrants. Their concern should not be with the declaration itself, but the wider political context in which it originates – and that debate is set to rumble on.
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