Strasbourg Observers

H.A. and others v. Greece – restrictive acknowledgement of irregular migrant vulnerability

March 29, 2019

By Elina Todorov, PhD Candidate, Tampere University (Finland)

On 28. February 2019 the European Court of Human Rights (ECtHR) delivered a judgement concerning unaccompanied minors in an irregular situation, namely H.A. and others v. Greece.  In H.A. the Court found several violations of the Convention, in particular a partial violation of Article 3 regarding the living conditions of the applicants (prohibition of inhuman or degrading treatment), a violation of Article 13 (right to an effective remedy, taken together with Article 3) and also violations of Article 5 § 1 and 5 § 4 (right to liberty and security, right to a speedy decision on the lawfulness of a detention measure). The case stands well in line with the Court’s previous case law concerning irregular migration. In H.A., the Court regarded that the authorities’ conduct caused a situation in which the national authorities had not succeeded in protecting the applicants who were unaccompanied foreign minors in an irregular situation. In line with its established case law, the Court recognized that minors – or in other words children – in an irregular situation are to be regarded as a vulnerable group mainly due to the fact that they are children (rather than because they are irregular migrants). However, as will be argued in this blog post, the Court thereby failed to adequately recognize the vulnerability resulting from the applicants’ irregular residence status.


The case concerned nine unaccompanied minors aged from 14 to 17 years, including six Syrians, two Iraqis and a Moroccan. These minors had entered Greece irregularly in order to travel to other European countries for the purpose of family reunion. Immediately upon having entered Greece, they were arrested by the police. The applicants were thus detained in different police stations in Greece and were later on transferred to the Diavata center (and ultimately to special facilities for minors). The applicants claimed that the conditions at the police stations and at the Diavata center were unsuitable considering they were unaccompanied minors. They complained that the conditions at the police stations had been characterized by overcrowding, poor ventilation, lighting and heating and also having a bad diet and filthy blankets. The applicants claimed that, while detained at the police stations, this experience increased their psychological problems and distress and that the living conditions at the Diavata center were not respecting their human dignity. The applicants referred to their young age and the fact that they were fleeing war zones, which according to them were to be regarded as factors adding to their vulnerability. Furthermore, the applicants complained that the authorities had ignored their vulnerability and that they were arbitrarily deprived of their liberty and that they did not have an effective remedy.


In its judgement, the First Section of the Court took into consideration its previous case law. As for assessing the vulnerability of migrants in an irregular situation, it referred to Rahimi, where it had stated that, as an unaccompanied foreign minor, such a person must be regarded to belong to the “category of the most vulnerable persons in the society”. In Rahimi, the Court had already stressed that certain characteristics, such as the person’s young age, illegal situation in an unknown country, not being accompanied by adults and the fact that the person is left to himself, are determinant factors that prevail over the irregular nature of the migrant’s stay. This has actually been the Court’s starting point since the judgement in the case of Mubilanzila Mayeka and Kaniki Mitunga. Again in H.A., these elements were similarly emphasized as these characteristics had the same decisive weight in establishing the vulnerability of an individual. The same was the case for the Khan-judgement, which was delivered by the Court the same day, and in which it again emphasized that the situation of extreme vulnerability of a child takes precedence over the irregular residence status of a person.

Relying on materials from other stakeholders the Court found that the practice of placing unaccompanied minors in police stations, without any assistance or psychological and social support, was unacceptable. The Court found that the conditions of detention to which the applicants were subjected within the different police stations in Greece constituted degrading treatment and that the conditions were especially unsuitable considering that the applicants were all minors (for instance, they were unable to go outside). However, the Court did not find that the conditions at the Diavata center were enough in order to attain the level of severity for it to find a violation of Article 3, for instance due to the fact that the applicants could move around freely. Nor did the conditions at the Diavata center amount to deprivation of liberty within the meaning of Article 5 § 1 of the Convention.

Furthermore, the Court found that there had been a breach of Articles 13, 5 § 1 and 5 § 4 of the Convention. The Court held that referral to the public prosecutor did not constitute an effective remedy for the applicants during their placement in “protective custody” under national law. It noted that the applicants were placed directly in police stations without any decision informing them of the restriction of their liberty. It noted that the applicants had spent several weeks in police stations before they were placed in reception centers for unaccompanied minors.


The recent judgement sits well within the mainstream of the Court’s case law concerning irregular migration – especially in that it only regards certain individuals (such as children) as vulnerable instead of looking at irregular migrants as a group of vulnerable individuals.

The Court only makes cautious remarks concerning the more general vulnerability of irregular migrants. As noted by the Court also previously in Riad and Idiab, the states must have regard to the ‘particular situation of the applicants’ while they use their undeniable right to control aliens’ entry and residence on their territories. According to the Court, this is particularly relevant when reviewing the manner in which the states implement restrictions on migrants’ rights and freedoms, for instance by means of detention. Moreover, the Court messaged in H.A. that the states need to reconcile a balance between the human rights protection and the imperatives of the immigration policy. Therefore, by acknowledging ‘the particular situation of the applicants’ when balancing between protection and immigration policy, the Court cautiously recognizes that irregular migrants are dependent on state protection. By recognizing this dependence, the Court is able to a limited extent to acknowledge the vulnerability of irregular migrants in a broader manner (rather than just in relation to children).

In H.A., the child status prevails over other aspects that produce individual vulnerability. In its vulnerability assessment, the Court did not emphasize the fact that the applicants in H.A. were irregular migrants – but rather concentrated on elements such as the child status of the applicants who were, inter alia, not being accompanied by adults and their young age.  However, there were also other characteristics affecting the vulnerability assessment that were present and that migrants in an irregular situation in the mainstream of the Court’s case law have in common (see for example Mubilanzila Mayeka, Rahimi, Khan). For instance, such characteristics are described by the migrant’s illegal position in an unknown country and being left to him-/herself. When looking at irregular migration case law by the Court, these characteristics cannot be limited to irregular migrant children only.

In addition, what H.A. has in common with a large amount of cases dealing with irregular migration at the ECtHR is the plight migrants in an irregular status often face. In its case law regarding irregular migrants, the Court is able to recognize this plight of irregular migrants by acknowledging the helplessness, loss of hope and anxiety involved in their individual experiences. In addition, this plight is characterized by the fact that irregular migrants are very much dependent on state protection. Irregular migrants are prone to concrete measures of immigration policy, namely apprehension, detention and deportation. Therefore, being subjected to or fearing such measures is likely to increase this plight.

So, while acknowledging irregular migrant children to be especially vulnerable, the Court could as well have acknowledged the plight irregular migrants are liable to face in the host states more generally. In H.A., the Court caught a glimpse of this plight, namely by stating that detention of foreign unaccompanied minors in isolation is likely to generate feelings of isolation from the outside world with negative consequences for the person’s physical and moral well-being. Therefore, the Court also recognized in H.A. the plight of irregular migrants by acknowledging the applicants’ individual experiences. Supported by this finding, the Court found that the applicants were vulnerable. Considering that there is a large amount of cases dealing with irregular migration where the Court also recognizes feelings or experiences of irregular migrants that are close to the described ‘plight’, it should not look at irregular migrants too narrowly in its vulnerability assessment. Therefore, based on the fact that the Court has found several characteristics linked to its vulnerability assessment not only in H.A. but also elsewhere in its case law concerning irregular migration, irregular migrants should be accorded the status of a vulnerable group.

Acknowledging child vulnerability in irregular migration context is very valid. However, the key point that I want to address here is the fact that H.A. once again presents only a limited step forward towards the recognition that irregular migrant status makes individuals vulnerable. In this relation, the Court does not explicitly acknowledge all the characteristics that contribute to the vulnerability of irregular migrants. Instead of endorsing a more holistic account of irregular migrants’ vulnerability, it merely concentrated on the specific character of unaccompanied minors’ experiences.

Then again, H.A. offers future possibilities for the Court to move further in its vulnerability assessment concerning irregular migrants. Also, it can seek analogy from its previous M.S.S.-judgement where it stated that asylum seekers are – for quite similar reasons as irregular migrants – to be regarded as a vulnerable group. In M.S.S., the Court held that as an asylum seeker, the applicant was to be held vulnerable because of everything he had endured through his migration and also the possible traumatic experiences even prior to his migration. Also in the case in question (H.A.), the applicants claimed that they were fleeing war zones.

Indeed, the recent case of H.A. again supports the view that irregular migrants are to be regarded as a vulnerable group, although the Court itself does not clearly state so. According irregular migrants the status of a vulnerable group due to their irregular residence and stay is called for, as that status seems to be predominant in the treatment of migrants in such a position in the states they reside in. This is due to the fact that irregular migrants are often treated as objects of immigration control by putting restrictions on their rights and freedoms for example by means of detention, expulsion or extradition.

According irregular migrants the status of a vulnerable group is important, first of all, to counter the general conception of irregular migration that is often associated with criminal activity and terrorism. The Court’s recognition would therefore offer more understanding of such migration, residence and stay. What’s more, there already exists a lot of support from several human rights actors (such as the former Council of Europe Commissioner for Human Rights or the European Commission against Racism and Intolerance) in relation to the fact that irregular migrants in fact are vulnerable and that they therefore need special protection. Also in M.S.S., the Court noted that the existence of a broad consensus concerning the asylum seekers’ need for special protection supported the Court in according asylum seekers the status of a vulnerable group.

Second, more comprehensive vulnerability acknowledgement would possibly offer a limited step forward in providing better protection to irregular migrants’ human rights. Recognizing the vulnerability of irregular migrants would also amount to providing more guidance to the Member States as far as the protection of the rights of irregular migrants is concerned. In this regard, as reiterated in Rantsev, the Court’s judgements serve to safeguard and develop the rules by the Convention, thereby contributing to the observance by the states of their engagements undertaken as parties to the Convention. It must however be submitted that the Court may have abstained from explicitly acknowledging irregular migrants as a vulnerable group at least partly in order to avoid the kind of criticism that was raised, also within the Court itself, when the Court recognized asylum seekers as a particularly underprivileged and vulnerable group in need of special protection in M.S.S.

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