Restoring Balance: A Critical Response to the Open Letter on Migration and Human Rights

By Harriet Ní Chinnéide and Eva Sevrin

On 22 May 2025, a coalition of nine European states, spearheaded by Denmark and Italy, issued an open letter calling for a shift in the European Court of Human Rights’ (ECtHR) interpretative approach in the field of migration and in cases concerning ‘irregular migration’ and the expulsion of ‘criminal foreign nationals.’ The letter itself reflects the tension between state sovereignty and the universal application of human rights, but presents it as a new issue.

In this blog post we want to contextualise the letter in the light of the Court’s actual approach to migration cases. We will make four main points: (1) that the tension between state sovereignty and the universality of human rights law is not novel but represents a perennial struggle inherent in any system of international protection; (2) that the letter constitutes an inappropriate effort to interfere with Court’s jurisprudence, disrupting the separation of powers and seeking to undermine the Court’s independence; (3) that the letter is based on an inaccurate portrayal of the Court’s caselaw; and (4) that it is grounded in the unacceptable premise that migrants are undeserving of human rights protection.

The Open Letter

The letter commences with a reaffirmation of the signatories’ commitment to ‘European values, the rule of law, and human rights,’ grounded in the ‘inviolable dignity of the individual.’ It references the significance of international law and the authority of multilateral institutions such as the United Nations, the European Union, and NATO. Nonetheless, this preambular affirmation soon gives way to a call for reassessment: ‘[I]t is necessary to start a discussion about how the international conventions match the challenges that we face today.’

Invoking historical arguments, the signatories contend that the post-war environment in which the Convention was drafted differs fundamentally from contemporary Europe; the unprecedented scale and complexity of migration, particularly irregular migration, is framed as a novel challenge. The letter problematises the presence of migrants who ‘have come and chosen not to integrate, isolating themselves in parallel societies,’ suggesting a correlation between irregular migration and criminality. Initiatives that tighten policies on irregular migration (in general) are thus enthusiastically welcomed by the authors.

Only at this point in the letter is the European Court of Human Rights mentioned, ultimately portrayed as an impediment to resolving the issues that the authors seek to address. The signatories argue that the Court’s interpretation has extended the scope of the Convention ‘too far as compared with the original intentions behind the Convention.’ They contend that considerations of safety and security for the ‘vast majority of law-abiding citizens,’ must take precedence.

Three specific demands emerge: (1) greater discretion for states to expel criminal foreign nationals; (2) increased latitude to keep track of migrants who cannot be deported but have committed crimes; and (3) enhanced capacity to counter the ‘instrumentalization’ of migration at the borders, particularly by hostile states.

The letter concludes with a call to action: the ‘right balance’ must be restored.

Discussion

As noted in the introduction, the letter was signed by 9 of the 46 Council of Europe States. The letter was made public at the end of a bilateral meeting between Danish Prime Minister Mette Frederiksen and the Italian Prime Minister Giorgia Meloni. The letter was also signed by seven other EU Member States: Austria, Belgium, Estonia, Latvia, Lithuania, Poland, and the Czech Republic. Despite being led by a social democratic government, Denmark has an ‘ultra-restrictive’ migration policy, while Meloni’s policies reflect a ‘crackdown on migration’ after taking office in 2022. For a fuller discussion of which states signed — and which notably did not — see Antoine Buyse’s detailed commentary on the ECHR Blog.

The 9 states who signed are a minority within the 46 members of the Council of Europe and yet by penning such a letter they have sought to elevate their voices above the rest. It is also relevant to ask to whom this letter is actually directed. As former President of the Court, Robert Spanó has pointed out, its poor quality leaves much to be desired, and suggests that it ‘was primarily meant for a national audience in a political debate or that the leaders were not sufficiently advised by their legal experts on the multiple dimensions of the Court’s existing case-law in this field and the current state of Convention law.’ (See, also Peter Hilpold’s commentary here).

(1) The perennial struggle between sovereignty and universality[1]

At its heart, the letter questions the Court’s authority to interpret the rights of the Convention. However, the Court has not arbitrarily seized this interpretative authority. Article 32 ECHR explicitly vests the Court with the ‘jurisdiction to interpret and apply the Convention,’ a competence affirmed by all State Parties through signature and ratification. It is thus true that Strasbourg plays a pivotal role in setting out the scope and application of the human rights embedded in the Convention. These rights are open-ended and require active evaluative engagement to apply them to factual cases. The interpretation of human rights in cases concerning migrants has proven particularly contentious: there is a clash between the presupposed universality of human rights, and the state’s power to control their borders.

This tension, referred to as a ‘balance’ by the authors of the letter, is not new but inherent in any system of international human rights protection. Hannah Arendt describes this tension as an ‘irresolvable contradiction’ between the universal and protective aspirations of human rights law, and the territorially-bounded conceptions of democracy. While states are barred from treating those on their territory inhumanly, ultimately any individual relies upon the state to see their human rights enforced. In other words, the state’s perspective determines who falls within the category of protected subjects and who does not. Today, the tension between sovereignty and universality is perhaps the most visible in migration-related human rights adjudication. As Catherine Dauvergne notes, migration has become (almost symbolically or mythically) ‘the last bastion of sovereignty.’ While the letter calls for the right balance to be restored, it is clear that for its signatories the right balance is one that favours the state’s sovereignty.

While difficult to negotiate, the tension between universalism and state sovereignty within the human rights system does not mean that we should throw the entire project away. One potential solution to mediate this tension is through the concept of ‘democratic iterations’ developed by Seyla Benhabib. Rather than seeking to dissolve the tension, the concept captures the dynamic processes of public justification through which rights claims are interpreted, challenged, and concretised over time. Benhabib envisages ‘complex processes of public argument, deliberation, and learning’ in order to give substance to specific rights claims. Unfortunately, this letter cannot be described as a ‘democratic iteration.’ In substance, its tone is corrective–not dialogic: it asserts that the framers of the Convention never intended their principles to apply so expansively to undocumented migrants. Irrespective of how it is presented, the goal of the letter is not, then, to sustain an open-ended negotiation, but to reassert sovereignty as the preeminent value.

(2) An inappropriate attack on judicial independence

While the tension between state sovereignty and the universalism of human rights may not be new, this letter is a ‘very remarkable initiative’ and constitutes a direct and public attempt to undermine the authority of the Strasbourg Court. In a response to this open letter published on the 24^th of May, the Secretary General of the Council of Europe, Alain Berset, emphasized that the ECtHR is not an external body but the legal arm of the Council of Europe, which was established by the states themselves through their own sovereign choice. As Berset notes, ‘while debate is healthy, the politicization of the Court is not and, in a society, governed by the rule of law, no judiciary should face political pressure.’ And yet this is exactly what this letter entails: an attempt to force the Strasbourg Court to bend to the will of the states.

The ECtHR’s mandate is not merely to mediate between governmental interests and individual rights, but to maintain fidelity to the universal promise of the Convention. The affirmation of the ‘inviolable dignity of the individual’ is not an empty promise; it is the core safeguard against the temptation to create exceptions for those constructed as undesirable or undeserving. This universality does not result in a zero-sum protection of some at the expense of others, but ensures a constant standard that is itself a bulwark against arbitrary exclusion. In publishing the letter, the coalition of governments has exercised its voice within the broader European legal order. However, by seeking to directly influence judicial interpretation through public pressure, the letter risks politicising an institution whose legitimacy rests precisely on its independence.

History has taught us that unchecked majority rule risks descending into authoritarianism and that a system of checks and balances is essential to prevent democracy descending into a ‘tyranny of the majority.’ As highlighted by the former President of the Court, ‘a Europe in which judges no longer do their jobs independently and impartially for fear of reprisals or attacks, is a Europe without the rule of law.’ The states did not need to write a letter to the Court to have their perspective heard: in each case to which they are a party, they can set out their defence — indeed, in February, Poland, Latvia and Lithuania had the opportunity to make their case regarding the standards to be applied in cases concerning the instrumentalisation of migration before the Grand Chamber. In addition, States have the possibility to make their voices heard in other cases by submitting Third Party Interventions. Moreover, as will be explained below, in cases concerning migrants’ rights, the Court employs multiple legal tools to grant significant deference to Contracting States.

(3) An inaccurate portrayal of the Court’s jurisprudence

In addition to constituting an inappropriate interference with the independence of the Strasbourg Court, this letter presents an inaccurate portrayal of the Court’s jurisprudence. Historically, the Court’s jurisprudence on migration has treated sovereignty as the baseline, subject only to carefully tailored exceptions: each case concerning migration starts with a now well-known reiteration of Member States’s sovereignty. Moreover, strict constraints, such as the non-refoulement principle are the exception, not the rule: They are only applicable where expulsion would engender a real risk of grave human rights abuses which would violate the prohibition of torture or the right to life itself. In all other contexts, migrants’ rights are routinely balanced against national security and public order. Regarding detention, Article 5 even sets out an inherent exception granting the Member States broad power to detain migrants. Indeed, in the context of immigration detention the Court has long been criticized by experts for diverting form the generally applicable principles to the deprivation of liberty in other contexts.

Irrespective of the propriety of the letter, it is relevant to recognize that the Court has not been impervious to calls for greater deference from Contracting States in recent years with commentators observing that it has entered into an ‘age of subsidiarity.’ In relation to the oft-touted complaint that the ECHR prevents the states from expelling dangerous criminals, it is notable that the Court consistently grants significant deference to national authorities in cases concerning the expulsion of migrants under Article 8. It does so through the application of process-based review, which leads it to focus more on the quality of domestic processes than the substantive outcome thereof.

Since its 2017 ruling in Ndidi v the United Kingdom, the Court has routinely held that in cases where migrants’ rights to private and family life conflict with public security interests favouring deportation, it would require “strong reasons” to substitute its own view for that of the domestic authorities. This deference applies provided that the domestic authorities have assessed the case in line with the principles set out in the Court’s caselaw and have properly balanced the interests of the applicant against those of the general public.

Through its application of process-based review in these cases, the Court can be seen to be making an active effort not to encroach on national sovereignty. It merely requires domestic authorities to properly consider the principles to which they ascribed when they ratified the Convention when reaching a decision in such cases. Rather than taking a strong stance in favour of the protection of migrants, an examination of the Court’s caselaw on expulsion under Article 8 shows that the vast majority of cases in this area result in a finding of no violation. Ultimately, instead of being overly-interventionist in relation to the protection of migrants, the Court often adopts a significantly deferential approach, rendering the complaints made in the letter all the more dubious.  

(4) ‘Migrants don’t deserve human rights’ – an unacceptable premise

Another problematic aspect of the letter is its assertion that migrants are less deserving of human rights than other members of society — particularly when they have not been ‘integrated.’  In the letter, the state signatories express their disbelief that ‘some people can come to our countries and get a share in our freedom and our vast range of opportunities, and, indeed, decide to commit crimes.’ This is a problematic premise from the outset. It entirely overlooks the fact that many migrants who are arriving in Europe are fleeing from war, famine and persecution and suggests that migrants have a duty to be grateful to the receiving state rather than recognising the legal reality: that it is the state who has the obligation to protect the rights of those who are most vulnerable. As Silvia Steiniger eloquently puts it: ‘the fundamental rights of migrants must be upheld — even when they are unpopular, even when they are despised, and even if they have committed crimes.’

By juxtaposing deserving and undeserving migrants, the letter creates a hierarchy of belonging and entitlement which runs antithetical to the values underlying the human rights law paradigm. The Court cannot be said to have protected the ‘wrong people’ as the letter claims as there is no one underserving of having their basic human rights protected. While the states acknowledge that only a small minority of migrants commit crimes, their rhetoric contributes to the discourse of ‘crimmigration’ and the growing tendency to blame migrants for all the ills of society. Rather than seeking to strike a balance between the protection of human rights and the prevention of disorder and crime — as the Court always seeks to do where these two objectives come into conflict pursuant to the requirements of the Convention — the letter suggests that the latter interest should always prevail. This is a dangerous starting point for any argument.

Conclusion

The open letter constitutes a form of political pressure on the Court. It suggests that a ‘proper balance’ has been lost, implying that judicially robust protection of migrants’ rights is inherently at odds with the general interest. In doing so, the signatories overlook the Court’s institutional sensitivity to these competing considerations, as manifest in its deference to state prerogatives, its procedural approach, and the principle of subsidiarity. By publishing the letter, the governments add additional pressure to a Court that is very much aware of the sensitive balance to be struck. It creates the illusion that the ‘equitable balance’ is somewhere in the middle between the Court and the authors. Not only does this seek to undercut the Court’s legitimacy, it also contradicts the authors’ self-proclaimed deep belief in the role of multilateral institutions. To paraphrase Alain Berset: debate is healthy but this is not.

[1] This section is based on research conducted for Eva Sevrin’s PhD project. It will be the subject of a forthcoming publication.