The ECtHR and the Forced–Voluntary Migration Binary: Unquestioned Assumptions and Evolving Patterns

Alex Geraki Trimi and Pedro Sanz Díaz

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To celebrate the 15th anniversary of the Strasbourg Observers Blog, we organised an in-person symposium with scholars, practitioners, and members of the ECtHR on 8–9 May 2025 in Ghent. Connecting in person with so many regular contributors was a wonderful experience and led to engaging dialogue with current and former judges of the Court. To allow our online community to participate in the thought-provoking discussions that took place, we will be publishing selected position papers on the blog over the next two summer months. We wish all of our readers a well-deserved break with a little peek on Strasbourg Observers here and there.

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Political scientists have long argued that the binary forced-versus-voluntary (often referred to as ‘economic’) migration is oversimplified and misleading (Thym, 102-3). Migrants’ lived experiences rarely fit neatly into these categories and the boundaries between them are inherently blurred (Bakewell, 3; Erdal and Oeppen, 981). Moreover, as the evolution of international migration and refugee law clearly illustrates, these categories remain in a constant state of ‘change, renegotiation and redefinition’ (Crawley and Skleparis, 52). In other words, from an institutional standpoint, they do not simply exist or reflect social realities; rather, they are politically constructed and embedded in legal frameworks. From this perspective, the legal labelling of migration as voluntary or forced largely depends on the labeller’s perception of which alternatives to migrate are considered ‘acceptable’ at any given time and place (Bartram, 450)– a view that may, and often does, differ from that of migrants themselves, (Erdal and Oeppen 993) as well as from broader societal or scholarly understandings of voluntariness (Ottonelli and Torresi, 793). 

The distinction is not only symbolically relevant but also carries profound material consequences for migrants, as access to rights, protection, and resources – most importantly, the right to remain – is often granted or denied based on this classification (Bakewell, 7; Erdal and Oeppen, 983).Broadly speaking, those recognised as forced migrants enjoy greater protection under international law than those categorised as voluntary or economic migrants. In turn, the normative conclusions derived from this labelling process shape the very definition of forced and voluntary migration, with progressive migrants’ rights advocates aiming to expand the scope of the former, and their opponents seeking to narrow it (Ottonelli and Torresi, 784).¹ 

In what follows, this paper focuses on the role of the European Court of Human Rights (‘the Court’) as a key labelling agent in relation to the forced-versus-voluntary migration binary. It examines the Court’s relevant caselaw of the last 15 years, tracing how its approach to this distinction has evolved over time. Section 1 outlines the Court’s rationale for distinguishing between these categories and the consequences that follow from it. Section 2 explores the normative assumptions underpinning these distinctions. Section 3 draws attention to a recent cluster of caselaw on access to territory, where the Court is paradoxically blurring the boundaries between the two categories, only to downplay protection for all. The paper concludes by linking these findings to the theoretical debates introduced above.

1. Drawing the Line: Legal Reasoning and the Forced–Voluntary Migration Binary in the ECtHR’ jurisprudence 

This analysis must begin by noting that the European Convention on Human Rights (‘the Convention’), unlike other international human rights frameworks, lacks explicit provisions on forced migration – such as the right to asylum – and thus offers no clear legal basis for its conceptualisation or for distinguishing it from so-called ‘voluntary’ migration. Against this legal background, the Court has relied on both the Convention and external legal frameworks— namely, refugee law—to incorporate, endorse, and reproduce the binary reasoning.

Internally, the Court has primarily grounded the forced-versus-voluntary migration distinction in  the principle of non-refoulement, which derives from the right to life and the prohibition  of torture and other forms of ill-treatment under Articles 2 and 3 of the Convention (F.G. v. Sweden, paras 110-11). On this basis, it tends to distinguish between migrants who would risk treatment contrary to these provisions if deported and those labelled as ‘simply economic migrants’ (Ilias and Ahmed v. Hungary, para 137; M.K. v. Poland, para 208; D.A. and Others v. Poland, para 81).The Court typically assesses this riskin light of both the general situation in the country of destination and the applicant’s particular circumstances (Khasanov and Rakhmanov v. Russia, para 95). Over time, the Court has broadened the scope of harm relevant to these provisions to include not only persecution—whether by State or non-State actors—but also severe hardship resulting  from naturally occurring illnesses (Paposhvili v. Belgium; Savran v. Denmark) or extreme destitution (M.S.S. v. Belgium and Greece). Yet the threshold for protection – and thus the dividing line between forced and voluntary migration – varies depending on the source of harm. While a minimum level of severity is generally required (Savran v. Denmark, para 122), the Court applies a particularly high threshold where the harm emanates from structural or natural factors rather than intentional acts or omissions of actors of persecution (Paposhvili, para 182; Savran, para 128; M.S.S., para 263). Although protection has gradually expanded in such cases, as Stoyanova shows, the Court has yet to justify convincingly why the origin of harm should affect the applicable standard, particularly given the absolute nature of Article 3.Meanwhile, the extent to which non-refoulement may apply to emerging drivers of migration—such as climate-induced displacement—remains an open question. 

The Court has also drawn on refugee law to reinforce the forced-voluntary migration divide. In Bah v. the United Kingdom (para 45), it established a lower level of protection from discrimination grounded on immigration status between situations of voluntary and involuntary migration, ‘for example, refugee status.’ Likewise, in Khlaifia and Others v. Italy (para 194), the Court’s finding that the undocumented applicants ‘were not asylum seekers’ and therefore ‘did not have the specific vulnerability inherent in that status’ was instrumental in ruling out a violation of Article 3 ECHR on account of their detention conditions.

In Bah and Khlaifia, as in refoulement cases, the Court defined voluntary migration only by exclusion – as any movement not legally classified as forced. However, in these instances, it failed to assess the voluntariness and vulnerability of the applicants’ situations on its own terms, relying instead on their immigration status under domestic law and related stereotypes. This appears inconsistent with the Court’s usual insistence on distancing itself from international refugee law and assessing related questions solely within the framework of the Convention and in light of the applicant’s particular circumstances (F.G., para 117). Moreover, this assessment overlooks forms of forced migration recognised by the Court that fall outside the asylum regime but may still trigger non refoulement obligations, such as serious illnesses and severe destitution.

Taken together, these cases illustrate how the Court has sought to substantiate the forced versus-voluntary migration distinction by drawing on Convention rights and related legal frameworks Yet, in doing so, it often leaves crucial assumptions—such as the meaning of ‘choice’ or the consideration of harm’s origin—unstated or under-explained. It is to these underlying assumptions, and their normative implications, that the next section now turns.

2. The link between voluntariness and differentiated protection 

As explained above, the Court’s perception of a migratory movement as voluntary rests on narrow and uneven assessments under non-refoulement (risk of harm) and on the assumption that there were other alternatives available to the migrant which they chose not to make use of. Normatively, this reasoning becomes especially problematic, as categorising migratory movements as voluntary often leads the Court to deny migrants’ rights. The foundational principle behind the Court’s reasoning in these cases is no other than the right of states to control migration, inherently flowing from their sovereignty: one (a non-citizen) cannot just choose to enter in a sovereign state; and if they do, they should not expect rights that come with membership. This logic has long underpinned the Court’s case law, as seen in its first migration ruling, Abdulaziz (para 68), where it held that the right to family life under Article 8 of the Convention did not protect the ‘choice by married couples of the country of their  matrimonial residence.’Over the past 15 years, relevant caselaw on the right to family life of migrants, anti-discrimination rights and access to socio-economic rights further elaborates this reasoning and allows us to understand its normative inferences. 

The key normative role of the element of choice as defining of the protection entitlements of migrants is maybe best illustrated in the already discussed case of Bah v UK,where the Court stated that ‘given the element of choice involved in immigration status, […] the justification [of the differential treatment] required will not be as weighty as in the case of a distinction based, for example, on nationality.’ Similarly, Ponomaryovi v. Bulgaria (para 61) protected the access of two migrant children to public education, because ‘it was not their choice to settle in Bulgaria,’ but rather that of their mother.Even if the applicants did not fall in the category of ‘refugees’, their socioeconomic rights are protected because their migration to the respondent state was not voluntary. 

The cases of Bah v UK (para 50) and Omoregie v. Norway (para 57) shed some light on the importance of choice for the Court – it seems that it is conceptually connected with the element of consent.There, the reasoning is that migrants who chose to migrate, without an entitlement of membership in the receiving state, were aware of the regulations in place and therefore have consented to lower protection entitlements stemming from their immigration status. However, it seems that the Court applies consent in a particularly unrestricted way when it comes to irregular migrants: on the one hand, there is no assessment of whether their consent was free and informed in view of their vulnerability, and on the other, the justifying limits of consent seem to be especially high. In Semenya v. Switzerland, (paras 124,187, and the seminal Partially Dissenting Opinion of Judge Serghides) and in Belli and Arquier-Martizez v. Switzerland (paras 66-67) we can see examples of the Court assessing whether a choice is forced or real, and therefore whether the consent was free and informed. In Ilias and Ahmed (para 221) the Court refers to consolidated jurisprudence to explain that the right to liberty is too important for a person to lose the benefit of the protection of the Convention for the single reason of their consent (that they have agreed to their detention); however, it then proceeds to say that this does not apply in the case of irregularly entering asylum seekers. An explanation for such a distinctive assessment may be found in what we see as the Court’s underlying moral evaluation of migrants’ deservingness.

As previously discussed, under international law – including the Convention system – forced migrants are typically understood to deserve greater protection than voluntary migrants. However, even among voluntary migrants, hierarchies of deservingness persist, particularly between those with lawful immigration status and those without. This logic is most explicitly articulated in the dissenting opinion of Judges Villiger, Mahoney and Silvis in Jeunesse v. the Netherlands (para 10) , where the majority found that deporting a Surinamese mother violated her rights under Article 8 of the Convention. The dissent sharply criticised the ruling for:

‘giving to those prospective immigrants who enter or remain in the country illegally and who do not properly and honestly comply with the prescribed conditions for seeking residence a special premium, in terms of Convention protection, over those who do respect the applicable immigration law [emphasis added].’ 

Once again, the decisive factor in determining access to rights is not the actual voluntariness or necessity of the migration, but the migrant’s legal status. This underscores a broader and even more consequential distinction: between migrants who are entitled to enter and/or reside in the receiving state—whether as refugees, according to international legal norms that states have consented to, or as regular migrants under domestic immigration rules—and those who are not: that is, irregular migrants.

The subordination of the forced/voluntary migration binary to considerations of state control and legal compliance—resulting in the denial of protection to both refugees and irregular migrants alike—is especially evident in the recent body of caselaw concerning access to territory that is the subject of the next section.

3. The erasure of the forced versus voluntary migration binary in the Court’s recent caselaw on access to territory

In recent years we have witnessed the transference of the line of reasoning presented in the previous section to all those who enter illegally, despite being asylum seekers (for a detailed analysis of this argument, see Alex Geraki Trimi and Eleni Karageorgiou, ‘Tales of Agency and Exclusion:Deconstructing the ‘Own Culpable Conduct’ Requirement in the ECtHR Migration-related Jurisprudence’ EJIL, accepted in press). In this cluster of caselaw, the consequence of deeming them undeserving of protection is the deprivation of their right to an assessment of whether they are facing a risk of harm contrary to Article 3 as a result of their deportation. The leading case is the infamous N.D. and N.T. v. Spain, where the applicants conduct of entering Spain in an unauthorised manner, choosing to circumvent the allegedly (as Hakiki explains) available means of legal entry, is deemed as ‘culpable’ and results in the perception of their collective expulsion as compatible with the Convention. Since then, this is the default approach of the Court in cases that concern Article 4 Protocol 4’s prohibition of collective expulsions (indicatively: M.K. and Others v. Poland, M.H. and Others v. Croatia, M.A. and Z.R. v. Cyprus). Asylum seekers who cross the border illegally, despite being protected against penalties for their illegal entry by refugee law,² are punished because their conduct is considered ‘voluntary’: they could have entered legally, so choosing to do otherwise involves their ‘culpability’ – their individual responsibility- for their expulsion.

By shifting the locus of voluntariness from the reasons for migrating – namely, the risk of persecution or harm upon return – to the means of entry, however, the Court has paradoxically blurred the traditional boundary between forced and voluntary migration. In doing so, it embeds both categories within a common logic of securitisation and control, where the legal form of arrival takes precedence over the substance of protection needs as provided under refugee law and related frameworks, including the Convention. In other words, the Court’s approach collapses the distinction between forced and voluntary migration by applying equally restrictive standards to both, effectively levelling protection downwards. At the same time, this shift leaves little room for giving legal significance to the structural constraints that shape migration decisions – regardless of whether they are recognised under existing legal categories – thus rendering the debate over voluntariness increasingly hollow and detached from migrants’ lived realities.

Conclusion 

Despite substantial academic critique and the concept’s significant normative weight, the Court continues to rely uncritically on poorly articulated assumptions about voluntariness. Voluntary migration, in this framework, is defined largely by exclusion: it encompasses all movements that do not meet the Court’s evolving and inconsistent criteria for forced migration. In turn, these criteria remain largely unsubstantiated, particularly when filtered through the lens of international refugee law. Yet the resulting classifications are central in determining the level of protection persons on the move can expect under the Convention.

The Court’s reasoning hinges on a broader moral logic of consent and responsibility: migrants who are perceived to have chosen their path—whether by consenting to precarious immigration terms or by bypassing legal channels—are seen as less entitled to protection. This reasoning stems from and stands alongside with the perception of cross-border migration as ‘unwanted’ by the receiving states and is consolidated by a particularly unrestrained perception of states’ prerogatives to control migration, famously described by Dembour as the ‘Strasbourg Reversal’. Thus, the expression of migrants’ agency against the receiving country’s immigration rules – including its commitments under international refugee law – and interests is punished with the deprivation of most protection entitlements (Erdal and Oeppen, 984).

This approach has become prevalent over the examined period and, in our opinion, is taken one step further, in the Court’s recent jurisprudence on the prohibition of collective expulsions under Article 4 Protocol 4 of the Convention. This line of caselaw creates a new protection binary: on one side, those who choose not to use available means of legal entry; on the other, those who either do use them or who, in the absence of that possibility – crucially, due to reasons directly attributable to the respondent State (N.D. and N.T., para 201) – have no choice but to cross the border illegally to access protection. By expanding considerations of deservingness – linked to perceived migrants’ agency – as a basis for legitimising pushbacks by Contracting States, the Court has dramatically undermined the substantive protection granted by the international refugee law regime. As a result, it effectively conflates all unauthorised entrants with voluntary actors, thereby stripping those who might otherwise qualified as ‘forced migrants’ under the Court’s own criteria of the heightened protection that it had long and persistently sought to afford them.

These findings underscore the power of legal institutions to shape migration categories and determine the scope of rights based not on need or vulnerability, but on artificial and politically contingent notions of forced and voluntary migration. While categories are ‘both pervasive and inevitable,’ (Crawley and Skleparis, 59) recognising their legally constructed nature is essential for unpacking the assumptions they rest upon, the political goals they serve, and their inherently contingent—thus evolving and changeable—character.

1. In principle, we agree to a third position, adopted by Achiume (1532), which stipulates that efforts for migrants’ inclusion under ‘political stranger exceptionalism’ (i.e. forced migration is the exception to the rule that states can exclude migrants) are inherently flawed, but for the purposes of this paper we want expose the normative incoherences found in Strasbourg’s application of the binary between forced-voluntary migration, to show that this labelling exercise is not neutral but it serves the purpose of promoting and furthering migrants ‘exclusion. ↩︎
2. Article 31 (1) of the Geneva Convention relating to the Status of Refugees dictates that ‘states shall not impose penalties, on account of their illegal entry’, on refugees. ↩︎