Expert report: How strict is the European Court of Human Rights in migration cases?

Expert report drafted by Ellen Desmet (Ghent University), Eva Sevrin (KU Leuven, Ghent University) and Thomas Spijkerboer (Ghent University)[i]

Introduction

On 10 December 2025, 27 Council of Europe states adopted a statement expressing their concerns about the migration case law of the European Court of Human Rights (ECtHR). They believe that the ECtHR imposes too many restrictions on European governments.

In January 2026, the ECtHR itself published a fact sheet with figures on its case law in migration cases. It shows that in the past 10 years, less than 2% of the complaints submitted to the Court have been about migration. In only 6% of the migration-related complaints, the ECtHR ruled that there had been a violation of the European Convention on Human Rights (ECHR).

In this report, we answer the question of how strict the Court’s case law really is for European states. Our analysis focuses on the content of the ECtHR case law and shows that

• The Court has been state-friendly from the outset.
• Moreover, over the last decade, case law has imposed fewer restrictions on states.
• The basic standards of the ECHR are also enshrined in other, binding instruments.
• Finally, the impact of this case law at national level is limited in the case of Belgium.

This blog post is based on this expert report, available in Dutch, English and French.

1. At the ECtHR, states are already in the lead anyway

The December 2025 informal statement by 27 members of the Council of Europe is based on the assumption that the ECtHR has taken an activist stance and has extended the protection of the ECHR in migration cases too far. The ECtHR is said to give too much weight to migrants in its weighing of the interests of migrants and European states.

However, the ECtHR has adopted a fundamentally state-friendly approach from its first judgments. It handles migration cases in a very restrained manner.

Normally, the starting point is that an individual has a right to act as they please. People do not have to justify that they want to express their opinion or that they want to enjoy private life with a partner. They don’t have to justify why they prefer this particular opinion or this particular partner. The state can restrict these freedoms, but must justify it: (1) there must be an explicit legal basis for the restriction; (2) the restriction must have a legitimate aim; and (3) the restriction may not go beyond what is necessary to achieve the legitimate aim (proportionality). This means that the right is the rule and its restriction the exception.

In migration cases, however, the ECtHR does this the other way around. Since its very first migration judgment Abdulaziz (1985), the ECtHR has not put people’s rights first, but the right of states to control the admission of foreigners (Abdulaziz §67). For example, a Nigerian man and a Norwegian woman were expected to justify falling in love (and then marrying and having a child) while knowing that the man’s residency status (an asylum seeker awaiting a decision) was uncertain; the ECtHR found that the deportation of the man was not a violation of Article 8 ECHR (Omoregie (2008) §57-61). If one of the spouses is a third-country national, they are expected to demonstrate that they can only live in a European country (and nowhere else), whereas the choice of domicile is normally a fundamental right of marriage partners (Abdulaziz §68). This means that in migration cases, people’s rights are not the rule: the right of states to control migration is paramount, and human rights are the exception. This also applies when minors are involved (e.g. Butt (2012) §97).

This turning human rights upside down (human rights as an exception instead of as a rule) has been called the ‘Strasbourg reversal’ by Marie-Bénédicte Dembour. This reversal is evident not only in cases about Article 8 ECHR (right to respect for private and family life), but also in other cases.

• Immigration detention: Unlike for other administrative grounds for detention (minors, psychiatry), the state does not have to establish that detention is necessary to prevent an alien’s unlawful entry into the country or to allow for expulsion; it is sufficient if the detention is related to one of these purposes (Chahal (1996) §112; Saadi (2008) §72).
• Detention conditions: In this respect, the ECtHR applies significantly lower standards in migration cases than in other cases, which meant that the harsh conditions in detention centres in Lampedusa and the Greek islands were not classified as inhuman or degrading treatment (Khlaifia (2016) §185; J.R (2018) §138-147; Kaak (2019) §64).
• Border detention: The ECtHR has facilitated border control by not necessarily classifying the detention of people at the border as deprivation of liberty (Ilias & Ahmed (2019) §219-249).
• Humanitarian visas have been kept out of the scope of the ECHR (M.N. (2020) §123-124)
• Collective expulsion: The return of migrants at the Spanish border fences without any assessment is not considered collective expulsion (N.D. & N.T. (2020) §231-232).
• Margin of appreciation: The ECtHR gives a wide margin of discretion to the State to set family reunification criteria, e.g. for persons with subsidiary or temporary protection (M.A. (2021) §161). Such a wide margin of appreciation is de facto also applicable in asylum cases, in that the ECtHR does not consider decisive whether the deportation has led to torture (as in Vilvarajah (1991) §112), but makes decisive what (1) the national authorities, whose assessment is in principle decisive because they specialise in it (Cruz Varas (1991) §81; Vilvarajah §114), (2) could have known at the time they took the deportation decision (Cruz Varas §76; Vilvarajah §115).
• Applicability of procedural safeguards: The ECtHR has held that the right to a fair trial (Article 6 ECHR) does not apply in migration cases (Maaouia (2000)), as a result of which only the less strict standards of Article 13 ECHR (effective remedy) apply.

In summary: in migration cases, the ECtHR turns human rights upside down. The sovereign power of states to decide as they see fit is the rule, even this interferes in human rights. In principle, the ECtHR respects the judgment of states. Human rights are not the rule (to which the state can make a justified exception), but the exception to state sovereignty over immigration.

The criticism of the ECtHR’s migration jurisprudence focuses on a limited number of judgments.

• In M.S.S. (2011), the Court ruled that the structural flaws of the Greek asylum system were so fundamental that other EU member states would violate the prohibition of inhuman or degrading treatment by sending asylum seekers back there. This was due both to serious shortcomings in the Greek asylum procedure (which entailed a real risk of refoulement to the country of origin) and to deficiencies in Greek asylum reception, which exposed asylum seekers to inhuman or degrading treatment.
• Second, the ECtHR has held that the deportation to Libya of Eritreans and Somalis intercepted by the Italian navy on the Mediterranean violated the prohibition of inhuman treatment, both because of the lack of an asylum procedure (with the consequent risk of refoulement to the country of origin) and because of the inhuman treatment in Libya itself (Hirsi Jamaa (2012)). This application of extraterritorial effect of the Convention on the high sea was in line with a long series of previous judgments, which stipulated that the ECHR applies if an ECHR member state exercises factual or legal jurisdiction.
• Third, the Court has slightly amended the standards for the deportation of seriously ill persons. It has clarified that, where deportation would interrupt urgent medical treatment resulting in serious suffering, the assessment must consider not only the theoretical availability of treatment in the receiving state, but also its practical accessibility (Paposhvili (2016)). As the Belgian judge Lemmens emphasized in his concurring opinion in Paposhvili (§5), this relaxation was based on developments in Belgian case law. The ECtHR therefore did not impose its views on Belgium but followed a development in national case law.
• Fourth, critics posit that the expulsion of aliens convicted for serious offences is increasingly, and therefore too much restricted by ECtHR case law. However, most of the Court’s jurisprudence on Articles 3 and 8 ECHR in the fields of migration and asylum reflects general interpretative principles that were already established in the 1980s, if not earlier, and therefore does not concern “new” developments. Moreover, below in section 4 we will show that the impact of this case law is limited.

The decision of the ECtHR in M.S.S. was substantively confirmed by the Court of Justice of the EU (N.S. (2011)) on the basis of the EU Charter of Fundamental Rights and has resulted in an amendment of the Dublin Regulation (Article 3(2)), so that a change in ECtHR case law would not have a clear consequence. The Court’s decision in Hirsi Jamaa is today of little relevance in terms of content, partly due to the renewed modus operandi of the Italian government (see below, S.S. (2025)), partly due to the more limited notion of collective expulsion at land borders that the Court adopted (see below, N.D. & N.T.). Regarding the Paposhvili case, the ECtHR consistently emphasizes that illness can only be a reason to block deportation in very exceptional circumstances.

2. Over the past decade, the ECtHR has become more state-friendly

Over the past decade, the ECtHR has given a restrictive turn to its case law in a series of judgments. A number of the rulings reviewed above are part of this restrictive trend. This new case law leaves states more freedom to conduct migration policy as they see fit, but has the consequence that the ECtHR sets more requirements for the national procedure.

The restrictive turn is concretely visible in the following points:

• Expansion of the state prerogative: The ECtHR has extended the application of the ‘Strasbourg reversal’ (see above). Initially, it applied those rules only to entry into the territory (Abdulaziz §67). Later it also included residence (Üner (2006) §54; Saadi (2008) §64), as well as expulsion (M.N. §124; N.D. & N.T. §167) and border control (Ilias & Ahmed §213; N.D. & N.T. §168). As a result, the scope of the state prerogative in the field of migration has been expanded step by step.
• Collective expulsion: Where the ECtHR in Çonka ((2002) §59) still demanded that deportation only take place after individual assessment of each case, it softened this requirement in 2016. The Court held that it is sufficient for a foreign national to have had the opportunity to put forward arguments against expulsion (Khlaifia §248). In 2020, the Court moved even further away from the Çonka line, by deciding that if foreign nationals cross the border in groups without permission, their expulsion – despite the absence of any individual assessment – is not a collective one, if there are (even theoretical) possibilities to legally apply for admission at another time and place (N.D. & N.T. §201, 210-211; A.A. §114). As a result, the scope of the prohibition of collective expulsion has been limited.
• Border detention: Whereas the ECtHR previously considered the detention of asylum seekers at the border to be deprivation of liberty within the meaning of the ECHR (Amuur §43), it no longer did so in a Hungarian case (Ilias & Ahmed §249). This limits protection against deprivation of liberty. Incidentally, the Court of Justice of the EU has not followed this, which means that in such situations the EU law protection against detention continues to apply (F.M.S. (2020) §223-228). For member states of the EU, this state-friendly turn of the ECtHR thus has no consequences.
• Detention conditions: Where the ECtHR has detailed standards showing when detention conditions (in particular overcrowding) constitute inhuman or degrading treatment within the meaning of Article 3 ECHR (Khlaifia §163-167), it has accepted since 2016 detention conditions well below this previous minimum level (Khlaifia §185; J.R §138-147; Kaak §64).
• Vulnerable asylum seekers: Whereas the ECtHR initially considered all asylum seekers to be vulnerable (M.S.S. §232, 251), it now refrains from doing so and expects asylum seekers to make plausible that they are particularly vulnerable when assessing whether, for example, their reception conditions are in violation of Article 3 ECHR (Khlaifia §179; Ilias & Ahmed §192). As a result, the ECtHR is less likely to consider an appeal by asylum seekers to the ECHR to be well-founded.
• Extraterritorial jurisdiction: The ECtHR did not assume Italian jurisdiction in a case where the Libyan coast guard, which was financed, equipped and trained by the Italian government and received technical assistance from it, caused the deaths of a number of migrants, including children (S.S., 2025). Because the initial Italian pushbacks have been replaced by formally Libyan, but Italian government-driven, pullbacks, this means that the Hirsi Jamaa judgment has lost much of its meaning in practice.

The Court’s restraint in migration cases is further reinforced by its increasingly procedural approach. In doing so, the Court focuses on the national procedure that is followed rather than on its own substantive assessment of the facts (e.g. Ndidi (2017) §76; Savran (2021) §189). The Court sets strict requirements for the national procedure, but when these requirements are met, the ECtHR will in principle accept the national assessment. A good example of this is the assessment of Article 8 ECHR in removal cases: the Court will consider whether the national authorities took into account the relevant case law when assessing a return decision (Üner and Boultif criteria), instead of replacing the national authorities’ assessment by its own (e.g. Noorzae (2023) §25; Sharafi (2023) §25; Goma (2023) §26; Al-Masudi (2023) §26). This does not mean that the ECtHR never finds a violation of the ECHR, but that it exercises restraint and focuses on procedural safeguards (e.g. on age assessment: F.B. (2025) §85-86). Where the December 2025 statement insists on lowering the procedural standards at the national level, it loses sight of the fact that the substantive scrutiny by the ECtHR will become more intensive to the extent that the judicial scrutiny at the national level becomes less intensive.

3. The same standards are enshrined in other treaties

The standards laid down in the ECHR are also laid down in UN treaties:

• The absolute prohibition of deportation exposing people to a real risk of torture (which has no exception for public order; non-refoulement) is explicitly enshrined in Article 3 Convention Against Torture (CAT) and implicitly in Article 7 of the International Covenant on Civil and Political Rights (ICCPR), the latter including the prohibition of inhuman or degrading treatment.
• Collective expulsion is also prohibited under Article 13 ICCPR (HRC General Comment No. 15, §10).
• Also under the CAT and the ICCPR, deportation can constitute torture or inhuman or degrading treatment in connection with health or detention conditions (e.g. CAT 3 August 2018, 742/2016 §8.8; HRC 13 November 2007, 1422/2005, §6.2).
• Cooperation with third countries can also be in violation of human rights on the basis of the CAT and the ICCPR  (CAT 21 November 2008, 323/2007, Marine I; HRC 25 October 2024, 3663/2019).
• Also on the basis of Articles 2(3)(a) and 14(1) ICCPR, decision-making concerning the right to respect for family life is subject to minimum procedural standards.
• The standards invoked in relation to the instrumentalisation of migration (the prohibition of deportation where there is a real risk of torture (Article 3 CAT; Article 7 ICCPR) or of inhuman or degrading treatment (Article 7 ICCPR), and the prohibition of collective expulsion (Article 13 ICCPR)) are also laid down in other human rights treaties, as indicated.

It should be noted that the ICCPR cannot be denounced, and that the principle of non-refoulement is customary international law (which therefore also applies to states that are not bound to it by a treaty).

In addition, these standards are enshrined in EU law. The Charter of Fundamental Rights of the EU incorporates the ECHR into the EU legal order. Articles 52 and 53 of the Charter also indicate that the ECHR applies as a minimum standard. The Charter applies to EU institutions and to EU member states when an issue falls within the scope of EU law (CJEU Åkerberg Fransson (2013), §19-22). The Court of Justice of the EU is the final arbiter to ensure compliance with the Charter. In addition, primary EU law (Articles 2 and 6 Treaty on European Union, Articles 67 and 78 Treaty on the Functioning of the European Union) guarantees the standards also laid down in the ECHR. Moreover, EU secondary law often provides broader protection of migrant rights, for example with regard to the necessity of immigration detention (Article 10(2)) Directive 2024/1346 and Article 15 Directive 2008/115); the granting of a right of residence (through subsidiary protection status) to persons who cannot be expelled under Article 3 ECHR (Article 15 Regulation 2024/1347) and the guarantee of a subjective right to family reunification (Directive 2004/38).

4. The impact of the ECHR on forced removals from Belgium is limited

How does the case law of the ECtHR affect national practice? For example, what impact do Articles 3 and 8 ECHR have on deportations in Belgium?[ii] We assume that (but have not researched whether) data on other European countries would lead to similar results.

In 2023, 2308 people were forcibly removed from Belgium (Dublin transfers are not included). That number went up to 2451 (in 2024) and 2650 (in 2025) (Immigration Office, p. 3). In 2025, more than a quarter (26.8%) of forced removals involved EU citizens; 73.2% were third-country nationals (Immigration Office, p. 4).

The Council for Alien Law Litigation (CALL) suspends a return decision[iii] in a very small number of cases, as shown in the table below. The ratio of suspended return decisions to forced removals ranges from 1 in 54 (in 2023) to 1 in 70 (in 2024).

Table 1. Ratio of suspended return decisions to forced removals

The substantive aspects of the 2025 suspensions were as follows:

• Of the 36 suspensions analysed,[iv] 25 concerned cases in which the applicant’s conduct was considered to harm public order. In seven suspended return decisions, there were no elements of public order; in four cases, the public order character was questioned by the Council.
• In the vast majority of the cases, the suspension was ordered because the Immigration Office had not conducted a careful and sufficiently thorough investigation into the possible consequences of the deportation on the applicant’s (medical) situation (Article 3 ECHR) and/or their private and family life (Article 8 ECHR).
• In 18 suspensions (50%), the prima facie serious claim was related to Article 3 ECHR. Eight of these decisions concerned general risks of a violation of the principle of non-refoulement that the Immigration Office had not investigated or had not investigated sufficiently thoroughly. The other ten suspensions related to medical issues (the Immigration Office had, for example, not sufficiently taken into account the applicant’s state of health).
• In 17 suspended return decisions, the prima facie serious claim concerned the right to respect for private and family life (Article 8 ECHR).
• Finally, one return decision was suspended because a violation of the principle of due care had been made prima facie plausible in the light of Article 7, paragraph 1 of the Aliens Act: it was not clear whether the Immigration Office had based itself on the correct facts to assess the public order aspects of the case.

These figures are an overestimation of the impact of the ECHR on forced returns, because it concerns suspension decisions that involve a preliminary assessment. In doing so, the CALL applies the precautionary principle: it is better to suspend too many cases than to allow a deportation which later turns out to be unlawful. In the assessment of the merits, the Council’s power is limited to a review of legality, and it cannot, for example, carry out the weighing of interests under Article 8 ECHR itself. If the Council annuls a return decision, it is perfectly possible that a new, better substantiated or motivated return decision of the Immigration Office will pass the test of the Council and the ECHR.

5. Conclusion

The European Court of Human Rights has formulated basic human rights standards which also apply to migration and asylum cases. In that manner, it has contributed considerably to the European legal order. Some of its judgments have sparked controversy. Some commentators find the Court too state-friendly, others find it too migrant-friendly. There is certainly much to be analysed and discussed. But the suggestion that this case law is an obstacle for effective migration and asylum policies is unfounded. Strasbourg case law shows a lot of understanding for the problems of states, and its impact on the number of deportations is small.

[i] Co-signed by Marie-Laure Basilien-Gainche (Lyon), Eva Brems (Ghent), Jean-Yves Carlier (Louvain-la-Neuve), Philippe De Bruycker (Brussel), Tesseltje de Lange (Nijmegen), Marie-Bénédicte Dembour (Ghent), Paula García Andrade (Madrid), Cristina Gortázar Rotaeche (Madrid), Valeria Ilareva (Sofia), Meltem İneli Ciğer (Isparta), Jasper Krommendijk (Nijmegen), Luc Leboeuf (Liège), Nora Markard (München), Boldizsár Nagy (Budapest), Gregor Noll (Gothenburg), Elina Pirjatanniemi (Åbo), Julie Ringelheim (Louvain-la-Neuve), Sylvie Sarolea (Louvain-la-Neuve), Jessica Schultz (Bergen), Serge Slama (Grenoble), Stijn Smet (Hasselt), Stefaan Smis (Brussels), Ashley Terlouw (Nijmegen), Rebecca Thorburn Stern (Uppsala), Nicos Trimikliniotis (Nicosia), Wouter Vandenhole (Antwerp), Jens Vedsted-Hansen (Aarhus), Catherine Warin (Lille), Stéphanie Wattier (Namur), Patrick Wautelet (Liège).

[ii] A more detailed account of the research method used can be found in E. Desmet, E. Sevrin and T. Spijkerboer, “De impact van het EVRM op gedwongen verwijderingen in België”, 2026, http://hdl.handle.net/1854/LU-01KHKAT7ZGAHJFZRE1YAR158V4.

[iii] In the Belgian context: order to leave the territory (bevel om het grondgebied te verlaten – BGV / ordre de quitter le territoire – OQT).

[iv] Three judgments were not publicly available yet at the time of writing.