Distant Territory, Binding Obligations in Migration Control: The ECtHR’s Judgment in Y.F.C. v. the Netherlands

By Lena Riemer

The distance between Willemstad and Strasbourg is roughly 7,500 kilometers. Yet, as a self-governing constituent country within the Kingdom of the Netherlands, Curaçao is bound by the treaty obligations entered into by the Netherlands, including the European Convention on Human Rights (ECHR). For that reason, the European Court of Human Rights (ECtHR) has jurisdiction over what happens on this small Caribbean island. The ECtHR can hear cases alleging violations in Curaçao, with the Kingdom of the Netherlands as the responsible party before the Court. Last month, it exercised this role in a case concerning the mistreatment of Venezuelan migrants. In Y.F.C. and Others v. the Netherlands, the Court found a violation of Article 3 ECHR due to the lack of sufficient investigation in the use of force and the injuries suffered by the applicants, as well as Article 5 § 4 ECHR due to their complete lack of access to legal assistance during the first week of detention, leaving them unable to meaningfully challenge the lawfulness of their detention before a court.

Despite the geographical distance of the island from the European continent, this Chamber judgment calls for serious attention on both sides of the Atlantic alike. For Curaçao, this decision should matter in practice: although the island has no formal asylum procedure and is not a signatory to the 1951 Refugee Convention, individuals on the island can, at least in theory, invoke Article 3 ECHR, which absolutely prohibits torture, inhuman, or degrading treatment, to seek protection against removal. For years, human rights organisations and activists have repeatedly condemned the island’s practices of forcible pushbacks, arbitrary detention, and violence against migrants and asylum seekers, without much change. This judgment represents the first time the ECtHR has directly scrutinised those practices. Whether it proves a turning point or merely a footnote will depend on what follows. For the Netherlands, the decision is a pointed reminder that human rights obligations do not dissolve at the borders of its constituent countries. For other Council of Europe member States, particularly those currently riding the wave of calling for ‘ever-more restrictive migration policies’ and the ECtHR’s restraints on migration matters, the message is equally plain: the Court is still watching, it is willing to find violations, and it will award just satisfaction where migrants and asylum seekers in immigration detention are mistreated and procedural guarantees are disregarded.

The Facts of the Case

Y.F.C. concerned seven Venezuelan nationals intercepted in April 2019 off the coast of Curaçao. Their vessel was stopped in Curaçao’s territorial waters; the applicants were arrested, brought ashore, and placed in detention pending removal. On the very same day as their interception, all seven received near-identical decisions refusing them entry, ordering their detention, and providing for their removal, a speed and uniformity that would later sit at the heart of their claim of a violation of the prohibition of collective expulsion under Article 4 Protocol No. 4 ECHR.

During their detention, an incident occurred on 9 June 2019 when authorities attempted to transfer the applicants from one facility to another. Unrest broke out, and the authorities responded by firing rubber bullets. Several applicants alleged they had been struck; one further alleged he had been kicked in the back. As so often visible in cases related to violent push-backs and immigration detention, the power imbalance between those affected by these policies and the government in question not only plays out during violent incidents, but also in front of courts, when it comes to questions of evidence. Because prison authorities refused to allow the applicants’ representatives to take photographs, the applicants were left to document their injuries through hand-drawn sketches – depicting bullet marks on their bodies and the imprint of a shoe on the applicant who alleged he had been kicked. No effective internal investigation into the use of force followed; the only reports produced were drawn up by prison staff, the very authority whose conduct was under scrutiny.

Compounding matters, during the first week of their detention in April 2019, the applicants had no access to legal assistance and received no meaningful information about their situation or their rights. It was only after the ECtHR granted an interim measure under Rule 39, temporarily halting their removal, that the applicants were afforded access to an individual protection procedure. They were never ultimately removed.

The Chamber’s Reasoning in Y.F.C.

In its April 2026 decision, the ECtHR found several violations of Article 3 ECHR under both its procedural and substantive limbs in relation to the use of force during the 9 June 2019 incident, and a violation of Article 5 § 4 ECHR in respect of all seven applicants. It found no substantive Article 3 ECHR violation in respect of one applicant, and declared the collective expulsion complaint under Article 4 of Protocol No. 4 ECHR inadmissible.

On the procedural limb of Article 3 ECHR, the Court found that the authorities had failed to conduct an effective and independent investigation into the use of rubber bullets. The only reports produced had been drawn up by staff of the very facility under scrutiny, falling well short of the independence required. The applicants had also been given no role in the process whatsoever. In the judges’ view, the complaint lodged with the Committee Overseeing Detainee Care was sufficient to trigger the investigative obligation; the failure to act meaningfully on it led to the Article 3 violation. Importantly, on the substantive limb of Article 3 ECHR, the Court applied the burden of proof standard established in the 2015 Bouyid v. Belgium decision to the immigration detention context, stressing that ‘where a person is deprived of his or her liberty, or, more generally, is confronted with law-enforcement officers, the Court’s examination shifts to the necessity, rather than the severity, of the treatment to which that person was subjected to determine whether the issue complained of falls within the scope of Article 3 of the Convention’ (Bouyid v. Belgium, §§ 100 and 101 read together). Because no effective domestic investigation had taken place in the case at hand, the government could not discharge that burden. Notably, the Court also highlighted the absence of any domestic legal framework adequately governing the use of rubber bullets, a consideration established by the recent Grand Chamber judgment in Tsaava and Others v. Georgia and now translated into the immigration detention sphere.

On Article 5 § 4 ECHR, the central question was whether interim relief had been practically accessible. The Court found it had not. Detention orders (for the Spanish-speaking applicants) were issued in Dutch, with no translation provided, and contained no reference to the possibility of seeking interim relief. The respondent Government did not dispute that the applicants had no access to a lawyer during their first week of detention. Without legal assistance, the Court found they could not reasonably have been expected to initiate proceedings to challenge the lawfulness of their detention. The Court’s holistic assessment of these circumstances that led to a violation of the provision is a key finding of the decision, which hopefully will guide and improve future member States’ border and immigration detention policies and practices.

However, on Article 4 of Protocol No. 4 ECHR, the Court – in my view, unfortunately – declared the collective expulsion complaint inadmissible ratione personae, following its earlier approach in Abdi Ahmed and Others v. Malta. Although the applicants had initially received near-identical removal decisions without any individualised assessment, they were subsequently afforded access to an individual protection procedure following the Rule 39 interim measure. Because that individual assessment had occurred and no collective expulsion had ultimately taken place, the Court declined to examine the initial procedural deficiencies on the merits.

A (largely) Positive Outcome for Migrants’ Rights in a Time of Pushback on the Court’s Jurisprudence on Migration

The Court’s judgment ultimately delivers a largely positive outcome for migrants’ rights. Importantly, it found several serious violations. The findings under Article 3 ECHR – both procedurally and, for several applicants, substantively – together with the violation of Article 5 § 4 ECHR, highlight the applicants’ practical inability to access judicial review due to the lack of information, translation, and legal assistance. In doing so, the Court sheds light on structural deficiencies in procedural safeguards for those seeking protection and for individuals held in immigration detention. Particularly in a broader climate of increasing political pressure on the Court’s migration jurisprudence, this reaffirmation of core guarantees should not be understated.

At the same time, the Court declared the complaint of a violation of the prohibition of collective expulsion under Article 4 Protocol No. 4 ECHR inadmissible ratione personae in three short paragraphs (§§ 121-123). This outcome must be understood against the well-established principle that the Convention does not permit actio popularis: applicants cannot challenge legislation or practices in the abstract but must demonstrate that they are personally and directly affected. Where a measure has ultimately not been enforced – here, because the applicants were not removed and were granted access to an individualised procedure – the Court has consistently held that victim status may fall away (see, e.g., M.C. v. Türkiye, § 34 or Nabid Abdullayev v. Russia, § 48). Against this background, the Court’s reasoning is doctrinally defensible since no expulsion ultimately took place and an individualised assessment was carried out. However, the case nevertheless raises important questions about how this provision operates in contexts marked by systemic deficiencies. In particular, it would have been helpful had the Court engaged more explicitly with the analytical framework it developed in N.D. and N.T. v. Spain. There, the Grand Chamber established a two-tier test to assess compliance with Article 4 of Protocol No. 4 in situations of summary removal (N.D. and N.T. v. Spain [GC], §§ 201 and 209-211). First, it must be determined whether the State provided genuine and effective access to legal entry channels, including procedures enabling individuals to seek protection in line with Article 3 ECHR. Second, where such access exists, the Court examines whether there were cogent reasons preventing the applicants from making use of it. Applied to the present case, this framework could have offered a more structured assessment of the situation in Curaçao.

Available information suggests that meaningful access to asylum procedures was, at the time of the events in 2019, highly limited. Subsequent developments indicate that these structural shortcomings have largely persisted: despite the introduction of a protection procedure and various policy adjustments, access to asylum has remained ineffective in practice, with continued reports of automatic detention, lack of legal assistance, and the near-systematic rejection of protection claims as recently as 2023-2025. Even more recent reforms adopted in 2025-2026, while formally easing certain residence permit rules and placing limits on automatic detention, leave open whether genuine and effective access to protection in line with Article 3 ECHR has been achieved. Engaging with this first step of the test might therefore have clarified whether the broader legal and institutional context – both at the time of the events and at the time of the Court’s decision – complied with the requirements of the Convention (for a good overview of the evolution of the policies from 2019-2026 done by Mona Grimm, see here). Applied to the present case, this framework could have offered a more structured assessment of the situation in Curaçao. This points to a broader tension. While Article 4 of Protocol No. 4 cannot be invoked in abstracto, its interpretation – particularly through the N.D. and N.T. framework – inevitably entails an assessment of systemic features, such as the availability of genuine access to protection procedures. In that sense, the provision occupies a space between individual protection and structural scrutiny. The present case illustrates the limits of this approach: where a potential violation is ‘neutralised’ at a later stage, the Court may be prevented from fully engaging with the underlying system.

Looking ahead, the implications are clear. Where States fail to provide genuine and effective access to protection procedures, future cases in which removals are actually carried out may well lead to findings of violations under Article 4 of Protocol No. 4. In this respect, the structural concerns raised by the situation in Curaçao remain highly relevant, even if they could not be fully adjudicated in the present case.

Conclusion: An Important Signal – Within Doctrinal Boundaries

Overall, Y.F.C. and Others v. the Netherlands ultimately delivers a largely positive outcome for migrants’ rights. The Court reaffirmed that Convention obligations apply fully in overseas territories and did not hesitate to find violations of Articles 3 and 5 – an important signal for accountability beyond Europe’s geographic core, particularly at a time of sustained political pressure on its migration jurisprudence.

At the same time, the Court’s approach to Article 4 of Protocol No. 4 reflects the structural limits of individual complaint proceedings under the Convention system. Given the absence of an actual removal and the subsequent individualised assessment, its inadmissibility finding is doctrinally consistent with the prohibition of actio popularis. Yet, the case also illustrates the challenges of addressing systemic deficiencies in this framework. A more explicit engagement with the two-tier test developed in N.D. and N.T. v. Spain might have provided further clarity on how Article 4 of Protocol No. 4 applies in contexts where access to protection procedures is structurally limited or non-existent in practice.

Looking ahead, much will depend on whether the Court maintains this line in the face of increasing political pressure. Pending cases, in particular C.O.C.G. and Others v. Lithuania, H.M.M. and Others v. Latvia, and R.A. and Others v. Poland, concerning violent pushbacks, collective expulsions, and restricted access to asylum at the Belarus border, will be especially significant in this regard. My hope and that of many colleagues is that the ECtHR will uphold as well the application of existing safeguards under Article 3 ECHR and Article 4 of Protocol No. 4 in a context where respondent States have explicitly sought to limit their scope by invoking the ‘instrumentalization of migration’. In this sense, Y.F.C. is a welcome indication that the Court remains prepared to uphold established standards, even in politically charged settings. For now, however, Y.F.C. stands as both a reaffirmation of core procedural guarantees and a reminder of the inherent limits of the Convention system in addressing structural problems through individual applications. Hope, as the saying goes, dies last – and for now, there are reasons to hold on to it.