A new chapter on the deportation of ill persons and Article 3 ECHR: the European Court of Human Rights judgment in Savran v. Denmark

By Dr. Mark Klaassen, Institute of Immigration Law, Leiden University

On 1 October 2019, in the Savran judgment the European Court of Human Rights (hereinafter: ‘the Court’) has applied the Paposhvili-test in cases involving the expulsion of migrants who fear to be the victim of a violation of Article 3 ECHR because a medical treatment is not available in the country of origin. See, for an analysis of the Paposhvili ruling, the blog post of Lourdes Peroni on this blog. The case involves the deportation of a Turkish man with a severe psychiatric condition from Denmark to Turkey. In this contribution, I will first briefly sketch the development of the case law of the Court in Article 3 ECHR cases involving medical treatment. After that, I will outline the facts of the present case and the ruling of the Court. In my analysis of the ruling I will question the feasibility of the Court’s position that the host state is required to obtain assurances from the country of origin that medical treatment is available for a particular patient. I will argue that in case serious doubts persist as to whether the required medical treatment is available and accessible, the returning state should simply refrain from deportation. My final argument is that the Court should have addressed the issue of the right to respect for private and family life under Article 8 ECHR, as I believe it would be helpful to receive more guidance in deportation cases of convicts who committed their crimes in a situation that they cannot (fully) be held accountable because of a psychiatric condition. Continue reading

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

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. Continue reading

The best interests of the child in deportation cases: An analysis of Ejimson v. Germany

By Dr. Mark Klaassen, Assistant professor at the Institute of Immigration Law (Leiden University)

Introduction

On 1 March 2018, the Fifth Section of the Court unanimously held in Ejimson v. Germany that the revocation of the right of residence in Germany of a Nigerian national after being criminally convicted for a drugs related offence did not breach Germany’s obligation to respect the private and family life of the applicant. Considering the character of the offence committed by the applicant the ruling may not come as a surprise as the Court is generally very strict in public order immigration cases in which the applicant has committed a drugs related offence. However, the reasoning of the Court is interesting for a number of reasons. After discussing the facts of the case and the judgment of the Court, I will analyse the ruling on three different aspects. Firstly, the role of the best interests of the child concept in the balancing of interests will be discussed. Secondly, the relationship between the right to respect for family life under Article 8 ECHR and the protection against expulsion under EU law will be assessed. Thirdly, I will shortly reflect on the manner in which the Court seems to redirect the case back to national decision makers. Continue reading

‘Of course a stranger must conform’: reading the Ndidi judgment with Euripides’ Medea

By Benoit Dhondt, Belgian lawyer specialized in migration and refugee law. As a teaching assistant, he is also connected to the Human Rights Centre of Ghent University, more specifically its Human Rights and Migration Law Clinic.

Recently the ECtHR took an umpteenth swing at the question to what extent the family life and private life of a settled migrant with a criminal record is worthy of protection. At a time in which Council of Europe Member States, such as Belgium, have developed new legislation concerning the deportation of migrants allegedly posing a threat to public order, the case of Ndidi v. the United Kingdom does little to clarify the Court’s rather heterogenous case law in this matter.  I will give a brief description of the case, after which I will propose a new approach to private life and family life in deportation cases, based on a reading of Euripides’ famous play Medea, and inspired by the dissenting opinion of Judge Turković to the case. Continue reading

One-way ticket to Sudan: standard-setting, yet disconnection between reasoning and outcome in N.A. v. Switzerland?

By Ellen Desmet, assistant professor of migration law at Ghent University

On 30 May 2017, the European Court of Human Rights decided two cases regarding the expulsion of rejected asylum seekers by Switzerland to Sudan. In A.I. v. Switzerland, the Court held unanimously that there would be a violation of Articles 2 and 3 ECHR in case of implementation of the deportation order, whereas in N.A. v. Switzerland the Court, also unanimously, did not find a conditional violation of these provisions.

The judgments (only in French) deserve a blogpost for at least two reasons. First, the Court explicitly sets out criteria in order to assess the risk of ill-treatment of political opponents when returned to Sudan. Second, the legal reasoning in N.A. v. Switzerland seems to hold potential for improvement. This post does not aim to question the outcome in N.A.: even though many aspects of A.I. and N.A. run parallel, there are important factual differences that may justify finding a violation in one case but not in the other. It does take issue with the way this outcome is arrived at in N.A. v. Switzerland. Continue reading

The Grand Chamber’s ruling in Khlaifia and Others v Italy: one step forward, one step back?

Guest post by Denise Venturi, PhD Student in International Law, Scuola Superiore Sant’Anna (Italy) and KU Leuven (Belgium)

On 15 December 2016 the Grand Chamber of the European Court of Human Rights (ECtHR) gave its much awaited ruling in the case Khlaifia and Others v Italy. The judgement follows a 2015 decision of the Second Section of the ECtHR that, in particular, found Italy – for the third time after Hirsi Jamaa and Others v Italy and Sharifi and Others v Italy and Greece – in breach of Article 4 of Protocol 4 to the European Convention on Human Rights (ECHR). The Chamber judgement was warmly welcomed by human rights advocators – and, besides, featured also in the Top Three of this blog’s poll for Best ECtHR Judgement for 2015 – as it upheld considerably the protection of migrants’ fundamental rights amidst the so called ‘refugee crisis’ in Europe.

It is questionable, however, whether the subsequent Grand Chamber’s ruling has been able to keep up the expectations raised by the first pronouncement of the Strasbourg Court. Due to the wealth of issues considered, it is not possible to conduct an in-depth examination of the Grand Chamber’s decision. Thus, this blog post is primarily aimed at providing only a concise analysis by focusing on the differences between the approach adopted by Strasbourg Court in the two judgements delivered in the Khalifia case.

Continue reading

Paposhvili v. Belgium: Memorable Grand Chamber Judgment Reshapes Article 3 Case Law on Expulsion of Seriously Ill Persons

In what is possibly one of the most important judgments of 2016, Paposhvili v. Belgium, the Grand Chamber has memorably reshaped its Article 3 case law on the expulsion of seriously ill migrants. In a unanimous judgment, the Court leaves behind the restrictive application of the high Article 3 threshold set in N. v. the United Kingdom and pushes for a more rigorous assessment of the risk of ill-treatment in these cases. For us at the Human Rights Centre of Ghent University, it was a thrill to intervene as a third party in such an important case. In our third party intervention we submitted that Paposhvili offered a unique opportunity to depart from the excessively restrictive approach adopted in N. We are delighted that the Grand Chamber has seized the opportunity to re-draw the standards in this area of its case law in a way that does fuller justice to the spirit of Article 3.

Continue reading