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

X and X v. Belgium: a missed opportunity for the CJEU to rule on the state’s obligations to issue humanitarian visa for those in need of protection

By Helena De Vylder, lawyer at the Flemish Integration Agency (Agentschap voor Integratie en Inburgering)

On 7 March 2017, the Court of Justice of the European Union (CJEU) gave a preliminary ruling in the case PPU X and X v. Belgium. Against the recommendations of the Advocate General, the CJEU left the responsibility for granting humanitarian visas with the Member States. It argued that, although the request for a visa was formally submitted on the basis of Article 25 Visa Code, the situation at stake fell outside the scope of the Visa Code. The applicants submitted the request with the intention to apply for asylum as soon as possible upon their arrival in Belgium and to stay there as refugees, while the Visa Code only covers short-term visa. Continue reading

Hirsi (part II): Another side to the judgment

This is the second post written by Marie-Bénédicte Dembour* on the case Hirsi Jamaa and Others v. Italy.

As I said yesterday, Hirsi is a fantastic judgment. It is ground-breaking not only for declaring interception-at-sea as currently practiced illegal on a number of grounds but also for potentially lightening the burden of proof which falls on applicants in return cases. But what did the Court say about reparation? Continue reading

Interception-at-sea: Illegal as currently practiced – Hirsi and Others v. Italy

This post is written by Marie-Bénédicte Dembour. She is Professor of Law and Anthropology at the University of Sussex. She is the author of Who Believes in Human Rights? Reflections on the European Convention and currently preparing a monograph provisionally entitled Migrant First, Human When? Testing Human Rights in the European and Inter-American Courts.

Europe does not like the ‘irregular’ migrants who, typically originating from economically struggling and/or war-torn countries, arrive on her shores without any document – and certainly no visa – after long travels. She has devised more and more strategies to keep these people at bay. One of these is to persuade so-called transit countries to take back migrants intercepted at sea. An emblematic example of this strategy is a bilateral cooperation agreement which Italy and Libya signed in December 2007 and its Additional Protocol of February 2009, whereby Libya pledged to support the Italian authorities in their fight against clandestine immigration in exchange for infrastructure, training and money. From the perspective of the authorities, the cooperation was entirely successful. It led the Italian Minister of the Interior to report and boast to the Italian Senate in May 2009, for example, that thanks to the agreement 471 irregular migrants had been intercepted on the high seas and transferred to Libya earlier that month. From a human rights perspective, this kind of strategy is disastrous from many various reasons, not all of which can be detailed in this blog.

Hirsi Jamaa and Others v. Italy is the first case in which the European Court of Human Rights delivers a judgment on interception-at-sea. In the present context the latter term is a short-hand for referring to the enforced return of irregular migrants to the point of departure of their attempted Mediterranean crossing, without any individual processing, let alone examination of asylum claims. Unanimously, the Grand Chamber found a violation of Article 3 ECHR prohibiting inhuman and degrading treatment on a double count (risk of ill-treatment in Libya and risk of repatriation from Libya to countries where ill-treatment is rife), a violation of Article 4 of Protocol no. 4 prohibiting collective expulsion and a violation of Article 13 ECHR guaranteeing a domestic remedy for any arguable complaint of a violation of the Convention. These verdicts, reached by the Grand Chamber unanimously on 23 February 2012, undoubtedly put into question the kind of bilateral and multilateral agreements which have been signed by European states in the last decade or so in order to fight clandestine immigration, not to mention the fact that they indirectly require major aspects of European migration policy to be revised.

Continue reading

The Strasbourg Court and the Arab Spring

International politics are never far away in cases dealing with the extradition of individuals to third countries. In the case of Al Hanchi v. Bosnia and Herzegovina the European Court of Human Rights was confronted with an extradition of a so-called foreign mujahedin to Tunisia. Until now, the Court had a clear stance. The deportation of individuals with such a profile to Tunisia entails a risk of ill-treatment. (see e.g.  Saadi v. Italy)  In the aftermath of the Arab Spring the Court is however reconsidering this position. Continue reading