Aliens before the European Court of Human Rights Ensuring Minimum Standards of Human Rights Protection (Immigration and Asylum Law and Policy in Europe) PDF
Preview Aliens before the European Court of Human Rights Ensuring Minimum Standards of Human Rights Protection (Immigration and Asylum Law and Policy in Europe)
Aliens before the European Court of Human Rights Immigration and Asylum Law and Policy in Europe Edited by Elspeth Guild Valsamis Mitsilegas volume 49 The titles published in this series are listed at brill.com/ialp Aliens before the European Court of Human Rights Ensuring Minimum Standards of Human Rights Protection Edited by David Moya and Georgios Milios LEIDEN | BOSTON The Library of Congress Cataloging- in- Publication Data is available online at http:// catalog.loc.gov lc record available at http:// lccn.loc.gov/2021939288 Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/b rill- typeface. issn 1568- 2749 isbn 978- 90- 04- 46568- 8 (hardback) isbn 978- 90- 04- 46569- 5 (e- book) Copyright 2021 by David Moya and Georgios Milios. Published by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Brill Nijhoff, Brill Hotei, Brill Schöningh, Brill Fink, Brill mentis, Vandenhoeck & Ruprecht, Böhlau Verlag and V&R Unipress. Koninklijke Brill nv reserves the right to protect this publication against unauthorized use. Requests for re- use and/ or translations must be addressed to Koninklijke Brill nv via brill.com or copyright.com. This book is printed on acid- free paper and produced in a sustainable manner. Contents P reface vii 1 S tate Jurisdiction and the Scope of the echr’s Protection (Article 1 echr) 1 Margarite Helena Zoeteweij- Turhan 2 T he Right to Life of Migrants and Refugees under Article 2 echr: Outside, Inside and Along the Way 16 Juan Ruiz Ramos 3 P rotecting Aliens with Article 3 of the echr: An Analysis with a Focus on Refugees and Migrants 46 Meltem Ineli- Ciger 4 P rohibition of Slavery and Forced Labour (Article 4): Human Trafficking 76 Celia Díaz Morgado 5 A liens’ Protection against Arbitrary Detention (Article 5 echr) 97 Andreia Sofia Pinto Oliveira 6 P rocedural Rights Protecting Immigrants: Right to a Fair Trial (Article 6) and Right to an Effective Remedy (Article 13) 118 Diego Boza Martínez 7 T he Right to Family and Private Life in Migration and Asylum Cases (Article 8) 141 Georgios Milios 8 P olitical Rights of Aliens: Articles 10, 11 and 16 of the echr and Article 3 of Additional Protocol i 172 Reuven (Ruvi) Ziegler 9 S ocial Rights and Migrants before the European Court of Human Rights 191 Natalia Caicedo Camacho vi Contents 10 A liens’ Right Not to Be Discriminated Against (Article 14 and Protocol 12 echr) 211 Maria Mousmouti 11 E xpulsion and Prohibition of Collective Expulsion of Migrants and Asylum Seekers: The Level of the ECtHR’s Protection 235 Filippo Scuto 12 T he Margin of Appreciation of States in the European Convention on Human Rights and Additional Protocol No. 15 249 Benedita Mac Crorie and Giulia Santomauro 13 V ulnerability Assessment as an Instrument to Enhance Human Rights?: A First Balance of the ECtHR’S Approach in the Field of Migration and Asylum 277 Andrea Romano Index 295 Preface Europe has recently faced various challenges, which had a direct or indirect impact on migrants and refugees present or willing to enter to the European territory. The economic crisis, which started in 2008, had an important impact on decision- making in the field of migration in many European countries, whereas it also affected the dynamics and legislative procedures in interna- tional organisations such as the European Union. At the same time, many European countries experienced the rise of political parties with xenophobic rhetoric and legislation in various fields of migration took a restrictive turn in recent years. A similar situation at times also observed in the case law of domes- tic or international courts which interpreted several provisions of migration law in a controverting manner. The so- called refugee crisis of 2015 challenged the already tense political situation in this area even further. Reception condi- tions for asylum seekers were often inappropriate or degrading whereas in the years following 2015, the restrictive policies already experienced in the field of migration were also present in the area of asylum and refugee law. Asylum seekers were faced with various obstacles such as closed borders or detentions, whereas rights such as the right to family reunification were postponed or directly denied. In this controversial context, the need to talk about human rights protec- tion in this field became imperative. Indeed, the above- mentioned situation in Europe placed human rights at the centre of scholarly and academic attention, while both public authorities’ actions and legislative reforms were questioned from a human rights perspective. This volume aims to become a piece of this human rights- oriented approach to reality, dealing with immigrants’ and refu- gees’ rights in the European Convention on Human Rights (echr) and the case law of the European Court of Human Rights (ECtHR). In recent decades, the ECtHR has developed an important case law on migration and refugee cases, while more recently, several cases directly affected by the circumstances listed above reached the ECtHR. Indeed, while in the earlier years of Strasbourg case law, migration cases primarily concerned protection of the principle of non- refoulement through Article 3 of the echr or the right to family life under Article 8, the ECtHR progressively developed an extensive case law on migra- tion and asylum in relation to almost all echr rights. In view of this develop- ment, there is a need to systematise this case law in a volume regarding aliens’ rights under the echr, offering readers the chance to familiarise themselves with or gain deeper insight into the main principles the Strasbourg court applies in its case law regarding aliens. viii Preface This volume conducts an in- depth analysis of the ECtHR’s case law as regards the most relevant rights of the echr, exploring the role of this court in this area of law. Each chapter deals with the case law on one specific echr article. In addition, the volume is enriched by two additional studies which deal with issues that the editors believe should be treated in a transversal manner, namely vulnerability and the margin of appreciation. The former is a particularly relevant topic in the field of migration and a recently emerging one among scholars. The latter is a familiar issue that has been present in the Court’s case law since its very beginning. More particularly, in the first Chapter Margarite Helena Zoeteweij- Turhan explores the notions of jurisdiction and (extra-) territoriality as applicable under the echr. Article 1 of the echr delimits the obligations of states to secure the rights of everyone within the jurisdiction of the Contracting States. The author is thus analysing both the definition of right holders of the echr and the way jurisdiction is understood by the ECtHR. In the last part of her chapter, the author focuses on issues related to expulsion of aliens, reaching conclusions regarding the extraterritorial application of the echr in both migration and asylum cases. In Chapter 2, Juan Ruiz Ramos focuses on Article 2 and the right to life. The chapter follows three different situations where the life of migrants and ref- ugees may be at risk: in the country of origin, during the journey to Europe and in the host Contracting States, thus dealing with the issue from both a positive and negative obligations perspective. Not least, the author dedicates part of his analysis on the practice of the Court to deal with expulsion cases, where aliens would face risks to their life in the country of origin under Article 3 instead of Article 2 of the echr, presenting the main problematics regarding this consideration. In Chapter 3, Meltem Ineli- Ciger focuses on Article 3 of the echr, which prohibits torture and inhuman and degrading treatment. After dealing with the definition of the notions of torture and inhuman and degrading treatment, the author delves deeper into the case law of the ECtHR. From one side, the author considers expulsions of aliens and the way this Convention article pro- tects the principle of non-r efoulement, analysing all relevant case law from leading cases such as Soering up to more recent ones. From the other side, in view of the popularity of migration detention as well as the poor residence conditions that many aliens, especially in the field of international protection face, the chapter focuses on the safeguards that Article 3 of the echr may provide in such cases. In Chapter 4, Celia Díaz Morgado deals with the prohibition of slavery and forced labour with a special focus on human trafficking cases that often entail Preface ix the element of migration as well. In that respect the author examines both neg- ative and positive obligations that may derive from Article 4 of the echr and argues that beyond the substantial progress in the case law of the court, there are still open questions to be answered as regards, for instance, the potential protection under Article 4 of expulsion cases of aliens with a real risk of being re- trafficked in the country of origin. The prohibition of arbitrary detentions is the object of Chapter 5 of the vol- ume. Sofia Pinto deals with the controversial issue of migration detentions, starting with a conceptual approach to the term detention, distinguishing among airport transit zone, reception centre and border transit zone deten- tions. The author then focuses on the distinction followed by the ECtHR regarding the motive of the detention, namely detentions in order to prevent unauthorised entry and those made with a view to deportation. The chapter finalises with a reference to the Court’s approach on procedural safeguards, such as the right to be informed and the judicial appeal of the detention. The content of Chapter 6 is extremely relevant in migration case law on procedural rights. Diego Boza combines case law on two different provisions of the echr (article 6 and 13) in his study, analysing the right to a fair trial and the right to effective remedy and their applicability in migration cases. The question of whether immigration measures are included in the scope of Article 6 echr, the subsidiary character of Article 13 and the definition of the concept ‘effec- tive remedy’ in migration cases are some of the main issues with which the author deals. The right to family and private life (Article 8) – one of the echr rights which attracts a particularly important number of migration cases – is dealt with in Chapter 7. Georgios Milios explores the three main kinds of migration cases that reach the ECtHR (family reunification, regularisation and expul- sion), highlighting the different principles applied by the ECtHR in each one and questioning their relevance to the notion of family life. Political and social rights are examined in the following two chapters (8 and 9) by Reuven (Ruvi) Ziegler and Natalia Caicedo, respectively. In Chapter 8, the author deals with several political or participation rights such as the freedom of expression and the freedom of association but also with the scope of Article 16 echr that explicitly refers to the imposition of restrictions on the political activity of aliens. From her side, Natalia Caicedo critically examines the rationale of eco- nomic limitations in order to justify interference in migrants’ social rights fol- lowed by the Court and the rationale of economic contribution as the criteria that settles migrants in an equality position. A key provision for migration cases is undoubtedly the prohibition of dis- crimination – the topic of Chapter 10. Maria Mousmouti deals with Article14
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