Europe has an apparent human rights surfeit. The European Convention on Human Rights and its dedicated Court of Human Rights establishes a pan-European human rights minimum. The EU has its Charter of Fundamental Rights and the Court of Justice, widely regarded as the most powerful supranational court in the world. The EU and its Member States repeatedly affirm their commitment to refugee protection, and to human rights in general. However, on closer inspection, the human rights of migrants and refugees are far from secure. Part of the problem is that human rights law and migration control are in tension, and there are many unsettled issues. International human rights law is statist, in that while states must protect the rights of all within their ‘jurisdiction’ (itself a contested concept), non-citizens may be refused entry or deported. The figure of the ‘migrant’ sits uneasily with the basic human equality than underpins human rights law. Accordingly, under what conditions human rights guarantees demand admission or security of residence is highly contested. Even the issue of when states may detain migrants to enforce migration control prompts different answers in different legal regimes.
My starting intuition was that shifting immigration and asylum into the EU institutional context has transformative potential. After all, the EU is a different beast – it is not a state but establishes an ‘Area of Freedom, Security and Justice’ with its own ‘Common European Asylum System.’ In engaging with immigration and asylum policy, the EU is engaged in a crucial element of self-definition: ‘destination Europe’ refers not only to the migrants’ destination but also the political form of the EU.
In contrasting the approaches, interactions, and frictions of the European Court of Human Rights and the Court of Justice of the European Union, many questions arise. Three key areas which need to be addressed are:
Why has 2015 seen hundreds of thousands of refugees risk their lives to seek protection in the EU?
Human rights and refugee law both contain strong norms of non-refoulement, or non-return to face persecution or serious human rights violations. However, those seeking refuge rarely have a legal route to claim asylum in the EU. To claim asylum, they must normally be on the territory, and usually this means a dangerous irregular journey. EU law requires the states where they arrive (predominantly Greece and Italy in 2015) to process their asylum-claims (unless they have close family elsewhere). However, that allocation mechanism would be unworkable if it was properly enforced. It creates many legal frictions, as people resist being transferred back to countries of first arrival, which often run weak asylum systems. Both Courts have been confronted with the human side of these ‘Dublin’ cases, and have taken subtle but significantly different approaches. To illustrate, if an asylum-seeker in Germany seeks nowadays to resist a Dublin removal to, say, Italy, on the grounds that her living conditions there would be undignified, the outcome of her case is hard to predict. It would depend at least in part on which regional German court it went before, or indeed whether she had recourse to the CJEU, ECtHR, or indeed the UN Human Rights Committee.
The human rights of migrants and refugees are far from secure … The figure of the ‘migrant’ sits uneasily with the basic human equality than underpins human rights law.
When is it legal to detain migrants?
The right to liberty is protected in all human rights instruments. Yet, migrants may be detained for reasons that do not pertain to citizens: if they are deemed to be unauthorised entrants or facing deportation. The legality of detention carried out for immigration-related reasons is contested, with EU law establishing standards on detention of asylum-seekers and pre-deportation detention.
On what basis may family reunion be denied?
This question also raises many more. Must family members demonstrate they are capable of ‘integration?’ When may the law deny spouses a right to live together in the country of nationality of one spouse? The human right to family life provides the basis for national and supranational judicial scrutiny of restrictions on the migration of families, in particular family reunification. Yet, migration laws, including those of the EU, create highly stratified family migration entitlements. While EU citizens enjoy relatively clear family reunion entitlements under some circumstances, ECHR protections defer to states’ migration control prerogatives, and EU legislation permits may limitations on family rights, in the name of ‘integration’, for instance. Interactions across these fields are varied and inconsistent, some progressive, some regressive.
We must therefore focus on the importance of interrogating migration control and migration status, in order to avoid the statism that characterizes the normal framing of these issues. While human rights law unsettles the statist migration control assumption, much depends on the institutional setting of the human rights adjudicator when faced with states’ migration control prerogatives. As there are good reasons for the EU system to offer a transformative legal and political space, constructive human rights pluralism opens up greater space for contestation and inclusion.
Human rights universalism does not require open borders, but it does require that there are clear limits to what may be done do in the name of migration control, and that the statuses accorded to migrants allow them to live full, dignified lives.
Featured image credit: Going South by Alexander Mueller. CC-BY-2.0 via Flickr.