A template for protecting human rights during the ‘refugee crisis’? Immigration detention and the expulsion of migrants in a recent ECtHR Grand Chamber ruling

Stefano Zirulia, Lecturer, University of Milano* (main text on ECHR) and Professor Steve Peers (Annex on EU law aspects)

* Stefano Zirulia participated in the proceedings before the ECHR as counsel for the applicants

Introduction

On the 15th of December 2016 the European Court of Human Rights Grand Chamber handed down its judgment in the case of Khlaifia and Others v. Italy, which partially reversed the Chamber ruling issued on the 1st of September 2015. The case is about immigration detention at the Italian borders (including the island of Lampedusa) and the expulsion of aliens from Italy to Tunisia. Whilst the events took place in 2011, during that peculiar time which was in the immediate aftermath of the Arab Spring, the issues raised before the Court by the applicants and the principle outlined by the judgments appears relevant to the current refugee crisis and its management by the European Union Institutions and Member States.

1. The Facts

The applicants are three Tunisian nationals who, just like thousands of migrants every year, attempted to enter Europe by crossing the Mediterranean Sea from northern Africa to the Italian coast on board rudimentary vessels. The events took place in September 2011, when the flux of migrations was particularly high due to the revolutionary riots (so-called Arab Spring), which had just taken place in some North African countries. While heading to Lampedusa, the applicants were intercepted by the Italian coastguard and brought to the “Early Reception and Aid Centre” (“Centro di Soccorso e Prima Accoglienza” or “CSPA”) located on the island. They were kept at the centre for several days: the first applicant from the 17th to the 20th of September; and the second and the third applicants from the 18th to the 20th of September. When a fire partially damaged the centre, the migrants were first taken to a sports facility and then they escaped and proceeded to move around the island. On the 22nd of September, after having been stopped by the police, the applicants were transferred by airplane to Palermo (Sicily), where they were confined on board ships moored in the harbour for a few days, together with hundreds of other migrants. On the 27th of September, dozens of these migrants, including the second and third applicants, were taken by bus from the ships to the Palermo airport, where they briefly met the Tunisian Consul and immediately afterwards were returned to Tunisia. On the 29th of September, the first applicant followed the same procedure and was returned to Tunisia as well.

2. The Application to the ECHR and the Chamber Judgment

The applicants have alleged that Italian Government violated several of their rights as provided by the ECHR. Firstly, their right to liberty (Article 5 ECHR) was violated because the Lampedusa reception centre and the ships had been used as detention centres without any legal basis (Article 5 § 1), without providing any information to the detainees (Article 5 § 2), nor granting them access to judicial review (Article 5 § 4). Secondly, their right not to be subjected to inhuman and degrading treatment (Article 3) was violated on account of the overcrowding and the poor health and hygiene conditions in which they were held both in the reception centre and on board the ships. Thirdly, their right not to be subjected to collective expulsion (Article 4 of Protocol No. 4 to the Convention) was violated because their forced returns had been decided according to a bilateral agreement signed between Italy and Tunisia in April 2011, i.e. on the sole basis of their nationality, without any consideration of their individual situations. Finally, their right to an effective remedy (Article 13), taken together with Article 3 and Article of 4 Protocol No. 4 was violated because they could neither effectively challenge before a national court the conditions of their detention nor the return procedure.

The Chamber judgment was handed down on the 1st of September 2015. The Court unanimously found violations of Article 5 with regard to § 1, § 2 and § 4. As to Article 3, the Court majority (five votes to two) found a violation in relation to the conditions in which the applicants were held at the Lampedusa reception centre, but not in relation to those conditions in which the applicants were held on board the ships moored in Palermo. The same majority also pointed out a series of factors indicating that the expulsion was collective in nature and, thus, in breach of Article 4 of Protocol No. 4 (see § 156: «the refusal-of-entry orders did not contain any reference to the personal situations of the applicants; the Government failed to produce any document capable of proving that individual interviews concerning the specific situation of each applicant had taken place prior to the issuance of the orders; a large number of individuals of the same origin, around the time of the facts at issue, were subjected to the same outcome as the applicants; and the bilateral agreements with Tunisia, which have not been made public, provided for the return of unlawful migrants through simplified procedures, on the basis of the mere identification of the person concerned by the Tunisian consular authorities»). Finally, again the majority held that there had also been a violation of Article 13 taken together with Article 3, due to the lack of any effective remedy to challenge the conditions of confinement; and another breach of Article 13 taken together with Article 4 of Protocol No. 4, because the refusal-of-entry orders issued against the applicants expressly stated that the lodging of an appeal would not have suspended their enforcement.

3. The Grand Chamber Judgment

In February 2016, the Italian Government request of referral to the Grand Chamber was accepted. The public hearing took place on the 22nd of June 2016 and the final judgment was delivered on the 15th of December 2016. The Grand Chamber confirmed the violations of Article 5 § 1, § 2 and § 4 and confirmed a violation of Article 13 taken together with Article 3.

3.1. Statements Concerning Immigration Detention

Just as the Chamber had previously determined, the Grand Chamber found unanimously that there had been violations of Article 5 § 1, § 2 and § 4.

The Government had objected arguing that the applicants were not deprived of their liberty (and thus the Court lacked jurisdiction ratione materiae under Article 5), since neither the Lampedusa reception centre nor the ships moored in Palermo were designed for detention but rather to provide first aid and assistance (in terms of health and hygiene) to the migrants for the time necessary to identify them and to proceed with their return (§§ 58-60). The Court rejected the argument by recalling that, «in order to determine whether a person has been deprived of liberty, the starting-point must be his or her concrete situation, and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question» (§ 64). With regard to the present case, the Court began by noting that it was not in dispute between the parties, and it was also confirmed by reports issued by the Parliamentary Assembly of the Council of Europe and the Italian Senate’s Special Commission for Human Rights, that the reception centre was under surveillance and that the migrants were prohibited from leaving the centre (§ 65), and that the same happened with the ships, which the Government considered “a natural extension of the reception centre” (§ 66-69). Additionally, the Court noted that the deprivation of liberty was not insignificant in duration: indeed, summing up the period spent in the Lampedusa reception centre and the period on board the ships, the confinement lasted for about twelve days in the case of the first applicant and about nine days in that of the second and third applicants (§ 70). Finally, the Court emphasized that neither the classification of the confinement under domestic law, nor the authorities’ alleged aim to assist the applicants and ensure their safety, could alter the nature of the constraining measures imposed. Indeed, «even measures intended for protection or taken in the interest of the person concerned may be regarded as a deprivation of liberty» (§ 71).

Having stated that Article 5 applied to the case, the Court concluded that its provisions had been violated by the Italian Government. With regard to Article 5 § 1, even if the detention of the applicants under the provision of letter (f) was to control the liberty of aliens in an immigration context (§ 96), the Court noted that it was devoid of any legal basis. According to Italian immigration law, immigration detention is only possible within dedicated centres (the CIE, “Centres for Identification and Expulsion of Aliens”) and under certain strict circumstances (for instance, where a refusal-of-entry measure or an expulsion cannot be implemented immediately, because it is necessary to provide assistance to the alien, to conduct additional identity checks, or to wait for travel documents or the availability of a carrier): in the present case, the Government itself admitted that the applicants had not been held within a CIE because those conditions were not met, thus conceding that their detention was not authorized under Italian law (§ 98). Furthermore, the Court stated that the bilateral agreement for readmission of aliens signed between Italy and Tunisia could not provide a proper legal basis for detention, above all because its full text had not been made public and, thus, it was not accessible to the applicants (§ 102-103).

With regard to Article 5 § 2, having already found that the applicants’ detention had no clear and accessible legal basis in Italian law, the Court failed to see «how the authorities could have informed the applicants of the legal reasons for their deprivation of liberty or thus have provided them with sufficient information to enable them to challenge the grounds for the measure before a court» (§ 117); to be clear, the Court pointed out that «information about the legal status of a migrant or about the possible removal measures that could be implemented cannot satisfy the need for information as to the legal basis for the migrant’s deprivation of liberty» (§ 118).

With regard to Article 5 § 4, the Court recalled that, where detainees are not informed of the reasons for their deprivation of liberty, their right to appeal against their detention is deprived of all effective substance (§ 132). Therefore, the Court considered that its finding under Article 5 § 2 constituted sufficient grounds to conclude that the Italian legal system did not provide the applicants with an effective remedy to challenge the lawfulness of their deprivation of liberty (§ 133). It must also be emphasized that, in the part of the judgment addressing the issue of Article 5 § 1, the Court already pointed out the unavailability of effective remedies by arguing that, since the Lampedusa reception centre and the boats were formally regarded as  reception facilities, the applicants could not have enjoyed the safeguards of habeas corpus applicable to placement inside the Italian detention centres for migrants (the CIE), i.e. the validation by an administrative decision subject to review by a competent court (§ 105).

3.2. Statements Concerning Inhuman and Degrading Treatment

With regard to Article 3, the Grand Chamber confirmed the Chamber judgment as to the conditions on board the ships and reversed it with regard to the Lampedusa reception centre, thus declaring that in neither situation did the applicants suffer inhuman or degrading treatment.

As a general statement, the Grand Chamber pointed out that, without prejudice to the absolute character of Article 3 and the related principle that an increasing influx of migrants cannot absolve a State of its obligations under that provision, yet «it would certainly be artificial to examine the facts of the case without considering the general context in which those facts arose» (§ 185). The Court took into consideration that the situation in 2011 was exceptional (§ 180) and therefore decided to make its assessment bearing in mind that «the undeniable difficulties and inconveniences endured by the applicants stemmed to a significant extent from the situation of extreme difficulty confronting the Italian authorities at the relevant time» (§ 185).

As to the confinement in Lampedusa, the Grand Chamber found that, having considered the situation taken as a whole, as well as the specific circumstances of the applicants’ case, the treatment they complained of did not exceed the level of severity required for it to fall within Article 3 of the Convention (§§ 190-198). Among other factors, the Court specifically stressed that, «even though the number of square metres per person in the centre’s rooms has not been established […] the freedom of movement enjoyed by the applicants in the CSPA must have alleviated in part, or even to a significant extent, the constraints caused by the fact that the centre’s maximum capacity was exceeded» (§ 193). Moreover, the Grand Chamber emphasized that the applicants had been confined within the reception centre only for three and four days respectively, and that their cases could be distinguished from those where the violation was recognized in spite of the short duration of the confinement (§ 195-196).

As to the confinement on board the ships moored in Palermo the Grand Chamber pointed out that the applicants had not presented any objective proof of their allegations (overcrowding and extreme health and hygiene conditions) and it refused their request to shift the burden of proof upon the Government: «the burden of proof in this area may be reversed where allegations of ill-treatment at the hands of the police or other similar agents of the State are arguable and based on corroborating factors, such as the existence of injuries of unknown and unexplained origin» (§ 206). Furthermore, the Grand Chamber attached «decisive weight» to the fact that the Government had produced before it a judicial decision rendered by an Italian court contradicting the applicants’ account. Although the applicants criticized this decision with regard to its evidentiary basis (they highlighted that the decision was mainly based on the statements of a member of the Italian Parliament to the press and not reiterated at the hearing, and that the police had been present when the member of the Parliament visited the ships), the Court ruled that mere speculation cannot call into question the assessment of the facts by an independent domestic court (§§ 207-208).

3.3. Statements Concerning Collective Expulsions

By a vote of sixteen to one, the majority of the Grand Chamber reversed the ruling of the Chamber and declared that no violation of Article 4 of Protocol No. 4 to the Convention had occurred.

The Grand Chamber first recalled that, according to its case-law, collective expulsion is to be understood as «any measure compelling aliens, as a group, to leave a country, except where such a measure is taken on the basis of a reasonable and objective examination of the particular case of each individual alien of the group» (§237). The purpose of this provision is in fact «to prevent States from being able to remove a certain number of aliens without examining their personal circumstances and therefore without enabling them to put forward their arguments against the measure taken by the relevant authority» (§ 238).

With regard to the present case, the Court noted that, on the one hand, it was undisputed that the applicants underwent identification on two occasions (i.e. immediately after their arrival, by the Italian authorities at the reception centre; and before they boarded the planes for Tunis, by the Tunisian consul); on the other hand, the parties disagreed with regard to the conditions of the first identification. The applicants alleged that the Italian authorities had merely recorded their identities and fingerprints, without taking their personal situations into account, while the Government instead argued that the identification had consisted of a genuine individual interview, carried out in the presence of an interpreter or cultural mediator, following which the authorities filled out an “information sheet” containing personal data and any circumstances specific to each migrant. Although the Government was unable to produce the applicants’ “information sheets”, the Court accepted its version, considering it a «plausible explanation» that those documents had been destroyed in the fire at the reception centre (§ 246).

Additionally, the Grand Chamber stated that «Article 4 of Protocol No. 4 does not guarantee the right to an individual interview in all circumstances; the requirements of this provision may be satisfied where each alien has a genuine and effective possibility of submitting arguments against his or her expulsion, and where those arguments are examined in an appropriate manner by the authorities of the respondent State» (§ 248). Noting that the applicants remained between nine and twelve days in Italy, the Court concluded that «during that not insignificant period of time the applicants had the possibility of drawing the attention of the national authorities to any circumstance that might affect their status and entitle them to remain in Italy» (§ 249). Moreover, the Court emphasized that, before boarding the planes for Tunis, the applicants were received by the Tunisian Consul, and that this later check «gave them a last chance to raise arguments against their expulsion» (§ 250).

The Grand Chamber then addressed other factors which the Chamber had considered relevant to prove the collective nature of the expulsion, i.e. the fact that the refusal-of-entry orders had been drafted in comparable terms, only differing as to the personal data of each migrant, and that a large number of aliens of the same origin had been expelled at the relevant time. In this regard, the Grand Chamber referred to case law according to which such scenarios do not automatically lead to a violation if each person concerned had been given the opportunity to make arguments against his expulsion to the competent authorities on an individual basis (§§ 239 and 251).

The Court then further noted and called into question the usefulness of an individual interview in the present case, by observing that «the applicants’ representatives, both in their written observations and at the public hearing, were unable to indicate the slightest factual or legal ground which, under international or national law, could have justified their clients’ presence on Italian territory and preclude their removal» (§ 253).

Finally, the Court considered it «unnecessary […] to address the question whether, as the Government argued, the April 2011 agreement between Italy and Tunisia, which has not been made public, can be regarded as a “readmission” agreement within the meaning of the Return Directive, and whether this could have implications under Article 4 of Protocol No. 4» (§ 255).

3.4. Statements Concerning the Availability of Effective Remedies at National Level

The Grand Chamber confirmed the Chamber judgment on the violation of Article 13 taken together with Article 3, but reversed it with regard to a violation of Article 13 taken together with Article 4 of Protocol No. 4.

As to inhuman and degrading treatments, the Grand Chamber observed that the Government did not indicate any remedy by which the applicants could have complained about the conditions in which they were held both in Lampedusa and on board the ships. For instance, an appeal to the competent court against the refusal-of-entry orders would have served only to challenge the lawfulness of their removal (§ 270).

As to collective expulsion, given that a remedy was available under national law, the Court examined whether the fact that such remedy did not provide an automatic suspensive effect of the removal order constituted itself a violation of Article 13. While the Chamber answered this question in the affirmative, the Grand Chamber held the opposite opinion: relying on the case-law De Souza Ribeiro v. France, Čonka v. Belgium and Hirsi Jamaa and Others v. Italy, the Grand Chamber stated that an obligation for States to provide for such a remedy (i.e. an appeal with automatic suspensive effect) only arises «where the person concerned alleges that the enforcement of the expulsion would expose him or her to a real risk of ill-treatment in breach of Article 3 of the Convention or of a violation of his or her right to life under Article 2, on account of the irreversible nature of the harm that might occur if the risk of torture or ill-treatment materialised» (§ 276). Given that in the present case the applicants did not claim any of those risks, the Court concluded that the absence of an automatic suspensive effect did not entail a violation of Article 13 taken together with Article 4 of Protocol No. 4.

4. Comment

Due to its scope and abundance of content, the Khlaifia and Others judgment deserves more thorough deliberation than that which follows. However, it is worthwhile to highlight herein some of the strengths and weaknesses, which arise in its interpretation. An Annex summarises the implications for interpretation of EU law in this field.

With reference to rulings relating to Article 5, the judgment represents a major step forward in the process of improving the protection for those people, even today, who are crossing the European borders despite not having any valid entry documentation. Suffice it, in this regard, to refer to October 2016, when Amnesty International released a report wherein it denounced, among other things, the practices of arbitrary detention carried out within the new “Hotspots” located at the European borders (see Amnesty International, Hotspot Italy. How EU’s flagship approach leads to violations of refugee and migrant rights, p. 26-29). Hereinafter, if the Member States continue to find the deprivation of liberty as a necessary tool to contrast illegal migration, they must adopt laws, which clearly and precisely govern the substantive requirements and procedural guarantees with particular reference the right to habeas corpus. The European Court, indeed, has established that no de facto deprivation of liberty exempt from judicial review is compatible with the aim of Article 5, explicitly stating that this applies "even in the context of a migration crisis" (§ 106).

With reference to ECHR Article 3, it is necessary to consider the judgment excerpt wherein the Court highlights the necessity to take into consideration the emergency situation that began in 2011 due to the increased migration as a consequence of the Arab Spring. While, from one side, such a statement is troubling because it seems like an attack on the mandatory character of Article 3, as well as  signalling a step backwards with respect to the principles established in the M.S.S. v. Belgium and Greece (§ 223) and Hirsi Jamaa and Others v. Italy (§§ 122 and 176) cases; on the other side, its scope must be defined in light of the characteristics of the case, namely, to a situation in which - at least according to the findings of the Court - the respondent State had not deliberately violated the prohibition against inhuman and degrading treatment, but rather found itself faced with the objective inability to provide better immigration reception conditions. The ratio decidendi, therefore, complies with the logic of the principle ad impossibilia nemo tenetur. In a key criticism, however, it is possible to see how the unlawful deprivation of liberty inflicted by the Italian Government on migrants had contributed to aggravating the consequences of the humanitarian emergency in terms of overcrowding and the poor health and hygiene conditions of the places where the migrants have been confined: the Grand Chamber could perhaps have taken greater consideration of this circumstance in assessing the existence of a violation of Article 3.

Turning, finally, to the aspects related to the prohibition against collective expulsions and the availability of domestic remedies to challenge them, it is notable how the judgment is thwarted by a fundamental ambiguity with regard to the scope of Article 4 of Protocol No. 4 (and its relationship with Article 13).

It is unclear whether the Court denied the existence of the collective expulsion because it determined that the applicants had benefited from individual interviews (according to the version provided by the Government and deemed reliable by the Court), or because the Court determined that the Government had no obligation to conduct individual interviews because no risk arose to the life or physical well being of the applicants according to Articles 2 and 3 of the Convention. The simplest and most plausible solution is that the Court intended to settle both issues cumulatively. That being said, the assertion that the obligation to conduct individual interviews exists only in the presence of risks to life or physical well being itself is open to criticism. This interpretation, in fact, makes the provision of Article 4 of Protocol No. 4 virtually useless (interpretatio abrogans), assuming that the same identical result is reached by directly applying the principle of non-refoulement arising from Articles 2 and 3 (according to the established case law starting from the famous case of Soering v. United Kingdom).

For this reason, the restrictive interpretation of Article 4 of Protocol No. 4 proposed by the Court does not seem reasonable and sound. The same is true with reference to the guarantees arising from Article 13 in relation to Article 4 of Protocol No. 4: if the automatic suspensive effect was mandatory only in the presence of risk of harm, then the protection provided by Article 13 in relation with Article 2 and 3 would be enough. The most persuasive interpretation of Article 4 of Protocol No. 4 seems, instead, to be that which was proposed by the applicants - and also supported by the third parties that intervened before the Grand Chamber (see in particular §§ 234-236), as well as by the partially dissenting opinion of Judge Serghides – according to which, Article 4 of Protocol No. 4 provides procedural guarantees that are independent from the concrete situation of the individual applicant because it is designed to ascertain such situation. Therefore, the only effective domestic remedy pursuant to Article 13 to prevent the violation of such procedural guarantee is necessarily one that envisages an automatic suspensive effect of the expulsion. A third party (see § 265) and the aforementioned dissenting opinion expressed their opinions to this effect (see in particular §§ 73-74 of the opinion, where the judge refers to the De Souza Ribeiro, Čonka and Hirsi Jamaa and Others case law in order to highlight how, in hindsight, they offered arguments supporting the opposite conclusions than those of the majority).

Therefore, valid arguments exist to support that the violations of Article 4 of Protocol No. 4 and Article 13 in relation to it, are integrated in each case in which the applicants are not given the opportunity to "put forward arguments" in support of their condition, nor are they granted a remedy having suspensive effect, regardless of any prediction concerning the contents of the statements they might have made to the authorities, as well as, any evaluation regarding the "safe country" nature of the destination country (without prejudice to the fact that, if risks to life and physical well being of the foreigner actually arise, his expulsion could lead to different and further violations of Articles 2 and 3).

This interpretation, in addition to being consistent with the text and the general scheme of the Convention, is the only one able to protect migrants without valid documents from potential abuses and arbitrary decisions by the border authorities: in this context, therefore, it seems that the Strasbourg Court has missed an important opportunity to impose a substantial level of protection of fundamental rights with regard to the current immigration crisis that Europe is facing.

Barnard & Peers: chapter 26

JHA4: chapter I:7

Photo: detention on Lampedusa

Photo credit: UNHCR

Annex: the EU law implications

Professor Steve Peers

Neither the main judgment in this case nor the concurring and dissenting judgments discuss EU law aspects in any detail. Nevertheless, in light of the ECJ’s tendency to take account of Strasbourg judgments, the ruling will have consequences for the interpretation of EU law, particularly in the context of the perceived ‘migration crisis’ which the ECtHR refers to.

First of all, the ruling that being kept in asylum reception centres and ships may amount to detention is significant for interpreting the EU’s reception conditions Directive (as regards detention of asylum-seekers) and the Returns Directive (as regards the detention of irregular migrants, given that the ECJ has already ruled that the ECtHR’s interpretation of ‘detention’ is relevant for applying the EU law on the European Arrest Warrant.

Secondly, the interpretation of ‘lawfulness’ of detention under the ECHR is also relevant, given that the EU legislation requires such detention to be lawful as well.  

Thirdly, the insistence that judicial control of detention is essential 'even in the context of a migration crisis' makes clear that there is no ‘crisis’ excuse to avoid judicial review of migration or asylum detention (for the most recent ECJ case law on this issue, see discussion here). The ruling on the breach of Article 5(4) ECHR regarding judicial review follows from the breach of Article 5(2), and is relevant to the interpretation of Article 9(3) of the reception conditions Directive and Article 15(2) of the Returns Directive.

Fourthly, as for the breach of Article 5(2) ECHR because the migrants were not told why they were detained (it being irrelevant that they know they were entering illegally) confirms the wording of Article 9(4) of the reception conditions Directive, but adds to the wording of Article 15(2) of the Returns Directive, which contains no express requirement to inform.

Fifth, the ruling that there was no breach of Article 3 as regards conditions in either reception centres or ships, giving states some latitude in the context of the migration crisis, is relevant to the interpretation of the rules in the reception conditions Directive and the Returns Directive on the conditions of detention.

Sixth, the Returns Directive and the asylum procedures Directive do not ban collective expulsion explicitly, but it is implicit from the requirement of individual decision-making and the obligation to comply with the EU Charter of Rights, which bans collective expulsion expressly. The ECtHR judgment is therefore relevant in that it confirms that the ban on collective expulsion also applies if States define it as a refusal of entry, but also as regards the ruling that the ECHR is not breached in the absence of individual interviews as long as they can make a case against expulsion. This falls well below the standard in the asylum procedures Directive as regards the asylum process, and also probably below the ‘right to be heard’ guaranteed by the ECJ case law regarding irregular migrants and the Returns Directive.

Seventh, the breach of Article 13 ECHR as regards the lack of an effective remedy regarding detention conditions could be relevant to EU law. Although a remedy on this issue is not expressly mentioned in Article 10 of the reception conditions Directive or Article 16 of the Returns Directive, it follows from Article 47 of the Charter (the ‘effective remedies’ clause) that such a remedy must be available.

Finally, the compliance with Article 13 ECHR as regards the lack of a right to of a right of suspensive effect of an appeal as there was no allegation of a risk of breaching Articles 2 or 3 ECHR justifies the lack of suspensive effect of a challenge to an expulsion under the Returns Directive, except in special cases as defined by the ECJ. Conversely, it confirms that there must be either suspensive effect of an appeal or the possibility to request such suspensive effect in asylum cases, as set out in the procedures Directive.

When can EU citizens be expelled from the UK after Brexit? The Human Rights Dimension

Matthew White, Ph.D candidate, Sheffield Hallam University

Following the EU referendums result to leave, David Cameron announced his resignation without invoking Article 50 of the Treaty of European Union. Already highlighted by Professor Steve Peers that the biggest issue in human terms, is what happens to EU citizens in the UK, and UK citizens in the EU. Peers advocated for an EU/UK withdrawal treaty that would contain a specific clause which would be legally binding, that defined the exact scope of the rule, which could also be supplemented by further measures, and must be fully applied in national law.

Prime Minister, Theresa May, according to the Guardian, had previously stated that ‘the rights of EU migrants to remain in the UK will be in play in the talks’ which Patrick Wintour interpreted as ‘without a deal, tens of thousands of Europeans could be thrown out of the UK.’ May’s position on the matter has not shifted, and even gained more weight when Phillip Hammond, according to the Spectator on the Today programme uttered:

Well look, I think we need to have a comprehensive negotiation with our EU partners, including around freedom to move, freedom to work, freedom to study and freedom to settle. And I hope we will be able to get to a position where are able to say to those EU nationals who live in the UK, and to those Brits who live in EU countries: everything’s fine, you can stay as you were. But we cant assume that. We’ve got to negotiate that with our former EU partners…. It would be absurd to make a unilateral commitment about EU nationals living in the UK without at the very least getting a similar commitment from the EU about British nationals living in the EU.

The concerns about this possibility have been exacerbated by today's suggestions from the Prime Minister that EU doctors will be expelled in future. It is accepted that this would be a worst case scenario, but if such a drastic measure of deportation of EU citizens en masse were to occur, what would be the legal consequences of such expulsion?

Article 8:

Assuming that the UK does withdraw from the EU and (as recently announced) repeal the European Communities Act 1972 (ECA 72) and the rights and obligations that come with it, EU citizens would more likely than not have to rely on the European Convention on Human Rights (ECHR). PM May had previously insisted that the UK should withdraw from the ECHR but has since retracted, and the new Home Secretary, Liz Truss seeks to replace the Human Rights Act 1998 (HRA 98) with a British Bill of Rights. This has been regarded by Conor Gearty as a bad idea and in any event would not affect the right of petition to Strasbourg, although it would make it more difficult to enforce ECHR rights in UK courts.

In relation to the context of this post, the principal right in question is Article 8, which stipulates that:

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

An EU citizen would first have to establish that Article 8, i.e. their private, family life, home etc was (or would be) engaged by the interference of (pending) deportation/removal. If this is established, it is then for the state to justify why this is legal, necessary and proportionate on the basis of national security public safety etc. In Chapman v UK (Application no. 27238/95) the European Court of Human Rights (ECtHR) considered the question of the removal of the applicants from their home, who had established it unlawfully. The ECtHR noted that whether the homes were established lawfully or unlawfully was highly relevant to the proportionality of the requirement to leave it. They continued, if the home was established lawfully ‘this factor would self-evidently be something which would weigh against the legitimacy of requiring the individual to move’ (para 102). This would pose an obstacle to any plans to remove EU citizens who had lawfully established their home in the UK. The ECtHR also noted that less weight would be attached to those that had established their home unlawfully (para 102) meaning that it would still be relevant, but to a lesser degree.

In Moustaquim v. Belgium (Application no. 12313/86) the ECtHR maintained that separation of a Moroccan national from his family (parents and siblings, three of whom were born there (para 9) for more than five years by the Belgian authorities interfered with Article 8 (para 36). An important principle of this case despite the ECtHR finding a violation of Article 8 (para 46) (and despite the applicant committing 147 offences as a minor (para18)) was that the ECtHR recognised that states had ‘as a matter of well established international law and subject to their treaty obligations, the right to control the entry, residence and expulsion of aliens’ (para 43). Though this case does not specifically deal with EU citizens who have committed an offence, it does highlight that even committing one does not mean deportation is necessary.

Article 8 also places certain obligations on states to keep families together, which can be ‘positive’ (actively doing something) and ‘negative’ (refraining from doing something). In Gul v Switzerland (Application no. 23218/94), a Kurdish asylum seeker, his wife and child who resided in Switzerland wanted to be reunited with a child that stayed behind in Turkey. The ECtHR held that because there were no obstacles in preventing family life in Turkey, Switzerland had not failed to fulfil its obligations under Article 8 (para 42-43). This highlights the difficulties EU citizens would face if they had relatives in another country whom they wanted to be reunited with in the UK. 

The ECtHR, did however, distinguish this from Berrehab v Netherlands (Application no. 10730/84) which concerned a Moroccan national who wanted to keep in contact with his Dutch-born child after a divorce with his Dutch-born wife. The ECtHR established that by the very fact of the child’s birth, ‘family life’ had been established irrespective of whether the parents were living together (para 21). The ECtHR were also quick to dismiss claims that ties were broken between Mr. Berrehab and his daughter because he had visited her four times a week for several hours at a time (para 21). 

The ECtHR then considered whether the refusal of an independent residence permit was necessary in a democratic society, it was noted that Mr. Berrehab was not seeking admission into the Netherlands for the first time, but was a person who had already lawfully lived there for several years, who had a home and a job there, and against whom the Government did not claim to have any complaint. The ECtHR further noted that Mr. Berrehab already had real family ties there - he had married a Dutch woman, and a child had been born of the marriage (para 29). Regarding the relationship with the child, the ECtHR noted that Mr. Berrehab had been close with his daughter for several years, expulsion would threaten this which heightened the degree of seriousness because of the need of Mr. Berrehab daughter to keep in contact with him, given her young age (para 29). On these facts, the ECtHR found the Netherlands to be in violation of Article 8. This demonstrates that individual circumstances of each EU citizen would be key in determining whether or not they should be removed, this intensifies when children are involved, and more so if they are very young.

In Slivenko and others v Latvia - 48321/99 [2003] ECHR 498 a case regarding removal, the ECtHR highlighted that:

They were thus removed from the country where they had developed, uninterruptedly since birth, the network of personal, social and economic relations that make up the private life of every human being. Furthermore, as a result of the removal, the applicants lost the flat in which they had lived in Riga...In these circumstances, the Court cannot but find that the applicants' removal from Latvia constituted an interference with their “private life” and their “home” (para 96).

The ECtHR found a violation in this case (para 129), but the importance of this is that it would be more difficult for the UK to remove EU citizens who have made a life for themselves within the UK.

A further point about EU citizens that work in the UK would be what the ECtHR stated in Niemietz v Germany (Application no. 13710/88) ‘[r]espect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings.’ The ECtHR went further by adding that ‘"private life" should be taken to exclude activities of a professional or business nature since it is, after all, in the course of their working lives that the majority of people have a significant, if not the greatest, opportunity of developing relationships with the outside world’ (para 29).

On a domestic level, in the case of UE (Nigeria) & Ors v Secretary of state for the Home department [2010] EWCA Civ 975 the Court of Appeal were tasked with determining the question of:

When the decision-maker is carrying out the balancing exercise required to determine whether removal is proportionate in an Article 8 case, is it relevant on any basis that the person in question is of value to the community in the United Kingdom, a value of which that community would be deprived if he were to be removed? (para 8).

Sir David Keane considered both ECtHR and domestic jurisprudence noting how both make references to the striking a fair balance between the individual and the general interests of the community (paras 13-17). In considering that courts should not be too restrictive in determining what is relevant to immigration controls, Sir David Keane noted that:

[A] a public interest in the retention in this country of someone who is of considerable value to the community can properly be seen as relevant to the exercise of immigration control. It goes to the weight to be attached to that side of the scales in the proportionality exercise. The weight to be attached to the public interest in removal of the person in question is not some fixed immutable amount. It may vary from case to case, and where someone is of great value to the community in this country, there exists a factor which reduces the importance of maintaining firm immigration control in his individual case. The weight to be given to that aim is correspondingly less. (para18).

When referring to Bakhtaur Singh v. Immigration Appeal Tribunal [1986] UKHL 11 where as Sir David Keane made note, the House of Lords unanimously held that when deportation was being considered under the Immigration Act 1971 and the Immigration Rules, both the Secretary of State and appellate bodies had to include amongst the relevant circumstances, the value to the community in the United Kingdom of the individual in question. This was to ensure a balance in "the public interest" against any compassionate circumstances of the case (para 21). Sir David Keane also referred to Lord Bridge (page 917 C-E) who noted a few examples of such value, ranging from an essential worker in a company engaged in a successful export business or a social worker upon whom a local community depended or a scientific research worker engaged on research of public importance (para 21). Sir David Keane admitted these cases were not Article 8 cases (and was ruled before the Human Rights Act 1998  came into force (para 21)) but that it would be surprising if the balancing exercise required by Article 8 was narrower than a statutory discretion. This was so, particularly in the context of the ‘public interest’ element of immigration control (para 22), therefore concluded that value to the community is relevant to the assessment to an extent of the public interest in removal (para 24 and 35) and the examples given by Lord Bridge were not exhaustive (para 36). Ultimately, the appeal was allowed and remitted back to the Upper Tribunal to consider the matters discussed.

This issue was further addressed in Zermani, R (On the Application Of) v Secretary of State for the Home Department [2015] EWHC 1226. Here, the claimant despite overstaying and creating forged passports (and was sent to prison for said offence) relied on his contribution to the community to prevent his removal or at least proper consideration of his contribution. The claimant relied on letters affirming his value and character from groups including the local Council, Bangor University, the local Mosque, the Welsh Refugee Council, a refugee support group, and the Police (paras 4-14). HHJ Worster was referred to three cases decided by the Outer House in Scotland, dealing with this matter. The first, SM v SSHD [2012] CSOH 172 concerned a sound technician, who relied upon the accumulation of private life, despite unlawfully overstaying. The claimant’s application was supported by 14 letters of support describing his contribution (para 12). However, Lord Stewart noted although relevant, this would not have changed the decision made, referring to Lord Bridge’s examples with an emphasis the lawfulness of businesses and employment (para 17). The second and third cases, David Ndagijimana v SSHD [2014] CSOH 14 and MK v SSHD [2015] CSOH 13 respectively, both dealt with claimants who had overstayed, and in both the public interest in removal outweighed their contribution to the community. However, in Zermani, HHJ Worster was of the opinion that the supplementary decision did not fully take into account (paras 46-49) of the applicants ‘quite out of the ordinary’ (paras 35 and 49) contribution to the community and thus quashed the decision. These lines of cases demonstrate that if EU citizens can demonstrate their value to the community, this would add another hurdle to any prospects of removal.   

Even when removal is based on national security grounds, the ECtHR may find violations if the legal underpinning for such measures are insufficient. In Aristimuño Mendizabal v France (Application no. 51431/99) (in French) the applicant, a Spanish national complained of the temporary residence permits, whose duration varied from a few weeks to a year, over a 14 year period. The applicant highlighted the precarious situation they were put under, unable to obtain a stable job, long-term employment, poverty and significant social problems (para 60-61). The ECtHR highlighted that while the ECHR does not guarantee ‘the right of a person to enter or reside in a State of which he is not a citizen or not be expelled’ (para 65) or ‘guarantee to the person the right to a particular type of residence permit (permanent, temporary or otherwise) provided that the solution proposed by the authorities enables it to exercise unfettered rights to respect for [Article 8]’ (para 66). However, because the applicant was an EU citizen, the ECtHR decided that Article 8 should be ‘interpreted in the light of Community law and in particular the obligations of Member States regarding the entry and residence rights of EU citizens’ (para 69). The ECtHR felt that the precarious situation of the applicant amounted to an interference with Article 8 (para 72). After consider EU law (para 74-78). Ultimately concluding that ‘the period of over fourteen years taken by the French authorities to issue a residence permit to the applicant was not provided by law, the "law" in question is French or Community, and that there has been a violation of Article 8’ (para 79). This is an important consideration given that the UK may remain party to the EEA which would involve free movement of some form whilst also highlighting the issue of leaving EU citizens in a state of uncertainty.

Supplementing Article 8:

The above does not consider every aspect of Article 8 in the immigration context, but it is suggested that Article 4 of Protocol 4 (A4P4) of the ECHR can supplement Article 8. A4P4 stipulates that:

‘Collective expulsion of aliens is prohibited.’

First and foremost, however, it must be noted that the UK, has not, to date, ratified A4P4 nor is it incorporated into UK law through the Human Rights Act 1998. This means that it cannot be enforced through UK courts and neither does the ECtHR have the jurisdiction to consider based on it not being ratified.

However, in Demir and Baykara v. Turkey - 34503/97 [2008] ECHR 1345 the GC, significantly highlighted that:

The Court, in defining the meaning of terms and notions in the text of the Convention, can and must take into account elements of international law other than the Convention, the interpretation of such elements by competent organs, and the practice of European States reflecting their common values. The consensus emerging from specialised international instruments and from the practice of contracting States may constitute a relevant consideration for the Court when it interprets the provisions of the Convention in specific cases.

In this context, it is not necessary for the respondent State to have ratified the entire collection of instruments that are applicable in respect of the precise subject matter of the case concerned. It will be sufficient for the Court that the relevant international instruments denote a continuous evolution in the norms and principles applied in international law or in the domestic law of the majority of member States of the Council of Europe and show, in a precise area, that there is common ground in modern societies. (para 85-86).

This ‘continuous evolution in the norms and principles applied in international law’ can ben expressed by Judge Pinto De Albuquerque in his concurring opinion in Hirsi Jamaa that:

The prohibition of collective expulsion of aliens is foreseen in Article 4 of Protocol No. 4 to the European Convention on Human Rights, Article 19 (1) of the Charter of Fundamental Rights of the European Union, Article 12 (5) of the African Charter on Human and People’s Rights, Article 22 (9) of the American Convention on Human Rights, Article 26 (2) of the Arab Charter on Human Rights, Article 25 (4) of the Commonwealth of Independent States Convention on Human Rights and Fundamental Freedoms and Article 22 (1) of the International Convention on the Protection of the Rights of All Migrants Workers and Members of Their Families. (see also OHCHR Discussion paper: Expulsions of aliens in international human rights law, September 2006 (page 15-16)).

Therefore, these bodies of international law establish a prohibition of collective expulsion. The question then becomes, how does one enforce a Protocol that has not been ratified and cannot be used in domestic courts? In short, you do not. What one can do is apply it to a right that can be enforced whether by the ECtHR or domestic courts. Judge Ziemele in his concurring opinion in Lalmahomed v Netherlands - 26036/08 [2011] ECHR 338 discussed the passage from Demir and Baykara noted that:

However, if we were to follow the literal meaning of what the Grand Chamber said, it might suggest that in our case, even though the Netherlands has not ratified Protocol No. 7, since it does provide for a leave-to-appeal system of sorts the Chamber should have assessed whether the leave-to-appeal system as such complied with Article 6. After all, the applicant did complain that the domestic law governing this procedure was contrary to the Convention.

It is therefore suggest that on this basis, collective expulsion constitutes an inherent element (para 147-155) of the right to respect of private, family life and home. This is so because in the removal or prevention of entry context, the state has to take into account individual circumstances before making a decision, not respecting this opens them up to challenge. This could in turn supplement the Article 8 rights of those EU citizens who may be removed on an arbitrary basis.

It is therefore important to consider some cases concerning A4P4. In the case of Čonka v. Belgium (Application no. 51564/99) Slovakian nationals of Romany origin, described how they had fled from Slovakia because they had been subjected to racist assaults, with the police refusing to intervene. They had been arrested with a view to their expulsion after they had been summoned to complete their asylum requests. The applicants complained, about the circumstances of their arrest and expulsion to Slovakia. In interpreting A4P4, the ECtHR maintained that ‘collective expulsion’ is understood to be any measure compelling aliens, as a group, to leave a country, except where such a measure is taken on the basis of a reasonable and objective examination of the particular case of each individual alien of the group (para 59). The ECtHR highlighted that the only reference to the personal circumstances of the applicants was that their stay in Belgium had exceeded three months (para 61). The ECtHR found a violation because Belgium, at no stage demonstrated that the personal circumstances of each of those concerned had been genuinely and individually taken into account.

The principle from this is that if PM Theresa May, creates a law that would expel EU migrants on the basis of residing within the UK for less than a specified period of time (or some other ill-defined basis), could open the UK up to challenges before the ECtHR. This could be used to supplement Article 8 (as will be discussed below).

Moreover, when it comes to EU migrants wishing to enter the UK, an ill-defined law on entering could also pose problems. In the case of Hirsi Jamaa and Others v. Italy (application no. 27765/09) Somalian and Eritrean migrants travelling from Libya had been intercepted at sea by Italian authorities, then subsequently sent back to Libya. The first question before the GC was whether when Italian authorities sent the applicants back to Libya, they were within Italy’s jurisdiction for the purposes of Article 1 (securing the rights of everyone under a State’s jurisdiction). The GC felt that removal placed the applicants under the continuous and exclusive de jure and de facto control of the Italian authorities (para 81) and therefore within the ambit of Article 1 (para 82).

Prior to Hirsi Jamaa the GC noted that case law regarding A4P4 had mostly concerned removing individuals within national state territory (para 167). However, the GC took the unprecedented step of considering A4P4 applicability of expulsion outside national territory to ‘ascertain whether the transfer of the applicants to Libya constituted a “collective expulsion of aliens” within the meaning of’ A4P4 (para 169). The GC rejected the Italian government’s assertion (that A4P4 was not applicable because the applicants were not on Italian territory at the time of their transfer to Libya (para 172) because A4P4 made no reference to the notion of ‘territory’ (para 173). The GC went to some length justifying why this was the correct approach (which of course is also relevant to the ‘Syrian Refugee Crisis’) (paras 174-178), whilst also highlighting that States must establish their own immigration policies but ‘managing migratory flows cannot justify having recourse to practices which are not compatible with the State’s obligations under the Convention’ (para 179). Therefore, the GC found A4P4 applicable (para 182).

The GC reemphasised the importance of expulsion based on individual circumstance (para 183) but also highlighted that:

‘[T]he fact that a number of aliens are subject to similar decisions does not in itself lead to the conclusion that there is a collective expulsion if each person concerned has been given the opportunity to put arguments against his expulsion to the competent authorities on an individual basis.’ (para 184).

Under the circumstances of the specific case (para 185), the GC found a violation of A4P4 (para 186). This serves to demonstrate that even outside the physical territory of the UK, it must still uphold the Convention when it comes to migration.

Article 8 and collective expulsions: the procedural rights dimension

The case of Al-Nashif v Bulgaria (Application no. 50963/99) concerned the expulsion of a stateless Palestinian, Mr Al-Nashif on national security grounds. The applicants, Mr Al-Nashif and his children submitted they were entitled to the protection of Article 8 and that because of Mr Al-Nashif’s statelessness, was unable to develop strong links with any country except Bulgaria where they had established a home and family life (paras 102-103). The applicants argued that the expulsion of family member is a collective interference with their Article 8 rights, making reference to the fact that the family had never lived in Syria, and that deportation created economic and legal obstacles to the creation of a new family home in Jordan and Syria (para 103).  It was also argued that the laws in question were not in accordance with the law because they lacked clarity and foreseeability (para 104), and furthermore Mr Al-Nashif had never engaged in any unlawful or dangerous activity (para105).

The ECtHR accepted that family life existed (para 113) and that this was interfered with by the action of the Bulgarian authorities (para 114). On the issue of clarity and forseeability, the ECtHR reiterated past case law on the idea of laws being accessible and foreseeable to prevent unfettered exercise of powers by indicating the scope of discretion, with sufficient clarity, having regard to the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary interference (para 119). This is so even in the context of national security, measures affecting fundamental human rights must be subject to some form of adversarial proceedings before an independent body competent to review the reasons for the decision and relevant evidence, if need be with appropriate procedural limitations on the use of classified information (para 123). The ECtHR made note that the decision to deport Mr Al-Nashif was taken without disclosing any reasons to the applicants, to their lawyer or to any independent body competent to examine the matter (para 126). The ECtHR also highlighted the legal regime was subject to challenge where the Sofia City Court and the Supreme Administrative Court in some cases refused to accept blank assertions by the executive in unreasoned decisions under the Aliens Act (para 127). The ECtHR concluded that the legal regime did not provide the necessary safeguards against arbitrariness and thus amounted to a violation of Article 8 (para 128).

This case, it is submitted necessarily rules out collective expulsion, as that was ultimately the consequences of the actions of the Bulgarian authorities. Furthermore, in line with A4P4, the decision to remove were based on objective reasonable justifications, which also were difficult to challenge. This leads into another Protocol, that the UK has not yet to date ratified, that being Protocol 7 Article 1(1) (P7A1(1)) which provides that:

An alien lawfully resident in the territory of a State shall not be expelled there from except in pursuance of a decision reached in accordance with law and shall be allowed:

a to submit reasons against his expulsion,

b to have his case reviewed, and

c to be represented for these purposes before the competent authority or a person or persons designated by that authority.

Although P7A1 can be bypassed on public order and national security grounds (P7A1(2)), Al-Nashif demonstrates the procedural requirements for Article 8 compliance. Further, given what Judge Ziemele discussed in his concurring opinion in Lalmahomed v Netherlands it may be that any such EU citizen wide removal system be compatible with Article 6 of the ECHR.

Conclusions:

In the unlikely event that a worst case scenario occurs, this post demonstrates that even if EU law rights and obligations stemming from the European Communities Act 1972 were to be curtailed, the ECHR can still be utilised to protect individuals. It is also important to highlight that, if other EU Member States created similar provisions in retaliation to the UK, the ECHR would protect UK citizens in the EU. Another layer of protection for UK citizens living in EU Member States may stem from EU immigration law concerning non-EU citizens, meaning that the Charter of Fundamental Rights (CFR) would apply and would therefore be covered by Article 7 (respect for private and family life) and Article 19 (prevention of collective expulsion). This post does not even begin to consider the other complex ECHR issues, education, discrimination, etc were such a measure to take force and it would only make removal more difficult.

Barnard & Peers: chapter 13, chapter 27

JHA4: chapter I:6

Photo credit: home.bt.com