New declaration signed on Friday could facilitate some migrant deportations, including creating ‘return hubs’ in other countries
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The UK and other European countries agreed on a declaration urging the European Court of Human Rights (ECHR) to reconsider how it decides migration cases.
The agreement was unveiled at a summit in Moldova on Friday, and warned that European democracy could be undermined unless states can respond more effectively to the pressures of modern migration and people smuggling. All 46 members of the Council of Europe, the political body which oversees the human rights court, signed the agreement.
The declaration comes amid complaints from member states that the ECHR has prevented governments from forcibly removing foreign nationals convicted of crimes, as well as refused asylum seekers.
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‘We have been able to bring together countries across Europe, with different views and experiences to agree a common position on how the system should work best, notably in the challenging context of migration,’ said Council of Europe Secretary General Alain Berset.
The new declaration is not a rewriting of the human rights law – and is not legally binding – but instead represents a political signal from all member states that there should be greater consideration for democracy when deciding on migration cases.
Ultimately, the new declaration allows for more interpretation of key aspects of the European Convention on Human Rights.
Two key areas of the human rights convention have attracted negative attention from certain media and political parties: Article three – the prohibition of torture and inhuman and degrading treatment or punishment – as well as Article eight, which is the right to respect for private and family life.
Some UK politicians, such as Foreign Secretary Yvette Cooper and the Home Secretary Shabana Mahmood, have claimed that these articles have been misused by criminals who use them to frustrate their deportation and extradition. As such, the new declaration announced on Friday aims to tighten the application of these articles in immigration cases, rather than rewriting the convention itself.
Key points in the declaration include a statement that the level for something to be considered ‘inhuman or degrading treatment’ under Article 3 should be ‘high and consistent’. The declaration also argues that courts should not prevent the deportation of failed asylum seekers solely because healthcare systems or living conditions in their home countries fall below European standards.
It also states that Article eight must be used with the correct ‘balance’ struck between individual human rights and ‘public interests’.
As well as this, the new agreement argues that countries, including the UK, should be allowed to create deals with other countries and pursue ‘return hubs’ beyond Europe – proposed detention facilities designed to hold individuals whose asylum applications have been refused or who have no right to stay in the EU while they await deportation. Already, Italy has agreed with Albania to accommodate rejected migrants there. The UK has been considering similar deals, but nothing definitive has emerged from such talks.
Critics of the declaration say that it will undermine human rights protections or have no impact on migration because judges could ignore it.
Veronika Fikfak, Professor of Human Rights and International Law at University College London, said that the declaration’s interpretation of Article Three could worsen protections from torture. This is because it allows more scope for states to deport people to places where they could be put in danger of inhuman or degrading treatment.
Amnesty International also condemned the change to Article Three in advance of the announcement, highlighting that Article Three obligations ‘are absolute and non-derogable under international law.’
According to the UK government, the declaration will help to ‘crack down on individuals exploiting the system to avoid deportation.’
