Migrants are people who move from their country of residence or nationality to another country.
A migrant may move for economic or educational purpose, to escape any natural disaster or to escape from prosecution charges, human rights violations, threats to life or because of the war and civil unrest in the country of his residence. Europe is the main destination of migrants from Pakistan, Afghanistan, Libya, Egypt etc. After the World War 2 Arab spring prompts the biggest migration wave in Europe. Instability in Arab world has made dislocation of around 16.7 million refuges around the world and mostly in Europe. The migrants are subject to many human rights violation at the international borders and in the countries they migrate to.
The migrants are mostly denied the civil and political rights such as arbitrary detention. They are also some time denied of the social and political rights. If a person leaves their country in order to escape the prosecution according to article 1A of 1951 Convention they are called refugees or asylum seekers. The refugees and asylum seekers enjoy special protection under the above mentioned international convention.
If they leave the country for any other reason they are migrants and are only subject to normal international human right protection. The migrants entering the Central and Eastern European countries without the visa or without the right to enter cannot be returned to their countries because most of them don’t have any documentation so they seek asylum under the Geneva Convention on the status of refugees or they seek protection under the European Convention on Human Rights. These countries cannot allow the immigrants to move freely in their territory and because of the pressure from the countries in west Europe the only option is to detain the immigrants.
Traditionally deciding about entry and residence of the asylum seeker and migrants belongs to the sovereignty of the state. Modern human rights law has limited the freedom of State to exclude or expel migrants and asylum seekers from their territories but to large extent States still have the right to decide how can be admitted to the territory. To some extent rights of migrant and asylum seekers are protected by ECHR. European Convention on Human Rights (ECHR) was created to protect the civil rights of the people within the jurisdiction of signatory states. ECHR also have a great impact on the rights of immigrants and refugees. ECHR although openly does not provide fortification to refugees.
Article 1 of the Convention obliges the states to secure the rights and freedom granted by the convention to everyone within their jurisdiction. This means that these rights also apply to non-nationals. This convention protects the rights of everyone in the member state including refugees and immigrants. They can seek protection of their right under the ECHR provided that they should be physically present in the jurisdiction of the State that is party to the convention and right in question should be protected by the Convention.
Once the refugee has entered the member state the state is responsible for the protection of his rights inside the border and also responsible for the protection of his rights in any other country of the world. So the convention imposes an additional obligation on member state and this obligation comes into play when the country decides to deport the refugee or asylum seeker.The articles of ECHR are applied on every person within the signatory state including the refugees and immigrants. Some other rights and freedoms in convention are particularly relevant for the migrant and asylum seekers one of them is Article 3. The deportation of refugee may give rise to the breach of convention specially Article 3.
The convention prohibits deportation in the situation where clear evidence is shown that the concern individual if deported can face inhuman treatment which is contrary to article 3.Article 3 of the European Convention of Human Rights state that: “Article 3 – Prohibition of tortureNo one shall be subjected to torture or to inhuman or degrading treatment or punishment.”Article 3 prohibits the European state from sending someone to state where the person fears the real risk of being tortured or subject to inhumane treatment. The European States have the responsibility to make sure that the right of prohibition of torture is not violated also in the receiving country. Article 3 of the convention prohibits the treatment of a person which would be contrary to human dignity. ECtHR has even stated that Article 3 enshrines one of the fundamental values of the democratic societies making up the Council of Europe.
. There is no need for the applicant to prove beyond reasonable doubt that the inhuman treatment has occurred it is enough for the applicant to prove the real risk that he will face ill-treatment or torture in his home country. Once the real risk of being tortured is established the convention prohibits the expulsion. The Article 3 prohibition of torture is absolute once the applicant have proved the real risk of ill-treatment exist in the country where he would be sent back the convention would prohibit exclusion no matter how dangerous the person is and cannot be send back even if he is a risk to national security. The courts on multiple occasions indicated that the ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. In order to determine the minimum level of severity depends upon all the circumstances of the case.
In order to prove substantial risk of the mistreatment the courts have introduced number of methods and procedure. The foreseeability of the risk of abuse to the person in the country where he will be deported back should be focused. In the case of Abdolkhani and Karimnia v Turkey the two applicants who were the nationals of Iran joined the People’s Mujahidin Organisation in Iran (PMOI) and then left the organisation. They went to turkey where they were arrested and deported back to Iraq, after few days they again entered in turkey where they were detained in the foreigner’s department.
They lodged an application in ECtHR requesting not to be deported to Iran or Iraq. The court found several reports that the former or current members of PMOI who was deported by Turkey to Iran some have been executed and others are dying in prisons. The court concluded that there is a serious and real risk that the members of PMOI can be subject to ill-treatment in Iran and there was the real risk of breach of article 3 if returned to Iran. It also found the risk of violation article 3 if applicants were deported to Iraq. The absolute nature of article 3 was upheld and court found that deportation will be the violation of article 3 of ECHR.
There is another case of Sufi and Elmi v the United Kingdom this case is regarding two Somali nationals who file the complaint that there is a risk of ill-treatment if they are deported back to Somalia from UK. The first applicant Mr Abdisamad Adow Sufi entered UK in 2003 and claimed asylum on the basis that he is the member of minority clan and his father and sister were killed by the militia and he was serious injured. His request of Asylum was rejected.
The second applicant Mr Abdiaziz Ibrahim Elmi also applied for the asylum in UK. His request of asylum was accepted. But because of the conviction in number of criminal offences both applicants were given deportation orders. The only question in front of court was that whether there was real risk of inhuman treatment to both of the applicants if deported to Somalia. The Court held that if these two are deported to Somalia there is real risk of ill-treatment to both of the applicants which is the violation of Article 3 of the ECHR. The Hirsi Jamaa case was the the first case in which European Court of Human Rights delivers the judgement on interception at sea.
The issue before the court in the case of Hirsi Jamaa and Others v Italy was that the transfer of applicants back to Libya by the Italian authorities have violated the Article 3 of the Convention and Article 4 of the protocol No.4. The applicants who were part of the group of two hundred people left Libya on three vessels in order to reach the Italian cost, Italian authorities intercepted these vessels and the occupants of the vessels were transferred to Italian military ships and returned to Libya, where they were handed over to the Libyan authorities. The main question in Hirsi for the court was to determine whether the applicants fell under the Italian jurisdiction and if so whether the Italian state have violated its obligation under the European Convention on Human Rights. The court has found that the applicants were within the jurisdiction of Italy for the purpose of article 1 of the convention.
The court looked into different reliable sources and observed that the domestic law and ratification of international treaty does not provide sufficient protection against risk of ill-treatment. The court held that there had been violation of article 3 because the applicants had been exposed to the risk of ill-treatment in Libya as well as in Somalia or Eritrea and damages were awarded to the applicants by the court. These cases show that courts are very strict regarding the violation of Article 3 of the convention. If the real risk of ill-treatment is proved by the applicant courts does not hesitate to rule against the Member State.Article 5 of ECHR is about the right to liberty and security. The right to liberty and security are one of the fundamental rights in the modern society.
Migrants can be deprived of the right to liberty on various stages of immigration. European Convention on Human Rights allows the State to detain migrants in certain situations. Article 5(1) of convention says that the arrest or detention should be according to law in order to be lawful under the Convention. If detention or arrest is according to the one of six reasons given in Article 5(1) a-f then the detention is considered as lawful. Article 5(1)(a) of the Convention says that the arrest is lawful if the person is convicted by the court.
Article 5(1)(b) provides for the detention on non-compliance with a court order or failure to perform any of the obligation prescribed by law. Article 5(1)(c) provides permissible grounds for arrest or detention if there is a reasonable suspicion of criminal offence or for the purpose of bringing him before the competent legal authority or to stop him from committing the offence or to stop him from fleeing after committing the offence. Article 5(1)(e) allows for the detention of person in order to prevent the spreading of infectious disease, if the person is of unsound mind or drug addict or vagrants.
Article 5(1)(f) is clearly provided for the immigration situation. A person can be lawfully detained in order to prevent him from making an unauthorised entry to the country or a person who is to be deported. Article 5(2) clearly states that the person who is detained should be informed with the reasons of his detention or any charges against him in clear words and in the language which he understands. Article 5(4) states that the person detained has the right to challenge the legality of the detention and lawfulness of the detention should be speedily decided by the court and release orders should passed if the detention was unlawful. Article 5(5) provides the right to compensation to the victim.
Riad and Idiab v Belgium, The applicants were the Palestinian nationals who tried to entry the Belgian territory unlawfully as the result of this they were detained in transit zone of Brussels National Airport. The applicants complained in particular about the conditions in which they were detained. The court held that there detention in the transit zone had not been lawful and the article 5(1) of the convention has been violated.
In this case courts also concluded that the Article 3 (prohibition of inhuman or degrading treatment) of the convention is also violated.K.G.
v Belgium, This cased concerned an asylum seeker who was placed and kept in detention for security reasons while his asylum request was still pending. The courts held that there had been no violation of the Article 5(1) of the convention. In this case the consideration of public interest weighed heavily in the decision to keep the applicant in detention and there was no evidence of arbitrary detention by the local authorities.
Article 4 of Protocol 4 prohibits the collective expulsion of aliens. In the Case of Khlaifa and Others v Italy the ECtHR chamber found that Italy have violated Article 5 paras. 1, 2 and 4 ECHR as far the detention in Ships and Lampedusa centre. Article 3 was violated also violated and Article 4 of Protocol 4 was also violated by the Italian authorities because it was found by the court that expulsion was collective in nature.
This judgment by the chamber upheld considerably the protection of migrant’s fundamental rights. There is no doubt that Europe is facing one the biggest migration crises in recent years after the World War 2. This Migration crisis has impacted both political and economic system of the European countries. It can be seen from above mentioned case law that the migration crises is very severe but the European Court of Human Rights does not allow the member states to derogate from their obligations under the European Convention on Human Rights. It can be seen that the Member States are entitled to determine the request of Asylum seekers. But while deciding these requests States must follow the Convention rights.
The case law have drawn a line for the Member States which should not be crossed when deporting the migrant or refugee to a country where there is a real risk of inhuman treatment. The migrants and refugees rely on the European Court of Human Rights to a very large extent. The courts have provided guidance in crucial areas such as condition of detention, lawfulness of the detention and deportation of the migrants and refugees. So it can be said that problem with managing migratory flow does not allow the member states to disregard the European Convention on Human Rights.