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Juan Ruiz Ramos, PhD Candidate at Universidad de Granada and at Vrije Universiteit Amsterdam

The ‘Strasbourg reversal’ is an intriguing concept in European human rights law. According to this theory, developed by Marie Dembour in When Humans Become Migrants, the European Court of Human Rights (ECtHR) always begins its analysis of a migration-related case with the statement that States have a ‘right to control the entry of non-nationals into its territory’. By doing this, the Court grants States greater leeway to enact potentially rights-violating policies than in cases in which the applicant is a national of the defendant state. Having been taught that human rights are universal, the idea that some individuals are more entitled to human rights than others (paraphrasing George Orwell) fractures one’s idealistic conception of human rights law.

The most plausible explanation for the existence of the Strasbourg reversal is the fact that the Court reacts to political pressures coming from States who do not wish to see a supranational institution intervene in sensitive political issues such as migration (see here and here). In this vein, I  analysed in an article last year whether the political tensions deriving from the 2015 ‘refugee crisis’ led the Court to become even more deferential to States’ practices in an area which is particularly troublesome in terms of human rights protection: the detention of asylum-seekers. To this end, the article carries out a systematic review of the judgments on the matter rendered between 2015 and the first months of 2020. The focus of the analysis is on the Court’s case law under Article 5(1)(f) (the exception to the right to liberty for purposes of migration control) and Article 3 ECHR (prohibition of degrading treatment in relation to detention conditions).

The conclusions of this research were the following:

I. Asylum-seekers are still considered ‘unauthorised entrants’

The Court has not moved from its position, first established in Saadi v. UK, according to which, ‘up to the decision on an asylum claim, [the detention of asylum-seekers who enter the territory of a State in an irregular manner] can be considered to fall under the first limb of Article 5(1)(f) ECHR, namely to prevent effecting an unauthorised entry’. Thus, unless national law explicitly authorises the entry of asylum-seekers, the Court treats in the same manner irregular migrants who formally apply for asylum and those who do not. 

This reasoning has been maintained despite the 2012 UNHCR Detention Guidelines and the findings of the UN Human Rights Committee (HRC), which stress that, respectively, the Refugee Convention and the ICCPR forbid States from detaining asylum-seekers on the sole ground that they have entered the country irregularly. The EU asylum acquis takes the same approach (with the exception of border procedures; see Article 8(3)(c) of the Reception Conditions Directive or RCD). In the international refugee law doctrine, several authors (though not all) also support this view, arguing that the Refugee Convention regards asylum-seekers as ‘lawfully in’ the territory of the State as soon as they file the asylum application and satisfy the administrative requirements for their application to be processed. Even though the ECtHR seemed to move towards a more systematic interpretation of Article 5(1)(f) in the 2011 case M.S.S. v. Belgium and Greece (§216-218), where it reiterated the importance of State compliance with their international obligations when detaining asylum-seekers, its jurisprudence in the aftermath of the ‘refugee crisis’ does not reflect this line of thought.

II. Asylum-seekers may be detained ‘with a view to deportation’

In its leading case on the second limb of Article 5(1)(f) ECHR, Chahal v. UK (from 1996), the Court implicitly allowed States to detain asylum-seekers in the context of an expulsion procedure. More than a decade later, this position was nuanced in S.D. v. Greece and R.U. v. Greece, raising expectations that the Chahal case law had been reversed. However, as shown by a later judgment, the Court only rejects this type of detention when it is found to be in violation of national law.

Indeed, during the climax of the ‘refugee crisis’, namely September 2015, the ECtHR established in Nabil and Others v. Hungary that the European Convention itself  allows for an asylum-seeker to be detained for pre-deportation purposes, because ‘an eventual dismissal of the asylum application could open the way to the execution of the deportation orders’. The Court thus grants States broader discretion than the Refugee Convention (as interpreted by UNHCR in its Detention Guidelines) and EU law (Article 8(d) RCD), since these legal orders only allow for pre-removal asylum detention in exceptional circumstances in which the State can prove that the asylum-seeker has filed the asylum claim merely in order to frustrate the enforcement of the return decision. In contrast, the Court allows States to detain asylum-seekers under both limbs of Article 5(1)(f) for what has been called ‘administrative convenience’ or ‘purely logistical reasons’.

III. The lack of a full proportionality test and the length of detention

The Court has continued the practice of not requiring States to apply a full proportionality test when detaining asylum-seekers. In these cases, States are not obliged under the ECHR to carry out a necessity test and (often) a balancing act, two of the essential elements of the proportionality principle. The former test refers to the search for alternatives to detention before the decision to detain is taken, and the latter test entails taking into account the individual circumstances of the person to be detained. Once again, the ECtHR offers a lower level of protection than the Refugee Convention (Article 31(2)), the ICCPR (as interpreted by the HRC) and EU law, which clearly impose on States an obligation to apply a necessity test. Moreover, in direct contrast to the situation for migrants, the Court does ask States to look for alternative measures when detaining nationals. This differentiation between migrants and nationals clearly fits within the theory of the Strasbourg reversal.

In immigration and asylum detention cases, the Court has construed an arbitrariness test (termed ‘proportionality lite’) which very much relies on the reasonableness of the duration of detention in order to determine whether or not a detention is arbitrary. However, the safeguards related to the length of the detention are not the most adequate in terms of legal certainty, since the Court has refused to set a maximum detention time-limit under the ECHR. Moreover, its divergent case law in this area (in some instances, the Court even considers 1 year of detention to be reasonable) makes it difficult to foresee which duration will be considered unlawful in a particular case. The approach in this sense adds to the highly casuistic methodology of the Court in immigration cases, which Judge Martens referred to as ‘a lottery’.

IV. Asylum-seekers are no longer inherently vulnerable

In the aforementioned M.S.S. case and in the 2016 Grand Chamber judgment Khlaifia and Others v. Italy the Court acknowledged that all asylum-seekers are vulnerable individuals. Declaring the vulnerability of asylum-seekers is not a mere political statement: when the Court identifies a group of migrants as vulnerable, it requires the State to search for alternatives to detention and to assess the individual needs of the person belonging to that group. Therefore, this ‘vulnerability assessment’ has the potential of compensating for the protection gaps derived from the lack of a full application of the proportionality test to asylum-seekers under Article 5(1)(f) ECHR.

However, other post-crisis judgments have complicated the picture, as the Court has only required States to carry out this assessment when the asylum-seeker belongs to a more specific vulnerable group, such as minors, applicants with a deteriorated state of health or persons belonging to the LGBTI community. While some authors (see here and here) regard this as a welcome step because the Court acknowledges the specific risks of a double vulnerability (i.e. as an asylum-seeker and as a member of another vulnerable group), the 2017 judgments S.M.M. v. UK and Thimothawes v. Belgium point in a different direction. In these cases, the fact that the asylum-seeker lacked a double vulnerability meant that the Court no longer required the State to address the ‘vulnerability test’ under Article 5. Similarly with regard to Article 3 ECHR, in Ilias and Ahmed v. Hungary the authorities did not have to adapt the detention conditions to the specific needs of the applicants because ‘they were not more vulnerable than any other adult asylum-seeker’. Therefore, the assertion in M.S.S. that all asylum-seekers are vulnerable has been effectively emptied of meaning.

Additionally, in Thimothawes and in the more recent Bilalova and Others v. Poland the Court required the asylum-seeker to prove that his specific vulnerability made the detention measure unjustifiable, thus undermining the positive impact of the vulnerability concept on the rights of asylum-seekers.

V. Ilias and Ahmed: when detention becomes a ‘mere restriction on movement’ 

The above-cited Grand Chamber judgment Ilias and Ahmed v. Hungary (of 21 November 2019) is a further example of the Court’s deference to States in asylum detention cases. By declaring that the confinement of asylum-seekers in the Hungarian transit zone –a closed, fenced and heavily guarded container complex− did not amount to a deprivation of liberty, the Court did not assess whether Article 5 ECHR had been complied with on the merits of the case. This finding reversed the Chamber judgment, disregarded the view of UNHCR and directly contradicts the later CJEU case FMS and FMZ (see here for an analysis in this blog), in which the transit zones were considered to amount to detention camps.

The reasoning of the Grand Chamber shows several signs of an attempt to pacify the Hungarian authorities, who had starkly criticized the Chamber judgment, by taking a ‘practical and realistic approach’ to the case. This approach gave great weight to the Government’s arguments, stressed the alleged difficulties that the State was facing in coping with the mass influx of migrants and underlined Hungary’s right to prevent foreigners from circumventing restrictions on immigration – even though the applicants in the case never circumvented any immigration control measures.

It is true that, in a more recent case of March 2021, R.R. and Others v. Hungary (which has now become final), the Court has found that the applicants in the Hungarian transit zones had been unlawfully detained. The Hungarian Helsinki Committee has celebrated that, finally, the Court has ‘joined the broad consensus’ regarding the nature of placement in the transit zones. However, when looking closely at the case, it is clear that the Court does not consider that the transit zones as such amounted to detention: the ECtHR reiterated that the asylum seekers entered and stayed in the transit zones ‘voluntarily’ and that they could have left the transit zone in the direction of Serbia at any time. The only reason why the Court found Article 5 applicable in this case was the length of the confinement of the applicants (4 months, c.f. 23 days in Ilias and Ahmed) and the lack of a maximum time-limit for the applicant’s stay. While this finding is certainly a welcome step, it continues to show a State-centred approach, as the Court fails to recognise that asylum is ‘a necessity, not a choice’ (as stated by the dissenting judges in Ilias) and that asylum-seekers in Hungary could not return to Serbia without risking their liberty and their options for obtaining asylum (as recognised by the CJEU in FMS, §29-30).

VI. Shrinking protection of Article 3 in times of migratory crisis?

Finally, with regard to detention conditions, in M.S.S. and Hirsi Jamaa v. Italy the Court had asserted that, given the absolute nature of Article 3 ECHR, States’ difficulties in managing a migration crisis could not be considered a factor when assessing the compliance of detention conditions with this provision. Nonetheless, in the post-2015 judgments Khlaifia and Others v. Italy and J.R. and Others v. Greece the Court changed this line of reasoning by ‘bear[ing] in mind, together with other factors, the situation of extreme difficulty’ that the Italian and Greek authorities were confronting because of the sudden increase in migratory flows. This was one of the arguments for declaring that Article 3 had not been breached. The Court thus appears to raise the threshold of severity required to find a violation of Article 3 regarding detention conditions in situations where the State is faced with a migration crisis. One author even affirmed that these considerations ‘erode the absolute character of the prohibition within Article 3’.

Conclusion: The consolidation of the Strasbourg reversal in asylum detention

In sum, there has not been a radical change in the Court’s case law after 2015, since the ECtHR was already deferential to state sovereignty in asylum detention cases before the ‘refugee crisis’. Nonetheless, this deferential approach has in some cases been made more obvious (e.g. in Nabil) and in other cases been further expanded (e.g. in Thimothawes, Khlaifia, J.R. and Others and in Ilias and Ahmed). Therefore, it is reasonable to conclude that European states’ renewed preoccupation with the strengthening of their borders after 2015 led the Court to widen the scope of the margin of appreciation and to be more lenient towards the practice of asylum detention when interpreting Article 5(1)(f) and, to a lesser extent, Article 3 ECHR. 

The COVID-19 pandemic may be yet another factor that puts pressure on the Court to widen this margin of appreciation. Minos Mouzourakis, a legal officer at Refugee Support Aegean, pointed at the case of two unaccompanied minors who were detained at the Malasaka refugee camp, in the north of Athens, as part of the Greek policy of automatically detaining asylum-seekers in that camp on grounds of public health. The ECtHR refused to grant an interim measure to release the children despite the protective approach that the Court generally takes towards detained minors (see here, minute 31:10). Although it is not possible to draw conclusions from only one case, the deferential turn of the Court might be accelerating due to the political sensitivity of the COVID-19 context.

As a final remark, it is noticeable that the New EU Pact on Migration and Asylum proposes to expand the use of border procedures, which very often entail the application of detention measures. Should the Pact be approved, it is likely that the ECtHR will have to review many more applications related to asylum detention at the border. How the consolidation of the Strasbourg reversal in the past years will affect the fate of these future applicants remains to be seen.