The UK and other European countries have signed a landmark declaration pushing courts to rethink how they decide on migration cases, in a bid to make it easier to deport illegal migrants.
The agreement, unveiled at a summit in Moldova on Friday, warns that European democracy itself could be undermined unless states are able to respond more effectively to people smuggling and modern migration pressures.
It urges the European Court of Human Rights in Strasbourg to leave most migration cases to member states.
Speaking ahead of the summit, UK Foreign Secretary Yvette Cooper described the deal as a “common-sense approach” and said she wants to ensure systems “can’t be unfairly gamed”.
The European Convention on Human Rights (ECHR) was drafted after the Second World War to set out basic rights and freedoms across Europe and is enforced by the Strasbourg court.
The new declaration is not a rewriting of the human rights law, external – which would take years – but is a political signal from all the member states to human rights judges that there needs to be greater consideration for public interest and democracy when deciding on migration cases.
It was signed by the 46 members of the Council of Europe, the political body which oversees the human rights court and is entirely separate to the European Union.
The document says pressures facing European countries have either changed significant or were unforeseen at the time the human rights convention was drafted.
It states have “the undeniable sovereign right” to establish their own immigration policies and remove foreign nationals in the public interest.
Critics of Friday’s declaration said the wording will undermine human rights protections or have no effect on migration because judges could ignore it.
People smuggling
Turning specifically to people smuggling – either by gangs or orchestrated by hostile states – the declaration says that the phenomenon “risks undermining support for and the integrity of the Convention system”.
It argues that countries including the UK should be allowed to pursue deals with other countries, including the potential creation of “return hubs” beyond Europe.
“A hostile state or other actor cannot be allowed to undermine European democracies and the values on which the Convention is founded and to abuse the system that it was established to protect,” the paper says.
Italy has already struck a deal with Albania to accommodate rejected migrants there.
The UK has been exploring similar to deals – but nothing concrete has come of those talks yet.
In 2023, the UK Supreme Court said the previous government’s Rwanda asylum policy was unlawful because of its documented failure to treat genuine refugees fairly.
Inhuman treatment
While the agreement stresses that “Article 3” of the ECHR absolutely bans torture, it adds that a failed migrant cannot simply avoid deportation by complaining they may face some kind of inhuman or degrading treatment in their home country.
In particular, the declaration says that courts should not stand in the way of expelling a failed migrant just because their country’s hospitals or social conditions are below the standards of Europe.
“Where an individual is being expelled or extradited, the quality of accessible healthcare in the receiving state should only give rise to a real risk of [inhuman] treatment … in very exceptional circumstances,” it says.
That wording, the UK government and others hope, will pave the way for governments to more easily bat away challenges to removal.
Right to family life
The new document underlines the long-established principle that the right of family life does not bar deportation and that national courts, rather than Strasbourg, are best placed to work out that balance.
“The right balance must be struck between individual rights and interests and the weighty public interests of defending freedom and security,” it says.
“It is primarily for the national authorities to carry out the balancing exercise.”
Source: BBC
