In the face of a surge in migrant arrivals, the EU Commission has urged member states to take a tougher stance on rapidlyreturning migrants who don’t qualify for asylum, but a European Court of Human Rights judgement this week may make countries think twice about fast-tracking repatriations.
The judgement concerned Italy’s treatment of three migrants who fled an Arab Spring uprising in their homeland Tunisia and arrived on the island of Lampedusa in September 2011.
The migrants were kept in what the court described as “appalling” conditions at a reception centre on the island, where they were not allowed outside, water supplies were limited and they had to sleep on the floor. After taking part in a migrant protest, they were transferred to two ships moored in Palermo’s harbour and, four days later, returned to Tunisia without having been interviewed about their individual circumstances or given the opportunity to appeal their expulsion. Their return was based on a bilateral agreement Italy had made with Tunisia that allowed for the repatriation of irregular Tunisian migrants under simplified procedures.
The court found that Italy violated several articles of the European Convention on Human Rights in terms of: the “inhuman” conditions of detention at the reception centre and on the ships; the failure to inform the migrants about the reasons why they were being detained; and, perhaps most significantly, by “collective expulsion” of the migrants back to Tunisia without properly considering their asylum claims.
Crucially, the seven judges noted that no exemption from EU human rights law was possible, even in the context of “exceptional waves of immigration” and where countries have bilateral readmission agreements with one another.
“The migration crisis poses a serious threat to the respect for human rights in many parts of Europe,” said Thorbjørn Jagland, Secretary General of the Council of Europe, which includes the Strasbourg court.
“Today’s judgment is a timely reminder to all 47 Council of Europe countries that asylum seekers and migrants must be treated as individual human beings with the same basic rights as everyone else.”
The court’s jurisdiction includes countries outside the EU’s 28-member block, including Turkey and Macedonia, where there have been reports of migrants being kept in poor conditions.
Izabella Majcher, a researcher with the Geneva-based Global Detention Project, told IRIN the judgement represents not only a personal victory for the three Tunisian men, who will receive 10,000 euros each in damages from the Italian government, but also for refugee rights organisations who will be able to use it to advocate for improved detention conditions and return processes for migrants.
“Historically, the court has been a bit reluctant to make judgements on collective expulsion,” she said. “It’s one of the first times it has found a violation of this type.”
Steve Peers, a law professor and expert on EU law at the University of Essex agreed that the judgement was significant, especially in the context of EU efforts to fast-track asylum applications and returns.
“It sends a signal there are limits to what you can do to remove irregular migrants,” he told IRIN.
“I think it’s clear that return is only possible after proper examination of an asylum request and if you appeal against a refusal [of that request], you should be allowed to stay while you appeal.”