EU Migration Law: Forced and Unforced Migration - case law
Seminar 1
ECtHR Hirsi v. Italy
Facts:
Applicants were part of a group who left Libya aboard vessels with the aim of reaching the Italian coast. The
vessels were intercepted by ships from the Italian Coastguard, while within the Maltese search and rescue
region. Italian Military returned them to Libya. Applicants stated that they were not informed about their
destination and no steps were taken to identify them. Applicants were handed over to Libyan authorities.
The Court found that the applicants were within the jurisdiction of Italy for the purposes of art. 1 ECHR.
- No distinction was made between irregular migrants and asylum-seekers, who were systematically
arrested and detained in conditions that observers had described as inhuman, reporting cases of torture.
- The Court considered that the shared situation of the applicants and many other clandestine migrants in
Libya did not make the alleged risk any less individual and concludes that by transferring them to
Libya, the Italian authorities had, in full knowledge of the facts, exposed them to treatment proscribed
by art. 3 ECHR.
The Court reiterated the importance of guaranteeing anyone subject to a removal measure, the consequences of
which were potentially irreversible, the right to obtain sufficient information to enable them to gain effective
access to the relevant procedures and to substantiate their complaints.
ECtHR M.N. and others v. Belgium
Facts:
- Applicants are a Syrian family of four. They requested visas on humanitarian grounds from the Belgian
Consulate in Lebanon. Visas were rejected and the applicants requested the suspension of execution of
the decision by the Council for Alien Law Litigation (CALL).
- CALL ruled that the political and security situation in Syria created a risk and instructed authorities to
issue new decisions.
- Belgian authorities refused to comply with CALL’s decision, therefore the applicants brought the case
before the Brussels Court of First Instance, which ruled that Belgium had to comply.
- Applicants lodged an application before the ECtHR alleging a violation of art. 3 and art. 13 ECHR.
The Court investigated the issue of jurisdiction by referring to the relevant case law on the scope of art. 1
ECHR. Given the primarily territorial character of the notion of jurisdiction, an extraterritorial exercise of
jurisdiction should be defined and limited by the territorial sovereignty of other states and is assessed based on
the specific facts of each case.
- The Court noted the applicants’ arguments that decisions were taken on the entry conditions for the
applicants but held that the mere fact that a decision taken in a State Party is affecting the situation of
individuals that are not present in its territory cannot establish jurisdiction.
- The Court noted the applicants’ arguments that visa-related consular functions are a form of public
power that images the state’s jurisdiction. However, there are no connecting links to support the
jurisdictional argument as the applicants are not Belgian nationals and they were never under the de
facto control of diplomatic agents. → the mere fact of entering the premises of an embassy cannot be
used to establish a jurisdictional link.
- The fact that applicants brought proceedings at the national level is not sufficient to establish
jurisdiction.
1
, ECtHR N.D. and N.T. v. Spain
Facts:
Applicants attempted to enter the Spanish enclave of Melilla. Attempted to climb over the fences separating
Melilla from Morocco. They were subject to attacks by Moroccan authorities who threw stones at them, and
they witnessed violence against other individuals by both Spanish and Moroccan authorities. After crossing the
fence, they were immediately stopped by Spanish authorities and sent back to Morocco. They were not
subjected to identification nor had the possibility to give any details of their circumstances.
The Court noted that the exercise of a Contracting State’s jurisdiction is necessary in order to trigger their
responsibility under ECHR. Whilst a state’s jurisdiction is principally territorial the Court has found that the
control and authority over an individual by a state’s agent or acts by a State which produces effects outside of
their territory fall within the scope of art. 1 ECHR.
- It mattered whether there had been effective control by the authorities over an individual (de jure
control) regardless of whether the individual was within the territory or at the border.
- As soon as the applicant came down from the fence, he was within the continued and
exclusive control of the Spanish authorities, creating a de facto exercise of jurisdiction. →
jurisdiction under art. 1 ECHR.
The Court held that applicants had a victim status. The government was therefore not able to hide behind the
argument that there was a lack of identification of the individuals when it was Spain’s responsibility to
undertake said identification.
Seminar 2
ECtHR M.S.S. v. Belgium and Greece
Art. 3 ECHR requires the State to ensure that detention conditions are compatible with respect for human
dignity, that the manner and method of the execution of the measure do not subject the detainees to distress or
hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that their health
and well-being are adequately secured.
The applicant has arguable grounds to assert that his removal to Afghanistan would infringe art. 2 and 3 ECHR
based on copies of his certificates showing that he previously worked there as an interpreter. The Court also
placed reliance on the UNHCR Guidelines on Afghanistan. → this was prima facie evidence that the situation in
Afghanistan continues to pose a widespread problem of insecurity and that the applicant fits into a category of
people particularly exposed to reprisals from anti-government forces.
State responsibility under the Convention
- The State remains responsible for all actions and omissions of their bodies under their domestic law or
under international legal obligations. + The State remains responsible for all acts falling outside its
strict legal obligations, notably where it exercised discretion.
Application of the Dublin Regulation - ‘’States must make sure that the intermediary country’s asylum
procedure affords sufficient guarantees to avoid an asylum seeker being removed, directly or indirectly, to his
country of origin without any evaluation of the risks he faces from the standpoint of art. 3 ECHR’’.
!Note!
● One of the few cases where the ECtHR found a violation of Convention rights on returning a person to
another Contracting State Party.
● The Court clearly affirms that MS in applying Dublin rules cannot presume that the applicant would be
treated in conformity with ECHR obligations but that it’s up to the national authorities to first verify
how the Greek authorities applied their legislation on asylum in practice before returning asylum
seekers there.
● The difficult pressure that Greece faces at the borders of the EU should not be considered when
examining potential violations of art. 3 ECHR.
2
Seminar 1
ECtHR Hirsi v. Italy
Facts:
Applicants were part of a group who left Libya aboard vessels with the aim of reaching the Italian coast. The
vessels were intercepted by ships from the Italian Coastguard, while within the Maltese search and rescue
region. Italian Military returned them to Libya. Applicants stated that they were not informed about their
destination and no steps were taken to identify them. Applicants were handed over to Libyan authorities.
The Court found that the applicants were within the jurisdiction of Italy for the purposes of art. 1 ECHR.
- No distinction was made between irregular migrants and asylum-seekers, who were systematically
arrested and detained in conditions that observers had described as inhuman, reporting cases of torture.
- The Court considered that the shared situation of the applicants and many other clandestine migrants in
Libya did not make the alleged risk any less individual and concludes that by transferring them to
Libya, the Italian authorities had, in full knowledge of the facts, exposed them to treatment proscribed
by art. 3 ECHR.
The Court reiterated the importance of guaranteeing anyone subject to a removal measure, the consequences of
which were potentially irreversible, the right to obtain sufficient information to enable them to gain effective
access to the relevant procedures and to substantiate their complaints.
ECtHR M.N. and others v. Belgium
Facts:
- Applicants are a Syrian family of four. They requested visas on humanitarian grounds from the Belgian
Consulate in Lebanon. Visas were rejected and the applicants requested the suspension of execution of
the decision by the Council for Alien Law Litigation (CALL).
- CALL ruled that the political and security situation in Syria created a risk and instructed authorities to
issue new decisions.
- Belgian authorities refused to comply with CALL’s decision, therefore the applicants brought the case
before the Brussels Court of First Instance, which ruled that Belgium had to comply.
- Applicants lodged an application before the ECtHR alleging a violation of art. 3 and art. 13 ECHR.
The Court investigated the issue of jurisdiction by referring to the relevant case law on the scope of art. 1
ECHR. Given the primarily territorial character of the notion of jurisdiction, an extraterritorial exercise of
jurisdiction should be defined and limited by the territorial sovereignty of other states and is assessed based on
the specific facts of each case.
- The Court noted the applicants’ arguments that decisions were taken on the entry conditions for the
applicants but held that the mere fact that a decision taken in a State Party is affecting the situation of
individuals that are not present in its territory cannot establish jurisdiction.
- The Court noted the applicants’ arguments that visa-related consular functions are a form of public
power that images the state’s jurisdiction. However, there are no connecting links to support the
jurisdictional argument as the applicants are not Belgian nationals and they were never under the de
facto control of diplomatic agents. → the mere fact of entering the premises of an embassy cannot be
used to establish a jurisdictional link.
- The fact that applicants brought proceedings at the national level is not sufficient to establish
jurisdiction.
1
, ECtHR N.D. and N.T. v. Spain
Facts:
Applicants attempted to enter the Spanish enclave of Melilla. Attempted to climb over the fences separating
Melilla from Morocco. They were subject to attacks by Moroccan authorities who threw stones at them, and
they witnessed violence against other individuals by both Spanish and Moroccan authorities. After crossing the
fence, they were immediately stopped by Spanish authorities and sent back to Morocco. They were not
subjected to identification nor had the possibility to give any details of their circumstances.
The Court noted that the exercise of a Contracting State’s jurisdiction is necessary in order to trigger their
responsibility under ECHR. Whilst a state’s jurisdiction is principally territorial the Court has found that the
control and authority over an individual by a state’s agent or acts by a State which produces effects outside of
their territory fall within the scope of art. 1 ECHR.
- It mattered whether there had been effective control by the authorities over an individual (de jure
control) regardless of whether the individual was within the territory or at the border.
- As soon as the applicant came down from the fence, he was within the continued and
exclusive control of the Spanish authorities, creating a de facto exercise of jurisdiction. →
jurisdiction under art. 1 ECHR.
The Court held that applicants had a victim status. The government was therefore not able to hide behind the
argument that there was a lack of identification of the individuals when it was Spain’s responsibility to
undertake said identification.
Seminar 2
ECtHR M.S.S. v. Belgium and Greece
Art. 3 ECHR requires the State to ensure that detention conditions are compatible with respect for human
dignity, that the manner and method of the execution of the measure do not subject the detainees to distress or
hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that their health
and well-being are adequately secured.
The applicant has arguable grounds to assert that his removal to Afghanistan would infringe art. 2 and 3 ECHR
based on copies of his certificates showing that he previously worked there as an interpreter. The Court also
placed reliance on the UNHCR Guidelines on Afghanistan. → this was prima facie evidence that the situation in
Afghanistan continues to pose a widespread problem of insecurity and that the applicant fits into a category of
people particularly exposed to reprisals from anti-government forces.
State responsibility under the Convention
- The State remains responsible for all actions and omissions of their bodies under their domestic law or
under international legal obligations. + The State remains responsible for all acts falling outside its
strict legal obligations, notably where it exercised discretion.
Application of the Dublin Regulation - ‘’States must make sure that the intermediary country’s asylum
procedure affords sufficient guarantees to avoid an asylum seeker being removed, directly or indirectly, to his
country of origin without any evaluation of the risks he faces from the standpoint of art. 3 ECHR’’.
!Note!
● One of the few cases where the ECtHR found a violation of Convention rights on returning a person to
another Contracting State Party.
● The Court clearly affirms that MS in applying Dublin rules cannot presume that the applicant would be
treated in conformity with ECHR obligations but that it’s up to the national authorities to first verify
how the Greek authorities applied their legislation on asylum in practice before returning asylum
seekers there.
● The difficult pressure that Greece faces at the borders of the EU should not be considered when
examining potential violations of art. 3 ECHR.
2
