October 2nd 2000: Will Human Rights - bring Migrants Rights!

As of 2nd October European Convention on Human Rights will be incorporated into the domestic legislation of the United Kingdom. This means that rights guaranteed by the Convention will be enforceable directly in the UK courts without going to Human Rights Court in Strasbourg, which on average took around 6 years.

Although ECHR concerns itself with the rights of citizens it provides some hope for migrants at the time when policies towards refugees and asylum seekers, in particular are becoming more and more restrictive.

The Convention covers 14 main areas of human, political and civil rights and freedoms such as right to life, liberty and security of person, right to a fair trial, freedom of thought, freedom of expression, the right to marry and have a family, right to education etc.

The ECHR gives rights to individuals which states must secure. The states also must be proactive in protecting and providing the rights guaranteed by the ECHR, this means that it is not enough that authorities are not violating the rights of individuals but they can be liable if they fail to protect them.

Another merit of ECHR is that it to great extent transfers interpretation and definition of human rights to judiciary and it takes it away from politicians or civil servants. Also, the ECHR, unlike other international instruments has its institutions (The Human Rights Court) and machinery, which enable individuals to launch petitions which, if successful, are binding on the contracting state.

Over recent years the body of ECHR case law in relation to asylum and immigration grew extensively mainly because of restrictive asylum legislation in Europe over the past ten years as well as increased awareness of this additional safeguard.

Although ECHR does not recognise a right to asylum, it could insure protection for migrants, especially asylum seekers on many grounds. Firstly, Article 1 of the Convention guarantees enjoyment of the substantive Convention rights to everyone on the territory of the contracting state. This includes asylum seekers and migrants, regardless of how they entered the country.

Secondly, in relation to migrants the contracting state is obliged to take into consideration Article 3

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

This means that the states have an obligation not to expose an individual to ill-treatment by expulsion, extradition or deportation and with Article 33 of the 1951 Geneva Convention it is used to protect asylum seekers from being deported and removed to unsafe countries.

ECHR in general and Article 3 in particular can fill the gaps in the protection inherent in the 1951 Geneva Convention. For example restrictive interpretation of the Geneva Convention means that people fleeing armed conflict or other general violence (e.g. Bosnians and Kosovo Albanians) do not qualify for refugee status if they are not 'singled out' for persecution different from that intended for the rest of their community. So if one shares the risk with others in the community, on the convention grounds, they may be denied international protection. This is why people fleeing ethnic cleansing were refused asylum. In some contracting states only persecution originating from the state is recognised as grounds for asylum. Article 3 was and can be used to challenge that too.

Article 3 is absolute. There are no circumstances for derogation from it like with some other articles. Torture and ill and degrading treatment is not permissible for the sake of national security nor in the case of war. This also means that everyone must be protected from torture and ill treatment, regardless of their immigration status or whether they entered country irregularly. The contracting state must also take into consideration the threat of inhumane and degrading treatment outside its borders, crucial in asylum cases.

Another important ECHR article for immigration in general is Article 8 which is concerned with protection of family:

1.Everyone has the right to respect for his private and family life, his home and his correspondence.

2.There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Article 8 may help refugees with regards to current restrictions on family reunion, but could also be beneficial for other migrants in the cases of families being split up by immigration laws.

Although articles 3 & 8 are restricted with interpretations what the torture is or what consist the family unit, and burdened with level and standard of proof, which limits the individual's ability to enforce their rights, the ECHR is still a rare positive development in immigration field in recent years and it could practically come in support of migrants if taken seriously by their representatives.