The European Convention on Human Rights (1950) (ECHR), and interpretation of its provisions by the European Court of Human Rights has significantly affected law and policy on asylum and protection in Council of Europe Member States. Article 3 of the ECHR prohibits torture or inhuman or degrading treatment or punishment. This provision is one which has been interpreted by the European Court to have extra territorial effect, therefore States may not return individuals to face a violation of their rights under this Article. In the case of Soering v UK this principle was enunciated by the European Court (see 8.1-Fundamental rights). A number of Council of Europe Member States, in compliance with this judgment and further judgments issued by the European Court on Article 3 grounds, where expulsion has been prevented, provide complementary forms of protection to individuals who are at risk of a violation of their rights if returned to their country of origin or a third country. In some Council of Europe States this procedure for providing complimentary protection under the ECHR may be combined with the procedure for processing applications for refugee status.

Further provisions which may affect immigration policy include: Article 4, Protocol 4 which prohibits the collective expulsion of aliens without a reasonable and objective examination of the particular case of each individual of the group. The Belgian authorities violated this provision when they attempted to expel a group of Roma families to Slovakia in the case of Conka v Belgium (see 8.1 - Fundamental rights). The expulsion of individuals has also been prevented under Article 8 in a number of cases where the applicants right to family life would be violated if they were removed from the signatory state (see 8.8-Family reunion).

The European Committee on Migration (CDMG) was set up to develop European co-operation on migration, on the integration of refugees and migrants in Council of Europe states. It prepares conferences of European ministers and follows up the relevant decisions of the Committee of Ministers. The Committee of Experts on the Implementation of the Migration Management Strategy acts under the authority of the European Committee on Migration. The Committees mission includes: to prepare guidelines on issues related to managing migration flows; they provide practical assistance to countries that are seeking to review their management of migration policy. The terms of reference of the Committee extend to December 2003.(1)

The Ad Hoc Committee of Experts on the Legal Aspects of Territorial Asylum, Refugees and Stateless Persons (CAHAR) was set up to follow developments in the area of asylum, refugees and stateless persons in Council of Europe countries. It makes proposals for practical solutions to legal problems faced by Council of Europe Member States. It drafts conventions and recommendations which may be adopted by the Committee of Ministers, CAHAR also aims towards the harmonisation of asylum policy in the Council of Europe. Texts prepared by CAHAR include: the European Agreement on the Transfer of Responsibility for Refugees (ETS 107), which deals with the allocation of responsibility and refugees residence and travel documents in this regard. On its agenda at present are the issues of the right of rejected asylum-seekers to appeal; the return of persons who are not in need of international protection; and the training of officials who first come into contact with asylum-seekers at border points.(2)

The Committee of Ministers, the Council of Europe’s decision-making body, makes Recommendations on various areas of common policy including migration.(3) Recommendations are not legally binding, areas that have been covered include the rights of aliens wishing to enter a Council of Europe member state and the enforcement of expulsion orders; under Recommendation (2001)1. Paragraph 1 of this recommendation states that persons arriving on the territories of states should be treated with dignity and paragraph 3 states that as a rule restrictions on freedom of movement should be avoided. It also covers detention decisions and conditions, and expulsion decision.

(1) See Council of Europe website for a description of the work of the Committee of Experts on the Implementation of the Migration Management Strategy.

(2) See Council of Europe website for a description of CAHAR.  

(3) See for list of Recommendations (bottom of page).

Analysis provided by: Anisa Niaz LLM (Public Law), United Kingdom.