One of the aims of the Council of Europe is to protect human rights. In this respect two fundamental instruments the European Convention on Human Rights (1950), (ECHR), and the European Social Charter (1961 as amended in 1996) set out fundamental civil and political and economic and social rights. The rights provided by these and other human rights instruments of the Council of Europe safeguard the fundamental rights of migrants on the territories of Council of Europe states.

The European Court of Human Rights adjudicates on the protection of human rights, as guaranteed by the ECHR. Whilst the protection of human rights is essentially within the scope of each sovereign member states power, the European Court may rule on claims after all domestic remedies open to an individual have been exhausted (see 8.9 - Legal Recourse). Migrants within the territory of Council of Europe states may petition the Court as Article 1 of the ECHR places an obligation on Contracting Parties to secure the rights and freedoms to all persons within their jurisdiction. In the case of Loizidou v Turkey the Court held that unlawful or lawful military action which leads to the effective control of an area outside a states' national territory is capable of falling within their jurisdiction. The Court also illuminated the concept of jurisdiction under the Convention and stated that jurisdiction is not limited to the national territory of states. The responsibility of Contracting Parties can be engaged because of acts by their authorities, whether performed within or outside national boundaries, which produce effects outside their own territory. This principle is established under ECHR jurisprudence as described below.

Article 3 of the ECHR prohibits torture or inhuman or degrading treatment or punishment. This is an absolute right within the Convention, which cannot therefore be subject to derogation or limitation. The European Court has defined the parameters of this right. In the seminal case of Soering v UK, in 1989 the European Court of Human Rights ruled that it would be contrary to Article 3 to return a person to another state ‘where substantial grounds have been shown for believing that the person concerned, if extradited, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the requesting country'. The Court also stated in that case that return might be prohibited if an applicant faced the risk of a flagrant denial of their right to a fair trial. It involved the extradition of a German national to the US to face murder charges. The Court found that there was a real risk of the death penalty being imposed if the applicant was extradited, and therefore that he would face the ‘death row of phenomenon' which, amongst other factors, may result in a violation of the individuals rights under Article 3, ECHR. The principle elicited in this case has also been applied to cases involving deportation. In the recent case of Hilal v UK in 2001, the European Court found that there were substantial grounds for believing that the expulsion of the applicant, who had claimed asylum in the UK, to the Republic of Tanzania would result in a violation of Article 3, ECHR. The applicant had faced ill treatment because of his involvement with the Civic United Front (“CUF”) and was at risk of being arrested and detained, and of suffering a recurrence of ill treatment if returned to Zanzibar (see also Cruz Varas v Sweden).

The European Court exceptionally under Article 3, prevented a States' removal of an individual with severe terminal illness in the case of D v UK where the applicant suffered from AIDS and his removal to St.Kitts where he would not receive adequate medical treatment was prevented. The Court has also prevented the removal of individuals on Article 8, the right to a family life, grounds (see 8.8-Family reunion).

The Court found a violation of Article 4, Protocol 4 of the ECHR in the case of Conka v Belgium in 2002. The attempted collective removal of a number of Roma Slovakian families was found to constitute collective expulsion contrary to the ECHR. The Court stated that in order for the expulsion of groups of persons to comply with Article 4, Protocol 4 there must have been a reasonable and objective examination of the particular case of each individual of the group, which in the case of Conka there was not. There were found to be insufficient guarantees to demonstrate that the personal circumstances of each of those concerned had been genuinely and individually taken into account. The Court also found a violation of Article 13, the right to an effective remedy, which guarantees remedies to enforce the substance of Convention rights, as the applicants did not have a remedy to air their complaint under Article 4 of Protocol No. 4.

On Article 6, the right to a fair trial, the European Court in the case of Maouia v France in 2000, found that proceedings on an individuals right to enter a state, or to impose conditions on their stay or deport them did not involve the determination of their “civil rights and obligations”. Such proceedings therefore fell outside the scope of Article 6. Migrants subject to such proceedings cannot therefore expect the protection of the procedural safeguards offered by Article 6, ECHR. However the Court stated that if a deportation order or exclusion order is made following the conviction of an individual for a criminal offence the procedural safeguards of Article 6 would apply to the criminal proceedings as a whole.

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