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Summary Migration and Legal Remedies
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Summary Migration and Legal Remedies. Comprehensive summary with the most important parts marked.
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Summary Migration and Legal RemediesWeek 1: Introduction
- ECtHR subsidiarity (its meaning for ECtHR and member states, also fourth instance rule and
margin of appreciation)……………………………………………………………………………………………………….p. 1-4
- UN Committee against Torture (CAT)……………………………………………………………………………….p. 4-6
- Case law: M.A.M.A. (CAT, on admissibility before CAT), Maaouia (ECtHR, art. 6 ECHR does not
apply to decisions on entry/stay/expulsion of migrants), Mamatkulov (ECtHR, failure state to
comply with interim measures violates of art. 34 ECHR)………………………………………………………p. 6-7
- Legislation: art. 13, 17 and 22 CAT (admissibility), art. 267 TFEU (preliminary rulings), art. 19(1)
TFEU1, Rule 39 ECtHR (interim measures)………………………………………………………………………….p. 8-10
- Notes…………………………………………………………………………………………………………………………….p. 10-12
Week 2: The right to an effective remedy
- (Reneman:) EU Right to an Effective Remedy and Related Procedural Rights and
Principles…………………………………………………………………………………………………………………………p. 12-20
- Case law: Al Nashif (art. 13 ECHR)2, A (art. 5(4) ECHR)3, Dhahbi (preliminary reference under
art. 6 ECHR)4, ZZ (art. 47 EU Charter)5………………………………………………………………………………p. 20-21
- Legislation: remedy provisions Directives…………………………………………………………………………..p. 21
- Notes: provisions on legal remedies, principles, cases, interaction ECHR/EU law………….p. 21-23
Week 3: Access to a remedy before a court or tribunal
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Art. 19(1) TFEU: ‘Member States shall provide remedies sufficient to ensure effective legal protection in the fields
covered by Union law.’
2
Al Nashif: Art. 13 effective remedy requires: informed reasons decision, some form of adversarial proceedings,
examination whether fair balance has been struck.
3
A: Art. 5(4) requires (sometimes) that evidence in proceedings is disclosed to applicants (+ communication with
advocates) to enable them to challenge the allegations against them.
4
Dhahbi: Art. 6 requires a Court (if no appeal) to provide the reasons for a refusal to refer a preliminary question.
5
ZZ: Art. 47 requires that applicant is (in any event) informed of essence grounds, limitations to disclose
information only if strictly necessary.
,- (American Immigration Council:) Access to council in immigration court6……………………p.24-25
- (Refugee Rights Turkey:) Barriers to the right to an effective remedy: The problem faced by
refugees in Turkey in granting power of attorney7…………………………………………………………p. 25-27
- Case law: H.I.D. (criteria court/tribunal)8, G.R. (art. 13 ECHR, court fees)9, DEB (criteria legal aid
under art. 47 EU Charter), Z.T. (CAT, access to remedy/legal aid)10………………………………….p. 27-30
- Notes: on access to remedy and legal aid, APD provisions…………………………………………….p. 30-33
Week 4: Cooperation and interstate trust between Member States………………………………p. 40->
6
Unequal Access to Immigration Representation + Immigrants With Legal Representation are More Likely to
Succeed in Their Cases.
7
Absence of the necessary identity documents poses a challenge for refugees in Turkey to get power of attorney
which is required for access to legal remedies.
8
HID: Criteria court/tribunal: established by law, permanent, jurisdiction compulsory, procedure inter partes
(adversarial), applies rules of law, independent (= protected against external intervention/pressure +
impartiality/ensuring level playing field parties to proceedings).
9
GR: Art. 13 requires that remedy must be available in practice as well as in law and that its exercise must not be
unjustifiably hindered by acts or omissions of state authorities (like court fee that hinders applicant’s access).
10
ZT: Art. 22(5) CAT: Denying legal aid when complainant's language/legal skills and financial means are insufficient
makes the remedy unavailable to him (allowing him to go to CAT since exhaustion all available domestic remedies).
,Monday 8 January: Introduction
Literature
- ‘European Court of Human Rights, Subsidiarity a two sided coin ?’, Background paper (2015):
- Introduction: While the ECHR in its present version contains no express reference to
subsidiarity, it does provide a legal framework for its operation. Firstly Article 1 requires the
High Contracting Parties to secure to everyone within their jurisdiction the rights and freedoms
set out in the Convention. This requirement is reinforced by Article 13 which stipulates that
States must provide an effective remedy for violations of the Convention rights and freedoms.
Secondly under Article 35 § 1 the Court is prevented from dealing with an application before all
domestic remedies have been exhausted. Reference may also be made to Article 53 which
expressly recognizes that Contracting States may go further than the Convention in the
protection offered. Subsidiarity is also present by implication in many of the substantive articles
of the Convention, in particular those which allow for restrictions on the protected rights and
freedoms. In short, and in its simplest form, subsidiarity as expressed in the Convention
comprises two elements: an obligation for the States to implement the Convention
guarantees, this being an obligation of result rather than means, and an obligation for the
Court to allow the national authorities to have the fullest opportunity to address a
Convention complaint, however grievous, before it can examine the matter itself. However,
subsidiarity has evolved into a much more sophisticated doctrine, covering not just the
possibility of review, but its intensity, through the development of notions such as the margin of
appreciation and the “fourth-instance” rule.
- The 2012 Brighton Conference and Protocol No. 15: As a consequence of the Conference’s
recommendation Protocol No. 15 which was opened for signature on 24 June 2013, inserts a
new recital into the Preamble of the Convention as follows: “Affirming that the High Contracting
Parties, in accordance with the principle of subsidiarity, have the primary responsibility to
secure the rights and freedoms defined in this Convention and the Protocols thereto, and that in
doing so they enjoy a margin of appreciation, subject to the supervisory jurisdiction of the
European Court of Human Rights established by this Convention, (...)”. There is a duality with
regard to the principle of subsidiarity. On the one hand it recognizes the responsibility of
States not just to implement Convention guarantees effectively but also to provide
appropriate remedies. On the other hand it recalls the importance of the margin of
appreciation and the need to apply strictly the admissibility criteria.
- The role of the Convention mechanism: Subsidiarity places constraints on the Convention
mechanism and therefore qualifies its role by limiting the scope of the Court’s review. The limits
are both procedural and substantive.
- Procedural subsidiarity: The major procedural element of subsidiarity is the obligation to
exhaust domestic remedies under Article 35 § 1 of the Convention. From the applicant’s
perspective Article 35 § 1 requires that the complaints intended to be brought subsequently to
Strasbourg should have been made to the appropriate domestic body (and in compliance with
the formal requirements and time-limits laid down in domestic law) and, further, that any
procedural means that might prevent a breach of the Convention should have been used.
Applicants are not, however, required to invoke the Convention right relied on expressly in the
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,national proceedings. It is enough to raise the issue in substance or implicitly. Another aspect of
procedural subsidiarity may be seen in Article 35 § 3 (b) according to which an application may
be declared inadmissible where the applicant has not suffered a significant disadvantage.
- Substantive subsidiarity: Substantive subsidiarity is most clearly expressed in two doctrines
which the Court has developed. The first is the so-called fourth-instance rule and the second
and most important is the doctrine of the margin of appreciation.
- Fourth instance rule [ECHR not a fourth instance]: Under the fourth-instance rule the
ECHR considers that it has only limited jurisdiction to verify that domestic law has been
correctly interpreted and applied and that it is not its function to take the place of the national
courts, its role being rather to ensure that the decisions of those courts are not flawed by
arbitrariness or otherwise manifestly unreasonable. It is not, as the Court has repeatedly held,
its function to deal with errors of fact or law allegedly committed by a national court unless and
in so far as they may have infringed rights and freedoms protected by the Convention. The
Court has also found that the interpretation of European Union law by national courts falls
outside its jurisdiction.
- Margin of appreciation: The margin of appreciation can be seen as a sort of “lex specialis”
in relation to the general principle of subsidiarity. Under it, as under the broader principle of
subsidiarity, the Court recognizes that both as a matter of principle and in practice the national
authorities are better placed to make the assessment of the necessity and proportionality of
measures restricting the Convention rights and freedoms. The ECHR accordingly exercises a
degree of self-restraint which reflects the area of discretion or margin of appreciation which
national authorities enjoy. The margin of appreciation recognizes that in applying certain
Convention guarantees there may be a range of different but legitimate solutions depending on
the context, and especially in relation to assessing the proportionality of a permitted limitation
on a right or freedom or striking a balance between competing rights. As the Court has
observed, “the national authorities have direct democratic legitimation and are in principle
better placed than an international court to evaluate local needs and conditions. In matters of
general policy, on which opinions within a democratic society may reasonably differ widely, the
role of the domestic policy-maker should be given special weight”. There are however some key
areas in which the margin of appreciation has no role. For example the question whether or
not facts found to be established attain the level of severity to attract the protection of Article 3
prohibiting torture and inhuman or degrading treatment cannot come within any margin of
appreciation. It has long been clear that the width of the margin varies according to the nature
of the interest whose protection is claimed. Another factor which may determine the width of
the margin of appreciation is the existence or lack of “consensus” at European level. The scope
of the margin of appreciation may be more extensive [wide] where the national authorities are
balancing competing Convention rights. The Explanatory Report to Protocol No. 15 makes clear
that the reference to subsidiarity and the margin of appreciation in the Preamble “is intended to
... be consistent with the doctrine of the margin of appreciation as developed by the Court in its
case law”. In conclusion with regard to the Strasbourg machinery’s role, subsidiarity is a crucial
component of the Convention system which provides the interface between the international
and national jurisdictions. The Court’s side of the subsidiarity coin entails a clear responsibility
to draw appropriate conclusions from effective implementation at national level. Indeed it is in
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,doing just that that it can provide an incentive to national authorities to fulfil properly their
Convention role thereby allowing the Court’s review to be less intrusive.
- The role of the national authorities: Under the division of labor [between Court and state
parties, Handyside case] the Contracting States have two main obligations. The first is to
ensure that the rights and freedoms set out in the Convention are adequately protected [art. 1
ECHR]. In other words, they must put in place the structures and procedures necessary to
secure in practice the rights and freedoms guaranteed by the Convention (Article 1 of the
Convention). The second is to provide a remedy when that protection breaks down [art. 13
ECHR on effective remedy before a national authority].
- Guaranteeing rights (the substantive dimension) : It is clear that one aspect of the first
obligation is legislative. Thus the Brighton Declaration calls upon governments in particular to
implement practical measures to ensure that policies and legislation comply fully with the
Convention, including by offering to national parliaments information on the compatibility with
the Convention of draft primary legislation proposed by the Government. The Court will also
take account of the quality of the parliamentary process in assessing the width of the margin of
appreciation. In addition to the negative obligation not to introduce legislation which
interferes with Convention rights the Court has developed the concept of positive obligations
which require that in some circumstances national authorities must take positive action to
ensure the effective enjoyment of Convention rights.
- Providing effective remedies (the procedural dimension) : The Court has in addition to the
[explicit] state obligation to provide an effective remedy under art. 13 developed implied
procedural obligations in respect of the Convention’s substantive provisions [like an implied
obligation to investigate under art. 2 and 3]. This procedural approach has been expanded to
other Convention articles. Again this emphasis on the procedural dimension reinforces the
principle of subsidiarity. Where the procedural requirements are satisfied, the Court will be less
inclined to review the substantive issue. In situations of structural or systemic violation, the
Court has likewise stressed the importance of introducing national remedies.
- The role of the national courts: The obligation to secure Convention rights and freedoms in
practice of course falls on all public authorities, including federal and regional administrations. It
is however the national courts which are the natural partners of the Strasbourg machinery in
the process of securing the Convention guarantees and offering appropriate remedies. Protocol
No. 16 will allow the highest courts and tribunals of a State Party to request the Court to give
advisory opinions on questions of principle relating to the interpretation or application of the
Convention rights. As has been noted above the national courts will evidently have an
important role to play in the process of exhaustion of domestic remedies and in the
assessment of facts and national law, but it is in their application of Convention law where
they can make the most effective contribution to the Convention system. This is evidently the
other side of the subsidiarity coin, the other side of the margin of appreciation. Where a
complaint has been duly considered by a domestic court applying the rights guaranteed by the
Convention in light of well-established case-law of the Court including on the margin of
appreciation, it should be declared inadmissible as unfounded, unless the application raises a
serious question affecting the interpretation or application of the Convention. When faced with
a Convention issue, national courts are thus required to apply the Convention in the light of the
Court’s well-established case-law taking into account the margin of appreciation. Where the
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, balancing exercise has been undertaken by the national authorities in conformity with the
criteria laid down in the Court’s case-law, the Court would require strong reasons to
substitute its view for that of the domestic courts. Unsurprisingly subsidiarity from the
perspective of the national authorities is the mirror image of subsidiarity seen from the
Strasbourg perspective.
- Conclusion: It is common ground that effective domestic implementation of the Convention is
key to the future viability of the system and that is fundamentally what subsidiarity focuses on.
Subsidiarity is indeed a two-sided coin or even the link between communicating vessels, where
the extent of the Court’s review is in inverse proportion to the existence, and effective
implementation, of guarantees at national level. This reflects a sharing of responsibility based
on the notion of partnership. In other words the Court, while remaining, in accordance with the
Convention, the final arbiter of Convention issues and thus legitimately expecting its
interpretation of those issues to be followed by national courts, is able to develop its own
reasoning from national decisions analyzing Convention law. It can encourage national
acceptance of the Convention and its case-law by maintaining effective dialogue with national
judiciaries, but also by drawing conclusions from effective implementation at national level.
- F. M. Marino Menéndez, ‘Recent Jurisprudence of the UN Committee against Torture and
the International Protection of Refugees’ (2015):
- Abstract: Over more than 25 years, the United Nations Committee against Torture, established
under the 1984 United Nations Convention against Torture, has adopted a series of decisions on
individual claims which may be considered relevant for the development and deepening of
certain aspects of international and domestic law on the protection of refugees. There is an
interesting cross-fertilisation between the application and interpretation of refugee law
principles and norms and those related to the absolute prohibition of torture and ill treatment.
Therefore, the precision and nuance developed by the Committee on concepts such as torture,
ill treatment, non-refoulement, investigation of torture, or “substantive” risk of torture shed
light and promote best practices by state authorities on questions such as the existence and
proof of “well founded fear of persecution”, the limits of extradition, and the usefulness of
diplomatic assurances in the field of refugee law. This article analyses some of the latest
decisions and recommendations of the Committee and identifies their relevance to note its
contribution to the protection objectives of refugee law.
- 1. THE ABSOLUTE NATURE OF THE PRINCIPLE OF NON-REFOULEMENT UNDER THE UNITED
NATIONS CONVENTION AGAINST TORTURE AND REFUGEE PROTECTION: To sum up, the
obligation to protect an individual under asylum, refugee status, subsidiary protection, or simply
issuing a residence permit or allowing his/her stay in the territory of the State on humanitarian
grounds, is firmly grounded on the principle of non-refoulement, which constitutes the
cornerstone of any international regime for the protection of individuals against removal to a
risk of prohibited treatment (however defined by the relevant instrument). It is on this
foundation that the Refugee Convention and its regional counterparts are firmly grounded. The
protection of non-refoulement covers every non-national, including stateless persons. Removal
must be construed in a broad sense, including any transfer of the individual, as well as rejection
at the border, extradition, and expulsion.
- 2. THE WORK OF THE COMMITTEE AGAINST TORTURE AS BEST PRACTICE FOR THE LEGAL
PROTECTION OF REFUGEES: The 1984 United Nations Convention against Torture imposes on its
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