A political declaration aimed at clarifying key aspects of the European convention on human rights was published on Friday, agreed by all 46 member states of the Council of Europe.
Critics fear it will weaken human rights protections for migrants. The ECHR system has become a political battleground, with both the Conservatives and Reform UK pledging to leave the convention if they are elected to government.
The Chișinău declaration, agreed in the Moldovan capital, is not legally binding but it does put the courts under significant pressure to apply the law more restrictively in asylum and immigration cases.
What has changed?
There is more “wriggle room” for the interpretation of key aspects of migrant-related human rights law. According to Dr Jean-Pierre Gauci, at the British Institute of International and Comparative Law, the declaration sends a signal to the ECHR and to domestic courts to interpret the convention in a way that addresses the political priorities of some states to make it easier to remove foreign nationals, even if there is a real risk of harm to them on return. He says this signal undermines the principles of universal human rights and equality before the law.
How will the right to protection against torture and to family life change?
Two parts of the convention that have attracted negative attention from some politicians and sections of the media are article 3, the prohibition of torture and inhuman and degrading treatment or punishment, and article 8, the right to respect for private and family life. There is confusion between this and the Geneva conventions, which enshrine the rights of protection for refugees. Asylum seekers primarily cite the Geneva conventions when claiming asylum rather than articles 3 and 8 of the ECHR, which apply more often to migrants who have lived in the UK for a long time and might have committed a crime or overstayed a visa. The new declaration allows for more stringent interpretation of balancing factors when considering deportations, such as poor prison conditions or inferior healthcare in the country to which the person is being deported.
Will the UK be able to deport more people now?
The Home Office already interprets human rights laws stringently when making decisions about individual deportations. The European court rarely interferes, with 13 cases in the past 45 years. It is mostly UK judges who determine appeals of those who try to oppose Home Office removal decisions. Friday’s declaration signals that greater deference should be paid to governments in these areas. It will allow more scope for states to deport people to places where they may be in danger of inhuman or degrading treatment. The UK government says the declaration will help to “crack down on individuals exploiting the system to avoid deportation”.
Does the declaration open the door to migrant returns hubs in third countries?
So-called return hubs are controversial. The previous UK government’s plans to use Rwanda for this purpose failed. Some European countries, including the UK, are exploring them as they believe this measure would act as a deterrent to small boat arrivals. However, numbers crossing the Channel in small boats have remained high since the UK began forcibly removing asylum seekers to France last September. Friday’s declaration says states should be able to consider measures such as return hubs to deter irregular migration but these measures must be in line with the ECHR.
