All 46 member states of the Council of Europe, including the United Kingdom, have come together to adopt a significant political declaration aimed at clarifying how the European Convention on Human Rights (ECHR) should be understood and applied, particularly in the context of immigration and asylum matters.
Adopted in ChiΘinΔu, the capital of Moldova, the declaration is non-binding in nature but carries considerable political weight. It reflects a shared understanding among member states about how the Convention ought to function, both before national courts and the European Court of Human Rights (ECtHR). Council of Europe Secretary General Alain Berset noted that the declaration brought together countries with differing perspectives to reach a common understanding, particularly around the complex issue of migration, and that it would serve as a practical guide for national authorities and domestic courts going forward.
The declaration acknowledges that European states hold a sovereign right to regulate the entry and residency of foreign nationals, while making clear that this authority must always be exercised in accordance with Convention obligations. It recognises that large-scale migration presents challenges that were either not anticipated when the Convention was originally drafted or have changed considerably over time, and that failing to address these challenges could erode public trust in the Convention system.
The declaration also draws attention to the serious risks to human life associated with irregular sea crossings and suggests that reducing such crossings may help prevent deaths at sea. It acknowledges that states may explore new approaches to managing irregular migration, including processing asylum claims in third countries and establishing return hubs abroad, provided these measures remain compliant with Convention obligations.
On the question of Article 3, the declaration reaffirms that the prohibition on torture and inhuman or degrading treatment is absolute and cannot be derogated from under any circumstances. However, it stresses that the threshold for what constitutes such treatment must remain consistently high. It clarifies that differences in healthcare standards or socio-economic conditions between countries will only engage Article 3 protections in genuinely exceptional circumstances, and that returning states are not obligated to bridge such gaps. Domestic courts are also encouraged to consider how several factors, including detention conditions and socio-economic circumstances, may collectively meet the Article 3 threshold even if each factor viewed in isolation would not.
Regarding Article 8, the declaration confirms that deportation may lawfully interfere with the right to private and family life, provided it is lawful, serves a legitimate purpose, and is proportionate. Legitimate aims include national security, public safety, crime prevention, public health, and the protection of the rights of others. The declaration underlines that a proper balance must be achieved between the rights of the individual and the broader public interest, and that domestic authorities are generally better positioned to evaluate local conditions, particularly in national security matters. The ECtHR should respect those assessments where they have been carried out in line with established case law, rather than substituting its own judgment without compelling justification.
In a statement issued ahead of the declaration’s adoption, the UK Government welcomed the development, describing it as reflecting a more contemporary interpretation of the ECHR. The Foreign, Commonwealth and Development Office indicated that the declaration is expected to assist courts in ensuring that serious criminals cannot exploit human rights law to avoid deportation or extradition, and that Article 8 family rights are properly weighed against legitimate public interests, including national security considerations.
Not everyone has welcomed the declaration however. Human rights organisations and legal commentators have raised concerns that it may place undue pressure on courts to interpret human rights law more narrowly in immigration and asylum cases, potentially weakening protections for some of the most vulnerable people seeking safety in Europe.
The Guardian also reported that critics fear the declaration could weaken human rights protections for migrants and that it places courts under considerable pressure to take a more restrictive approach when applying human rights law in asylum and immigration cases.
The ChiΘinΔu Declaration, while non-binding, is likely to influence how courts and immigration authorities approach cases in the coming months and years. Whether you are facing deportation, an asylum refusal, or a challenge to your right to remain based on family life, it is more important than ever to have expert legal representation on your side.
News Source: Electronic Immigration Network
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