- Introduction
The 1951 Convention Relating to The Status of Refugees (hereinafter Geneva Convention) is a human rights treaty which is consecrated to the people who have “refugee status” and rights of refugees. Geneva Convention provides “selected” protection for refugees because the very essence of this convention relies on a strict refugee definition (Art 1(A)/2), and its protection comprises only the non-refoulment principle.[1]However, the European Convention on Human Rights (hereinafter the Convention or ECHR) does not concern the protection of refugees per se, related provisions of the Convention are applicable to refugees, too. Whereas the Geneva Convention’s protection depends on prerequisites such as the definition of “refugee” and the non-refoulment principle, the Convention provides more extended protection in regard to person and subject. A refugee may be protected by the Convention provided that the right in question is regulated in the Convention and the place where they reside is a contracting State since human rights are applicable to everyone. Therefore, the States have both positive and negative obligations providing protection of fundamental rights and abstaining from human rights violations as to the refugees’ protection under the relevant provisions of ECHR. The enforcement of an expulsion order by a government occurs some problems as to international refugee law, so the applications that assert a claim of a human right violation to the European Court of Human Rights (hereinafter the Court or ECtHR) has become evident. In this article, the Court’s approach to the violation of Art 3 and Art 8 of the Convention of relevance the non-refoulement principle will be assessed.
- The Non-Refoulement Principle And Refugee Protection Under Art 3 Of ECHR
Though Art 3 of the Convention does not refer to the non-refoulement principle, the Court applies this provision as to refugees’ protection against expulsion. Since Art 3 regulates the prohibition of torture, the applicants who are refugees suffering from any expulsion order may assert a violation of this article. Actually, the Court’s approach to the applications as to the enforcement of an expulsion order akin to the non-refoulment principle regulated in Art 33 of the Geneva Convention, but rather the Court has implemented peculiar criteria to detect that whether the deportation is lawful or not.[2] The Court emphasizes that Art 3 constitutes an absolute right so that States cannot rely on any justification about violating the non-refoulement principle.[3] In Chahal v UK, the absolute character of Art 3 and ECHR’s wider protection as to refoulement is highlighted by the Court. Also, the Court implemented the “real risk” criteria in a “rigorous” manner so that it can strike a balance between the risk of ill-treatment and threats to national security (the applicants are suspected terrorists). [4]It is possible to say, “the severity of suffering” and “the real risk” are two parameters implied by the Court while determining the scope of non-refoulement under Art 3. In Peers v Greece, the Court held that the purpose to humiliate is not required to prove the humiliating effect of the expulsion; the severity of the degrading and humiliating treatment is carried out to detect violation of Art 3. In Tyrer v UK, the threshold for inhuman treatment is based on the infliction of bodily harm and violation of physical integrity. The Court’s approach in these two cases reveals that the severity of the suffering is the common denominator, regardless of the infliction’s type, while ascertaining the consequences of an expulsion order.
“The real risk threshold” is an additional criterion that is established by the Court. Implementation of this criterion reveals that asserting a claim about violation of non-refoulement principle to the Court is an effective way in refugee law.[5] When an expulsion order is at stake, the “real risk threshold” and the presence of “substantial grounds” for believing that the applicant encounter inhuman or degrading treatment are required. Thus, the Court considers the direct and imminent consequences of an expulsion order to decide whether the refugee in question will be deported or not deported. According to the Court, if a refugee face “a real risk of” being subject to inhuman or degrading treatment contrary to Art 3 by returning to their origin, the State would violate its obligation under Art 3.[6] The Court implements “exceptional circumstances” and “vulnerability” sub-criterions to meet the “substantial grounds” threshold. D v UK may be a landmark case that criticizes the relation between the refugee’s situation and the enforcement of the expulsion order.[7] The Court held that the applicant’s situation must be addressed in the framework of “exceptional circumstances” since the applicant was an AIDS-suffering, and their illness was in the critical stage. According to the Court, if the expulsion order was enforced, the applicant would face inhuman treatment contrary to Art 3. The legal reasoning of the Court, in this case, shows that the Court assesses the real risk threshold by basing general and personal circumstances of the applicants. In D v UK, the situation of an AIDS-suffering critical patient was accepted as worse situation than the generality of the people. However, in Bensaid v UK, the Court did not find a violation of Art 3. The situation of the applicant who was suffered from schizophrenia was not be considered decisive to meet the “exceptional circumstances” threshold, by the Court.
- Refugee Protection Under Art 8 of ECHR: A Refugee Struggle As A Loss Of Home
Art 8 of the ECHR regulates the right to respect for private and family life. While guaranteeing the rights which are provided by Art 8, a balance must be struck between some other factors and conditions and individuals’ physical and moral integrity since Art 8 is not an absolute right unlike Art 3 of ECHR. The “home” is a place that consists of an individual’s both private and family life, and their links to the “life”. An individual enjoys their existing home peacefully under the protection of Article 8. It means that Art 8 prohibits any unlawful interference to the right to existing home peacefully. The expulsion orders’ impacts on refugees’ lives are not only related to violation of Art 3; many other problematic consequences have been occurred on their lives by the expulsion orders. Refugees have social and physical links in the territory of the Contracting State, they have pursuing a life while constituting a “family” and a “home”. The ECtHR interprets the “physical and moral integrity” provided by Art 8 differently from case to case.[8] In D v. UK, the ECtHR relying on the applicant’s return to their origin country would not violate Art 3, it constitutes a violation of Art 8 since the applicant’s illness was not severe enough to be concerned with their return. In other words, the Court held that there is a violation of Art 8 since the consequences of the expulsion order did not satisfy the threshold of Art 3. It shows that the Court tends to interpret the adverse impacts of expulsion orders on refugees’ private life as a breach of “physical and moral integrity.” In my opinion, it is problematic and disadvantageous that the court decides on a violation of Article 8 only if the threshold of Article 3 is not reached. However, Art 8 may be contextualized with Art 3, violation of the right to respect for family and private life must be criticized independently according to the concrete case.
- Conclusion
In conclusion, the ECHR does not contain any article which directly protects the refugees, but the ECtHR has developed a jurisprudence while interpreting the articles to provide protection against the enforcement of the expulsion orders. The refugee applicants who are suffered from the refoulment mostly has asserted claims about violations of Art 3 and Art 8. Therefore, the Court’s implied the non-refoulement principle corresponded with the protection of Art 3 and Art 8.
- Bibliography
‘CHAHAL v. THE UNITED KINGDOM’ <https://hudoc.echr.coe.int/fre#{%22fulltext%22:[%22Chahal%22],%22itemid%22:[%22001-58004%22]}> accessed 19 May 2021
Chetail V, Are Refugee Rights Human Rights? An Unorthodox Questioning of the Relations between Refugee Law and Human Rights Law (Oxford University Press) <https://oxford.universitypressscholarship.com/view/10.1093/acprof:oso/9780198701170.001.0001/acprof-9780198701170-chapter-2> accessed 17 May 2021
‘D. v. THE UNITED KINGDOM’ <https://hudoc.echr.coe.int/fre#{%22itemid%22:[%22001-58035%22]}> accessed 18 May 2021
Lambert H, ‘The European Convention on Human Rights and the Protection of Refugees: Limits and Opportunities’ (2005) 24 Refugee Survey Quarterly 39
Neslihan Özkerim Güner, ‘Avrupa İnsan Hakları Mahkemesi’nin Mültecilerin Haklarının Korunmasındaki Rolü’ (2016) 2 The Journal of Migration Studies 215
Veronika Flebar, ‘Can Extreme Poverty Protect Against Refoulement? “Economic Refugees” in the Light of Recent Case Law of the European Court of Human Rights’ [2015] Conference Paper: Human Rights and Migration,University of Nottingam 4
[1]Vincent Chetail, Are Refugee Rights Human Rights? An Unorthodox Questioning of the Relations between Refugee Law and Human Rights Law (Oxford University Press) <https://oxford.universitypressscholarship.com/view/10.1093/acprof:oso/9780198701170.001.0001/acprof-9780198701170-chapter-2> accessed 17 May 2021.
[2]Neslihan Özkerim Güner, ‘Avrupa İnsan Hakları Mahkemesi’nin Mültecilerin Haklarının Korunmasındaki Rolü’ (2016) 2 The Journal of Migration Studies 215.
[3]Veronika Flebar, ‘Can Extreme Poverty Protect Against Refoulement? “Economic Refugees” in the Light of Recent Case Law of the European Court of Human Rights’ [2015] Conference Paper: Human Rights and Migration,University of Nottingam 4.
[4]‘CHAHAL v. THE UNITED KINGDOM’ <https://hudoc.echr.coe.int/fre#{%22fulltext%22:[%22Chahal%22],%22itemid%22:[%22001-58004%22]}>
accessed 19 May 2021.
[5]H Lambert, ‘The European Convention on Human Rights and the Protection of Refugees: Limits and Opportunities’ (2005) 24 Refugee Survey Quarterly ,39.
[6]Veronika Flebar (n 3).
[7]‘D. v. THE UNITED KINGDOM’ <https://hudoc.echr.coe.int/fre#{%22itemid%22:[%22001-58035%22]}> accessed 18 May 2021.
[8]Lambert (n 5).
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