Migration control and human rights: understanding the limits set by the European Convention
This thematic paper provides an overview of case law from the European Court of Human Rights (the Court) concerning the entry and expulsion of non-nationals, with particular attention to key issues shaping public and political debate. The first part addresses entry, covering requirements for the applicability of the European Convention on Human Rights (the Convention), especially with regard to extraterritorial migration controls, border procedures and the prohibition of collective expulsion. It also examines detention and reception conditions, including those in border areas.
The second part focuses on expulsion and analyses several critical issues: the risk of ill-treatment faced by individuals subject to expulsion; implications for family rights; and concerns related to severe illness of non-nationals facing removal. Each chapter contains a section that reviews other international standards and the case law of international courts and United Nations treaty bodies, offering a valuable comparative perspective.
The paper demonstrates that the Convention imposes only minimal restrictions on domestic migration policies. The Court has generally been attentive to state sovereignty and the principle of subsidiarity. Notably, neither the Convention nor its protocols grant non-nationals a right to asylum or a right to enter, but they explicitly permit detention for migration control purposes. Article 3 (prohibition of torture) and the principle of nonrefoulement establish absolute prohibitions, although the Court applies high thresholds for their applicability. Finally, regarding qualified rights under Article 8 (right to respect for private and family life), the Court provides domestic courts with a broad margin of appreciation, conducting process-based reviews.
