‘The experiences of migrants demonstrate that human rights are not universal and that they do not address the needs of the most vulnerable.’
Human rights law, designed to protect the needs of an individual against a State, can overlook the unique experiences of migrants. Political discourse and stringent standards in the rights protection may, therefore, fail to address the needs of the most vulnerable. This is exemplified in the context of deportation and/or extradition in relation to Article 8 and Article 3 ECHR. This essay will (1) discuss the Article 8 and Article 3 of the Convention in relation to the experiences of migrants (2) explore the statement in relation to Article 8 and (3) explore the statement in relation to Article 3. Overall, it can be said that Article 8 fails to protect migrants to a greater extent than Article 3, but each right has room for development.
Convention Rights and Migrant Experience
Article 8 and Article 3 both have significant impacts on the experiences of migrants, especially in deportation and/or extradition contexts. The former stipulates a right to respect for family and private life, with the latter encompassing an obligation on the state not to subject or endanger anyone to torture or inhuman or degrading treatment. As Carens (2013) notes, such rights carry a “moral obligation [of] a state towards citizens”. Typically, when an individual is facing deportation or extradition, they are in most need of protection. Origin countries, especially in the case of migrants convicted of criminal offences, are unlikely to receive them with warmth and kindness. Article 3 is a non-derogable right, but it is not absolute. In contrast, Article 8 is a qualified right, phrased in a manner which suggests that private and family life need to exist before a violation can be found. Establishing family or private life under stringent tests often disadvantages vulnerable migrants and their families. Immigration is a politically charged topic, with migrants sometimes viewed as non-people and often treated differently socially and legally. This political pressure is apparent in Strasbourg, whereby a high level of deference is awarded to member states’ sovereignty. Despite human rights advocating individual protection over public interests, Thym (2014) notes “immigration law has long been characterized by its orientation towards the public interest” and a great margin of appreciation is given to states, especially in an Article 8 context (as affirmed in Unaune). Douzinas (2000) intimates the point, “'human rights and national sovereignty, the two antithetical principles of international law were born together, their contradiction more apparent than real”. Therefore, it is possible, when these two fundamental value sets conflict, state sovereignty may prevail at the expense of human rights, leading to a lack of universality in protection for migrants under both rights.
Article 8, whilst ideologically universal, may not be so in practice. Article 8 tends to favour those who are more integrated into the host state than those who are not, thus questioning the universality of the right. Factors considered in cases involve language, community ties, employment and length of time (AA v UK; Silvenko). Such focus on integration overlooks the individual difficulties of the migrant experience. Furthermore, the right only protects ‘family’ in a limited sense against deportation, as seen in Samsonnikov. Peroni (2010) powerfully critiques the Court’s view of family life, saying it privileges a particular cultural view that disadvantages some family lifestyles, thus carrying “negative egalitarian implications”. Such restrictive criteria comes during a time where family “based on intergenerational care, whether or not in the same household, is a widespread social model” (Bornat et al. 2004). For example, in Khan the Court believed family life required additional elements of dependence. Draghici (2014) criticizes the tendency to equate “family life with disability-induced vulnerability” and believes the Court is “unduly dismissive of normal family dynamics”. There is a further failure to protect vulnerable women, who are partners of migrants facing deportation, as they are often “expected to follow her partner to his country of origin” (Swart, 1990). In Uner, for example, the Court found no violation regarding deportation. One must question the fairness of punishing a whole family through uprooting them, simply due to the acts of one member. Betty de Hart believes that the interests of such women are evaluated by Courts tainted with underlying assumptions about gender and ethnicity, casting doubt on the right’s ability to protect vulnerable migrant families. In a deportation context, the reason Article 8 is harsh may be “symptomatic of Strasbourg’s deference to state sovereignty in the realm of migration” (Desmond). Overall, the Court’s jurisprudence has been criticised for downplaying the difficulties applicants and their families would suffer when facing deportation. Dembour (2003) believes the Court legitimises violent action by national States in this way. She contends this attitude strengthens the “national paradigm”, which contradicts the assumption that human rights embody the victory of individual liberty over national sovereignty, thus indicating the needs of the vulnerable may be overlooked in favour of the public interest. Public interest considerations are already embodied in UK domestic law, in s.117B NIAA 2002. Dembour laments the fact that the ECtHR “created to protect human rights, condones the destruction of people’s lives by…the States”. Whilst an evocative term, Dembour illustrates her poignant use of the term “destruction” through cases of Moustaquim, where an applicant entered into deep depression after his deportation and Baghli whereby judges admitted that the 10-year exclusion order could “ruin” the life of the applicant. Such cases exemplify the potential of Article 8 to fall short in its protections to migrants.
On the other hand, it can be argued that Article 8 does adequately protect the vulnerable. Interestingly, Thym argues that the narrow definitions of family life is of little consequence and do not “translate into a diminution of human rights protection”. Whilst Courts will be deferential to state sovereignty, they must still apply a comprehensive three-part test: there must be a legal basis, a legitimate aim and satisfy a proportionality test. Some argue that the private life limb of Article 8(1) offsets the restrictive family life provision. Yet, Desmond suggests the distinction between the two limbs is “insidious”. The Court is generous to applicants who are vulnerable such as those who committed offences are juveniles (Maslov v Austria). Yet Dembour found that in 2015, there were only 9 findings of a violation since Maslov, highlighting the limited scope for success in practice. There is a further normative question, doubting whether migrants who have committed offences are indeed ‘vulnerable’ and in need of protection. Whilst it could be argued the individual themselves has crossed a moral threshold, their innocent family is typically in most need of protection. In this way, the right often falls short in protecting the needs of the most vulnerable migrants, and a more empathetic approach is desirable.
On the one hand, Article 3 may not always protect the needs of the vulnerable. The standard is high – the applicant must prove beyond all reasonable doubt that deportation carries a substantial grounds for believing there is a real risk of subjection to inhuman treatment (Soering v UK). Many migrants who do not have the means to challenge their deportation through courts could fall short of such a standard. Migrants also may not be protected, especially in domestic frameworks with the Courts aware of anti-immigration sentiment in government and public opinion. For example, the applicant in Sanchez (2020) argued unsuccessfully before the domestic courts that his extradition would violate Article 3 because of the possibility of life without parole sentence in overcrowded, abusive US prisons. This case has been communicated to ECtHR yet is still an insight into how stringent standard of the right is. Furthermore, the convoluted case law around the relativist or absolutist approach to Article 3 has further led to cases such as Ahmad and Wellington, which in Martin’s opinion “runs fervently against the idea that Article 3 is absolute”. The victims of such contradicting jurisprudence are ultimately vulnerable migrants, who might find their plight swallowed up by academic debate as to the nature of Article 3.
Conversely, Article 3 addresses the needs of the vulnerable to a much greater extent than Article 8. Some would argue it has gone above and beyond to protect individuals, regardless of immigration status. It has stretched the concept of inhuman and degrading treatment to include even “the foreknowledge of death at the hands of the State” (Al-Saadoon) and lowered the standard of proof for medical treatment deportation cases, an explicit example of the Court making concessions for the most vulnerable. Furthermore, Article 3 has saved people from the death penalty – such as the German National in Soering. One may question the ‘vulnerability’ of persons accused of committing the most severe crime to man – murder - and may contend that Article 3 over-protects such individuals. Yet, it is simplistic to divide people into vulnerable or non-vulnerable category based on the offences they commit, without any relevant context. As Bryan Stevenson 2014 noted, “each of us is more than the worst thing we’ve ever done”. Even a murderer may be a vulnerable individual in need of protection and therefore, the operation of Article 3 to protect such individuals is necessary. Overall, Article 3 is more universal and protective of the vulnerable than Article 8, and this may be linked to the nature of the right itself and the severity of the potential issues it shields victims from. Article 8 may protect oneself from being uprooted, inconvenience, hardship and emotional distress, but Article 3 may protect a life. It is therefore not surprising that the latter has less stringent requirements and more scope for protection.
Overall, it can be argued that that migrants experience a different, lesser, form of protection under human rights law, perhaps explained by the political nature of immigration and a tendency by the Courts to defer to state sovereignty. As a result, the needs of the most vulnerable can sometimes be overlooked. Whilst Article 8 protects migrants’ rights to a lesser extent than Article 3, numerous factors could explain this difference including the inherent nature of the right itself and what it protects. Overall, in relation to both rights “a firmer stance is needed” (Dembour, 2014). It is submitted that Dembour’s powerful conclusion should be followed.