PROTECTING MIGRANTS UNDER THE EUROPEAN CONVENTION ON HUMAN RIGHTS AND SOCIAL CHARTER PROTECTING PROTECTING MIGRANTS UNDER THE EUROPEAN CONVENTION ON HUMAN RIGHTS AND THE EUROPEAN SOCIAL CHARTER This handbook, produced by the Directorate General of Human Rights and Rule of Law, is a practical tool for legal professionals from Council of Europe member states who wish to strengthen their skills in applying the European Convention on Human Rights and the case law of the European Court of Human Rights in their daily work. PROTECTING MIGRANTS UNDER THE EUROPEAN CONVENTION ON HUMAN RIGHTS AND THE EUROPEAN SOCIAL CHARTER A handbook for legal practitioners PREMS 231712 GBR Yannis Ktistakis www.coe.int/justice © Photo: Yamina Heinrich © Photo: Yamina PROTECTING MIGRANTS UNDER THE EUROPEAN CONVENTION ON HUMAN RIGHTS AND THE EUROPEAN SOCIAL CHARTER A handbook for legal practitioners Yannis Ktistakis Council of Europe Publishing The opinions expressed in this work are the responsibility of the author and do not necessarily reflect the official policy of the Council of Europe. All requests concerning the reproduction or translation of all or part of the docu - ment should be addressed to the Directorate of Communication (F-67075 Strasbourg Cedex or [email protected]). All other correspondence concerning this publication should be addressed to the Support to Human Rights National Implementation Unit, Human Rights Policy and Development Department, Directorate of Human Rights, Directorate General of Human Rights and Rule of Law. Layout: Jouve, Paris Cover design: Documents and Publications Production Department (SPDP), Council of Europe © Council of Europe, February 2013 Printed at the Council of Europe Yannis Ktistakis is Lecturer in Public International Law at Democritus University of Thrace (Komotini, Greece) and visiting professor at Bogˇaziçi University (Istanbul, Turkey) and the National and Kapodistrian University (Athens, Greece). Prior to this, he was a legal consultant to the Greek National Commission for Human Rights and the Marangopoulos Foundation for Human Rights in Athens. His research interests are in domestic and European human rights law. He has defended more than 50 cases before the European Court of Human Rights. This handbook was researched and written with the assistance of Evgenia Giakoumopoulou (LLM International Law of Human Rights and Criminal Justice, Utrecht University, Netherlands). Acronyms Legal instruments CAT Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment CEDAW Convention on the Elimination of All Forms of Discrimination against Women CPED International Convention for the Protection of All Persons from Enforced Disappearance CRC Convention on the Rights of the Child CRPD Convention on the Rights of Persons with Disabilities ECHR Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights) ESC European Social Charter ESC(r) European Social Charter (revised) EU Charter Charter of Fundamental Rights of the European Union ICCPR International Covenant on Civil and Political Rights ICERD International Convention on the Elimination of All Forms of Racial Discrimination ICESCR International Covenant on Economic, Social and Cultural Rights ICRMW International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families UDHR Universal Declaration of Human Rights I nternational bodies CPT European Committee for the Prevention of Torture EComHR European Commission of Human Rights 4 | Protecting migrants under the ECHR and the ESC ECSR European Committee of Social Rights ECtHR European Court of Human Rights EU European Union ICJ International Court of Justice ILO International Labour Organization PACE Parliamentary Assembly of the Council of Europe UN United Nations UNDP United Nations Development Programme UNGA United Nations General Assembly UNPD United Nations Population Division | 5 Contents Introduction I. The standards applicable to migrants a. International human rights standards ............................................. 13 b. Council of Europe standards ........................................................... 13 c. Standards on equality and non-discrimination ................................ 14 II. Seeking migration in a member state of the Council of Europe a. Immigration controls in conformity with human rights standards .... 17 b. State jurisdiction ............................................................................ 19 c. Rights of migrants during the entry process and reception ............. 20 d. Examination of asylum seekers’ claims .......................................... 21 III. Detention of migrants a. Restrictions on freedom of movement which amount to deprivation of liberty ........................................................................................ 23 b. Rights of migrants during administrative detention ......................... 24 c. Length and conditions of detention ................................................. 32 d. Detention of children and vulnerable groups................................... 37 e. Judicial review and compensation.................................................. 42 IV. Living conditions and economic, social and cultural rights a. Extreme poverty and respect for human dignity .............................. 47 b. Right to housing ............................................................................. 48 c. Right to health and to social and medical assistance ...................... 54 d. Right to education .......................................................................... 59 e. Right to work and protection of migrant workers ............................ 61 V. The right to family reunification a. European standards on family reunification .................................... 71 b. Notion of family .............................................................................. 75 VI. Expulsion of migrants a. Substantive rights of migrants ........................................................ 79 b. Procedural rights of migrants ......................................................... 97 | 7 c. Collective expulsions ...................................................................... 104 d. Voluntary returns ............................................................................ 106 VII. Application before the European Court of Human Rights a. When can migrants apply? ............................................................. 107 b. Can migrants apply for interim measures? ..................................... 114 VIII. Collective complaints before the European Committee of Social Rights a. Who can apply?.............................................................................. 117 b. Admissibility criteria ....................................................................... 118 c. Benefits and disadvantages ............................................................ 118 References ........................................................................................ 121 Index of cases ................................................................................... 125 Table of conventions and other legal instruments ............................... 133 8 | Protecting migrants under the ECHR and the ESC Introduction Migrants are people who move from their country of usual residence or nationality to another country. A migrant may move for economic or educational reasons, to flee from natural disasters caused by climate change or to escape persecution, human rights abuses, threats to life or physical integrity, war and civil unrest. Usually the terms “mi- grants” and “aliens” are used synonymously, although there is a slight difference: an alien is “an individual who is not a national of the State in which he or she is present” (UNGA 1985, Article 1). The reason of their displacement is directly linked to their international legal protection. If they flee their country to escape persecution in the sense of Article 1A of the 1951 Convention relating to the Status of Refugees (Geneva Convention), they are called asylum seekers or refugees and are entitled to the special – increased – protection guaranteed by the aforementioned international convention, which has been ratified by 145 states so far. However, if they leave their country for any other reason, they are de- fined as migrants and do not enjoy special, only general, protection under international human rights law. In 2009, the total number of international migrants was estimated at 213.9 million people or 3.1% of the world’s population (UNDP 2009, p. 21). The ILO has established that around 90% of them are composed of active economic migrants and members of their family, and that only about 7% or 8% of refugees or asylum seekers (ILO 2010, pp. 1-2). There are three main categories of migrants: (i) regular migrants, (ii) undocumented migrants and (iii) other migrants in need of protection. Regular migrants are people who enter a country other than that of their usual resi- dence or nationality, after having obtained authorisation to enter from the country of destination. Undocumented migrants are those without a residence permit authorising them to stay in the country of destination. They have either entered illegally or with an entry permit that has now expired. It is to be noted that the UNGA has for some time now advocated the use of the term “non-documented or irregular” as opposed to “illegal” (UNGA 1975, paragraph 2) because