Rules of different European organisations
In a previous step of this course week, we heard about the legal regime for people in need of international protection under international law. In this context, we also mentioned European rules. It is to those that we now turn our attention. In doing so, we will see that, on the regional level, migration into and within Europe is regulated by a combination of rules of the Council of Europe and of the European Union in particular.
To begin with the Council of Europe (CoE), the European Convention on Human Rights and Fundamental Freedoms (ECHR) recognises the right to emigrate (Art. 2(2) of Protocol no. 4 to the ECHR) and, more generally, the right to liberty and security (Art. 5 ECHR). Further, we heard in the previous step that Art. 3 ECHR includes the non-refoulement principle. The article provides very simply: ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment.’ It is easy to understand why this must include the prohibition of expulsion or the return of a refugee to the frontiers of territories where this person’s life or freedom would be threatened on account of race, religion, nationality, membership of a particular social group or political opinion. The right to non-refoulement has been recognised in the decisions (in legal terms called ‘jurisprudence’ or ‘case law’) of the Court of Human Rights in Strasbourg, beginning with a case that did not concern refugees, namely Soering v. UK (Application no. 14038/88, judgment of 7 July 1989).
Note that there is also a number of other Council of Europe Conventions that deal with certain aspects of asylum law.
The text of, and the Strasbourg jurisprudence on, the ECHR have strongly influenced the law of the European Union (EU). First, according to Art. 6(3) TEU the fundamental rights as protected by the ECHR are part of the Union’s general principles. They are also reflected in the Union’s own Charter of Fundamental Rights (CFR) which was proclaimed in 2007. For example, Art. 18 CFR guarantees the right to asylum. According to Art. 53(3) CFR, in so far as the Charter contains rights that correspond to rights guaranteed by the ECHR, the meaning of those rights is the same as those laid down in the Convention. This does not, however, prevent the EU from granting more extensive protection. In other words, the Convention rights are a mere minimum standard. The Court of Human Rights and the EU’s Fundamental Rights Agency (FRA) have jointly produced a Handbook on European Law relating to asylum, borders and immigration.
Secondly, over time the Union adopted specific legislation in the field of asylum, including the so-called Dublin rules, according to which it is in principle the EU Member State of first entry of an asylum seeker that is in charge of the asylum procedure. The historical origin of the Dublin regime is a Convention concluded by the Community Member States of that time in Dublin, Ireland, in 1990, outside the regime of what was then Community law. The Dublin rules were subsequently incorporated into Union law.
Thirdly, there are the Union’s so-called Schengen rules, about the abolition of internal border controls and the protection of the outward borders of the Union. Again, the historical origin of the Schengen regime is a Convention concluded outside the regime of what was then Community law. This happened in the place Schengen in Luxembourg, in 1985. There was also the Schengen Implementing Convention. Only half out of the then Community Member States were parties to these Conventions. The Schengen rules were subsequently incorporated into the Union law, though even today they do not apply to all Member States. Though not technically asylum law, these rules are also relevant for asylum seekers, as they need to cross borders in the attempt to reach their preferred country of destination.
We will take a closer look at the Union’s asylum and border rules in the next steps of this course week.
Read more about the Soering v. UK case and its legal context on the website of the Amsterdam Law Forum.
For further reading in the text of the ECHR and its Protocols, consult the relevant website.
Consult the list of all CoE Conventions on the internet.
Browse the Handbook on European Law relating to asylum, borders and immigration produced jointly by the Court of Human Rights and the EU’s Fundamental Rights Agency (FRA).
 FRA, Handbook on European Law relating to asylum, borders and immigration, 2nd ed. 2014.
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