FELIX RONKES AGERBEEK: The political debate around migration is, once again, heating up. At the center of that debate are people. People who've come for work, for love, maybe because they're fleeing violence. People trying for all sorts of reasons to build a life somewhere else than the country where they were born. 

But increasingly, the debate is not just about migrants themselves, but also about the legal institutions that oversee how governments treat them. The European Court of Human Rights has come under growing political pressure, with some political leaders claiming that the case law should be “rebalanced" because it protects “the wrong people”. 

Not everyone embraces that rhetoric, but it is no longer coming only from the political fringes. This May, member states of the Council of Europe are expected to adopt a political declaration on migration and the European Convention on Human Rights. 

So what is this moment really about? Is it a meaningful attempt to recalibrate the system? Or is it just nativist political noise? 

In this episode, I speak with Eva Severin. She's a researcher at the KU Leuven Center for Public Law. She has written extensively on migration and human rights law, including for the Strasbourg Observers blog, where she is part of the editorial team. 

Together, we focus on a simple question that often gets lost in the debate: what does the Court's case law actually say? 

Here is Eva Severin.

Eva, welcome to the podcast. 

EVA SEVRIN: Thank you so much. I'm very grateful for being here. 

FELIX RONKES AGERBEEK: When we talk about migrants or third-country migrants, who are we talking about? 

EVA SEVRIN: A migrant is any person who leaves their place of usual residence to settle, and this can be either temporary or permanently, across the border of their own country. Sometimes migrants can also be understood as people who migrate within their own country, but when we speak about migrants in the European context, we most of the time refer to people who travel across borders, so international migration. And then this third country national or this third country migrant adds an additional layer to this definition, if that is what we can call it. It's someone who does this movement from a place that's beyond an EU state. So their place of habitual residence or their place of nationality, their country of nationality, is not an EU member state. 

FELIX RONKES AGERBEEK: If we look at the practical reality, is there such a thing as a typical migrant story? 

EVA SEVRIN: I think the answer to that is very decisively no, because this is about movement of people. And people can move for a variety of reasons. And so this diversity in reasons why people move covers quite a diverse range of possible situations. So there's no such thing as a single story here.

FELIX RONKES AGERBEEK: Before we get into the legal issues, I would like to look at some statistics and what they show. According to the latest figures from Eurostat, when we're talking about legal migration, around 6.5% of the EU population are third country nationals. So we're talking about roughly 29 million out of a total population of 450 million. What is their main reason for coming to the EU? 

EVA SEVRIN: The first reason why people come here are work reasons. So they have some work authorization or some job lined up for which they travel to EU countries. And secondly, they are following someone or joining someone that is already legally or regularly present in an EU country. So this is family reunification. And that means we're talking about a partner, we’re talking about minor children, and in some cases, dependent relatives or others who are dependent on us. 

FELIX RONKES AGERBEEK: So just to be clear, of those 29 million who are residing legally in the EU, the vast majority have been given a residence permit because of work reasons. 

EVA SEVRIN: Yeah, and countries, states themselves, decide on how many people they admit. They have quite a lot of leeway on actually deciding who gets this work permit. So this is quite still nationally controlled. I mean, EU law has directives on this, but the actual decision on how many people states allow, this is still quite strongly a national decision.

FELIX RONKES AGERBEEK: You mentioned family reunification, and that's the second most common reason for granting a residence permit. We are talking about core family, right? 

EVA SEVRIN: Yeah, we're talking about our partner, our wives, our husbands, our children who are minor or people who are really dependent on us. Aside from the fact that family reunification is only limited to certain family members, There's other conditions added to that as well, like income, like accommodation, like healthcare. So just to add that, that's very important as well, and often a high barrier for family members to actually travel with people with a residence permit. 

FELIX RONKES AGERBEEK: Now, another well-known reason why people might want to come to Europe is to seek international protection. So refugees, asylum seekers. But if you compare that to those who come here for work or family reunification, that's really a much, much lower number, isn't it? 

EVA SEVRIN: Much lower. 

FELIX RONKES AGERBEEK: Yeah, so I'm mentioning this because if you just follow the media and the political debate, you might think that that is really the lion's share of third country migrants. But that's not quite the case. And another thing that shows also from these figures is that, of course, the number of people that seek international protection fluctuates. It depends on wars and on the situation in the world. But if you look in the longer run, the number remains actually relatively low and relatively stable. 

EVA SEVRIN: More or less stable, yes. 

FELIX RONKES AGERBEEK: Yeah, so if you're just going over the numbers like I did in preparation of this episode, then it's quite striking that they really don't substantiate the mass migration narrative that recently seems to dominate public discourse. And then you might say, okay, but now you're looking at legal migrants. What about irregular migrants? And of course, the numbers are a bit more complicated there. But again, if we take the Eurostat figures at face value, the number of non-EU citizens estimated to be illegally present in the EU is roughly 1.3 million. 

EVA SEVRIN: Yeah, which is quite small. 

FELIX RONKES AGERBEEK: Yes, certainly if you compare it to the overall population of the EU. But even if you compare it to the number of regular migrants, it seems to be a relatively small group. 

EVA SEVRIN: And also a group that remains roughly stable. There's two big research projects, the Clandestino project before, now the MIrreM project that builds onto that, and this also shows that also irregular migrants, like [with] asylum seekers, undocumented migration is also not a field where we see this sudden peak or boom or sudden crisis that is unprecedented. 

FELIX RONKES AGERBEEK: So I did want to raise this to contextualize a little bit what we're going to talk about. But I did not invite you to speak about statistics. 

EVA SEVRIN: No…

FELIX RONKES AGERBEEK: …We are going to delve into the legal issues… 

EVA SEVRIN: Also, because this is such a problematic field, right? Whenever we look at migration law, these statistics are used as reasons to legitimate the laws, often to restrict rights of people, to add additional detention grounds, etc. This is often related to numbers. And then people who know much more about numbers than I do put the brake on this. And I think a very clear example of this is about undocumented migrants. This idea of like a low return rate is often given as a reason to detain irregularly residing migrants, have wider possibilities to restrict privacy rights, for example, home visits, reading mobile phones, things like that. All these things are often legitimized by this idea that it's so difficult to return people. But that is statistically a very fraught number. And so that's also why I think it's very important to be cautious. But the overall lines, I think, are really important, right? It's what you say. The majority of people that we know are in the EU with regular residence permits. From that group, the main reason is work-related, second family reunification. A small minority are seeking international protection, are fleeing persecution or other serious forms of harm. And also from this 29 million, a small minority makes up undocumented migrants.

FELIX RONKES AGERBEEK: If we look at the legal framework governing migration or the status of migrants in the EU, then we have national law, we have EU law. But I'd like to focus on the European Convention on Human Rights, the ECHR. How does the Convention fit into that legal landscape? Does it mention migrants? Does it regulate migration issues? 

EVA SEVRIN: There's some mention of migrants, but not a lot. So the European Convention of Human Rights does not consist of a right to asylum, a right to subsidiary protection, a right to a residence permit. These things are not specifically in the convention and the Court does not read them in it either. However, what is in the Convention are these general rights. And if we look at Article 1 of the ECHR, we see that the rights, these general rights, are applicable to anyone who falls under the jurisdiction of a state that is a member of the Council of Europe. And the fact that “everyone” is used and not merely citizens was a deliberate choice. The aim was to include everyone, even those who, in the legal sense, cannot be regarded as legally resident. At the same time, the drafters did state that certain rights cannot be guaranteed to aliens without any restrictions. And so this has led to the few specific inclusions that we see of migrants in the convention. For example, we see Article 16, where there's the most explicit mention, I think, which states that Member States can impose restrictions on all the political activities of aliens, notwithstanding Article 10, 11, 14. So this is like an additional ground to restrict. And then we see Article 5 in the first paragraph of Article 5, which is the right to freedom. It's about detention. And this part of this article adds a specific detention ground for migrants. So these are the two explicit references to migrants where States are given extra leeway to restrict. Of course, later, we see one specific right for migrants being added. Article 4 of Protocol 4, which is the prohibition of collective expulsion. 

FELIX RONKES AGERBEEK: So, if we want to make that a bit more concrete, what kind of cases are we then talking about? What kind of issues arise under the convention?

EVA SEVRIN: Concretely, the cases that traditionally arise in front of the court relate to extradition cases, expulsion cases, summary returns at borders, immigration detention, which also is quite frequent, reception conditions of asylum seekers, family reunification, and effective remedies in any of these contexts. So these are the traditional situations in which the rights that are part of the Convention, like the prohibition of torture, the right to family life, the right to private life, the prohibition of discrimination, the right to an effective remedy, Article 13, have direct relevance. So that is where the European Convention comes in. 

FELIX RONKES AGERBEEK: And do these cases represent a significant part of the Court's caseload? 

EVA SEVRIN: No, no. Less than 2% of the applications, so these are all the cases that people bring to Strasbourg, concern migration. And 92% of cases are dismissed. Only around 450 applications ever has led the court to finding a human rights violation in migration-related matters. That's only about one in a thousand, as the Court emphasized, only one in a thousand of the total number of applications held by the Court. 

FELIX RONKES AGERBEEK: So I don't want to seem overly obsessed with numbers, but that's really a very small part of the court's overall case law. And moreover, States basically win the vast majority of these cases. 

EVA SEVRIN: Yes, and it's maybe important to note that the court has an overall quite high dismissal rate. It declares a lot of applications inadmissible, the vast majority of cases. But the overall dismissal rate is 82% of cases. So we're seeing, and once again, I am not a person who is perfect in statistics, so I don't want to make any claims. But... 82% versus 92% seems to be a difference. 

FELIX RONKES AGERBEEK: Clear. Now, this was, again, just for context. Of course, if we really want to understand the impact of the case, but we do need to look at what those cases say. 

EVA SEVRIN: Exactly. 450 cases can still have a massive impact on national states and their legal frameworks. So this low number doesn't have to be overemphasized. But I think to put it in perspective, it still says something. 

FELIX RONKES AGERBEEK: All right. About a year ago, nine European leaders issued a joint letter openly criticizing the European Court of Human Rights for its case law in the field of migration. Could you describe what's in that letter? 

EVA SEVRIN: Yeah, this letter caused quite a lot of consternation, and I think rightly so. It was quite unprecedented and echoes quite dominant narratives on migration. This idea that there's this mass migration, that there's a threat coming from these migrants, that a group of them are really dangerous and criminals, and then human rights curtail the State’s power to ensure the safety of the people. 

FELIX RONKES AGERBEEK: Yeah, that's how I read the letter as well. It really casts migrants as a source of danger, and it claims that the European Court of Human Rights is “protecting the wrong people”. And what our societies need is less judicial oversight and more powers for governments so that they can protect us against them.

EVA SEVRIN: Exactly, which is a very specific narrative and a narrative that has been offered by the far right, that started there, and that is becoming increasingly normalized. These fears about migrants as a cultural threat. And so it's quite disheartening to see this letter build on the same ideas or focus on these aspects of migration and then link that to human rights. 

FELIX RONKES AGERBEEK: The initiative to write the letter was spearheaded by Denmark and Italy. Other leaders also came on board. Austria, Belgium, the Czech Republic, Estonia, Latvia, Lithuania, Poland. Their leaders all signed this letter. What exactly were these nine leaders asking for? 

EVA SEVRIN: In the letter, we see three specific demands – I don't know how appropriate the word “specific” here is, but as specific as the letter gets… The three specific demands are broader authority to remove criminal foreign nationals, second, greater freedom to track criminal migrants who cannot be removed, and then third, the ability to take action against third countries that exploit migration. So these are the three claims that we see. 

FELIX RONKES AGERBEEK: One of the earliest critical responses to the letter came in a piece you wrote together with Harriet Kennedy for Strasbourg Observers. What, in your view, is most problematic about the latter? 

EVA SEVRIN: I find problem with the way in which this is going, the political dialogue, and it's not evidence-based. None of these countries have published specific reports or specific documents detailing which cases they're talking about, what instances they're talking about, in what ways their migration law has actually been impacted by the European Court of Human Rights. And if we look at the case law of the Court, there seems to be a disconnect between these accusations, almost, that are made by governments and what the Court actually does. 

FELIX RONKES AGERBEEK: You were not the only one to criticize it. The Secretary General of the Council of Europe, Alain Berset, issued a direct response to the letter warning against politicizing the Court. And the Commissioner for Human Rights, Michael O'Flaherty, was even more direct, criticizing the letter for making evidence-free claims and for mischaracterizing migration and the Court's case law. And he expressly called on the nine governments to reconsider their position. Did they?

EVA SEVRIN: The overall answer would be no. After this letter, an entire political mobilization process started – lobby work by countries that were signatories of the letter. And in December, there's a meeting convened by Alain Berset, a classic diplomatic informal meeting. But it led to the decision adopted by all 46 Council of Europe governments that a declaration should be issued, a political declaration, that sets out how States think the Convention should be interpreted in light of current migration challenges. So this declaration is scheduled to be published in May. It's not binding. It cannot formally change the Convention. For that, you would need a protocol. That would be the 17th Protocol. And that route is currently not being taken. So what we have now is this fast-paced, short road where we're making a political declaration on the Court's interpretation of the Convention in migration situations. 

FELIX RONKES AGERBEEK: But also by December, the countries that wrote the initial letter had managed to rally many other countries to their cause, right? With lots of them now echoing the same views.

EVA SEVRIN: True, true. At the same time that we had the press conference announcing this road to the declaration and everything, we also had a joint statement of 27 Member States that took on a much harsher tone, that was much more critical, and that was much more a direct continuation of the letter of the nine. So this is quite a large change: from 9 to 27. And it shows, I think, the general popularity of these ideas. At the same time, it's important to note that it's also not everyone. Several large European Union countries did not sign this joint statement. For example, France, Germany. But still, it's a big change over a short period of time.

FELIX RONKES AGERBEEK: When you look at the letter of May and the statement of December, and then the work that was subsequently done in preparation of the political declaration, if you piece all of that together, then what are the main themes? Where do governments seem to think that the Court should reconsider its approach? 

EVA SEVRIN: The main themes are, one, extradition or deportation of foreigners, both under Article 8 and Article 3. And two, the development of innovative solutions. That's about whether we can use cooperation with third countries to either get less entries into European territory or make it easier to deport people. And on top of that, the issue of instrumentalization of the European borders. This is a very big issue right now. We also have three major Grand Chamber cases pending in front of Strasbourg, where Eastern European countries are complaining about how Belarus has instrumentalized migrants, pushed migrants towards European countries as a political medium. 

FELIX RONKES AGERBEEK: I want to stay for a while with the first of these themes, because this really seems to be the heart of the argument. That human rights law is stopping governments from deporting people they believe should be removed. So where exactly do Convention rights begin to limit deportation powers?

EVA SEVRIN: Deportation can be halted on the basis of human rights in two classic examples, broadly speaking. There are some exceptions to this, but we'll focus on these two. It's under the prohibition of non-refoulement, which for Strasbourg is under Article 3, the prohibition of torture and inhuman and degrading treatment. So this means that a person cannot be deported to a place where they would face a real risk of serious human rights violations. For example, an Uyghur person who should not be deported back to Xinjiang when they know there's a warrant out for them, for example. Or an Afghan woman who cannot be deported back to Afghanistan. These are all Article 3 potential non-refoulement issues. But there's also a different human rights ground that might create a barrier to deportation. And this is the right to family or private life. Migrants who are residing in a country, their ties to that country or their presence of family members or children might also impact the ability of countries to deport a person.

FELIX RONKES AGERBEEK: Before we go deeper into this, I want to push a bit on the assumption that when deportations fail, it's mainly because of human rights law. Is that actually true in practice? 

EVA SEVRIN: No, no. We've now talked about human rights barriers to return. But if we're talking about the possibility of return, these are a minority, a very small percentage of all cases in which return is not possible or in which forced return is not possible. So as the European Commission itself has analyzed, most of the time there are practical obstacles such as cooperation with third countries who refuse to take back people or don't issue documentation, etc. So this idea that migrants or even criminal migrants cannot be deported because of the European Court of Human Rights is often also not the case. And I don't know if you've read it, but we also did research, with professors Ellen Desmet and Thomas Spijkerboer, on what it means in the Belgian context. Because Belgium is one of the signatories of both the joint statement and the open letter. And so we've looked at all the decisions in which, in the Belgian context, return decisions were declared void. And only in a minority of cases was this because of either an Article 3 or Article 8 ground. In the majority of cases, Article 3, Article 8, the ECHR, was not relevant at all. 

FELIX RONKES AGERBEEK: Can we look at the case law on the expulsion of migrants with a criminal conviction? Because this seems to be the center of gravity of the criticism directed at the European Court of Human Rights. And I don't think that's a coincidence. The image of migrants committing violent crimes looms large in public discourse, even though, and I do think this should be said, many studies find no statistically significant link between migration and overall crime levels. Public perception, at the very least, systematically overestimates any such link. But setting that aside for a moment, and if we focus on Article 8, what does the Court's case law say about expelling migrants with criminal convictions?

EVA SEVRIN: Under Article 8, States can expel someone who has a right to family life, a right to social life, as long as it's provided by law, and it's with a legitimate interest. So if it's necessary in a democratic society. The Court will quite easily accept that a State wanting to deport someone because they might be a danger to the society serves a legitimate aim. But then it will do this proportionality test. In the cases where States want to deport a person who has committed crimes, the Court has actually developed criteria to check whether this would be proportionate that already factor this element in. And so the criteria that are taken into account, one of them is the crime that was committed, the severity of the crime that was committed. This means in practice that the more severe crimes a person has committed, the less likely it will be that their expulsion will be halted by Article 8. 

FELIX RONKES AGERBEEK: And does the Court draw a distinction between migrants who are lawfully resident and those who are irregularly present?

EVA SEVRIN: Yes. One of the factors taken into account is that if a person was irregular while they built up their social life or family life, only in rare occasions will Article 8 halt the expulsion of someone. 

FELIX RONKES AGERBEEK: You mentioned that the Court developed criteria to guide the proportionality assessment in these cases. These are the so-called Üner criteria. Could you take us through them? 

EVA SEVRIN: So the Üner criteria are the nature and the seriousness of the offense committed by the applicant. So that's the first. Then the length of the applicant's stay in the country. How long have they been there? Then the time elapsed since the offense was committed and the applicant's conduct. So what the applicant actually did during the period in which the offense was committed and then the decision to expel this person. The nationalities of the various persons concerned. The applicant's family situation. How long have they been married? How close is this person's family life? Well, he has two minor children in the country, but does he actually see these minor children? Does he actually, or she, do they actually play an active role in these people's lives? Did the spouse know about this offense at the time that this person entered the family? All these parts are about the ties of the family relationship. And then the presence of children is quite important. Are there minor children there? What is the best interest for the well-being of these children? That's really important. And also here, the Court will take into account the seriousness of the difficulties which the children would be likely to encounter if they join the person to go abroad. Because the fact that there are children, sometimes people think this is a blanket protection from removal. This is not even the case. The Court might say, well, actually, the entire family unit can just move abroad. So these are all things that are taken into consideration. It's not an exhaustive list, but these are all criteria that States must take into consideration in order to assess whether this would be a proportionate decision.

FELIX RONKES AGERBEEK: So how does this balancing work in a concrete case? Maybe we can use Üner itself as an example. 

EVA SEVRIN: Üner was a Turkish national who grew up in the Netherlands, who committed very serious crimes. He committed manslaughter. He committed various other offenses. And the Netherlands wanted to deport him. However, he had very strong ties to the Netherlands. He had been there for a very long time. He had a partner. He also had children in the Netherlands. But weighing all these criteria against each other, the Court did allow the expulsion. 

FELIX RONKES AGERBEEK: In many of these cases, the Court seems to be less concerned with second-guessing the outcome than with scrutinizing how the national authorities reached it. This is sometimes called process-based review. Could you say something about that? 

EVA SEVRIN: Process-based review has become more and more prominent since 2015, 2016. It's something that we see over the entire spectrum of case law in the Court. And in the expulsion of migrants under Article 8, the Court has explicitly prioritized this procedural approach. So the main line of the Court is: if national courts have already done this careful analysis, analyzed the facts, applied the relevant human rights standards, sufficiently weighed all the various interests, then the Court will not substitute its own decision. Only when there are strong reasons that have been demonstrated, the Court might substitute its own view. 

FELIX RONKES AGERBEEK: Could you give an example of how the Court applies this process-based review and then finds a violation because national courts have not done a proper assessment? 

EVA SEVRIN: Yeah. An important example of this is Savran v. Denmark. Savran was a Turkish national with paranoid schizophrenia who had lived in Denmark since he was very young. He was six when he came to Denmark and he had lived continuously there. He did commit a very serious violent offense, fatal assault, and for that reason Denmark wanted to expel him and issue a permanent re-entry ban. And so what did the Court do? The Court looked at how Denmark weighed all the various interests of Savran against the Danish interest in expelling him because he was so dangerous. And the Court said, well, if I look at your way of balancing this, if I look at your own analysis, you completely leave out that he suffered from a serious mental illness. And you completely leave out his current condition, the progress he made, the fact that the mental illness reduced his culpability, which was recognized in the criminal procedures, and you left this out. So we're finding an Article 8 violation because your way of making this analysis was not complete. That doesn't mean that Savran will never be able to be deported or people in a similar situation like Savran would never be deported. But that Denmark, when it does its assessment, has to check this person has, for example, schizophrenia. How did that impact his behavior and how is he doing now? What does it mean for the future? It can't be completely ignored. 

FELIX RONKES AGERBEEK: So if I understand you correctly, the Court is insisting on an individualized assessment, one that looks at the specific circumstances of each case. And that cuts both ways. Having a child, for example, does not automatically shield someone from expulsion. But equally, the seriousness of an offense does not automatically justify deportation. The point is that these factors have to be weighed together in each individual case. Is that right? 

EVA SEVRIN: Exactly. You have to see the applicant as a full human being and weigh their interests, their needs, their potential vulnerabilities, and the impact that state action might have. Because not having this is not seeing migrants as full human beings. There is no other way to put this. That doesn't mean that the state action might not be legitimate, but there has to be some conscious consideration of it. The person has to be visible as a human rights holder.

FELIX RONKES AGERBEEK: And perhaps this is where part of the tension lies. In Denmark, for example, the government recently proposed a reform that would automatically allow for the expulsion of foreign nationals who are sentenced to at least one year in prison. 

EVA SEVRIN: And I think any form of this automatic decision-making would be problematic to the court under Article 8. 

FELIX RONKES AGERBEEK: Now, you did say that in exceptional cases, the Court goes beyond merely verifying whether the national court considered the relevant criteria and instead questions the outcome of the assessment itself. Could you give an example of a case where the Court effectively substituted its own assessment for that of the national court? 

EVA SEVRIN: I think an example of a case in which the court almost or fully substituted its own review, so its own balancing of all the criteria, is Maslov v. Austria. Maslov is a case about a Bulgarian national who moved to Austria when he was very, very young, so when he was six years old. He grew up in Austria. He had strong social, cultural ties, everything there. And then when he was a juvenile, so when he was still very young, he committed a series of offenses which were mainly non-violent property crimes. And based on this, the Austrian authorities issued a permanent expulsion and re-entry ban. This is a case where the Court did substitute its own balancing exercise. And they say that here, very serious reasons would be required to justify the expulsion of a settled migrant who arrived as a child and who committed these crimes as well when he was a child. So all these elements are very important to the Court. And I think that shows that especially when it's about children who grew up somewhere, in these cases, strong reasons need to be [present]. And that was not the case for Maslov. 

FELIX RONKES AGERBEEK: Okay, so this is the Court's general approach for migrants who are lawfully resigning in the country and who have been convicted of a crime. 

EVA SEVRIN: Voila. And then for the persons who are irregularly residing, even if someone has not committed any crimes, the Court will only in exceptional circumstances find that the right to social or family life makes a barrier to return. And why? The idea is that the person knew they were irregularly residing in the country when they built up these interpersonal relations or these family ties, which gives their right or their claim to it less importance in relation to the State's claim. And again, what I said before, the procedural approach means that if the national courts did their own assessment, the Court will take a step back.

FELIX RONKES AGERBEEK: I guess the question that I keep circling back to is: what would rebalancing the case law on the expulsion of migrants with criminal convictions mean in practice? What is it that governments seem to want to do, but are currently not allowed to do under Article 8?

EVA SEVRIN: Yeah, I think you've put your finger here on a very painful spot, because Article 8 already inherently takes into account States' interests. Then the procedural review adds this layer of deference. So there is already quite a lot of deference. So when you're asking me what do States actually want, to me, it seems what, for example, the Danish proposal would be, it's to allow this automatic decision-making, automatic deportation decision-making, which is basically just a blank check. A rebalancing would mean that public security reasons would be a blank check. And I think anyone who studies rule of law issues, human rights issues, democracy issues knows that blank checks based on national security threats is never a good idea. 

FELIX RONKES AGERBEEK: We've been talking about Article 8. I want to turn now to Article 3 and to the principle of non-refoulement, the idea that states cannot remove someone to a place where they face a real risk of serious ill treatment. To start at the beginning, what does Article 3 say? 

EVA SEVRIN: It's a very short article. It says no one shall be subjected to torture or to inhuman or degrading treatment or punishment. For the Court, this means that States cannot expose someone to a real risk of ill treatment. And non-refoulement is actually just an application of this general principle. The Court first read this obligation under Article 3 in the Soering case, which is a very old case from 1989, that States cannot expose someone to ill-treatment by deporting, expelling, or extraditing them to a place where there are substantial grounds that there is a real risk of severe ill-treatment, so torture, inhuman, or degrading treatment.

FELIX RONKES AGERBEEK: Can you give a concrete example of the kind of situation in which the court would say that deportation violates Article 3? 

EVA SEVRIN: Article 3 non-refoulement is absolute. This means that there are no lawful exceptions, no derogation is possible, and it protects everyone, regardless of personal conduct. So also, in principle, criminals. And this was precisely, this was at the heart of Chahal v. UK. It's about an Indian citizen who is a Sikh separatist who was in the UK, and he was perceived as a threat to the national security as a terrorist. But the Court said there is a lot of evidence that Sikh separatists risk torture when they are returned to India. And here the Court very explicitly says, look, we understand that the fight against terrorism and everything is very difficult and very important. But having an absolute prohibition of torture means that we cannot balance this against the public interest. So if you want to protect the public interest from Mr. Chahal, you need to do other things than submitting him to torture. There are plenty of measures a State can take. What you cannot do is expose him to torture, regardless of how unpopular the person might be. 

FELIX RONKES AGERBEEK: Chahal is an example involving risk of torture. But Article 3 also covers other forms of serious harm. For example, extremely poor prison conditions, if the harm is severe enough. Could you say something about that? How does the Court determine where the threshold lies?

EVA SEVRIN: So under Article 3, we have three different types of treatment, right? We have torture, we have inhuman and degrading treatment. If we look at it as a pyramid where torture is on top, the most severe. And then underneath that is inhuman and degrading treatment – whether they have an internal hierarchy or not is debatable. But anyways, these are different types of treatment. And so we can see inhuman and degrading treatment as also the outer edge of Article 3, right? The Court has specifically said: not any type of ill-treatment is prohibited. States can ill-treat people. I'm sure that's not grammatically correct, but they can do it. They just cannot do it once it raises a certain threshold of severity. And so from the moment that threshold is reached, they cannot do it under any circumstance. And so what these states are saying is: this threshold has to be high because if it's not, then it will devaluate the prohibition. It will make it impossible in practice. 

FELIX RONKES AGERBEEK: But in the abstract, that argument does not sound completely crazy. If Article 3 is absolute, if there can be no exceptions to it, no balancing, then you can see why states argue that the threshold has to stay very high. Otherwise, almost any hardship risks being pulled into Article 3. And even the court itself talks about Article 3 as setting a kind of minimum floor for human dignity. So where do you think that argument goes wrong?

EVA SEVRIN: The minimalist argument here, or the way in which states are raising it here, is not a good faith way of raising this argument. The minimalist stance is put forward to enable expulsion as much as possible. And I think if you look at some of the high-profile examples of where states said Article 3 is keeping us back from deporting really serious criminals, these were not cases about the fringes of Article 3. Two quite famous examples are Abu Qatada, which was a huge case in the UK and which led to so much protest, but also a lot of political criticism of the Court, and Trabelsi versus Belgium. Because in Othman/Abu Qatada – to be honest, that was not a fully Article 3 case – the risk would be that he would be convicted based on evidence gathered through torture. And in Trabelsi, the issue would be that he cannot be deported to Tunisia again for torture reasons. So it shows that it's not about the outer edges. It's really about the most serious of all, the clear cases of torture. 

FELIX RONKES AGERBEEK: Yeah, so if that's true, then some of these governments are not really objecting to the margins of Article 3. They're objecting to the idea that the risk of torture should block deportation at all. There is another version of the critique, though. One that says the Court has gradually extended Article 3 into areas that are less clear-cut. And one case that critics of the court have pointed to in this context is Paposhvili v. Belgium. So if we try to steel-man the argument that the court has interpreted Article 3 too broadly, Paposhvili seems like a good place to start. Could you walk us through that case and what the Court decided? 

EVA SEVRIN: Yeah, so Paposhvili, this is about the medical expulsion cases. And it's one of the only concrete examples of case law that we see mentioned in the joint statement, for example, of the 27 governments. Paposhvili v. Belgium was about a Georgian national who was suffering from leukemia, advanced leukemia, and a variety of health concerns that were linked to this. Deporting him to Georgia would cause a rapid decline in his health situation, which would cause intense human suffering or a significant reduction in his life expectancy. So there the Court says you cannot deport him. If there is a real risk of a serious, rapid, and irreversible decline in health, which would result in either intense suffering or a significant reduction in life expectancy, then a migrant might also not be expelled. So this threshold remains exceptionally high. And I think we can see this in practice. It may come to no surprise that post-Paposhvili, we have had zero violations found by the European Court.

FELIX RONKES AGERBEEK: So far, we've been looking at areas where the European Court of Human Rights has already developed substantial case law. But another major flashpoint is what States describe as the instrumentalization of migration. And what's striking there is that, at least for now, the Court has not yet really developed a body of case law on these practices. Important pilot cases are pending, but in a sense, the political critique here seems almost preemptive, directed at case law that's not yet there. So perhaps we leave that topic aside for now. But I do want to turn to another area that has become increasingly central, what governments often call “innovative solutions”, efforts to externalize asylum and migration control through cooperation with third countries. So what is this about exactly? 

EVA SEVRIN: It's not new, of course, but it's an evolution that we are seeing, I think, more and more in migration policies, where States are basically trying to shift migration issues outside of their own territory and reduce legal responsibility for the migrants. Externalization initiatives can be used to prevent people from entering the EU by having, for example, centers where their asylum claims will be processed outside of EU territory, or they can also be used to expel people more easily. An example of that are the return hubs. The idea behind return hubs is that there would be an agreement with a third state with which the migrant might have absolutely no link at all that would be willing to then accept these irregular migrants. 

FELIX RONKES AGERBEEK: This idea of externalizing migration control, it raises all sorts of human rights concerns. We saw that in the UK Rwanda asylum plan, which was ultimately struck down by the Supreme Court, but also in arrangements between Italy and Libya. And the Council of Europe Commissioner for Human Rights even described these kinds of arrangements as a gateway through which the rule of law can be eroded. And yet, if I understand the Strasbourg case law correctly, the European Court of Human Rights doesn't say that cooperation agreements with third countries are unlawful as such. Rather, it says that states cannot transfer people there without seriously assessing the risk they may face afterwards, right? 

EVA SEVRIN: Yeah, this follows directly also from the non-refoulement principles that we've already discussed. But the key case here is Ilias and Ahmed v. Hungary in 2019, where the situation was that there were two Bangladeshi nationals who entered Hungary through Serbia. They declared their asylum claims inadmissible and removed Ilias and Ahmed to Serbia. Hungary considered Serbia a safe third country without doing actual assessment. Hungary ignored certain known deficiencies in Serbia, and they didn't do this individual assessment that was necessary. And so the Court says the act of exposure, the act of expulsion can violate Article 3, and it finds a violation of Article 3 here because the failure to properly assess the risk violates Article 3. The issue here is the risk of chain-refoulement: the risk that Ilias and Ahmed would be pushed further back from Serbia or returned to unsafe countries. This makes sense, but it also creates a difficulty. It does create a difficulty in how easy it is to create these return hub schemes or externalization schemes.

FELIX RONKES AGERBEEK: I want to come back to where we started. We are seeing growing political pressure on the European Court of Human Rights, including the declaration that is now being prepared. What impact do you think this could have? 

EVA SEVRIN: The declaration, of course we'll see, it's not binding, but I'm a bit afraid that it will further embed narratives that are overly simple, that misrepresent cases, that put human rights as something that makes migration policy impossible. Whereas I think it's very dangerous to make Strasbourg symbol to that. And I don't think that is fair. But I think if we look at the recent cases the Court decided, they show that the Court is consistently applying its existing principles and not bending over, so to say, to this political pressure. It shows a Court that is not being swayed. 

FELIX RONKES AGERBEEK: I think it's fair to say that political leaders dealing with migration are under real pressure. And I want to take them seriously when they say that they want to deliver safety and stability for their citizens. But what I increasingly see in migration politics today is a turn toward a logic of deterrence. And that logic seems to push governments toward harsher and sometimes openly inhumane measures directed against migrants. Measures that courts will inevitably block from time to time. And then, when that happens, the response is often to turn against the courts themselves. Do you see a way out of that cycle?

EVA SEVRIN: It's quite difficult to envision a way out. I think it's important to hold on to this idea that without human rights, that situation would be very different for all of us in many ways, and also for migrants, but the situation would not be that different migration policy-wise.

FELIX RONKES AGERBEEK: All right. I think that's a good place to end. So, final question. What are three books that you would recommend to the audience? 

EVA SEVRIN: The first one is the one that's most explicitly on theme. It's Seyla Benhabib, The Rights of Others. It has really informed my way of looking at the role of the law regarding undesirable groups. It also builts on Hannah Arendt's work. To me, it's quite a profound way of looking at the philosophy behind law and behind human rights and what Courts do. And then my other two are less pretentious and outside of the academic sphere. It's Ali Smith's Spring, because I love Ali Smith. She's a UK writer. Spring is a magical story about someone who unexpectedly ends up in an adventure with someone who is an asylum seeker who escaped from a UK detention center. And so Spring also has a migration narrative woven through it. She has a very clear awareness of what's going on politically in the world. And she has a very hopeful approach to this. I really, really love her work. My third book is Olga Togarczuk, Primeval and Other [Times]. Olga Togarczuk is my other favorite writer. I love all her work because it's very in touch with the long arm of history in some ways. It feels very history heavy, but at the same time, it's very human and a bit magical, a bit strange. Olga Togarczuk uses a lot of magical realism in her work. And I really, yeah, I really love this.

FELIX RONKES AGERBEEK: Eva, thank you so much for your time.

EVA SEVRIN: Thank you so much, Felix, for having me. I really appreciate it.