Although there is not a specific provision expressly granting the “right to asylum” in the European Court of Human Rights (ECHR), Article 1 of the European Convention of Human Rights is unequivocal in stating that everyone is protected by its provisions regardless of their nationality and that no discrimination whatsoever is allowed. Moreover, all “high contracting parties” are under an obligation to respect this principle. Yet, it has become apparent that it is an overstatement to assume that member states in Europe fully abide by it when it comes to the sensitive topic of immigration. This is particularly true amidst the backdrop of a growing tide of nationalist sentiments in Western Europe, whereby migration is increasingly becoming a matter of crisis. France, for instance, ratified the Convention in 1981, yet recent events suggest otherwise.
A Blatant Disregard for the ECHR
Asylum seeker in France, “M.A.”, lodged an appeal with the ECHR to overturn the French verdict that rejected his request for asylum in 2021 and that issued a deportation order to return him to his country of origin, Uzbekistan. Indeed, individual victims are allowed to file complaints with the ECHR whenever all domestic remedies have been exhausted. As a response, the ECHR issued an interim measure determining that asylum seeker M.A. could not be returned to his home country on the grounds that he might face torture in Uzbekistan because of his political opinions, and thus imposed the prohibition of refoulement under Article 3 of the 1951 Refugee Convention. Indeed, it is worth noting that ECHR interim measures are sought where an individual is at a substantial risk of harm to their life or a risk that they may suffer torture, inhuman, or degrading treatment in the event of arrest or detention in violation of Articles 1 and 2 of the Convention.
Yet, the response from France appeared inadequate when French minister of the right, Gerald Darmanin, blatantly defied the ECHR’s ruling on M.A.’s expulsion. His unfounded justification was that Uzbekistan was a safe place for him to be returned to and that he did not face any risk of prosecution. As a result, M.A. was deported to Ubzekistan on November 14, 2023. Indeed, Article 46 of the Convention regards the ECHR as a court of last instance whose judgments are binding. Namely, the countries concerned are under an obligation to comply with and implement the ECHR’s rulings. Therefore, a significant act of defiance was committed in France. Evidence of this is the fact that, upon returning to Uzbekistan, M.A. was promptly arrested and detained by the local authorities.
In the first place, the expulsion measure issued by France appears unsubstantiated, as it was based on the adjudication that M.A. posed a serious threat to public order under Article 36 (1) TFEU. The underlying reason behind this was that he was suspected by French authorities of being part of the jihadist movement. While he denied that accusation, he had never actually been granted the right to a fair trial, nor had he ever been interrogated for his alleged radicalization. Again, in complete disregard of Article 6 of the ECHR Convention. Nonetheless, he was under the surveillance of the French authorities because of those accusations and was even placed under house arrest since March 2022.
On December 7, 2023, France’s highest administrative court, “the Conseil d’Etat,” intervened and expressed disapproval over the government’s decision to deport the refugee, emphasizing that such a decision was in violation of an interim measure of the ECHR. Therefore, such a deportation order was illegal for representing a “manifestly ill violation of fundamental freedom.” The French Court did not hesitate to order the minister Darmanin to take “all necessary measures” to undo their action and return M.A. back to France.
What This Says About Contemporary Europe
In response to all the proclaimed sentences and indications of the highest court authorities, Minister Darmanin stuck to his stance and did not remotely express regret for his lack of acknowledgment of fundamental human rights in Europe. In full disregard of the law, the Minister declared on December 13, 2023, that he aims to do everything in his power to prevent asylum seeker M.A. from returning to France. Indeed, Darmanin was involved in the recent immigration provision, “Law to Control Immigration, Improve Integration,” promulgated by France in January 2024. Among other things, the statute imposed tougher border control and expulsion measures that accelerate the process of deporting foreigners considered a serious threat to public order, like M.A., and it imposed several other obstacles to family reunifications, access to welfare benefits, and the ius soli (birth-right citizenship). As such, Darmanin regarded this legal advancement as “revolutionary.”.
This event says a lot about the consequences of the advancement of the far right in Europe, as this scenario is most certainly not just representative of France. The migrant crisis in Europe is no news, as it has been one of the most pressing issues for EU member states since 2015. Events of this kind do not seem to stop even following the recent efforts of the “New Pact on Migration and Asylum” from the EU, which aims at reforming the asylum and migration system as well as increasing solidarity in view of the full respect of the human rights of asylum seekers in compliance with international and European human rights instruments.
The far right is consistently spreading all over Europe, and so is its populist anti-immigration rhetoric. It is not surprising that what happened in the M.A. case represents the very first time that France has ever expelled an asylum seeker, in evident contradiction with a ruling by the ECHR. If these radical tendencies continue to grow, the defiance of the absolute highest human rights court in Europe, the ECHR, could become more commonplace, posing fundamental challenges to refugees’ rights. This is particularly concerning when these political parties allow such far-right rhetoric to shape aggressive immigration policies, such as the above-mentioned controversial immigration provision in France. Indeed, populist rhetoric is aimed at increasing public apprehension and shifting their focus towards the fear of the migrant. This translates into the proliferation of xenophobic and racist sentiments, which are undoubtedly favored by right-wing European leaders.
It is imperative to advance international efforts to remind EU member states of the European collective moral compass as well as of their responsibility to uphold and enhance international security in terms of the refugee crisis in Europe. Indeed, the New EU Pact on Migration and Asylum appears to be a manifestation of European unity and gives hope for a gradually transformative shift in the governments’ approach to refugees’ rights, even where far-right parties are in power.
By The European Institute for International Law and International Relations
