Doctoral student, University of Tampere
”Irregular migrants cannot be left outside the scope of the interpretation of the ECtHR and international human rights organs. In the future, the ECtHR will be obliged to draw a clearer line when it comes to irregular migrants and their treatment”.
The international and European human rights system has a solid base in the European Court of Human Rights (ECtHR) for interpreting human rights declared in the European Convention on Human Rights (ECHR). European policy‑makers and stakeholders refer to the ECtHR’s case law whenever dealing with issues that could be open to various interpretations or when following a certain policy or recommendation, to mention just a few instances. Migration issues have received attention in the ECtHR’s case law for many years. However, the status of irregular migrants remains an issue that should acquire more visibility in the ECtHR’s case law.
Based on a commonly agreed principle in international law, States have a right to control the entry and stay of aliens on their territory. This refers to the States’ wide margin of appreciation when cases concern rights that require financial resources like economic and social rights. However, the ECtHR’s case law is especially charged due to the nature of the cases it has assessed, since they often have confluences to the type of cases that require special actions from the State. Economic and social rights often require that a State, under its positive obligations, secures effective protection for the fulfilment of these rights for individuals. Thus, the ECtHR has to be cautious in not overstepping national authorities and altering their margin of appreciation.
Undocumented migrants are disaggregated from legal forms of migration as they are not entitled to stay or reside in the country in which they are living. However, increased migration – resulting from humanitarian crises and poverty, for example – is indeed taking more varying forms by producing legal as well as illegal forms of migration. The ECtHR has to date recognized “illegal” migrants such as asylum seekers and victims of trafficking. These illegal forms of migration have thus received only limited or loosely linked attention in the ECtHR’s case law. People undertaking illegal or unaccepted forms of migration are referred to by numerous terms, such as undocumented, irregular, illegal, or non-regulated migrants. The group referred to as irregular migrants is often related to criminal activities in the ECtHR’s case law, and we may take note of cases that deal with the trafficking in persons, for example, where a migrant’s residence status has been irregular. What still remains quite unacknowledged in the ECtHR case law is the comprehensive vulnerable status of such a migrant, who is basically excluded from the law and society, not only as a consequence of criminal activities, but also for reasons such as the possession of falsified IDs, expired visas or residence permits, and attempts at family reunification.
What makes an irregular migrant’s situation problematic in the view of international human rights norms and standards is the fact that they are not entitled to protection provided by the State, since legally they often do not belong to any administrative category. Migration can be controlled only at arrival, but social and economic problems often occur after a migrant settles in the country. As for the State, it has to take into consideration both the international human rights standards that it has adopted and implemented through international human rights treaties and its own national legislation, which in principle should ensure a minimum level of protection based on the core of every single human right. Nonetheless, being unable or reluctant to identify these kinds of migrants makes this sometimes an overwhelming task.
In addition, the capacity of European countries to take migrants varies, thus cooling the relationships between the countries and European community‑related thinking. The present political atmosphere and the economic crisis are also making their contribution to the decision‑making and case law of the ECtHR, making it extremely challenging to create guidelines for interpreting international human rights standards for irregular migrants. This is visible, for example, in European States where the political atmosphere heats up whenever there is a discussion on the entry and right to stay of irregular migrants.
Today, States may withdraw from securing the social and economic rights of migrants, as they have to simultaneously manage issues of their own, such as unemployment, economic restraints, etc. The situation is especially difficult for irregular migrants that are excluded from the law and society and are unwanted by their destination country. States are struggling to guarantee rights for both their own nationals and the vulnerable, often unwanted migrants, and this is creating political tensions. From the migrant’s point of view, the situation remains hopeless whatever the reasons for migration may be. However, the unauthorized migrant might also regard their vulnerable status as still preferable compared to his/her previous life. Nevertheless, States are concentrating simultaneously on restricting migration as a whole.
Acknowledging the prevailing atmosphere and policies, the ECtHR has had to make clear political choices: the ECtHR needs member States to fulfil their international human rights obligations, and accordingly it has been careful in the interpretation of such an area that traditionally belongs to a member State’s sovereignty. Although the ECtHR has not acknowledged the situation, it must be well aware of the fact that there will always be irregular migration besides the desired forms of migration, and thus there is a continuous human rights issue.
In its case law, the ECtHR measures how the rights declared in the ECHR apply to the case that it is assessing. The ECHR is a living instrument, which means that the ECtHR’s interpretations are responsive to updates and adapt to present day conditions. Owing to this, there should be a notable continuum in the ECtHR’s case law when it interprets the ECHR. Leijten argues that the problem of the ECtHR is that it tends not to explicitly define the scope of a right in the ECHR or what obligations a right establishes for the States. Regardless of the criticism the ECtHR has faced, it still has a solid role as a reconciler. Nevertheless, the significance of the ECtHR is proved by the binding force of its judgments (ECHR article 46) and the development in asylum law based on the case of M.S.S. v. Belgium & Greece (2011), for example.
Irregular migrants cannot be left outside the scope of the interpretation of the ECtHR and international human rights organs. In the future, the ECtHR will be obliged to draw a clearer line when it comes to irregular migrants and their treatment. When interpreted through the ECtHR, there is an essential need to develop the case law concerning irregular migrants. Due to the ongoing European migration and refugee crisis, one can predict that there will be more cases brought to the ECtHR yet be aware of the fact that the rise in migration flows does not necessarily mean an increase in complaints made to the ECtHR. Whatever the future development in the number of cases, the fact is that the ECtHR needs more cases of irregular migration to assess to be able to manage comments and guidelines that could better advise the member States on how to operate with these irregular migrants in view of the international human rights norms and standards.
Leijten, Ingrid. “Defining the scope of economic and social guarantees in the case law of the ECtHR”, In Brems, Eva & Gerards, Janneke (eds.) Shaping rights in the ECHR, pp. 109−136. Cambridge University Press, New York 2013.
McNevin, Anne. Contesting citizenship: Irregular migrants and new frontiers of the political. Columbia University Press, New York 2011.
 These migrants are in a vulnerable position due to unauthorized entry or stays that are criminalized in most member States, who therefore often recognize these migrants as prohibited migrants. See, for example, A.H. & J.K. v. Cyprus (2015), p. 79., and K.F. v. Cyprus (2015), p. 48.
 For example, Rantsev v. Cyprus & Russia (2010) and C.N. v. the UK (2012).
 This community‑related thinking in controlling migration has even stretched to talking about “Fortress Europe”. See McNevin 2011, p. 102.
 For example, the changes made to Finnish Immigration Law / Ulkomaalaislaki 301/2004, see. HE 170/2014 vp, which made it restrictive to obtain a residence permit in certain situations (see, for example, pp. 26–27 and paragraph 51 §).
 The ECtHR has constantly stated that member States have, under a firmly established principle of international law, the right to control the entry and stay of aliens and non-nationals. See, for example, Riad & Idiab v. Belgium (2008), p. 94.
 Leijten 2013 pp. 114−115, 117.
 For instance, M.S.S. v. Belgium & Greece (2011) gave an incentive to the Dublin III regulation (EU) No. 604/2013.
 For example, the European Committee of Social Rights has carried out decisions concerning the difficult status of undocumented migrants. See DCI v. the Netherlands (2009) and FIDH v. France (2004).