Between State Sovereignty and the Right to Liberty of Irregular Migrants

Regional human rights systems aim to monitor, promote and protect human rights in several geographic regions around the world (IJRC, 2016). Traditionally, regional human rights bodies such as the European Court of Human Rights (“ECtHR”) and the Inter-American Court of Human Rights (“IACtHR”), have been addressed by scholars and practitioners as secluded systems. The main reasons justifying this tendency have been the different institutional settings in which both courts operate. However, recently, scholars have high-lighted the pressing need to conduct comparative studies on the work and impact of regional courts of human rights, as they are facing similar substantive human rights challenges. This need is particularly acute with respect to the way regional courts of human rights address vulnerable groups, such as irregular migrants (Engstrom, 2016).

According to the United Nations, migrants in an irregular situation are currently amongst the most vulnerable groups in need of advanced human rights protection (UN, 2016). Even though irregular migrants have human rights qua human beings, their lack of legal status or recognition in a State has made them especially susceptible to the denial of basic human rights, including their right to personal liberty (Kotsioni, 2016). In 2012, UN Special Rapporteur on the Human Rights of Migrants, Mr. François Crépeau, reported that irregular migrants are particularly exposed to a lack of safeguards against illegal, arbitrary and unnecessary deprivations of liberty, both in the context of criminal and administrative proceedings. In fact, detention has been progressively used by governments as a tool to deter irregular migration and to facilitate the return of irregular migrants to their countries of origin (Sampson & Mitchell, 2013). Further, infractions of migratory norms have been steadily criminalized in many countries in Europe as well as in Latin America and the Caribbean (Ceriani & Freier, 2015; Provera, 2015). Thus, infractions such as entering and remaining in a territory without permission have become criminal offences. Simultaneously, irregular migration has been increasingly framed as a threat to security, and detention of irregular migrants has been specifically allowed on grounds of national security and public order, without criminal charges or trial (Guia et al, 2016). Consequently, detention is being used with respect to irregular migrants as both punishment, and as part of their expulsion processes.

In spite of the special vulnerability of migrants in an irregular situation, the phenomenon of irregular migration has been mostly studied in terms of its socio-economic impacts (UN, 2016). Likewise, scholarly attention has remained largely focused on the study of policies stemming from the legislative and executive powers of States to control migration (Betts, 2010). In contrast, the role of regional and national judiciaries in this matter remains broadly unexplored, specifically, the extent to which regional courts of human rights constitute effective judicial forums to enhance the protection of the right to personal liberty of irregular migrants by means of a judicial dialogue with sub-regional courts. A comparative analysis of the work and impact of the ECtHR and the IACtHR in protecting the right to personal liberty of irregular migrants appears fundamental, as the protection of this right has been recognized to be a shared challenge by policy makers on both sides of the Atlantic. Indeed, on June 2009, the Heads of State and Government of the European Union (“EU”) and Latin America and the Caribbean (“LAC”), formally launched the “Structured and Comprehensive bi-regional Dialogue on Migration” , a strategic partnership between both regions to develop a common dialogue on migration. A central issue identified by this framework has been precisely, the need to jointly enhance the protection of irregular migrants’ human rights, due to the rising criminalisation of migration-related offences and the expansive use of detention.

An overall analysis of the landmark case-law of both regional courts of human rights reveals that on one hand, the ECtHR has given States an extensive margin of discretion to decide on the legal status of non-nationals and their proneness to be detained, by relying on the sovereign right of States to control migration . On the other hand, the IACtHR has progressively limited the discretion of States when interpreting arbitrary deprivations of liberty in the migration context. For example, the IACtHR has highlighted that national authorities must verify in every individual case the possibility to apply less restrictive measures than detention with regards to irregular migrants . This parameter, in contrast, has been recently adopted by the ECtHR only with respect to extremely serious cases, for instance when the superior interest of children is at stake . Remarkably, however, under the general interpretation held by the ECtHR, the detention of an irregular migrant does not require States to justify the necessity of this measure as long as deportation proceedings are in place.

In addition, the IACtHR has established that every detention entails the right of an irregular migrant to have recourse to a judge or court in which the lawfulness of his/her detention is reviewed within reasonable time, and detention should be subject to maximum time-limits at the domestic level . Contrariwise, for the ECtHR, these safeguards are not considered requirements to comply with the European Convention of Fundamental Human Rights and Freedoms . Consequently, in interpreting and imposing legal standards to protect the right to liberty of irregular migrants, the ECtHR has afforded States an extensive margin of discretion when compared to the IACtHR. The previous difference has contributed to a lack of policy coherence in both regions regarding legal standards of human rights protection which -besides jeopardizing the protection of irregular migrants’ human rights-, could hinder the effective development of regional collaboration frameworks aiming to jointly approach irregular migration.

In order to assess the effectiveness of regional courts of human rights, two case studies were conducted on the U.K. and Argentina, to elucidate whether the pertinent regional case-law has been able to “empower national courts to hold governments (executive and legislatures) to their international commitments” in this matter (Slaughter, 2000; Scribner et al, 2009). The findings show that regional courts of human rights have played a fundamental role in empowering national courts to endorse State compliance with human rights norms when irregular migrants have been deprived of their liberty. However, their effectiveness has also shown limitations. In the case of the U.K., national courts have tended to follow the jurisprudence of the ECtHR, which still affords States an extensive discretion to decide on the detention of irregular migrants. Therefore, to date national courts do not assess whether a deportation could be achievable without the potential deportee being detained. Additionally, there are no maximum-time limits to the detention of irregular migrants. These factors have contributed to the persistence of arbitrary practices in the areas of detention and deportation. On the other hand, many standards of protection established by the IACtHR have been fulfilled partially. Argentina has been analyzed in this respect. For example, although according to national law irregular migrants should be detained in special establishments, to date those facilities do not exist, and irregular migrants continue to be imprisoned in criminal facilities pending their removal. This reaffirms that detention policies and practices targeting irregular migrants at the domestic level have developed extensively by political action rather than legal logic.

In light of the foregoing, the effectiveness of regional courts of human rights in safeguarding the right to liberty of irregular migrants with respect to sub-regional courts, could be increased by the establishment of forums that allow an exchange of information and best practices between regional human rights institutions themselves. Considering the global vulnerability of irregular migrants, regional and national courts play a crucial role in tracing boundaries between criminal justice institutions and migration control policies, and in safeguarding the proportionate and necessary use of detention for migration purposes. A cross-regional dialogue could be key to further fortify this role, by allowing an exchange of lessons learned between the human rights institutions of two regions, in which States are struggling to balance the control of irregular migration with the protection of the fundamental right to liberty.

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