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asylum claimants

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A long awaited decision of the European Court of Human Rights (ECtHR), one that will be discussed for long (see already herehere and here), has not disappointed all the European governments whose efforts are aimed to strengthen border controls on migrants, including asylum claimants. With the decision in the case of M.N. and Others v. Belgium (no. 3599/18), the ECtHR has adopted a self-restraint approach that creates an additional obstacle for those asylum claimants who would rely on international human rights law obligations as the only possible way of avoiding dangerous, sometimes deadly, journeys in order to submit an asylum application in Europe. The ECtHR concluded that States Parties to the European Convention on Human Rights (ECHR) do not have any obligation to issue humanitarian visas because the ECHR does not apply in the context of proceedings initiated by individuals through diplomatic representations of a State Party, with which such individuals have no connecting ties like nationality or which does not exercise any sort of physical control (more generally on Article 1 ECHR, see Besson and Milanovic). Whereas some readers may find it unsurprising, in light of recent case law (e.g. Grand Chamber, N.D. and N.T. v. Spain, nos. 8675/15 and 8697/15; and Ilias and Ahmed v. Hungary, no. 47287/15) as well as the CJEU’s findings on the same matter from a EU law perspective (X and X v. BelgiumC-638/16 PPU), other readers may qualify the ECtHR’s approach based on the lack of jurisdiction as ‘formalist’ or ‘ineffective’. This is particularly the case when the reasoning adopted by the ECtHR is compared with recent developments occurred not only within its case law but also with positions adopted by universal human rights bodies attempting to expand the applicability of human rights treaties, including via a ‘non-formalistic’ approach (Committee on the Elimination of Racial Discrimination, 12 December 2019, no. CERD/C/100/5, para. 3.44). 

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