Case Watch: Italian Migrant Expulsion before the European Court of Human Rights

In 2011, hundreds of Tunisians travelling on small boats from Tunisia to Italy were intercepted at sea by the Italian authorities, and eventually taken to the island of Lampedusa on September 17 and 18, 2011. Upon arrival in Lampedusa, the Italian authorities fingerprinted the applicants and sought to determine their identities. However—acting under a deliberate policy aimed at precluding claims to political asylum—the authorities did not ask any questions about why they had sought to reach Italy, or about their safety if they returned to Tunisia.

After ten days in Italy, including two days in Lampedusa and subsequent transfer to ships harbored in Palermo, members of the group were finally deported to Tunisia. Three of these men are now seeking redress before the European Court of Human Rights, in the case Khalaifia v. Italy. 

The ECHR's seven judge chamber initially found unanimously that Italian authorities violated their right to liberty (Article 5 of the European Convention on Human Rights) concerning the conditions in which the applicants were held in detention and the lack of remedies available to contest their detention. On the remaining issues, the Chamber was split 5-2. The majority (Judges Karakaş, Raimondi, Keller, Lemmens, and Spano) found that Italy had violated the prohibition on collective expulsion (Article 4 of Protocol 4) for its failure to provide individualized consideration of the merits of each person’s expulsion, and the right to an effective remedy (Article 13) in relation to Protocol 4, Article 4, due to the lack of procedures available to deportees to potentially suspend deportation orders while appealing decisions against them.

Italy requested review of the decision by the Grand Chamber of the European Court, which is now due to hold a hearing on June 22, 2016, in relation to its review of the case.

The Grand Chamber’s judgment will be an important opportunity for the court to participate in the ongoing high-profile global discussion on the relationship between the human rights of migrants and the practicalities of border control, providing much needed clarity about the rights and guarantees migrants are entitled to in the framework of States exercising territorial sovereignty.

Reviewing the original judgment of the European Court of Human Rights

The Chamber’s judgment highlighted several factors which lead it to the conclusion that there had not been enough guarantees in the expulsion procedure to differentiate the situation of each applicant, thus making the expulsion collective in nature. These included:

• that the expulsion orders for the hundreds of individuals concerned were nearly identical;
• that the questions asked by the authorities indicated that they were concerned primarily with identifying the individuals rather than assessing any risks to their lives if returned to Tunisia;
• and the lack of reference to personal situations of the persons concerned in the expulsion.
• a pattern of facts of a large number of persons of the same place of origin being dealt with in the same manner.

Finally, the Chamber’s decision highlighted the lack of local measures available to the individuals to contest their deportation: the expulsion orders had explicitly stated that lodging an appeal with a local Justice of the Peace would not grant the individuals a suspension of their deportation under any circumstance. Accordingly, such an appeal does not satisfy the requirements of Article 13 of the European Convention in so far as it failed to meet the criteria regarding suspensive effect , that is to say  that the decision is not yet final and its effects are suspended until the appeal is reviewed, as set out in the case of De Souza Ribeiro.

In dissent, Judges Sajo and Vucinic highlighted the historical roots of the expression of “collective expulsions” in international law, citing Protocol 4, adopted in 1963, as the first international instrument to contain the expression, and how it had been drafted in the context of the aftermath of the Second World War. After summarizing the European Court’s previous case law on collective expulsions, the dissenting judges concluded that the applicants had not been collectively expelled because:

• their expulsion had not been as a result of their membership in an ethnic, religious, or national group; they were not asylum seekers protected under the principle of non-refoulement;
• they were not unaccompanied minors, nor did they fall under any category of vulnerable individuals which should be accorded differential treatment.

In the opinion of the two dissenting judges, the fact that they did not meet the conditions for admission in to Italy made it unnecessary to consider any other elements aside from their identity, nationality, and the verification of a country for safe return.  Furthermore, the dissent considered that the streamlined process set up by Tunisia and Italy to respond to the sudden change in the flow of migration does not disregard the conditions of the individual.

The upcoming hearing on June 22nd and the final judgment are particularly timely given the ever-increasing appearance of long-standing ineffective and harmful state approaches to migration along Europe’s borders that do not meet the standards of international human rights law. The hearing also comes at a time when widespread attention is being paid to ongoing discussion among European states to seek alternative arrangements to dealing with large-scale migration patterns, such as the recently acceded EU-Turkey deal.  

Khalaifia presents the Court with the opportunity to uphold the Chamber’s decision and cement in its case law concrete due process rights and protections for migrants being subjected to deportation procedures;  and ensuring there is clarity on the minimum treatment States owe to every migrant, regardless of the numbers and urgency of the context of returns . 

On the opposite, the case also could present the risk that the Grand Chamber will side with the two dissenting judges and water down in the context of large mixed migration the procedural protections against collective expulsions that have long been established with the Court’s case law.