The interplay between the European Convention on Human Rights and EU law in the field of migration

On the occasion of the conference on the use of the Charter of Fundamental Rights of the EU in asylum litigation, held in Luxembourg on 4-5 June by the European Council on Refugees and Exiles (ECRE), I was given the opportunity to make a presentation on “The interplay between the European Convention on Human Rights and EU law in the field of migration”. Below is the Powerpoint relating to my presentation.

While it is impossible to be exhaustive when considering the vast area of migration law, the following trends would nonetheless appear to emerge from such a comparative analysis.

  • EU law and the Convention converge as regards the main principles governing the procedures for the application of international protection, including the right for any person to make such an application at the border of a State, regardless of any formalities, and the prohibition of refoulement and pushbacks.
  • However, EU law and the Convention diverge on when there is detention of applicants for international protection and on the grounds which can justify such a detention.
  • As the CJEU itself recently noted, EU law and the Convention are on the same page when it comes to the requirements of subsidiary protection under Art. 15 of the Qualification Directive (click here for the post dealing with this issue).
  • The Dublin III Regulation, as recently applied by the CJEU in C-392/22 in respect of pushbacks and detentions at the Polish border with Belarus, gives rise to some concerns as to whether the approach thus followed might not be creating two different categories of fundamental rights and, moreover, collectivising their assessment, which would be in contrast with the Strasbourg case-law (click here for the post dealing with this issue).
  • For the sake of coherence and legal certainty, fundamental rights should be approached, not least by the European Courts, in a wholistic way, i.e. in their mutual interplay, the purpose not being uniformity but cross-system compatibility between EU law and the Convention. In this way, national judges will find it easier to apply EU law in conformity with the Convention, as they are required to do under the Convention, failing which a violation can be found, as in M.B. v. the Netherlands.