Prohibition of collective expulsion of aliens (Article 4 of Protocol No. 4) / Overview of the Case-law of the ECHR 2016

Last Updated on April 21, 2019 by LawEuro

Overview of the Case-law of the ECHR 2016

Prohibition of collective expulsion of aliens (Article 4 of Protocol No. 4)

The backdrop to the judgment in Khlaifia and Others, cited above[144], was the 2011 migration crisis and the consequent challenges confronting the receiving State.

The judgment explores in some detail the Convention rights of immigrants against the background of the migration and humanitarian crisis that unfolded in 2011, when events related to the “Arab Spring” led to a mass influx of immigrants into certain States (here, the island of Lampedusa) leading to significant pressures on the receiving State.

The case concerned the arrival of the applicants, three Tunisian economic migrants, on the island of Lampedusa, their initial placement in a reception centre and their subsequent confinement on board two ships moored in Palermo harbour, followed by their removal to Tunisia in accordance with a simplified procedure under an agreement between Italy and Tunisia of April 2011. The applicants complained, inter alia, under Article 4 of Protocol No. 4.

The Grand Chamber found no violation of that provision.

The Court’s examination of the complaint under Article 4 of Protocol No. 4 is informed by a useful review of its case-law (notably, Čonka v. Belgium[145]; Hirsi Jamaa and Others, cited above[146], Georgia v. Russia (I)[147]; and Sharifi and Others v. Italy and Greece[148]) which requires a sufficiently individualised examination of the particular case of each individual alien.

The Grand Chamber specifically addressed the impact of the migration crisis. It reiterated that problems with the management of migratory flows or with the reception of asylum-seekers could not justify recourse to practices which were not compatible with the Convention or the Protocols thereto (citing Hirsi Jamaa and Others, § 179). The Grand Chamber went on, nevertheless, to confirm that it had “taken note of the ‘new challenges’ facing European States in terms of immigration control as a result of the economic crisis, recent social and political changes which have had a particular impact on certain regions of Africa and the Middle East, and the fact that migratory flows are increasingly arriving by sea”.

The basis upon which the Grand Chamber concluded as to no violation of Article 4 of Protocol No. 4 is also novel, focusing as it did on the individual review which could have taken place. In particular, the Grand Chamber pointed out that Article 4 of Protocol No. 4 did not guarantee the right to an individual interview in all circumstances: “the requirements of this provision may be satisfied where each alien has a genuine and effective possibility of submitting arguments against his or her expulsion, and where those arguments are examined in an appropriate manner by the authorities of the respondent State.” Since the applicants had undergone identification on two occasions; since their nationality had been established; and, most importantly, since they had at all times had a genuine and effective possibility of submitting arguments against their expulsion had they wished to do so, the Grand Chamber considered that their expulsion (which was virtually simultaneous) could not be described as a collective one.

As regards Article 13 of the Convention in conjunction with Article 4 of Protocol No. 4, it is important to note that the Grand Chamber clarified when Article 13 requires a suspensive remedy to challenge an expulsion as a collective one.

In particular, and clarifying the case of De Souza Ribeiro v. France[149] where this question was addressed in 2012, the Grand Chamber confirmed that, when an applicant alleges that an expulsion procedure was “collective” in nature but does not claim at the same time that it had exposed him or her to a risk of irreversible harm in the form of a violation of Articles 2 or 3 of the Convention, then the Convention does not impose an absolute obligation on a State to guarantee an automatically suspensive remedy, but merely requires that the person concerned should have an effective possibility of challenging the expulsion decision by having a sufficiently thorough examination of his or her complaints carried out by an independent and impartial domestic forum. The lack of suspensive effect, without therefore a claim of a risk of treatment contrary to Articles 2 or 3, was found to not in itself constitute a violation of Article 13 of the Convention.


144. Khlaifia and Others v. Italy [GC], no. 16483/12, ECHR 2016, see also under Article 3 (Inhuman or degrading treatment) above.
145. Čonka v. Belgium, no. 51564/99, ECHR 2002-I.
146. Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, ECHR 2012.
147. Georgia v. Russia (I) [GC], no. 13255/07, ECHR 2014 (extracts).
148. Sharifi and Others v. Italy and Greece, no. 16643/09, 21 October 2014.
149. De Souza Ribeiro v. France [GC], no. 22689/07, §§ 82-83, ECHR 2012.

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