Forty-six member states of the Council of Europe have issued a far-reaching political declaration in Chișinău, Moldova, that seeks to redefine the balance between national security and individual liberties. The document, which includes Ireland, aims to influence how judges handle migration cases, specifically regarding the deportation of violent criminals and the processing of asylum seekers.
The move signals a pivotal shift in the relationship between national capitals and the European Court of Human Rights (ECHR) in Strasbourg. For years, several governments have accused the court of obstructing efforts to expel dangerous foreign nationals, often citing the migrants’ family ties within the host country as a barrier to deportation. This new Council of Europe migration declaration attempts to provide a political framework that prioritizes a state’s sovereign right to control its borders.
While the declaration is not legally binding on the ECHR, it encourages judges to grant a broader “margin of appreciation” to national authorities. This legal flexibility would allow domestic governments more leeway to evaluate local needs and security conditions when implementing the European Convention on Human Rights, provided they remain under the court’s general supervisory jurisdiction.
Shifting the Legal Threshold for Deportation
At the heart of the declaration is a push to streamline the removal of individuals convicted of serious offenses. The signatories argue that the inability to extradite or expel such individuals undermines public confidence in the Convention system and threatens the fundamental duty of the state to ensure public safety.
The document specifically addresses two critical articles of the Convention. Regarding Article 3, which prohibits torture and inhuman or degrading treatment, the declaration affirms that this prohibition remains absolute. However, it suggests that the “minimum level of severity” required to constitute such treatment is relative and depends on the specific circumstances of each case.
the declaration asserts that a lower standard of healthcare in a receiving country—compared to the state where the crime was committed—should not be a primary factor in blocking an extradition. This targets a frequent point of legal contention where deportation orders are stayed due to the medical needs of the individual in their home country.
The declaration also tackles Article 8, which protects the right to a private and family life. It argues that national authorities should be able to expel foreign nationals even if it interferes with these rights, provided the action is necessary in a democratic society for aims such as national security, public safety, or the prevention of crime.
Critics of the ECHR say rulings frequently frustrate deportations of violent criminals as they have family born in the country expelling them (stock image)
A Growing Rift in Strasbourg
The declaration is the culmination of a joint initiative led by Denmark, and Italy. In May of last year, Prime Ministers Mette Frederiksen and Giorgia Meloni, supported by a coalition including Poland, Belgium, and the Baltic states, argued that the world has changed fundamentally since the Convention was drafted “in the ashes of the great wars.”
These leaders contended that modern migration is on a “completely different scale” and that some migrants have chosen to isolate themselves in “parallel societies,” distancing themselves from democratic values and, in some cases, committing serious crimes. This tension led to a ministerial meeting in December in Strasbourg, where Ireland and 26 other countries joined a statement noting that the rights of populations are challenged by those who “take advantage of our hospitality by committing serious crime.”
The political climate in the United Kingdom has mirrored this hostility. Following the collapse of the Rwanda asylum plan, both the Conservative Party and Reform UK have expressed commitments to withdraw from the Convention if elected to government, further intensifying the pressure on the Strasbourg court.
Concerns Over the Excellent Friday Agreement
The declaration has sparked significant alarm among civil society groups and legal experts, particularly in Ireland and Northern Ireland. Some 90 academics, activists, and organizations sent a joint letter to the Irish and British governments warning that any dilution of human rights law could have severe constitutional repercussions.
Because the European Convention on Human Rights is a cornerstone of the Good Friday Agreement, critics argue that treating these rights as negotiable could destabilize the peace process. Kevin Hanratty, Director of the Human Rights Consortium in Northern Ireland, stated that the Convention is “woven into our constitutional settlement and our peace agreement.”
Eilis Barry, Chief Executive of Free Legal Advice Centres (FLAC), warned that once human rights are treated as conditional for specific groups, the security of everyone’s rights is diminished. She emphasized that the Convention serves as a practical framework protecting citizens in everyday interactions with the state, from housing to policing.
The Irish Government’s Position
The Irish Department of Justice has attempted to navigate a middle path, expressing support for the declaration while reaffirming its commitment to the European Court of Human Rights. The government maintains that the ECHR remains an essential element of the rule of law in Europe.
In a statement, the Department noted that Ireland continues to advocate for the independence and integrity of the court, but welcomes the declaration’s recognition of the need for “effective management of migration while protecting fundamental rights.”
| Legal Focus | Previous Interpretation Trend | Declaration’s Proposed Shift |
|---|---|---|
| Article 8 (Family Life) | Strong protection against deportation if family ties exist. | Prioritize public safety and national security over family ties. |
| Article 3 (Healthcare) | Poor healthcare in home country can block extradition. | Lower healthcare standards should not be a blocking factor. |
| Judicial Approach | Strict adherence to Convention standards by the Court. | Increased “margin of appreciation” for national authorities. |
Beyond deportations, the declaration also touches on “return hubs”—facilities where failed asylum seekers are held pending removal—and the “instrumentalisation” of migration. This refers to allegations that Russia and Belarus have deliberately funneled migrants toward Eastern European borders to destabilize EU member states. The declaration suggests that the conduct of migrants attempting to cross borders irregularly may be relevant when assessing a state’s compliance with its obligations.
Disclaimer: This article is provided for informational purposes only and does not constitute legal advice.
The next critical phase will be observing how the ECHR incorporates this political signal into its upcoming rulings on migration and deportation cases. While the court remains independent, the collective weight of 46 member states may influence the “margin of appreciation” applied in future judgments.
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