Prohibiting Collective Expulsion of Aliens at the European Court of Human Rights
Over the past few months, the mass movement of Syrian migrants into and across Europe has transfixed the international community. Though international law governs the decisions as to whether these Syrians are eligible for protection against refoulement (return to torture or persecution), the texts of the UN Convention Relating to the Status of Refugees and the UN Convention Against Torture have nothing to say about the process through which these protection determinations happen. This is a large gap in international law, and one that has been exploited in the past to return migrants in mass influx situations to countries in which they may well fear persecution or torture. Regional human rights bodies have stepped in to fill this lacuna, most notably the European Court of Human Rights (ECHR or the Court). In September, a chamber of the Court decided Khlaifia v. Italy, the most recent in a line of cases extending the prohibition on collective expulsion of aliens found in Article 4 of Protocol 4 of the European Convention on Human Rights.
The Development of Article 4, Protocol 4
These doctrinal developments began in earnest in 2012, when the Court decided Hirsi v. Italy, determining for the first time whether Article 4, Protocol 4 applies extraterritorially, and in particular to migrants intercepted at sea. Enacted in 1968, Protocol 4 states simply: “Collective expulsion of aliens is prohibited,” making no reference to territory. The travaux preparatoires do not address the specific question of territoriality, but do not preclude extraterritorial application of Article 4. Faced with this blank canvas, the court determined that Italy’s failure to examine the individual situations of migrants intercepted at sea and returned to Libya constituted a violation of Article 4.
This was just the second time that the ECHR found a violation of Article 4, Protocol 4. Ten years earlier, in Čonka v. Belgium, the Court had held that Belgium’s expulsion procedure failed to provide sufficient guarantees to ensure that the individual claims of Romani asylum seekers were examined before they were expelled to their home country, Slovakia. The applicants, fleeing violence at the hands of skinheads in Slovakia, were summoned along with a number of Slovakian Roma families, to a police station in Ghent allegedly to complete their asylum applications. Upon arrival, all of the members of the group were served with identically-worded court orders authorizing their detention and deportation. Because the applicants were part of a group expulsion procedure conducted by the Belgian authorities before the asylum process had been completed and had little opportunity to contact a lawyer, the ECHR found a violation of Article 4 of Protocol 4.
Post-Hirsi, the ECHR has begun to develop rapidly this previously sleepy provision of the European Convention. Last year, the ECHR found violations of Article 4, Protocol 4 in two cases. Georgia v. Russia involved a Russian administrative practice of arresting, detaining, and collectively expelling Georgian nationals in the fall of 2006. The ECHR held that the prohibition on collective expulsion applied to all individuals, whether or not their residence was lawful. Moreover, both the limited process and the volume of expulsion orders (4,600) issued against Georgian nationals over the four-month period in question belied the Russian government’s claims that the applicants’ cases had been examined individually. Citing Hirsi, the Court held that while member states have the right “to establish their own immigration policies . . ., problems with managing migratory flows cannot justify . . . recourse to practices which are not compatible with its obligations under the Convention.”
A few months later, the Court found that Italy had again violated Article 4 of Protocol 4. In Sharifi v. Italy and Greece, thirty-two Afghani nationals, two Sudanese nationals and one Eritrean national, having entered Italy without authorization from Greece, protested the Italian government’s decision to immediately return to them to Greece, where they feared that they would face return to death or torture in their home countries. Italy failed to provide these applicants with access to the asylum process or any other immigration remedy at the port of arrival, instead handing them directly to ferry captains who would remove them to Greece. The Court found two violations of Article 4, Protocol 4: one because Italy had collectively and indiscriminately expelled the applicants and the second in concert with the right to an effective remedy and the prohibition on inhuman or degrading treatment because Italy failed to provide them with access to the asylum process. Italy invoked the European Union’s Dublin Regulation, which requires applicants to undergo the asylum process in the first European country they reach—in this case, Greece. The Court rejected that argument, noting that while states have the sovereign right to control immigration and uphold obligations flowing from EU membership, the challenges of addressing mass influxes of migrants do not justify violating the Convention or its Protocols.
The Khlaifia Decision
All of these cases addressed factual scenarios that occurred well before the most recent mass influxes of migrants to Europe. Though the Hirsi decision came down in the midst of mass flows of North African migrants escaping political instability in the wake of the Arab Spring, the facts of that case occurred in May 2009, more than a year and a half before Mohamed Bouazizi’s self-immolation in Tunisia. Khlaifia, which addresses the situation of Tunisians fleeing Arab Spring-related violence, was handed down as Europe struggles to respond to more than one million migrants, largely from Syria, Afghanistan, and Iraq, who crossed its borders in 2015. The decision has been appealed to the Grand Chamber, which is currently deciding whether to accept it.
The Khlaifia case was filed by three Tunisians who arrived on the Italian island of Lampedusa in September 2011. Located nearer to North Africa than to Italy, this twelve-mile square island has a native population of 5,000 and a reception center designed to hold 800 migrants. Since early 2011, tens of thousands of migrants had arrived in Lampedusa from Tunisia and Libya, overwhelming the island’s capacity. Upon arrival, the Khlaifia applicants were immediately detained in the Lampedusa reception center which they described as dirty and overcrowded. Two or three days after their arrival, migrants held in the reception center engaged in violent protests against forced repatriation to Tunisia. After being evacuated from the center because of fires started during the protests, the applicants joined a protest in the streets of Lampedusa. The Italian police caught them and sent them to Palermo, where they were held with a larger group of migrants on board boats in the port for several days. The applicants were then brought to the Palermo airport, where the Tunisian consul registered their civil status information in accordance with a bilateral treaty between Italy and Tunisia providing for the expedited return of Tunisian migrants arriving in Italy without authorization. The applicants were not released until they landed at the Tunis airport.
Drawing on Hirsi and Čonka, the applicants argued that they had been subject to collective expulsion, focusing on four elements: the large number of Tunisians who met the same fate; a policy announcement by the Italian Ministry of the Interior that it would engage in collective expulsion operations pursuant to the bilateral agreement with Tunisia; the identical wording of the deportation orders; and the difficulty in contacting a lawyer. Italy argued that the deportation orders were individually issued and translated into Arabic, and that, upon arrival on Lampedusa, the Italian police individually interviewed each migrant through an interpreter and identified them using fingerprints and photographs. The ECHR held that a simple identification procedure was insufficient to overcome Article 4 Protocol 4’s prohibition on collective expulsion. The Court focused on issues similar to those raised by the applicants: the large number of Tunisians who met the same fate as the applicants; the bilateral agreements with Tunisia that foresaw the deportation of undocumented Tunisian migrants through simplified procedures, namely identification by the Tunisian consular authorities; and the detention orders’ failure to reference the applicants’ individual situations as well as the government’s failure to prove that individual interviews took place before these orders were adopted.
In dissent, Judges Sajó and Vučinić argued for a stricter interpretation of the prohibition on collective expulsion. They claimed that the identification procedure was sufficient to distinguish this case from Čonka and Hirsi. The dissent depicted the prior case law as establishing two methods of collective expulsion: one, where individuals are identified for expulsion based on group membership, as happened to the minority groups in Čonka and Georgia v. Russia; and two, where a group is identified for expulsion without individualized consideration of their claims, as occurred in the push-back operations at issue in Hirsi and Sharifi. These judges also drew on M.A. v. Cyprus to minimize the importance of the identical wording of the deportation orders. In that case, because Cyprus had adjudicated the asylum applications individually and examined the personal circumstances of the group members before deportation, the ECHR found that the formulaic wording of the detention orders was not by itself sufficient to establish collective expulsion. The dissent also noted that the applicants were returned to a safe country and were not asylum seekers, whom the expedited process treated differently. In short, the dissent argued that “the majority do a grave disservice to an intentionally focused and narrow concept in international law which is meant to apply only in the most severe of circumstances.”
For now, the majority’s vision of an expansive prohibition on collective expulsion of aliens has won the day. By delimiting the applicable factors, the Khlaifia decision provides guidance that will be helpful both to applicants and to governments seeking to ensure that their deportation processes are in conformity with the European Convention on Human Rights.
About the Author: Jaya Ramji-Nogales is the I. Herman Stern Professor of Law and Co-Director of the Institute for International Law and Public Policy at Temple University’s Beasley School of Law. She is a founding Co-Chair of the International Migration Law Interest Group at the American Society of International Law.
 Sale v. Haitian Centers Council, 509 U.S. 155, 187 (1993).
 Affaire Khlaifia et autres c. Italie, Eur. Ct. H.R. (2015), http://hudoc.echr.coe.int/eng?i=001-115507 (author’s translation). An appeal to the Grand Chamber has been filed.
 Hirsi Jamaa v. Italy, Eur. Ct. H.R. (2012), http://hudoc.echr.coe.int/eng?i=001-109231.
 Čonka v. Belgium, Eur. Ct. H.R. (2002), http://hudoc.echr.coe.int/eng?i=001-60026.
 Not all of these decisions have been favorable to the applicant. In July 2013, the ECHR found that the Cypriot authorities’ detention and deportation of a Syrian Kurd as part of a collective expulsion operation did not constitute a violation of Article 4, Protocol 4 because his asylum application had been examined individually, as had the applications of all of the individuals in the group to be deported with him. Even though an error had been made in issuing a deportation order in the case of the applicant, who had not yet completed the judicial review process, the evidence did not support finding a collective expulsion. The ECHR did find several violations of the Convention, including the prohibitions on inhuman or degrading treatment and unlawful detention. M.A. v. Cyprus, Eur. Ct. H.R. (2013), http://hudoc.echr.coe.int/eng?i=001-122889.
 Georgia v. Russia (I), Eur. Ct. H.R. (2014), http://hudoc.echr.coe.int/eng?i=001-145546 .
 Id. ¶ 177.
 Affaire Sharifi et autres c. Italie et Grèce, Eur. Ct. H.R. (2014), http://hudoc.echr.coe.int/eng?i=001-147287.
 Id. ¶ 224 (author’s translation).
 Italian Police Battle Tunisian Migrants on Lampedusa, BBC (Sept. 21, 2011), http://www.bbc.com/news/world-europe-15007277.
 The ECHR further found a violation of Article 13, the right to an effective remedy, in conjunction with Article 4 Protocol 4 because the available judicial review did not provide for a stay of the order of deportation. Khlaifia, Eur. Ct. H.R., ¶¶ 172–73. The Court also found violations of the rights to liberty and security, to be informed promptly of the charges against one, to a speedy decision by a court on the lawfulness of detention. A majority found a violation of the prohibition on inhuman or degrading treatment and to an effective remedy in conjunction with that right.
 M.A., Eur. Ct. H.R. ¶¶ 252–55.
 Khlaifia, Eur. Ct. H.R. ¶ 18 (partly dissenting opinion of Sajó, J. and Vuċiniċ, J.).