Description
The European Court of Human Rights (ECtHR) is a central forum for ‘jurisgenerative deliberations’ on the human rights of migrants in Europe. In recent years, scholars have diagnosed a tendency of the Court to rule against the human rights of migrants and in favour of the State accused of human rights violations (‘Strasbourg reversal’). The Grand Chamber judgments in Ilias and Ahmed v Hungary (2019) on immigration detention at the border, and ND and NT v Spain (2020) on the practice of ‘hot returns’ in the Spanish enclaves Ceuta and Melilla, are two paradigmatic examples of this development. After, in each case, the Chamber had ruled in favour of the migrant, the cases were referred to the Grand Chamber, which reversed the judgment and ruled in favour of the State. This raises the question of what triggered this flip. While research has examined the impact and shortcomings of strategic litigation by migrant advocacy groups, and has also investigated the biases of judges, there is hardly any understanding of the (tacit) mechanisms that States use to influence the Court’s decision. This paper analyses these two judgments from the perspective of “reverse strategic litigation” by States before the European Court of Human Rights in Strasbourg. It thus aims to trace the ways in which the responding States attempted – and succeeded –, through their legal arguments submitted in the cases, to “counter human rights from within” and achieve a legitimation of their border control policies.| Period | 10 Oct 2023 |
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| Held at | Kath. Universiteit, Centrum voor Migratierecht, Nijmegen |
| Degree of Recognition | National |