Minister for Justice Jim O’Callaghan has warned that the European Court of Human Rights is interpreting “inhuman and degrading treatment” too broadly, which is limiting the ability of member states to deport foreign criminals.
Mr O’Callaghan has aligned Ireland with Denmark, which has previously struggled to expel migrants who have used human rights law to resist being returned to their countries of origin.
It is understood that Denmark is frustrated with people who have successfully evaded deportation, if they can argue that they would suffer cruel or degrading treatment in their home country.
Mr O’Callaghan was speaking as part of a meeting of justice ministers at the Council of Europe, to discuss the European Convention on Human Rights and migration. Article 3 of the European Convention on Human Rights, which prohibits torture, grants the absolute right to be free from “inhuman or degrading treatment or punishment”.
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Denmark, which holds the EU presidency, has previously struggled to deport migrants it described as “criminal foreign nationals” who successfully used human rights law against their deportation. Some have successfully argued they would face cruel or degrading treatment in their home country.
In his speech to the meeting, Mr O’Callaghan said that Ireland shares “concerns” expressed by Denmark about the challenges the European Convention on Human Rights poses in relation to the issue of migration.
Mr O’Callaghan said there is a “need to ensure that the Convention is understood and applied in a way that meets its core objectives of protecting fundamental rights, while at the same time recognising the realities faced today regarding the expulsion of foreign criminals, [and] the need for clarity about inhuman and degrading treatment”.
A spokeswoman for Mr O’Callaghan confirmed he believes that “the European Court of Human Rights has interpreted Article 3 on inhuman and degrading treatment too broadly”.
The other countries that have aligned with Denmark on the issue include Italy, Albania, Austria, Bulgaria, Croatia, Czech Republic, Estonia, Finland, Hungary, Iceland, Latvia, Lithuania, Malta, Montenegro, Netherlands¸ Norway, Poland, Romania, San Marino, Serbia, Slovakia, Sweden, Ukraine and the United Kingdom.
A joint statement from the 26 countries, including Ireland, said that in “the challenges in expulsion of foreign criminals, migration management and co-operation with third countries regarding asylum and return procedures, as well as removal procedures and instrumentalisation of migration, a right balance has to be found between the migrants’ individual rights and interests and the weighty public interests of defending freedom and security in our societies”.
The statement called for member states to have the right to expel foreigners convicted of serious crimes, even in cases where they “have acquired ties to their host country”, including establishing a family life in the new country.
The joint statement also said the absolute right to be free from cruel and degrading treatment should be “constrained to the most serious issues” so that it does not prevent states such as Ireland “from taking proportionate decisions on the expulsion of foreign criminals, or in removal or extradition cases, including in cases raising issues concerning healthcare and prison conditions”.
The statement said states should have the right to “control the entry, residence, and expulsion of foreigners from their territories”.
