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Published online by Cambridge University Press: 09 February 2017
1 European Convention for the Protection of Human Rights and Fundamental Freedoms (entered into force 3 September 1953) 213 UNTS 222 (ECHR).
2 In the book, immigration detention refers to ‘the detention of migrants (in the broadest sense, to include all individuals entering the territory of a State other than their own, be it as refugees, asylum seekers, stateless persons, irregular migrants or regular migrants) either upon seeking entry to a territory or pending deportation, removal, or return from a territory’ (p 279).
3 Charter of Fundamental Rights of the European Union (entered into force 1 December 2009) [2012] OJ C 326/391, art 52(3).
4 ECHR (n 1) arts 32–35.
5 ECtHR, Matthews v United Kingdom, App no 24833/94, 18 February 1999 (concerning the right to vote in European elections); ECtHR, Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v Ireland, App no 45036/98, 30 June 2005 (concerning the competence of the ECtHR to review EU acts).
6 Treaty on the Functioning of the European Union (entered into force 1 December 2009) OJ C326/01 (TFEU), arts 258, 263.
7 Sadurski, Wojciech, ‘Partnering with Strasbourg: Constitutionalization of the European Court of Human Rights, the Accession of Central and East European States to the Council of Europe, and the Idea of Pilot Judgments’ (2009) 9 Human Rights Law Review 397 CrossRefGoogle Scholar, 421; Karen Alter, ‘The European Court's Political Power across Space and Time’ (2009) 9 Northwestern University School and Law and Economics Working Paper 3.
8 TFEU (n 6) art 79(1) requires the EU to ‘develop a common immigration policy aimed at ensuring, at all stages, the efficient management of migration flows, fair treatment of third-country nationals residing legally in Member States, and the prevention of, and enhanced measures to combat, illegal immigration and trafficking in human beings' (emphasis added).
9 Directive 2008/115/EC of 16 December 2008 on Common Standards and Procedures in Member States for Returning Illegally Staying Third-Country Nationals [2008] OJ L348/98.
10 Joseph H Carens, ‘Who Should Get In? The Ethics of Immigration Admissions’ (2003) Ethics and International Affairs 95, 96.
11 Case C-127/08 Blaise Baheten Metock and Others v Minister for Justice, Equality and Law Reform [2008] ECR I-6248.
12 ECtHR, Omoregie and Others v Norway, App no 265/07, 31 July 2008.
13 Corrigendum to Directive 2004/58/EC of 29 April 2004 on the Right of Citizens of the Union and Their Family Members to Move and Reside Freely within the Territory of the Member States, amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC [2004] OJ L229/35.
14 Omoregie (n 12) para 64: ‘Against this background the Court does not consider that the first and second applicants, by confronting the Norwegian authorities with the first applicant's presence in the country as a fait accompli, were entitled to expect that any right of residence would be conferred upon him’.
15 Refer also, among others, to Case C-578/08 Rhimou Chakroun v Minister van Buitenlandse Zaken [2011] ECR I-1839 (concerning family reunification); ECtHR, Jeunesse v the Netherlands, App no 12738/10, 3 October 2014 (concerning the residence permit of a mother and her three children and their right to family life).
16 ECtHR, Saadi v Italy, App no 37201/06, 28 February 2008 (concerning the absolute protection against refoulement in the case of terrorism extradition).
17 ECtHR, Al-Saadoon and Mufdhi v United Kingdom, App no 61498/08, 2 March 2010 (concerning the transfer by the British army of two Iraqis to Iraqi custody where they would face a real risk of death by hanging).
18 ECtHR, MSS v Belgium and Greece, App no 30696/09, 21 January 2011 (examining the compatibility of the Dublin Regulation II with the ECHR regarding transfers of migrants to Greece); ECtHR, Sufi and Elmi v United Kingdom, App nos 8319/07 and 11449/07, 28 June 2011 (concerning the non-refoulement principle).
19 Directive 2011/95/EU of 13 December 2011 on Standards for the Qualification of Third-Country Nationals or Stateless Persons as Beneficiaries of International Protection, for a Uniform Status for Refugees or for Persons Eligible for Subsidiary Protection, and for the Content of the Protection Granted (Recast) [2011] OJ L337/9 (Qualification Directive).
20 ibid recital 12.
21 Convention relating to the Status of Refugees (entered into force 22 April 1954) 189 UNTS 150, as amended by its Protocol (entered into force 4 October 1967) 606 UNTS 267.
22 Qualification Directive (n 19) arts 2(e), 15.
23 Only individuals risking serious harm as defined under the Qualification Directive (n 19) art 15 will be protected: ‘Serious harm consists of: (a) the death penalty or execution; or (b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or (c) serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict’.
24 Jane McAdam, ‘The European Union Qualification Directive: The Creation of a Subsidiary Protection Regime’ (2005) 17 International Journal of Refugee Law 461; UN High Commissioner for Refugees (UNHCR), ‘Asylum in the European Union: A Study of the Implementation of the Qualification Directive’, 1 November 2007.
25 TFEU (n 6) art 78(1): ‘The Union shall develop a common policy on asylum, subsidiary protection and temporary protection with a view to offering appropriate status to any third-country national requiring international protection and ensuring compliance with the principle of non-refoulement. This policy must be in accordance with the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees, and other relevant treaties’ (emphasis added).
26 See, among others, ECtHR, Hirsi Jamaa and Others v Italy, App no 27765/09, 23 February 2012 (concerning collective expulsion of migrants on the high seas).
27 Directive 2013/32/EU of 26 June 2013 on Common Procedures for Granting and Withdrawing International Protection [2013] OJ L180/60, arts 38–39.
28 Regulation (EU) No 604/2013 of 26 June 2013 establishing the Criteria and Mechanisms for Determining the Member State Responsible for Examining an Application for International Protection Lodged in One of the Member States by a Third-Country National or a Stateless Person (Recast) [2013] OJ L180/31, art 3(3).
29 See, among others, MSS (n 18); ECtHR, Tarakhel v Switzerland, App no 29217/12, 4 November 2014 (examining the compatibility of Dublin Regulation II with the ECHR regarding transfers of migrants to Italy).
30 See, among others, MSS (n 18); Hirsi Jamaa (n 26); Tarakhel (n 29).
31 See, among others, MSS (n 18); Hirsi Jamaa (n 26); Tarakhel (n 29); Joined Cases C-411/10 and C-493/10 NS v Secretary of State for the Home Department and ME v Refugee Applications Commissioner and Minister for Justice, Equality and Law Reform [2011] ECR I-13905 (concerning the return of asylum seekers to Greece, the concept of ‘safe country’ and fundamental rights under EU law).
32 Tarakhel (n 29) paras 102–06, 120–22.
33 For definition see n 2.
34 (n 16).
35 ECtHR, Chalal v United Kingdom, App no 22414/93, 15 November 1996 (concerning deportation, detention pending deportation and the absolute character of art 3 ECHR also applicable in the context of national security interest).
36 Directive 2008/115/EC (n 9).
37 Case C-357/09 PPU Said Shamilovich Kadzoev (Huchbarov) [2009] ECR I-11189, para 64 (concerning immigration detention and the concept of ‘reasonable prospect of removal’); Case C-61/11 Hassen El Dridi, alias Soufi Karim [2011] ECR I-3015 (concerning the detention of illegally staying migrants).
38 Guiraudon, Virginie, ‘European Courts and Foreigners' Rights: A Comparative Study of Norms Difference’ (2000) 34 International Migration Review 1088 CrossRefGoogle Scholar, 1094.