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- Program in Refugee and Asylum Law
PhD Candidate, Queen’s University Belfast
In a Chamber judgment of 1 September 2015 in Khlaifia and Others v Italy, the European Court of Human Rights (ECtHR) held Italy in violation of Article 4 of Protocol 4 of the European Convention on Human Rights (ECHR) regarding the collective expulsion of aliens. Furthermore, the Court held violations of Article 5 (1) (right to liberty and security), Article 5 (2) (right to be informed promptly of the charges), Article 5 (4) (right to a speedy decision by a court on the lawfulness of detention) and a violation of Article 13 (right to an effective remedy) in conjunction with Article 3 and Article 4 of Protocol 4.  As a result of tensions arising from the Arab Spring in 2011, the three applicants in the case fled Tunisia and attempted passage to Italy by sea. However, the applicants’ vessels were intercepted by Italian authorities before arriving to Italy. The applicants were taken to a reception center in Contrada Imbriacola on the island of Lampedusa until they were expelled to Tunisia two weeks later.
This judgement marks the third time that Italy has been in violation of the prohibition of collective expulsions, with prior violations formally held in Hirsi Jamaa and Others v Italy and Sharifi and Others v Italy and Greece. While Khlaifia and Others was distinguished on the facts of Hirsi Jamaa insofar as individual asylum claims had been processed in respect of all three applicants, this was negated by the fact that all the applicants received identical refoulement decisions. The Italian government argued against this point, stating that as each applicant received individual decisions this was not in fact a case of collective expulsions. The Strasbourg Court held that similar decisions do not in itself conclude the existence of collective expulsions. However, all three applicants in this case were delivered with the same decision, bar the existence of their names, with no reference to their personal and individual circumstances. Moreover, the Court held that bilateral agreements with Tunisia, although not made public, “provided for the repatriation of Tunisian illegal migrants through simplified procedures, based on the simple identification of the person concerned by the Tunisian consular authorities.” (Unofficial translation of Khlaifia judgment).  This was, in the Court’s opinion, sufficient to reach the threshold of collective expulsions on the facts of the case.
Although the Khlaifa and Others decision is pending final approval and may still be taken up by the Grand Chamber, the case epitomizes and speaks to the broader narrative of refugee law. The judgement by the Strasbourg Court continues to reflect the Court’s strong record of upholding the rights of refugees and asylum seekers despite on-going restrictive border control policies by EU Member States. However, such practices by EU Member States which tether on the brink of legality are hardly surprising considering that Italy and Greece continue to be first points of entry into the EU and their respective asylum systems continue to crumble under the sheer volume of persons entering.
Unfortunately, until the inherent shortcomings of the Common European Asylum System (CEAS) and the Dublin system  are resolved, States which bear the weight of influx into the EU will continue to adopt stringent deflection and deterrent practices. These practices attempt to stretch international legal standards and ultimately reduce and infringe on the rights of persons who need protection most. The undue burden which is placed on EU entry points is unlikely to be a matter that is fixed overnight. As such, the Strasbourg Court will continue to play an important judicial role in reminding States of their legal obligations and, in particular, adopting a strong stance on the limits of external border control policies of ECHR contracting parties.
It is redundant to talk of the illegality of collective expulsions without moving discussion towards developing safe and legal channels of entry into the EU. The option of “humanitarian visas” has already been proposed by Professor Alexander Betts. It is clear that when treacherous sea travel is considered a viable or safer option for persons than the persecution they face in their country of origin, the asylum system itself is fundamentally flawed and collective action must be taken to rectify the severe infringement on asylum-seekers’ rights.
 See also the official press release by the registrar of the European Court of Human Rights.
 Bilateral agreements between Italy and Tunisia have not been made public. However, see Amnesty’s findings of collective summary removals from Lampedusa from 7 April 2011 in light of the agreement between Italy and Tunisia here.
 The Dublin system provided under recast Dublin Regulation III provides for applicants in certain circumstances to be sent back to their first port of entry within the EU to have their application administered. However, following the decision of M.S.S. v Belgium and Greece (Application No. 30696/09), Dublin returns to Greece by EU Member States have largely been stopped as a result of deficiencies in the Greek asylum system.
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