European court of human rights and asylum seekers: a concerning trend

A recent study suggests that the European Court of Human Rights (ECtHR) is undergoing a concerning trend of "backsliding" in its protection of asylum seekers, departing from established principles without explicit acknowledgement. Authored by Dr. Ben Hudson from the University of Exeter Law School and published in the International Journal of Law in Context, the research reveals a shift away from recognising asylum seekers as inherently vulnerable, a stance established by the Court a decade ago.

According to Dr. Hudson, this subtle reversal has significant consequences, potentially leaving some of the most vulnerable asylum seekers without the special protection they were previously afforded. The study notes instances where the Court, while acknowledging the vulnerability of asylum seekers as a group, introduces caveats that exclude certain individuals from receiving special protection. This approach, criticised as highly impractical, creates uncertainty and may lead to renewed marginalisation and exclusion.

Moreover, the research highlights instances where the Court fails to acknowledge the inherent vulnerability of asylum seekers or alters its vulnerability principle to the detriment of claimants. Most concerning is the observation that this trend has become more pronounced in judgements rendered after 2018, signalling a departure from the Court's earlier recognition of asylum seekers as a particularly underprivileged and vulnerable group deserving of special protection.

Dr. Hudson warns that unless there is a significant shift in the ECtHR's approach, the hope for vulnerability reasoning to offer a more inclusive and humane response to the challenges faced by asylum seekers in Europe may be lost. The study urges the Court to reconsider its stance and reaffirm its commitment to protecting the rights of asylum seekers under the European Convention on Human Rights.