Tuesday, 15 February 2011

Alarming Rise in Requests for Interim Measures

The number of applications might be on the rise in Strasbourg, but the number of requests for interim measures has seen an even sharper increase: a rise of 4000 % in the last four years. If this were a company, the shareholders would be jubilant, but alas this rise reflects growing problems rather than profits. The majority of the requests relate to asylum and immigration matters. The steep rise prompted the Court to issue a statement addressed at states, applicants and lawyers. The statement emphasizes that the Court is not an appeals tribunal for asylum and immigration issues. This is the whole statement:

Governments, applicants and their lawyers urged to co-operate fully with European Court, following “alarming rise” in requests to suspend deportation

European Governments, applicants to the European Court of Human Rights and their lawyers are today being urged to improve co-operation with the Court, regarding requests to suspend deportation, extradition or expulsion, following a 4,000% increase in the number of such requests coming to the Court.

The Court’s President Jean-Paul Costa has issued the statement in the light of the “alarming rise” in the number of these requests (1) for interim measures, under Rule 39 of the Rules of Court, to the “already over-burdened Court”. Under this rule the Court can indicate to the Government concerned any measures (such as suspending deportation) which it considers should be taken while it is examining a case.

Mr Costa reminds Governments, applicants and their lawyers of the Court’s proper but limited role in immigration matters, emphasising their respective responsibilities to "co-operate fully" with the Court. He also stresses that the Court is not an immigration appeals tribunal.

The statement reads as follows: “Between 2006 and 2010 the Court saw an increase of over 4,000 % in the number of requests it received for interim measures under Rule 39 of the Rules of Court. In 2006 the Court received 112 requests. That figure had increased to 4,786 for 2010.

In particular, between October 2010 and January 2011, the Court received around 2,500 requests for interim measures concerning return to one particular State, including 1,930 such requests against Sweden. The vast majority of those applications were incomplete, with insufficient information and documentation to permit the Court to make any proper assessment as to the risks attendant on return. In addition, in 2010, more than 2000 requests were made in respect of the United Kingdom, 400 against the Netherlands and more than 300 against France.

When there is such a large in-flow of applications, it is often not possible for the Court to contact applicants individually to ask for missing documents. Because of a lack of information about proposed dates of return, it is difficult for the Court to make a proper assessment of which applications should be given priority.

More importantly, there is a risk that the small minority of applicants who do face a genuine threat to life and limb in the country of destination will not have their cases examined in time to prevent removal.

Moreover, because of the need to process these applications as a matter of urgency, and given the limited human resources available, the Court and its Registry may be hindered in the performance of their case-processing duties under the European Convention on Human Rights.

It must be underlined that, according to its case-law and practice, the Court will only request a Member State not to deport, extradite or expel a person where, having reviewed all the relevant information, it considers that he or she faces a real risk of serious, irreversible harm if removed. An interim measure requested in this way has binding legal effect on the State concerned.

However, the Court is not an appeal tribunal from the asylum and immigration tribunals of Europe, any more than it is a court of criminal appeal in respect of criminal convictions. Where national immigration and asylum procedures carry out their own proper assessment of risk and are seen to operate fairly and with respect for human rights, the Court should only be required to intervene in truly exceptional cases.

For the Court to be able effectively to perform its proper role in this area both Governments and applicants must co-operate fully with the Court.

In particular it is essential that:

▪ applicants and their representatives respect the Practice Direction on Requests for Interim Measures. In particular, requests for interim measures should be individuated, fully reasoned, be sent with all relevant documentation including the decisions of the national authorities and courts, and be sent in good time before the expected date of removal. The widespread distribution of application forms to potential applicants is not and should not be seen as a substitute for proper legal representation in compliance with these conditions. It must be emphasised that failure to comply with the conditions set out in the Practice Direction may lead to such cases not being accepted for examination by the Court.

▪ Member States provide national remedies with suspensive effect which operate effectively and fairly, in accordance with the Court’s case-law and provide a proper and timely examination of the issue of risk. Where a lead case concerning the safety of return to a particular country of origin is pending before the national courts or the Court of Human Rights, removals to that country should be suspended. Where the Court requests a stay on removal under Rule 39, that request must be complied with.
The practice direction for lawyers can be found here (as Appendix 2)

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