Lawyers’ Voices

This blog launches a new series of commentaries by legal experts on key rulings of international and national courts that affect the rights of undocumented migrants.

If you are a legal practitioner or scholar and wish to make a contribution to this series, please contact Alyna Smith at: alyna.smith@picum.org

Useful resources

  • Synthesis report “Defending Migrants’ Rights in the Context of Detention and Deportation”, PICUM 2017, available in English and French.
  • “Using Legal Strategies to Enforce Undocumented Migrants’ Human Rights”, PICUM 2013, available in English, French, and Spanish.
  • See also PICUM’s case law overview.

About Simon Cox
Simon Cox has been working as Migration Lawyer at Open Society Justice Initiative since 2011. He leads the Justice Initiative project advising, supporting and developing materials for migrants to use law and work with lawyers. Partnerships with migrant-led groups, legal NGOs and private lawyers. He was the Justice Initiative’s case lawyer representing 42 Bangladeshi irregular migrant claimants in the case Chowdury v Greece, ECtHR judgment in March 2017. He also acted for Ms Nikolova in CHEZ (2015), leading judgment of Court of Justice of the European Union on race discrimination against geographical communities. For more information on Simon Cox work, click here.

In this blog, Simon Cox looks back at two important rulings by the European Court for Human Rights in 2017, from the perspective of a lawyer who represented the claimants in one of those cases: Chowdury v. Greece and Khlaifia v. Italy.

Justice for Migrant Farmworkers who were Shot at when Demanding their Pay

(Chowdury and 41 others against Greece, European Court of Human Rights, 30 March 2017)

Four years ago, in a Greek strawberries field, 150 farm workers were shot at when they went on strike, hospitalizing 33 men with gunshot wounds. The men had worked for up to six months tending the strawberries – sleeping next to them in the fields, under black plastic. Promised 22 Euros a day, the farmer gave them only food. Though they were migrants from Bangladesh with no papers, local police ignored them – as long as they worked. But elsewhere in Greece, irregular migrants were detained even for 18 months, in overcrowded cells. They feared this, if they quit their jobs. The farmer kept breaking his promises to pay them, but threatened to never pay what he owed if they quit. They went on strike three times, the last in March 2013, as the strawberries needed picking.

The attack caused outrage across Greece; the prosecutor charged the farmer and his shooters with assault. Represented by the Greek Council for Refugees and Hellenic League for Human Rights, the farm workers persuaded the prosecutor to add a charge of trafficking for forced labour. In July 2014, the Greek court convicted the attackers of assault, but acquitted them of trafficking, because the workers were, in the court’s view, free to leave their jobs.

Forty-two of the men took the case to the European Court of Human Rights. In March 2017, the Court upheld their claim, ruling that their irregular status, their mounting back-pay and the threats of harm by the farmer amounted to forced labour. By failing to protect them or to punish the farmer, the Greek state had violated Article 4 of the European Convention on Human Rights. The Court ordered Greece to pay the men a total of more than 500,000 Euros. In November 2017, the Greek government began paying.

Greece’s farms depend on Asian and African workers: tens of thousands of people with no papers. Despite the case, Greece still gives no legal status to farm workers. Instead, SYRIZA has adopted a weak system of suspending deportation for a few hundred people, six months at a time, making them just as exploitable.

The Chowdury judgment shows that forced labour doesn’t happen only to people in the sex industry, or to children. Migrants without papers are especially vulnerable: the solution is regularization, not threats of deportation.

Migrants Deported without proper Assessment of their Claims

(Khlaifia and 2 others against Italy, European Court of Human Rights, 15 December 2016)

In 2011, tens of thousands of people from North Africa sought to reach Italy by sea, fleeing persecution or without opportunities to create a good life. European countries had imposed visas for travel by regular shipping routes, so they took to irregular routes, often in unseaworthy or dangerous boats. 58,000 crossed that year – almost all arriving in Italy. 1,500 people drowned as they tried.

Half of the travellers came from Tunisia. Arriving in Italy, they were taken to makeshift camps and boats and prevented from leaving; but the authorities claimed no-one was detained. People who did not request asylum were not asked why they had risked their lives to reach Italy. Instead, officials took their names and information to identify their nationality. Without any discussion of whether they should be allowed to stay, they were then deported to Tunisia.

Three Tunisian men asked the European Court of Human Rights to rule that Italy had violated their human rights. After winning in a Chamber, the Court’s Grand Chamber reheard the case. The Grand Chamber agreed with the men that they were detained – and that Italy’s failure to grant them a remedy violated Article 5 of the European Convention on Human Rights. But the Court rejected their claim that the conditions were inhuman or degrading under Article 3.

Most importantly, the Grand Chamber ruled the deportation was not “collective expulsion” under Article 4 of Protocol 4 to the Convention. Though not asylum-seekers, the men argued the government still had the duty to ask each of them why they had come, before it made a deportation decision. Without this, Italy could not give individual consideration to each man’s situation. The Court rejected this, saying the men could have volunteered information.

The bar on collective expulsion is an important guarantee: each human must be considered as an individual before the drastic step of deportation is ordered. The Court’s judgment may undermine this. Expecting everyone who arrives on a leaky boat to demand to explain themselves is unrealistic. Just as Italy was able to quiz the men about their personal data, its officials could easily have asked them why they came. Border guards do this every day at regular ports of entry. Without that information to make fair, reasonable decisions, there is a serious risk of expulsion of a collective character.

Justice for Migrant Farmworkers who were Shot at when Demanding their Pay

Four years ago, in a Greek strawberries field, 150 farm workers were shot at when they went on strike, hospitalizing 33 men with gunshot wounds. The men had worked for up to six months tending the strawberries - sleeping next to them in the fields, under black plastic...

(Chowdury and 41 others against Greece, European Court of Human Rights, 30 March 2017)

Four years ago, in a Greek strawberries field, 150 farm workers were shot at when they went on strike, hospitalizing 33 men with gunshot wounds. The men had worked for up to six months tending the strawberries – sleeping next to them in the fields, under black plastic. Promised 22 Euros a day, the farmer gave them only food. Though they were migrants from Bangladesh with no papers, local police ignored them – as long as they worked. But elsewhere in Greece, irregular migrants were detained even for 18 months, in overcrowded cells. They feared this, if they quit their jobs. The farmer kept breaking his promises to pay them, but threatened to never pay what he owed if they quit. They went on strike three times, the last in March 2013, as the strawberries needed picking.

The attack caused outrage across Greece; the prosecutor charged the farmer and his shooters with assault. Represented by the Greek Council for Refugees and Hellenic League for Human Rights, the farm workers persuaded the prosecutor to add a charge of trafficking for forced labour. In July 2014, the Greek court convicted the attackers of assault, but acquitted them of trafficking, because the workers were, in the court’s view, free to leave their jobs.

Forty-two of the men took the case to the European Court of Human Rights. In March 2017, the Court upheld their claim, ruling that their irregular status, their mounting back-pay and the threats of harm by the farmer amounted to forced labour. By failing to protect them or to punish the farmer, the Greek state had violated Article 4 of the European Convention on Human Rights. The Court ordered Greece to pay the men a total of more than 500,000 Euros. In November 2017, the Greek government began paying.

Greece’s farms depend on Asian and African workers: tens of thousands of people with no papers. Despite the case, Greece still gives no legal status to farm workers. Instead, SYRIZA has adopted a weak system of suspending deportation for a few hundred people, six months at a time, making them just as exploitable.

The Chowdury judgment shows that forced labour doesn’t happen only to people in the sex industry, or to children. Migrants without papers are especially vulnerable: the solution is regularization, not threats of deportation.

Migrants Deported without proper Assessment of their Claims

(Khlaifia and 2 others against Italy, European Court of Human Rights, 15 December 2016)

In 2011, tens of thousands of people from North Africa sought to reach Italy by sea, fleeing persecution or without opportunities to create a good life. European countries had imposed visas for travel by regular shipping routes, so they took to irregular routes, often in unseaworthy or dangerous boats. 58,000 crossed that year – almost all arriving in Italy. 1,500 people drowned as they tried.

Half of the travellers came from Tunisia. Arriving in Italy, they were taken to makeshift camps and boats and prevented from leaving; but the authorities claimed no-one was detained. People who did not request asylum were not asked why they had risked their lives to reach Italy. Instead, officials took their names and information to identify their nationality. Without any discussion of whether they should be allowed to stay, they were then deported to Tunisia.

Three Tunisian men asked the European Court of Human Rights to rule that Italy had violated their human rights. After winning in a Chamber, the Court’s Grand Chamber reheard the case. The Grand Chamber agreed with the men that they were detained – and that Italy’s failure to grant them a remedy violated Article 5 of the European Convention on Human Rights. But the Court rejected their claim that the conditions were inhuman or degrading under Article 3.

Most importantly, the Grand Chamber ruled the deportation was not “collective expulsion” under Article 4 of Protocol 4 to the Convention. Though not asylum-seekers, the men argued the government still had the duty to ask each of them why they had come, before it made a deportation decision. Without this, Italy could not give individual consideration to each man’s situation. The Court rejected this, saying the men could have volunteered information.

The bar on collective expulsion is an important guarantee: each human must be considered as an individual before the drastic step of deportation is ordered. The Court’s judgment may undermine this. Expecting everyone who arrives on a leaky boat to demand to explain themselves is unrealistic. Just as Italy was able to quiz the men about their personal data, its officials could easily have asked them why they came. Border guards do this every day at regular ports of entry. Without that information to make fair, reasonable decisions, there is a serious risk of expulsion of a collective character.

Related Posts
X