State Interests, Migration and
the European Court of Human Rights

1. Introduction

In May 2025, nine State Parties to the European Convention on Human Rights (ECHR or Convention) published an Open Letter directed at the European Court of Human Rights (Court or ECtHR),1 calling for a more restrictive interpretation of migrant rights. The Open Letter, which had been drafted on the initiative of Italy and Denmark, calls upon the Court to rebalance competing interests in migrant cases – those of migrants and those of the Contracting States – so as to allow more state discretion to tackle migration-related challenges on their own terms, and to protect the safety and stability of their societies. In order to keep the discussion about the Open Letter within the Council of Europe (CoE) intergovernmental framework, an Informal Ministerial Conference (IMC) was convened in Strasbourg in December 2025. The outcome was a unanimous decision to invite the Committee of Ministers (Committee)2 to prepare a draft political declaration concerning the Court’s approach to migrant rights in light of the challenges posed by irregular migration and “foreigners convicted of serious offences”, “taking duly into account, in particular, governments’ fundamental responsibility to ensure national security and public safety”.3

In parallel to this decision, 27 CoE member states delivered a Joint Statement to the CoE Conference of Ministers of Justice.4 In it, they reiterated a concern about the Court’s migration-related case-law and the need, as they see it, to further limit the scope of migrant rights to find the “right balance” between competing interests. The Joint Statement indicates that more than half of the CoE States, among them the Nordic countries, including Sweden, are unhappy with the Court’s interpretation of the Convention and its understanding of state obligations towards migrants. Moreover, it reveals that more than half of the CoE member states are anything but reluctant to tell the Court – an independent judicial body tasked with ensuring the “observance of the engagements undertaken by the High Contracting Parties in the Convention and [its] Protocols” (Article 19 ECHR) – how it should approach and interpret the Convention. Equally significant, however, is the fact that no less than 19 CoE member states declined to support the Joint Statement. This latter group of states includes the four CoE member states which, in 2025, hosted the most asylum seekers, refugees and beneficiaries of temporary protection of all the CoE member states: France, Germany, Spain and Türkiye. Those States did not sign either the Open Letter or the Joint Statement. This situation has generated a protracted disagreement about the content of the forthcoming political declaration.

In this European policy analysis, we discuss three interrelated questions raised by the action taken by the 27 CoE member states. Firstly, how should we understand the problem as defined by those 27 States and is it actually a problem? Secondly, how is the work on a political declaration playing out, including the disagreement between different states within the CoE, and what might be the outcome of those discussions? Thirdly, what consequences could a political declaration along the lines of the Joint Statement have?

2. What is being sought?

The core argument made by the signatory States of the Open Letter and the Joint Statement is that the Court, when adjudicating cases related to migrant rights brought against Contracting States, rules in favour of migrant rights in an unbalanced way. Their perception is that the Court has expanded the scope of the protection given to migrants under the ECHR excessively by limiting state discretion for deciding who may enter, remain and be expelled from their territory. Although neither the Open Letter nor the Joint Statement are expressly directed at the Court, it is nevertheless clear that it is their main addressee.

The Open Letter, which is more direct in tone than the Joint Statement, explicitly asserts that there is a need to address how the Court has developed its interpretation of the Convention and whether, in the process, it has extended its scope beyond the intentions at the time it was adopted in 1950. The Open Letter argues that the Court’s interpretation has “resulted in the protection of the wrong people and posed too many limitations on the states’ ability to decide whom to expel from their territories”,5 something which they view must change. In this context, the Open Letter seems to distinguish between ‘good’ migrants (described in the Open Letter as those who have migrated “via legal pathways” and have made an effort to “integrate into our culture”) and ‘bad’ migrants (those who have migrated irregularly, and have “chosen not to integrate, isolating themselves in parallel societies and distancing themselves from our fundamental values”, with some choosing not to “contribute positively” and also “committing crimes”).6 The signatories of the Open Letter also criticise the Court for limiting their “ability to make political decisions in our own democracies” and assert, in sum, that they should have more freedom to control migration as they see fit, including responding to the instrumentalisation of migration at their borders.7

The Joint Statement is less direct and uses more diplomatic language than the Open Letter. Nevertheless, it argues that migration poses severe challenges to European societies that were unforeseen at the time of drafting the Convention, but which must be met to safeguard national security and democracy and to ensure the security of individuals within the signatory States’ jurisdictions.8 Five demands to tackle different challenges are articulated:

1.State Parties must be allowed to expel foreigners convicted of serious crimes, even if they have established family ties with the host State (which are protected by Article 8 ECHR). Specifically, individual rights and state interests must be rebalanced so as not to prevent State Parties from expelling foreigners convicted of, for example, serious violent crimes, organised crime, trafficking or sexual assault, because of their family ties and other links to the host country and the country of destination.

2.The right of migrants to remain in the host State if there is a serious risk of them being subjected to torture, inhuman and degrading treatment or punishment in their country of origin should be restricted. In particular, the prohibition against “inhuman or degrading treatment” (Article 3 ECHR) should be limited to the “most serious issues” and not prevent State Parties “from taking proportionate decisions on the expulsion of foreign criminals, or in removal or extradition cases, including in cases raising issues concerning healthcare and prison conditions”.9

3.State Parties should not be prevented from implementing clear rules and procedures that enable timely decision-making under Article 8 ECHR, which are capable of effective enforcement, and which reflect an appropriate balance between individual rights and public interests.

4.State Parties should not be prevented from cooperating with third countries regarding asylum and return procedures, i.e. externalising such procedures so they take place extraterritorially – even if those countries are not parties to the Convention – as long as the human rights of irregular migrants are preserved.

5.The instrumentalisation of migration creates an “extremely sensitive geopolitical context” and State Parties need to properly ensure national security and public safety in this context, particularly in situations where human rights and fundamental freedoms are abused or instrumentalised by hostile regimes and “individual applicants with ulterior motives”, to the detriment of the Convention system.10

3. The demands in light of ECtHR case-law

The core of the problem identified by the signatory States of the Open Letter and the Joint Statement concerns the limits imposed on their state sovereignty in respect of the right to control the entry, residence and removal of non-citizens. However, on multiple occasions, the Court has confirmed its position that “as a matter of well-established international law, and subject to their treaty obligations, including those arising from the Convention, Contracting States have the right to control the entry, residence and removal of aliens”.11 Recently, the Court underlined that, in the area of migration and border control, “it is especially important to give the national courts an opportunity to interpret domestic law and prevent or put right Convention violations through their own legal system”.12 Yet the political leaders of 27 CoE member states nevertheless still seem to hold the view that the Court has extended the protection of migrants granted by the Convention beyond its actual scope.

Indeed, it is true that the Convention does not allow Contracting States to treat non-nationals entirely as they see fit. By becoming a party to the ECHR, States commit themselves to safeguarding the rights and freedoms enshrined in the ECHR and its Protocols to everyone within their jurisdiction (Article 1 ECHR). “Everyone” includes non-nationals, irrespective of their legal status, including migrants, asylum-seekers, refugees and irregular migrants. Individuals who consider their rights to have been violated by a Contracting State may therefore make a complaint to the Court about an alleged breach of the Convention (Article 34 ECHR).

The provisions most often cited by applicants in immigration-related cases are Article 2 ECHR (right to life), Article 3 ECHR (prohibition of torture and inhuman and degrading treatment, including the non-refoulement principle), Article 8 ECHR (right to private and family life), Article 13 ECHR (right to an effective remedy), Article 34 ECHR and Article 4 of Protocol 4 to the ECHR (prohibition of collective expulsion).13 Many of these provisions oblige Contracting States to either refrain from a certain action, for example deporting a non-national to a country in which they would risk torture, or to take a certain action, such as allowing a non-national to remain in the host State so as not to interfere disproportionately with their right to family life. Some of the rights enshrined in the ECHR are absolute – including the right to life and the right not to be subjected to torture or inhuman or degrading treatment or punishment – while others can, under certain circumstances, be limited, such as the right to private and family life.

As human rights scholars Forde and Donald note, the “Joint Statement implies that the Court’s interpretation of the ECHR is at the core of states’ difficulties in the migration context”.14 This is, however, not really the case. In January 2026, the Court published a factsheet with key facts regarding its migration-related case-law, and relevant statistics. It shows that of the more than 430,000 applications processed by the Court over the past ten years, only around 2 % concerned immigration.15 Only a minority of the complaints submitted to the Court ended in a judgment on the merits; most complaints were found inadmissible.16 Moreover, violations of State obligations were found in only about 6 % of the applications made to the Court concerning immigration (300 cases).17 Reading those statistics, the problem seems to be of a substantially smaller scale than the States’ position in the Joint Statement would suggest.

Here one could argue that it is not the number of judgments that matters, but the effect of judgments at national level. Under Article 46(1) ECHR, Contracting States “undertake to abide by the final judgment of the Court in any case to which they are parties”. Moreover, while the Court’s judgments are not formally legally binding for other countries, they are strong indications of how the Court would interpret the ECHR in a similar case concerning another CoE member state.

Important examples of such case-law include the 2012 judgment in Hirsi Jamaa and others v. Italy,18 in which the Court clarified that states cannot avoid their obligations under the ECHR by intercepting migrants at sea and returning them to other countries without proper assessment of the risk of them being subjected to treatment prohibited under Article 3 ECHR, thereby also clarifying the conditions for the extraterritorial application of the ECHR.19 Another example is the 2021 judgment in M.A. v. Denmark,20 in which the Court found that Denmark’s three-year waiting period for family reunification imposed on beneficiaries of subsidiary protection failed to strike a balance between the interests of the state and the applicant’s right to family life. This, however, would only be a problem of the magnitude implied by the Open Letter and Joint Statement if the Court indeed had extended the protection of the ECHR in migration cases too far, or only had ruled in favour of the applicant.

A recent expert report published on 18 February 2026 examines how strict the European Court of Human Rights actually is in migration cases. In it, migration law scholars Ellen Desmet, Eva Sevrin and Thomas Spijkerboer assert that while there are different views on whether the Court has been too state-friendly or too migrant-friendly, the argument that the Court’s case-law constitutes an obstacle to effective migration and asylum policies is unfounded.21 The report shows that while the Court’s case-law has established a basic human rights standard which also applies in the migration context, it is far from pushing a consistently migrant-friendly agenda. On the contrary, the report, drawing on Dembour’s work, points to how the Court often privileges state sovereignty over migrants’ rights.22 The report, moreover, shows how the Court’s case-law since 2016 – in the aftermath of what is widely referred to as the refugee crisis in Europe – has taken a more restrictive turn, giving States more leeway to conduct migration policy in the way they see fit.23 Finally, it points out that the ECHR does not exist in a vacuum: the standards laid down in the ECHR are also found in United Nations human rights treaties, to which all of the CoE member states are parties, such as the Convention against Torture and the International Covenant on Civil and Political Rights, and in binding EU law. The ECHR’s status as part of the EU legal order is established by the Treaty on European Union (Article 6(3) TEU). In other words, limitations of State discretion as regards migrant rights are not based solely on the ECHR, but are established by international law on several levels and in several systems.

The statements and rationale of the Open Letter and the Joint Statement have been much criticised. A core critique concerns the implications that a declaration aligned with the Joint Statement would have for migrants and their rights. The CoE’s Commissioner for Human Rights, Michael O’Flaherty, has expressed concern about how the “lazy correlation” of migration and crime, while not corresponding with reality, feeds misunderstandings and increases negative attitudes towards migration.24

A second line of critique concerns the implications for the judicial independence and impartiality of the Court, seen as cornerstones of the rule of law, the right to a fair trial and the right to effective judicial protection. Along these lines, the CoE’s Secretary General, Alain Berset, when commenting on the Open Letter, warned against politicising the Court. As he put it: “[I]n a society governed by the rule of law, no judiciary should face political pressure. Institutions that protect fundamental rights cannot bend to political cycles. If they do, we risk eroding the very stability they were built to ensure”.25 Even if the Court’s authority on matters of interpretation is firmly established (Article 35 ECHR), its functioning ultimately depends on the will of Contracting States to respect and support it, both financially and politically. As international law scholars McKenzie and Sands warn when reflecting on the independence of international courts, even if the independence of these courts and judges are routinely affirmed, “the degree of control exercised by political organs over judicial bodies through financial and procedural mechanisms may be significant”.26 From this perspective, a political declaration aligned with the Joint Statement could cause long-term damage to the integrity of the Court, opening the door to questioning the legitimacy of the ECHR itself, as well as of other human rights treaties.

4. The process towards the adoption of a political declaration

The political declaration, which is to be adopted at the Committee’s formal session in Chișinău, Republic of Moldova, on 14–15 May 2026 (“Chișinău Declaration”),27 echoes one of the pathways that had been indicated by the CoE Secretary General as a way to manage the ensuing political discontent.28 At the time of writing, a draft of the political declaration is being prepared by the Steering Committee for Human Rights (CDDH). So far, it has held three extraordinary meetings dedicated to this declaration without reaching a consensus on its contents.29 In parallel, the CDDH Drafting Group on the safe third country concept is seeking to update the existing recommendation dedicated to this matter. Since January 2025, it has held four meetings, most recently in mid-March 2026. Further, in November 2025, the Committee of Ministers created a Committee of Experts on combatting the smuggling of migrants to prepare a draft recommendation on deterring and fighting such practices.30

The final decision on the declaration rests with the Committee of Ministers, the CoE’s intergovernmental decision-making body.31 Together with the Parliamentary Assembly, it acts as the guardian of the core values of the Council of Europe set out in the CoE Statute. However, it is also the “voice of the governments” insofar as it enables political dialogue on all questions of common political interest which require concerted pan-European solutions and responses, with the exception of defence matters.32 The outcome of such dialogue may result in the adoption of a declaration, such as that proposed.

Over the years, the Committee has adopted a multitude of such declarations, some of which relate to the Court.33 A recent example is the declaration on the protection of judges of the Court from threats and reprisals and on the recognition of their service adopted in 2025.34 Another example is the Declaration on the effective processing and resolution of cases relating to inter-state disputes, which relates to Russia, adopted in 2023, in which the Committee stressed the importance of the Court continuing “to prioritise [these cases] and take the steps necessary to ensure their effective and speedy examination and resolution”.35 When the States call for it, intergovernmental declarations concerning the Court are adopted at High-Level Conferences involving Heads of State and Government. The most significant ones to date are the Interlaken Declaration (2010), the Izmir Declaration (2011), the Brussels Declaration (2015), the Copenhagen Declaration (2018) and the Reykjavík Declaration (2023). These declarations share the ambition of seeking to support the functioning of an overburdened Court through a series of reforms that serve to make it more effective without restricting its mandate.

At the time of writing this policy analysis, the CDDH is preparing the draft text of the forthcoming political declaration with a view to submitting a final text to the Committee for adoption at the session in Chișinău. From its meeting reports, it is evident that the first proposed text provoked many reactions. This was acknowledged in the CDDH report of its meeting held in January. During its second extraordinary meeting several participants of that meeting, which included representatives from the Parliamentary Assembly and the Deputy Registrar of the Court itself, stressed the “importance of respecting the integrity and independence of the Court, avoiding any impression of giving instructions to the Court, and respecting the rights of migrants”.36 Meanwhile, delegates who participated in the Informal Ministerial Conference (IMC States) insisted on the need for the Court to reconsider its interpretation of the Convention, as conveyed by several elements included in the preliminary draft.

Political declarations are adopted by consensus without a vote. Thus, the outstanding question is whether the 46 CoE States represented in the Committee of Ministers will be ready to make the concessions needed for a consensus to emerge. The drafting process will thus need to navigate between continued objections against the Court’s current interpretation of the Convention and the positions of those 19 States that decided not to sign the Joint Statement or the Open Letter. The non-signing by a significant number of States affected by migration implies that they either do not view the Court’s interpretation as a problem or do not believe that it is within their power, and contrary to the rule of law, to issue statements with a view to putting pressure on the Court to reconsider its interpretation of specific provisions of the Convention.

5. Outstanding points of political disagreement

The first proposed text of the declaration, prepared by the Secretariat and discussed at the CDDH meeting held in January 2026, reflects an effort to manage the reality of different and apparently opposing demands, by acknowledging them, but also by softening the language used and anchoring the language in previous declarations.37 As for the relationship between the Court and the State Parties to the ECHR, the proposed text recalls that the Court authoritatively interprets the ECHR. However, the same text also expresses “continued appreciation for the Court’s efforts to ensure that the interpretation of the Convention proceeds in a careful and balanced manner”, thus echoing wording used in the Copenhagen Declaration. The proposed text further “welcome[s] and encourage[s] open dialogues between the Court and State Parties as a means of developing an enhanced understanding of their respective roles in carrying out their shared responsibility for applying the Convention”. This call for open dialogue can also be found in previous declarations (Copenhagen, Brussels and Brighton). In this sense, the proposed text does not imply a change in the relationship between the Court and the State Parties.

However, whether or not the final declaration will in fact pose a challenge to the Court’s judicial independence will depend on the final wording of the migration paragraphs, and whether these are in line with the Court’s case-law. To include the draft wording of these paragraphs in the final version of the declaration would be deeply problematic from the standpoint of protecting migrant rights. For example, the political declaration would then state that the Committee of Ministers views “irregular migration” as posing “serious and complex challenges” for State Parties and also stress the “challenges related to the expulsion and return of foreigners convicted of serious offences, while respecting human rights”.38 The declaration would furthermore underline “the fundamental responsibility of governments to ensure national security, public safety and the economic well-being of the country”, thus depicting these interests as potentially in conflict with existing migrant rights.

Finally, a declaration that stresses the “undeniable sovereign right to control aliens’ entry into and residence in their territory”, even if recognised in the Court’s case-law, is still regrettable if stressed in this context.39 More generally, the inclusion of those elements is problematic in a declaration concerning the Court. Even if the wording of the elements is general and certainly not “instructions to the Court”, they can still be read as an attempt to put pressure on the Court to revise its balancing of the interests at stake in cases involving the human rights of migrants.

Should the IMC States succeed in getting a declaration aligned with their Joint Statement adopted, their action would constitute a challenge to the Court. Such a declaration would have no legal effect, i.e. not be legally binding, and lack genuine unanimous support. Even so, the Court would need to take the declaration into account in pending and future cases, even if it is simply to dismiss its bearing on the balancing of interests. From the perspective of the Court, the declaration would be perceived as an attempt to pressurise the Court to revise its interpretation of key provisions, including Article 8 ECHR on the right to private and family life and Article 3 ECHR establishing the absolute right to be free from torture, inhuman or degrading treatment. Considering the absolute and non-negotiable character of this latter right, it is particularly troubling that Article 3 ECHR is being challenged.

Since the January 2026 meeting, the process has become even more complex and the uncertainty about the outcome has increased. During its 2nd extraordinary meeting in February 2026, a longer preliminary draft text containing elements of a political declaration was discussed.40 The report of the meeting affirms that the CDDH will address “actual situations, which represent significant, complex challenges in various member States”, more specifically: the expulsion of foreign nationals convicted of serious criminal offences and extradition of foreign nationals, including issues under Articles 3 and 8 of the Convention; mass arrivals of migrants by land and sea; the instrumentalisation of migration; and decision-making in migration cases. Also on the list of issues to be covered is the search for “innovative solutions” for addressing migration, as well as general themes regarding the clarity and consistency of the Court’s case-law and the significance of context when it interprets the Convention.41

The revised draft entails a variety of conflicting proposals regarding how those paragraphs should be formulated. For example, in relation to the expulsion of foreigners, one proposal is to include a paragraph emphasising that “the prohibition of torture and inhuman or degrading treatment or punishment under Article 3 of the Convention is absolute [and that] it permits no derogation, contains no exceptions, and allows for no legitimate interference”. Another proposal, by contrast, is to “underline that where an individual is being expelled or extradited, the quality of accessible healthcare in the receiving State should only give rise to a real risk of Article 3 in very exceptional circumstances”.42 As for the Court’s role, one proposal is to include a paragraph inviting the Court to take into account “the applicability in different contexts and circumstances of principles that it establishes”.43 It is an attempt to relativise the protection afforded by the ECHR.

At its third extraordinary meeting held in March 2026, a revised draft text of the declaration was discussed.44 In this draft, the number of proposals for general elements relating to the Court’s interpretation has been reduced, and only those affirming the Court’s interpretative authority remain included. Meanwhile, however, the proposals for wording relating to migration have proliferated, leading the CDDH to remove them altogether from the revised draft text (see Appendix) and instead list them all in the meeting report. At the same time, it promises to add the elements on migration-related issues and general themes to the draft before transmission of the text to the Committee of Ministers.

Among the outstanding disagreements that remain to be settled is how to formulate a paragraph on the importance of context when interpreting the Convention. One proposal in this regard, which is clearly aimed at increasing state discretion, is to highlight that “in accordance with the principle of subsidiarity and the concept of the margin of appreciation, there may be a range of different but legitimate solutions when applying certain Convention provisions, each of which could be compatible with the Convention, depending on the context”.45

6. Conclusion

The Open Letter of May 2025 and the Joint Statement of December 2025 challenged the Court in a way rarely seen before. While State Parties have indeed expressed their discontent with the Court’s jurisprudence before when they perceived it as failing to sufficiently take the interests of the state into account, the current, coordinated effort to influence the Court’s interpretation of the ECHR is of a different calibre. At the time of writing, it remains to be seen what the final outcome will be, considering, in particular, the protracted disagreement on a number of outstanding issues, both relating to the wording of the elements relating to migrant rights and relating to the elements regarding the Court’s consideration of context. The conventional strategy for managing these kinds of disagreements would be to limit the text to that which can be agreed upon. However, this time, such an approach might prove unsuccessful, since it would fail to acknowledge the challenges identified in the Joint Statement. At the same time, as explained in this analysis, these challenges are arguably exaggerated and far from all CoE member states even perceive them as challenges. Moreover, as we also have argued, the solution proposed in the Joint Statement threatens to undermine the Court’s judicial independence and the integrity of the Convention system as a whole. A successful attempt to give guidance and direction to the Court on how to interpret the Convention in relation to migration rights is likely to lead to other such attempts in the future, and to the expansion of this practice to other Convention rights deemed controversial by some CoE States.

If the IMC States succeed in their efforts to obtain the kind of political declaration they would like to see, the real challenge is the challenge posed to the judicial independence of the Court and how a declaration of this kind will contribute to the erosion of the interpretative authority of the Court. Indeed, it is not the failure to recognise and respond to migration challenges that will ultimately erode public confidence in the Convention system, as the IMC States argue,46 but rather the failure to continue to respect the Court’s fundamental role in protecting human rights, in a context where the protection of migrants and refugees has become an extremely politicised and polarising topic.

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1 Open Letter, made public on 22 May 2025, p. 2, https://www.governo.it/sites/governo.it/files/Lettera_aperta_22052025.pdf.

2 The Committee of Ministers is composed of the ministers for foreign affairs of the 46 member states of the Council of Europe or their permanent diplomatic representatives in Strasbourg.

3 Informal Ministerial Conference, 10 December 2025, Conclusions, https://rm.coe.int/informal-ministerial-conference-10-december-2025-conclusions/488029b843.

4 Joint Statement delivered to the Conference of Ministers of Justice of the Council of Europe, 10 December 2025, https://www.governo.it/sites/governo.it/files/JointStatement_20251210.pdf.

5 Open Letter, p. 2.

6 Open Letter, p. 1.

7 “Instrumentalisation” in this context refers to the situation where people are being forcibly displaced towards an international border and made to cross it to claim asylum, the aim being to exert pressure on the target state. See e.g. European Union Agency for Fundamental Rights (2025), Countering the instrumentalisation of migrants and refugees and respecting fundamental rights, FRA Position Paper, Vienna, paras. 24–31, and J. Kohlenberger, P. Hoffmeyer-Zlotnik, L. Laube, B. Parusel & D. Saracino (2025), “Instrumentalisation of migration: Europe needs a strong and lawful response”. Policy Brief. Berlin: Hertie School, Jacques Delors Centre. https://www.delorscentre.eu/en/publications/detail/publication/instrumentalisation-of-migration (last accessed 20 April 2026).

8 Joint Statement, p. 1.

9 Joint Statement, p. 2.

10 Joint Statement p. 2. See also M. Gkliati (2023) “Let’s Call It What It Is: Hybrid Threats and Instrumentalisation as the Evolution of Securitisation in Migration Management” European Papers, Vol. 8, 2023, No 2, European Forum, Insight of 27 September 2023, pp. 561–578. https://www.europeanpapers.eu/system/files/pdf_version/EP_EF_2023_I_023_Mariana_Gkliati_00675.pdf (last accessed on 20 April 2026) and ECtHR Grand Chamber pending cases C.O.C.G. and Others v. Lithuania (no. 17764/22), H.M.M. and Others v. Latvia (no. 42165/21) and R.A. and Others v. Poland (no. 42120/21).

11 See e.g. ECtHR, N.D. and N.T. v. Spain [GC], nos. 8675/15 and 8697/15, § 167–168, 13 February 2020, and ECtHR, Mansouri v. Italy (dec.) [GC] no. 63386/16, § 113, 29 April 2025 with further references.

12 Mansouri v. Italy, § 113.

13 European Court of Human Rights, “75 years of the European Convention on Human Rights. Focus on: Immigration”, Factsheet, January 2026, p. 2, https://ks.echr.coe.int/documents/d/echr-ks/focus-on-immigration (last accessed 23 March 2026).

14 Andrew Forde & Alice Donald, “Countdown to Chișinău: The Risk of Politicising the ECHR over Migration”, EJIL Talk!, 19 December 2025, https://www.ejiltalk.org/countdown-to-chisinau-the-risk-of-politicising-the-echr-over-migration/ (last accessed 20 April 2026).

15 European Court of Human Rights, Press Factsheet - Focus On: Immigration, p. 3, https://ks.echr.coe.int/documents/d/echr-ks/focus-on-immigration.

16 Ibid.

17 Ibid.

18 Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, 23 February 2012.

19 See, however, the discussion in S.S. and Others v Italy (dec) no. 21660/18, 20 May 2025.

20 M.A. v. Denmark [GC] no. 6697/18, 9 July 2021.

21 E. Desmet, E. Sevrin, & T. Spijkerboer (2026). “How strict is the European Court of Human Rights in migration cases?” University of Ghent Expert Report, http://hdl.handle.net/1854/LU-01KHKABCQW2TR6FPT1PM7NJZ2B (last accessed 20 April 2026).

22 Desmet, E., Sevrin, E., & Spijkerboer, T. (2026); Dembour, M-B. (2021), “The Migrant Case Law of the European Court of Human Rights: Critique and Way Forward”, in B. Çalı, L. Bianku, and I. Motoc (eds), Migration and the European Convention on Human Rights, vol. 4, Oxford University Press, pp. 19–40, online edition https://academic.oup.com/book/39494/chapter/339290695 (last accessed on 20 April 2026).

23 Desmet, Sevrin & Spijkerboer (2026), pp. 4–5.

24 Ashifa Kassam, “‘Who’s it going to be next time?’: ECHR rethink is ‘moral retreat’, say rights experts”, The Guardian, 13 December 2025. https://www.theguardian.com/law/2025/dec/13/europe-echr-rethink-moral-retreat-say-human-rights-experts (last visited 20 April 2026).

25 Council of Europe, “Alain Berset on the joint letter challenging the European Court of Human Rights”, Newsroom, 24 May 2025. https://www.coe.int/en/web/portal/-/alain-berset-on-the-joint-letter-challenging-the-european-court-of-human-rights (last accessed 19 February 2026).

26 R. Mackenzie and P. Sands (2003), “International Courts and Tribunals and the Independence of the International Judge’, Harvard International Law Journal, vol. 44, pp. 271–285, at 283–4; The Burgh House Principles were adopted in 2004 by the Study Group of the International Law Association on the Practice and Procedure of International Courts and Tribunals, in association with the Project on International Courts and Tribunals. https://docs.pca-cpa.org/2020/04/ef1f0fb6-burgh-house-principles.pdf (last accessed on 20 April 2026).

27 https://search.coe.int/cm#{%22CoEIdentifier%22:[%220900001680b5ca07%22],%22sort%22:[%22CoEValidationDate%20Descending%22]}.

28 Speaking notes of the Secretary General and the Deputy Secretary General to the 1539th meeting of the Ministers’ Deputies, Valletta, Malta, 7 October 2025, p. 2, point 1 related to a High-level conference and the adoption of a declaration on migration and the Convention, which ’could set out the states’ views in relation to migration and the Convention while, at the same time, guaranteeing the Court’s judicial independence and impartiality. This text would clearly indicate how the High Contracting Parties understand the Convention in migration cases, including in relation to criminal activities’, https://search.coe.int/cm/eng#{%22CoEIdentifier%22:[%22091259488028c6b1%22],%22sort%22:[%22CoEValidationDate%20Descending%22]}.

29 CDDH Meeting Report, Extraordinary meeting, Strasbourg 13–15 January 2026, CDDH(2026)01; and CDDH Meeting Report, Second extraordinary meeting, Strasbourg, 25–27 February 2026, CDDH(2026)R2_EXTRA.

30 Draft comprehensive Recommendation on deterring and fighting the smuggling on migrants, through legal means and other actions, and on international cooperation, taking into account the European Committee on Crime Problems’ Report on the need for and feasibility of a possible new Council of Europe Instrument on the smuggling of migrants, with full respect for their human rights. See Extract from CM(2025)131-addfinal, Terms of reference of the Committee of Experts on combatting the smuggling of migrants (PC-TM).

31 The Holy See, Japan, Mexico and the USA are observer states in the Committee of Ministers.

32 https://www.coe.int/en/web/cm/voice-of-the-governments.

33 The full list of declarations can be consulted here.

34 Declaration by the Committee of Ministers on the protection of judges of the European Court of Human Rights from threats and reprisals and on the recognition of their service. Adopted by the Committee of Ministers on 15 January 2025 at the 1516th meeting of the Ministers’ Deputies.

35 Declaration by the Committee of Ministers on the effective processing and resolution of cases relating to inter-State disputes. Adopted by the Committee of Ministers on 5 April 2023 at the 1462nd meeting of the Ministers’ Deputies.

36 Meeting Report CDDH(2026)R2_EXTRA Strasbourg, 27 Feb 2026, https://rm.coe.int/steering-committee-for-human-rights-cddh-meeting-report-second-extraor/48802ac3f8.

37 For the text as originally proposed, see CDDH(2026)01 6 January 2026, https://rm.coe.int/steering-committee-for-human-rights-cddh-possible-issues-for-inclusion/48802a16c7, as discussed by the CDDH at its extraordinary meeting on 13–15 January 2026. The meeting report is CDDH(2026)R_EXTRA, https://rm.coe.int/steering-committee-for-human-rights-cddh-meeting-report-extraordinary-/48802a3f1a.

38 The exact wording of the elements are found in CDDH(2026)01 6 January 2026 and reproduced here: “Note with concern the serious and complex challenges posed by irregular migration, such as instrumentalisation of migration, smuggling of migrants, trafficking in human beings and other criminal activities in this context”; and “Reiterate the challenges related to the expulsion and return of foreigners convicted of serious offences, while respecting human rights”.

39 The exact wording of the elements are found in CDDH(2026)01 6 January 2026 and reproduced here: “Recall the fundamental responsibility of governments to ensure national security, public safety and the economic well-being of the country”; and “Recall that State Parties have the undeniable sovereign right to control aliens’ entry into and residence in their territory. This right must be exercised in accordance with the provisions of the Convention”.

40 For the preliminary draft text and discussion, see CDDH(2026)04 30 January 2026 available at https://rm.coe.int/steering-committee-for-human-rights-cddh-prelimnary-draft-text-for-the/48802a7498 and Meeting Report CDDH(2026)R2_EXTRA Strasbourg, 27 Feb 2026, https://rm.coe.int/steering-committee-for-human-rights-cddh-meeting-report-second-extraor/48802ac3f8

41 See Appendix included in the above-mentioned Meeting Report, pp. 22–28.

42 Ibid at p. 24.

43 Ibid at p. 27.

44 For the revised draft text for the outcome document, see CDDH(2026)06 05 March 2026, https://rm.coe.int/steering-committee-for-human-rights-cddh-revised-draft-text-for-the-ou/48802ad6c5, and Meeting Report CDDH EXTRA(2026)OJ3 annotated 10 March 2026, https://rm.coe.int/steering-committee-for-human-rights-comite-directeur-pour-les-droits-h/48802a81d9.

45 See above mentioned CDDH(2026)06 05 March 2026, p. 22.

46 Ibid. pp. 6, 7, 22 and 23.