Council of Europe declaration could affect handling of migration cases

A sweeping political declaration endorsed by 46 member states of the Council of Europe, the Strasbourg-based human rights body, could shape the way judges approach some of Europe’s most contested migration cases.

Ireland is among the countries to back the declaration, which zeroes in on the deportation of criminals and the handling of asylum claims.

It says that while migrants’ fundamental rights and freedoms “must be respected and protected in accordance with the principle of non-discrimination”, national governments retain an “undeniable sovereign right to decide on and control foreign nationals’ entry into and residence in their territory”.

The statement adds: “[National governments] have the right to establish their own immigration policie… and pursue immigration control as a public interest.”

The Council of Europe, established in the aftermath of World War II, is a democracy and human rights institution separate from the European Union and serves as the political body overseeing the ECHR.

Before the declaration was issued, about 90 Irish civil society organisations, academics and activists sent a joint letter to the Irish and British governments warning against any weakening of European human rights law, noting that the European Convention on Human Rights, upheld by the court, is a central pillar of the Good Friday Agreement.

‘A dangerous development’ – human rights groups

Human rights groups on both sides of the border have condemned the political declaration agreed in Moldova, describing it as part of an emerging pattern of political pressure on the interpretation and application of human rights law.

“The European Court of Human Rights and domestic courts are independent and cannot be directed by governments on how to interpret the law,” a joint statement from Free Legal Advice Centres (FLAC) and the Northern Ireland Human Rights Consortium said.

“Framing political agreements as a way to reshape how courts apply rights blurs the line between independent legal judgment and political expectation.

“This is a dangerous development, because it normalises political pressure on what should remain an impartial and independent process,” it said.

Eilis Barry, Chief Executive of FLAC, said: “It is concerning that the declaration is seeking to influence the European Court of Human Rights on its interpretation in relation to the human rights of certain categories of people.

“This would appear to be a move away from the idea of universal human rights which is the foundation of the ECHR. The evidence simply does not support the narrative that human rights law is preventing deportations in any widespread way.

“When political processes begin to shape how those rights are understood, it undermines confidence in the European Court of Human Rights Court which is supposed to act as a safeguard for individuals whose rights and freedoms are not secured at the national level.”

Declaration not binding on ECHR

Sources stressed that the declaration will not bind the court. Instead, they said, it is intended to give judges a broader margin of appreciation when considering the domestic impact of rulings from Strasbourg.

According to the declaration: “National authorities, which are in principle better placed than an international court to evaluate local needs and conditions, enjoy a margin of appreciation when implementing the Convention at the national level, subject to the supervisory jurisdiction of the Court”.

The document also invokes the “spirit of shared responsibility” between the Court and national governments, saying both “fulfil their respective roles, and that each fully respects the role of the other.”

Critics of the EHCR say rulings frequently frustrate deportations of violent criminals as they have family born in the country expelling them (stock image)

The declaration says “there are significant, complex, migration-related challenges in various member States which were either unforeseen at the time the Convention was drafted or have evolved significantly since then.

“The failure to address these challenges adequately may weaken public confidence in the Convention system.”

It further states that the inability “to expel or extradite an individual convicted or charged with a serious offence” can create serious difficulties for states, “including in relation to their fundamental duty to guarantee the right to everyone within their jurisdiction to live in peace, freedom and security, notably by protecting public safety and national security and preventing disorder and crime.”

Healthcare in receiving country should not be factor when extraditing

The signatories say that under Article 3 of the Convention, the ban on torture and inhuman or degrading treatment or punishment “is absolute” and admits no exception or derogation when considering the expulsion of an individual to a third country.

At the same time, the declaration says national authorities may assess the “minimum level of severity of ill-treatment” that amounts to inhuman or degrading treatment or punishment, and that “it is relative and depends on all the circumstances of the case.”

It also states clearly that a lower standard of healthcare in the receiving state, compared with the state where the crime was committed, should not weigh against extraditing an individual.

The statement also addresses Article 8 of the European Convention on Human Rights, which protects an individual’s right to family and private life.

It says national authorities should be able to expel a foreign national “even though such a measure may interfere with their right to respect for private and family life, so long as such interference is in accordance with the law and necessary in a democratic society in pursuit of a legitimate aim.”

Those aims may include “national security, public safety or the economic well-being of the country, the prevention of disorder or crime, the protection of health or morals or the protection of the rights and freedoms of others.”

The declaration says “the right balance must be struck between individual rights and interests and the weighty public interests of defending freedom and security in the societies of the States Parties.”

According to sources, this section of the declaration is expected to make it easier for countries to remove people in certain circumstances despite the limitations imposed by Article 8.

The declaration also covers so-called return hubs, under which failed asylum seekers can be transferred from one country to another while awaiting deportation, and the “instrumentalisation” of migration, particularly in relation to Russia and Belarus, which are alleged to have deliberately channelled migrants towards eastern European borders to provoke EU member states.

On that point, the declaration says that while migrants subjected to such manipulated migration by “hostile states” are still entitled to rights and protections under the Convention, their conduct in attempting to “irregularly cross the State border may be relevant in assessing the State’s compliance with certain Conventionobligations.”

The Council of Europe has issued political declarations in recent years, but this is the first to focus on migration. Today’s declaration stems from a joint initiative launched by Denmark and Italy in May of last year.

Prime ministers Mette Frederiksen and Giorgia Meloni set out their case in an open letter, arguing that the world had “changed fundamentally” since European human rights law was conceived “in the ashes of the great wars.”

The letter, also signed by Poland, Estonia, Latvia, Lithuania, Czechia, Austria and Belgium, said migration now operated on a “completely different scale” in a globalised world and that while some migrants had integrated willingly, “others have come and chosen not to integrate, isolating themselves in parallel societies and distancing themselves from our fundamental values of equality, democracy and freedom.”

It added: “In particular, some have not contributed positively to the societies welcoming them and have chosen to commit crimes. It is beyond our comprehension how some people can come to our countries and get a share in our freedom and our vast range of opportunities, and, indeed, decide to commit crimes. Although this concerns only a minority of immigrants, it risks undermining the very – 2 – foundation of our societies. It harms the trust between our citizens and it harms the trust in our institutions.”

The letter drew a sharp rebuke from Council of Europe secretary general Alain Berset, who accused its authors of “politicising” the ECHR, while other Council of Europe member states also voiced criticism.

Officials say, however, that the dispute triggered efforts to manage the divisions within the Council of Europe and ultimately led to a ministerial meeting in December aimed at narrowing the gap between the two sides.

At that meeting in Strasbourg, Ireland joined 26 other countries in signing a joint statement saying the “rights and freedoms of our populations are challenged by: people who take advantage of our hospitality by committing serious crime; trafficking in human beings and instrumentalisation of migrants.”

The statement also said that today’s migration pressures “were either unforeseen at the time the convention system and the Convention were drafted or have evolved significantly since then.”

It added that states had a “fundamental duty” to protect national security, defend democracies and ensure the safety of individuals.

“Failing to recognise and respond to these challenges, we risk undermining the very fundamental rights and freedoms that the Convention protects,” the statement concluded.

In a statement, the Department of Justice said: “In December 2025, ministers from all 46 Council of Europe member states (including Ireland) agreed to draft a new political declaration addressing migration and the European Convention on Human Rights (ECHR), in response to concerns raised by a number of member states about the interpretation of the Convention by the European Court of Human Rights in the context of migration.

“It should be noted that throughout discussions, Ireland has reiterated its longstanding and continued support for the ECHR and the role of the European Court of Human Rights (ECtHR) as an essential element of the architecture of the rule of law in Europe.

“As a founding member, Ireland has voiced its support for the work of the Council of Europe in promoting human rights and democracy, and continues to advocate for, and fully respect, the independence and the integrity of the ECtHR. Ireland is pleased that the declaration recognises the need for effective management of migration while protecting fundamental rights.”

The Minister of Justice Jim O’Callaghan welcomed today’s political declaration by the Council of Europe in Moldova.

He said: “The purpose of the declaration is to provide assistance in terms of the interpretation of the European Convention of Human Rights by the European Court of Human Rights.

“There are a number of issues identified, particularly in respect to the difficulty that some countries have in removing convicted criminals from those countries because back to the countries where they originally emanated from.

“So I think the declaration will be of benefit to all member states of the Council of Europe, and I welcome it.”