By Henry Chibuike Ugwu, LL.M

Introduction

Millions of asylum seekers have fled their countries of origin to Europe with the hope of securing international protection as refugees, subsidiary protection, or humanitarian protection; while many others are at various stages of fleeing their countries. With the abysmal human rights track record in Nigeria, maladministration by the government, and the deteriorating security situation, it is not surprising that many Nigerians have fled Nigeria due to persecution on grounds enumerated in the Refugee Convention, or because of exposure to conditions that put them at risk to inhuman or degrading treatment. Many countries in Europe are sought-after destinations because of the general perception that there is respect for the rule of law and favourable migration policies in those countries.Still, it would seem that in reality, the treatment of persons seeking refuge in Europe is unsatisfactory.

A cornerstone of migration law is the protection of human rights and freedoms of asylum seekers and other vulnerable groups deserving international protection, especially the right to protection from inhuman and degrading treatment.[1] However, the system for protecting human rights under the European refugee law acquis leaves much to be desired. This has compounded the problems that confront asylum seekers in their journey to refuge from persecution.[2]

The European Convention on Human Rights, as amended (ECHR), and the European Court of Human Rights (ECtHR), have provided a system of redress for asylum seekers where they rely on critical convention rights to secure justice against predicaments that had been imposed on them because of gaps in the protection mechanisms of migration and refugee laws. One of the most important provisions of the ECHR that asylum seekers have employed to secure protection against inhuman or undignified detention or reception conditions is Article 3 of the ECHR, which provides that ‘no one shall be subjected to torture or to inhuman or degrading treatment or punishment.’ In the widely celebrated case of MSS v Belgium and Greece[3], the ECtHR ruled, inter alia, that there was a violation of Article 3 of the ECHR by the government of Greece due to the applicant’s poor living and detention conditions in Greece, and by the government of Belgium for sending the applicant back to Greece and exposing him to poor detention and living conditions, as well as risks linked to the deficiencies in the asylum system in Greece.[4]

In BG & others v France[5], the ECtHR appeared to have diluted the efficacy of Article 3 of the ECHR, thereby divesting asylum seekers of the vital protection that they derived under that provision. This has further worsened the precarious position of asylum seekers due to the ineffective system for protecting human rights under European migration law. This case summary investigates the implications of the ruling of the ECtHR in BG & others v France vis-à-vis Article 3 of the ECHR. Part 2 will provide a brief background of the case. Part 3 will present relevant legal analysis, while part 4 will express my concluding thoughts.

Facts of BG & others v France
This case pertains to applications before the ECtHR by four families of Albanian, Bosnian, and Kosovan nationalities who came to France in 2013 and applied for asylum. These families were accompanied by children aged between one and eleven years old. The ECtHR judgment on the merits of the case concerned only one family – Z, made up of a couple from Kosovo and three children. The applications of the other families were struck out, in limine, on technical grounds, which hinged on the unavailability of their legal counsel.

The crux of the application before the ECtHR by family Z was that France violated Article 3 (prohibition against torture; inhuman or degrading treatment, or punishment) and Article 8 (right to respect for private and family life) of the ECHR because of the inhuman, degrading, and deplorable accommodation and reception conditions that the family was subjected to for more than three months at the avenue de Blida in Metz. The applicants submitted that the conditions they were exposed to at Metz were also unsuitable for young children. The ECtHR dismissed the claim based on Article 3 on its merits and held there was no violation of the provision. On the other hand, the court declared the claim based on Article 8 inadmissible.[6]

Legal Analysis
In support of their application, the applicants provided legally admissible evidence, including photographs, a newspaper article, and a report by a local civil society group. The evidence showed they were subjected to overcrowded, unsafe, and deplorable living conditions at the camp where they were required to stay pending their asylum applications for more than three months. An estimated 450 people were sharing four showers, eight urinals, and four closed toilets. The applicants also made a strong case backed by evidence that critical repairs of relevant infrastructure at the camp they stayed in Metz were carried out belatedly by the French authorities, further aggravating the applicants’ plight. Worthy of note is that there were third-party interventions in the case by two parties and the submission of the interveners supported the claim made out by the applicants before the ECtHR.

In defence of the application, the opposing party- the government of France, submitted that it had ensured prompt supplies of sanitary materials to the applicants and expediently carried out all fundamental repairs of infrastructure at the camp. Its posture suggested that the government had done everything reasonably possible, within the government’s means and given the circumstances that confronted it, to attend to the applicants’ situation. The government also availed the court of legally admissible evidence, including photographs that showed suitable living facilities at the camp.

Upon evaluating the evidence before it, the court concluded that the applicants had generalised the living conditions they complained about without proffering specific details that would enable the court to enter judgment in their favour. Despite acknowledging that the living conditions the applicants were exposed to were under par, the court’s decision suggested that the case of the applicants fell below the threshold to establish that they had been subjected to inhuman and degrading treatment by the French authorities.

The court’s decision presents a drawback to the protection of the fundamental human rights of asylum seekers. Furthermore, it presents an ambiguous yardstick for measuring what facts qualify as inhuman or degrading treatment in the violation of Article 3 of the ECHR in the asylum context. Before this case, Article 3 of the ECHR presented a viable and reliable option to seek redress whenever host States failed to measure up with minimum standards for living and reception conditions for asylum seekers,[7] but that status is now tentative.

Conclusion
Asylum seekers have been identified as an underprivileged and vulnerable group deserving of protection under the law.[8] It follows that this group should be availed of all the benefits of protection that inures to them under international human rights law or migration law as they confront the multiple challenges associated with fleeing persecution and accessing haven. The decision of the ECtHR in the case under review has limited the access to justice for asylum seekers and further weakened the system of an effective remedy for human rights violations that is available to them. It is expected that state parties to the ECHR that would be brought before the ECtHR via suits based on poor reception and living conditions of asylum seekers, will brandish the judgment in BG and Others v France as a licence to flout human rights standards and minimum reception conditions ordinarily available to asylum seekers under the law.

The submission of Anne-Katrin Speck further re-echoes my concluding thoughts. The author posited that the failure of the ECtHR to draw inferences and assess the probative value of key evidence—all while suggesting that insufficient evidence was at the root of its non-violation finding—makes BG and Others v France a camel’s nose: a seemingly innocuous judgment, and it could have far-reaching implications. With the Court’s high normative threshold unlikely to change anytime soon, asylum seekers will stand little chance of prevailing with complaints about their living conditions until and unless the Court reverses course.[9]

[1]See the preamble to the United Nations Convention relating to the Status of Refugees 1951; and paragraph 35 of the preamble to Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (recast). All refugee law international and domestic legal instruments allude to the protection of human rights.

[2] Simas Grigonis, ‘EU in the face of migrant crisis: Reasons for ineffective human rights protection’ (2016) 2 International Comparative Jurisprudence 93.

[3] MSS v Belgium and Greece App no 30696/09 (ECHR, 21 January 2011).

[4] Laurens Lavrysen, ‘M.S.S. v. Belgium and Greece (2): The Impact on EU Asylum Law’ (Strasbourg Observers, 24 February 2011) accessed 19 October 2021.

[5] BG & others v France App no 63141/13 (ECHR, 10 September 2020).

[6] Anne-Katrin Speck, ‘A Camel’s Nose Under the Tent: The Court’s Failure to Discuss Evidence in B.G. and others v France’ (Strasbourg Observers, 23 October 2020) accessed 20 October 2021.

[7] Sarah Atkins, ‘Between the CJEU and ECtHR: Human rights of asylum seekers and their reception conditions in Europe since Opinion 2/13’ (2020) Journal of Immigration, Asylum and Nationality 34, 2.

[8] Lourdes Peroni, ‘M.S.S. v. Belgium and Greece: When is a Group Vulnerable?’ (Strasbourg Observers, 10 February 2011) accessed 20 October 2021. See also Khlaifia and others v Italy App no 16483/12 (ECHR, 15 December 2016).

[9] Speck (n 6).